Deborah J. Barnes v. Fleet National Bank, N.a.; Fleetboston Financial Corporation

United States Court of Appeals
For the First Circuit
No. 03-1027
DEBORAH J. BARNES,
Plaintiff, Appellant,
v.
FLEET NATIONAL BANK, N.A.;
FLEETBOSTON FINANCIAL CORPORATION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Yvonne W. Rosemarin, with whom Daniel A. Edelman, Cathleen M.
Combs, James O. Latturner, Anne M. Burton, and Edelman, Combs &
Latturner were on brief, for appellant.
Joseph L. Kociubes, with whom Rheba Rutkowski, Terry Klein,
Alan S. Kaplinsky, and Jon E. Hayden were on brief, for appellees.
June 2, 2004

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LIPEZ, Circuit Judge. In this putative class action,
Appellant Deborah Barnes alleges that Fleet Bank did not properly
disclose the effective date of changes to fees and minimum balance
requirements on her bank accounts, and engaged in other inaccurate
or misleading announcements of such changes. She argues that these
failures constitute violations of the Truth in Savings Act, 12
U.S.C. §§ 4301-4313, its implementing regulations, 12 C.F.R. § 230,
and the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch.
93A, § 2. The district court granted summary judgment for Fleet.
For the reasons given below, we reverse and remand for further
proceedings.
I.
We set forth the undisputed facts from the summary
judgment record or, where appropriate, note the contentions of the
parties about those facts. In October 1999, Fleet National Bank
acquired another commercial bank, BankBoston. As a result of the
merger, Fleet had to convert the accounts of BankBoston customers
into Fleet accounts. According to Fleet, it tried to match each
BankBoston account with the Fleet account that provided the most
similar terms (e.g., minimum balances and fees). Because the two
banks had offered different types of accounts with different terms,
these matches were not exact. Thus, at least some BankBoston
customers experienced changes in account terms as a result of the
merger with Fleet.

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1Fleet sent similar packages to more than one million
BankBoston customers.
-3-
Prior to the merger, Deborah Barnes was a customer of
BankBoston, where she maintained "Premium Value" checking, reserve
credit, and money market savings accounts. On March 28, 2000,
Fleet sent a "Change in Terms" package to Barnes describing
upcoming changes to her accounts.1 Barnes received the package on
April 6, 2000. It contained a welcome letter, a personalized
"summary of accounts" letter, and a variety of other information
about Fleet banking products and services. The welcome letter,
dated "March, 2000," stated:
I'm writing to tell you about the transition
of your BankBoston deposit accounts to Fleet
accounts on May 12. . . . On May 12, 2000,
your accounts will transfer to the Fleet
accounts that are most similar to your
existing BankBoston accounts. Everything will
happen automatically, so you won't have to do
a thing.
Bullet points on the side of the letter listed a phone number that
customers could call with questions about the transition, and
restated the points in the letter that "[y]our deposit accounts
will become Fleet accounts on May 12, 2000" and that "[t]here is
nothing you need to do. We will take care of everything to assure
a smooth transition."
The summary of accounts letter provided more specific
information about Barnes's accounts. It stated:

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Changes in monthly fees and balance
requirements, if any, will take effect on
April 12, 2000, and will be reflected on your
first statement following May 12, 2000. All
other account changes and enhancements will
take effect on May 12, 2000.
The letter went on to state that Barnes's "Premium Value" accounts
would be converted into "FleetOne Gold" accounts. Despite Fleet's
statement that it would convert Barnes's BankBoston accounts into
the Fleet accounts it deemed to be most similar, the terms of the
new "FleetOne Gold" accounts differed significantly from those of
Barnes's existing BankBoston accounts. While BankBoston had
required Barnes to maintain only a $5,000 combined minimum balance
to avoid a $10 fee, the new Fleet accounts required a combined
minimum average monthly balance of $10,000 to avoid an $18 monthly
fee.
Based on the statement in the summary of accounts letter
that "[c]hanges in monthly fees and balance requirements, if any,
will take effect on April 12, 2000," Barnes believed that she had
only until April 12--six days after she received the "Change in
Terms" package from Fleet--before Fleet would begin to calculate
the average balance on her new checking account. Thus, she
believed that if she wanted to avoid the $18 monthly fee, she would
have to raise her average balance to more than $10,000 starting on
April 12. Rather than increase her balance, Barnes acted quickly
to change her existing BankBoston accounts before what she believed

