CHICAGO – A federal judge has cut up much of a man's lawsuit against a fitness club, saying he can't sue the club over unintentional erroneous charges the club later refunded.
U.S. District Judge Robert W. Gettleman on Nov. 14 granted partial summary judgment in favor of defendants Fitness Formula LTD and Lakeview Fitness East LLC, which were accused by plaintiff Mark Wheeler of violating the Electronic Fund Transfer Act (EFTA) when the club allegedly failed to give him advance notice of erroneous charges for membership dues.
Gettleman removed six charges of violations of the EFTA in the partial summary judgment in the defendants' favor, but remaining counts in the case remain to be heard at a hearing set for Thursday, Dec. 6.
The opinion states Wheeler had been a gym member for three years and added his wife to membership by signing a new electronic agreement. The agreement allowed the defendants to withdraw monthly membership fees from the plaintiff’s debit card. The fees were $79.95 for Wheeler and $55 for his spouse, $134.95 in total.
The next month, the plaintiff’s card was charged these fees but also an added $79.95, which continued for the next five months. The defendants discovered the billing errors and credited the plaintiff’s account for six erroneous charges.
Gettleman noted that language in the EFTA shield defendants from liability if their billing error was unintentional and if procedures had been adapted to reasonably attempt to avoid such errors.
The plaintiff argued the defendants failed to give him advance notice of the billing errors and the bona-fide error defense could only be used by the defendants if they tried to give notice.
Gettleman disagreed, saying the defendants could not give the plaintiff advance notice of charges they had no intention of charging.
“If defendants violated the advance notice requirement as soon as they erroneously charged the plaintiff’s debit card, then preventing the erroneous charge was the only way for them to comply,” Gettleman wrote.
Gettleman added the gym’s accountant had developed a system designed to catch and prevent such errors from happening, but the system was not perfect and, though it caught most mistakes, was vulnerable to human error.
“Assuming for the purposes of the motion the defendants violated the EFTA by failing to give advance notice of varying charge amounts, their violation was unintentional,” Gettleman wrote.
Gettleman dismissed the EFTA violation claims.
Wheeler is represented in the case by attorneys Daniel A. Edelman, Tara Leigh Goodwin and others with the firm of Edelman, Combs, Latturner & Goodwin LLC, of Chicago.
Lakeview East is defended by attorney Isaac J. Colunga and others with the firm of Ice Miller LLP, of Chicago.