Gahm v. Wings Financial Credit Union

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
J. Gerard Stranch IV, Martin F. Schubert, STRANCH, JENNINGS & GARVEY,
PLLC, 223 Rosa L. Parks Avenue, Suite 200, Nashville, TN 37203; Karen
Hanson Riebel, Kate M. Baxter-Kauf, LOCKRIDGE GRINDAL NAUEN PLLP,
100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401; Lisa La
Fornara, Lynn A. Toops, COHEN & MALAD, LLP, One Indiana Square, Suite
1400, Indianapolis, IN 46204, for Plaintiff.
Lisa Lamm Bachman and Paul W. Magyar, FOLEY & MANSFIELD, PLLP, 250
Marquette Avenue, Suite 540, Minneapolis, MN 55401, for Defendant.
Plaintiff Debra Gahm initiated this putative class action against Defendant Wings
Financial Credit Union (“Wings”), alleging that Wings violated various statutory and
regulatory requirements by failing to properly notify its customers of its overdraft fee
practices. Gahm asserts that Wings’ disclosure practices violated (1) the Electronic Fund
Transfer Act (“EFTA”), 15 U.S.C. § 1693 et seq. and Regulation E, 12 C.F.R. § 1005 et seq.
as well as (2) the Minnesota Consumer Fraud Act (“MCFA”).
DEBRA GAHM, individually and on behalf
of all others similarly situated,
Plaintiff,
v.
WINGS FINANCIAL CREDIT UNION,
Defendant.
Civ. No. 25-2017 (JRT/EMB)
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION TO
DISMISS
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Defendant Wings seeks dismissal of Gahm’s Second Amended Complaint under
Rule 12(b)(6) for failure to state a claim. After careful consideration, the Court will grant
in part and deny in part Wings’ motion to dismiss. 	With respect to Gahm’s EFTA and
Regulation E claim, the Court concludes that Wings’ Opt-in Form is ambiguous, fails to
contain required information, and is not substantially similar to Model Form A-9. To the
extent the claim relates to overdraft charges before January 30, 2022, the Court will,
however, grant Wings’ motion to dismiss the EFTA and Regulation E claim as time-barred;
but the Court will deny the motion to the extent the claim relates to overdraft charges on
or after January 30, 2022. The Court will also deny Wings’ motion to dismiss as to Gahm’s
MCFA claim because Gahm plausibly alleges fraudulent or misleading business practices,
and she does so with the required particularity.
BACKGROUND
I. 	STATUTORY AND REGULATORY BACKGROUND
In 1978, Congress passed the EFTA, codified at 15 U.S.C. § 1693 et seq., to outline
the rights and responsibilities of customers and institutions that use electronic transfer
systems. 15 U.S.C. § 1693(b). Regulation E, 12 C.F.R. § 1005.1, et seq., implements the
EFTA. 	12 C.F.R. § 1005.1. 	Regulation E seeks to help customers “understand[] how
overdraft services provided by their institutions operate and to ensure that consumers
have the opportunity to limit the overdraft costs associated with ATM and one-time debit
card transactions where such services do not meet their needs.” Tims v. LGE Cmty. Credit
Union, 935 F.3d 1228, 1234 (11 th Cir. 2019) (quoting Electronic Fund Transfers, 74 Fed.
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Reg. 59,033, 59,035 (Nov. 17, 2009)). 	By ending automatic enrollment in overdraft
protection, Regulation E mandates that institutions obtain customers’ “affirmative
consent” through an opt-in disclosure. Id. (citation omitted).
Regulation E addresses requirements for overdraft services. 	See 12 C.F.R.
§ 1005.17. An “overdraft service” is “a service under which a financial institution assesses
a fee or charge on a consumer’s account held by the institution for paying a transaction
(including a check or other item) when the consumer has insufficient or unavailable funds
in the account.” 12 C.F.R. § 1005.17(a).
Regulation E establishes an opt-in requirement for overdraft services. 	Id.
§ 1005.17(b). A financial institution may not assess or charge a customer an overdraft fee
unless four conditions are met. Id. First, the institution must provide the customer with
a written or electronic notice “segregated from all other information, describing the
institution’s overdraft service[.]” 	Id. § 1005.17(b)(1)(i). 	Second, the customer must be
given a “reasonable opportunity” to “affirmatively consent” to the overdraft service. Id.
§ 1005.17(b)(1)(ii). Third, the institution must secure the customer’s affirmative consent.
Id. § 1005.17(b)(1)(iii). Fourth, the institution must give the customer confirmation of the
customer’s consent that informs them of their right to revoke such consent. 	Id.
§ 1005.17(b)(1)(iv).
Moreover, a financial institution cannot condition the provision of other overdraft
services on a consumer consenting to overdraft services for ATM and one-time debit card
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transactions, and the financial institution must provide consumers who do not consent
“the same account terms, conditions, and features that it provides to consumers who
affirmatively consent . . . .” Id. § 1005.17(b)(2)–(3).
Regulation E also imposes several requirements regarding the content and format
of the notice describing the institution’s overdraft service. Id. § 1005.17(d). The notice
must be substantially similar to Model Form A-9, and it must contain the items set forth
in 	§ 1005.17(d)(1)–(6). 	Id. 	§ 1005.17(d). 	Section 	1005.17(d)(1) 	requires 	a 	brief
description of the overdraft service and types of transactions to which it applies. 	The
financial institution must also disclose the fees imposed, including a dollar amount or, if
the fee is dependent on the amount of times an account is overdrawn, a maximum fee
that can be imposed. Id. § 1005.17(d)(2). Additionally, the maximum number of overdraft
fees that may be assessed each day must be disclosed, “or, if applicable, that there is no
limit.” Id. § 1005.17(d)(3). Section 1005.17 (d)(4) requires disclosure of the consumer’s
right to affirmatively consent to the overdraft service, as well as how to do so. 	The
financial institution must also disclose alternative plans for covering overdrafts. 	Id. §
1005.17(d)(5). 	Section 1005.17(d)(6) states the ways in which the financial institution
may modify the required content or include additional content. 	The Notice “may not
contain any information not specified in or otherwise permitted by” § 1005.17(d)(1)–(6).
Id. § 1005.17(d).
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15 U.S.C. § 1693m(a) imposes civil liability on those that fail to comply with EFTA’s
provisions. Any action that arises under the EFTA must be brought “within one year from
the date of the occurrence of the violation.” 5 U.S.C. § 1693m(g).