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was an April 12 deadline. Within a week of receiving the "Change
in Terms" package, Barnes converted her Premium Value Checking
account to a Classic Value account, which required only a $2,500
minimum balance to avoid monthly fees. According to Fleet, this
Classic Value account was most similar to the Fleet Classic
account, which required only a $4,000 minimum average monthly
balance to avoid fees. When the conversion from BankBoston to
Fleet finally took place, Barnes's Classic Value account became a
Fleet Classic account.
Fleet contends that Barnes misinterpreted the summary of
accounts letter and that she did not have to change her BankBoston
accounts before April 12 to avoid paying fees on her new Fleet
accounts. According to Fleet, it had planned to charge new monthly
service fees on each customer's first statement after the May 12
conversion. Barnes's first statement after May 12 was scheduled to
be mailed on May 27. That statement would have reflected for the
first time charges for any new fees based on her monthly balance.
Because Fleet calculates average balances retrospectively for one
month periods, the May 27 statement would have reflected monthly
service charges based on the average balance in Barnes's accounts
during the period from April 28 to May 26. Thus, according to
Fleet, Barnes had until April 28, not April 12, to make any changes
necessary to avoid paying monthly fees on her Fleet checking
account.

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2Fleet included similar information in Barnes's May 27
statement, stating that no fees were charged for the statement
period of April 28 to May 27.
3Subsequently, during the billing period of July 29, 2000, to
August 29, 2000, Barnes incurred fees for failing to maintain the
required minimum average balance. On her August 29 statement,
Fleet informed Barnes that she would be charged fees on her next
statement. That was the first time that Barnes was charged any
additional fees after the merger between Fleet and BankBoston.
-6-
Barnes, however, was not the only customer confused by
Fleet's communication to BankBoston customers, and Fleet attempted
to remedy customer concerns by delaying the imposition of new fees.
In a "postcard" dated May 8, 2000, Fleet notified BankBoston
customers that it would not impose monthly service charges for the
first billing period following the May 12 conversion.2 It stated:
Recently, we sent you information about the
transition of your BankBoston accounts to
Fleet, which will take effect on May 12, 2000.
We recognize that any changes in your banking
services may feel unsettling. That is why we
are pleased to announce that regular monthly
service fees will not be charged on your first
Fleet statement following the transition of
your accounts.
Because of this postponement of new fees, Barnes would not have
been charged any fees even if she had failed to comply with Fleet's
minimum balance requirements during the period of April 28 to May
26. Thus, after the additional delay, Barnes did not have to
maintain a minimum balance until the period of May 27 to June 28.3
Barnes brought a class action complaint against Fleet,
alleging that Fleet had violated the Truth in Savings Act (TISA),

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4The provision of TISA granting a private right of action, 12
U.S.C. § 4310, was repealed on September 30, 2001. See Act of
Sept. 30, 1996, Pub. L. No. 104-208, § 2604(a), 110 Stat. 3009,
3009-470 (1996) ("Effective as of the end of the 5-year period
beginning on the date of the enactment of this Act, section 271 of
the Truth in Savings Act (12 U.S.C. § 4310) is repealed.").
However, the parties do not dispute that this suit, which was filed
prior to September 30, 2001, survives. See Schnall v. Amboy Nat'l
Bank, 279 F.3d 205, 215 & n.2 (3d Cir. 2002) (holding that private
actions filed prior to September 30, 2001, survive the repeal of §
4310).
512 U.S.C. § 4305(c) states:
Distribution of notice of certain changes
If--
(1) any change is made in any term or condition which is
required to be disclosed in the schedule required under
section 4303(a) of this title [which includes "fees,
charges, interest rates, terms and conditions"] with
respect to any account; and
(2) the change may reduce the yield or adversely affect
any holder of the account,
all account holders who may be affected by such change shall be
notified and provided with a description of the change by mail at
least 30 days before the change takes effect.
612 C.F.R. § 230.5(a)(1) states:
A depository institution shall give advance notice to affected
consumers of any change in a term required to be disclosed under §
230.4(b) of this part [including information about minimum balances
and fees] if the change may reduce the annual percentage yield or
adversely affect the consumer. The notice shall include the
effective date of the change. The notice shall be mailed or
delivered at least 30 calendar days before the effective date of
the change.
-7-
12 U.S.C. §§ 4301-4313, and Mass. Gen. Laws ch. 93A.4
Specifically, Barnes argued that Fleet's "Change in Terms" package
did not satisfy 12 U.S.C. § 4305(c)5 and 12 C.F.R. § 230.5(a)(1)6

