Nelipa v. TD Bank, N.A.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LUDMILA NELIPA, ALLISON ARCHER,

VERDENIA EDWARDS, on behalf of themselves

and all others similarly situated, REPORT AND

RECOMMENDATION

Plaintiffs,

21-CV-1092

v. (DeArcy Hall, J.)

(Marutollo, M.J.)

TD BANK, N.A.,

Defendant.

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JOSEPH A. MARUTOLLO, United States Magistrate Judge:

Plaintiffs Ludmila Nelipa, Allison Archer, and Verdenia Edwards (collectively,

“Plaintiffs”) bring this action, on behalf of themselves and all other persons similarly situated,

against Defendant TD Bank, N.A. (“TD Bank”) for alleged violations of the Electronic Fund

Transfer Act (“EFTA”), 15 U.S.C. §§ 1693, et seq., and for breach of TD Bank’s Personal Deposit

Account Agreement. See generally Dkt. No. 12. Plaintiffs contend that unknown perpetrators

impersonated TD Bank employees to trick them into providing access to their bank accounts,

which the perpetrators then used to conduct unauthorized transactions. See id. ¶¶ 1-2. After falling

victim to these “imposter scams,” Plaintiffs reported the transactions to TD Bank, but TD Bank

refused to treat the transactions as “unauthorized” and denied their fraud claims. Id. ¶¶ 1-2, 35-

36. Plaintiffs contend that these denials are consistent with TD Bank’s “policy and practice” of

denying claims of unauthorized transfers in circumstances where the accountholder is defrauded

into approving the transactions or providing access to their account. Id. ¶¶ 43, 56, 137; see also

Dkt. No. 44, at 5. Plaintiffs’ primary contention is that this policy violates the EFTA and the

promises set forth in TD Bank’s Personal Deposit Account Agreement. Dkt. No. 12 ¶¶ 137, 157-

63, 165-67.

Currently pending before this Court, on a referral from the Honorable LaShann DeArcy

Hall, United States District Judge, is Plaintiffs’ motion for class certification pursuant to Fed. R.

Civ. P. 23. See Dkt. No. 23; see also February 7, 2024 Referral Order. Plaintiffs request that the

Court certify two classes of TD Bank customers who were victims of the same or similar fraudulent

schemes and whose unauthorized transfer claims were also denied by TD Bank. See generally

Dkt. No. 44.

For the reasons set forth below, this Court respectfully recommends that Plaintiffs’ motion

be granted.

I. Background

A. Relevant Factual Background1

1. Plaintiffs and the Proposed Class

a. Ludmila Nelipa

On October 22, 2020, Nelipa, a Staten Island resident, received a text message from what

appeared to be TD Bank’s Fraud Protection Department inquiring about a $450 charge to her

personal checking account that was made at a Walmart in Atlanta, Georgia. Dkt. No. 12 ¶¶ 10,

16; Dkt. No. 45-1, at 2; Dkt. No. 45-2, at 5.2 At the time, Nelipa had a TD Convenience Checking

1 These facts are taken from the Amended Complaint (Dkt. No. 12) and evidence submitted by both parties

in connection with this motion. See Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15

(2d Cir. 1978) (The Court “accept[s] the complaint allegations as true in a class certification motion.”);

Westchester Indep. Living Ctr., Inc. v. SUNY Purchase, 331 F.R.D. 279, 284 n.1 (S.D.N.Y. 2019) (“When

considering a motion for class certification, courts accept the allegations in the complaint as true. And a

court may consider material outside the pleadings in determining the appropriateness of class certification.”

(quotation marks omitted)). “Although plaintiffs have the burden of establishing compliance with each of

the requirements of Rule 23, see In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir.

2013), in analyzing the issue of certification, the court accepts as true the allegations in the complaint

regarding the merits of the claim[,] [s]ee D’Alauro v. GC Servs. Ltd. P’ship, 168 F.R.D. 451, 454 (E.D.N.Y.

1996) (citation omitted).” Chen v. XpresSpa at Terminal 4 JFK LLC, No. 15-CV-1347 (CLP), 2021 WL

4487835, at *3 (E.D.N.Y. Oct. 1, 2021).

2 For the parties’ respective memoranda of law, citations refer to the page numbers inserted by the parties.

Other citations refer to the ECF-stamped pages on the docket.

account with TD Bank. Dkt. No. 12 ¶ 14. A few minutes later, Nelipa received a phone call from

a different number that matched the customer service number provided in the TD Bank Personal

Deposit Account Agreement that applies to her account. Id. ¶ 17; Dkt. No. 45-2, at 5; see also

Dkt. No. 45-3. The caller, who described themselves as a TD Bank representative, told Nelipa

that the purpose of the call was to inquire about the $450 Walmart charge and to initiate a “fraud

prevention process” that would help reverse the transaction. Dkt. No. 12 ¶ 18; Dkt. No. 45-2, at

5. Unbeknownst to Nelipa, the caller was not from TD Bank; instead, the caller had “spoofed”3

the number so that it appeared as if TD Bank was calling. Dkt. No. 12 ¶ 20; Dkt. No. 45-2, at 5.

The caller instructed Nelipa to provide the “reversal code” furnished in the text message

that she received and to transfer money to another bank account—called “Rev Code”—using

Zelle.4 Dkt. No. 12 ¶ 28; Dkt. No. 45-2, at 5. Under the guise of this purported “fraud prevention

process” (which, of course, was anything but), the caller nefariously convinced Nelipa to send

$2,500 in a series of small Zelle transactions, which is the maximum daily amount allowed by

Zelle. Dkt. No. 12 ¶ 34; Dkt. No. 45-1, at 3-11; Dkt. No. 45-2, at 3, 5-6; Dkt. No. 45-5, at 3.

Throughout this process, Nelipa believed that she was confirming TD Bank’s reversal of the

unauthorized Walmart charge. Dkt. No. 12 ¶ 33; Dkt. No. 45-2, at 5. Before the call ended, the

caller told Nelipa that her bank account would be frozen and that she would receive a new debit

card in the mail in a few days. Dkt. No. 12 ¶ 35; Dkt. No. 45-2, at 5.

3 As noted in the Amended Complaint, “[s]poofing is when a caller deliberately falsifies the information

transmitted to [the recipient caller’s] ID display to disguise their identity.” Dkt. No. 12 ¶ 20.

4 “Zelle is a service that enables a person to electronically transfer money from his or her bank account to

another registered user’s bank account using a mobile device or the website of a participating banking

institution. Dkt. No. 12 ¶ 24.

When the new debit card failed to arrive, Nelipa contacted TD Bank and learned that the

bank had not been in contact with her and that she was a victim of an imposter scam. Dkt. No. 12

¶ 36; Dkt. No. 45-2, at 4. The TD Bank employee who Nelipa spoke with informed her that the

bank was “aware of the ‘spoofing’ scam whereby fraudsters purporting to be from TD Bank’s

Fraud Department contact TD Bank customers while replicating TD Bank’s phone number on the

call recipient’s caller ID and obtain customers’ account information under the guise of ‘preventing’

fraud.” Dkt. No. 45-2, at 4. Based on the information provided by Nelipa, TD Bank’s Fraud

Department initiated an investigation into the charges. See id. Nelipa also filed a police report

about the charges. See Dkt. No. 45-6.

TD Bank ultimately denied Nelipa’s fraud claim. See Dkt. No. 45-7, at 2. By letter dated

November 25, 2020, TD Bank informed Nelipa that her claim was denied because the bank had

“determined that an error did not occur.” Id. Though not stated in the denial letter, TD Bank made

this determination based on “evidence show[ing] that an SMS5 [prompt] was received and

approved by [Nelipa’s phone number],” and that “[t]he transactions were processed based off

[Nelipa’s] response to approve the transaction.” Dkt. No. 45-28, at 18:3-7, 176:2-106; see also

Dkt. No. 12 ¶ 42; Dkt. 45-2, at 4; Dkt. No. 45-28, at 192:3-11. As a result of this determination,

TD Bank declined to credit Nelipa’s account for the subject transactions. See Dkt. No. 12 ¶¶ 42;

Dkt. No. 45-2, at 3.

5 According to TD Bank’s Financial Crimes and Fraud Management Group, the Secure Message Systems

(SMS) is a “communication method utilized to send request[s] for confirmation of activity to the account

holder.” Dkt. No. 52-3, at 4.

6 All citations to deposition transcripts refer to the page numbers affixed to the transcripts.

b. Allison Archer

On January 28, 2021, Archer, a Staten Island resident, received a call from a person

claiming to be a TD Bank representative who was inquiring about fraudulent charges made from

her account in Florida and Georgia. Dkt. No. 12 ¶¶ 10, 59-60. At the time, Archer had a TD

Convenience Checking account with TD Bank. Id. ¶ 57. While Archer was “[i]nitially skeptical”

of the call, she “conducted a reverse search online of the phone number appearing on her cell phone

as the caller’s number, and confirmed that it was associated with TD Bank.” Id. ¶ 62. Similar to

the caller who had victimized Nelipa, the caller who contacted Archer had spoofed TD Bank’s

number. Dkt. No. 45-10, at 7; see also Dkt. No. 45-9, at 4 (phone records).

The caller offered to help Archer create a new online bank account to prevent further

unauthorized charges. Dkt. No. 44, at 3 (citing Dkt. No. 12 ¶ 64). Believing that she was speaking

with a TD Bank representative, Archer provided the caller with the login credentials to her online

bank account. Id. The caller then proceeded to initiate a series of transactions from Archer’s

account. Id. at 4 (citing Dkt. No. 45-11). When Archer received a text message from TD Bank

inquiring about the transactions, she replied that they were authorized. See Dkt. No. 45-28, at

192:3-7; Dkt. No. 61-5, at 242:12-18. The next day when Archer reviewed her account, she

discovered 31 unauthorized charges at Whole Foods stores in Alpharetta, Georgia and Atlanta,

Georgia totaling $1,522.28. Dkt. No. 45-10, at 7; Dkt. No. 45-11, at 2-4.

Archer immediately called TD Bank to dispute the charges and to initiate a fraud

investigation. Dkt. No. 12 ¶ 68; Dkt. No. 45-10, at 3. TD Bank applied a provisional credit to

Archer’s account pending the final determination of her fraud claim. See Dkt. No. 45-10, at 4.

Archer also reported the charges to the police department in Alpharetta, Georgia and filed a police

report with her local NYPD precinct. See Dkt. No. 45-10, at 6; Dkt. No. 45-12.

TD Bank ultimately denied Archer’s fraud claim. Dkt. No. 12 ¶ 69; Dkt. No. 45-10, at 4.

By letter dated February 2, 2021, TD Bank informed Archer that “[b]ased on our investigation, we

have determined that fraud did not occur.” Dkt. No. 45-13, at 2. Though not explained in the

letter, TD Bank denied Archer’s fraud claim because she confirmed that the transactions were

valid in response to “fraud verification” text messages that she had received from TD Bank. See

Dkt. No. 45-28, at 192:3-7; Dkt. No. 61-5, at 242:12-18. TD Bank had also gathered evidence in

its investigation that the caller had used Archer’s pin for the purchases and did not attempt to use

the card after it was closed. Dkt. No. 45-28, at 186:9-14.

TD Bank sent Archer a second denial letter, dated February 15, 2021, which informed her

that the provisional credit applied to her account would be reversed the next day. See Dkt. No. 12

¶ 73; Dkt. No. 45-10, at 4; Dkt. No. 45-14, at 2. As a result, Archer withdrew the funds from her

account “to prevent TD Bank from wrongfully taking them.” Dkt. No. 12 ¶ 75.

On March 14, 2021, Archer submitted a dispute with the Consumer Financial Protection

Bureau (“CFPB”) about the ongoing issue that she was having with TD Bank. Id. ¶ 85. Then, on

March 19, 2021, TD Bank sent Archer another letter stating that her fraud claim was denied.7 Id.

¶ 86. According to Archer, this letter appeared to acknowledge that she was the victim of a crime,

and stated that “TD Bank is willing to assist you in the prosecution of a suspect. As you have

already filed a police report, the recommendation is to follow up with the detective assigned to

your case. Should you have any information or documentation pertaining to your case, please

provide it to the authorities.” Id. ¶ 88. Nevertheless, TD Bank continues to demand that Archer

deposit $1,557.28 to replace the provisional credit that was applied to her account. Dkt. No. 12 ¶

89; Dkt. No. 45-16, at 2.

