Mwantembe, et al. v. TD Bank, et al. - ED PA - November 17, 2009
Plaintiff brought class action on behalf of Pennsylvania residents who held or hold gift cards sold by the defendants, assert causes of action under Pennsylvania law for violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-2(3), 201-2(4)(xxi), 201-3, breach of contract and third party beneficiary.
They allege that the defendants’ deducting undisclosed dormancy and other fees that diminish the value of the gift cards before their expiration is “deceptive, unlawful, and misleading,” and is calculatedto “trick, mislead, and significantly confuse consumers in Pennsylvania into not retaining or claiming the full value and buying power” of the cards.
The plaintiffs allege that the defendant banks marketed and sold the gift cards without adequately disclosing the cards’ material terms and conditions to purchasers and recipients. They also claim that prior to purchase, the defendants’ representatives never discussed or otherwise disclosed to purchasers the imposition of dormancy and replacement fees, or issue dates and expiration dates.
The question is whether state law imposing disclosure and marketing requirements for gift cards prevents or significantly interferes with the national banks’ activity or the federal regulator’s exercise of its powers.
Because enforcing state consumer protection laws regarding the disclosures does not conflict with federal law governing gift cards and will not unduly impair the defendants banks’ ability to engage in the business of selling gift cards, we hold that the plaintiffs’ state law claims are not preempted.