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712 U.S.C. § 4302(e) states:
No depository institution or deposit broker shall make any
advertisement, announcement, or solicitation relating to a deposit
account that is inaccurate or misleading or that misrepresents its
deposit contracts.
8Mass. Gen. Laws. ch. 93A, § 2(a) states:
Unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are hereby
declared unlawful.
9Thus, the class certification issue was never resolved by the
district court and is not at issue in this appeal.
-8-
because it did not properly disclose the effective date of changes
to Barnes's accounts. She further argued that the "Change in
Terms" package was misleading in violation of 12 U.S.C. § 4302(e).7
Finally, she argued that these violations of TISA constituted a per
se violation of Chapter 93A, § 2(a).8
Barnes filed a motion for class certification, and Fleet
responded with a motion to stay certification. After an initial
scheduling conference, the district court entered an order staying
Barnes's motion for class certification in anticipation of summary
judgment filings.9 Both parties then moved for summary judgment on
the TISA and 93A claims.
The district court held that "the second, more detailed
letter of March 28, 2000, [the personalized summary of accounts
letter] satisfied Fleet's TISA disclosure obligations." The court

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recognized that "[t]he letter seems initially to announce an
effective date of April 12." Nevertheless, it reasoned that
closer attention to the letter reveals that
the effective date conveyed in the letters,
was the beginning of each recipient's monthly
statement period that ended after May 12. In
Barnes's case, for example, the effective date
was April 28: Barnes's first statement after
the May 12 cutoff would issue on May 26. As
Fleet explains in its papers, the changes
would first apply in the statement period
preceding that date, to be reflected in that
statement. April 28 was the first date on
which the changes to account terms would apply
to Barnes.
The district court then concluded that Fleet's correspondence to
Barnes sufficiently announced that April 28 was the effective date
of changes to Barnes's accounts.
It is my view that, while less than ideal, the
language of the March 28 letter adequately
conveys a "date" of changes to Barnes'
accounts. It is indeed problematic that the
letter states that "[c]hanges in monthly fees
and balance requirements, if any, will take
effect on April 12, 2000." Standing alone,
that clause announces an inaccurate effective
date. But the context is curative: the second
clause in the sentence explains that the
pertinent changes will be reflected on the
first statement the client receives after May
12. . . . The letter instructs that Fleet will
review account balances and assess fees on a
monthly basis, and that the first statement
received after May 12 will reflect the
implementation of these changes. It logically
follows that the effective date of the changes
predates that statement by one month. Its
approach could have been more straightforward,
but Fleet provided the information from which
its BankBoston customers could ascertain the
effective dates it intended for them.

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The district court thus held that Fleet's notice of the effective
date of changes to Barnes's accounts complied with the requirements
of TISA and 12 C.F.R. § 230 (Regulation DD).
The court then addressed Barnes's contention that Fleet's
correspondence was misleading in violation of 12 U.S.C. § 4302(e).
In the court's view, Fleet's announcement was not misleading when
it stated that "on May 12, 2000, your accounts will transfer to the
Fleet accounts that are most similar to your existing BankBoston
accounts. Everything will happen automatically, so you won't have
to do a thing." In response to Barnes's argument that the Fleet
announcement was misleading because she would have been subject to
higher fees and higher monthly balance requirements after the
transfer if she had taken no action, the court reasoned that
Fleet's letter served only to notify Barnes that the transfer of
her accounts would happen automatically, without any assertion that
her monthly fees would remain the same.
The district court also rejected Barnes's argument that
the statement "[c]hanges in monthly fees and balance requirements,
if any, will take effect on April 12, 2000, and will be reflected
on your first statement following May 12, 2000" was misleading. It
stated that "Barnes offers no evidence to suggest that, at the time
it made the statement, Fleet intended some effective date other
than what it described" (emphasis in original). The court focused
on Fleet's subsequent decision to extend the time period in which

