northern district of new york tina thompson and …

000118/01339047_1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

TINA THOMPSON and SCOTT DOXEY, on

behalf of themselves and all others similarly

situated,

Plaintiffs,

vs.

COMMUNITY BANK, N.A.,

Defendant.

CASE NO. 8:19-cv-0919-MAD-CFH

NOTICE OF PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL

APPROVAL OF CLASS ACTION SETTLEMENT AND APPLICATION FOR ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS

PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in Support of

Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement and Application for

Attorneys’ Fees and Costs and Service Awards, the Joint Declaration of Class Counsel, and the

Declaration of Cameron Azari, Esq. on Implemental and Adequacy of Settlement Notice Plan,

Plaintiffs Tina Thompson and Scott Doxey and Class Counsel will move the Court, before the

Honorable Mae A. D’Agostino, on August 25, 2021 at 12:30 p.m. at the United States District Court

for the Northern District of New York, 445 Broadway, Courtroom 5, Albany, New York 12207, for

an order granting Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement and

Application for Attorneys’ Fees and Costs and Service Awards.

Case 8:19-cv-00919-MAD-CFH Document 71 Filed 07/12/21 of 2

000118/01339047_1 2

Dated: July 12, 2021 By: /s/ Jonathan M. Streisfeld Jeff Ostrow (pro hac vice) Jonathan M. Streisfeld (pro hac vice) KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas Boulevard, Suite 500 Fort Lauderdale, Florida 33301 Telephone: 954-525-4100 Facsimile: 954-525-4300 [email protected] [email protected] James R. Peluso, Esq. (105634) DREYER BOYAJIAN LLP 75 Columbia Street Albany, New York 12210 Telephone: (518) 463-7784 [email protected]

Jeffrey D. Kaliel (pro hac vice) Sophia G. Gold (pro hac vice) KALIEL PLLC 1100 15th St., NW, 4th Floor Washington, D.C. 20005 (202) 350-4783 [email protected] [email protected]

Counsel for Plaintiffs and the Settlement Classes

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 12, 2021, the foregoing was filed via CM/ECF, which

caused a true and correct copy to be served to all counsel of record.

Respectfully submitted, By: /s/ Jonathan M. Streisfeld Jonathan M. Streisfeld

Case 8:19-cv-00919-MAD-CFH Document 71 Filed 07/12/21 of 2




situated,

Plaintiffs,

vs.


Defendant.


MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND APPLICATION FOR ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS

Case 8:19-cv-00919-MAD-CFH Document 71-1 Filed 07/12/21 Page 1 of 42

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TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................................... 1

II. BACKGROUND ....................................................................................................................................... 2

A. Procedural History ........................................................................................................................ 2

B. The Settlement Terms .................................................................................................................. 5

1. The Settlement Class .......................................................................................................... 5

2. Relief for the Benefit of the Settlement Class ................................................................. 5

a. Settlement Fund and Forgiveness of Uncollected Overdraft Fees ................... 5

b. Allocation of the Settlement Class Member Payments ....................................... 6

c. Distribution of Settlement Class Member Payments........................................... 6

d. Disposition of Residual Funds ................................................................................ 7

e. Practice Change – Modified Disclosures ............................................................... 7

3. Releases ................................................................................................................................. 8 4. The Notice Program ........................................................................................................... 8 5. Class Representatives Service Awards .............................................................................. 9 6. Attorneys’ Fees and Costs ................................................................................................ 10

III. ARGUMENT ............................................................................................................................................ 10

A. The Legal Standard for Final Approval ................................................................................... 10 B. This Settlement Satisfies the Criteria for Final Approval ...................................................... 11

1. This Settlement Is the Product of Good Faith, Informed and Arm’s Length

Negotiations ....................................................................................................................... 12 2. The Facts Support a Determination That the Settlement Is Fair,

Adequate and Reasonable. ............................................................................................... 12

a. The Risks of Establishing Liability and Damages Demonstrate That This Settlement is Within the Range of Reasonableness in Light of All Attendant Risks of Litigation and Relative to the Best Possible Recovery. ... 13

b. The Reaction of Settlement Class Members to the Proposed Settlement. ..... 16

c. The Expense, Complexity, and Likely Duration of Further Litigation

Favor Settlement. .................................................................................................... 16


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d. The Risk of Maintaining Class Action Status Throughout Trial Favors

Settlement. ................................................................................................................ 18 e. The Extent of Discovery Completed and the Stage of the Proceedings

Favor Settlement ..................................................................................................... 18

f. Effectiveness of Distributing Relief, the Release and Equitable Treatment of Class Members Favor Approval ................................................... 19

g. The Terms of Any Proposed Award of Attorneys’ Fees Favor Approval ..... 20

C. Notice to the Settlement Class Was Adequate and Satisfied Rule 23 and Due Process ... 20 D. Certification of the Settlement Class Is Appropriate ............................................................. 21 E. Notice Pursuant to the Class Action Fairness Act (CAFA) .................................................. 22 F. Application for Attorneys’ Fees ................................................................................................ 22

1. The Standard for Awarding Attorneys’ Fees to Class Counsel .................................. 23 2. Goldberger Factors ........................................................................................................... 24

a. The Magnitude and Complexities of Litigation .................................................. 24 b. Risks of Litigation ................................................................................................... 25 c. Quality of Representation ...................................................................................... 26 d. Requested Fee in Relation to the Settlement ...................................................... 26 e. Public Policy Considerations ................................................................................. 28 f. The Time and Labor Expended by Counsel and Lodestar Cross-Check ....... 29

G. Application for Service Award .................................................................................................. 32 H. Reimbursement of Costs ............................................................................................................ 33

IV. CONCLUSION ........................................................................................................................................ 33


iii

TABLE OF AUTHORITIES

Cases Page(s)

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ................................................................................................................................. 22

Anyoku v. World Airways (In re Nig. Charter Flights Litig.), No. MD 2004-1613 (RJD)(MDG), 2011 U.S. Dist. LEXIS 155180 (E.D.N.Y. Aug. 25, 2011) ....................................................................................................................... 26

Arbuthnot v. Pierson, 607 F. App’x 73 (2d Cir. 2015) .............................................................................................................. 30

Baudin v. Res. Mktg. Corp., LLC, No. 1:19-cv-386 (MAD/CFH), 2020 U.S. Dist. LEXIS 146280 (N.D.N.Y. Aug. 13, 2020) .. 13, 26

Bellifemine v. Sanofi-Aventis U.S. LLC, 2010 U.S. Dist. LEXIS 79679 (S.D.N.Y. Aug. 6, 2010) ..................................................................... 18

Bodnar v. Bank of Am., N.A., No. 14-3224, 2016 U.S. Dist. LEXIS 121506 (E.D. Pa. Aug. 4, 2016) ........................................... 15

Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) ......................................................................................................................... 23

Capsolas v. Pasta Res. Inc., 2012 WL 4760910 (S.D.N.Y. Oct. 5, 2012) ......................................................................................... 24

Cavalieri v. GE, No. 06cv315 (GLS/DRH), 2009 U.S. Dist. LEXIS 68693 (N.D.N.Y. Aug. 5, 2009) .................. 17

Charron v. Weiner, 731 F.3d 241 (2d Cir. 2013) .................................................................................................................... 17

Christine Asia Co. v. Jack Yun Ma, No. 1: 15-md-02631, 2019 U.S. Dist. LEXIS 179836 (S.D.N.Y. Oct. 16, 2019) .............. 13, 17, 18

City of Detroit v. Grinnell Corp. 495 F.2d 448 (2d Cir. 1974) .................................................................................................................... 10

City of Providence v. Aéropostale, Inc., 2014 U.S. Dist. LEXIS 64517 (S.D.N.Y. May 9, 2014) ..................................................................... 30