7 The Amended Complaint lists two dates for this letter – March 15, 2021 and March 19, 2021. See Dkt.

No. 12 ¶¶ 86-88.

c. Verdenia Edwards

On August 20, 2020, Edwards, a Bronx resident, received a call from a person posing as

an Amazon representative. Dkt. No. 12 ¶¶ 11, 94; Dkt. No. 45-17, at 6. At the time, Edwards had

a TD Convenience Checking account with TD Bank. Dkt. No. 12 ¶ 91. Edwards received the call

while in an Access-a-Ride van on the way to a doctor’s appointment. Id. ¶ 105. The caller claimed

that someone had purchased an iPhone with Edwards’s bank account information and that Amazon

was trying to refund her account for the charges. Id. ¶ 95; Dkt. No. 45-17, at 6. Edwards believed

the caller because “she had not purchased a new iPhone because she could not afford to do so and

because she is an Android user.” Dkt. No. 45-17, at 6.

The caller told Edwards in order to process the refund, they needed to confirm her identity

and purported to add a “TD Bank employee” to the line to do so. Dkt. No. 12 ¶¶ 96-97; Dkt. No.

45-17, at 6. Edwards now believes that this “TD Bank employee” was a second imposter in

cahoots with the original caller. See Dkt. No. 12 ¶ 97. The fraudsters remotely accessed Edwards’s

phone and signed into her TD Bank account. Id. ¶¶ 99-100; Dkt. No. 45-17, at 6; Dkt. No. 45-19,

at 3. The fraudsters “transferred $799 to a stranger named ‘Eugene Wright’ and transferred $800

from [Edwards’s] savings account to her checking account”; they then “initiated a transfer of $806

via Western Union to someone named ‘Steve Williams’ located in India.” Dkt. No. 45-17, at 6.

In total, the fraudsters transferred $1,605 from Edwards’s account. Id.

When TD Bank sent Edwards a text message inquiring about whether these transfers were

authorized, the callers were able to respond “Yes” from her phone and approve the transfers. Dkt.

No. 12 ¶ 104; Dkt. No. 45-17, at 6-7. Edwards contends that “the fraudsters were controlling her

phone because she saw the actions they performed on her screen, including entering authorization

codes [she] received via text message, then deleting the texts.” Dkt. No. 45-17, at 6-7. She claims

that she was “unable to respond ‘No’ to the authorization texts she received regarding the Zelle

transfer because the fraudsters responded ‘Yes’ while they were remotely controlling her phone.”

Dkt. No. 45-17, at 6-7.8

On or about August 21, 2020, Edwards disputed the transfers at a local TD Bank branch.

Dkt. No. 12 ¶ 109; Dkt. No. 45-17, at 3-4. She also followed TD Bank’s instructions and promptly

filed a police report with her local NYPD precinct. Dkt. No. 12 ¶ 109; Dkt. No. 45-17, at 4-5; Dkt.

No. 45-20.

On September 18, 2020 October 13, 2020, and November 6, 2020, TD Bank sent Edwards

letters stating that her fraud claim was denied because the bank had “determined that an error did

not occur.” Dkt. No. 45-21, at 2; Dkt. No. 45-22, at 2; Dkt. No. 45-23, at 2. TD Bank made this

determination based on evidence that Edwards had “provided access or authorization to a third-

party” and “authorized the transaction” through an SMS text message. Dkt. No. 45-28, at 199:13-

24; see also Dkt. No. 12 ¶ 116.

2. TD Bank’s Investigation into Whether Transactions are Unauthorized

Plaintiffs allege that TD Bank has a “policy and practice” of denying claims of

unauthorized transfers in circumstances where the accountholder is defrauded into approving the

transactions or providing access to their account. See Dkt. No. 12 ¶¶ 43, 56, 137; see also Dkt.

No. 44, at 5. Plaintiffs contend that this policy is reflected in the “standardized procedures” that

TD Bank’s fraud agents follow when conducting fraud investigations and the “Decision Matrix”

that fraud agents use in determining whether to approve or deny claims. See Dkt. No. 44, at 6-9.

TD Bank’s investigation into claims for unauthorized transfers begins with the

accountholder contacting the bank, either by phone or in person at a branch, to report an

8 Edwards also claims that “the fraudsters were able to disconnect a phone call [Edwards] received from

her doctor while they had control of her phone.” Id. at 7.

unauthorized transaction or an error on their account. Dkt. No. 44, at 5; Dkt. No. 58, at 5. The

TD Bank customer service representative takes the information provided by the accountholder and

inputs it into the Claims Initiation Manager (“CIM”) – TD Bank’s internal database used to store

information regarding digital claims, which includes Zelle transactions, and debit card claims.9

See Dkt. No. 45-28, at 24:3-25; Dkt. No. 45-29, at 17. The CIM contains information relating to

the investigations of all reported claims, including the amount disputed, the disposition and reasons

for such disposition, and the amount refunded/credited back to the accountholder, if any. See Dkt.

No. 45-28, at 24:3-25; Dkt. No. 45-29, at 17.

After receiving the initial information provided by the accountholder and inputting it into

CIM, the TD Bank customer service representative classifies the claim as either “fraud” or “non-

fraud” for internal routing purposes. Dkt. No. 58, at 5; Dkt. No. 61-1, at 33:21–34:4.10 According

to TD Bank, “[i]f a customer claims that ‘the customer never authorized the transaction, never

participated in the transaction, and did not agree to having that transaction post to their account,’

the claim is classified as a ‘fraud’ claim for internal routing purposes.” Dkt. No. 58, at 6 (citing

Dkt. No. 45-28, at 23:7-11). “A ‘non-fraud’ claim, which is investigated on a separate track by

9 The CIM system was used for debit card claims until TD Bank developed the “CRL” system, which TD

Bank now uses for debit card claims. See Dkt. No. 45-28, at 183:22-184:4.

10 Certain exhibits filed with the parties’ motions are under seal. Upon review of the entire motion for class

certification, however, portions of the information contained in these exhibits are referenced elsewhere,

unredacted, on the docket. “That is at odds with the principles of public access and transparency.” Lyons

v. New York Life Ins. Co., No. 20-CV-3120 (PAE), 2022 WL 837202, at *27 (S.D.N.Y. Mar. 21, 2022),

appeal dismissed (Oct. 21, 2022) (“on its review of the summary judgment record, the Court found

documents that were improperly filed under seal or redacted.”); see also AngioDynamics, Inc. v. C.R. Bard,

Inc., No. 17-CV-598 (BKS) (CFH), 2022 WL 2643583, at *26 (N.D.N.Y. July 8, 2022) (“Portions of a

number of the exhibits refer portions of many of these documents are quoted publicly elsewhere in the

record, suggesting that maintaining these documents entirely under seal is not justified.”). Nonetheless, at

this time and out of an abundance of caution, the Court is issuing this Report and Recommendation under

seal with copies provided to the parties. The parties may submit a copy of this Report and Recommendation

with proposed redactions by June 7, 2024. If the parties do not submit any proposed redactions by June 7,

2024, the Court will docket this Report and Recommendation, in its entirety, on the public docket.

similarly qualified agents, involves an apparently authorized transaction with some flaw, such as

a wrong amount or wrong recipient of funds, or where the customer did not receive the ‘goods or

services that they were expecting to receive from that transaction.’” Id. (citing Dkt. No. 45-28, at

23:12-22; Dkt. No. 61-3, at 89:11–21; Dkt. No. 61-4, at 60:21–61:13). These initial classifications

are preliminary, and TD Bank’s fraud agents can re-designate a claim based on information

gathered during their investigation. Dkt. No. 58, at 6; Dkt. No. 61-2, at 61:17-25.

Once the customer service representative classifies the claim as “fraud” or “non-fraud,” it

is added to a queue for further processing by TD Bank’s fraud department. Dkt. No. 44, at 6; Dkt.

No. 45-32, at 22:4-6. TD Bank’s fraud agents access new claims and their corresponding intake

information in CIM and Case Log, another TD Bank internal database. Dkt. No. 45-35, at 46:20-

47:7, 79:11-23, 82:6-9, 85:20-23; Dkt. No. 45-32, at 72:21-73:3. This information is also included

in excel spreadsheets, which are collectively referred to as the “Tracker.” Dkt. No. 45-28, at

100:21-101:10, 102:5-9. The Tracker spreadsheets provide a record of all digital claims that fraud

agents have processed since at least 2017. Dkt. No. 45-28, at 149:17-150:2, 155:3-12, 156:10-21;

Dkt. No. 45-32, at 78:15-79:2.

TD Bank’s fraud agents use TD Bank’s Account2Account (“A2A”) Claims Procedure to

process claims involving Zelle transactions.11 Dkt. No. 45-28, at 21:21-22:16; Dkt. No. 45-32, at

22:22-23. This procedure provides “a flow of how to go through the claim and complete the[]

investigation.” Dkt No. 45-28, at 48:17-49:4, 69:13-70:7; Dkt. No. 45-32, at 20:10-18, 31:18-

32:18, 33:24-34:9; Dkt. No. 45-35, at 24:2-15, 44:8-45:6, 46:4-17. The A2A Claims Procedure

directs agents to consult various systems and documents to gain information about the

11 TD Bank’s fraud agents follow a similar procedure for debit card claims, which include transactions

where a debit card is used at a chip terminal or swiped or when the card number is used for an online

purchase. Dkt. No. 45-28, at 17:6-11, 17:22-18:2, 96:12-97:3.

accountholder’s online account information and banking history. Dkt. No. 44, at 6; Dkt. No. 45-

28, at 49:4-16. It also includes instructions for how to access the various systems and descriptions

of the types of information that can be obtained from these systems. See Dkt. No. 52-3, at 12-15.

The TD Bank fraud agent can also contact the accountholder for additional information. Dkt. No.

45-28, at 52:19-54:24, 54:25-55:14, 62:9-64:16.

After collecting information from TD Bank’s systems and the customer, TD Bank’s fraud

agents then consult TD Bank’s “Decision Matrix” to “determine if they should pay or deny the

claim.” Dkt. No. 45-32, at 32:2-6, 98:18-99:8; see also Dkt. No 52-9, at 2-6 (Decision Matrix).

The Decision Matrix describes “the more common scenarios, whether it’s a denial or a pay

decision, based off of the type of fraud that [TD Bank is] seeing occur,” and lists different types

of fraud with examples of “primary” and “secondary” reasons to deny claims. Dkt. No. 45-28, at

85:3-86:8, 95:14-96:22, 180:12-25; Dkt. No. 45-35, at 55:18-24, 57:9-13; Dkt. No 52-9, at 2-6.

While the Decision Matrix does not dictate how agents should weigh the various factors considered

in their analysis (Dkt. No. 59-1, at 38:6-9), it does provide that at least two “secondary denial

reasons” must be present for the fraud agent to deny the claim (Dkt. No. 52-9).12

If the TD Bank fraud agent determines that the claim should be denied, the A2A Claims

Procedure instructs them to attempt to call the customer, prepare and send the customer a form

12 Only one “primary denial reason” must be present for the fraud agent to deny the claim. Dkt. No. 52-9,

at 2.

denial letter, and update information about the claim in CIM, Case Log, and the Tracker. Dkt. No.

45-28, at 78:10-80:19, 84:11-16; Dkt. No. 45-35, at 52:19-53:7. TD Bank’s fraud agents copy the

denial reasons directly from the Decision Matrix into the “Comment Note” field in CIM, Case

Log, and the Tracker. Dkt. No. 45-32, at 58:3-60:11, 116:8-18.

At bottom, Plaintiffs contend that TD Bank has a “uniform policy” of denying unauthorized

transfer claims when the accountholder is defrauded into approving the transaction or providing

access to their account. See Dkt. No. 44, at 5; see also Dkt. No. 12 ¶¶ 43, 56, 137. Plaintiffs

further contend that “[c]onsistent with this policy,” TD Bank denied Nelipa, Archer, and

Edwards’s claims because each had approved the transactions as valid in response to a text

message received from TD Bank. Dkt. No. 44, at 9-10 (citing Dkt. No. 45-28, at 94:16-22, 146:3-

149:5, 175:4-176:20, 180:12-181:4, 186:4-21, 187:20-188:7, 195:16-196:3, 199:13-200:5,

205:12-206:13).