II. 	FACTUAL BACKGROUND
Wings offers overdraft protection to its members through Overdraft Protection
Plus, and if a member is enrolled in Overdraft Protection Plus for debit-card transactions,
Wings may elect to pay the overdraft and assess an overdraft fee. (See generally Second.
Am. Compl. (“SAC”), May 6, 2025, Docket No. 1-57.) 	To enroll in Overdraft Protection
Plus, a member must opt-in and agree to the terms of Wings’ Overdraft Protection Plus
Agreement & Disclosure using Wings’ Opt-in Form. (Id. ¶¶ 3, 5.) Before addressing Wings’
disclosure forms, the Court will describe the type of financial transactions at issue—
signature debit card transactions.
A. 	Signature Debit Card Transactions
A signature debit card transaction occurs when customers use their debit cards
without entering their PIN and the transaction is processed through credit card
networks.1 (See id. ¶ 40 & Ex. F.) Signature debit card transactions occur in two parts.
(Id. ¶ 40.)
1 PIN transactions—transactions in which the user enters their PIN number—are
implicated here because in PIN transactions, the account’s funds are withdrawn immediately.
(See SAC, Ex. F (“Debit card purchases and ATM withdrawals made using a PIN subtract the funds
immediately from your account[.]”).)
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The first step is known as “authorization.” (Id.) When a customer uses their debit
card without inputting their PIN, the merchant’s payment terminal connects, through an
intermediary, to Wings and requests that Wings authorize the transaction. (Id.) If Wings
authorizes the transaction, Wings places a hold on the customer’s account in the amount
authorized and reduces the customer’s available balance by that amount. (Id. ¶ 41.) The
funds are not yet transferred to the merchant (id. ¶ 42); during the first authorization
step, the customer’s actual balance remained unchanged (id. ¶ 45).
The second step, “settlement,” occurs when the funds are actually transferred
from the customer’s Wings account to the merchant’s account. 	(Id. ¶ 42.) 	Although
authorization and settlement are distinct steps, Wings’ determination of whether to pay
a transaction can be made only at the time of authorization. (Id. ¶ 43.) At settlement,
Wings has no discretion and must pay the charge. 	(Id.) 	That is, if Wings authorizes a
signature debit card transaction, it must pay the merchant. (Id.) Because the transferred
funds were held at authorization, the account’s available balance does not change at
settlement, meaning that the transaction can be settled without creating an overdraft.
(Id. ¶¶ 44–45.) But at settlement, the account’s actual balance is reduced. (Id.)
Several days may pass between authorization and settlement. (Id. ¶ 46.) Because
of the time delay, Gahm alleges that it is critical that financial institutions inform
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consumers whether overdraft decisions are based on the balance at authorization or the
balance at the time of settlement.2 (Id. ¶ 47.)
B. 	Wings’ Overdraft Service Forms
Wings had two forms relevant to its Overdraft Protection Plus service: (1) Wings’
Opt-in Form and Wings’ Overdraft Protection Plus – Agreement & Disclosure (“A&D”)
Form. (Id. ¶¶ 72, 77.) The first versions of the forms were effective as of June 9, 2016.
(Id., Exs. B, F.) The second versions of the forms, which replaced the June 2016 forms,
were effective on April 2, 2018. (Id., Exs. A, E; see also Decl. of Lisa Daum (“Daum Decl.”)
¶ 3, May 13, 2025, Docket No. 7.) Wings amended the A&D Form again, effective August
1, 2019. (SAC, Ex. D; Daum Decl. ¶ 4.) On October 26, 2022, Wings amended both forms.
(SAC, Ex. C; Daum Decl. ¶ 5, Ex. 1.) Finally, Wings established Overdraft Protection Plus
Digital Agreement & Terms of Service, which became effective in March 2024 and
superseded both the Opt-in Form and the A&D Form. (SAC ¶ 65; see also Daum Decl. ¶
6, Ex. 2.)
2 Transactions where “a customer’s account has a sufficient available balance to cover a
debit card transaction when the transaction is authorized but, due to one or more intervening
transactions, has an insufficient available balance to cover the transaction at the time it settles”
are also referred to as APSN transactions; overdraft fees are incurred when transactions are
“authorized positive,” but “settle negative.” (See SAC ¶¶ 55, 57.)
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1. 	Opt-in Form
Wings’ Opt-in Form informs customers that by opting in to Overdraft Protection
Plus, they are agreeing to the terms of the A&D Form. (SAC, Ex. B.)3 Among other things,
the notice states that “[b]y opting in to Overdraft Protection Plus, you: [g]ive your consent
for Wings Financial Credit Union to pay or authorize transactions against non-sufficient
funds” and “[a]gree to pay a $30 Overdraft Protection Plus fee for each item that we pay
that would overdraw your checking account.” (Id.)
2. 	Account and Disclosure Form
Wings’ A&D Form outlines its overdraft program, Overdraft Protection Plus, by
detailing what a member consents to when “opting in,” including the overdraft fee
amount, the transaction threshold below which the fee is waived, and the priority order
applied when multiple overdraft protection sources are available. (SAC, Ex. F.) The A&D
Form then describes its service limitations, including the maximum number of Overdraft
Protection Plus fees per day:
Wings is not obligated to pay any item presented for payment
if your account does not contain sufficient collected funds.
However, rather than automatically returning, unpaid, any
non-sufficient funds items that you may have, if your eligible
account 	is 	in 	“good 	standing”, 	which 	includes 	at 	least
3 Because the SAC alleges that Gahm was charged overdraft fees beginning on March 31,
2017, the parties appear to agree that the applicable Opt-in and A&D forms are those that
became effective on June 9, 2016. (SAC ¶ 70; see also Def.’s Mem. Supp. Mot. Dismiss at 27, May
13, 2025, Docket No. 6; Pl.’s Mem. Opp. Mot. Dismiss at 9, July 21, 2025, Docket No. 22.)
Accordingly, unless stated otherwise, the “Opt-In Form” and the “A&D Form” refer to June 2016
forms, Exhibits B and F to the SAC, respectively.