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10940 C.M.R. § 3.16 provides:
Without limiting the scope of any other rule, regulation or
statute, an act or practice is in violation of Mass. Gen. Laws ch.
93A, § 2 if:
. . .
(4) It violates the Federal Trade Commission Act, the Federal
Consumer Credit Protection Act or other Federal consumer
protection statutes within the purview of Mass. Gen. Laws ch.
93A, § 2.
-11-
it would not charge new fees, stating that this extension of time
conferred a benefit on Barnes and could not render misleading the
preceding statement outlining an earlier effective date.
Presumably because it had already determined that the summary of
accounts letter gave adequate notice of the intended effective date
of April 28, the court did not address whether the summary of
accounts letter misled Barnes about the effective date that Fleet
had originally intended to identify.
Having found no violation of TISA, the court addressed
Barnes's claim under Mass. Gen. Laws ch. 93A. The court stated
that because TISA is a consumer protection statute, violation of
TISA would be a per se violation of Chapter 93A pursuant to 940
C.M.R. § 3.16 (4).10 Nevertheless, the court stated that "Barnes'
Chapter 93A claim cannot ride on the coattails of her TISA claim
because Barnes did not prevail on her TISA claim." Thus, because
the court had found no violation of TISA, it held that Barnes had
not established a per se violation of Chapter 93A.

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The district court denied Barnes's motion for summary
judgment and granted Fleet's motion for summary judgment. Barnes
now appeals, arguing that the court erred in finding no violation
of TISA and no liability under Chapter 93A.
II.
We review the district court's ruling on cross-motions
for summary judgment de novo. Bienkowski v. Northeastern Univ.,
285 F.3d 138, 140 (1st Cir. 2002). "Cross motions simply require
us to determine whether either of the parties deserves judgment as
a matter of law on facts that are not disputed." Wightman v.
Springfield Terminal Ry., 100 F.3d 228, 230 (1st Cir. 1996).
Congress enacted TISA "to require the clear and uniform
disclosure of . . . the fees that are assessed against deposit
accounts, so that consumers can make a meaningful comparison
between the competing claims of depository institutions." 12
U.S.C. § 4301(b). Pursuant to 12 U.S.C. § 4308, the Federal
Reserve Board issued Regulation DD, 12 C.F.R. § 230, to implement
TISA. TISA's private action provision, 12 U.S.C. § 4310, imposes
liability on "[a]ny depository institution which fails to comply
with any requirement imposed under [TISA] or any regulation
prescribed under [TISA]." 12 U.S.C. § 4310(a) (repealed 2001).
Thus a banking institution may be liable either for a violation of
TISA itself or for a violation of Regulation DD.

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We construe consumer protection statutes liberally in
favor of consumers. See Bizier v. Globe Fin. Servs., Inc., 654
F.2d 1, 2-3 (1st Cir. 1981) (construing the Truth in Lending Act
broadly to protect bank customers). When construing a similar
civil suit provision of the Truth in Lending Act (TILA), 15 U.S.C.
§ 1640, we held that recovery was available even to a plaintiff who
did not show actual damages. See Bizier, 654 F.2d at 2-3 ("[T]he
act provides two distinct remedies for violation of 'any
requirement' it imposes: any actual damages caused, and, whether or
not any actual damages were suffered, a recovery of up to $1000
plus attorney's fees for any individual transaction."); see also
Smith v. Cash Store Mgmt., 195 F.3d 325, 328 (7th Cir. 1999)
("Subject to narrow exceptions, 'hypertechnicality reigns' in the
application of TILA."); Purtle v. Eldridge Auto Sales, Inc., 91
F.3d 797, 801 (6th Cir. 1996) (holding that TILA imposes strict
liability); Grant v. Imperial Motors, 539 F.2d 506, 510 (5th Cir.
1976) ("[O]nce the court finds a violation [of TILA], no matter how
technical, it has no discretion with respect to the imposition of
liability."). Section 4310 closely tracks the language of TILA's
civil action provision; neither TISA nor Regulation DD requires a
plaintiff to show financial injury or reliance to procure damages.
See Schnall v. Amboy Nat'l Bank, 279 F.3d 205, 217-18 (3d Cir.
2002) (noting the similarity in language between the civil action
provision in TILA and § 4310, and concluding that "Congress

