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Oral Argument Before the Hawaii Supreme Court

No. SCAP-11-0000599 Thursday, October 31, 2013, 8:45 a.m.

TIMOTHY VANDEVEER, individually and on behalf of all others similarly situated, Respondent/Plaintiff-Appellee, vs. AMERICAN SAVINGS BANK, AMERICAN SAVINGS HOLDING, INC., Petitioners/Defendants-Appellants.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioners/Defendants-Appellants: 

Terrence J. O’Toole, Mark J. Bennett, Sharon V. Lovejoy, and Brandi B. Balanda of Starn O’Toole Marcus & Fisher

Attorneys for Respondent/Plaintiff-Appellee: 

James J. Bickerton of Bickerton Lee Dang & Sullivan; John F. Perkin and Brandee J.K. Faria of Perkin & Faria

NOTE: Certificate of recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/07/12.

NOTE: Order assigning Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused, filed 12/17/12.

NOTE: Order granting Application for Transfer, filed 12/18/12.

COURT: MER, CJ; PAN, SSM, & RWP, JJ.; Circuit Court Judge Chang, in place of Acoba, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioners American Savings Bank and American Savings Holding, Inc. appeal from the Circuit Court of the First Circuit’s (circuit court) July 15, 2011 order denying their Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment. This appeal arises out of a class action lawsuit brought by Respondent Timothy Vandeveer against Petitioners, based primarily on allegations that Petitioners re-sequence customer checking account transactions in order to increase overdraft charges and associated fees.

At issue is whether Respondent’s state law claims of unconscionability, conversion, unjust enrichment, and unfair or deceptive acts are preempted by federal regulations governing deposit-related activities of federal savings and loan associations (S&L). Petitioners maintain that the circuit court erred in finding genuine issues of material fact with respect to the preemption issue, given that federal law preempts the application of state laws to regulate or otherwise affect an S&L’s deposit-related activities. Respondent maintains that the governing federal body lacked authority to preempt state laws by regulation and alternatively, that his state law claims are not preempted because they are based on state laws of general application.