Cornwell v. Credit Suisse Grp., No. 08-cv-03758 (VM), 2011 WL 13263367 (S.D.N.Y. July 20, 2011) ........................................... 31

Cruz v. Sal-Mark Rest. Corp., No. 1:17-CV-0815 (DJS), 2019 U.S. Dist. LEXIS 13529, at *16 (N.D.N.Y. Jan. 28, 2019). .................................................................................................................. 14, 15


iv

D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) ................................................................................................................ 11, 4

Davis v. J.P. Morgan Chase & Co., 827 F. Supp. 2d 172 (W.D.N.Y. 2011) ................................................................................................. 31

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ................................................................................................................................... 2

Dornberger v. Metro. Life Ins. Co., 203 F.R.D. 118 (S.D.N.Y. 2001) ............................................................................................................. 20

Ferrick v. Spotify USA Inc., No. 16-cv-8412 (AJN), 2018 U.S. Dist. LEXIS 86083 (S.D.N.Y. May 22, 2018) .......................... 19

Fresno Cty. Emps.’s Ret. Ass’n v. Isaacson/Weaver Family Tr., 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) ......................................................................................... 23

Gilliam v. Addicts Rehab. Ctr. Fund, 925 F.3d 63 (2d Cir. 2019) ...................................................................................................................... 24

Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000) ................................................................................................................. passim

Goodwin v. Boesky (In re Ivan F. Boesky Sec. Litig.), 888 F. Supp. 551 (S.D.N.Y. 1995) ......................................................................................................... 29

Guevoura Fund Ltd. v. Sillerman, No. 1:15-cv-07192-CM, 2019 U.S. Dist. LEXIS 218116 (S.D.N.Y. Dec. 18, 2019) ............. passim

Guippone v. BH S&B Holdings LLC, 2016 U.S. Dist. LEXIS 134899 (S.D.N.Y. Sep. 23, 2016). ................................................................. 18

Hanifin v. Accurate Inventory & Calculating Serv., No. 11 Civ. 1510, 2014 U.S. Dist. LEXIS 115710 (N.D.N.Y. Aug. 20, 2014). .......................... 17, 31

Hawthorne v. Umpqua Bank, No. 11-cv-06700-JST, 2015 U.S. Dist. LEXIS 56370 (N.D. Cal. Apr. 28, 2015) .......................... 16

In re Austrian and German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000) ..................................................................................................... 19

In re Checking Account Overdraft Litig., No. 1:09-MD-02036-JLK, 2013 U.S. Dist. LEXIS 190562 (S.D. Fla. Aug. 2, 2013) .................... 16

In re Checking Account Overdraft Litig., No. 1:09-MD-02036-JLK,2015 U.S. Dist. LEXIS 193690 (S.D. Fla. May 22, 2015) .................... 15

In re Colgate-Palmolive Co. ERISA Litig., 36 F. Supp. 3d 344 (S.D.N.Y. 2014) ........................................................................................ 23, 29, 31


v

In re Flag Telecom Holdings, Ltd. Sec. Litig., 2010 WL 4537550 (S.D.N.Y. Nov. 8, 2010) ........................................................................................ 30

In re GSE Bonds Antitrust Litig., No. 19-cv-1704 (JSR), 2020 U.S. Dist. LEXIS 104842 (S.D.N.Y. June 16, 2020) .......................... 10

In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467 (S.D.N.Y. 2009) ................................................................................................... 24

In re Med. X-Ray Film Antitrust Litig., No. CV-93-5904, 1998 WL 661515 (E.D.N.Y. Aug. 7, 1998) .......................................................... 24

In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11 (E.D.N.Y. 2019) ................................................................................................................. 20

In re Platinum & Palladium Commodities Litig., No. 10cv3617, 2015 U.S. Dist. LEXIS 98691 (S.D.N.Y. July 7, 2015) ........................................... 30

In re Sinus Buster Prods. Consumer Litig., 2014 U.S. Dist. LEXIS 158415 (E.D.N.Y. Nov. 10, 2014) ............................................................... 13

In re Telik, Inc. Sec. Litig., 576 F. Supp. 2d 570 (S.D.N.Y. 2008) ................................................................................................... 31

James v. China Grill Mgmt., 2019 U.S. Dist. LEXIS 72759 (S.D.N.Y. Apr. 30, 2019) ................................................................... 31

Johnson v. Brennan, No. 10-cv- 4712, 2011 U.S. Dist. LEXIS 105775 (S.D.N.Y. Sep. 16, 2011) .................................. 31

Johnson v. Cmty. Bank, N.A., No. 3:12-CV-01405, 2013 U.S. Dist. LEXIS 167319 (M.D. Pa. Nov. 25, 2013) ........................... 15

Kirby v. FIC Rest., Inc., No. 5:19-CV-1306 (FJS/ML), 2020 U.S. Dist. LEXIS 178109 (N.D.N.Y. Sep. 28, 2020) ............ 11

Klein v. PDG Remediation, Inc., No. 95-cv-4954- DAB, 1999 WL 38179 (S.D.N.Y. Jan. 28, 1999) .................................................... 24

Landmen Partners, Inc. v. Blackstone Grp., L.P., No. 08-cv-03601-HB-FM, 2013 WL 11330936 (S.D.N.Y. Dec. 18, 2013) ...................................... 24

Marroquin Alas v. Champlain Valley Specialty of N.Y., Inc., No. 5:15-cv-00441 (MAD/TWD), 2016 U.S. Dist. LEXIS 79043 (N.D.N.Y. June 17, 2016) ................................................................................................................. 13, 14

Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d 650 (S.D.N.Y. 2015) ..................................................................................................... 19

Mohney v. Shelly’s Prime Steak, Stone Crab & Oyster Bar, 2009 U.S. Dist. LEXIS 27899 (S.D.N.Y. Mar. 31, 2009) ............................................................ 24, 27


vi

NECA-IBEW Health & Welfare Fund v. Goldman, Sachs & Co., No. 1:08-cv-10783-LAP, 2016 WL 3369534 (S.D.N.Y. May 2, 2016) ............................................. 31

Newman v. Stein, 464 F.2d 689 (2d Cir. 1972) .................................................................................................................... 14

Oneida Indian Nation v. Cty. of Oneida, 199 F.R.D. 61 (N.D.N.Y. 2000) ............................................................................................................ 18

Parkis v. Microsoft Corp., No. 5:09-CV-110 (FJS/GHL), 2009 U.S. Dist. LEXIS 47880 (N.D.N.Y. June 4, 2009) ............. 17

Raniere v. Citigroup Inc., 310 F.R.D. 211 (S.D.N.Y. 2015) ............................................................................................................ 24

Roberts v. Capital One, N.A., 719 F. App'x 33 (2d Cir. 2017), ............................................................................................................. 15, 25

Story v. SEFCU, No. 1:18-CV-764 (MAD/DJS), 2021 U.S. Dist. LEXIS 34909 (N.D.N.Y. Feb. 25, 2021) .. 26, 32

Torres v. Gristede’s Operating Corp., 519 F. App’x 1 (2d Cir. 2013) ................................................................................................................ 24

United States ex rel. Fox Rx, Inc. v. Omnicare, Inc., No. 12cv275 (DLC), 2015 U.S. Dist. LEXIS 49477 (S.D.N.Y. Apr. 15, 2015) ..................................................... 30

United States v. Glens Falls Newspapers, Inc., 160 F.3d 853 (2d Cir. 1998) .................................................................................................................... 17

Wal-Mart Stores v. Visa U.S.A., 396 F.3d 96 (2d Cir. 2005) ................................................................................................................ passim

Woburn Ret. Sys. v. Salix Pharm., Ltd., No. 14-CV-8925 (KMW), 2017 WL 3579892 (S.D.N.Y. Aug. 18, 2017) ........................................ 31

Rules and Statutes 28 U.S.C. Section 1715(b) ............................................................................................................................. 22 Federal Rules of Civil Procedure 23 ..................................................................................................... passim Federal Rules of Civil Procedure 23(a) ................................................................................................. 21, 33 Federal Rules of Civil Procedure 23(b)(3) .................................................................................... 2, 5, 22, 33 Federal Rules of Civil Procedure 23(e) ................................................................................................ 10, 13 Federal Rules of Civil Procedure 23(e)(2) ................................................................................ 10, 11, 12, 19


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Federal Rules of Civil Procedure 23(e)(3) ................................................................................................... 11 Other Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical Legal Stud. 811 (2010) ................................................................................................................................... 27


1

I. INTRODUCTION

Plaintiffs Tina Thompson and Scott Doxey submit this Memorandum of Law in Support of

their Unopposed Motion for Final Approval of Class Settlement and Application for Attorneys’ Fees

and Costs and Service Award.1 The Settlement Agreement (“Agreement”), attached as Exhibit A, if

approved, will resolve all claims against Defendant Community Bank, N.A., in the Action. The

Settlement should be finally approved because it provides substantial relief for the Settlement Class

and the Settlement terms are reasonable and consistent with Second Circuit precedent.

