Milles et al v. Fifth Third Bank, National Association

Filing 18

OPINION AND ORDER granting in part and denying in part 13 Defendant's Motion to Dismiss Plaintiffs' First Amended Class Action Complaint for Failure to State a Claim. Specifically, the Court dismisses with prejudice Plaintiffs' Breac h of the Implied Covenant of Good Faith and Fair Dealing claim (Count II), Unjust Enrichment claim (Count III), and Illinois Consumer Fraud and Deceptive Business Practices Act claim (Count IV), but only to the extent it alleges that Fifth Third's practice of charging Return Deposit Item fees is unfair pursuant to CFPB Bulletin 2022-06. Signed by Judge Douglas R. Cole on 11/26/24. (sct)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NICOLE M. MILLES, et al.,
Plaintiffs,

Case No. 1:24-cv-186

v.
FIFTH THIRD BANK, NATIONAL
ASSOCIATION,

JUDGE DOUGLAS R. COLE

Defendant.
OPINION AND ORDER
This putative class action stems from Defendant Fifth Third Bank, National
Association’s (Fifth Third) practice of charging customers fees when those customers
deposited bad checks from third parties into their accounts. According to Plaintiffs,
this practice violates the parties’ Deposit Agreements. Fifth Third recently moved to
dismiss this action in its entirety. (Doc. 13). For the reasons provided below, the Court
GRANTS IN PART and DENIES IN PART Fifth Third’s motion.
BACKGROUND 1
Fifth Third, a financial services institution, provides retail banking services to
consumers across various states. (First Am. Compl., Doc. 11 ¶¶ 19, 31, #104, 107). In
connection with receiving those services, consumers execute a “Deposit Agreement”
when they open an account. (Id. ¶ 32, #108). That agreement outlines the contractual
1 As this matter is before the Court on Fifth Third’s motion to dismiss, the Court generally

must accept the well-pleaded allegations in the First Amended Complaint as true. Bassett v.
Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The Court thus relies on
those allegations to recount the case’s background. But the Court reminds the reader that
they are just that—allegations.

rules that govern the deposit accounts. (Id.; Doc. 11-1). Particularly relevant here,
the Deposit Agreement specifies the types of fees Fifth Third may charge consumers
and when it will impose those fees—at least for most of the fees (more on that shortly).
(Doc. 11 ¶ 32, #108; Doc. 11-1, #133 (“Your account is subject to the fees described in
the fee schedule applicable to your account.”)). Specifically, a fee schedule
accompanies the Deposit Agreement and lists the amounts of the various fees
referenced in that agreement. (Id. ¶¶ 8, 10, 33, 35–36, 41, 48, #102, 108–12; Doc. 101, #97–98).
Plaintiffs Nicole M. Milles, Rhonda D. Knight, and Jeffrey Knight (Plaintiffs)
originally filed this suit on behalf of themselves and a putative class on April 3, 2024.
(Compl., Doc. 1). The Complaint alleged that Fifth Third charged them fees in
violation of the Deposit Agreement and also contrary to recent Consumer Financial
Protection Bureau (CFPB) guidance. (Id. ¶¶ 17–31, #5–8). Fifth Third responded by
moving to dismiss all claims. (Doc. 10). Rather than oppose that motion, Plaintiffs
mooted it by filing a First Amended Complaint (FAC). (Doc. 11; 7/11/24 Not. Order).
In that now-operative FAC, Plaintiffs claim that Fifth Third wrongfully
assesses a fifteen-dollar “Returned Deposit Item Fee” (or what the FAC elsewhere
labels a “Return Deposit Item Fee”) when a consumer attempts to cash a third-party
check that later returns unpaid for lack of sufficient funds in the third-party’s
account. (See, e.g., Doc. 11 ¶¶ 5–10, #101–02 (labeling it a “Return Deposit Item Fee”);
¶¶ 33–37 (referring to it as a “Returned Deposit Item Fee”)). According to Plaintiffs,
that fee is wrongful in two ways.

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First, Plaintiffs maintain that Fifth Third’s assessment of the fifteen-dollar
Return Deposit Item fee violates the Deposit Agreement. (Id. ¶¶ 8–11, 80–86, #102,
117–18). Specifically, they point to Section 5.5 of the Deposit Agreement, which states
that “[i]f a deposited or cashed Item is returned, [Fifth Third] will charge [the
customer] a Returned Item Fee as described in the fee schedule applicable to [the
customer’s] account.” (Id. ¶ 41, #109–10; Doc. 11-1, #138). And to be clear, Section 5.5
says “Returned Item Fee.” It does not say “Return Deposit Item” fee. That distinction
arguably matters because the fee schedule included with the Deposit Agreement lists
both a “Returned Item Fee” and “Return Deposit Item” fee. 2 (Doc. 10-1, #97–98). The
latter (the Return Deposit Item fee) is fifteen dollars, but the former (the Returned
Item Fee) is listed as “$0 – No fee.” (Doc. 11 ¶ 8, #102; Doc. 10-1, #97–98). So according
to Plaintiffs, Fifth Third’s practice of charging the fifteen-dollar Return Deposit Item
fee, instead of the zero-dollar Returned Item Fee, violates the Deposit Agreement’s
terms. (Doc. 11 ¶¶ 9, 13, 49, #102–03, 112).
Second, Plaintiffs argue that, independent of what the agreement may say,
imposing a fee for returned third-party checks amounts to an unfair and deceptive
trade practice under Illinois’ state consumer protection statute. (Id. ¶¶ 12–15, 30,
117–36, #102–03, 107, 122–25). According to Plaintiffs, consumers can neither
anticipate nor control whether a check they cash will bounce. (Id. ¶¶ 23–26, #105).

2 Adding to the confusion, as noted above, the FAC seems to interchangeably use the terms

“Return Deposit Item Fee” and “Returned Deposit Item Fee.” So far as the Court can tell, the
latter term appears nowhere in the Deposit Agreement. (See generally Doc. 11-1). The Court
acknowledges the irony—in a lawsuit alleging that Fifth Third improperly conflated the
terms “Returned Item Fee” and “Return Deposit Item Fee,” the operative Complaint itself
appears to conflate the terms “Return Deposit Item Fee” and “Returned Deposit Item Fee.”