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continuing 	to 	make 	deposits 	consistent 	with 	your 	past
practices and not subject to any of the limitations above, we
will consider – as a discretionary courtesy (not a right of yours
or an obligation on our part) approving your reasonable
overdraft. This discretionary courtesy will generally be limited
to a $600 overdraft (negative) balance. 	You can only be
charged a maximum of six (6) Overdraft Protection Plus fees
per day per account.
Wings may refuse to pay an overdraft or terminate your
access to this service at any time, even though your account
is in good standing, and even though we have previously paid
overdrafts for you.
(Id.) After explaining how a customer can opt-out, the A&D Form defines two types of
account balances Wings uses to determine whether a transaction will result in an
overdraft—actual balance and available balance. (Id. Ex. F.) The A&D Form states that
Wings relies on the available-balance method to decide whether a transaction triggers
an overdraft and a corresponding fee:
Understanding Your Account Balance for Overdrafts
Your checking account has two kinds of balances: the “actual”
balance and the “available” balance. 	Both balances are
accessible online, by phone or at a branch. 	We use the
available balance when determining whether a transaction
will 	cause 	your 	account 	to 	overdraw 	and 	for 	charging
Overdraft Protection Plus fees.
Your Actual Balance
Your actual balance is the amount of money that is actually in
your account at any given time. Your actual balance reflects
transactions that have “posted” to your account but it does
not include transactions that have been authorized and are
pending. 	While it may seem that the actual balance is the
most up-to-date display of the funds that you can spend from
your account, this is not always the case. Your account may
have purchases, holds, fees, other charges, or deposits that
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have not yet posted and, therefore, will not appear in your
actual balance.
Your Available Balance
Your available balance is the amount of money in your
account that is available to you without incurring an Overdraft
Protection Plus fee. Your available balance takes into account
holds 	that 	have 	been 	placed 	on 	deposits 	and 	pending
transactions (such as pending debit card transactions) that we
have authorized but that have not yet posted to your account.
(Id.) Wings, in the A&D Form, then includes an example of how an Overdraft Protection
Plus fee may be incurred, despite a positive actual balance:
Example of Overdraft Protection Plus Fee for Insufficient
Available Balance
If your actual balance and available balance are both $100 and
you swipe your debit card at a restaurant for $35, a hold is
placed on your account and your available balance will be
reduced to $65. Your actual balance is still $100 because the
transaction has not yet posted to your account. If a check that
you had previously written for $75 clears through your
account before the restaurant charge is sent to us for
processing, you will incur an Overdraft Protection Plus fee.
This is because your available balance was $65 when the $75
check was paid. In this case, we may pay the $75 check and
charge you an Overdraft Protection Plus fee. 	The Overdraft
Protection Plus fee will also be deducted from your account,
further reducing your balance.
(Id.) 	The A&D Form then details how transactions are posted to a member’s account,
noting that the posting process and timing influence the member’s available balance and,
consequently, whether an overdraft fee will be charged. (Id.) The A&D Form concludes
by detailing how debit card authorization holds operate, emphasizing that they decrease
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the available balance upon authorization, even though the actual balance is not reduced
until posting, thereby affecting the assessment of overdraft fees:
What is a debit card authorization hold?
When you use your debit card to conduct a Signature or
“Credit” transaction (i.e., you do not enter your PIN), the
merchant sends us the amount, usually the purchase total, for
authorization. 	This amount is placed on hold and removed
from your available balance immediately. The hold is released
after approximately 72 hours or when the transaction clears,
whichever 	comes 	first. 	The 	hold 	helps 	determine 	the
available balance on your account.
Will 	debit 	card 	authorization 	holds 	apply 	to 	all 	my
purchases?
No, debit card authorization holds only apply to debit card
transactions when you sign your name or do not enter a PIN.
For example, a debit card purchase made at a restaurant or
with 	an 	online 	merchant 	would 	be 	treated 	as 	a
signature/credit transaction and would be subject to an
authorization hold.
Debit card purchases and ATM withdrawals made using a PIN
subtract the funds immediately from your account (except
when you use your PIN at a gas station).
(Id. Ex. F.) Wings also described its Overdraft Protection Plus program on its website and
explained that it “is designed to cover the payment of checks and ACH debits, even when
your current balance is insufficient.” 	(SAC, Ex. G.) 	The website page also informed
customers that they “can opt in to have debit card transactions and ATM withdrawals
covered.” (Id.)
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III. 	PROCEDURAL BACKGROUND
Wings charged Gahm overdraft fees on one-time debit card transactions and ATM
transactions on various occasions from 2017 to 2023.4 (SAC ¶¶ 69–70.) Gahm initiated
this putative class action in state court on January 30, 2023.5 	(Compl., May 6, 2025,
Docket No. 1-2.) 	Gahm then filed an Amended Complaint November 15, 2023. 	(Am.
Compl., May 6, 2025, Docket No. 1-24.) 	Wings subsequently moved to dismiss the
4 Gahm alleges that she was assessed $30 overdraft fees on one-time card transactions
and ATM transactions on at least the following dates: March 31, 2017; May 22, 2017; June 20,
2017; September 25, 2017; September 28, 2017; October 26, 2017; January 13, 2018; January 22,
2018; February 2, 2018; April 27, 2018; April 28, 2018; May 2, 2018 (two times); May 3, 2018;
May 18, 2018; August 13, 2018; August 20, 2018; August 24, 2018; August 28, 2018; August 30,
2018; March 22, 2019 (two times); March 23, 2019; April 12, 2019 (two times); April 13, 2019;
August 30, 2019; November 29, 2019; May 7, 2020; July 10, 2020; August 7, 2020; October 17,
2020; December 2, 2021; December 6, 2021; April 19, 2022; June 10, 2022 (three times);
November 12, 2022; June 26, 2023; September 5, 2023; September 20, 2023; November 6, 2023;
and December 2, 2023. (SAC ¶ 70.) Gahm alleges in the SAC that during these times, Wings’
allegedly insufficient Opt-in Form was included in her contract. (Id.)
5 Gahm seeks to represent two classes of individuals:
The Opt-In Class: All consumers who, during the applicable statute
of limitations, were checking accountholders of Defendant and
were assessed an overdraft fee on a debit card or ATM transaction
from January 30, 2022 to March 31, 2024.
The Minnesota Class: All citizens of Minnesota who, during the
applicable statute of limitations, were checking accountholders of
Defendant and were assessed an overdraft fee on a transaction
that did not overdraw the account from January 30, 2017 to the
present.