Given the material risks inherent in this Action, the Settlement is an excellent result for the

Settlement Class. The Settlement provides for $3,460,833.02 for the Settlement Class—including a

cash payment of $2,850,000.00 and an agreement to forgive, waive, and agree not to collect an

additional $610,833.02 in Uncollected Overdraft Fees. Further, as result of this litigation, Defendant

has improved its disclosures of the challenged practices.

Keystones of the Settlement include that the Settlement Fund will automatically be distributed

or credited to Settlement Class Members with no claims process and no reversion to Community

Bank. Community Bank’s data is used to determine which checking Account holders incurred

Relevant Overdraft Fees, and a formula is applied to calculate each Settlement Class Member’s

distribution. The allocation plan fairly and adequately accounts for the value of each Settlement Class

Member’s damages. Class Counsel is seeking attorneys’ fees of 33.33% of the Value of the Settlement,

reimbursement of reasonable costs, and a $5,000.00 Service Award for each of the Plaintiffs.

Since Preliminary Approval of the Settlement on May 6, 2021, the Settlement Administrator

properly completed the Court-approved Notice Program. To date, no Settlement Class Member has

objected to the Settlement, Class Counsel’s request for attorneys’ fees and costs, or the Service Award,

1 All capitalized terms in this memorandum shall have the same meanings as those defined in the Settlement Agreement.


2

and only one Settlement Class member has opted-out of the Settlement. The absence of objections to

date and the low number of opt-outs shows that the Settlement Class fully supports approval of the

Settlement and that it warrants Final Approval.2

In support of the Motion, Plaintiffs submit a Joint Declaration from Class Counsel Jeff

Ostrow and Jeffrey Kaliel (“Decl.”), attached as Exhibit B, and a Declaration from the Settlement

Administrator (“Admin. Decl.”), attached as Exhibit C. Plaintiffs and Class Counsel respectfully

request that the Court: (1) grant Final Approval of the Settlement; (2) certify for settlement purposes

the Settlement Class pursuant to Federal Rule of Civil Procedure 23(b)(3); (3) appoint Plaintiffs as

Class Representatives; (4) appoint Kopelowitz Ostrow Ferguson Weiselberg Gilbert and Kaliel Gold

PLLC as Class Counsel; (5) grant Class Counsel’s Application for Attorneys’ Fees and Costs and

Service Award; and (6) enter Final Judgment dismissing the Action with prejudice.

II. BACKGROUND

A. Procedural History

For efficiency’s sake, Plaintiffs provide a brief summary of the history of the case, but do not

duplicate the more detailed history provided in their Motion for Preliminary Approval, Dkt. No. 63.

On July 26, 2019, former Plaintiff Charles Kelly filed a putative class action complaint in the

Action seeking damages, restitution, and declaratory relief arising from the allegedly unfair and

unconscionable assessment and collection of APPSN Fees and Account Verification Fees. Dkt. No.

1.

On October 10, 2019, Community Bank’s pre-motion letter requested the right to move to

dismiss the Complaint, which Plaintiffs opposed on October 15, 2019. Dkt. No. 25, 27. During the

pre-motion conference, the Court permitted its filing. On November 15, 2019, Community Bank

2 Should any timely objection be asserted following the filing of this Motion, a response will be filed.


3

moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Dkt. No. 35.

On December 15, 2019, Plaintiff Charles Kelly moved to amend the Complaint, to add two

new Plaintiffs, Tina Thompson and Scott Doxey. Dkt. No. 39. In addition, Plaintiff Kelly also

responded to Community Bank’s Motion to Dismiss, asserting that the amended complaint would

render the Motion to Dismiss moot. Id. Community Bank opposed the filing of an amended

complaint.

On February 18, 2020, the Court granted in part and denied in part Plaintiff’s motion to amend

and granting in part and denied in part Community Bank’s motion to dismiss. In pertinent part,

Plaintiff Charles Kelly’s individual claims were dismissed, and leave to amend was granted for the

APPSN Fee claim and Account Verification Fee claim3 under a breach of contract theory, finding

both claims would survive a motion to dismiss. Dkt. No. 41.

On February 28, 2020, Plaintiffs Thompson and Doxey filed the Amended Complaint, alleging

claims on behalf of two classes for breach of the Account agreement. On March 13, 2020, Community

Bank filed its Answer and Affirmative Defenses. Dkt. No. 42. Subsequently, the Parties initiated the

discovery process with Plaintiffs Thompson and Doxey serving document requests and interrogatories

on March 24, 2020, to which Community Bank served its written responses on June 29, 2020 and

produced over 1,000 pages of documents. Decl. ¶¶ 10-11.

The Parties conferred about Community Bank’s discovery objections, resulting in Plaintiffs’

letter motion on September 30, 2020. Dkt. No. 51. Community Bank opposed it on October 7, 2020.

Dkt. No. 53. On October 16, 2020, Plaintiffs also moved for a discovery conference, which was

granted. Dkt. No. 55, 56, 57. The Parties jointly requested the discovery conference be canceled

3 The Amended Complaint alleges this claim as the assessment of Overdraft Fees on “phantom transactions,” when a company deposits and then immediately withdraws a small amount of money in order to verify the existence of the account.


4

simultaneously with their Notice of Settlement on October 20, 2020, which was granted. Dkt. No. 58,

59, 60.

On October 14, 2020, the Parties mediated with a nationally-renowned mediator with

substantial consumer banking claims experience, Professor Eric D. Green. Decl. ¶ 12. The mediation

did not result in settlement, but further negotiations lead to agreement to the material settlement

terms. Id.

On October 20, 2020, the Parties filed a Notice of Settlement, confirming their agreement in

principle and requesting that the Court stay all deadlines in the Action pending the Parties execution

of the Agreement and the filing of this Motion. Dkt. No. 59. The Parties finalized and signed the

Agreement on November 23, 2020. The Court preliminarily approved the proposed Settlement on

May 6, 2021, and the Parties thereafter worked to provide notice to the Settlement Class.

The Settlement was reached only after significant investigation and litigation. Class Counsel

spent many hours investigating the claims of several potential plaintiffs against Community Bank.

Decl. ¶ 13. Class Counsel interviewed a number of Community Bank customers to gather information

about Community Bank’s conduct and its impact upon consumers, which was essential to their ability

to understand the nature of the Community Bank’s conduct, the language of the Account agreement

and other documents at issue, and potential remedies. Id. ¶ 14.

The issues were heavily contested at the Motion to Dismiss stage, following which the Parties

initiated discovery. Id. ¶ 15. Class Counsel, along with its damages expert, spent a significant amount

of time analyzing data regarding Community Bank’s fee revenue related to the assessment of the

APPSN Fees and the Account Verification Fees at issue. Id. ¶ 16. The Parties conferred regarding the

calculations’ accuracy, with Community Bank retaining its own expert. Prior to mediation, Class

Counsel and Plaintiffs’ expert used this data to analyze the damages at issue. Id. ¶ 17.