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And recent CFPB guidance cautions depository institutions that charging fees for
returned deposit items may be unfair under the Consumer Financial Protection Act
(CFPA). (Id. ¶ 27–30, #106–07). Invoking that guidance, Plaintiffs say that Fifth
Third’s practice violates Illinois law. (Id. ¶ 117–36, #122–25).
As a result, Plaintiffs sued Fifth Third for breach of contract (Count I), breach
of the implied covenant of good faith and fair dealing (Count II), unjust enrichment
(Count III), and for violating the Illinois Consumer Fraud and Deceptive Business
Practices Act (ICFA) (Count IV). (Id. ¶¶ 80–136, #117–26). They seek damages and
injunctive relief, among other things. (Id. at #125–26).
Fifth Third moved to dismiss all four counts of the FAC. (Doc. 13). That motion
is now fully briefed. (Resp., Doc. 14; Reply, Doc. 16).
LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a “complaint must present sufficient facts to ‘state a claim to relief that is plausible
on its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th Cir.
2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing plausibility, the
Court “construe[s] the complaint in the light most favorable to the plaintiff.” Bassett
v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (cleaned up).

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A court analyzing a motion to dismiss under Rule 12(b)(6) generally must
confine its review to the pleadings. Armengau v. Cline, 7 F. App’x 336, 343 (6th Cir.
2001). Usually, that limits a court to considering the complaint and any documents
attached to it. Id. But sometimes a court may properly consider other things. For
example, a court may consider documents a defendant attaches to its motion, though
only to the extent that those documents are referenced in the complaint and central
to the claims. Id. at 344. Or if the pleadings refer to a written instrument that is
integral to the claims, the court may consider it without converting a motion to
dismiss into one for summary judgment. Com. Money Ctr., Inc. v. Ill. Union Ins., 508
F.3d 327, 335–36 (6th Cir. 2007); Fed. R. Civ. P. 10(c). “These written instruments
are records falling within a narrowly defined class of legally significant documents on
which a party’s action or defense is based. As a result, they often create or define legal
rights or obligations, or define or reflect a change in legal relationships.” Anderson v.
ABF Freight Sys., Inc., No. 1:23-cv-278, 2024 WL 51255, at *9 (S.D. Ohio Jan. 4, 2024)
(cleaned up). Finally, a court can consider public records or decisions of public
agencies. J.P. Silverton Indus. L.P. v. Sohm, 243 F. App’x 82, 86–87 (6th Cir. 2007).
LAW AND ANALYSIS
The Court starts its analysis with a procedural observation. While Plaintiffs
hope eventually to proceed on behalf of a nationwide class (and an Illinois subclass),
the Court has yet to consider whether that is permissible. Thus, as currently
postured, this is a suit by the three named Plaintiffs against Fifth Third. Accordingly,
in assessing plausibility (and in determining what law applies to the various claims),

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the Court measures the claims against the factual allegations as to those three
Plaintiffs. Here, Plaintiffs allege: (1) breach of contract, (2) breach of the implied
covenant of good faith and fair dealing, (3) unjust enrichment, and (4) violation of
ICFA. (Doc. 11 ¶¶ 80–136, #117–25). Fifth Third moved the Court to dismiss them
all. (Doc. 13). So the Court will address each claim in turn.
A.

Choice of Law
Before turning to the merits, though, the Court takes a brief detour to discuss

choice of law. Why? Well, in assessing plausibility, the Court must determine the
elements of a given claim. And those elements can vary depending on which state’s
law applies. True, it is usually not necessary to explicitly undertake such an analysis.
Often the parties agree on which state’s law applies, or at the very least do not raise
the issue. But here that is not the case. In its original motion to dismiss, Fifth Third
had “assumed that Illinois law applied,” as Plaintiffs alleged that they are citizens of
Illinois and the Deposit Agreement provides that disputes related to the Deposit
Agreement are generally governed by “the laws of the state where [the customer’s]
account is located.” (Doc. 13, #175; Doc. 11-1, #152). But in their FAC, Plaintiffs are
a little cagier, suggesting that Ohio law either applies, (Doc. 11 ¶¶ 73–78, #116–17),
or might apply, (id. ¶ 79, #117). So the Court pauses to consider whether it should
rely on Illinois law or Ohio law in assessing plausibility.
That leads to two related observations. First, it turns out that answering that
question is trickier than one might imagine. For example, there is a contractual
choice-of-law provision that applies to the contract claims, which turns on where an

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account is “located.” (Doc. 11-1, #152). And that determination requires facts not
currently before the Court.
Second, that answer largely does not matter, at least for now. “A federal court
exercising diversity jurisdiction applies the choice of law rules of the state in which
it sits.” Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690, 692 (6th Cir. 2013)
(citation omitted). Here, that means Ohio’s choice-of-law rules control. And under
those rules, when there is no conflict between two states’ laws, the forum law applies.
Herndon v. Torres, 791 F. App’x 547, 551 (6th Cir. 2019); see also Hawes v. Macy’s
Inc. (Hawes I), Nos. 1:17-cv-754, 2:20-cv-81, 2023 WL 8811499, at *5–6 (S.D. Ohio
Dec. 20, 2023); ISCO Indus., Inc. v. Great Am. Ins., 148 N.E.3d 1279, 1283 (Ohio Ct.
App. 2019). That principle largely obviates the need to address the issue now. Illinois
and Ohio are the only two candidates for which state’s law governs. And for the breach
of contract claim, the breach of implied covenant of good faith and fair dealing, and
the unjust enrichment claim, Fifth Third argues, (see Doc. 13, #175), and the Court
largely agrees, at least based on what is before the Court now, that the law is the
same in both states. So the plausibility analysis does not differ between the two. 3
The same approach, though, does not work for Count IV. There, Plaintiffs
specifically invoke an Illinois statute, ICFA. So as to that claim, a choice-of-law
analysis cannot affect the elements of the claim—Illinois statutory law sets those

3 Given the Court’s tentative conclusion that the two states’ laws are the same in all material

respects, the Court largely cites to Ohio law for the various principles on which it relies to
assess plausibility. But there is one exception to that. In connection with the breach of
implied warranty claim, Plaintiffs argue that Illinois law treats such claims differently. So,
there, the Court expressly assess plausibility under the law of both states. (See infra Section
C).

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elements. Rather, the question is whether Plaintiffs have alleged sufficient facts to
show that an Illinois statute even applies to the conduct here. The Court concludes
that they have. The Plaintiffs say that they are citizens of Illinois, (Doc. 11 ¶¶ 16–18,
#103–04), and that their accounts are located there, (id. ¶ 119, #122), suggesting that
Fifth Third charged them the allegedly wrongful fees and engaged in the unfair and
deceptive practices in Illinois. That strikes the Court as a sufficient nexus to conclude,
at least at the motion-to-dismiss stage, that ICFA applies.
In short, the foray into which state’s law governs ultimately matters little here.
The Court is convinced that for the three common-law claims, the law in Illinois and
Ohio is sufficiently similar that the choice between the two would not impact the
plausibility analysis. And the Court is likewise convinced that the alleged conduct
seems to fall within ICFA’s geographical scope. So, with that out of the way, the Court
will turn to the question of whether the Plaintiffs have plausibly alleged the merits
of any of the four asserted claims.
B.