(SAC ¶ 99.) 	Excluded from the putative classes are Wings’ “officers, directors, affiliates, legal
representatives, employees, successors, subsidiaries, and assigns” as well as “any judge, justice,
or judicial officer presiding over this matter and the members of their immediate families and
judicial staff.” (Id. ¶ 100.)
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Amended Complaint on November 29, 2023. 	(Docket No. 1-27.) 	On March 18, 2024,
Wings withdrew its motion to dismiss, one week before the hearing on the motion.
(Docket No. 1-36.) After additional discovery, Gahm filed a motion for leave to amend on
November 8, 2024, which the district court granted on April 15, 2025. (Docket Nos. 1-46,
1-56.) On April 22, 2025, Gahm filed and served the Second Amended Complaint. (Docket
No. 1-57.)
On May 6, 2025, Wings removed the case to federal court pursuant to 28 U.S.C.
§§ 1331, 1441, and 1446. (Notice of Removal, May 6, 2025, Docket No. 1.) Wings now
moves to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure
12(b)(6). (Mot. to Dismiss, May 13, 2025, Docket No. 4.)
DISCUSSION
I. 	STANDARD OF REVIEW
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court considers all facts alleged in the complaint as true to determine if the complaint
states a “claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8 th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 	The
Court construes the complaint in the light most favorable to the plaintiff, drawing all
reasonable inferences in the plaintiff’s favor. Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 665
(8 th Cir. 2009). Although the Court accepts the complaint’s factual allegations as true, it
is “not bound to accept as true a legal conclusion couched as a factual allegation[.]” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 	“A pleading that offers labels and
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conclusions or a formulaic recitation of the elements of a cause of action will not do.”
Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Instead, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
At the motion to dismiss stage, the Court may consider the allegations in the
complaint as well as “those materials that are necessarily embraced by the pleadings.”
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8 th Cir. 2014). 	The Court may also
consider matters of public record and exhibits attached to the pleadings, as long as those
documents do not conflict with the complaint. Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8 th Cir. 1999).
II. 	ANALYSIS
The Second Amended Complaint alleges that Wings’ disclosure practices violated
(1) the EFTA and its implementing Regulation E and (2) the MCFA. 	(SAC ¶¶ 112–132.)
Wings argues that Gahm fails to allege that Wings violated the EFTA or Regulation E and
that such a claim is time-barred under 15 U.S.C § 1693m(g), which imposes a one-year
statute of limitations on EFTA claims. 	Wings further argues that Gahm’s MCFA claim
should be dismissed because Gahm fails to plausibly allege fraud or to allege her claim
with particularity, as required by Federal Rule of Civil Procedure 9(b).
A. 	EFTA and Regulation E Claim
According to Wings, the SAC alleges five violations of 12 C.F.R. § 1005.17: (1) Wings
unlawfully relies on the A&D Form language; (2) Wings fails to explain whether it bases
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its overdraft determination on available balance method or actual balance method; (3)
Wings fails to specify a daily limit on overdraft fees; (4) Wings does not plainly describe
the timing or method of overdraft determinations since the Opt-in Form does not state
whether overdrafts are assessed at authorization or settlement; and (5) the Opt-in Form
is not substantially similar to Model Form A-9. (Def.’s Mem. Supp. Mot. Dismiss at 15–16,
May 13, 2025, Docket No. 6 (citing and quoting the SAC).)
Relying on this characterization, Wings argues that it properly relies on the A&D
Form and that Gahm fails to allege an EFTA and Regulation E violation because the A&D
Form plainly states that Wings uses the available balance method, indicates the maximum
number of overdraft fees that may be charged per day, and explains that the overdraft
fee determination is made at authorization. Wings further maintains that both the A&D
Form and the Opt-In Form are substantially similar to Model Form A-9.
For the reasons set forth below, the Court is not persuaded. The A&D Form is not
part of the segregated notice required by Regulation E and is therefore irrelevant to the
compliance analysis. 	After careful consideration, the Court concludes that Gahm
plausibly alleges a violation of Regulation E because of deficiencies in Wings’ Opt-in Form.
The Court will first address Regulation E’s segregation requirement, then will turn to the
merits of Gahm’s EFTA and Regulation E claim, and finally will consider the applicability
of the EFTA’s statute of limitations.
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1. 	Segregation Requirement
Before the Court can evaluate whether Gahm plausibly alleges a Regulation E
violation, the Court must determine which documents can be considered as part of its
analysis. 	Wings argues that the Opt-in Form and the A&D Form should be considered
together when evaluating whether Wings complied with Regulation E. 	The Court
disagrees.
Under Regulation E, the notice must be “segregated from all other information,
describing the institution’s overdraft service[.]” 12 C.F.R. § 1005.17(b)(1)(i). The notice
must also be “substantially similar” to Model Form A-9. Id. §1005.17(d). The notice must
be “clear and readily understandable.” 	Id. § 1005.4. 	The purpose of the segregation
requirement is “[t]o ensure that the consumer is able to make an informed choice when
opting into overdraft services for ATM and one-time debit card transactions, and that the
terms of the overdraft service are not obscured by other account information . . . .”
Electronic Fund Transfers, 74 Fed. Reg. 59,033, 59,042 (Nov. 17, 2009).
To skirt the segregation requirement, Wings argues that the Opt-in Form and the
A&D Form, collectively, constitute the segregated notice. The Court rejects this argument
and declines to construe the Opt-in Form in conjunction with the A&D Form. Indeed, as
pointed out by Gahm, if the A&D Form was considered to be a part of the segregated
notice, Wings would risk violating the substantial similarity requirement because the A&D
Form bears little resemblance to Model Form A-9. 	See id. § 1005.17(d) (requiring the
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notice to be “substantially similar to Model Form A-9”).6 	Wings’ A&D Form contains
disclosures beyond those allowed under § 1005.17(d), including representations that the
institution 	may 	terminate 	overdraft 	protection, 	close 	customer 	accounts, 	report
customers to credit bureaus if overdrafts are not repaid within 45 days, and recover any
costs of collection including costs and attorneys’ fees. 	(SAC, Ex. F.) 	See also 12 C.F.R.
§ 1005.17(d) (providing that the notice must “include all applicable items [listed in
§ 1005.17(d)(1)–(6)], and may not contain any information not specified in or otherwise
permitted by this paragraph”).
