Ratner v. Chemical Bank New York Trust Company

• Decision Date: 03 March 1970
• Docket Number: No. 69 Civ. 4195.,69 Civ. 4195.
• Citation: 309 F. Supp. 983
• Parties: Michael RATNER, for himself and all others similarly situated, Plaintiff, v. CHEMICAL BANK NEW YORK TRUST COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

309 F. Supp. 983

Michael RATNER, for himself and all others similarly situated, Plaintiff, v. CHEMICAL BANK NEW YORK TRUST COMPANY, Defendant.

No. 69 Civ. 4195.

United States District Court, S. D. New York.

December 24, 1969.

On Rehearing March 3, 1970.

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Jack Greenberg and Philip G. Schrag, New York City, for plaintiff.

Cravath, Swaine & Moore, by John W. Barnum, Howard G. Kristol, New York City, for defendant.

CANNELLA, District Judge.

Defendant moves for an order staying any further proceedings herein until twenty days after a ruling is obtained from the Federal Reserve Board, which the defendant asserts has primary jurisdiction in this controversy. The motion is denied.

Plaintiff alleges in his complaint that the defendant has violated the Consumer Credit Protection Act¹ hereinafter "Act" in regard to its billing practices under a Master Charge Credit plan. The violation alleged is that the defendant fails to notify all participants in the plan, whether assessed a finance charge or not, of the annual interest rate each time they are billed.² The defendant at present apparently notifies only those participants who have actually incurred a finance charge. The facts in the case are essentially not in dispute, and the issue raised is basically a question of law: whether defendant's practices violate the Act and Regulation Z.

Defendant contends that the Federal Reserve Board has primary jurisdiction in this matter since the defendant is a member of the Federal Reserve System,³ and that this court should, in accordance with the doctrine of primary jurisdiction, allow the Board to initially determine the issues in this case. Defendant asserts that the Board's jurisdiction is derived from 15 U.S.C. § 1607(a) (1) (B), which states in part:

(a) Compliance with the requirements imposed under this subchapter shall be enforced under

(1) section 1818 of Title 12, in the case of * * *

(B) Member banks of the Federal Reserve System (other than national banks), by the Board.

This Section, in conjunction with 12 U. S.C. § 1818, allows the Board, in effect, to act as a policeman over its member banks. It does not allow a private party to bring an action before the Board to seek redress or injunctive relief for any violation of the Act. However, the Act does provide a civil remedy for private persons under 15 U.S.C. § 1640, and subsection (e) thereunder gives any United States District Court jurisdiction over such an action. The court finds that the two sections thus provide separate jurisdiction for separate remedies — § 1607 when the Federal Reserve Board acts on its own initiative; and § 1640 when a private party brings a civil action under the Act.⁴

When there is no dual jurisdiction between the district court and the administrative agency, the doctrine of primary jurisdiction does not operate. See Armour & Co. v. Alton R. R., 312 U.S. 195, 61 S.Ct. 498, 85 L.Ed. 771 (1941); Davis, Administrative Law 363 (1965); 2 Am.Jur.2d, Administrative Law § 789.

Even assuming arguendo that the Board does have concurrent jurisdiction here with the district court, the doctrine of primary jurisdiction is nevertheless inapplicable. As stated previously, the facts in this controversy are essentially not in dispute. What is involved here is a question of law, to wit, whether the defendant has complied with the Act and Regulation Z. When only a question of law is involved, the doctrine is not applicable. Rather, the district court will retain jurisdiction since the administrative agency's expertise in the particular field which would be useful in resolving complicated questions of fact is not required. See Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 521, 78 S.Ct. 851, 2 L.Ed. 2d 926 (1958) (Frankfurter, J., dissenting); United States v. Western Pacific R. R., 352 U.S. 59, 62-70, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); New York, Susquehanna & Western R. R. v. Follmer, 254 F.2d 510 (3d Cir. 1958); 2 Am.Jur.2d Administrative Law § 793. This case is unlike Chambers v. Beatty, 281 F.Supp. 711 (S.D.N.Y.1968), which involved the general accounting practices of banks⁵, and thus necessitated the exercise of the Board's expertise in that area. In addition, that case involved a complicated factual pattern, whereas this case involves essentially a question of law.