Plaintiffs Plausibly Allege a Breach of Contract Claim.
To prevail on a breach of contract claim, under either Ohio or Illinois law,

Plaintiffs must plausibly allege “(1) the existence of a contract, (2) performance by
the plaintiff, (3) breach by the defendant, and (4) damages resulting from the breach.”
Ma v. Cincinnati Child.’s Hosp. Med. Ctr., 216 N.E.3d 1, 4 (Ohio Ct. App. 2023)
(citation omitted). Both parties agree that the Deposit Agreement is a contract,
satisfying the first element. (Doc. 11 ¶¶ 32, 82, #108, 117; Doc. 11-1, #130; Doc. 13,
#170, 176–77; Doc. 14, #193). And Fifth Third does not dispute that Plaintiffs

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plausibly alleged their own performance. Nor does Fifth Third argue that they failed
to plead damages. So elements two and four pose no problem. Rather, the
disagreement centers on whether Plaintiffs plausibly alleged the third element—that
Fifth Third breached the Deposit Agreement. (Compare Doc. 11 ¶¶ 80–86, #117–18
with Doc. 13, #175–79).
On that front, Plaintiffs argue that Fifth Third breached the Deposit
Agreement when it charged them a fifteen-dollar Return Deposit Item fee because
Section 5.5 of the agreement states that Fifth Third instead “will charge [] a
Return[ed] Item Fee as described in the fee schedule,” and the fee schedule states
that the Returned Item Fee is zero dollars. 4 (Doc. 11 ¶¶ 83–85, #117).
Fifth Third, for its part, agrees that is what Section 5.5 says. But the bank
claims that is not what the Section means, and that this is clear from context.
Specifically, Fifth Third points out that the agreement clearly delineates between two
different types of “Returned Item Fees”—one arising in Section 4 and the other in
Section 5. (Doc. 13, #171–73, 178). Section 5, Fifth Third says, clearly involves Deposit
Items (Section 5 is entitled “Processing Deposits”), while Section 4 involves simply

4 Plaintiffs attached the 2022 Deposit Agreement, which governed their Fifth Third accounts,

to the FAC. (Doc. 11-1). So the Court can consider that document. Plaintiffs, did not, however,
attach the corresponding fee schedule to their FAC. But the Court can still properly consider
it for two reasons. First, Plaintiffs reference the fee schedule (which the Deposit Agreement
itself incorporates) numerous times in their FAC and base several of their contractual
arguments on it, (Doc. 11 ¶¶ 8, 10, 33, 35–36, 48, 83–84, 90–91, 93, 100, #102, 108, 111, 117–
19), making it integral to their claims. Second, Fifth Third included the relevant portions of
the fee schedule in its motion to dismiss. (Doc. 13, #172–73; see also Doc. 10-1). All told, the
Court can consider both the Deposit Agreement and fee schedule in determining whether
Plaintiffs sufficiently pleaded their claims. As noted above, though, while Plaintiffs reference
(in parts of their FAC) a Returned Deposit Item fee, the fee schedule actually references a
Return Deposit Item fee.

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Items (Section 4 is entitled “Overdrafts and Posting Order). (Id.). Thus, according to
Fifth Third, Section 5.5 clearly meant to refer to the Return Deposit Item fee, making
it merely a scrivener’s error that the agreement instead refers to the Returned Item
Fee in that Section. (See Doc. 13, #178).
In assessing plausibility in the face of those competing arguments, the Court
starts by outlining some general contract interpretation principles. First, contract
interpretation, which includes determining whether a contract is ambiguous, is a
question of law. In re Fifth Third Early Access Cash Advance Litig., 925 F.3d 265, 276
(6th Cir. 2019) (applying Ohio law). Second, courts must interpret contracts to carry
out the parties’ intent as expressed by the contract’s plain language. Lutz v.
Chesapeake Appalachia, L.L.C., 71 N.E.3d 1010, 1012 (Ohio 2016). To do so, courts
must examine the contract “as a whole” and attempt to “give effect to every provision.”
Sunoco, Inc. (R & M) v. Toledo Edison Co., 953 N.E.2d 285, 292, 295 (Ohio 2011).
That said, sometimes a provision, even when read in context, is “unclear, indefinite,
and reasonably subject to dual interpretations,” rendering it ambiguous. In re Fifth
Third, 925 F.3d at 276 (citation omitted). And if a contract includes an ambiguity, it
falls to the finder of fact, not the court, to resolve it. Westfield Ins. Co. v. Galatis, 797
N.E.2d 1256, 1262 (Ohio 2003). One more principle also lurks in the background:
When a “written contract is standardized and between parties of unequal bargaining
power, an ambiguity in the writing will be interpreted strictly against the drafter and
in favor of the nondrafting party.” Id.

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With those principles in mind, the Court finds that Plaintiffs plausibly allege
that Fifth Third breached the Deposit Agreement when it charged them a fifteendollar Return Deposit Item fee. Start with the contract language—Section 5.5 of the
Deposit Agreement plainly states that “[i]f a deposited or cashed Item is returned,
[Fifth Third] will charge [the customer] a Returned Item Fee as described in the fee
schedule applicable to [the customer’s] account.” (Doc. 11-1, #138 (emphasis added)).
Based on that provision, a customer would understandably look to the fee schedule
to discern the amount of the “Returned Item Fee.” And the fee schedule plainly
includes a “Returned Item Fee,” which it lists as “$0 – No Fee.” (Doc. 10-1, #98). By
contrast, the term “Return Deposit Item”—the term the fee schedule uses to describe
the fifteen-dollar fee Fifth Third apparently intends to charge customers who deposit
bad checks—is defined nowhere in the Deposit Agreement, even though it is
capitalized, which suggests it is (or should be) a defined term. (See Doc. 11-1, #128–
59). Rather, the reference to “Return Deposit Item” fee appears only in the fee
schedule itself. (Doc. 10-1, #97). True, Section 5.5 states that the fee it is describing
will apply when “a deposited or cashed Item is returned.” (Doc. 11-1, #138). So,
perhaps a wary consumer who spotted both a “Returned Item Fee” and a “Return
Deposit Item” fee would have questions about which applied in the context of Section
5.5. But the Court finds that Plaintiffs’ invocation of the contract’s plain language,
from a contract that Fifth Third drafted, is enough to set forth a plausible breach of
contract claim.