B. Procedural History

On March 1, 2021, Nelipa commenced this action against TD Bank, asserting causes of

action for violations of the EFTA and breach of the Personal Deposit Account Agreement. See

generally Dkt. No. 1. On June 4, 2021, Plaintiffs filed an amended class action complaint in which

Archer and Edwards were added as plaintiffs. See generally Dkt. No. 12. The amended complaint

asserts substantially similar claims as those asserted in the original complaint and seeks actual,

statutory, and treble damages in addition to attorneys’ fees and costs. See id.

Plaintiffs allege that “TD Bank violates the EFTA’s limitation on consumers’ liability for

unauthorized electronic fund transfers to $50, or to $500 if the consumer waits more than two

business days to notify her bank after becoming aware of the unauthorized transaction.” Dkt. No.

44, at 10 (quoting 15 U.S.C. § 1693g(a)). Plaintiffs also allege “that TD Bank’s failure to limit its

customers’ liability for fraudulent transactions also breaches the Personal Deposit Account

Agreement to which all customers who open a personal bank account with TD Bank must agree.”

Dkt. No. 45-28, at 37:19-38:16, 39:2-10. Plaintiffs contend that the section of the Personal Deposit

Account Agreement “titled ‘Unauthorized Transfers’ applies to digital and debit card claims and

mirrors the EFTA,” to wit:

If you notify us within two (2) Business Days after you learn of the loss or theft of

your Card or PIN, you can lose no more than $50 if someone uses your Card or PIN

without your permission. If you do not notify us within two (2) Business Days after

you learn of the loss or theft of your Card or PIN, and we can prove we could have

prevented someone from using your Card and/or PIN without your permission if

you had told us, you could lose as much as $500 ($50 if you are a resident of

Massachusetts and this Agreement is governed by Massachusetts law).

Dkt. No. 44, at 11 (citing Dkt. No. 45-50; Dkt. No 45-28, at 40:13-41:13).

On June 18, 2021, TD Bank filed its answer to the amended complaint wherein it denied

Plaintiffs’ claims. See Dkt. No. 14. The parties proceeded to discovery, and on November 16,

2023, the parties informed the Court that discovery was complete. See Dkt. No. 42. Thereafter,

the Court set a briefing schedule for Plaintiffs to file their motion for class certification. See Nov.

16, 2023 Dkt. Order.

On November 30, 2023, Plaintiffs filed their motion for class certification. See Dkt. Nos.

43-50. In their motion, Plaintiffs seek certification of two classes under Fed. R. Civ. P. 23(b)(3):

EFTA Excess Consumer Liability Class. All persons (a) who have or had an

account with TD Bank; and (b) notified TD Bank that they had been induced by

fraud to provide another person with their account access device leading to

unauthorized charges; and (c) within one year prior to filing of this action, TD Bank

determined that the transactions were authorized because the class member

provided the access device to the fraud perpetrator; and (d) who notified TD Bank

within two business days of the alleged loss or theft and who alleged a loss of more

than $50, or who notified TD Bank at any time and who alleged a loss of more than

$500.

Breach of Contract Class. All persons (a) who were parties to TD Bank’s

Personal Deposit Account Agreement; and (b) notified TD Bank that they had been

induced by fraud to provide another person with their account access device leading

to unauthorized charges; and (c) within six years prior to filing of this action, TD

Bank determined that the transactions were authorized because the class member

provided the access device to the fraud perpetrator; and (d) for whom TD Bank did

not determine that the account holder acted in concert with the perpetrator; and (e)

who notified TD Bank within two business days of the alleged loss or theft and who

alleged a loss of more than $50, or who notified TD Bank at any time and who

alleged a loss of more than $500.

Dkt. No. 44, at 12.13

On January 16, 2024, TD Bank filed its opposition to Plaintiffs’ motion. See Dkt. No. 61.

On February 2, 2024, Plaintiffs filed a reply wherein they proposed the following revised class

definitions:

EFTA Excess Consumer Liability Class. All persons (1) who have or had an

account with TD Bank; and (2) notified TD Bank that they had been induced by

fraud to provide another person with their account access device leading to

unauthorized charges; and (3) within one year prior to filing of this action, TD Bank

denied the consumer’s Regulation E claim for reasons substantially the same as the

following: (a) Evidence shows that an SMS was received and approved by the

customer’s phone number on file; (b) Customer has had no recent changes to the

address, phone number, or OLB credentials in the last 90 days; (c) Customer

indicated that they previously provided access/authorization to 3rd party; (d)

Customer fell for a scam and gave online banking credentials to a 3rd party; or (e)

Customer is a victim of TD imposter scam; and (4) who notified TD Bank within

two business days of the alleged loss or theft and who alleged a loss of more than

$50, or who notified TD Bank at any time and who alleged a loss of more than

$500.

Breach of Contract Class. All persons (1) who have or had an account with TD

Bank; and (2) notified TD Bank that they had been induced by fraud to provide

another person with their account access device leading to unauthorized charges;

and (3) within six years prior to filing of this action, TD Bank denied the

consumer’s Regulation E claim for reasons substantially the same as the following:

(a) Evidence shows that an SMS was received and approved by the customer’s

phone number on file; (b) Customer has had no recent changes to the address, phone

number, or OLB credentials in the last 90 days; (c) Customer indicated that they

previously provided access/authorization to 3rd party; (d) Customer fell for a scam

and gave online banking credentials to a 3rd party; or (e) Customer is a victim of

TD imposter scam; and (4) who notified TD Bank within two business days of the

13 As noted in their motion, “Plaintiffs do not seek certification of the third proposed class (the EFTA Failure

to Provide Notice Class) included in their First Amended Complaint (ECF No. 12).” Dkt. No. 44, at 12

n.2.

alleged loss or theft and who alleged a loss of more than $50, or who notified TD

Bank at any time and who alleged a loss of more than $500.

Dkt. No. 62, at 3-4. As set forth in the below chart, Plaintiffs’ reply seeks to modify the proposed

class definitions for both the EFTA Excess Consumer Liability Class and the Breach of Contract

Class as follows (using strikeouts for deletions and bolded text for substantive insertions):

Plaintiffs’ Prior Proposed Class Definitions | Plaintiffs’ Current Proposed Class

(Language from the First Amended | Definitions (Language from Plaintiffs’

Complaint (Dkt. No. 12 □□ 129, 130) and | Reply (Dkt. No. 62, at 3-4))

Plaintiffs’ Principal Class Certification

Memorandum of Law (DKt. No. 44, at 12

EFTA Excess Consumer Liability Class EFTA Excess Consumer Liability Class

All persons (a) who have or had an account | All persons (1) who have or had an account

with TD Bank; and with TD Bank; and

(b) notified TD Bank that they had been | (2) notified TD Bank that they had been

induced by fraud to provide another person | induced by fraud to provide another person

with their account access device leading to | with their account access device leading to

unauthorized charges; and unauthorized charges; and

(c) within one year prior to filing of this action, | (3) within one year prior to filing of this action,

TD Bank determined that the transactions were | □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

authorized because the class member provided | □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

the access device to the fraud perpetrator; and | previded—the—aceess—devieete—_the_fraud

perpetrator ITD Bank denied the

consumer’s Regulation E claim for reasons

substantially the same as the following: (a)

Evidence shows that an SMS was received

and approved by the customer’s phone

number on file; (b) Customer has had no

recent changes to the address, phone

number, or OLB credentials in the last 90

days; (c) Customer indicated that they

previously provided access/authorization to

3rd party; (d) Customer fell for a scam and

gave online banking credentials to a 3rd

party; or (e) Customer is a victim of TD

imposter scam; and

(d) who notified TD Bank within two business | (4) who notified TD Bank within two business

days of the alleged loss or theft and who | days of the alleged loss or theft and who

alleged a loss of more than $50, or who | alleged a loss of more than $50, or who

15

Plaintiffs’ Prior Proposed Class Definitions | Plaintiffs’ Current Proposed Class

(Language from the First Amended | Definitions (Language from Plaintiffs’

Complaint (Dkt. No. 12 129, 130) and | Reply (Dkt. No. 62, at 3-4))

Plaintiffs’ Principal Class Certification

Memorandum of Law (Dkt. No. 44, at 12

notified TD Bank at any time and who alleged | notified TD Bank at any time and who alleged

a loss of more than $500. a loss of more than $500.

Breach of Contract Class Breach of Contract Class

All persons (a) who were parties to TD Bank’s | All persons (1) who have or had an account

Personal Deposit Account Agreement: and with TD Bank; and

(b) notified TD Bank that they had been | (2) notified TD Bank that they had been

induced by fraud to provide another person | induced by fraud to provide another person

with their account access device leading to | with their account access device leading to

unauthorized charges; and unauthorized charges; and

(c) within six years prior to filing of this action, | (3) within six years prior to filing of this action,

TD Bank determined that the transactions were | □□□□□□□□□□□□□□□□□□□□□□□□ transactions

authorized because the class member provided | +ere-nutherized-beeausetheclassimember

the access device to the fraud perpetrator; and | previded—the—aeeess—devieete—_the_fraud

perpetratee TD Bank denied the

consumer’s Regulation E claim for reasons

substantially the same as the following: (a)

Evidence shows that an SMS was received

and approved by the customer’s phone

number on file; (b) Customer has had no

recent changes to the address, phone

number, or OLB credentials in the last 90

days; (c) Customer indicated that they

previously provided access/authorization to

3rd party; (d) Customer fell for a scam and

gave online banking credentials to a 3rd

party; or (e) Customer is a victim of TD

imposter scam; and

(d) for whom TD Bank did not determine that

the account holder acted in concert with the | thatthe-necount—helder_acted_in_concert

perpetrator; and atith the perpetrators and

(e) who notified TD Bank within two business | (4) who notified TD Bank within two business

days of the alleged loss or theft and who | days of the alleged loss or theft and who

alleged a loss of more than $50, or who | alleged a loss of more than $50, or who

notified TD Bank at any time and who alleged | notified TD Bank at any time and who alleged

a loss of more than $500 a loss of more than $500.

16

Plaintiffs contend that “[t]hese modified class definitions use the denial reasons TD Bank’s

fraud agents copied and pasted from the bank’s decision matrix into the Tracker and CIM systems.”

Dkt. No. 62, at 3-4 (citations omitted) (noting that “Plaintiffs’ potential class list consists of

customers like Plaintiffs whose fraud claims TD denied for reasons that don’t actually refute a

finding of fraud. Each of these denial reasons frequently appears verbatim or with minor word

variations in TD Bank’s records.”).

In light of these revisions, TD Bank requested leave to file a sur-reply, which they attached

as Exhibit A to their letter motion. See Dkt. No. 64. The Court granted TD Bank’s motion on

February 20, 2024 and deemed the sur-reply as filed. See Feb. 20, 2024 Dkt. Order.

TD Bank argues in its sur-reply that “[t]his Court should not countenance Plaintiffs waiting

until after the conclusion of discovery and after TD Bank filed its opposition to class certification

to offer these new definitions.” Dkt. 64-1, at 1. “Further, the untimely proposed amendments are

futile because, as revised, they compound rather than cure the previous definitions’ glaring

deficiencies relating to typicality, commonality, adequacy, ascertainability, predominance, and

superiority.” Id.

On April 27, 2024, the Court ordered the parties to provide “an overview of any federal

cases that have addressed whether to certify a class that consists of consumers who contend that a

bank erroneously denied their reimbursement claims relating to allegedly unauthorized

transactions, in violation of the EFTA.” See Apr. 27, 2024 Dkt. Order. In response, both parties

indicated that they were not aware of any such cases. See Dkt. Nos. 68, 69. Plaintiffs noted that

“[t]he absence of comparable cases is not surprising” because “[a]lthough the EFTA was enacted

in 1978, the type of fraud that generates these claims on a broad scale is a new phenomenon—and

one that is escalating rapidly.” Dkt. No. 68, at 1-2 (describing recent developments in this area).

