(a) Civil liability. A bank that fails to comply
with any requirement imposed under subpart B, and in connection therewith,
subpart A, of this part or any provision of state law that supersedes any
provision of subpart B, and in connection therewith, subpart A, with respect
to any person is liable to that person in an amount equal to the sum of--
(1) Any actual damage sustained by that person
as a result of the failure;
(2) Such additional amount as the court may
allow, except that--
(i) In the case of an individual action, liability
under this paragraph shall not be less than $100 nor greater than $1,000;
and
(ii) In the case of a class action--
(A) No minimum recovery shall be applicable
to each member of the class; and
(B) The total recovery under this paragraph
in any class action or series of class actions arising out of the same
failure to comply by the same depositary bank shall not be more than the
lesser of $500,000 or 1 percent of the net worth of the bank involved;
and
(3) In the case of a successful action to
enforce the foregoing liability, the costs of the action, together with
a reasonable attorney's fee as determined by the court.
(b) Class action awards. In determining the
amount of any award in any class action, the court shall consider, among
other relevant factors--
(1) The amount of any damages awarded;
(2) The frequency and persistence of failures
of compliance;
(3) The resources of the bank;
(4) The number of persons adversely affected;
and
(5) The extent to which the failure of compliance
was intentional.
(c) Bona fide errors--(1) General rule. A
bank is not liable in any action brought under this section for a violation
of this subpart if the bank demonstrates by a preponderance of the evidence
that the violation was not intentional and resulted from a bona fide error,
notwithstanding the maintenance of procedures reasonably adapted to avoid
any such error.
(2) Examples. Examples of a bona fide error
include clerical, calculation, computer malfunction and programming, and
printing errors, except that an error of legal judgment with respect to
the bank's obligation under this subpart is not a bona fide error.
(d) Jurisdiction. Any action under this section
may be brought in any United States district court or in any other court
of competent jurisdiction, and shall be brought within one year after the
date of the occurrence of the violation involved.
(e) Reliance on Board rulings. No provision
of this subpart imposing any liability shall apply to any act done or omitted
in good faith in conformity with any rule, regulation, or interpretation
thereof by the Board, regardless of whether such rule, regulation, or interpretation
is amended, rescinded, or determined by judicial or other authority to
be invalid for any reason after the EFA Act or omission has occurred.
(f) Exclusions. This section does not apply
to claims that arise under subpart C of this part or to actions for wrongful
dishonor.
(g) Record retention. (1) A bank shall retain
evidence of compliance with the requirements imposed by this subpart for
not less than two years. Records may be stored by use of microfiche, microfilm,
magnetic tape, or other methods capable of accurately retaining and reproducing
information.
(2) If a bank has actual notice that it is
being investigated, or is subject to an enforcement proceeding by an agency
charged with monitoring that bank's compliance with the EFA Act and this subpart,
or has been served with notice of an action filed under this section, it
shall retain the records pertaining to the action or proceeding pending
final disposition of the matter, unless an earlier time is allowed by order
of the agency or court.
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