Consequently, Class Counsel mediated with Mediator Eric D. Green fully informed of the


5

merits of Settlement Class members’ claims and negotiated the proposed Settlement while zealously

advancing the position of Plaintiffs and Settlement Class members and being fully prepared to

continue to litigate rather than accept a settlement that was not in the best interest of Plaintiffs and

the Settlement Class. Id. ¶ 18. After the mediation, Mr. Green continued to actively participate in the

settlement discussions and helped the Parties reach an acceptable compromise. Id. ¶ 19.

B. The Settlement Terms

1. The Settlement Class.

The Settlement Class is a Federal Rule of Civil Procedure 23(b)(3) opt-out class, defined as

“all current and former customers of Community Bank with consumer checking accounts, who were

charged a Relevant Overdraft Fee during the Class Period.” Agreement ¶49. Relevant Overdraft Fees

include both APPSN Fees and Account Verification Fees. Id. ¶45. It includes both the APPSN Fee

Class and the Account Verification Fee Class. Excluded from the Settlement Class is Community

Bank, its parents, subsidiaries, affiliates, officers and directors; all Settlement Class members who make

a timely election to be excluded; and all judges assigned to this litigation and their immediate family

members. Id. ¶49. The Class Period is from January 1, 2015 to December 31, 2019. Id. ¶21.

2. Relief for the Benefit of the Settlement Class.

a. Settlement Fund and Forgiveness of Uncollected Overdraft Fees

The total Value of the Settlement is $3,460,833.02 consisting of Community Bank’s: (a)

commitment to a establish and pay a cash Settlement Fund of $2,850,000.00; and its (b) agreement to

forgive, waive, and not collect $610,833.02 in Uncollected Overdraft Fees. Decl. ¶ 20. The Settlement

Fund will be used to: (a) pay Settlement Class Members their respective cash Settlement Class Member

Payments; (b) Class Counsel for any Court awarded attorneys’ fees and costs; (c) any Court awarded

Service Award for the Class Representatives; (d) Settlement Administration Costs; and (e) if funds

remain after the initial distribution to Settlement Class Members, to distribute to a cy pres recipient.


6

Agreement ¶¶ 57, 77. Settlement Class Members who are entitled to forgiveness, waiver, and the

agreement not to collect assessed, but unpaid Relevant Overdraft Fees will receive their benefits from

the Uncollected Overdraft Fees. Id. ¶50. A Settlement Class Member may qualify for both a Settlement

Class Member Payment and forgiveness of Uncollected Overdraft Fees by virtue having paid one or

more Relevant Overdraft Fees and having been assessed at least one other Relevant Overdraft Fee

that was not paid and thus became an Uncollected Overdraft Fee. Id. ¶59.

Settlement Class Members do not have to submit claims or take any other affirmative step to

receive relief under the Settlement. Instead, as soon as practicable, but no later than 90 days following

the Effective Date of the Settlement, Community Bank and the Settlement Administrator will

distribute the Net Settlement Fund to all Settlement Class Members. Id. ¶ 76(d)(iii).

Uncollected Overdraft Fees shall be fully forgiven within 10 days after the Effective Date. Id.

¶76(iv). In doing so, Community Bank shall update any negative reporting to Chexsystems or credit

reporting agencies with respect to Settlement Class Members who receive such debt forgiveness. Id.

b. Allocation of the Settlement Class Member Payments

Of the $2,850,000.00 paid into the Settlement Fund, $2,830,000 (99.3%) is allocated to the

APPSN Fee Class and $20,000.00 (.7%) is allocated to the Account Verification Fee Class. Id. ¶ 76(d).

If applicable, Settlement Class Members may receive payments as members of the APPSN Fee Class

and the Account Verification Fee Class. Id. Based on this allocation, payments from the Net

Settlement Fund to the Settlement Class Members are calculated on a pro rata basis. Id. ¶ 76(d)(i-ii).

c. Distribution of Settlement Class Member Payments

Settlement Class Members who are Current Account Holders will receive a credit in the

amount of their Settlement Class Member Payments applied to any account they are maintaining

individually at the time of the credit. Id. ¶76(d)(iii). If by the deadline to apply such credits Community

Bank is unable to complete certain credit(s), Community Bank shall deliver the total of such


7

unsuccessful Settlement Class Member Payment credits to the Settlement Administrator to be paid by

check using the procedure for payments to Past Account Holders. Id.

Settlement Class Members who are Past Account Holders when the Net Settlement Fund is

distributed or at that time do not have an individual account shall be sent a check by the Settlement

Administrator at the address used to provide the Notice, or at such other address as the Settlement

Class Member designates. Id. For jointly held accounts, checks will be payable to all customers and

mailed to the first customer listed on the account. Id. The Settlement Administrator will make

reasonable efforts to locate the proper address for any check returned by the Postal Service as

undeliverable and will re-mail it once to the updated address or, in the case of a jointly held account,

and in the Settlement Administrator’s discretion, to an accountholder other than the one listed first.

Id. The Settlement Class Member shall have one-hundred 180 days to negotiate the check. The total

value of checks uncashed after 180 days shall be distributed to a Court-approved cy pres recipient. Id.

d. Disposition of Residual Funds

Within one year after the date the Settlement Administrator mails the first Settlement Class

Member Payment, any remaining amounts resulting from uncashed checks shall be distributed to an

appropriate cy pres recipient agreed to by the Parties and approved by the Court. Id. ¶77. In no event

shall any portion of the Settlement Fund revert to Community Bank. Id. ¶76(iv).

e. Practice Change – Modified Disclosures

Effective January 1, 2020, after this Action was filed, Community Bank modified its

disclosures to better inform members they may incur Overdraft Fees on Debit Card transactions

authorized against a positive available balance, if at the time of settlement, the account balance is

negative. Decl. ¶ 21. This practice change inures to the benefit of Settlement Class Members and other

Community Bank customers, which has and will continue to result in millions of dollars of savings. Id.


8

3. Releases.

In exchange for the Settlement benefits, all Settlement Class Members will be deemed to have

released Community Bank from claims relating to the Action’s subject matter. The Releases are set

forth in Section XI of the Agreement.

4. The Notice Program.

The Settlement Administrator, Epiq Class Action & Claims Solutions, Inc., has overseen the

Notice Program, which was designed to provide the best notice practicable and is tailored to take

advantage of the information Community Bank has available about the Settlement Class. Decl. ¶ 22;

Admin Dec. ¶ 8. The Notice Program was reasonably calculated to apprise Settlement Class members

of the material terms of the Settlement; a deadline to exclude themselves from the Settlement Class; a

deadline to object to the Settlement; the Final Approval Hearing date; and the Settlement Website

address to access the Agreement and other related documents. Agreement ¶63 and Exhibits 1-2. The

Notice and Notice Program has provided sufficient notice to all persons entitled to notice, satisfying

all applicable requirements of law, including Rule 23 and constitutional due process.

The Notice Program has been comprised of three parts: (1) direct Postcard Notice to all

Settlement Class members who did not agree to receive notices from Community Bank by email, or

for whom the Settlement Administrator is unable to send Email Notice using the email address

provided by Community Bank; (2) direct Email Notice to those Settlement Class members who agreed

to receive account statements from Community Bank by email; and (3) Long Form Notice containing

more detail than the Postcard Notice and Email Notice posted on the Settlement Website and available

by U.S. mail on request to the Settlement Administrator. Id. ¶¶ 67-69 and Ex. 1-2 thereto.

