§ 4010. — Civil liability.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 12USC4010]
TITLE 12--BANKS AND BANKING
CHAPTER 41--EXPEDITED FUNDS AVAILABILITY
Sec. 4010. Civil liability
(a) Civil liability
Except as otherwise provided in this section, any depository
institution which fails to comply with any requirement imposed under
this chapter or any regulation prescribed under this chapter with
respect to any person other than another depository institution is
liable to such person in an amount equal to the sum of--
(1) any actual damage sustained by such person as a result of
the failure;
(2)(A) in the case of an individual action, such additional
amount as the court may allow, except that the liability under this
subparagraph shall not be less than $100 nor greater than $1,000; or
(B) in the case of a class action, such amount as the court may
allow, except that--
(i) as to each member of the class, no minimum recovery
shall be applicable; and
(ii) the total recovery under this subparagraph in any class
action or series of class actions arising out of the same
failure to comply by the same depository institution shall not
be more than the lesser of $500,000 or 1 percent of the net
worth of the depository institution involved; and
(3) in the case of any successful action to enforce the
foregoing liability, the costs of the action, together with a
reasonable attorney's fee as determined by the court.
(b) Class action awards
In determining the amount of any award in any class action, the
court shall consider, among other relevant factors--
(1) the amount of any actual damages awarded;
(2) the frequency and persistence of failures of compliance;
(3) the resources of the depository institution;
(4) the number of persons adversely affected; and
(5) the extent to which the failure of compliance was
intentional.
(c) Bona fide errors
(1) General rule
A depository institution may not be held liable in any action
brought under this section for a violation of this chapter if the
depository institution demonstrates by a preponderance of the
evidence that the violation was not intentional and resulted from a
bona fide error, notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
(2) Examples
Examples of a bona fide error include clerical, calculation,
computer malfunction and programming, and printing errors, except
that an error of legal judgment with respect to a depository
institution's obligation under this chapter is not a bona fide
error.
(d) Jurisdiction
Any action under this section may be brought in any United States
district court, or in any other court of competent jurisdiction, within
one year after the date of the occurrence of the violation involved.
(e) Reliance on Board rulings
No provision of this section imposing any liability shall apply to
any act done or omitted in good faith in conformity with any rule,
regulation, or interpretation thereof by the Board of Governors of the
Federal Reserve System, notwithstanding the fact that after such act or
omission has occurred, such rule, regulation, or interpretation is
amended, rescinded, or determined by judicial or other authority to be
invalid for any reason.
(f) Authority to establish rules regarding losses and liability among
depository institutions
The Board is authorized to impose on or allocate among depository
institutions the risks of loss and liability in connection with any
aspect of the payment system, including the receipt, payment,
collection, or clearing of checks, and any related function of the
payment system with respect to checks. Liability under this subsection
shall not exceed the amount of the check giving rise to the loss or
liability, and, where there is bad faith, other damages, if any,
suffered as a proximate consequence of any act or omission giving rise
to the loss or liability.
(Pub. L. 100-86, title VI, Sec. 611, Aug. 10, 1987, 101 Stat. 650.)
Effective Date
Section effective Sept. 1, 1988, see section 613(b) of Pub. L. 100-
86, set out as a note under section 4001 of this title.