By the Division of Banks


COMMONWEALTH OF MASSACHUSETTS

Suffolk, SS.

COMMISSIONER OF BANKS
NON-BANK ELECTRONIC
BRANCH SUPERVISION
Docket No. 2012-037-CO

CONSENT ORDER

In the Matter of

MERRIMAK ATM GROUP, LLC
Rohnert Park, CA


WHEREAS MERRIMAK ATM GROUP, LLC (Merrimak or the Company), with its main business office located at 5420 State Farm Drive, Suite B, Rohnert Park, California, has entered into a STIPULATION AND CONSENT TO THE ISSUANCE OF A CONSENT ORDER (CONSENT AGREEMENT) with representatives of the Division of Banks (Division) dated May 20, 2013, whereby, solely for the purpose of settling this matter, Merrimak agrees to the issuance of this CONSENT ORDER (Consent Order) by the Commissioner of Banks (Commissioner);

WHEREAS, the Division of Banks (Division), through the Commissioner, has jurisdiction over the regulation of persons and entities engaged in the business of providing non-bank automated teller machines (ATMs), pursuant to the Division’s regulation, 209 C.M.R. 31.06;

WHEREAS, Merrimak is, and at all relevant times, has been approved by the Commissioner, as a foreign company conducting business in the Commonwealth of Massachusetts. Merrimak’s main office is located at 5420 State Farm Drive, Suite B, Rohnert Park, California;

WHEREAS, pursuant to M.G.L. c. 93A, §6, the Division, in conjunction with the Office of the Attorney General conducted an investigation relating to Merrimak’s alleged failures to post and/or post in the proper form, disclosures and signage at certain ATMs in violation of the Division’s regulation 209 C.M.R. 31.06(3) (The Investigation);

WHEREAS, as a result of its investigation, the Division alleges that, in many instances, Merrimak failed to conform to Division of Banks regulation 209 C.M.R. 31.06(3) and that this failure violated the Massachusetts Consumer Protection Act, M.G.L. c. 93A, § 2(a);

WHEREAS, the parties now seek to resolve by mutual agreement, the matters identified in the Order;

WHEREAS, without this Consent Order constituting an admission by Merrimak of any allegations made or implied by the provisions of the Order; solely for the purpose of settlement of all alleged violations.

ORDER

NOW COME the parties in the above-captioned matter, the Division and Merrimak, and stipulate and agree as follows:

  1. Within forty-five (45) days of the date of this Consent Order, Merrimak shall revise its procedures to ensure that all non-bank ATM disclosures used by the Company are in compliance with 209 C.M.R. 31.06.
    1. Merrimak shall take all necessary steps to ensure that disclosures and signage, including fee disclosures, are made in accordance with 209 C.M.R. 31.06(3).
    2. Merrimak shall establish, implement and maintain a system of internal controls to monitor the Company’s compliance with 209 C.M.R. 31.06(3).
    3. Merrimak shall establish, implement and maintain a system to monitor ongoing compliance at company ATMs.
    4. Merrimak shall establish, implement and maintain rigorous policies and procedures to ensure that all disclosures comply with 209 C.M.R. 31.06(3) and are thoroughly reviewed by senior management prior to publication or placement upon Merrimak ATMs. Upon request by the Division, Merrimak shall provide a copy of its policies and procedures for review.
    5. Merrimak shall establish as necessary policies and procedures to ensure that individuals performing on behalf of Merrimak act in accordance with the policies and procedures established pursuant to paragraph 1(d) above. Merrimak shall also develop a system to monitor and evaluate third party vendors who are acting on its behalf to ensure that such vendors are complying with Merrimak’s policies and procedures established pursuant to paragraph 1(d) above.
  2. Within 120 days of the date of this Order, Merrimak or its agent shall visit each of its ATMs in Massachusetts and provide an initial report (Initial Report) to the Division that demonstrates compliance with 209 C.M.R. 31.06(3). For each ATM, the Initial Report shall include: 1) the address of the ATM; 2) ATM terminal identification number; 3) if it is located in a retail store or business, the name of that retail store or business; and 4) a spreadsheet containing a checklist indicating compliance or noncompliance with 209 CMR 31.06(3). Merrimak shall comply with 31.06(3)(a)(3) by posting the text required in that regulation, a copy which has been approved by the Division, in a clear and conspicuous manner within two (2) feet of each ATM. Merrimak shall comply with 31.06(3)(b)(2) by posting the text required in that regulation, a copy of which has been approved by the Division, in a clear and conspicuous manner affixed to each ATM within a five (5) inch radius of the screen. The Initial Report shall be sent to the Commissioner of Banks, Massachusetts Division of Banks, 1000 Washington Street, 10th Floor, Boston, MA 02118-6400.
  3. For a period of two (2) years after the submission of its Initial Report to the Division, Merrimak shall provide, every one (1) year, a follow-up report (Follow-Up Report) to the Division confirming that each ATM in Massachusetts remains in compliance with applicable laws and regulations. Each Follow-Up Report shall include the same types of information as those required for the Initial Report. Each Follow-Up Report shall be sent to Commissioner of Banks, Massachusetts Division of Banks, 1000 Washington Street, 10th Floor, Boston, MA 02118-6400.
  4. Nothing in this Consent Order shall be construed as permitting Merrimak to violate any law, rule, regulation, or regulatory bulletin to which Merrimak is subject.
  5. Failure to comply with the terms of this Consent Order shall constitute grounds for revocation of approval pursuant to applicable provisions of the General Laws of the Commonwealth of Massachusetts.
  6. This Consent Order shall become effective immediately upon the date of its issuance.
  7. The provisions of this Consent Order shall be binding upon Merrimak and its officers and directors, and their successors or assigns.
  8. The provisions of this Consent Order shall remain effective and enforceable except to the extent that, and until such time as, any provisions of this Consent Order shall have been modified, terminated, suspended, or set aside by the Commissioner or upon an order of a court of competent jurisdiction.
  9. This Consent Order and the Consent Agreement are the complete documents representing the resolution of this matter. There are no other agreements between the Division and Merrimak.

BY ORDER AND DIRECTION OF THE COMMISSIONER OF BANKS:

Dated at Boston, Massachusetts, this 20th day of May, 2013

By:
David J. Cotney
Commissioner of Banks
Commonwealth of Massachusetts