The Long Form Notice describes the procedure that Settlement Class members must follow

to (a) opt-out of the Settlement or (b) object to the Settlement; Class Counsel’s application for

attorneys’ fees and costs, or the Service Awards for the Plaintiffs. The opt-outs must be postmarked


9

no later than July 26, 2021, and objections must be postmarked by the same day. Id. ¶¶ 36, 64.

The Notice Program (Postcard Notice and Email Notice, including the Notice Re-Mailing

Process) has now been completed, prior to the filing of this Motion for Final Approval.

Prior to providing Notice, the Settlement Administrator established a

website, www.CommunityOverdraftSettlement.com, as well as a toll-free line, for Settlement Class members

could access or call to receive answers to frequently asked questions and additional information about

the Settlement, including the Long Form Notice. Admin. Decl. ¶¶ 21-22.

Notices were sent each Settlement Class members in the manner explained above. On May

26, 2021, the Settlement Administrator mailed the Postcard Notice to 34,831 Settlement Class

members, at their last known mailing addresses after updating through the National Change of

Address database. Id. ¶¶ 14-15. For returned notices, the Settlement Administrator performed skip

trace searches to attempt to locate an updated address and remail the notice. Id. ¶ 16. In total, 32,547

Postcard Notices were delivered, without return. Id.

On May 26, 2021, the Settlement Administrator sent the Email Notices to 16,834 Settlement

Class Members. Id. ¶ 17. This group also includes those Settlement Class Members who elected to

receive notices by mail, but whose mailing address was not accurate. In total, 14,550 Email Notices

were delivered, without return. Id. ¶ 18.

The combination of successfully delivered Postcard and Email Notices reached 95% of the

46,404 Settlement Class member account records. Id. ¶ 20. To date, no Settlement Class Members

have objected, and only one has elected to opt-out. Id. ¶ 24. These numbers will be updated, if

necessary, after the opt-out and objection deadline.

5. Class Representatives Service Awards.

Class Counsel seeks a Service Award of $5,000.00 for each of the Class Representatives to be

paid from the Settlement Fund, in addition to the Settlement Class Member Payments the Plaintiffs


10

will be entitled to receive, to compensate them for their time and effort and for the risks they assumed

in prosecuting the Action. Agreement ¶ 76(b). Specifically, Plaintiffs provided integral assistance that

enabled Class Counsel to successfully prosecute the Action and reach the Settlement, including: (1)

submitting to interviews with Class Counsel; (2) locating and forwarding documents and information

to Class Counsel; (3) participating in conferences with Class Counsel; and (4) reviewing the settlement

documentation. Id. Community Bank does not object to the requested Service Awards. Id. ¶ 76(b).

6. Attorneys’ Fees and Costs.

Class Counsel has not been paid for their extensive efforts or reimbursed for litigation costs.

Decl. ¶ 23. They are entitled to request, and Community Bank does not oppose, attorneys’ fees of up

to 33.33% of the Value of the Settlement, as well as reimbursement of litigation costs incurred in

connection with the Action. Agreement ¶ 76(a); Decl. ¶ 23. The Parties negotiated and reached

agreement regarding fees and costs only after agreeing on all material Settlement terms. Decl. ¶ 24.

Such award is subject to Court approval and will serve to compensate for the time, risk and expense

Plaintiffs’ counsel incurred pursuing claims for the Settlement Class.

III. ARGUMENT

A. The Legal Standard for Final Approval.

Courts, including the Second Circuit, have emphasized the “strong judicial policy in favor of

settlements, particularly in the class action context.” Wal-Mart Stores v. Visa U.S.A., 396 F.3d 96, 116

(2d Cir. 2005). Fed. R. Civ. P. 23(e) requires court approval before a class action can be dismissed via

a settlement. “In order to grant final approval of a proposed settlement under Federal Rule of Civil

Procedure 23(e)(2), the Court must find ‘that it is fair, reasonable, and adequate.’ The Court considers

a number of factors laid out in Rule 23(e)(2), as well as in City of Detroit v. Grinnell Corp., 495 F.2d 448,

463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000),

to determine whether this standard has been met.” In re GSE Bonds Antitrust Litig., No. 19-cv-1704


11

(JSR), 2020 U.S. Dist. LEXIS 104842, at *10 (S.D.N.Y. June 16, 2020).

At the final approval stage, Rule 23(e)(2) requires courts to consider whether:

(A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims, if required; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3);[4] and

(D) the proposal treats class members equitably relative to each other. To evaluate the Settlement’s fairness, the Court must examine its procedural fairness under

Rule 23(e)(2)(A)-(B) and substantive fairness under 23(e)(2)(C)-(D). Kirby v. FIC Rest., Inc., No. 5:19-

CV-1306 (FJS/ML), 2020 U.S. Dist. LEXIS 178109, at *4 (N.D.N.Y. Sep. 28, 2020). Both are satisfied.

B. This Settlement Satisfies the Criteria for Final Approval.

The relevant factors weigh in favor of Final Approval. First, the Settlement was reached in the

absence of collusion, and is the product of good faith, informed and arm’s length negotiations by

competent counsel, making it procedurally fair. Furthermore, a review of the substantive factors

related to the Settlement’s fairness, adequacy and reasonableness demonstrates that Final Approval is

warranted. Any settlement requires the parties to balance the claims’ merits and the defenses asserted

against the attendant risks of continued litigation and delay. Plaintiffs believe they asserted meritorious

claims and would prevail if this matter proceeded to trial. Community Bank argues the claims are

unfounded, denies any potential liability, and up to the point of settlement indicated a willingness to

litigate those claims vigorously. Decl. ¶ 25. The Parties concluded that the benefits of settlement

outweigh the risks and uncertainties of continued litigation, as well as the attendant time and expenses

associated with contested class certification proceedings and possible interlocutory appellate review,

4 There is no such agreement to be identified. The only agreement is the Settlement Agreement.


12

completing class discovery, pretrial motion practice, trial, and finally appellate review. Id.

1. This Settlement Is the Product of Good Faith, Informed and Arm’s Length Negotiations.

The Settlement in this case is the result of intensive, arm’s-length negotiations between

experienced attorneys familiar with class action litigation and with the legal and factual issues of this

Action. Id. ¶ 36. In assessing procedural fairness, courts examine the negotiating process leading to

the settlement. D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). A strong initial presumption

of fairness attaches to the proposed settlement if, as here, the settlement is reached after discovery by

experienced counsel and after arm’s length negotiations. Wal-Mart Stores, Inc., 396 F.3d at 116.

Class Counsel is particularly experienced in the litigation, certification, trial, and settlement of

nationwide class action cases in the financial services industry. Decl. ¶¶ 2, 38. In negotiating this

Settlement in particular, Class Counsel had the benefit of years of experience and familiarity with the

facts of this case as well as with other cases involving overdraft fees across the country. Id. ¶¶ 3-7.

Class Counsel conducted a thorough investigation and analysis of Plaintiffs’ claims and engaged in

extensive motion practice throughout this Action. Id. ¶ 27. Class Counsel reviewed over 1,000 pages

of Community Bank’s documents and a separate production of transactional data and engaged a data

expert to analyze Community Bank’s sample data to determine whether a class could be ascertained

and to support Plaintiffs’ future motion for class certification. Id. ¶¶ 11, 28. Class Counsel was able

to accurately evaluate the strengths and weakness of Plaintiffs’ claims. Id. ¶ 30. Finally, Class Counsel

used an experienced mediator to achieve this Settlement. This factor supports Final Approval.

2. The Facts Support a Determination That the Settlement Is Fair, Adequate and Reasonable.

A review of the relevant factors supports a determination that the Settlement should be finally

approved under Rule 23(e)(2). The Second Circuit has identified nine Grinnell factors that should be

considered in determining the substantive fairness of the Settlement:


13

(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.

495 F.2d at 463. In applying these factors, “not every factor must weigh in favor of [the] settlement,

rather the court should consider the totality of these factors in light of the particular circumstances.”