At this stage in the proceedings, the Court will evaluate Gahm’s Regulation E claim
by looking solely to Wings’ Opt-in Form. The A&D Form is therefore irrelevant to whether
Wings’ Opt-in Form complied with Regulation E. 	Although no binding precedent has
squarely 	addressed 	whether 	an 	Opt-in 	Form 	may 	be 	construed 	alongside 	other
documents (e.g., Wings’ A&D Form), several federal courts have concluded—and this
Court agrees—that the Opt-in Form must be assessed on its own when assessing
6 12 C.F.R. § pt. 1005, app. A (Model Form A-9).
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compliance with Regulation E.7 	Accordingly, Court will consider Wings’ Opt-in Form
alone, not the A&D Form, in determining whether Gahm plausibly alleges a Regulation E
violation.
2. 	Merits of Gahm’s EFTA and Regulation E Claim
Regulation E’s opt-in requirement provides that “a financial institution holding a
consumer’s account shall not assess a fee or charge on a consumer’s account for paying
an ATM or one-time debit card transaction pursuant to the institution’s overdraft service”
unless certain conditions are met. 	12 C.F.R. § 1005.17(b)(1). 	Such conditions include
providing (1) providing “the consumer with a notice in writing, or if the consumer agrees,
electronically, 	segregated 	from 	all 	other 	information, 	describing 	the 	institution's
overdraft service” and (2) “obtain[ing] the consumer’s affirmative consent, or opt-in, to
the 	institution’s 	payment 	of 	ATM 	or 	one-time 	debit 	card 	transactions[.]” 	Id.
§ 1005.17(b)(1)(i), (iii). Regulation E also adds to the Opt-in requirement by requiring that
all disclosures be “clear and readily understandable.” Id. § 1005.4(a)(1). Read together,
7 See, e.g., Ramirez v. Baxter Credit Union, Civ. No. 16-3765, 2017 WL 118859, *8 (N.D.
Cal. Jan. 12, 2017) ( “Regulation E specifically governs the requirements of the opt-in form on its
own, and plaintiff has properly alleged that [defendant’s] opt-in form is facially deficient.”);
Adams v. Liberty Bank, Civ. No. 20-1601, 2021 WL 3726007, at *3–4 (D. Conn. Aug. 23, 2021)
(noting that because of the segregation requirement, “a faulty notice is not saved by clarifying
language in other documents”); Grenier v. Granite State Credit Union, 570 F. Supp. 3d 18, 22
(D.N.H. 2021) (“The Membership Agreement is extraneous information, irrelevant to whether
the Opt-in Disclosure itself—i.e., the segregated document—adequately explains Granite’s
overdraft policy.”); Virgina is for Movers, LLC v. Apple Fed. Credit Union, 720 F. Supp. 3d 427, 449
(E.D. Va. 2024) (same, citing Grenier).
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a financial institution cannot charge overdraft fees without the customer’s affirmative
consent following a clear, understandable disclosure.
Gahm alleges that Wings’ Opt-in Form fails to meet Regulation E’s requirements,
and because the Opt-in Form does not satisfy Regulation E, Wings lacked authority to
assess overdraft fees. Specifically, Gahm contends that the Opt-in Form (1) fails to explain
how Wings determines whether a transaction incurs an overdraft; (2) fails to explain
when the overdraft determination is made—at authorization or settlement; (3) fails to
identify the maximum number of fees that Wings may assess per day; and (4) is not
substantially similar to Model Form A-9. 	The Court agrees and will address each of
Gahm’s contentions.
First, Gahm argues that the Opt-in Form fails to explain how Wings determines
whether a transaction creates an overdraft. The Opt-in Form states that by opting in, the
customer gives their consent for Wings “to pay or authorize transactions against non-
sufficient funds up to your approved limit” and to impose “a $30 Overdraft Protection
Plus fee for each item that we pay that would overdraw your checking account.” (SAC,
Ex. B.) 	The Opt-in Form fails to define “non-sufficient funds” or to clarify whether an
overdraft fee is triggered when the actual balance or the available balance is overdrawn.
As the A&D Form makes clear, these are two distinct balances: the actual balance reflects
only posted transactions, while the available balance includes authorized but unposted
transactions. (SAC, Ex. F.) This distinction is critical. Because the available balance may
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be lower than the actual balance, a customer can be charged an overdraft fee even when
the account in fact contains sufficient funds. 	By omitting any reference to the balance
Wings uses to make its overdraft determination, the Opt-in Form deprives consumers of
the information needed to understand how a transaction may trigger overdraft. 	The
Court therefore concludes that Gahm has plausibly alleged a Regulation E claim because
Wings failed to explain in a “clear and readily understandable” manner whether overdraft
fees would be charged based on the available or actual balance. 12 C.F.R. § 1005.4(a)(1);
see, e.g., Tims, 935 F.3d at 1243–44 (concluding that a notice was not described in “clear
and readily understandable” way when the notice did not distinguish between the
available and actual balance); Wellington v. Empower Fed. Credit Union, 533 F. Supp. 3d
64, 70 (N.D.N.Y. 2021) (“[A] plaintiff plausibly alleged a violation of Regulation E when the
financial institution did not adequately define whether overdraft fees would be assessed
based on the available balance or actual balance.”); Fludd v. S. State Bank, 566 F. Supp.
3d 471, 483 (D.S.C. 2021).
Second, Gahm asserts that the Opt-in Form fails to explain when the overdraft
determination is made. As previously noted, the Opt-in Form states that by opting in, the
customer gives their consent for Wings “to pay or authorize transactions against non-
sufficient funds up to your approved limit.” (SAC, Ex. B.) Nowhere does the Opt-in Form
specify whether the overdrafts are assessed at authorization or at settlement. As a result,
consumers may be uncertain whether sufficient funds are required at the time of the
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transaction (i.e., authorization) or at settlement. Accordingly, the Court finds, consistent
with other courts, that such ambiguity is sufficient to state a Regulation E claim. See, e.g.,
Virgina is for Movers, LLC v. Apple Fed. Credit Union, 720 F. Supp. 3d 427, 449 (E.D. Va.
2024) (concluding that plaintiff stated Regulation E violation when the opt-in form did not
specify whether overdrafts were assessed at settlement or authorization); Hinton v. Atl.
