UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTEN SCHERTZER; No. 23-55104 BRITTANY COVELL, individually and on behalf of all others similarly D.C. No. situated, 3:19-cv-00264- JM-MSB Plaintiffs-Appellants, v. OPINION BANK OF AMERICA, NA,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted May 13, 2024 Pasadena, California

Filed July 29, 2024

Before: Ronald Lee Gilman, * Ronald M. Gould, and Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Gould * The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 SCHERTZER V. BANK OF AMERICA, NA

SUMMARY **

Breach of Contract / California Law

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of Bank of America (“BOA”), and vacated the district court’s denial of class certification, in plaintiff’s putative class action alleging claims for breach of contract and breach of the implied covenant of good faith and fair dealing, based on fees BOA charged when plaintiff used a non-BOA ATM. BOA charged plaintiff, a BOA accountholder, two separate out-of-network balance inquiry fees when she used her BOA debit card at a non-BOA ATM. Plaintiff claimed that only the first of two fees was permissible under the parties’ contract. The panel reversed the district court’s summary judgment in favor of BOA on plaintiff’s claim for breach of contract. The panel agreed with plaintiff that the term “balance inquiry,” as used in the contractual documents, means a customer-initiated transaction like a withdrawal, where BOA can charge customers only when the customer explicitly requests balance information. The panel rejected BOA’s argument—that it lacked control over third-party ATM operators or the fashioning of their screen prompts and therefore cannot be held responsible for customer responses to the screen prompts—because BOA’s level of control over

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SCHERTZER V. BANK OF AMERICA, NA 3

the ATM operators has no effect on the question of contract interpretation raised in this case. The panel affirmed the district court’s summary judgment in favor of BOA on plaintiff’s claim for breach of the implied covenant of good faith and fair dealing because the claim is indistinguishable from plaintiff’s breach of contract claim and therefore superfluous. The panel rejected BOA’s argument that plaintiff’s failure to follow the contract’s pre-dispute procedures presented an independent ground for summary judgment because there was no indication that these procedures covered situations in which customers believe that BOA has overcharged them in violation of the contract. Finally, the panel vacated the district court’s denial of class certification and remanded for the district court to reconsider class certification.

COUNSEL Jae K. Kim (argued), Lynch Carpenter LLP, Pasadena, California; Todd D. Carpenter and Tiffine E. Malamphy, Lynch Carpenter LLP, Del Mar, California; Sophia G. Gold and Jeffrey D. Kaliel, KalielGold PLLC, Washington, D.C.; for Plaintiffs-Appellants. Shawn R. Obi (argued) and Amanda L. Groves, Winston & Strawn LLP, Los Angeles, California, for Defendant- Appellee. 4 SCHERTZER V. BANK OF AMERICA, NA