Although the doctrine of primary jurisdiction is in general applied to insure uniformity of treatment and regulation, its application and the granting of a stay pending administrative action rests in the sound discretion of the court considering all the facts and circumstances presented to it. The question of law presented in this case not only concerns the defendant and the other member banks of the Federal Reserve System, it transcends that limited group and will undoubtedly have a bearing on the other institutions extending an open line of credit to their customers. The Board does not directly regulate these other creditors. In the interests of uniformity and interpretation of the Act, and to best carry out the objectives of Congress in passing the Act, it would be most desirable to have this court pass upon the questions of law involved herein as soon as possible, without a prior determination of the Board.⁶ Any determination of the Board would be reviewable in the courts,⁷ and needless delay should be avoided.

Accordingly, this court, after a consideration of all the facts and circumstances surrounding this case, finds that the doctrine of primary jurisdiction is inapplicable and, exercising its discretion, denies the defendant's motion for a stay.

On Motion for Reargument

Defendant moves for reargument of its application for a stay in this action pending a determination by the Board of Governors of the Federal Reserve System hereinafter "Board" which was denied by this court in an opinion filed December 30, 1969. In the alternative, the defendant moves for an amendment of this court's prior decision and order so as to include a certification for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

The motion for reargument is granted, and pursuant to General Rule 9(m) of this Court, the court has reconsidered its prior decision and order without directing the parties to orally reargue or file affidavits. Upon reconsideration, the court adheres to its original decision and order. The certification pursuant to 28 U.S.C. § 1292(b) requested by the defendant is denied.

The defendant asserts in its motion to reargue that this court was in error when it concluded that the Board did not have concurrent jurisdiction with this court over plaintiff's action seeking damages for defendant's failure to comply with the Consumer Credit Protection Act.¹ Defendant argues that although the Senate Bill² did not contain any provision for administrative enforcement, both the House Bill³ and the Act contain such a provision, thus making the doctrine of primary jurisdiction operable. But this provision does not necessarily mean that both the Board and this court have concurrent jurisdiction over this dispute. The administrative enforcement section of the Act was enacted by Congress in the hope that private action by consumers would not be required. This was due in part to recognition by Congress that most of the consumers who are preyed upon by unscrupulous creditors or merchants would not have the financial means to institute legal actions to assert their rights under the Act. Thus, the various administrative agencies were given enforcement power to act on their own initiative in the hope that they would protect the "unsophisticated consumer".⁴ They were empowered, as the court stated in its previous opinion, to act, in effect, as policemen over their various areas of responsibility. However, when a given agency has taken no action on its own initiative and it becomes necessary that a private party bring an action, the courts were specifically authorized and empowered by the Act to give him relief. 15 U.S.C. § 1640. It would, in this court's opinion, be incongruous for Congress, on the one hand, to be so concerned with the fact that consumers, in the main, would lack funds to seek relief⁵ and, on the other, to require them, if they did seek such relief, to proceed before two bodies — first, the applicable administrative body in order to ascertain if the Act and Regulation Z had been violated, and then the courts to obtain damages. This is true since, as the defendant concedes,⁶ the administrative body, in this case the Board, cannot give the plaintiff the same relief as the court. It could, at most in this case, issue a cease and desist order pursuant to 12 U.S.C. § 1818 and could not give plaintiff damages. Section 1640 of the Act which provides for damages and civil liability specifically confers jurisdiction only on "any United States district court, or in any other court of competent jurisdiction"⁷ and not upon any administrative agency. In addition, this court has been unable to ascertain any authority which would require the Board to proceed with a cease and desist hearing, although it is possible for plaintiff to petition it to hold such a hearing. Indeed, even if the Board chose to hold a hearing and ultimately issued a cease and desist order here, it would be a pyrrhic victory for the plaintiff. Plaintiff does not seek a cease and desist order, nor does he demand any injunctive relief. What he does seek are the damages for the wrong allegedly done to him that are provided for by 15 U.S.C. § 1640(a).

As previously asserted,⁸ even assuming arguendo that the Board does have concurrent jurisdiction with this court, none of the necessities for the exercise of prior administrative action are present herein. There is no question of administrative discretion involved. For example, the Board does not set any rates, nor in this case grant exemptions. In fact, Section 1637(b) and Regulation Z, 12 C.F.R. § 226.7(b), do not vary materially from one...