Union Bank, Civ. No. 3:20-651, 2020 WL 9348205, at *3 (E.D. Va. Nov. 2, 2020).8
Third, Gahm alleges that the Opt-in Form fails to identify the maximum number of
overdraft fees that may be assessed daily. Regulation E requires that the Opt-in notice
specify the “[t]he maximum number of overdraft fees or charges that may be assessed
per day, or, if applicable, that there is no limit.” 12 C.F.R. § 1005.17(d)(3). But nowhere
does Wings’ Opt-in Form specify the daily limit. 	Therefore, Gahm plausibly alleges a
Regulation E violation; that is, Wings’ Opt-in Form fails to “describ[e] the institution’s
overdraft service,” see id. § 1005.17(b)(1)(i), in a “clear and readily understandable” way,
see id. § 1005.4(a)(1).
Fourth, Gahm contends that Wings’ Opt-in Form is not substantially similar to
Model Form A-9. Because the Opt-in Form omits content required by § 1005.17(d) such
8 Wings contends that because a debit card transaction can only be approved at
authorization, it is clear that the overdraft determination is made at authorization. (Reply Mem.
Supp. Mot. Dismiss at 5, Aug. 11, 2025, Docket No. 24.) Although this may be true upon review
of the A&D Form, a customer would not be able to reach this conclusion reviewing the Opt-in
Form alone. As discussed, supra Discussion II.A.1., the A&D Form is irrelevant for the purposes
of analyzing Gahm’s Regulation E claim, and the Court must review the Opt-in Form as a
standalone document.
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as the daily limit of overdraft fees, Gahm sufficiently alleges that the Opt-in Form is not
“substantially similar to Model Form A-9.” 	See id. § 1005.17(d). 	To the extent Wings
argues that the A&D Form satisfies § 1005(d), the Court cannot consider the A&D Form
because, as previously discussed, it is not the separate, segregated notice contemplated
by § 1005.17(b)(1)(i). And, even if the Court were to review the A&D Form, it would likely
fail the substantial-similarity standard: the A&D Form spans three pages—unlike the
single-page Model Form A-9—and the A&D Form includes information beyond what
§ 1005.17(d) requires, rendering the additional content impermissibly extraneous.
In sum, to satisfy Regulation E, a financial institution’s opt-in form must include a
“brief description of the financial institution’s overdraft service” as well as other certain
types of information under 12 C.F.R. § 1005.17(d). Gahm pleads her Regulation E claim
by 	plausibly 	alleging 	that 	Wings’ 	Opt-in 	Form 	does 	not 	accurately 	describe 	the
institution’s actual overdraft practice. At minimum, Gahm alleges that the Opt-in Form is
ambiguous and omits required information, and thus it is “plausible that the notice does
not describe the overdraft service in a ‘clear and understandable way.’” See Tims, 935
F.3d at 1243–44 (quoting 12 C.F.R. § 1005.4(a)(1)). As a result, Gahm sufficiently alleges
that Wings did not provide her with a reasonable opportunity to affirmatively consent to
Wings’ Overdraft Protection Plus service because the notice did not provide Gahm with
“all the information she need[ed] to give plain and clear consent.” 	See id. at 1244.
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Accordingly, construing the facts in the light most favorable to Gahm, the Court concludes
that Gahm plausibly states an EFTA and Regulation E claim.
3. 	Statute of Limitations
In addition to arguing that Gahm fails to allege an EFTA and Regulation E claim on
the merits, Wings argues that Gahm’s EFTA and Regulation E claim should be dismissed
as time barred under 5 U.S.C. § 1693m(g), which establishes a one-year statute of
limitations for EFTA claims. Specifically, Wings argues that Gahm’s EFTA and Regulation
E claim accrued on March 31, 2017—the date Gahm was first charged an overdraft fee on
a debit card or ATM transaction—and expired on March 31, 2018. Because Gahm did not
file her original complaint until January 2023, Wings contends her claim is time-barred.
EFTA claims must be brought “within one year from the date of the occurrence of
the violation.” 	15 U.S.C. § 1693m(g). 	In general, the statute of limitations is triggered
once the “plaintiff has a complete and present cause of action,” which does not occur
until the “plaintiff can file suit and obtain relief.” 	Bay Area Laundry & Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of California, 522 U.S. 192, 201 (1997) (internal quotation
marks omitted). No circuit court nor any courts in this District have opined on the proper
interpretation of 15 U.S.C. § 1693m(g). Courts that have addressed the issue are divided
between two approaches—one exemplified by Smith v. Bank of Hawaii, Civ. No. 16-513,
2018 WL 1662107 (D. Haw. Apr. 5, 2018), and the other by Domann v. Summit Credit
Union, Civ. No. 18-167, 2018 WL 4374076 (W.D. Wis. Sept. 13, 2018).
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a. 	Smith Approach
Gahm argues that the Court should adopt the approach followed by the district
court in Smith. Gahm asserts that each wrongful overdraft fee is a separate EFTA violation
that triggers the one-year statute of limitations period. In support, Gahm relies on Fludd
v. S. State Bank, 566 F. Supp. 3d 471 (D.S.C. 2021). In Fludd, the court rejected a bank’s
argument that the “limitations period begins to run on the date of the first noncompliant
transfer.” Id. at 480 (internal quotation marks omitted). The court distinguished the cases
cited by the bank on the grounds that such cases involved in a “series of preauthorized,
recurring transactions.” Id. at 481. In contrast, in Flood, the case involved “non-recurring
debit card and ATM transactions.” Id. In reaching its conclusion, the Fludd court adopted
the reasoning of Smith, 2018 WL 1662107.
In Smith, the court explained the rationale for distinguishing between pre-
authorized recurring transactions and non-recurring debit card transactions:
The difference between preauthorizing a series of transfers
and opting in to an overdraft service is both significant and
meaningful. 	In the first instance, a consumer gives express
permission for a series of recurring transfers from his or her
account. But in the second instance a consumer merely opts
in to a service, perhaps with no intention of ever using it, and
he or she does not agree to any specific fee or charge, let
alone a series of them.
And 	Regulation 	E 	reflects 	these 	differing 	factual
circumstances. 	It requires a preauthorized transfer to be in
writing, 	focusing 	on 	the 	authorization 	itself. 	12 	C.F.R.