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11Barnes does not claim that she suffered any specific
financial loss. Rather, she claims only statutory damages. In an
individual action for violation of TISA, a plaintiff may receive
statutory damages of between $100 and $1000. 12 U.S.C. §
4310(a)(2)(A)(repealed 2001). In a class action, TISA caps
statutory damages at the lesser of $500,000 or one percent of the
net worth of the depository institution. 12 U.S.C. §
4310(a)(2)(B)(ii)(repealed 2001). Under Chapter 93A, damages in an
individual action are "actual damages or twenty-five dollars,
whichever is greater." Mass. Gen. L. ch. 93A, § 9(3). In a class
action where the statutory award of twenty-five dollars applies,
the court multiplies the award by the number of class members. See
Leardi v. Brown, 394 Mass. 151, 163-64 (1985). Finally, both TISA
and Chapter 93A also provide for the award of a reasonable
attorney's fee. 12 U.S.C. § 4310(a)(3)(repealed 2001); Mass. Gen.
L. ch. 93A, § 9(4).
-14-
intended [§ 4310] to have the same meaning that courts had given
TILA"). Thus, Fleet is liable for statutory damages for any
violation of TISA or Regulation DD, regardless of whether Barnes
suffered any harm as a result of that violation.11 See Schnall, 279
F.3d at 215-16 (imposing liability for violation of disclosure
requirements under TISA or Regulation DD regardless of harm to
plaintiff); Hale v. Citibank, N.A., 198 F.R.D. 606, 607 (S.D.N.Y.
2001)(same).
TISA requires banks to notify customers by mail at least
30 days prior to any changes in fees, service charges, or minimum
balances. 12 U.S.C. § 4305(c). Regulation DD requires that
"notice shall include the effective date of the change" and that
"notice shall be mailed or delivered at least 30 calendar days
before the effective date of the change." 12 C.F.R. § 230.5(a)(1).
The disclosure of the exact effective date of changes is important:

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12These requirements apply to "disclosures required by [12
C.F.R.] §§ 230.4 through 230.6 and § 230.10." 12 C.F.R. §
230.3(a). Thus, this standard applies to disclosures made pursuant
to 12 C.F.R. § 230.5 regarding the effective date of changes to a
consumer's account terms.
-15-
it allows consumers to make informed choices about when and whether
to shift funds to take advantage of the best possible terms offered
by the banking market. The failure to disclose an effective date
leaves consumers without any firm time line for making their
financial decisions. To ensure that this disclosure actually
informs consumer decisions, it must be made
clearly and conspicuously, in writing, and in
a form the consumer may keep. Disclosures for
each account offered by an institution may be
presented separately or combined with
disclosures for the institution's other
accounts, as long as it is clear which
disclosures are applicable to the consumer's
account.
12 C.F.R. § 230.3(a).12 Thus, to comply with TISA and Regulation
DD, Fleet had to "clearly and conspicuously" disclose to Barnes the
changes to her account, and the effective date of those changes, at
least 30 days prior to the effective date.
Neither TISA nor Regulation DD defines the term
"effective date" or requires that it be presented in a specific and
uniform manner. The commentary to Regulation DD states that "[a]n
example of language for disclosing the effective date of a change
is 'As of November 21, 1994.'" 12 C.F.R. cmt. § 230.5(a)(1) n.2.
Case law, however, suggests that banks do not have to state the

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13Regulation Z, issued pursuant to TILA, similarly requires
that disclosure of credit terms must be made "clearly and
conspicuously in writing, in a form that the consumer may keep."
12 C.F.R. § 226.5(a)(1). Several courts have found violations of
TILA's "clearly and conspicuously" requirement. See, e.g., Rossman
v. Fleet Bank Nat'l Ass'n, 280 F.3d 384, 394 (3d Cir. 2002)
(holding that "the statement 'no annual fee' is not a clear and
conspicuous disclosure of a set of contract terms that permit the
imposition of an annual fee within a year"); Smith v. Chapman, 614
F.2d 968, 975 (5th Cir. 1980) (holding that disclosure of interest
rate for delinquency charge was not "clear" within the meaning of
Regulation Z when, inter alia, the contract did not explicitly
state the interest rate but rather incorporated by reference a
maximum possible rate printed on the back side of the contract);
see also Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380
(11th Cir. 1984) (holding that failure to print the term "annual
percentage rate" more conspicuously than other required terminology
constitutes a violation of TILA.)
-16-
effective date as a specific calendar date, but rather may disclose
the effective date by reference to other events. See, e.g.,
Eovaldi v. First Nat'l Bank of Chicago, 596 F.2d 188 (7th Cir.
1979) (holding that an explanatory letter and a chart directing the
customer to his new billing date was "clear and conspicuous" in
compliance with Regulation Z, issued pursuant to TILA). Regardless
of whether a bank chooses to disclose the effective date directly
or by reference, that disclosure must be made "clearly and
conspicuously" to comply with 12 C.F.R. § 230.3(a).13
III.
The summary of accounts letter that Fleet mailed to
Barnes clearly stated that "[c]hanges in monthly fees and balance
requirements, if any, will take effect on April 12, 2000, and will
be reflected on your first statement following May 12, 2000"

