FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANICA LOVE BROWN, No. 18-35735 Plaintiff-Appellant, D.C. No. v. 3:15-cv-01370- MO STORED VALUE CARDS, INC., DBA Numi Financial; CENTRAL NATIONAL BANK AND TRUST COMPANY, Enid, OPINION Oklahoma, Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted December 13, 2019 Seattle, Washington Filed March 16, 2020 Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Roger T. Benitez, * District Judge. Opinion by Judge Gould * The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. 2 BROWN V. STORED VALUE CARDS, INC. SUMMARY ** Electronic Fund Transfers Act / Constitutional Law The panel reversed the district court’s partial dismissal and partial summary judgment on claims under the Electronic Fund Transfers Act, the Takings Clause, and Oregon state law concerning a private company’s return of released jail or prison inmates’ money via a prepaid debit card loaded with the balance of their funds. Defendants assessed fees on the cards. The panel held that plaintiff stated a claim under EFTA § 1693l-1, which prohibits charging service fees to “general-use prepaid cards.” A general-use prepaid card does not include a card that “is not marketed to the general public.” The panel held that the released inmates belonged to the general public, which they rejoined upon release, and defendants indirectly marketed the cards to the released inmates. The panel further held that the district court abused its discretion in denying plaintiff leave to file a third amended complaint reinstating her EFTA claims under both § 1693l-1 and § 1693i, which prohibits the issuance, absent certain disclosures, of unsolicited validated cards that provide access to a “consumer’s account.” The panel held that a consumer account includes the sort of prepaid account that the released inmates received. The panel reversed the district court’s grant of summary judgment to defendants on plaintiff’s per se takings claim. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BROWN V. STORED VALUE CARDS, INC. 3 Assuming without deciding that defendants were state actors, the panel concluded that the release cards were not the functional equivalent of cash or a check because the value of the cards quickly and permanently deteriorated. The panel remanded for the district court to consider in the first instance the reasonableness of the fees assessed on the cards. The panel also reversed the district court’s grant of summary judgment on plaintiffs’ state law claims, and remanded the case to the district court for further proceedings. COUNSEL Karla Gilbride (argued), Public Justice, P.C., Washington, D.C.; Mark Adam Griffin and Daniel Parke Mensher, Keller Rohrback LLP, Seattle, Washington; Benjamin Wright Haile, Attorney, Portland, Oregon; for Plaintiff-Appellant. Eric Nystrom (argued), John C. Ekman, and Natalie I. Uhlemann, Fox Rothschild LLP, Minneapolis, Minnesota, for Defendants-Appellees. Hassan Zavareei, Anna C. Haac, ...
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