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If that were not enough, other aspects of the Deposit Agreement seem to
further contribute to potential ambiguity. To start, the fee schedule does not tie any
specifically named fee to any specific accompanying provision in the Deposit
Agreement, nor does it list the fees in the order that the Deposit Agreement specifies
them (at least under Fifth Third’s telling of which fee applies to what). (See Doc. 101, #97–98). For example, Fifth Third says that the Returned Item Fee applies to
Section 4 of the Deposit Agreement, and that the Return Deposit Item fee applies to
Section 5. (Doc. 13, #171–73, 178). But the fee schedule (which is some six pages long)
lists a fee for Return Deposit Items (a Section 5 charge according to Fifth Third)
before the Returned Item Fee (a Section 4 charge). (Doc. 10-1, #92–98). True, Fifth
Third titled Section 4 of the Deposit Agreement “Overdrafts,” and the corresponding
portion of the fee schedule “Overdraft Fees,” (compare Doc. 11-1, #135 with Doc. 101, #97–98), perhaps providing a contextual clue that the Returned Item Fee is linked
to that Section of the Deposit Agreement. But even that only goes so far. Fifth Third
titled Section 5 of the Deposit Agreement “Processing Deposits,” and the (allegedly)
corresponding portion of the fee schedule “Payments & Services Miscellaneous Fees.”
(Compare Doc. 11-1, #137 with Doc. 10-1, #97). While a customer may look to
“Overdraft Fees” in the fee schedule to discern fees associated with the “Overdraft”
provisions of the Deposit Agreement (i.e., Section 4), it is less evident why a customer
would look to “Payments & Services Miscellaneous Fees” in the fee schedule to learn
about fees associated with the “Processing Deposits” provisions of the agreement (i.e.,
Section 5).

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As a whole, and based solely on what the Court now has before it, the Deposit
Agreement’s provisions appear to be at the very least ambiguous on the question of
whether Fifth Third could properly charge a fifteen-dollar fee for returned deposit
items. So, construing the FAC in a light most favorable to Plaintiffs (as the Court
must), the Court concludes that Plaintiffs have pleaded factual content which allows
the Court to draw a reasonable inference that Fifth Third breached the Deposit
Agreement when it charged Plaintiffs those fees. The Court therefore DENIES Fifth
Third’s motion as to the breach of contract claim.
C.

Plaintiffs Fail to State a Claim for Breach of the Implied Covenant of
Good Faith and Fair Dealing.
Plaintiffs’ claim for breach of the implied covenant of good faith and fair

dealing alleges that Fifth Third wrongfully charged Plaintiffs a fee that neither the
Deposit Agreement nor the fee schedule defined or explained and that customers
could not reasonably avoid. (Doc. 11 ¶¶ 92–93, 99–100, #118–119).
But as Fifth Third correctly argues, neither Ohio nor Illinois recognizes a
standalone cause of action for breach of implied covenant of good faith and fair
dealing. Patrick v. CitiMortgage, Inc., 676 F. App’x 573, 577 (6th Cir. 2017) (collecting
cases); McArdle v. Peoria Sch. Dist. No. 150, 705 F.3d 751, 755 (7th Cir. 2013) (citing
Voyles v. Sandia Mortg. Corp., 751 N.E.2d 1126 (2001)). So the Court must dismiss
Plaintiffs’ claim. 5
5 Because the Court agrees that neither Ohio nor Illinois recognize an independent cause of

action for breach of this implied covenant, it does not reach Fifth Third’s second argument
that “neither jurisdiction allows a plaintiff to use the implied covenant of good faith and fair
dealing ‘to overrule or modify the express terms of a contract.’” (Doc. 13, #180 (citation
omitted)).

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Plaintiffs disagree that either state’s law requires dismissal. As for Ohio law,
they acknowledge that Ohio does not recognize a standalone claim for breach of this
implied covenant but argue that the Court should allow their claim to proceed
because (1) Ohio does recognize that the duty of good faith and fair dealing implicitly
exists in every contract, and (2) other courts in this district have allowed similar
claims to proceed. (Doc. 11, #203–04). Neither argument persuades the Court.
Start with Plaintiffs’ first contention. True, Ohio courts imply a duty of good
faith and fair dealing in every contract. Accurate Elec. Constr., Inc. v. Ohio State
Univ., 149 N.E.3d 1080, 1106 (Ohio Ct. App. 2019). But the Ohio Supreme Court has
been clear that “[t]here can be no implied covenants in a contract in relation to any
matter specifically covered by the written terms of the contract itself.” Hamilton Ins.
Serv., Inc. v. Nationwide Ins. Cos., 714 N.E.2d 898, 901 (Ohio 1999). And Plaintiffs’
own argument dooms their claim. They say their good faith and fair dealing claim
“relates to the interpretation and application of the Deposit Agreement’s terms.” (Doc.
14, #203 (emphasis added)). So, Plaintiffs are correct that Fifth Third may not “take
opportunistic advantage” of the ambiguities in the Deposit Agreement “in a way that
could not have been contemplated at the time of drafting.” Accurate Elec. Constr., 149
N.E.3d at 1106. But understood that way, Plaintiffs’ breach of contract claim
“subsumes the accompanying claim for breach of the duty of good faith and fair
dealing.” Id.; see also Harmon v. Fifth Third Bancorp, 858 F. App’x 842, 845 (6th Cir.
2021); Am. Metal Stamping Co., LLC v. Pittsburgh Pipe & Supply Corp., No. 1:21-cv2334, 2022 WL 19349958, at *2–3 (N.D. Ohio Oct. 14, 2022) (dismissing the plaintiff’s

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standalone breach of implied covenant of good faith and fair dealing claim where they
separately brought a breach of contract claim).
Now consider Plaintiffs’ second argument—that courts in this district have
allowed similar claims to proceed. (Doc. 14, #203). Plaintiffs cite Huntington National
Bank v. Deluxe Financial Services, Inc., No. 2:14-cv-250, 2014 WL 4987597 (S.D. Ohio
Oct. 6, 2014), in support of their claim, but that case is inapposite here. There, the
plaintiff brought a single breach of contract claim (not a standalone claim for breach
of the implied duty of good faith and fair dealing) that involved questions about the
defendant’s good faith. Id. at *4. So that court never had to determine whether the
plaintiff could proceed on a standalone breach of the implied duty of good faith and
fair dealing claim as this Court must. Moreover, that court allowed the contract claim
to proceed because it found the provision at issue silent about the effect of early
contract termination, not ambiguous as to what the plaintiff needed to pay. Id. at *3.
The opposite is true here. The Deposit Agreement says Fifth Third will charge a fee
for deposit items that get returned; it is just that the agreement is arguably
ambiguous as to what amount Fifth Third will charge. And as explained above,
Plaintiffs’ breach of contract claim already covers that ambiguity, thus subsuming
any related good faith inquiries. True, Plaintiffs also point to Smith v. Fifth Third
Bank, No. 1:18-cv-464, 2019 WL 1746367 (S.D. Ohio Apr. 18, 2019), and that case
perhaps offers more support for their claim. There, the court allowed a standalone
claim for breach of the implied covenant of good faith and fair dealing under Ohio law
to move forward at the Rule 12(b)(6) stage. Id. at *7. But this is a question of Ohio