Marroquin Alas v. Champlain Valley Specialty of N.Y., Inc., No. 5:15-cv-00441 (MAD/TWD), 2016 U.S.

Dist. LEXIS 79043, at *11 (N.D.N.Y. June 17, 2016). As applied here, the Grinnell factors weigh

heavily in favor of Final Approval.5 These factors remain applicable even after the 2018 amendment

of Rule 23(e), which clarified the factors quoted above. Christine Asia Co. v. Jack Yun Ma, No. 1:15-md-

02631 (CM) (SDA), 2019 U.S. Dist. LEXIS 179836, at *37 (S.D.N.Y. Oct. 16, 2019) (“The Court

understands the new Rule 23(e) factors to add to, rather than displace, the Grinnell factors.”).

a. The Risks of Establishing Liability and Damages Demonstrate That This Settlement is Within the Range of Reasonableness in Light of All Attendant Risks of Litigation and Relative to the Best Possible Recovery

Courts typically analyze the final two Grinnell factors together, the range of reasonableness of

the settlement in light of the best possible recovery, and the range of reasonableness of the settlement

fund to a possible recovery in light of all the attendant risks of litigation. Baudin v. Res. Mktg. Corp.,

LLC, No. 1:19-cv-386 (MAD/CFH), 2020 U.S. Dist. LEXIS 146280, at *22 (N.D.N.Y. Aug. 13,

5 The sole Grinnell factor which does not favor settlement is the ability of the defendant to withstand a larger settlement; however, this standing alone is not reason to reject the Settlement. In re Sinus Buster Prods. Consumer Litig., 2014 U.S. Dist. LEXIS 158415, at *26 (E.D.N.Y. Nov. 10, 2014) (collecting cases); Guevoura Fund Ltd. v. Sillerman, No. 1:15-cv-07192-CM, 2019 U.S. Dist. LEXIS 218116, at *26-27 (S.D.N.Y. Dec. 18, 2019) (“[T]he ability of defendants to pay more, on its own, does not render the settlement unfair. Rather, the reasonableness of the Settlement is better analyzed in light of the amount of the Settlement compared to the substantial risks Lead Plaintiffs faced in proving liability and damages, and not on whether the Director Defendants could have paid more.”) (quotations omitted); accord D’Amato, 236 F.3d at 86.


14

2020); Marroquin Alas, 2016 U.S. Dist. LEXIS 79043, at *14; Cruz v. Sal-Mark Rest. Corp., No. 1:17-

CV-0815 (DJS), 2019 U.S. Dist. LEXIS 13529, at *16 (N.D.N.Y. Jan. 28, 2019). The Court must

decide if the Settlement falls within a “range of reasonableness” which “recognizes the uncertainties

of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking

any litigation to completion.” Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972).

The $3,460,833.02 Value of the Settlement is an excellent result given the Action’s complexity

and the significant litigation barriers looming without settlement. The dispute centers on Community

Bank’s allegedly unfair and misleading assessment of APPSN Fees and Account Verification Fees.

With this Settlement, Plaintiffs have achieved their desired goal of compensating class members

charged such fees during the Class Period. While Plaintiffs’ best-case scenario is a 100% refund of the

APPSN Fees and Account Verification Fees paid, there was a substantial risk that Plaintiffs would not

achieve such a result. Prior to Settlement, Community Bank sought dismissal. Although that was

denied, success on the merits in not certain. Community Bank contends that the relevant Account

agreements are unambiguous, and even if they were, the extrinsic evidence resolves the ambiguity in

its favor on the whether the fees at issue are permitted. Moreover, Community Bank would argue that

a subsequently-added arbitration provision would prohibit certification of some or all of the class

claims. Thus, although Plaintiffs believe they have a strong case, Plaintiffs might not certify the classes

or would lose at summary judgment or trial, or on appeal. Decl. ¶ 32.

The Value of the Settlement represents approximately 39% of the APPSN Fees and Account

Verification Fees allegedly wrongly charged to the Settlement Class, without the inherent litigation

risks, is a very fair and reasonable recovery. The Settlement Fund alone is 32% of the probable

damages. This is an excellent result when compared to the results in other overdraft cases. Decl. ¶ 33.

“The prompt, guaranteed payment of the settlement money increases the settlement’s value in

comparison to some speculative payment of a hypothetically larger amount years down the road.”


15

Guevoura Fund Ltd. v. Sillerman, No. 1:15-cv-07192-CM, 2019 U.S. Dist. LEXIS 218116, at *30

(S.D.N.Y. Dec. 18, 2019) (internal citation omitted).

Moreover, while Plaintiffs and Class Counsel are confident their case is strong, they are also

pragmatic in their awareness of Community Bank’s defenses, and the risks inherent to litigation despite

defeating Community Bank’s motion to dismiss, as well as establishing both liability and damages.

This is a crucial factor favoring settlement, as Courts routinely approve settlements where parties

would have faced significant legal and factual obstacles to establishing liability. Cruz, 2019 U.S. Dist.

LEXIS 13529 at *14 (“[l]itigation inherently involves risks.”). “In analyzing these factors, the adequacy

of the amount offered in settlement must be judged ‘not in comparison with the possible recovery in

the best of all possible worlds, but rather in light of the strengths and weaknesses of plaintiffs’ case.’”

Guevoura Fund Ltd, 2019 U.S. Dist. LEXIS 218116, at *28.6

This Settlement either meets or exceeds dozens of court-approved recoveries in overdraft fee

class actions. See, e.g., Roberts v. Capital One, N.A., Case No: No. 16 Civ. 4841 (LGS) (S.D.N.Y. Dec. 2,

2020) (“Class members. . .will receive approximately 35% of the maximum that they could have

received.”); Johnson v. Cmty. Bank, N.A., No. 3:12-CV-01405, 2013 U.S. Dist. LEXIS 167319, at *17

(M.D. Pa. Nov. 25, 2013) (“the Settlement Fund is estimated at 50% of the most likely recovery”); see

also Bodnar v. Bank of Am., N.A., No. 14-3224, 2016 U.S. Dist. LEXIS 121506, at *12 (E.D. Pa. Aug.

4, 2016) (cash fund of between 13 and 48 percent of the maximum amount of damages they may have

been able to secure at trial, and describing such a result as a “significant achievement” and

outstanding”); In re Checking Account Overdraft Litig., No. l:09-MD-02036-JLK, 2015 U.S. Dist. LEXIS

193690, at *37 (S.D. Fla. May 22, 2015) ($31,767,200 settlement representing approximately 35% of

6 See also In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 461 (S.D.N.Y. 2004) (noting that

“the certainty of [a] settlement amount has to be judged in [the] context of the legal and practical obstacles to obtaining a large recovery”).


16

the most probable aggregate damages); Hawthorne v. Umpqua Bank, No. 11-cv-06700-JST, 2015 U.S.

Dist. LEXIS 56370, at *9 (N.D. Cal. Apr. 28, 2015) ($2.9 million settlement that was approximately

38% of damages); In re Checking Account Overdraft Litig., No. 1:09-MD-02036-JLK, 2013 U.S. Dist.

LEXIS 190562, at *3-4 (S.D. Fla. Aug. 2, 2013) ($4,000,000 settlement that was 25% of the most

probable recoverable damages).

Under the circumstances, Plaintiffs and Class Counsel appropriately determined that the

Settlement outweighs the gamble of continued litigation. Decl. ¶ 34. This Settlement provides

substantial relief to Settlement Class Members without delay. Id. ¶ 35.

