Consumer Fraud Class Action Review – 2025

II. Significant Rulings In Consumer Fraud Class Actions In 2024 1. Motions For Class Certification Granted

In 2024, many courts certified various classes and sub-classes of consumers after analyzing the putative groups against the requirements of Rule 23 and the numerosity, commonality, adequacy, and typicality standards set forth by case law binding their respective jurisdiction. In Nelipa, et al. v. TD Bank, N.A., 2024 U.S. Dist. LEXIS 106766 (E.D.N.Y. June 17, 2024), the plaintiffs filed a class action against the defendant, TD Bank, for alleged violations of the Electronic Fund Transfer Act (EFTA) and for breach of TD’s Personal Deposit Account Agreement. Essentially, the plaintiffs claimed that unknown perpetrators impersonated TD Bank employees to trick them into providing access to the plaintiffs’ bank accounts, which the perpetrators then used to conduct unauthorized transactions. The plaintiffs reported these “imposter scams” and the subsequently fraudulent transactions to TD Bank, but TD Bank refused to treat the transactions as “unauthorized” and denied their fraud claims. Id. at *2. These denials, the plaintiffs contended, were consistent with TD Bank’s “policy and practice” of denying claims of unauthorized transfers in circumstances where the accountholder was defrauded into approving the transactions or providing access to their account, and that this policy violated the EFTA and the plaintiffs’ Personal Deposit Account Agreement they had with T.D. Bank. Id. The court granted the plaintiffs’ motion for class certification, focusing its analysis on the numerosity, commonality, and typicality requirements of Rule 23. First, the court found that the plaintiffs’ analyzed data, which established that thousands of TD Bank accountholders could fit within their proposed class definition, satisfied the plaintiffs’ burden of showing numerosity. The court ruled that proposed classes included current and former TD Bank accountholders who were defrauded, reported unauthorized transactions, and had their claims denied by TD Bank for specific, albeit various, reasons. This definition, the court determined, allowed for clear identification of class members based on TD Bank’s records. Furthermore, considering the low individual stakes each proposed member had, particularly in light of the potential class size, consolidating claims into a single class action was the superior method of adjudication according to the court. Second, the court determined the proposed class of plaintiffs met Rule 23’s commonality and typicality requirements because whether TD Bank’s policy of denying claims where customers provided access to fraudsters violated the EFTA and the Deposit Agreement was a common legal question among them that was capable of resolution for all class members. The court reasoned that common

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