TD Bank indicated, however, that it was aware of two federal decisions denying class

certification that “assessed the nearly identical inquiry of whether putative classes should be

certified based on allegedly unauthorized transactions in breach of EFTA-derived contract terms”

– Almon v. Conduent Business Services, LLC, No. 19-CV-01075 (XR), 2022 U.S. Dist. LEXIS

175734 (W.D. Tex. Sept. 28, 2022) and Nelson v. Conduent Business Services LLC, 18-CV-00669

(SDG), 2020 U.S. Dist. LEXIS 171583 (N.D. Ga. Sept. 18, 2020). See Dkt. No. 69, at 1-2. In

both cases, TD Bank notes, the courts denied certification. See id. at 1.

The Court held oral argument on Plaintiffs’ motion on May 2, 2024. See May 2, 2024

Minute Entry; see also Dkt. No. 70 (Oral Argument Transcript). The Court reserved decision

following oral argument.

II. Legal Standards

A. Class Certification

Class actions are “an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348

(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To establish that this

exception applies to a particular case, the plaintiff “must affirmatively demonstrate compliance

with Rule 23” of the Federal Rules of Civil Procedure. Id. at 34. The plaintiff also “bears the

burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has

been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010); accord Nnebe v. Daus, No.

06-CV-4991 (RJS), 2022 WL 615039, at *5 (S.D.N.Y. Mar. 1, 2022) (Sullivan, J.).

Class certification under Rule 23 requires a two-step analysis. First, “the court must be

persuaded, ‘after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” In

re Vivendi Universal, S.A., 242 F.R.D. 76, 82-83 (S.D.N.Y. 2007) (quoting Gen. Tel. Co. of Sw. v.

Falcon, 457 U.S. 147, 161 (1982)). These prerequisites are:

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of

the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a).

In addition to these four requirements, the United States Court of Appeals for the Second

Circuit recognizes “an implied requirement of ascertainability,” which requires a class to be

“sufficiently definite so that it is administratively feasible for the court to determine whether a

particular individual is a member.” Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir.

2015).

Once the court has determined that Rule 23(a)’s four requirements and the implied

requirement of ascertainability have been met, “it must then decide whether the class is

maintainable pursuant to one of the subsections of Rule 23(b), which govern, inter alia, the form

of available relief and the rights of absent class members.” In re Vivendi Universal, S.A., 242

F.R.D. at 83.

Plaintiffs here seek class certification under Rule 23(b)(3). See generally Dkt. No. 12; Dkt.

No. 44, at 11, 18. Plaintiffs must therefore meet the following two additional criteria: (1)

“questions of law or fact common to class members predominate over any questions affecting only

individual members,” and (2) “a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “The requirement of ‘rigorous

analysis’ to ensure ‘actual, not presumed conformance’ with Rule 23(a) applies with ‘equal force

to all Rule 23 requirements, including those set forth in Rule 23(b)(3).’” In re Vivendi Universal,

S.A., 242 F.R.D. at 83 (quoting In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 33 (2d Cir.

2006)).

In deciding whether to certify a class, the Court must “resolve[] factual disputes relevant

to each Rule 23 requirement.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d at 41. While this

analysis “frequently will entail some overlap with the merits of the plaintiff’s underlying claim”

and require the Court to resolve merits issues, the Court “should not assess any aspect of the merits

unrelated to a Rule 23 requirement.” Id. “Courts in this Circuit and others have emphasized that

‘[a] court’s decision on the merits . . . should ordinarily not occur before or simultaneous with a

decision on class certification’ because determining ‘[c]lass action status’ will ‘clarify who will be

bound by the decision.’” Wood v. Mike Bloomberg 2020, Inc., No. 20-CV-2489 (LTS) (GWG),

2024 WL 1717882, at *1 (S.D.N.Y. Apr. 22, 2024) (citations omitted).

The district court is afforded “broad discretion” on class certification questions because it

is “often in the best position to assess the propriety of the class” and can “alter or modify the class,

create subclasses, and decertify the class whenever warranted.” In re Sumitomo Copper Litig., 262

F.3d 134, 139 (2d Cir. 2001); see also Myers, 624 F.3d at 547 (explaining how class certification

decisions are reviewed for an abuse of discretion, which means “that the district court is

empowered to make a decision—of its choosing—that falls within a range of permissible

decisions” (cleaned up)). Moreover, “[t]he Second Circuit has emphasized that Rule 23 should be

given liberal rather than restrictive construction, and it seems beyond peradventure that the Second

Circuit’s general preference is for granting rather than denying class certification.” Allegra v.

Luxottica Retail N. Am., 341 F.R.D. 373, 392 (E.D.N.Y. 2022) (quoting Hasemann v. Gerber

Prods. Co., 331 F.R.D. 239, 254 (E.D.N.Y. 2019)).

B. The EFTA

The EFTA was enacted as part of the comprehensive Consumer Credit Protection Act, Pub.

L. No. 95-630 § 2001, 92 Stat. 3641 (1978) (codified as amended at 15 U.S.C. § 1601 et seq.). “In

enacting the EFTA, Congress found that:

the use of electronic systems to transfer funds provides the potential for substantial

benefits to consumers. However, due to the unique characteristics of such systems,

the application of existing consumer protection legislation is unclear, leaving the

rights and liabilities of consumers, financial institutions, and intermediaries in

electronic fund transfers undefined.

15 U.S.C. § 1693(a).

Congress thus defined the purpose of the EFTA as providing “a basic framework

establishing the rights, liabilities, and responsibilities of participants in” electronic fund transfer

systems.14 Id. § 1693(b). “The primary objective of [the EFTA], however, is the provision of

individual consumer rights.” Id. Indeed, “[a]s explained in the Senate Report that accompanied

the creation of the Act, the Act was designed “to create rights for consumers in an era in which

banking could be conducted almost exclusively through machines, the absence of personal contact

being seen by Congress as a disadvantage making such an automated system much more

vulnerable to fraud, embezzlement, and unauthorized use than traditional payment methods.” Nero

v. Uphold HQ Inc., – F. Supp. 3d –, No. 22-CV-1602 (DLC), 2023 WL 5426203, at *3 (S.D.N.Y.

Aug. 23, 2023) (citation omitted). Congress thus “saw a need ‘to determine who should bear the

loss for these unauthorized transfers.’” Id. (citation omitted).

14 The EFTA applies to “electronic fund transfers” or EFTs, which the statute defines as “any transfer of

funds . . . which is initiated through an electronic terminal . . . so as to . . . authorize a financial institution

to debit or credit an account.” 15 U.S.C. § 1693a(7).

The EFTA confers rule-making authority upon the CFPB15 to “prescribe regulations to

carry out the purposes” of the statute. 15 U.S.C. § 1693b(a). 16 The EFTA is implemented through

Regulation E, codified at 12 C.F.R. § 1005 et seq., “which includes not only the regulations but

also official staff interpretations of those regulations (‘Official Interpretations’).” Nero, 2023 WL

5426203, at *3; see also 12 C.F.R. § 1005 et seq.

Among its consumer-protection provisions, the EFTA and Regulation E limit a consumer’s

liability for “account error[s],” including “unauthorized electronic fund transfer[s].” 15 U.S.C. §

1693f(f)(1); 12 C.F.R. § 1005.6. The term “unauthorized electronic fund transfer” is defined as

“an electronic fund transfer from a consumer’s account initiated by a person other than the

consumer without actual authority to initiate such transfer and from which the consumer receives

no benefit[.]” 15 U.S.C. § 1693a(12); see also 12 C.F.R. § 1005.2(m). This definition does not,

however, include any electronic fund transfer:

(A) initiated by a person other than the consumer who was furnished with the card,

code, or other means of access to such consumer's account by such consumer,

unless the consumer has notified the financial institution involved that transfers by

such other person are no longer authorized,

(B) initiated with fraudulent intent by the consumer or any person acting in concert

with the consumer, or

(C) which constitutes an error committed by a financial institution.

15 The EFTA initially conferred rulemaking authority upon the Board of Governors of the Federal Reserve

System; however, this authority was later transferred to the CFPB by the Dodd-Frank Wall Street Reform

and Consumer Financial Protection Act. See L.S. v. Webloyalty.com, Inc., 954 F.3d 110, 116 n.2 (2d Cir.

2020)

16 “Congress charged [the CFPB] with enforcing consumer financial protection laws to ensure ‘that all

consumers have access to markets for consumer financial products and services and that markets for

consumer financial products and services are fair, transparent, and competitive.’” See Consumer Fin. Prot.

Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 421 (2024) (quoting 12 U.S.C. § 5511(a)).

15 U.S.C. § 1693a(12); see also 12 C.F.R. § 1005.2(m).17

The CFPB has proffered an official interpretation of 12 C.F.R. § 1005.2(m), which states

that “an unauthorized EFT includes a transfer initiated by a person who obtained the access

device18 from the consumer through fraud or robbery.” 12 C.F.R § 1005, Supp. I at 2(m) (the

“Official Interpretation”). The Official Interpretation is often referred to as the “fraud exception.”

See Green v. Cap. One, N.A., 557 F. Supp. 3d 441, 447 (S.D.N.Y. 2021).

The CFPB has also issued an “Electronic Fund Transfers FAQs” Compliance Aid, which

states:

Question 5: A third party fraudulently induces a consumer into sharing account

access information that is used to initiate an EFT from the consumer’s account.

Does the transfer meet Regulation E’s definition of an unauthorized EFT?

Answer (Updated 6/4/2021):

Yes. . . . Regulation E defines an unauthorized EFT as an EFT from a consumer’s

account initiated by a person other than the consumer without actual authority to

initiate the transfer and from which the consumer receives no benefit. 12 CFR

1005.2(m). Comment 1005.2(m)-3 explains further that an unauthorized EFT

includes a transfer initiated by a person who obtained the access device from the

consumer through fraud or robbery. Similarly, when a consumer is fraudulently

induced into sharing account access information with a third party, and a third party

uses that information to make an EFT from the consumer’s account, the transfer is

an unauthorized EFT under Regulation E.

For example, the [CFPB] is aware of the following situations where a third party

has fraudulently obtained a consumer’s account access information, and thus, are

considered unauthorized EFTs under Regulation E: (1) a third-party calling the

consumer and pretending to be a representative from the consumer’s financial

institution and then tricking the consumer into providing their account login

information, texted account confirmation code, debit card number, or other

information that could be used to initiate an EFT out of the consumer’s account,

and (2) a third party using phishing or other methods to gain access to a consumer’s

17 CFPB’s definition of “unauthorized electronic fund transfer” is substantially similar to the statutory

definition. The only difference is that the regulation uses numbers, not letters, for the quoted subsections.

18 The term “access device” refers to “a card, code, or other means of access to a consumer’s account, or

any combination thereof, that may be used by the consumer to initiate electronic fund transfers.” 12 C.F.R.

§ 1005.2(a)(1).

computer and observe the consumer entering account login information. EFTs

stemming from these situations meet the Regulation E definition of unauthorized

EFTs.

See CFPB, [EFT] FAQs, https://files.consumerfinance.gov/f/documents/cfbp_electronic-fund-

transfers-faqs.pdf (last visited May 29, 2024).19

To qualify for liability protection for unauthorized electronic fund transfers, a consumer

must follow the procedures outlined in the EFTA, which require the consumer to notify their bank,

orally or in writing, of an “account error” within 60 days of receipt of a bank statement or other

document detailing the alleged erroneous electronic fund transfer. 15 U.S.C. § 1693f(a).20 Once

the bank is properly notified, it must investigate the “error[s],” “determine whether an error has

occurred,” and then “correct the error” if one occurred. See generally 15 U.S.C. §§ 1693f, 1693g;

12 C.F.R. §§ 1005.6, 1005.11. The EFTA places the burden of proof on the bank to show that the

transaction is authorized. See 15 U.S.C. § 1693g(b) (“In any action which involves a consumer’s

liability for an unauthorized electronic fund transfer, the burden of proof is upon the financial

institution to show that the electronic fund transfer was authorized or, if the electronic fund transfer

was unauthorized, then the burden of proof is upon the financial institution to establish that the

conditions of liability set forth in subsection (a) have been met, and, if the transfer was initiated

after the effective date of section 1693c of this title, that the disclosures required to be made to the

consumer under section 1693c(a)(1) and (2) of this title were in fact made in accordance with such

section.”).

19 “Unlike the [CFPB’s] regulations and official interpretations, Compliance Aids are not ‘rules’ under the

Administrative Procedure Act.” CFPB, Policy Statement on Compliance Aids, 85 FR 4579 (Jan. 27, 2020).