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(emphasis added). Nevertheless, Fleet contends that it intended to
identify April 28, 2000, as the "effective date" of changes to
Barnes's accounts because that was the first day on which Barnes
would have had to begin meeting Fleet's average minimum balance
requirements to avoid incurring fees on her "first statement
following May 12, 2000." Because Fleet mailed its welcome package
announcing the effective date of changes on March 28, Fleet asserts
that it complied with TISA's requirement that it mail notification
of account changes at least 30 days prior to the April 28 effective
date.
Barnes claims, however, that the substance of the notice
did not comply with TISA's disclosure requirements because it
failed to "clearly and conspicuously" disclose that April 28 was
the effective date of changes to her account. In response, Fleet
argues that Barnes should have made the following extrapolation
from the statement in the summary of accounts letter that changes
would "be reflected on your first statement following May 12,
2000": (1) her "first statement following May 12" would be on May
27; (2) the May 27 statement would cover account activity during
the period from April 28 until May 26; (3) therefore, the effective
date of any changes would be April 28. Fleet apparently expected
Barnes to undertake this three part calculation and ignore the
statement in the summary of accounts letter that changes "will take
effect on April 12, 2000."

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This convoluted method of disclosure does not even come
close to satisfying the "clearly and conspicuously" standard.
First, nowhere does the summary of accounts letter identify April
28 as the intended effective date of changes to Barnes's accounts.
Rather, the letter provided that changes "will take effect on April
12, 2000," a clear statement that Fleet apparently expected its
customers to ignore. A disclosure cannot satisfy the requirements
of Regulation DD when that disclosure "clearly and conspicuously"
states an incorrect effective date.
Second, Fleet's attempt to disclose the true effective
date by reference fails because it made unwarranted assumptions
about BankBoston customers' familiarity with Fleet billing
practices. The summary of accounts letter did not explain Fleet's
backward-looking billing system, whereby fees are charged only for
the 30 days preceding the statement date. Rather, it stated only
that new fees would be "reflected" on the "first statement
following May 12." This partial information could easily have led
a consumer to believe, as Barnes apparently did, that Fleet would
begin calculating minimum average balances starting on April 12,
but that it would not bill any related fees until the first
statement following May 12. Nothing in the letter indicated that
the first statement following May 12 would necessarily only include
fees based on the average minimum balance of the previous 30 days.
Because Fleet did not explain this billing system, its statement

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that fees would be charged on the "first statement following May
12" was not adequate to notify Barnes that the effective date of
changes to her accounts was April 28 rather than April 12.
Finally, Fleet's general disclosure language did not
clearly differentiate between the effective date of changes to
Barnes's account and the effective date of changes to other
accounts. See 12 C.F.R. § 230.3(a) (stating that disclosures "may
be presented separately or combined with disclosures for the
institutions's other accounts, as long as it is clear which
disclosures are applicable to the consumer's account"). While
April 12 could have been the effective date for some accounts--
those that had a statement cycle ending May 12--Fleet's letter did
not clearly indicate that the effective date depended on the
statement cycle. Rather, as stated above, Fleet's attempted
disclosure unreasonably assumed that consumers would infer the
different effective dates based on knowledge of Fleet's backward-
looking billing cycle.
The May 8 postcard does not remedy Fleet's failure to
comply with Regulation DD in its initial disclosure. Even if we
interpret the May 8 postcard as notice of a new effective date--in
Barnes's case, May 27--it does not fulfill TISA's disclosure
requirements. Fleet did not send the May 8 postcard 30 days prior
to the new effective date of May 27, and the postcard did not meet
the requirement that "[t]he notice shall include the effective date