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law, and, as noted above, the Court finds that Ohio courts have clearly spoken on this
issue; Smith does not change that.
Nor, contrary to Plaintiffs’ argument, would applying Illinois law lead to a
different result. According to Plaintiffs, Illinois recognizes a standalone cause of
action for breach of the implied covenant of good faith and fair dealing. (Doc. 14, #203
n.6). They cite various cases they claim show as much. (Id.). But two problems. First,
at least two of those cases acknowledge that there is not, in fact, a standalone cause
of action for this type of breach. Wilson v. Career Educ. Corp., 729 F.3d 665, 673 (7th
Cir. 2013) (Darrow, J., concurring) (finding that the plaintiff “properly raised the
implied covenant of good faith as a breach of contract theory, not as an independent
cause of action”); see McCleary v. Wells Fargo Sec., L.L.C., 29 N.E.3d 1087, 1093–94
(Ill. Ct. App. 2015) (laying out the elements for a breach of contract claim and
explaining how the implied covenant of good faith may arise as part of a breach of
contract claim). Second, and perhaps more importantly, a federal court sitting in
diversity is “bound by controlling decisions of [the state’s highest] court.” In re Dow
Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005). Here, the Illinois Supreme Court
has held that there is no standalone cause of action for breach of the implied covenant
of good faith and fair dealing. Voyles, 751 N.E.2d at 1130–32. So that’s the rule this
Court must follow.
Because Plaintiffs cannot bring a standalone claim for breach of the implied
covenant of good faith and fair dealing under Ohio or Illinois law, the Court GRANTS

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Fifth Third’s motion to dismiss as to this claim and DISMISSES it WITH
PREJUDICE.
D.

Plaintiffs Fail to State a Claim for Unjust Enrichment.
Plaintiffs next allege, in the alternative to the two previous claims, that Fifth

Third unjustly enriched itself by charging Plaintiffs fifteen dollars each time a check
they deposited returned unpaid. (Doc. 11 ¶¶ 106–16, #120–22). But as with the last
claim, Ohio law precludes Plaintiffs’ unjust enrichment claim. “[A] plaintiff may not
recover under the theory of unjust enrichment or quasi-contract when an express
contract covers the same subject.” Cook v. Ohio Nat’l Life Ins. Co., 961 F.3d 850, 858
(6th Cir. 2020) (applying Ohio law); see also Cohen v. Am. Sec. Ins. Co., 735 F.3d 601,
615 (7th Cir. 2013) (applying Illinois law).
Here, Plaintiffs concede that the Deposit Agreement is an express contract that
controls, albeit perhaps ambiguously, which fees Fifth Third will charge customers.
(Doc. 11 ¶¶ 32, 82, #108, 117; Doc. 14, #193). In fact, they attach the Deposit
Agreement to their FAC. (Doc. 11-1). Because Plaintiffs admit a valid contract
governs this dispute, the Court GRANTS Fifth Third’s motion to dismiss as to the
unjust enrichment claim and DISMISSES it WITH PREJUDICE. 6

6 Plaintiffs argue that even when a contract exists, courts sometimes allow unjust enrichment

claims to proceed, citing Delta Pegasus Mgmt. v. NetJets Sales, No. 2:22-cv-3519, 2023 WL
2785594 (S.D. Ohio Feb. 14, 2023). (Doc. 14, #205 & n.7). But in Delta Pegasus, the court first
noted the “general rule” that unjust enrichment claims are unavailable when a contract
governs the dispute. 2023 WL 2785594, at *4. And in raising the exception that Plaintiffs
highlight, the court acknowledged it usually applies when the validity or existence of the
alleged contract is in question. See id. That is not the case here.

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E.

Plaintiffs’ ICFA Claim Partially Survives the Motion to Dismiss.
Finally, Plaintiffs claim that Fifth Third violated ICFA, Illinois’ consumer

protection statute, by charging Return Deposit Item fees in a “deceptive and unfair”
manner. (Doc. 11 ¶ 130, #124). Fifth Third argues for the claim’s dismissal
maintaining that (1) the claim cannot proceed if Ohio law applies, (2) ICFA’s own
language precludes its application (or at the very least, federal law preempts ICFA’s
application here), and (3) Plaintiffs failed to plausibly allege an ICFA claim. (Doc. 13,
#183–89). In the above choice-of-law discussion, the Court already explained why
Fifth Third’s first argument fails, at least for purposes of the motion-to-dismiss stage.
So the Court will only consider the latter two arguments here.
Fifth Third first asserts that ICFA’s language bars Plaintiffs’ statutory claim.
(Doc. 13, #183–86). Although placed under a common heading, Fifth Third seems to
be making two related but distinct arguments: (1) because Fifth Third complied with
the Truth in Savings Act (TISA), ICFA, by its plain language, exempts the conduct at
issue, and (2) even if ICFA does not expressly exempt Fifth Third’s conduct, TISA
preempts Plaintiffs’ ICFA claim. (See id.).
Before diving headlong into Fifth Third’s arguments, the Court begins by
briefly explaining the statutory backdrop. ICFA prohibits “[u]nfair methods of
competition and unfair or deceptive acts or practices, including … deception fraud,
false pretense, false promise, misrepresentation or the concealment, suppression or
omission of any material fact.” 815 ILCS § 505/2. But it also includes various
exemptions. One such exemption says that nothing in ICFA applies to “[a]ctions or
transactions specifically authorized by laws administered by any regulatory body or
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officer acting under statutory authority of this State or the United States.” 815 ILCS
§ 505/10b(1). In other words, if a federal statute or regulation specifically authorizes
certain conduct, that conduct is “exempt from liability under [ICFA].” See Lanier v.
Assocs. Fin., Inc., 499 N.E.2d 440, 447 (Ill. 1986).
TISA, a federal statute, governs deposit account disclosures. 12 U.S.C. § 4301.
It requires banks to clearly and uniformly disclose fees assessed against deposit
accounts, id. § 4301(b)(2), and to maintain fee schedules, id. § 4303(a). Regulation
DD, which implements TISA, says account disclosures must include “[t]he amount of
any fee that may be imposed in connection with the account (or an explanation of how
the fee will be determined) and the conditions under which the fee may be imposed.”
12 C.F.R. § 1030.4(b)(4). “Fees associated with checks returned unpaid” are among
those fees that banks must disclose. 12 C.F.R. pt. 1030, Supp. I. And importantly,
TISA preempts inconsistent state law requirements, but only “to the extent of the
inconsistency.” 12 C.F.R. § 1030.1(d).
1.

