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. 
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. 
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.

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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),
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
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
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. 
-13-

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
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:
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. 

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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
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.)

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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." 
-18-

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 backwardlooking 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
-20-

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
-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
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.