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of the change." 12 C.F.R. § 230.5(a)(1). While it stated that
"regular monthly service fees will not be charged on your first
Fleet statement following the transition of your accounts," it did
not identify the date on which new fees and balance requirements
would go into effect. Without this information, the May 8 postcard
cannot serve as proper disclosure in compliance with TISA and
Regulation DD.
In short, because neither the March 28 letter nor the May
8 postcard "clearly and conspicuously" stated either the original
effective date (April 28) or the new effective date (May 27), Fleet
did not comply with the disclosure requirements of 12 C.F.R. §
230.3(a) and is therefore liable to Barnes pursuant to 12 U.S.C. §
4310.
IV.
Appellant has argued that Fleet also violated 12 U.S.C.
§ 4302(e), which states:
No depository institution or deposit broker
shall make any advertisement, announcement, or
solicitation relating to a deposit account
that is inaccurate or misleading or that
misrepresents its deposit contracts.
There is no case law interpreting this provision of TISA, and there
is no similar provision in TILA that explicitly recognizes a
violation for misleading statements. However, even without an
explicit statutory provision, courts have interpreted TILA to
prohibit misleading statements, holding that "a misleading

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-21-
disclosure is as much a violation of TILA as a failure to disclose
at all." Smith v. Chapman, 614 F.2d 968, 977 (5th Cir. 1980)
(finding a violation of TILA in part because the failure to list
the sales tax figure in the space allotted for that figure on the
contract form was misleading). See also Roberts v. Fleet Bank, 342
F.3d 260, 269 (3d Cir. 2003) (holding that, where an annual
percentage rate was adjustable at any time but was advertised as a
"fixed rate" that "won't go up in a few short months," a question
of fact existed as to whether the statements were misleading in
violation of TILA); Rossman v. Fleet Bank Nat'l Ass'n, 280 F.3d
384, 394 (3d Cir. 2002) (holding that the statement "no annual fee"
is misleading in violation of TILA if the contract terms allow for
imposition of an annual fee within one year); Smith v. No. 2
Galesburg Crown Fin. Corp., 615 F.2d 407, 420 (7th Cir. 1980)
(finding a violation of TILA where a provision disclosing a
creditor's security interest in after-acquired property was so
poorly drafted that it was misleading).
Barnes contends that Fleet's correspondence was an
"announcement" and thus is covered by 12 U.S.C. § 4302(e). Barnes
also contends that several statements in Fleet's "announcement"
were both inaccurate and misleading. First, she argues that the
statement that changes "will take effect on April 12, 2000" was
inaccurate and misleading because, in fact, no changes to Barnes's
accounts occurred on April 12, 2000. Second, she argues that the

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statements telling customers to "do nothing" and that their
accounts would be converted into "the Fleet accounts that are most
similar to your BankBoston accounts" were inaccurate and misleading
because, if Barnes had done nothing, the conversion would have left
Barnes with accounts that required higher minimum balances and that
charged much higher fees.
We agree with Barnes, and with the district court, that
Fleet's mailing was an "announcement" within the meaning of 12
U.S.C. § 4302(e). Although TISA does not define "announcement,"
Fleet's "Change in Terms" package giving formal notice of changes
to account terms must fall within any reasonable definition of the
term.
Contrary to the district court, we also agree with Barnes
that Fleet's "Change in Terms" package did contain misleading and
inaccurate statements. The statement in the summary of accounts
letter that changes "will take effect on April 12, 2000" was flatly
incorrect. No changes to Barnes's accounts occurred on April 12,
2000, nor did Fleet intend for any changes to occur on that date.
Rather, the intended effective date of changes to Barnes's accounts
was April 28. Indeed, Barnes was actually misled by the false
identification of April 12 as the effective date and she acted
quickly to change the terms of her BankBoston accounts prior to
that incorrect deadline. Her protective actions only confirm that
Fleet's notice of the effective date was inaccurate and misleading.