ICFA’s Exemption Does Not Bar Plaintiffs’ ICFA Claim.

With those two statutes in mind (ICFA and TISA), consider Fifth Third’s
“compliance” argument: Because Fifth Third complied with TISA’s disclosure
requirements, TISA “specifically authorized” the conduct, meaning that it falls within
ICFA’s exemption, so the Court should dismiss Plaintiffs’ claim. (Doc. 13, #183–86).
Addressing this argument requires the Court first to determine whether Fifth Third’s
fee disclosures comply with TISA, and second, if so, whether compliance with TISA
precludes ICFA liability. Lanier, 499 N.E.2d at 444 (laying out a two-part framework

19

to discern whether compliance with a federal law establishes a defense to liability
under ICFA).
The Court’s analysis begins and ends, however, with the first prong, as it is not
at all clear, at least for present purposes, that Fifth Third complied with TISA. To
review, TISA requires banks to clearly and uniformly disclose both the amount of any
fee it will impose and the conditions under which it will impose that fee. For all the
reasons discussed above, however, Plaintiffs have plausibly alleged that Fifth Third’s
fee disclosure related to checks returned unpaid may not meet TISA’s clarity
requirement. True, Fifth Third disclosed that it “will charge” a fee if a deposited or
cashed item is returned unpaid, (Doc. 11-1, #138), which may clearly disclose the
conditions under which it will assess a fee. But Fifth Third misses the mark in
claiming it clearly discloses the amount of that fee. As noted, Section 5.5 of the
Deposit Agreement says Fifth Third “will charge [customers] a Returned Item Fee as
described in the fee schedule.” (Id.). And the fee schedule plainly lists the Returned
Item Fee as “$0 – No fee.” (Doc. 10-1, #98). True, Fifth Third also listed the fee it says
it intended to impose—a fifteen-dollar Return Deposit Item fee. (Id. at #97). But at
least at this stage of the litigation, the Court is not persuaded that this means the
disclosure was clear as a matter of law. 7

7 Fifth Third’s reliance on Hill v. St. Paul Federal Bank for Savings, 768 N.E.2d 322 (Ill.

2002), does not convince the Court that ICFA’s language bars Plaintiffs’ claim. The Hill court
considered whether the defendants’ failure to disclose the posting order of checks fell within
an ICFA exemption. Id. at 327. It concluded that because TISA does not require banks to
disclose the posting order of checks, federal law authorized the defendants’ nondisclosure. Id.
at 328. So the defendants’ conduct fell within an ICFA exemption, precluding plaintiffs’ ICFA
claim. Id. This case, however, involves Fifth Third’s failure to do something TISA does

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2.

TISA Only Partially Preempts Plaintiffs’ ICFA Claim.

All is not lost, though. Fifth Third also raises a second argument—preemption.
Admittedly, its argument on this front is sparse (largely because Fifth Third
commingled the preemption argument with its earlier compliance argument). Fifth
Third states only that “state-law challenges to a bank’s failure to disclose certain fees
or fee practices are routinely dismissed on preemption grounds.” (Doc. 14, #184
(citation omitted)). But despite the brevity of Fifth Third’s argument, the Court
agrees that TISA partially preempts Plaintiffs’ ICFA claim.
Under the Supremacy Clause, Congress can preempt state law. U.S. CONST.
art. VI; Arizona v. United States, 567 U.S. 387, 398–99 (2012). Preemption comes in
three flavors: express, conflict, and field preemption (the latter two collectively known
as “implied preemption”). Arizona, 567 U.S. at 399 (outlining the three types of
preemption); see also Whittington v. Mobiloil Fed. Credit Union, No. 1:16-cv-482, 2017
WL 6988193, at *6 (E.D. Tex. Sept. 14, 2017). In any preemption analysis, “the
purpose of Congress is the ultimate touchstone.” Hughes v. Talen Energy Mktg., LLC,
578 U.S. 150, 162–63 (2016) (citation omitted). And in the banking realm, “federal
control shields national banking from unduly burdensome and duplicative state
regulation.” Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11 (2007). So states may
“regulate the activities of national banks where doing so does not prevent or
significantly interfere with the national bank’s or the national bank regulator’s
exercise of its powers.” Id. at 12.
require—clearly and uniformly disclose the fees it will charge. Hill therefore cannot explain
why ICFA’s exemption would bar Plaintiffs’ claim here.

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Relevant here, Congress preempted state laws related to account disclosures
“to the extent that those laws are inconsistent with [TISA].” 12 U.S.C. § 4312. And
an inconsistency arises if state law “requires a depository institution to make
disclosures or take actions that contradict the requirements of the federal law.” 12
C.F.R. pt. 1030, App. C. In other words, the Court must determine whether ICFA
requires Fifth Third to take actions that contradict TISA, such that TISA expressly
preempts Plaintiffs’ ICFA claim.
Though the Sixth Circuit has not spoken to whether and when TISA preempts
state consumer protection statutes, other courts have. Many of those courts have
adopted a categorical approach to this preemption question, which the Court finds
informative. On the one hand, TISA does not preempt a plaintiff’s claim that a
depository institution “failed to comply with the express terms of the parties’ contract
or affirmatively misrepresented its fee practices.” Lambert v. Navy Fed. Credit Union,
No. 1:19-cv-103, 2019 WL 3843064, *3 (E.D. Va. Aug. 14, 2019). On the other hand,
TISA does preempt a plaintiff’s claim challenging “[a depository institution’s] failure
to disclose, the specific language used in the disclosure, or the fairness of the fee
practice itself.” Id. 8

