(a) Civil liability. A bank that fails to comply with any requirement
imposed under subpart B, and in connection therewith, subpart A, of
this part or any provision of state law that supersedes any provision
of subpart B, and in connection therewith, subpart A, with respect
to any person is liable to that person in an amount equal to the sum
of—
(1) any actual damage sustained
by that person as a result of the failure;
(2) such additional amount as the court
may allow, except that—
(i) in the case of an individual
action, liability under this paragraph shall not be less than $125
nor greater than $1,350; and
(ii) in the case of a class action—
(A) no minimum recovery shall be applicable to each member of the
class; and
(B) the total
recovery under this paragraph in any class action or series of class
actions arising out of the same failure to comply by the same depositary
bank shall not be more than the lesser of $672,950 or 1 percent of
the net worth of the bank involved; and,
(3) in the
case of a successful action to enforce the foregoing liability, the
costs of the action, together with a reasonable attorney’s fee
as determined by the court.
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(b) Class action awards. In determining the
amount of any award in any class action, the court shall consider,
among other relevant factors—
(1) the amount of any damages awarded;
(2) the frequency and
persistence of failures of compliance;
(3) the resources of the bank;
(4) the number of persons adversely
affected; and
(5) the
extent to which the failure of compliance was intentional.
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(c) Bona fide errors.
(1) General rule. A bank is not liable in any action brought under
this section for a violation of this subpart if the bank demonstrates
by a preponderance of the evidence that the violation was not intentional
and resulted from a bona fide error, notwithstanding the maintenance
of procedures reasonably adapted to avoid any such error.
(2) Examples. Examples of a bona fide error include clerical,
calculation, computer malfunction and programming, and printing errors,
except that an error of legal judgment with respect to the bank’s
obligation under this subpart is not a bona fide error.
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(d) Jurisdiction. Any
action under this section may be brought in any United States district
court or in any other court of competent jurisdiction, and shall be
brought within one year after the date of the occurrence of the violation
involved.
(e) Reliance
on Board rulings. No provision of this subpart imposing any liability
shall apply to any act done or omitted in good faith in conformity
with any rule, regulation, or interpretation thereof by the Board,
regardless of whether such rule, regulation, or interpretation is
amended, rescinded, or determined by judicial or other authority to
be invalid for any reason after the act or omission has occurred.
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(f) Exclusions. This section
does not apply to claims that arise under subpart C of this part or
to actions for wrongful dishonor.
(g) Record retention.
(1) A bank shall retain evidence of compliance
with the requirements imposed by this subpart for not less than two
years. Records may be stored by use of microfiche, microfilm, magnetic
tape, or other methods capable of accurately retaining and reproducing
information.
(2) If
a bank has actual notice that it is being investigated, or is subject
to an enforcement proceeding by an agency charged with monitoring
that bank’s compliance with the EFA Act and this subpart, or
has been served with notice of an action filed under this section,
it shall retain the records pertaining to the action or proceeding
pending final disposition of the matter, unless an earlier time is
allowed by order of the agency or court.
