Cherry

MEMORANDUM *

Plaintiff-appellant Jim H. Cherry appeals from the district court’s dismissal of his complaint and from the court’s award of attorneys’ fees to defendant-appellee, Bank of America. Cherry is the holder of a “Flight Fund” credit card issued by Bank of America in accordance with its contract with America West Airlines. He claims that he and his putative class are entitled to damages under the Truth in Lending Act, and under state law, in connection with the alleged failure of Bank of America to lower the interest rate on his credit card pursuant to an agreement Bank of America and the airline reached after his credit card was issued.

Cherry claims the district court erred in holding that he was not a third-party beneficiary of the contract between the bank and the airline. The district court did not err. The issue is one of Arizona law. Under Arizona law, a party may recover as a third party beneficiary to a contract only where: 1) the contract itself indicates an intention to benefit the third party; 2) the benefit contemplated is intentional and direct; and 3) the parties to the contract intend to recognize the putative third party beneficiary as the primary party…