“Compliance Aids are designed to accurately summarize and illustrate the underlying rules and statutes,”

but they are not binding on regulated entities. Id.

20 Even without timely notice, “the Bank remains liable for unauthorized debits that occurred during the

sixty-day period, provided the customer brings a claim within the statute of limitations.” Zarate v. Chase

Bank, No. 22-CV-1178 (AMD) (LB), 2023 WL 5956334, at *3 (E.D.N.Y. Sept. 13, 2023).

A bank’s failure to comply with these rules gives rise to civil liability under 15 U.S.C. §

1693m. See Zarate, 2023 WL 5956334, at *3 (“The EFTA includes a private right of action against

a bank that ‘fails to comply with any provision’ of the statute.”) (citing § 1693m(a)). The EFTA

additionally provides for treble damages if the bank “knowingly and willfully concludes that the

consumer’s account was not in error when such conclusion could not reasonably have been drawn

from the evidence available to the [bank] at the time of its investigation.” 15 U.S.C. § 1693f(e)(2).

III. Discussion

A. Standing

Before the Court can address the merits of Plaintiffs’ arguments in support of class

certification, it must first analyze Plaintiffs’ standing. See Cassese v. Washington Mut., Inc., 262

F.R.D. 179, 183 (E.D.N.Y. 2009) (“Standing to sue is an essential threshold which must be crossed

before any determination as to class representation under Rule 23 can be made. Without standing,

one cannot represent a class.” (quotation marks and citation omitted)).

“The requirements of Article III standing are well established: A plaintiff must have (1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision.’” Lacewell v. Off. Of

Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021) (cleaned up). Importantly, “a plaintiff

must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 352 (2006). This includes claims over which the court has supplemental jurisdiction,

even where the plaintiff has standing to bring jurisdiction-invoking federal claims. See id. at 351-

52. If the plaintiff lacks Article III standing, the court has no subject matter jurisdiction to hear

the claim. See Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012).

Here, Plaintiffs assert that they have standing based on TD Bank’s alleged violations of the

EFTA and the Personal Deposit Agreement, which they claim caused them to suffer actual

monetary damages. See Dkt. No. 70, at 15:18-22. TD Bank does not dispute Plaintiffs’ standing.

Id. at 15:23-16:4 (“We do not dispute standing.”).

Accordingly, this Court finds that Plaintiffs have standing to assert both their EFTA and

breach of contract claims.

B. Class Action Requirements under Rule 23(a)

As explained above, Rule 23(a) requires Plaintiffs to satisfy the four elements of

numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23(a).

Plaintiffs must also satisfy the “implied requirement of ascertainability.” Brecher, 806 F.3d at 24.

TD Bank does not dispute that Plaintiffs have met their burden of establishing the

numerosity requirement, nor does TD Bank dispute that Plaintiffs’ counsel could adequately

represent the proposed class. See Dkt. No. 70, at 16:5-15.

1. Numerosity

Rule 23(a)(1) requires Plaintiffs to establish that “the class is so numerous that joinder of

all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In this context, “[i]mpracticable does not

mean impossible.” Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Instead, the numerosity

requirement mandates “only that the difficulty or inconvenience of joining all members of the class

make use of the class action appropriate.” Cent. States Se. & Sw. Areas Health & Welfare Fund

v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 244–45 (2d Cir. 2007). A presumption of

numerosity arises when there are forty or more members of the putative class. See Pa. Pub. Sch.

Emps.’ Ret. Sys. V. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014) (“Numerosity is

presumed for classes larger than forty members.”); accord Avila v. Ardian Corp., No. 18-CV-4795

(FB) (TAM), 2022 WL 3370024, at *2 (E.D.N.Y. Aug. 16, 2022). The plaintiff need not establish

the precise number of class members so long as they show some evidence of, or reasonably

estimate, the number of class members. Robidoux, 987 F.2d at 935.

Plaintiffs have established numerosity because they have identified more than 40 members

of each proposed class. See Dkt. No. 44, at 13-15. To identify proposed class members, Plaintiffs

analyzed the most complete set of data produced by TD Bank, including the Tracker file data and

CIM records, and applied filters to bring in claims that TD Bank characterized as “Unauthorized

Transactions” and claims that the records show involved a customer providing their banking

credentials to a third party; downloading an app that allowed a third party to gain remote access to

their device to initiate the transfer; following the directions of a third-party, impersonator, or

imposter; confirming a transaction by text; and claims involving vishing.21 Dkt. No. 50 ¶¶ 2-6.

Plaintiffs used other criteria to exclude claims that do not appear to involve fraud on the consumer.

Id. ¶¶ 7-11. This data analysis shows that there are thousands of TD Bank accountholders who

likely fall within each class definition. Id. For example, Plaintiffs’ counsel identified 8,231

records in the Tracker data and 4,260 records in the CIM data that may qualify for inclusion in one

or both of the classes.22 Id. ¶¶ 11-13, 17-19.

Therefore, this Court finds that Plaintiffs have satisfied the numerosity requirement of Rule

23(a).

21 TD Bank defines “vishing” as situations in which the “[c]ustomer alludes to all call received from TD

Bank requesting confidential information.” Dkt. No. 52-4, at 20; see also New Technologies Subject

Cyberattacks—Telephone and SMS Malware and Scams, 1 Data Sec. & Privacy Law § 2:16 (2023-2024)

(explaining that “vishing” is a voice or telephonic phishing scam).

22 Excerpts of these records were filed under seal at docket numbers 52-9 and 52-10. See Dkt. No. 50 ¶ 12,

19.

2. Adequacy

The adequacy requirement of Rule 23(a) is satisfied if “(1) plaintiff’s interests are [not]

antagonistic to the interests of other members of the class and (2) plaintiff’s attorneys are qualified,

experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,

222 F.3d 52, 60 (2d Cir. 2000). The first prong requires “that there is no conflict of interest

between the named plaintiffs and other members of the plaintiff class.” Marisol A. v. Giuliani,

126 F.3d 372, 378 (2d Cir. 1997). Courts have found this prong satisfied where the named

plaintiffs seek “broad based relief” and “possess the same interest [s] and suffer the same injur[ies]

as the class members.” In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242,

249-50 (2d Cir. 2011) (citations omitted).

Here, both prongs of the adequacy requirement are satisfied. As explained above, Plaintiffs

seek damages for unauthorized transfers made from their accounts, which they contend TD Bank

wrongly refuses to pay based on its policy and practice of denying imposter scam claims where

the accountholder is defrauded into approving the transactions or providing access to their account.

See Dkt. No. 12 ¶¶ 43, 56, 137; see also Dkt. No. 44, at 5. Plaintiffs and the putative class members

share a common interest in proving that this policy violates the EFTA and the Personal Deposit

Agreement. Moreover, Plaintiffs have affirmed that they are prepared to protect the interests of

all class members and have demonstrated their commitment to the proposed class by participating

in written discovery and by being deposed. See Dkt. Nos. 46-48; see also Shahriar v. Smith &

Wollensky Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011) (finding adequacy requirement met

where “class representatives are prepared to prosecute fully the action and have no known conflicts

with any class member”). In addition, Plaintiffs’ counsel has demonstrated experience in class

action litigations involving consumer protection statutes. See Dkt. Nos. 45, 49.

Accordingly, this Court finds that the adequacy requirement of Rule 23(a) is satisfied.

3. Commonality and Typicality

Next, Plaintiffs must establish the commonality and typicality requirements of Rule

23(a)(2)-(3). These “requirements tend to merge into one another, so that similar considerations

animate analysis of Rules 23(a)(2) and (3).” Marisol A., 126 F.3d at 376. “The crux of both

requirements is to ensure that maintenance of a class action is economical and [that] the named

plaintiff’s claim and the class claims are so interrelated that the interests of the class members will

be fairly and adequately protected in their absence.” Id. (quotation marks and citation omitted).

a. Commonality

Commonality “requires the plaintiff to demonstrate that the class members have suffered

the same injury” and that there is “a common contention” among the class “that is capable of class

wide resolution – which means that determination of its truth or falsity will resolve an issue that is

central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc., 564 U.S. at

349-50. “What matters to class certification is not the raising of common ‘questions’—even in

droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to

drive the resolution of the litigation.” Id. Plaintiffs must identify at least one issue common to all

class members to satisfy the commonality requirement. Id. at 359 (noting that to satisfy the

commonality requirement, “even a single common question will do”).

Here, Plaintiffs argue that TD Bank violated the EFTA and identical, or nearly identical,

contractual terms to which all class members were beneficiaries. See Dkt. No. 44, at 10-11, 15-

16. Consequently, Plaintiffs identify two questions that are common among all class members’

claims:

(1) “whether TD Bank violates the EFTA when it holds class

members responsible for the full amount of transfers where TD

Bank determines that the consumer was induced by fraud to provide

account access to the perpetrator”; and

(2) “did TD Bank breach its [Personal Deposit Account Agreement]

with them when it failed to limit their liability for the unauthorized

transfers to $50 or $500 (depending on when they notified TD Bank)

in accordance with the ‘Unauthorized Transfers’ provision of the

[Personal Deposit Account Agreement]?”

Id. at 15-16.

TD Bank argues that Plaintiffs’ claims do not meet the commonality requirement for two

reasons. First, TD Bank argues that Plaintiffs present no evidence that the bank “uniformly denies

claims on the basis set forth in the class definitions, i.e., based on a customer providing an access

device to a fraudster.” See Dkt. No. 58, at 17. To the contrary, TD Bank argues, that fraud agents

decide claims based on a holistic examination of the facts and circumstances attendant to each

claim. Id. Second, TD Bank argues that liability under the EFTA turns on whether the underlying

transaction was actually authorized, and the availability of treble damages turns on whether the

financial institution had a “reasonable basis” to deny a claim. Id. at 18 (citing 15 U.S.C. §

1693f(e)). Describing these inquiries as “necessarily fact-intensive,” TD Bank argues that they

“will vary from one class member to another,” precluding a finding of commonality. Id.

But, contrary to TD Bank’ characterization of the evidence, Plaintiffs have presented the

Court with sufficient evidence to establish that TD Bank maintains a policy and procedure of

denying claims where the accountholder approves the subject transactions or otherwise provides

access to their account. See Dkt. No. 45-28, at 251:11-13 (“[O]ur procedure is to deny the claim

if the customer says yes to the SMS and they authorize that transaction.”); see Dkt. No. 61-5, at

241:18-242:4 (“basically an SMS is an authorization of the transaction. And when thinking about

a fraudulent transaction, our definition is that the customer did not authorize the transaction. . . .

And when they say yes to that text message, that’s telling us that they authorized the transaction.”).

Plaintiffs’ revised class definitions incorporate this “policy and procedure” and include “the denial

reasons TD Bank’s fraud agents copied and pasted from the bank’s [D]ecision [M]atrix into the

Tracker and CIM systems.” Dkt. No. 62, at 3-4. Among these denial reasons is “[e]vidence shows

that an SMS was received and approved by the customer’s phone number on file” (id.) – the same

reason that TD Bank used to deny Plaintiffs’ claims, see Dkt. 61-5, at 242:12-18 (confirming that

Nelipa, Acher, and Edwards’s claims were denied because they approved the transactions through

SMS text messages).

Next, Plaintiffs have presented evidence that they and the putative class members were

subject to the same unitary course of conduct, which is sufficient to establish commonality. See,

e.g., Collins v. Anthem, Inc., No. 20-CV-01969 (SIL), 2024 WL 1172697, at *10 (E.D.N.Y. Mar.

19, 2024) (finding commonality requirement satisfied because plaintiffs established that defendant

denied their claims based on a “a unitary course of conduct”—the application of the challenged

Guidelines”). Plaintiffs have presented sufficient evidence to establish that the denials at issue in

this case were based on actions undertaken by fraud agents that are common to all claims that they

investigate, including their adherence to the investigatory procedures outlined in TD Bank’s

policies and their application of the Decision Matrix to the facts of each claim. Dkt. No. 45-28, at

48:17-21 (TD Bank “treat[s] all of [its] claim the same way”), 231:4-11 (explaining how TD Bank

completes its investigations in “the same way as we talked through the three plaintiffs’ [claims]

earlier today. We would utilize the tools that we have to understand the history of the transaction,

history of the customer, and any exact decision. So nothing additional other besides what we have

talked about today.”), 96:12-17 (explaining how fraud agents apply the Decision Matrix in a

similar manner regardless of whether they are investigating a digital or debit card fraud claim).