8 See also Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 722–28 (9th Cir. 2012) (finding

claims that impose disclosure requirements preempted, but finding claims that merely
prohibit misleading statements not preempted); King v. Navy Fed. Credit Union, 713 F. Supp.
3d 729, 738–39 (C.D. Cal. 2024) (cleaned up) (“It is well established that state law claims
regarding a federal credit union’s failure to disclose certain fee practices or any perceived
unfairness in the fee practices themselves are preempted.”); Whittington v. Mobiloil Fed.
Credit Union, No. 1:16-cv-482, 2017 WL 6988193, *6–10 (E.D. Tex. Sept. 14, 2017) (holding
that “attempts to use a state consumer law to dictate to a [depository institution] what fees
it may charge and how it may charge them” are preempted); Garrett v. Call Fed. Credit

22

Applying that methodology here, the Court concludes that only part of
Plaintiffs’ ICFA claim falls on the preempted side of the line. Through their consumer
fraud protection act claim, Plaintiffs make two related but distinct allegations. First,
they argue that Fifth Third’s “practice of charging Return Deposit[] Item Fees is
deceptive and unfair” under ICFA because consumers cannot reasonably avoid those
fees, which substantially injures them. (Doc. 11 ¶¶ 127–30, #123–24). And in making
their argument, Plaintiffs rely on CFPB’s Bulletin 2022-06, which has apparently
deemed Return Deposit Item fees (like the ones Fifth Third charged here) materially
unfair and deceptive under the CFPA. (Id. ¶¶ 129–30, #124). In that way, Plaintiffs
contest the fairness of Fifth Third’s charging practices. See King v. Navy Fed. Credit
Union, 713 F. Supp. 3d 729, 738–39 (C.D. Cal. 2024). And that, in turn, reveals
Plaintiffs’ attempt to deploy ICFA to require Fifth Third to take actions (or rather,
not take actions) in contradiction of TISA. Namely, Plaintiffs seek to wholly prevent
Fifth Third from charging Return Deposit Item Fees, a type of fee that TISA
permits—for now anyway. 9 See 12 C.F.R. pt. 1030, App. B-10 (permitting “Returned

Union, No. 3:23-cv-678, 2024 WL 3928888, *5 (E.D. Va. Aug. 23, 2024) (“It is important to
distinguish, however, between asking the Court to declare practices or policy to be
unconscionable and asking the Court to conclude these practices violate the contract between
parties.”); Cinar v. Bank of Am., N.A., No. 13-cv-3230, 2014 WL 3704280, at *3–4 (D. Md.
July 22, 2014) (finding that state law claims requiring a defendant to make disclosures not
required by federal law are preempted, but state laws of general application that do not
conflict with federal law are not preempted); Fludd v. S. State Bank, 566 F. Supp. 3d 471,
484–87 (D.S.C. 2021) (adopting the methodology set out in Lambert).
9 Plaintiffs’ reliance on Bulletin 2022-06 poses two problems. First, the Bulletin states that

“[b]lanket policies of charging Returned Deposited Item fees to consumers for all returned
transactions irrespective of the circumstances or patterns of behavior on the account are
likely unfair,” which suggests that they are not always unfair. Bulletin 2022-06: Unfair
Returned Deposited Item Fee Assessment Practices, 87 Fed. Reg. 66,940, 66,940 (Nov. 7,

23

Item Fees”); id. at Supp. I (requiring disclosure of “fees associated with checks
returned unpaid”). So the Court finds this ICFA allegation preempted.
Plaintiffs’ second ICFA allegation, by contrast, is not preempted. Plaintiffs
allege that:
Fifth Third represents that it “will” charge a fee for “Returned Items” in
Section 5.5 of its DRA. The “Returned Item” Fee is represented to be “$0
– No Fee; You will not be charged a fee if we return your checks and
payments unpaid.” However, Fifth Third then assesses a “$15.00 per
item” for “Return Deposited Item Fees”, which is nowhere described or
explained. Fifth Third has thereby failed to clearly and uniformly
disclose whether or not a fee will be charged to consumers for returned
items, and failing to disclose the conditions under which the fee may be
imposed.
(Doc. 11 ¶ 130, #124). And they clarify that ICFA prohibits conduct that “creates a
likelihood of confusion or misunderstanding.” (Id. ¶ 123, #122 (citing 815 ILCS
§§ 505/2, 510/2(a)(12))). The Court therefore cannot conclude that Plaintiffs’
allegations regarding Fifth Third’s misrepresentations in the Deposit Agreement
conflicts with TISA. Recall that TISA requires banks to clearly and uniformly disclose
the conditions under which it will charge fees and their amount. 12 U.S.C. § 4301(b).
So too does ICFA by prohibiting deceptive practices that lead to “confusion or
misunderstanding.” 815 ILCS §§ 505/2, 510/2(a)(12). Indeed, on this logic, ICFA “does
not impose disclosure requirements but merely prohibits statements that are likely
to mislead the public.” Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 726 (9th Cir.
2012). The Court thus concludes that TISA does not preempt Plaintiffs’ ICFA claim

2022) (emphasis added). Second, as the King court aptly noted, guidance documents like
Bulletin 2022-06 “do[] not have the force and effect of law.” King, 713 F. Supp. 3d at 739
(citing 12 C.F.R. Pt. 1074, App. A). So if the Court allowed Plaintiffs’ ICFA claim to proceed
relying on Bulletin 2022-06, that itself would contravene federal law. Id.

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to the extent it is based on Fifth Third allegedly using misleading provisions in the
Deposit Agreement. 10
Plaintiffs disagree that TISA preempts any part of their ICFA claim. They
argue that Fifth Third failed to show how complying with ICFA would substantially
disrupt its operations and warrant preemption. (Doc. 14, #208). When a plaintiff’s
claim challenges the fairness of a fee itself, though, the claim encroaches on the
depository institution’s ability to decide which fees to charge and how to charge them.
See Whittington, 2017 WL 6988193, at *9. Straight out prohibiting Fifth Third from
charging an entire subset of fees would amount to substantial disruption, especially
when premised on guidance that lacks the force of law. King, 713 F. Supp. 3d at 738–
39; supra n.9. That, in turn, means TISA preempts the claim.
3.

Plaintiffs Plausibly Allege a Deceptive Practice Claim Under
ICFA.

Because Plaintiffs’ ICFA claim is only partially preempted, the Court must
consider whether Plaintiffs plausibly alleged an ICFA violation under this nonpreempted theory. ICFA is a “regulatory and remedial statute intended to protect
consumers … against fraud, unfair methods of competition, and other unfair and
deceptive business practices.” Benson v. Fannie May Confections Brands, Inc., 944
F.3d 639, 646 (7th Cir. 2019) (citation omitted). To state an ICFA claim, a plaintiff

10 As far as the Court can tell, Page v. Alliant Credit Union is the only case that discusses

whether TISA preempts an ICFA claim. No. 19-cv-5965, 2020 WL 5076690 (N.D. Ill. Aug. 26,
2020). That court found the plaintiff’s ICFA claim not preempted because the plaintiff raised
claims about the defendant’s misrepresentations. Id. at *2. Here, Plaintiffs make similar
allegations, contending that Fifth Third’s Deposit Agreement “creates a likelihood of
confusion or misunderstanding.” (Doc. 11 ¶¶ 123, 131–33, #123–25).

