No. 00-16355

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BANK OF AMERICA, N.A.; WELLS FARGO BANK, N.A.; and

CALIFORNIA BANKERS ASSOCIATION

Plaintiffs and Appellees,

CITY AND COUNTY OF SAN FRANCISCO, et al.

and

CITY OF SANTA MONICA, et al.,

Defendants and Appellants

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF [pdf]

The Amici groups represent millions of consumers, many of whom are directly affected by the ATM surcharges at issue in this case.

The California Public Interest Research Group (CALPIRG) is a statewide non-profit, non-partisan group founded in 1973 that conducts consumer, government reform and environmental advocacy projects on behalf of its 60,000 members around the state. CALPIRG is a founding member of the Campaign to End Extra ATM Fees, which sponsored the citizen campaigns to enact the 1999 San Francisco and Santa Monica ATM surcharge ban ordinances.

The California Reinvestment Committee (CRC) is a nonprofit membership organization of more than two hundred nonprofit organizations and public agencies across California. The California Reinvestment Committee works with community-based organizations to promote the economic revitalization of California's low-income communities and communities of color. CRC promotes increased access to credit for affordable housing and community economic development, and to financial services for these communities.

Consumer Action is a non-profit organization committed to consumer education and advocacy, with an emphasis on banking and financial services issues. Established in 1971 and having offices in San Francisco and Los Angeles, Consumer Action is actively involved in policy and legislative advocacy on credit and banking issues on behalf of consumers at both the state and national levels.

Consumer Federation of America (CFA) is a non-profit association organized in 1967 to advance the interest of consumers through advocacy and education. More than 260 national, state, and local consumer groups throughout the country currently belong to CFA, representing more than 60 million consumers. One of CFA's priorities is protecting consumers of financial services from excessive fees. CFA has published several reports on bank fees. CFA has also published several reports on developments in the payday loan industry and is particularly concerned that states be empowered to enforce state laws to protect vulnerable consumers.

Consumers Union, publisher of Consumer Reports, is a nonprofit membership organization chartered in 1936 to provide consumers with information, education and counsel about goods, services, health and personal finance. Consumers Union’s advocacy offices have a long history of advocating on behalf of consumers on a number of issues, including financial services. Through its California office, Consumers Union has sought to improve the marketplace for California's consumers, particularly low-income residents, including advocating for consumer banking protections.

The Foundation for Taxpayer and Consumer Rights (FTCR) is a tax-exempt, nonprofit organization deploying an in-house team of public interest lawyers, policy experts, and grassroots activists to advance and protect the interests of consumers and taxpayers. Founded in 1985, FTCR works with public interest groups in Washington, D.C. and throughout the nation on a wide variety of issues affecting the daily lives and pocketbooks of millions of Americans. FTCR’s Bills Project has conducted an ongoing national survey of consumer billing problems that encompasses errors and overcharges in all sectors of the economy, including excessive fees charged by financial institutions. FTCR’s Oaks Project citizen volunteers participated in signature-gathering efforts to encourage Santa Monica City Council members to adopt the ATM surcharge ban at issue in this case.

The U.S. Public Interest Research Group serves as the national lobbying office for state Public Interest Research Groups. PIRGs are non-profit, non-partisan consumer, environmental and government reform organizations active in 37 states. U.S. PIRG has released a series of "Big Banks, Bigger Fees" national bank surveys over the last 10 years documenting that financial deregulation has resulted in a pattern of higher bank fees, especially at bigger, multistate institutions. Since surcharging began nationally in 1996, U.S. PIRG's reports have quantified the impact of ATM surcharges, which contribute dramatically to the profits of ATM owners, lessen the benefit to consumers of shared ATM networks and encourage the growth of higher-fee, bigger banks.

The groups have a significant interest in this case because the District Court ruling found that consumer protection Ordinances banning unconscionable surcharge fees for non-customer ATM transactions are preempted by federal law. Consumers will be harmed if the ruling is upheld because 1) consumers will be forced to pay excessive surcharges as non-customers for ATM transactions and 2) the traditional authority of states to regulate in the area of banking and consumer protection will be undermined.

The groups have an interest in helping to preserve the ability of states to enact consumer safeguards in the area of banking. Consumer protection and banking are areas in which states have traditionally had authority to regulate. The broad interpretation by the District Court of the National Bank Act places all current and future state consumer laws that deal with deposit services and fees at risk. The District Court’s ruling is contrary to clear Congressional intent in both the National Bank Act (“NBA”) and the Electronic Funds Transfer Act (“EFTA”) and the longstanding history of dual state-federal control over banking regulation in this country.

Amici believe that they can be of assistance in illuminating the legal and policy issues before the Court. These organizations believe that authorities, arguments and policy considerations exist that have not yet been thoroughly addressed by the parties. Specifically, Amici will address governing federal case law and statutes concerning the issue of preemption of state and local ordinances regulating ATM fees. Amici will demonstrate why the EFTA and its savings clause are the controlling authority to determine the scope of federal preemption. Amici will further demonstrate the Santa Monica and San Francisco ordinances are particularly the type of consumer protection legislation that Congress intended to allow states to enact under the EFTA.

Pursuant to Federal Rules of Appellate Procedure 29(b), Amici consumer and community groups request leave of Court to file the accompanying proposed brief.

DATED: November 6, 2000

Respectfully submitted,

By:

TERESA M. OLLE Bar No. 191074

CALIFORNIA PUBLIC INTEREST RESEARCH GROUP (CALPIRG)

926 J St # 523

Sacramento, CA 95814

(916) 448-4516 p

(916) 448-4560 fax

On behalf of Amici Curiae

CALIFORNIA PUBLIC INTEREST RESEARCH GROUP (CALPIRG)

CALIFORNIA REINVESTMENT COMMITTEE

CONSUMER ACTION

CONSUMER FEDERATION OF AMERICA

CONSUMERS UNION

FOUNDATION FOR TAXPAYER AND CONSUMER RIGHTS

U.S. PUBLIC INTEREST RESEARCH GROUP (USPIRG)