Finally, the presence of individualized questions does not defeat the commonality

requirement. See, e.g., Collins, 2024 WL 1172697, at *10 (“It is not necessary for each putative

class member to demonstrate that the relevant Guideline was applied to his or her claim in an

identical way to establish commonality, because each denial resulted from “a unitary course of

conduct”—the application of the challenged Guidelines.”); Han v. Sterling Nat. Mortg. Co., No.

09-CV-5589 (JFB) (AKT), 2011 WL 4344235, at *3 (E.D.N.Y. Sept. 14, 2011) (Bianco, J.) (noting

that some factual variation among individual class members’ injuries will not defeat commonality

(citation omitted)). Indeed, as the United States Supreme Court reiterated several times in Wal-

Mart, the key question for commonality is whether class litigation will generate singular answers,

not just address singular questions. Wal-Mart Stores, Inc., 564 U.S. at 350, 352.

To that end, Plaintiffs have identified a common question of law that will generate a

singular answer across all class members, to wit – whether TD Bank’s policy of denying imposter

scam claims where the accountholder provides access or otherwise approves the subject

transactions violates the EFTA and the Personal Deposit Account Agreement. Dkt. No. 44, at 15-

16. Plaintiffs contend that this question of law must be answered in the affirmative based on the

Official Interpretation. See Dkt. No. 62, at 8; Dkt. No. 70, at 3:6-9. Conversely, TD Bank contends

that “the viability of [the Official Interpretation] has not been robustly tested in court” and argues

that there is a question of whether “the text of the EFTA and the regulation” supports the Official

Interpretation. Dkt. No. 70, at 3:16-4:11. Based on these conflicting views regarding the validity

and scope of the Official Interpretation, it is clear that the Court’s answer to the common question

of law identified by Plaintiffs will generate singular answers across class members’ claims.

Accordingly, this Court finds that Plaintiffs have established the commonality requirement.

b. Typicality

“Typicality requires that the claims or defenses of the class representatives be typical of

the claims or defenses of the class members.” Fed. R. Civ. P. 23(a)(3). This requirement “is

satisfied when each class member’s claim arises from the same course of events and each class

member makes similar legal arguments to prove the defendant’s liability.” Robidoux, 987 F.2d at

936. “When it is alleged that the same unlawful conduct was directed at or affected both the named

plaintiff and the class sought to be represented, the typicality requirement is usually met

irrespective of minor variations in the fact patterns underlying individual claims.” Id. at 936-37.

The Second Circuit’s decisions in Robidoux and Marisol A. illustrate the parameters of this

requirement. Robidoux involved claims brought by a group of plaintiffs who alleged that their

applications for public assistance were delayed unlawfully by the defendant, the Vermont

Department of Social Welfare. Robidoux, 987 F.2d at 933. The plaintiffs sought to certify a class

of persons whose applications were delayed with respect to three public assistance programs. Id.

at 934. The district court found that the named plaintiffs’ claims were not typical of a pattern of

delay as to all three programs because none of the named plaintiffs had experienced a delay with

one of the specified programs. Id. On appeal, the Second Circuit vacated the district court’s

decision, holding that the typicality requirement was satisfied notwithstanding the variations in the

fact patterns underlying the plaintiffs’ individual claims. Id at 937-38. The court explained how

the plaintiffs had established, at least with respect to two of the three programs, that the defendant

failed to act on applications within the required statutory deadlines, and that this problem

“stem[med] from the same cause: an increase in the number of applications for public assistance.”

Id. at 937-38. Thus, the court explained that “the district court should have certified a class

consisting at least of persons who suffered delays with respect to their applications” for those two

programs instead of denying class certification. Id. at 937.

Marisol A. involved claims brought by children involved in the New York City child

welfare system who alleged various violations of state and federal law. Marisol A., 126 F.3d at

375. Each named plaintiff challenged a different aspect of the child welfare system—e.g.,

inadequate training and supervision of foster parents, failure to properly investigate reports of

suspected neglect and abuse, unconscionable delay in removing children from abusive homes, and

the inability to secure appropriate placements for adoption. Id. at 376-77. No single plaintiff

(named or otherwise) was affected by each and every legal violation alleged in the complaint. Id.

at 377.

Notwithstanding these factual variations, the district court found that the commonality and

typicality requirements were satisfied and granted plaintiffs’ motion for class certification. Id. The

court identified as a common question of law “whether each child has a legal entitlement to the

services of which that child is being deprived.” Id. The court also identified as a common question

of fact “whether defendants systematically have failed to provide these legally mandated services.”

Id. at 376.

On appeal, the Second Circuit affirmed this decision and held that the district court did not

abuse its discretion in finding the commonality and typicality requirements satisfied. Id. While

the court noted that “the district court’s generalized characterization of the claims raised by the

plaintiffs stretches the notions of commonality and typicality,” it “simply c[ould not] say that these

claims are so unrelated that their aggregation necessarily violates Rule 23.” Id. The court

explained how “[t]he plaintiffs allege[d] that their injuries derive[d from a unitary course of

conduct by a single system,” and as a result, there was “no basis for finding that the district court

abused its discretion in this regard.” Id.

Like the plaintiffs in Robidoux and Marisol A., Plaintiffs here have satisfied the typicality

requirement because they allege that their injuries derive from a unitary course of conduct. As

explained above, Plaintiffs presented evidence that they informed TD Bank that they were victims

of an imposter scam and that TD Bank investigated these claims in accordance with its

standardized procedures. Dkt. No. 45-28, at 48:17-21, 96:12-17, 231:4-11. TD Bank’s corporate

representative explained how fraud agents used the Decision Matrix to deny Plaintiffs’ claims

based upon the evidence they collected showing that Plaintiffs had approved the subject

transactions via text message. Dkt. No. 61-5, at 242:12-18. 199:13-200:5, 186:4-14. This

evidence is sufficient to establish typicality. See Marisol A., 126 F.3d at 376 (“[W]hen each class

member’s claim arises from the same course of events, and each class member makes similar legal

arguments to prove the defendant’s liability,” typicality is satisfied.”); see also Dial Corp. v. News

Corp., 314 F.R.D. 108, 113 (S.D.N.Y. 2015) (holding that typicality is satisfied where the named

plaintiffs’ claims “share the same essential characteristics,” with those of the proposed members

of each class). Indeed, by presenting evidence that they were subject to the same standard policies

and procedures that purportedly violate the same federal law, Plaintiffs have established that their

claims are more similar to the putative class members’ claims than the named plaintiffs in Marisol

A. See Marisol A., 126 F.3d at 375.

TD Bank’s arguments to the contrary are unavailing. First, this Court rejects TD Bank’s

argument that Plaintiffs are not members of either proposed class. Parsing words, TD Bank argues

that TD Bank did not deny Plaintiffs’ claims “because the class member provided the access device

to the fraud perpetrator,” but rather, TD Bank “denied their claims for other reasons, including

Plaintiffs’ text messages approving the transactions.” Dkt. No. 58, at 13. But as explained above,

this distinction is without a difference in the face of Plaintiffs’ revised class definitions (Dkt. No.

62, at 3-4) and their common allegations that they were subject to the same unlawful policy and

suffered the same type of economic harm as the putative class members, Robidoux, 987 F.2d at

937-38.

This Court also rejects TD Bank’s argument that the putative class members’ claims do not

arise from the same course of events as Plaintiffs’ claims. See Dkt. No. 58 at 13. Again, Plaintiffs

have presented evidence that they and the putative class members were all subject to TD Bank’s

standard procedures and policies, which they contend violate the EFTA and TD Bank’s Personal

Deposit Account Agreement. While there may be some differences in the investigations that were

conducted into each claim, including differences in the types of information that fraud agents

collected, the evidence in the record establishes that TD Bank’s fraud agents are required to follow

TD Bank’s procedures and apply the Decision Matrix in reaching claim determinations. Dkt. No.

45-28, at 48:17-21, 96:12-17. As these procedures and the Decision Matrix are the heart of what

Plaintiffs’ challenge in this lawsuit, this Court finds that the typicality requirement has been

satisfied.

4. Ascertainability

In the Second Circuit, the ascertainability requirement is satisfied where the proposed class

“is defined using objective criteria that establish a membership with definite boundaries.’” Hill v.

City of New York, No. 13-CV-6147 (PKC) (JO), 2019 WL 1900503, at *8 (E.D.N.Y. Apr. 29,

2019) (quoting In re Petrobras Sec., 862 F.3d 250, 257 (2d Cir. 2017)). “The party seeking

certification is not ‘require[ed to make]’ a showing of administrative feasibility at the class

certification stage.” Id. (quoting In re Petrobras Sec., 862 F.3d at 257 (alteration in original)).

Here, both proposed classes are ascertainable because class membership can be determined

based on objective criteria. Specifically, both classes consist of current and former TD Bank

accountholders who were induced by fraud to provide another person with their account access

device leading to unauthorized charges, timely reported these charges to TD Bank, and had their

claim denied based on one of the reasons stated. See Dkt. No. 62, at 3-4.23 Based on these criteria,

the Court can determine who belongs in each class without having to answer numerous

individualized questions. In addition, class membership can be identified from TD Bank’s records,

as shown by the sample CIM datasets provided by Plaintiffs. See Dkt. Nos. 53-1 – 53-2; see also

Dkt. No. 50 ¶¶ 2-19 (describing how sample dataset was created); Dkt. No. 45-28, at 114:23-

115:25 (describing how TD Bank can search and run reports in CIM of Zelle claims), 183:11-17

(describing how TD Bank can run reports of all debit card claims).

Accordingly, this Court concludes that the ascertainability requirement is satisfied. See

e.g., In re Petrobras Sec., 862 F.3d 250 at 269 (holding that the class was “clearly objective” and

“sufficiently definite” where it included people who acquired specific securities during a specific

period in “domestic transactions” because class was “identified by subject matter, timing, and

location,” which made it “objectively possible” to ascertain members); In re Signet Jewelers Ltd.

Sec. Litig., No. 16-CV-6728, 2019 WL 3001084 (CM) (RWL), at *9 (S.D.N.Y. July 10, 2019)

(finding ascertainability requirement met where the class definition “clearly delineate[d] the

[c]lass’s boundaries” and was “administrable by reference to investor records”).

23 As explained in Section III(D) infra, this Court recommends adopting the proposed class definitions in

Plaintiffs’ reply brief with minor revisions.

C. Class Action Requirements under Rule 23(b)(3)

1. Predominance

a. Legal Standard

The district court may only certify a class under Rule 23(b)(3) if “questions of law or fact

common to class members predominate over any questions affecting only individual members.”

Fed. R. Civ. P. 23(b)(3). The “predominance inquiry tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v.

Windsor, 521 U.S. 591, 623 (1997). “This calls upon courts to give careful scrutiny to the relation

between common and individual questions in a case.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442, 453 (2016).

As the Supreme Court explained in Tyson Foods:

An individual question is one where “members of a proposed class

will need to present evidence that varies from member to member,”

while a common question is one where “the same evidence will

suffice for each member to make a prima facie showing or the issue

is susceptible to generalized class-wide proof.”

Id. (citation omitted).

In determining whether common questions of law or fact predominate, the court must

evaluate the elements of the underlying cause of action and cannot exclude conceded issues from

this determination. In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006); In

re Namenda Indirect Purchaser Antitrust Litig., 338 F.R.D. 527, 550 (S.D.N.Y. 2021).

“‘Predominance is satisfied if resolution of some of the legal or factual questions that qualify each

class member’s case as a genuine controversy can be achieved through generalized proof, and if

these particular issues are more substantial than the issues subject only to individualized proof.’”

Sjunde AP-Fonden v. Goldman Sachs Grp., Inc., No. 18-CV-12084 (VSB) (KHP), 2024 WL

1497110, at *6 (S.D.N.Y. Apr. 5, 2024) (quoting Waggoner v. Barclays PLC, 875 F.3d 79, 93 (2d

Cir. 2017)). The Rule 23(b)(3) “analysis is more qualitative than quantitative” and “must account

for the nature and significance of the material common and individual issues in the case.” In re

Petrobras Sec., 862 F.3d at 271; see also Tyson Foods, Inc., 577 U.S. at 453 (“The predominance

inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or

important than the non-common, aggregation-defeating, individual issues.” (citation omitted)).