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The context of Fleet's statement did not properly qualify
the statement that changes "will take effect on April 12, 2000."
As stated above, customers who wanted to determine the correct
effective date were required to calculate backwards from their
first billing statement after May 12. The "Change in Terms"
package did not notify customers that the first billing statement
after May 12 would contain charges only for the previous 30 days,
or that they should ignore the plain statement that changes "will
take effect on April 12, 2000" in favor of a calculation based on
their own billing cycle. In the absence of such clarifying
instructions, there was a high likelihood that this statement would
lead customers to reach the wrong conclusion about the effective
date of changes to their accounts.
Moreover, Fleet's "Change in Terms" package contained
statements that "[t]here is nothing you need to do" and "[y]our
accounts will transfer to the Fleet accounts that are most similar
to your existing BankBoston accounts." Although these statements
may not be inaccurate in themselves, the "Change in Terms" package
was deceptive in its unmistakable implication that the conversion
from BankBoston to Fleet accounts would have little or no effect on
account terms. If Barnes had in fact done nothing, as Fleet's
announcement suggested she could do, her BankBoston accounts would
have been transferred to Fleet accounts that required twice the
average minimum balance and that imposed nearly twice the amount of

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fees for falling below that average minimum balance. For consumers
such as Barnes, concerned about fees and balance requirements, the
consequences of inaction would have been significant and unwelcome.
In summary, the above statements by Fleet in its "Change
in Terms" package were misleading. The package indicated that
changes "will take effect on April 12, 2000" when, in Barnes's
case, no change took effect on that date. The package further told
customers that "[t]here is nothing you need to do" when, in fact,
a consumer in Barnes's position who did nothing would have faced a
significantly higher minimum balance requirement and significantly
higher fees. In total, these statements misled Barnes about the
effective date of changes to her accounts, the result of those
changes, and the actions she needed to take to ensure that her
minimum balance and fee requirements remained similar to what they
had been with BankBoston. Thus, the "Change in Terms" package was
misleading in violation of 12 U.S.C. § 4302(e).
V.
Massachusetts law prohibits "unfair or deceptive acts or
practices in the conduct of any trade or commerce." Mass. Gen.
Laws ch. 93A, § 2(a). The Attorney General of Massachusetts is
authorized to issue regulations to enforce this prohibition. Mass.
Gen. Laws ch. 93A, § 2(c); see also Purity Supreme, Inc., v.
Attorney Gen., 407 N.E.2d 297, 299 (1980) (holding that such
regulations are "valid exercise[s] of the Attorney General's power

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under G.L. c. 93A, § 2(c), with the force of law normally accorded
to an agency's regulation"). The regulation relevant in this case,
940 C.M.R. 3.16(4), states that violation of "Federal consumer
protection statutes" constitutes a per se violation of Chapter 93A,
§ 2(a). See, e.g., Dean v. Compass Receivables Mgmt. Corp., 148
F.Supp.2d 116, 119 (D. Mass. 2001) (citing 940 C.M.R. 3.16(4) for
the proposition that "regulations issued by the Massachusetts
Attorney General provide that violations of the [Fair Debt
Collection Practices Act] are per se violations of M.G.L. c. 93A,
§ 2"); Martin v. Sands, 62 F.Supp.2d 196, 201 (D. Mass. 1999)
(holding that, pursuant to 940 C.M.R. 3.16(4), violation of the
Fair Debt Collection Practices Act is a per se violation of Mass.
Gen. Laws ch. 93A, § 2); Fidler v. Cent. Coop. Bank (In re Fidler),
210 B.R. 411, 430 (Bankr. D. Mass. 1997) (stating that, pursuant to
940 C.M.R. 3.16(4), a violation of TILA constitutes a per se
violation of M.G.L. c. 93A, § 2).
As stated above, TISA is a consumer protection statute
and therefore is doubtless within the scope of 940 C.M.R. 3.16(4).
See 12 U.S.C. § 4301(a)(listing "the ability of consumers to make
informed decisions regarding deposit accounts" as a reason for
enacting TISA). Thus, because we hold that Fleet violated TISA, we

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14The district court had also concluded that "[s]tate
regulations recognize that a defendant's violation of state law or
federal consumer protection statutes is a per se violation of
Chapter 93A, § 2." However, the district court concluded that
there was no violation of TISA, and hence no violation of Chapter
93A.
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must also hold that Fleet's violation of TISA constitutes a per se
violation of Mass. Gen. Laws ch. 93A, § 2.14
VI.
For the foregoing reasons, we hold that Fleet violated
the requirements of TISA and is therefore liable to Barnes pursuant
to 12 U.S.C. § 4310 and Mass. Gen. Laws ch. 93A, § 2. Therefore,
we VACATE the judgment of the district court, direct entry of
judgment for Barnes on the TISA and Chapter 93A claims, and REMAND
for further proceedings to determine statutory damages and address
Barnes's previously stayed motion for class certification.
So ordered.

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