(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 $100 nor greater than $1,100; 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 $552,500 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.