§ 1005.10(b). 	But with regard to the overdraft services, it
focuses not only on the requirements for a consumer’s opt-in,
but it also expressly prohibits “any fee or charge on the
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consumer’s account for paying an ATM or one-time debit card
transaction pursuant to the institution’s overdraft service”
unless proper disclosure is made. 	12 C.F.R. § 1005.17(c)(2);
accord 	12 	C.F.R. 	§ 1005.17(b)(1) 	(providing 	“a 	financial
institution holding a consumer’s account shall not assess a fee
or charge on a consumer’s account for paying an ATM or one-
time debit card transaction pursuant to the institution’s
overdraft 	service 	unless” 	it 	complies 	with 	its 	disclosure
obligations) 	(emphasis 	added). 	Thus, 	the 	violation 	for
purposes 	of 	determining 	the 	limitation 	period 	for 	a
preauthorized transfer may properly be characterized as an
omission. But when a bank assesses overdraft fees or charges,
it violates the express language of Regulation E every time it
imposes a fee or charge.
Smith, 2018 WL 1662107, at *5. 	Because of the differences between pre-authorized
recurring transactions and non-recurring debit card transactions, Smith concluded that
Smith’s EFTA claim was barred only to the extent his claim was based on overdraft fees
that were assessed outside the one-year limitations period. Id. at *6. In addition to Fludd,
numerous other courts have followed the Smith court’s reasoning. 	See, e.g., Pingston-
Poling v. Advia Credit Union, 333 F. Supp. 3d 745, 749 (W.D. Mich. 2018); Salls v. Digit.
Fed. Credit Union, 349 F. Supp. 3d 81, 91–92 (D. Mass. 2019); Bettencourt v. Jeanne D’Arc
Credit Union, 370 F. Supp. 3d 258, 266 (D. Mass. 2019) (adopting reasoning in Salls, which
relied on reasoning in Smith); Cortes v. Univ. & State Emps. Credit Union, Civ. No. 22-444,
2023 WL 12009972, at *10 (S.D. Cal. Mar. 13, 2023). In sum, under Smith, each overdraft
fee charged by the financial institution constitutes a separate violation of Regulation E.
2018 WL 16621097, at *5.
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b. 	Domann Approach
Wings argues that the Court should adopt the approach followed by the court in
Domann. 	Wings’ position is that the statute of limitations period under 5 U.S.C.
§ 1693m(g) begins to run “when a financial institution makes a first unauthorized transfer
or charges an overdraft fee.” 	(Def.’s Mem. Supp. Mot. Dismiss at 27, May 13, 2025,
Docket No. 6 (quoting Domann, 2018 WL 4374076, at *9).) Wings argues that because
Gahm alleges that her first injury occurred on March 31, 2017 (see SAC ¶ 70), her claim
accrued on that date and expired one year later, on March 31, 2018. 	Wings further
contends that although Gahm references additional dates on which unlawful overdraft
fees were assessed, those alleged violations all stem from a single act—the provision of
an allegedly unlawful disclosure. 	For these reasons, Wings argues that Gahm’s claims
were time-barred when she filed her initial complaint in state court on January 30, 2023.
In support of its position, Wings relies on Domann, which rejected Smith’s
reasoning and determined that when a financial institution fails to provide an opt-in form
that complies with Regulation E, “the alleged wrongful conduct is based on a single
omission”—the failure provide the customer with a compliant form. Domann, 2018 WL
4374076, at *10. The court then concluded that there was “no basis to find that a new
cause of action accrued with each new overdraft fee.” 	Id. 	Other courts have rejected
Smith and followed Domann. See, e.g, Radar v. Scandia Lab. Fed. Credit Union, Civ. No.
20-559, 2021 WL 1533664, at *12 (D.N.M. Apr. 19, 2021) (holding that plaintiff’s
Regulation E claim was time barred and noting that the subsequent overdraft fees “were
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the natural result of the allegedly infirm Opt-in Contract”); Toth v. Scott Credit Union, Civ.
No. 20-306, 2021 WL 535549, at *8 (S.D. Ill. Feb. 12, 2021). In short, under Domann, a
plaintiff’s EFTA claim “‘occurs’ (and starts the one-year clock) when the first overdraft fee
is charged after an alleged failure to obtain proper authorization pursuant to Regulation
E[.]” Domann, 2018 WL 4374076, at *9. The one-year clock does not reset “with each
improper overdraft fee.” Id.
c. 	Application
After careful consideration, the Court finds the court’s reasoning in Smith to be
persuasive and concludes that each overdraft fee charged to Gahm’s account amounts to
a separate violation of Regulation E. The Smith approach is more consistent with the plain
text of 12 C.F.R § 1005.17(b)(1). Regulation E provides that “a financial institution holding
a consumer’s account shall not assess a fee or charge on a consumer’s account for paying
an ATM or one-time debit card transaction pursuant to the institution’s overdraft service”
unless the institution complies with the regulation’s disclosure obligations. 	Id. §
1005.17(b)(1) (emphasis added). Based on a natural reading of this language, it follows
that Wings violated Regulation E each time it assessed or charged an overdraft fee
without providing its customers with a compliant opt-in form.
Gahm’s initial complaint was filed on January 30, 2023. 	Thus, the statute of
limitations period spans January 30, 2022, to January 30, 2023. 	Transactions that are
alleged to have occurred before January 30, 2022, are barred. But Gahm alleges that at
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least one transaction was within twelve months of filing the initial complaint.9 Therefore,
Gahm’s EFTA and Regulation E claim is not time-barred to extent it relates to overdrafts
assessed within one year of the filing of her complaint. Accordingly, the Court will grant
Wings’ motion to dismiss the EFTA claim as time barred to the extent the claim relates to
overdraft charges before January 30, 2022, but deny will deny the motion to dismiss the
EFTA claim to the extent the claim relates to overdraft charges on or after January 30,
2022.10
9 The SAC alleges that multiple overdraft charges were assessed on Gahm’s transactions
between January 30, 2022, and January 30, 2023: April 19, 2022; June 10, 2022 (three times);
November 12, 2022; June 26, 2023; September 5, 2023; September 20, 2023; November 6, 2023;
and December 2, 2023. (SAC ¶ 70.)
10 The Court briefly addresses whether the SAC appropriately relates back to the original
complaint. “[O]nce a case has been removed to federal court, it is settled that federal rather
than state law governs the future course of proceedings, notwithstanding state court orders
issued prior to removal.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers
Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 437 (1974). 	However, the Federal Rules of Civil
Procedure specifically “apply to a civil action after it is removed from a state court.” Taylor v.