Finally, as discussed above, the Settlement is the product of arm’s-length negotiations

conducted by the Parties’ experienced counsel with the assistance of a well-respected mediator. Id. ¶

36. These negotiations led the Parties to a Settlement that Class Counsel believes to be fair, reasonable,

and in the best interest of the Settlement Class. Id. ¶ 37. Given Class Counsel’s experience in these

cases, Class Counsel’s assessment in this regard is entitled to considerable deference. The benefits are

fair and reasonable in light of Community Bank’s defenses, and the challenging and unpredictable

litigation path in the absence of settlement. Id. ¶ 38.

b. The Reaction of Settlement Class Members to the Proposed Settlement

The Reaction of the Settlement Class has been overwhelmingly positive to date. Out of

approximately 46,406 Settlement Class members, only one has opted-out by the day this Motion was

filed, and no objections have been filed. Admin Decl. ¶ 24. Following the Opt-Out Period and

objection deadline, Class Counsel will file an updated declaration from the Settlement Administrator

advising the Court as to any additional opt-outs or any objection, if applicable.

c. The Expense, Complexity, and Likely Duration of Further Litigation Favor Settlement

The traditional means for handling claims like those at issue here would tax the court system,


17

require a large expenditure of public and private resources, and given the relatively small value of the

claims of the individual Settlement Class Members, is impracticable. Indeed, the complexity, expense,

and likely duration of litigation is critical in evaluating the reasonableness of a class action settlement.

Charron v. Weiner, 731 F.3d 241, 247 (2d Cir. 2013). Settlements are favored in class actions, which in

general have a well-deserved reputation as being most complex. Christine Asia Co., 2019 U.S. Dist.

LEXIS 179836, at *34-35.

Recovery by any means other than settlement would require additional years of litigation in

this Court and the Second Circuit. Delay, both at the trial stage, and through post-trial motions and

appeals, could force the Class to wait even longer, further reducing its value.7 Decl. ¶ 39.

Here, Final Approval will mean a present recovery for Settlement Class Members. While

Plaintiffs believes the Action has merit and that the Settlement Class ultimately would prevail at trial,

continued litigation would last for an extended period before any judgment might be entered. Hanifin

v. Accurate Inventory & Calculating Serv., No. 11 Civ. 1510, 2014 U.S. Dist. LEXIS 115710, at *13

(N.D.N.Y. Aug. 20, 2014); Parkis v. Microsoft Corp., No. 5:09-CV-110 (FJS/GHL), 2009 U.S. Dist.

LEXIS 47880, at *2 (N.D.N.Y. June 4, 2009).

Settling now with the benefit of Community Bank’s analysis of Settlement Class membership

provides immediate and substantial benefits to Settlement Class Members, avoiding the significant

costs and risks of continuing litigation, including considerable fees incurred by experts. This factor

militates heavily in favor of the Settlement. as “[the settlement of complex class action litigation is

favored by the courts.” Cavalieri v. GE, No. 06cv315 (GLS/DRH), 2009 U.S. Dist. LEXIS 68693, at

*4 (N.D.N.Y. Aug. 5, 2009). Settling now on such favorable terms is, therefore, in the Settlement

7 See United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 856 (2d Cir. 1998) (noting that “a principal

function of a trial judge is to foster an atmosphere of open discussion among the parties’ attorneys and representatives so that litigation may be settled promptly and fairly so as to avoid the uncertainty, expense and delay inherent in a trial”).


18

Class’s best interests. See Oneida Indian Nation v. Cty. of Oneida, 199 F.R.D. 61, 77 (N.D.N.Y. 2000).

Therefore, the proposed Settlement is the best vehicle for Settlement Class Members to receive the

relief to which they believe they are entitled in a prompt and efficient manner.

d. The Risk of Maintaining Class Action Status Throughout Trial Favors Settlement

Whether the Action would be tried as a class action is also relevant in assessing the Settlement’s

fairness. Guevoura Fund Ltd., 2019 U.S. Dist. LEXIS 218116, at *26. As the Court had not yet certified

a class when the Agreement was executed, it is unclear whether certification would have been granted.

The difficulty of certifying a class favors approving the Settlement. Guippone v. BH S&B Holdings LLC,

2016 U.S. Dist. LEXIS 134899, at *19 (S.D.N.Y. Sep. 23, 2016).8 Community Bank intended to

vigorously oppose the motion and argue against numerosity, commonality, typicality, adequacy, and

predominance, as well as argue that the subsequently-added arbitration provision would prohibit

certification of some or all of the class claims. Further, this litigation activity would have required the

expenditure of significant resources. Decl. ¶ 40. Accordingly, this factor weighs in favor of Final

Approval.

e. The Extent of Discovery Completed and the Stage of the Proceedings Favor Settlement

This Grinnell factor requires that the parties have engaged in sufficient investigation of the

facts “such that counsel possessed a record sufficient to permit evaluation of the merits of Plaintiffs

claims, the strengths of the defenses asserted by Defendants, and the value of Plaintiffs’ causes of

action for purposes of settlement.” Christine Asia Co., 2019 U.S. Dist. LEXIS 179836, at *43. Further,

“a sufficient factual investigation must have been conducted to afford the Court the opportunity to

8 See also Bellifemine v. Sanofi-Aventis U.S. LLC, No. 7 Civ. 2207 (JGK), 2010 U.S. Dist. LEXIS 79679, at *11 (S.D.N.Y. Aug. 6, 2010) (there “is no assurance of obtaining class certification through trial, because a court can reevaluate the appropriateness of certification at any time during the proceedings.”).


19

‘intelligently make . . . an appraisal’ of the Settlement.” Ferrick v. Spotify USA Inc., No. 16-cv-8412

(AJN), 2018 U.S. Dist. LEXIS 86083, at *31 (S.D.N.Y. May 22, 2018) (alteration in original) (quoting

In re Austrian and German Bank Holocaust Litig., 80 F. Supp. 2d 164, 176 (S.D.N.Y. 2000)). Class Counsel

devoted substantial time and resources investigating, litigating, and resolving this case. Plaintiffs settled

the Action with the benefit of Class Counsel’s years of experience litigating cases like this one,

discovery, and data and damage analysis. Decl. ¶ 41. Due to their extensive experience, the Parties’

counsel is well aware of the relative strengths and weaknesses of their respective cases, informing the

negotiations between counsel. Class Counsel’s analysis allowed them to confidently evaluate Plaintiffs’

claims’ strengths and weaknesses, the prospects for success at class certification and trial, and the

merits of claims and defenses, the risks attendant to continued litigation, and the benefits of settling.

The record provides sufficient information for this Court to determine that the Settlement is

fair. Class Counsel have shown their willingness to litigate this action and their past experience shows

that they will zealously represent their clients. Id. ¶¶ 42. The litigation has been hard-fought as the

Parties have engaged in motion practice and discovery, and extensive data and damage analysis.

Accordingly, this factor also weighs in favor of Final Approval. Plaintiffs therefore settled the Action

with the benefit of extensive fact, expert, and class discovery.

f. Effectiveness of Distributing Relief, the Release and Equitable Treatment of Class Members Favor Approval

Consideration under this Rule 23(e)(2) factor, which asks whether Class members are treated

equally relative to each other, also favors approval. Consideration here “could include whether the

apportionment of relief among class members takes appropriate account of differences among their

claims, and whether the scope of the release may affect class members in different ways that bear on

the apportionment of relief.” Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment. By

distributing Settlement proceeds on a pro rata basis, Settlement Class Members will be treated equitably.

Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d 650, 667 (S.D.N.Y. 2015).


20

Further, the scope of the Releases applies uniformly to Settlement Class Members and does

not affect the apportionment of the relief to Settlement Class Members. In re Payment Card Interchange

Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11, 47 (E.D.N.Y. 2019). The Releases are not a general

release of claims against Community Bank and are instead tailored to the Released Claims as expressly

defined in the Agreement. Agreement ¶ 82. Accordingly, this factor also favors Final Approval.

g. The Terms of Any Proposed Award of Attorneys’ Fees Favor Approval

Class Counsel has not been paid for their extensive efforts or reimbursed for litigation costs

incurred. Under the Agreement, Class Counsel are entitled to request, and Community Bank does not

oppose, attorneys’ fees of up to 33.33% of the Value of the Settlement, as well as reimbursement of

litigation costs incurred in connection with the Action. Agreement ¶ 87. The Parties negotiated and

reached agreement regarding fees and costs only after agreeing on all material terms of the Settlement.