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must sufficiently plead: “(1) a deceptive or unfair act or practice by the defendant;
(2) the defendant’s intent that the plaintiffs rely on the deceptive or unfair practice;
(3) the deceptive or unfair acts occurred during a course of conduct involving trade or
commerce; and (4) actual damage to the plaintiffs; (5) proximately caused by the
deceptive or unfair acts.” Saika v. Ocwen Loan Servicing, LLC, 357 F. Supp. 3d 704,
714 (N.D. Ill. 2018) (cleaned up).
Start with the first element. To satisfy it, a plaintiff can allege a violation
either by showing deceptive conduct or unfair conduct, each having its own pleading
standard. Benson, 944 F.3d at 646. A deceptive conduct claim falls within the
contours of Federal Rule of Civil Procedure 9(b), meaning that a plaintiff must “plead
with particularity the circumstances constituting fraud.” Id. (citation omitted). That
is, the plaintiff must plead “the who, what, when, where, and how of the alleged
fraud.” Id. (cleaned up). An unfairness claim, which need only meet Federal Rule of
Civil Procedure Rule 8(a)’s notice pleading standard, by contrast, depends on
“(1) whether the practice offends public policy; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; and/or (3) whether it causes substantial injury to
consumers.” Saika, 357 F. Supp. 3d at 714–15 (cleaned up). Notably, a practice can
be unfair if it meets only one of the criteria to a greater extent or all three to a lesser
extent; all three need not be met to support an unfairness finding. Id. at 715.
The FAC alleges that Fifth Third’s conduct is both deceptive and unfair. But
much of the FAC’s focus on unfairness pertains to Fifth Third charging fees when bad
checks return unpaid and relies on CFPB Bulletin 2022-06. The Court already

26

explained why TISA preempts that line of argument. Plaintiffs’ allegations relating
to the non-preempted ICFA theory, however, seemingly focus on the statute’s
deceptive prong. 11 So the Court likewise concentrates its analysis there. Plaintiffs
allege that Fifth Third “deliberately insert[ed] ambiguous provisions” into the
Deposit Agreement, allowing it “to profit at the expense of unwary consumers.” (Doc.
11 ¶ 133, #124–25). And they describe the precise contractual ambiguity the Court
has already explored. (Id. ¶¶ 131–32, #124). All told, the allegations describe with
sufficient particularly the “who” (Fifth Third), “what” (deceptive contract terms),
“where” (the Deposit Agreement), and “how” (ambiguous and undefined provisions
and terms) of the alleged deception. Moreover, this deception allegedly arose “when”
Plaintiffs opened their accounts and agreed to the Deposit Agreement. (Id. ¶¶ 32–36,
#108). So the Court concludes Plaintiffs met Rule 9(b)’s heightened pleading
standard, thereby satisfying element one.
Now consider element two—defendant’s intent that the plaintiffs rely on the
deceptive practice. Plaintiffs allege that because of the necessity of bank accounts,
“Fifth Third’s practice of deliberately inserting ambiguous provisions into the
[Deposit Agreement] cornered consumers into paying for an unnecessary service.” (Id.
¶ 133, #124–25). This sufficiently alleges that Fifth Third intended Plaintiffs to rely
on the Deposit Agreement in choosing to bank there, which satisfies element two.

11 Plaintiffs highlight that ICFA prohibits deceptive conduct that “creates a likelihood of

confusion or misunderstanding.” (Doc. 11 ¶ 123, #122 (citing 815 ILCS §§ 505/2,
510/2(a)(12))). Since Plaintiffs allege that Fifth Third “insert[ed] ambiguous provisions” into
the Deposit Agreement, misleading consumers as to which fees it will impose and when, (Id.
¶¶ 32–36, 131–33, #108, 124–25), the Court understands Plaintiffs to argue that this practice
is deceptive.

27

That leaves the remaining three elements, which Plaintiffs easily satisfy. The
allegedly deceptive acts occurred in relation to banking services, which means they
necessarily involved trade or commerce (element three). And Plaintiffs contend that
they “sustained actual damages,” specifically the fifteen-dollar fees, “as a result of”
Fifth Third’s conduct. (Id. ¶ 134, #125). That meets element four’s and element five’s
requirements. Plaintiffs, therefore, plausibly allege an ICFA deceptive practices
claim.
Fifth Third disagrees that Plaintiffs can state an ICFA claim, mainly arguing
that the Deposit Agreement “authorizes the Returned Item Fee at issue.” (Doc. 13,
#189). It cites Griffin v. U.S. Bank National Association, No. 15-c-6871, 2019 WL
4597364 (N.D. Ill. Sept. 23, 2019), for support. There, the plaintiff alleged that the
defendants’ act of charging property valuation and inspection fees after the plaintiff
defaulted on a loan amounted to a deceptive and unfair practice. Id. at *5. But, the
court explained, if a written agreement between the parties expressly authorizes an
act, that act cannot be unfair or deceptive under ICFA. Id. Because the governing
mortgage expressly permitted the defendants to charge such fees, the court rejected
the plaintiff’s ICFA claim. Id. This case raises an important difference. As described
above, there’s a plausible argument that the Deposit Agreement’s terms are at least
ambiguous as to whether Fifth Third could charge the fifteen-dollar fee that it did.
So Griffin’s express-authorization defense falls short when measured against the
allegations here. All told, the Court cannot conclude at the motion-to-dismiss stage
that the Deposit Agreement itself precludes Plaintiffs’ ICFA claim.

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CONCLUSION
For the reasons explained above, the Court GRANTS IN PART and DENIES
IN PART Defendant’s Motion to Dismiss Plaintiffs’ First Amended Class Action
Complaint for Failure to State a Claim (Doc. 13). Specifically, the Court DISMISSES
WITH PREJUDICE Plaintiffs’ Breach of the Implied Covenant of Good Faith and
Fair Dealing claim (Count II), Unjust Enrichment claim (Count III), and Illinois
Consumer Fraud and Deceptive Business Practices Act claim (Count IV), but only to
the extent it alleges that Fifth Third’s practice of charging Return Deposit Item fees
is unfair pursuant to CFPB Bulletin 2022-06.
SO ORDERED.
November 26, 2024
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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