Bailey Tool Mfg. Co., 744 F.3d 944, 947 (5 th Cir. 2014) (citations omitted). In other words, state
procedural law governs cases originating in state court up to and until they are removed to
federal court. Winkels v. George A. Hormel & Co., 874 F.2d 567, 570 (8 th Cir. 1989). Accordingly,
state law applies “to determine whether . . . [an] amended petition filed in state court relates
back to the date of [plaintiff’s] original petition.” Taylor, 744 F.3d at 947. In this case, the state
district court concluded that the proposed SAC related back to the original complaint. (See Order
at 10, Apr. 15, 2025, Docket No. 1-56.) Although the state district court stated that its ruling on
the relation back issue did “not foreclose any argument on the issue of relation back that
Defendant may bring in the future[,]” the Court sees no reason to disturb the state district court’s
initial ruling on the relation back issue. (Id.)
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B. 	MCFA Claim
Gahm alleges that Wings violated the Minnesota Consumer Fraud Act when it
“misrepresented its actual fee assessment practices and misled and deceived its
accountholders by assessing [overdraft] fees on transactions that did not actually
overdraw the account or that did not overdraw the account at authorization.” 	(SAC
¶ 131.) The MCFA bars
[t]he act, use, or employment by any person of any fraud,
unfair 	or 	unconscionable 	practice, 	false 	pretense, 	false
promise, 	misrepresentation, 	misleading 	statement 	or
deceptive practice, with the intent that others rely thereon in
connection with the sale of any merchandise, whether or not
any person has in fact been misled, deceived, or damaged
thereby[.]
Minn. Stat. § 325F.69, subd. 1. 	The MCFA “should be liberally construed in favor of
protecting consumers.” Ly v. Nystrom, 615 N.W.2d 302, 308 (Minn. 2000).
Because Gahm’s MCFA claim sounds in fraud, it is subject to heightened pleading
standards under Federal Rule of Civil Procedure 9(b), and “must state with particularity
the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Defendants must
be able to “respond specifically, at an early stage of the case, to potentially damaging
allegations of immoral and criminal conduct.” Abels v. Farmers Commodities Corp., 259
F.3d 910, 920 (8 th Cir. 2001). In other words, “the complaint must identify the ‘who, what,
where, when, and how’ of the alleged fraud.” United States ex rel. Joshi v. St. Luke's Hosp.,
Inc., 441 F.3d 552, 556 (8 th Cir. 2006) (citation omitted).
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At this stage in the proceedings, the Court is satisfied that Gahm has met her
pleading burden under Rule 9(b) and Rule 12. 	The SAC sufficiently alleges that Wings
defrauded or misled consumers under the MCFA by misrepresenting its fee practices.
Gahm alleges the Opt-in Form failed to define “non-sufficient funds” or to clarify whether
an overdraft is created when the actual balance or the available balance is overdrawn.
The meaning of non-sufficient funds is further obscured by the fact that Wings’ website
page explained that “Overdraft Protection Plus is designed to cover the payment of
checks and ACH debits, even when [the customer’s] current balance is insufficient” and
that customers “can opt in to have debit card transactions and ATM withdrawals
covered.” (SAC, Ex. G.) Again, the website makes no reference as to whether “current
balance” means actual or available balance. The SAC also alleges the Opt-in Form fails to
explain when the overdraft determination is made—at authorization or settlement.
Taken together, the SAC makes clear that a customer, after reading the Opt-in Form, could
unexpectedly be charged an overdraft fee even when the account contains sufficient
funds at the time of authorization.
In addition to the Opt-in Form, the A&D Form is also sufficiently ambiguous to state
an MCFA claim. 	For instance, the A&D Form initially states that the customer grants
Wings permission “to pay or authorize transactions against non-sufficient funds up to
your approved limit.” (SAC, Ex. F (emphasis added).) It then provides that “Wings is not
obligated to pay any item presented for payment if [the customer’s] account does not
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contain sufficient collected funds.” (Id. (emphasis added).) The A&D Form then proceeds
to discuss and define the “actual balance” and “available balance.” (Id.) In light of the
A&D’s shifting terminology, Gahm plausibly alleges that the A&D Form is ambiguous as to
how Wings determines when overdrafts will be assessed.
Given the ambiguities presented in the Opt-in Form and the A&D Form, the Court
concludes that Gahm has pled sufficient factual allegations to state an MCFA claim under
Rule 12. 	The Court also concludes that Gahm has alleged her MCFA claim with the
requisite particularity under Rule 9(b). Gahm adequately specifies who committed the
alleged fraudulent or deceptive practice, what the practice entailed, how it was executed,
where it took place, and when it occurred. Accordingly, the Court will deny Wings’ motion
to dismiss the MCFA claim.
CONCLUSION
Gahm brings claims under (1) the EFTA and Regulation E and (2) the MCFA. Wings
moves the Court to dismiss Gahm’s Second Amended Complaint under Rule 12(b)(6) for
failure to state a claim. The Court will grant the motion in part and deny it in part. The
Court will grant Wings’ motion in part because Gahm’s EFTA and Regulation E claim is
time barred to the extent the claim relates to overdraft charges assessed before January
30, 2022. The Court will deny Wings’ motion with respect to EFTA claims assessed on or
after January 31, 2022, because these claims are not time-barred, and Gahm plausibly
alleges a Regulation E violation. Finally, the Court will deny Wings’ motion as to the MCFA
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claim because Gahm plausibly alleges fraudulent, misleading, or deceptive business
practices, and she does so with the required particularity.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant Wings Financial Credit Union’s Motion to Dismiss
(Docket No [4]) is GRANTED in part and DENIED in part, as follows:
1. 	With respect to Count 1, Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq.
and Regulation E, 12 C.F.R. § 1005 et seq.., the Motion is GRANTED to the
extent Count 1 is based on overdraft fees charged before January 30, 2022, but
DENIED in all other respects.
2. 	With respect to Count 2, Minnesota Consumer Fraud Act, Minn. Stat. § 325F.68
et seq., the Motion is DENIED.
DATED: March 31, 2026 	_____/s/ John R. Tunheim_____
at Minneapolis, Minnesota. 	JOHN R. TUNHEIM
United States District Judge
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