While the commonality and predominance requirements may overlap in some respects, the

“predominance criterion is far more demanding.” Amchem Products, Inc., 521 U.S. at 623. (“Even

if Rule 23(a)’s commonality requirement may be satisfied . . . , the predominance criterion is far

more demanding.”). “Like the commonality inquiry, a court examining predominance must assess

(1) the elements of the claims and defenses to be litigated; and (2) whether generalized evidence

could be offered to prove those elements on a class-wide basis or whether individualized proof

will be needed to establish each class member’s entitlement to relief.” Johnson v. Nextel

Commc’ns Inc., 780 F.3d 128, 138 (2d Cir. 2015) (quotation marks and citation omitted).

“Predominance requires a further inquiry, however, into whether the common issues can profitably

be tried on a classwide basis, or whether they will be overwhelmed by individual issues.” Id.

“Ultimately, the court must decide whether classwide resolution would substantially advance the

case,” [] examining whether certification will “reduce the range of issues in dispute and promote

judicial economy.” Id. (internal citations and quotation marks omitted).

b. Predominance in the Proposed EFTA Class

“‘To state a claim under the EFTA, plaintiff must allege that the accounts in question 1)

were ‘demand deposit, savings deposit, or other asset account[s]’; 2) ‘established primarily for

personal, family, or household purposes’; and 3) that the unauthorized ‘electronic fund transfer’

was ‘initiated through an electronic terminal, telephone, computer, or magnetic tape for the

purpose of ordering, instructing, or authorizing a financial institution to debit or credit a

consumer’s account.’” See Zaidi v. JP Morgan Chase Bank, N.A., No. 19-CV-1080 (DRH) (ARL),

2021 WL 848864, at *4 (E.D.N.Y. Mar. 5, 2021) (quoting 15 U.S.C. § 1693a(7) and Apostolidis

v. JP Morgan Chase & Co., No. 11-CV-5664, 2012 WL 5378305, at *5 (E.D.N.Y. 2012) (Bianco,

J.)). Where, as here, the EFTA violation is premised on a bank’s alleged failure to comply with

the statute’s provision limiting consumers’ liability for unauthorized transfers, the bank must

establish the additional element of proving that the subject transfer was authorized. See 15 U.S.C.

§ 1693g(b).

The first three elements of an EFTA claim concern whether the EFTA governs the

transaction at issue. Because these elements can be satisfied with TD Bank’s documents related

to Plaintiffs’ accounts and the subject transactions, common evidence generally predominates over

individualized evidence with regard to these elements. See In re Nassau Cnty. Strip Search Cases,

461 F.3d at 227 (“[A]n issue is common to the class when it is susceptible to generalized, class-

wide proof.”). While the parties may not dispute these elements, the Court must nonetheless

consider them as part of the predominance analysis. See id. (“[W]e conclude that a concession

does not eliminate a common issue from the predominance calculus, and that the District Court

erred in holding otherwise.”); Nnebe, 2022 WL 615039, at *6 (“[E]ven though the constitutional

issue in this case has already been resolved, Plaintiffs are correct that it is still relevant to the

predominance analysis.”).

The final element concerns whether the subject transfer was authorized. This element is

the central dispute between the parties. As this Court explained above in addressing the

commonality requirement, Plaintiffs have identified at least one common question of law that is

relevant to this element: whether TD Bank’s policy of denying imposter scam claims where the

accountholder provides access or otherwise approves the subject transactions violates the EFTA.

To that end, Plaintiffs contend that their claims “all turn on TD Bank’s standardized procedures

for processing claims from customers [that] were induced by fraud to provide account information

or confirm fraudulent transactions” plus “TD Bank’s uniform denial of those claims.” Dkt. No.

44, at 24. Plaintiffs argue that “[w]hether that policy complies with federal law and regulations is

the predominant issue in this case, and one that can be resolved for all class members in a single

stroke, likely at summary judgment.” Id.

This predominant question raises several, related questions that will also need to be

resolved, including: (1) whether CFPB’s Official Interpretation is valid and should be afforded

deference; and (2) whether the scope of the Official Interpretation applies to circumstances in

which the accountholder approved the subject transactions via text message.24

These questions of law are undoubtedly central to the validity of Plaintiffs’ EFTA claims.

If the Official Interpretation is rendered invalid, then the resolution of the Official Interpretation’s

scope and its application to Plaintiffs’ claims becomes obsolete. But if the Court determines that

the Official Interpretation is valid and requires TD Bank to pay for imposter scams notwithstanding

24 Besides a passing reference to the Official Interpretation in the legal standard section of its opposition

brief (Dkt. No. 58, at 4-5), TD Bank does not address the Official Interpretation or its applicability to

Plaintiffs’ claims. When asked about the Official Interpretation at oral argument, TD Bank raised concerns

about its viability because “the text of the EFTA and the regulation arguably does not support th[e]

interpretation.” Dkt. No. 70, at 3:16-4:5. TD Bank argues that these concerns are underscored by two cases

pending, as of the date of this Report and Recommendation, before the United States Supreme Court –

Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce – which challenge

the constitutionality of the Chevron framework, the legal doctrine that requires courts to defer to an

executive agency’s interpretation of an ambiguous statute that it administers so long as the agency’s

interpretation is reasonable. See id. at 12:4-9; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984). According to TD Bank, the Supreme Court’s decisions in these cases have the

potential to overrule or limit the application of Chevron—a ruling that could call into question the validity

of the Official Interpretation. Dkt. No. 70, at 12:4-9, 49:16-23. Notwithstanding this contention, neither

party seeks a stay of this action pending the Supreme Court’s forthcoming decisions in these cases. Id. at

49:24-24.

the accountholder’s approval of the transactions, then that determination will, as Plaintiffs contend,

resolve “in one stroke” Plaintiffs’ central claim that TD Bank’s policy runs afoul of the EFTA.

Wal-Mart Stores, Inc., 564 U.S. at 350; see also Dial Corp. v. News Corp., 314 F.R.D. 108, 120

(S.D.N.Y. 2015) (“An issue central to the validity of each one of the claims in a class action, if it

can be resolved in one stroke, can justify class treatment.” (cleaned up)).

Notwithstanding these questions of law, TD Bank argues that individualized questions will

predominate because liability under the EFTA hinges on whether or not the transactions were

actually “authorized,” which depends on whether Plaintiffs’ “imposter scam” claims can be

credited in the first place. See Dkt. No. 58,at 24; Dkt. No. 70, at 7:11-14.

TD Bank’s arguments fail for three reasons. First, TD Bank overstates the significance of

the individualized issues in this case. While TD Bank strenuously argues in its opposition that the

fraud investigations it conducts are “holistic” and individualized, the testimony of its corporate

representatives establishes that these investigations are conducted in accordance with the bank’s

standard policies and procedures. See Dkt. No. 45-28, at 17-21, 78:10-80:19, 84:11-16, 231:4-11;

see also 45-32, at 33:24-34-9. While it is true that certain fraud claims require agents to consult

different databases and information sources, these differences are not material to the question of

law that predominates in this case—whether TD Bank’s policy of treating text message approvals

as dispositive proof of “authorization” is consistent with the EFTA and the Official Interpretation.

See Dkt. No. 45-28, at 251:11-13 (“So our procedure is to deny the claim if the customer says yes

to the SMS and they authorize that transaction.”). Moreover, while TD Bank characterizes the

Decision Matrix as merely a guide, its corporate representative explained how fraud agents use the

Decision Matrix to “determine if they should pay or deny the claim” and that they use the Decision

Matrix in a similar manner regardless of whether they are investigating a digital or debit card

claim. Dkt. No. 45-28, at 49:13-16, 96:12-17.

Second, Plaintiffs have established that common evidence, in the form of TD Bank’s

business records, can be used to resolve the question of whether the subject transactions were

“authorized.” See Dkt. No. 45-28, at 78:10-80:19, 84:11-16; Dkt. No. 45-35, at 52:19-53:7. For

example, TD Bank’s corporate representative was able to testify about the reasons why Plaintiffs’

claims were denied based on her review of TD Bank’s business records. See, e.g., Dkt. No. 45-

28, at 43:2-8, 188:3-7. The corporate representative further testified about how fraud agents copy

the claim denial reasons directly from the Decision Matrix into the “Comment Note” field in CIM,

Case Log, and the Tracker. Id. at 58:3-60:11, 116:8-18. While TD Bank makes vague references

to “individualized proof” that will be required to resolve Plaintiffs’ claims, it does not specify what

this proof consists of or explain why its business records are insufficient. For instance, TD Bank

does not identify any specific forms of proof that it would need, beyond the information collected

by its fraud agents, to credit or discredit Plaintiffs’ imposter scam claims. “[T]he law is clear that

a defendant must offer something more than speculation to defeat class certification.” Cox v. Spirit

Airlines, Inc., No. 17-CV-5172 (EK) (VMS), 2023 WL 1994201, at *4 (E.D.N.Y. Feb. 14, 2023).

Against this standard, TD Bank has not rebutted Plaintiffs’ contention that class members’ claims

can be resolved with common proof in the form of TD Bank’s business records.

Third, to the extent there are individual questions that can only be resolved with individual

proof, those questions to do not foreclose class certification. See Rodriguez v. It’s Just Lunch Int’l,

No. 07-CV-9227 (SHS), 2018 WL 3733944, at *3 (S.D.N.Y. Aug. 6, 2018) (“Predominance does

not require that every last element of a claim be susceptible of classwide proof.” (citing Amgen

Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013)). Indeed, the case law is

clear that Rule 23(b)(3) is satisfied so long as “issues in the class action subject to generalized

proof . . . predominate over those issues that are subject to individualized proof.” See In re Visa

Check/Mastermoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (quotation marks and

citation omitted).

The case law cited by TD Bank does not require a different outcome here. See Dkt. No.

58, at 2-3; Dkt. No. 69. Almon is distinguishable because the plaintiffs there did not argue that the

defendant engaged in uniform conduct or had a policy of denying certain types of fraud claims in

violation of the EFTA. Almon, 2022 U.S. Dist. LEXIS 175734, at *43. The plaintiffs in Almon

also did not allege, like Plaintiffs do here, that a common question of law predominated over other

issues in the case. See id.

Nelson is distinguishable for similar reasons. Like Almon, the Nelson court did not address

the Official Interpretation, nor did the plaintiffs argue that a common question of law predominated

over individual issues. See generally Nelson, 2020 U.S. Dist. LEXIS 171583. In addition, the

Nelson court denied class certification for reasons that are not present in this case – namely, that

the proposed class definition was overbroad, the contractual terms relied upon by the plaintiffs

varied, and the defendant raised affirmative defenses that only applied to plaintiffs who resided in

certain states. Id. at *16.

Ultimately, this Court finds that Plaintiffs have raised common questions of law and fact

that are substantial and predominate over the individual questions for the EFTA class. To the

extent there are individual issues that need to be resolved for the EFTA class, Plaintiffs have

established that such issues can generally be resolved with common evidence. In light of the

foregoing and this circuit’s “general preference . . . for granting rather than denying class

certification,” Allegra, 341 F.R.D. at 392, this Court finds that Plaintiffs have established the

predominance requirement for the EFTA class.

c. Predominance in the Proposed Breach of Contract Class

Plaintiffs’ breach of contract claims mirror their EFTA claims. The core of Plaintiffs’

contract claims is that TD Bank failed to reimburse accountholders for unauthorized transactions

in breach of the parties’ Personal Deposit Account Agreement.

The parties do not identify the governing law for Plaintiffs’ breach of contract claims;

however, the Personal Deposit Account Agreement states that “[t]his Agreement shall be governed

by the state laws that apply to [the user’s] primary deposit account.” Dkt. No. 45-50, at 29.

Notwithstanding this provision, “state contract law defines breach consistently such that the

question will usually be the same in all jurisdictions.” In re U.S. Foodservice Inc. Pricing Litig.,

729 F.3d at 127; see also Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 233 n.8 (1995) (“[C]ontract

law is not at its core diverse, nonuniform, and confusing . . . .” (quotation marks and citation

omitted)). Under New York law (where each of the individual Plaintiffs reside), the elements for

a breach of contract action are: (1) the existence of a contract; (2) performance of the contract by

one party; (3) breach of the contract by one party; and (4) damages. See Van Brunt v.

