On November 5, 2014, the US Court of Appeals for the Fifth Circuit held in Mabary v. Home Town Bank, N.A. that the plaintiffs' claim fell within the scope of the relation back doctrine and therefore was still viable. The court also held that an amendment to the Electronic Funds Transfer Act (EFTA) did not apply retroactively to bar the plaintiffs' claim (No. 13-20211 (5th Cir. Nov. 5, 2014)).

Named plaintiff Mabary commenced this class action alleging violations of the EFTA against Home Town Bank on behalf of herself and all others similarly situated on October 19, 2010. At that time, the EFTA required that any ATM operator who imposed a fee on users provide notice of the fee in two places, both externally at the ATM and on the screen of the ATM or a paper printout before the transaction is completed (15 U.S.C. § 1693b(d)(3)(B)). Mabary completed one or more transactions at Home Town ATMs, resulting in a $2.00 fee. There was no dispute that Mabary viewed an on-screen notice of the fee, but she claimed that the ATM lacked the externally posted notice required by the statute.

In February 2011, Home Town made an Offer of Judgment to Mabary under FRCP 68 in an amount it considered to be the total of Mabary's individual claim. Mabary rejected the offer and filed an amended complaint and motion for class certification. In December 2012, Congress amended the statute to eliminate the requirement that notice be posted twice. In July 2013, the US District Court for the Southern District of Texas denied Mabary's motion for class certification and dismissed her suit with prejudice, holding that Mabary's claim did not survive the EFTA amendment. The court also concluded that class members could not become parties to the litigation on the basis of a class claim that no longer existed. Marbary appealed to the Fifth Circuit.

The Fifth Circuit vacated the district court's denial of class certification and remanded the case back to the district court. In so holding, the court explained that although an offer of complete relief, whether or not it is accepted, typically moots a plaintiff's claim, here the "relation back" exception applied. The "relation back" exception prevents a defendant from mooting a named plaintiff's individual claim before the court has ruled on class certification if a plaintiff has timely and diligently pursued a motion for class certification that is eventually granted. The doctrine allows certification to relate back to the filing of the complaint, when the named plaintiff's claims were a live controversy.

The Fifth Circuit further held that the US Supreme Court's decision in Genesis Health Corp. v. Symczyk did not undermine the relation back doctrine (133 S. Ct. 1523 (2013)). The Fifth Circuit noted that the Supreme Court did not decide "whether an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot" when the class has not yet been certified, a question that has caused a split among the circuit courts. Because Mabary did not voluntarily accept a full settlement offer before filing a motion for class certification and because Home Town's offer of judgment did not satisfy both the individual and class-wide statutory maximum claims, the case fell within the scope of the relation back doctrine as defined by the Fifth Circuit.

Finally, the Fifth Circuit ruled that the EFTA amendment eliminating the "two notice" provision did not have retroactive effect and therefore did not invalidate the plaintiffs' claim. The court based this holding on:

Counsel should be aware that there is a circuit split regarding the application of the relation back doctrine where there has been an offer of judgment that has not been accepted.