Rauschenberg, 799 F. Supp. 1467 (S.D.N.Y. 1992).

Here, Plaintiffs argue that “that TD Bank’s failure to limit its customers’ liability for

fraudulent transactions also breaches the Personal Deposit Account Agreement to which all

customers who open a personal bank account with TD Bank must agree.” Dkt. No. 44, at 11.

Plaintiffs contend that the section of the Personal Deposit Account Agreement “titled

‘Unauthorized Transfers’ applies to digital and debit card claims and mirrors the EFTA,” to wit:

If you notify us within two (2) Business Days after you learn of the loss or theft of

your Card or PIN, you can lose no more than $50 if someone uses your Card or PIN

without your permission. If you do not notify us within two (2) Business Days after

you learn of the loss or theft of your Card or PIN, and we can prove we could have

prevented someone from using your Card and/or PIN without your permission if

you had told us, you could lose as much as $500 ($50 if you are a resident of

Massachusetts and this Agreement is governed by Massachusetts law).

Dkt. No. 44, at 11 (citing Dkt. No. 45-50; Dkt. No. 45-28, at 40:13-41:13).

Plaintiffs argue that “[c]ourts find breach of contract claims based on form agreements to

be well suited to class certification.” Dkt. No. 44, at 25 (citing In re U.S. Foodservice Inc. Pricing

Litig., 729 F.3d at 124-26). “To be clear, courts properly refuse to certify breach of contract class

actions where the claims require examination of individual contract language.” In re U.S.

Foodservice Inc. Pricing Litig., 729 F.3d at 124. But where the contracts “essentially all [say] the

same thing” and “are substantially similar in all material respects,” common issues will

predominate. Id. at 124-25 (“Since the record does not indicate the existence of material

differences in contract language or other significant individualized evidence, we conclude that the

district court did not abuse its discretion in concluding that common issues will predominate over

any individual issues, and that [the] claim to the contrary should be rejected.”).

Given that TD Bank utilizes the Personal Deposit Account Agreement for all customers

who open a personal bank account and requires those customers to agree to the terms of the

agreement (Dkt. No. 45-28, at 37:19-38:16, 39:2-10), common questions regarding whether TD

Bank breached the agreement predominate over any individual questions. Because Plaintiffs’

“theory of liability raises issues of breach [] common to the class that can be proven with common

evidence and which predominate over individualized issues,” Plaintiffs have established the

predominance requirement for the breach of contract class. See Mirkin v. XOOM Energy, LLC,

No. 18-CV-2949 (ARR) (RER), 2023 WL 5622099, at *8 (E.D.N.Y. Aug. 31, 2023) (“Indeed,

XOOM’s breach of contract defense relies on common proof—evidence of XOOM’s process for

determining the variable rate margin.”); Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67, 74

(E.D.N.Y. 2004) (“[C]laims arising from interpretations of a form contract appear to present the

classic case for treatment as a class action, and breach of contract cases are routinely certified as

such. (citations omitted)); cf. Dover v. Brit. Airways, PLC (UK), 321 F.R.D. 49, 58 (E.D.N.Y.

2017) (Dearie, J.) (“This is not to say that individual issues will not arise in this case. On the

contrary, the parties agree that individualized proof will be necessary in determining the amount

of damages each class member suffered. These individualized inquiries do not, however, defeat

predominance.”).

This Court therefore finds that Plaintiffs have established the predominance requirement

for the breach of contract class.

2. Superiority

“The second prong of Rule 23(b)(3) requires that Plaintiffs demonstrate that a class action

is ‘superior to other available methods for fairly and efficiently adjudicating the controversy.’”

Hill, 2019 WL 1900503, at *10 (quotation marks and citation omitted). The factors pertinent to

this requirement include:

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions; (B) the extent and nature

of any litigation concerning the controversy already begun by . . .

class members; (C) the desirability or undesirability of

concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Id. (quoting Fed. R. Civ. P. 23(b)(3)).

Applying these factors here, this Court finds that they weigh in favor of certifying both

proposed Rule 23(b)(3) classes. First, it is unlikely that the proposed class members have a strong

interest in pursuing their claims individually, particularly where the potential costs of litigation

may outweigh the money lost to fraudsters. See Hill, 2019 WL 1900503, at *10 (noting that it is

not surprising that there is a dearth of other litigation, “given that the likely monetary relief is not

likely to exceed the costs of pursuing an individual claim.”). Indeed, here, the losses alleged

among Plaintiffs does not amount to more than a few thousand dollars. See, e.g., Dkt. No. 12 ¶¶

34, 66, 90; Dkt. No. 45-2, at 3; Dkt. No. 45-10, at 7; Dkt. No. 45-17, at 6. This Court is also not

aware of any other litigation concerning the controversy at issue in this action, and despite the

present case being over three years old, none of the proposed class members have sought to join

in Plaintiffs’ claims. Id.; see also Stinson v. City of New York, 282 F.R.D. 360, 383 (S.D.N.Y.

2012) (“the relatively small amount of damages suffered by each individual plaintiff decreases the

possibility of individual lawsuits being filed”).

Furthermore, in light of the potential class size that would include thousands of

accountholders (Dkt. No. 50 ¶¶ 2-19), “it is clearly desirable to concentrate the litigation of their

claims into a single action.” Hill, 2019 WL 1900503, at *10. “Moreover, it is more efficient to

decide a single set of facts and single theory for liability in one case, rather than having multiple

litigants bring individual actions on the same—or substantially similar—causes of action.”

Winslow v. Forster & Garbus, LLP, No. 15-CV-2996 (AYS), 2017 WL 6375744, at *18 (E.D.N.Y.

Dec. 13, 2017); see Hill, 2019 WL 1900503, at *10 (“in light of the potential class size of over

1,000 current and former employees, it is clearly desirable to concentrate the litigation of their

claims into a single action.”).

Thus, the Court finds that the superiority requirement of Rule 23(b)(3) is satisfied.

D. Class Definition

Finally, the Court must determine “whether the definition of the class proposed by

plaintiffs . . . is an appropriate one.” Nnebe, 2022 WL 615039, at *13 (internal quotations and

citation omitted).

As explained above, Plaintiffs have proposed revised class definitions in their reply brief,

which amend the stated reasons for why TD Bank denied the unauthorized transfer claims. See

Dkt. No. 62 at 3-4. Plaintiffs’ revised class definitions “use[] the denial reasons TD Bank’s fraud

agents copied and pasted from the bank’s decision matrix into the Tracker and CIM systems” to

include potential class members whose fraud claims “TD denied for reasons that don’t actually

refute a finding of fraud.” Dkt. No. 62, at 4.

TD Bank contends that the Court should decline to adopt the revised definitions for two

reasons. First, TD Bank challenges the timing of the proposed revisions and argues that Plaintiffs’

post-discovery amendments should not be allowed. Second, TD Bank challenges the scope of the

revisions because the proposed amendments substantially expand the proposed classes’

definitions. To that end, TD Bank emphasizes how instead of limiting the classes to individuals

for whom TD Bank denied reimbursement claims because Plaintiffs gave an access device to a

fraud perpetrator, Plaintiffs now seek to include those for whom TD Bank denied reimbursement

for any of the four additional reasons listed.

As an initial matter, the Court “is not bound by the class definition proposed in the

complaint.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 293 F.R.D. 287, 293 n.1

(E.D.N.Y. 2013) (quoting Robidoux, 987 F.2d at 937). Indeed, Rule 23 vests the Court with “the

power to amend class definitions or decertify classes as necessary.” Brooklyn Ctr. for Indep. of

the Disabled v. Bloomberg, 290 F.R.D. 409, 420 (S.D.N.Y. 2012); see also Morangelli v. Chemed

Corp., 275 F.R.D. 99, 114 (E.D.N.Y.2011) (explaining that “[t]he court may, in its discretion . .

.modify the definition of the proposed class to provide the necessary precision or to correct other

deficiencies” (citation omitted)). “In fact, the court has a duty to ensure that the class is properly

constituted and has broad discretion to modify the class definition as appropriate to provide the

necessary precision.” Id.

With respect to the scope of the revisions, the Court agrees with Plaintiffs that the revised

definitions do not broaden the class definitions. See Dkt. No. 70, at 23:4-12. Instead, the revised

definitions provide a more objective description of the class “us[ing] the denial reasons TD Bank’s

fraud agents copied and pasted from the bank’s [D]ecision [M]atrix into the Tracker and CIM

systems.” Dkt. No. 62, at 4 (citations omitted).

The Court does, however, agree with TD Bank’s assertion that “Plaintiffs’ proposed

amendments to the Breach of Contract Class contain substantially identical revisions but also

include an inexplicable amendment to subsection (1) from ‘Were parties to TD Bank’s Personal

Deposit Account Agreement’ to ‘who have or had an account with TD Bank.’” Dkt. No. 64-1, at

2, n.2. As set forth below, the Court revises the breach of contract class definition back to “[w]ere

parties to TD Bank’s Personal Deposit Account Agreement.”

V. Conclusion

For the reasons set forth herein, this Court respectfully recommends that Plaintiffs’ motion

be granted and that the following classes be certified under Fed. R. Civ. P. 23(a) and 23(b)(3):

1. Definitions of the Class:

EFTA Excess Consumer Liability Class. All persons (1) who have or had

an account with TD Bank; and (2) notified TD Bank that they had been

induced by fraud to provide another person with their account access device

leading to unauthorized charges; and (3) within one year prior to filing of

this action, TD Bank denied the consumer’s Regulation E claim for reasons

substantially the same as the following: (a) Evidence shows that an SMS

was received and approved by the customer’s phone number on file; (b)

Customer has had no recent changes to the address, phone number, or online

banking credentials in the last 90 days; (c) Customer indicated that they

previously provided access/authorization to 3rd party; (d) Customer fell for

a scam and gave online banking credentials to a 3rd party; or (e) Customer

is a victim of TD imposter scam; and (4) who notified TD Bank within two

business days of the alleged loss or theft and who alleged a loss of more

than $50, or who notified TD Bank at any time and who alleged a loss of

more than $500.

Breach of Contract Class. All persons (1) who were parties to TD Bank’s

Personal Deposit Account Agreement; and (2) notified TD Bank that they

had been induced by fraud to provide another person with their account

access device leading to unauthorized charges; and (3) within six years prior

to filing of this action, TD Bank denied the consumer’s Regulation E claim

for reasons substantially the same as the following: (a) Evidence shows that

an SMS was received and approved by the customer’s phone number on

file; (b) Customer has had no recent changes to the address, phone number,

or online banking credentials in the last 90 days; (c) Customer indicated that

they previously provided access/authorization to 3rd party; (d) Customer

fell for a scam and gave online banking credentials to a 3rd party; or (e)

Customer is a victim of TD imposter scam; and (4) who notified TD Bank

within two business days of the alleged loss or theft and who alleged a loss

of more than $50, or who notified TD Bank at any time and who alleged a

loss of more than $500.

2. Class Representatives: Ludmila Nelipa, Allison Archer, Verdenia

Edwards

3. Class Counsel: Benjamin Drachler, Beth E. Terrell, Blythe H. Chandler,

Ryan Tack-Hooper, and Daniel Adam Schlanger

It is further respectfully recommended that the parties be ordered to meet and confer and

submit an agreed-upon form of notice that satisfies Fed. R. Civ. P. 23(c)(2)(B) and a joint plan for

the dissemination of the proposed notice by a date certain following the district court’s review of

this Report and Recommendation. It is also respectfully recommended that the parties be ordered

to confer and generate a class list to be used in disseminating notice by a date certain following

the district court’s review of this Report and Recommendation.

A copy of this Report and Recommendation is being electronically served on counsel. Any

objections to this Report and Recommendation must be filed within 14 days after service of this

Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). See also Fed.

R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for

filing objections must be directed to Judge DeArcy Hall. Failure to file objections within this

period designating the particular issues to be reviewed waives the right to appeal the district court’s

order. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson,

Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky

v. United States Dep’t of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. Nov. 15, 2023); see also

Thomas v. Arn, 474 U.S. 140 (1985).

Dated: Brooklyn, New York

June 17, 2024

/s/ Joseph A. Marutollo

JOSEPH A. MARUTOLLO

United States Magistrate Judge