Decl. ¶ 43. Upon consideration of the detailed analysis of Class Counsel’s application infra, this Court

should find that this factor weighs in favor of Final Approval.

C. Notice to the Settlement Class Was Adequate and Satisfied Rule 23 and Due Process

In addition to having personal jurisdiction over Plaintiffs, the Court also has personal

jurisdiction over all members of the Settlement Class because they received the requisite notice and

due process. Wal-Mart Stores, Inc., 396 F.3d at 114 (adequate notice must be fairly understood by the

average class member, fairly apprise prospective class members of the proposed settlement terms and

the options open to them and will satisfy due process when it informs class members of the allocation

of attorney’s fees and provide the final approval hearing date, time, and place); Dornberger v. Metro. Life

Ins. Co., 203 F.R.D. 118 (S.D.N.Y. 2001) (“Because adequate notice has been disseminated and all

potential Class Members have been given the opportunity to opt out of this class action, the Court

has personal jurisdiction over all Class Members.”).

As described more fully above, the Notice Program was designed to provide the best notice


21

practicable and was tailored to take advantage of the information Community Bank has available about

the Settlement Class. Decl. ¶ 44. It was reasonably calculated under the circumstances to apprise

Settlement Class members of: the material terms of the Settlement; the deadline for them to exclude

themselves from the Settlement Class; the deadline to object to the Settlement; the Final Approval

Hearing date; and the Settlement Website address to access the Agreement and other related

documents and information. Id. ¶45; Admin. Decl. ¶¶ 25-28. The Notice and Notice Program

constituted sufficient notice to all persons entitled to notice. Admin. Decl. ¶ 28. The Notice Program

satisfied all applicable requirements of law, including Fed. R. Civ. P. 23 and constitutional due process.

D. Certification of the Settlement Class Is Appropriate.

In its Preliminary Approval Order, the Court conditionally certified the Settlement Class for

Settlement purposes. (Dkt. No. 171). Now, for Settlement purposes, Plaintiffs respectfully request

that the Court finally certify the Settlement Class. As explained at Preliminary Approval, certification

for settlement purposes is appropriate under Fed. R. Civ. P. 23(a) and (b)(3) because:

(1) the Settlement Class of holders of 46,404 Settlement Class Members accounts is so

numerous that joinder of all members is impracticable, Decl. ¶ 46;

(2) there are questions of law or fact common to the Settlement Class including whether

Community Bank’s alleged systematic practice of assessing Relevant Overdraft Fees

breached its contract, Id. ¶ 47;

(3) Plaintiffs are typical of absent members of the Settlement Class as they were subjected to

the same Community Bank practices leading to the assessment of fees and suffered from

the same injuries, and she will benefit equally from the Settlement relief, Id. ¶ 48; and

(4) Plaintiffs’ interests are coextensive with, not antagonistic to, the interests of the Settlement

Class because Plaintiffs and the absent Settlement Class members have the same interest

in the Settlement’s relief, and the absent Settlement Class members have no diverging


22

interests, Id. ¶ 49. Plaintiffs are represented by qualified and competent counsel who

devoted substantial time to the litigation and have extensive experience and expertise

prosecuting complex class actions, including actions like the instant case. Id. ¶ 50.

Further, resolution of several thousand claims in one action is far superior to individual

lawsuits, because it promotes consistency and efficiency of adjudication. See Fed. R. Civ. P. 23(b)(3).9

For these reasons, the Court should certify the Settlement Class.

E. Notice Pursuant to the Class Action Fairness Act (CAFA)

CAFA requires a settling defendant to give notice of a proposed class settlement to appropriate

state and federal officials. 28 U.S.C. § 1715(b). The CAFA Notice of Proposed Settlement must supply

the information and documents set forth in 28 U.S.C. § 1715(b)(1)-(8). The Settlement Administrator

served the CAFA Notice, along with a CD containing the documents described in Section 1715(b).

See Admin. Decl. ¶ 13. The CAFA notice protects class members from a settlement that may be

deemed unfair or inconsistent with regulatory policies and from class action abuse. No regulatory

authorities have objected to date.

F. Application for Attorneys’ Fees

In this common fund Settlement, the Notice provides that Class Counsel will request an

attorneys’ fee of 33.33% of the Value of the Settlement. Agreement ¶76(a). As of filing this Motion,

there are zero objections to that fee amount. The Parties negotiated and reached agreement regarding

attorneys’ fees only after reaching agreement on all other material terms of this Settlement. Id. Class

Counsel’s application is subject to this Court’s approval to compensate them for their time, risk, and

expenses incurred pursuing claims for the Settlement Class. While discretionary, to the extent that the

9 “Confronted with a request for settlement-only class certification, a district court need not inquire

whether the case, if tried, would present intractable management problems . . . for the proposal is that there be no trial.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997).


23

Court wishes to perform a lodestar cross-check, it should be noted that there is a reasonable 2.576

lodestar multiplier as a result of the hard work Class Counsel performed. Decl. ¶ 51. For the reasons

stated below, Class Counsel’s application should be approved.

1. The Standard for Awarding Attorneys’ Fees to Class Counsel

“[A]…lawyer who recovers a common fund for the benefit of persons other than himself or

his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert,

444 U.S. 472, 478 (1980). The Second Circuit recognizes that a lawyer whose efforts create a common

fund should recover a reasonable fee. Central States Southeast & Southwest Areas v. Merck-Medco Managed

Care, LLC, 504 F.3d 229 (2d Cir. 2007).

In common fund settlements, courts in this Circuit typically look at the percentage-of-the-

fund method, with an optional lodestar crosscheck. Goldberger v. Integrated Resources, Inc., 209 F.3d 43,

50 (2d Cir. 2000). The “‘percentage of the fund’ method, [ ] is the trend in this Circuit.” In re Colgate-

Palmolive Co. ERISA Litig., 36 F. Supp. 3d 344, 348 (S.D.N.Y. 2014) (citing Wal-Mart Stores, 396 F.3d

at 121). Class Counsel is entitled to “a reasonable fee – set by the court – to be taken from the fund.”

Goldberger, 209 F.3d 50; see also Fed. R. Civ. P. 23(h). See also Fresno Cty. Emps.’s Ret. Ass'n v.

Isaacson/Weaver Family Tr., 925 F.3d 63, 68 (2d Cir. 2019) (“The common-fund doctrine is . . . rooted

in the courts’ ‘historic power of equity to permit’ a person who secures a fund for the benefit of others

to collect a fee directly from the fund.” (citation omitted)).

In addition to being far simpler, awarding a percentage of the fund is preferred and ‘“directly

aligns the interests of the class and its counsel and provides a powerful incentive for the efficient

prosecution and early resolution of litigation.’” In re Colgate-Palmolive Co. ERISA Litig., 36 F. Supp. 3d

at 348 (quoting Wal-Mart Stores, Inc., 396 F.3d at 121). This method further incentivizes class counsel

to obtain the largest possible recovery in the most efficient manner possible. Id. “The lodestar method,

on the other hand, disincentivizes early settlements, tempts lawyers to run up their hours, and ‘compels


24

district courts to engage in a gimlet-eyed review of line-item fee audits.’” Raniere v. Citigroup Inc., 310

F.R.D. 211, 220 (S.D.N.Y. 2015) (citing Wal-Mart Stores, Inc., 396 F.3d at 121). See also Torres v. Gristede’s

Operating Corp., 519 F. App’x 1, 3 (2d Cir. 2013) (trial courts evaluating fee requests “need not, and

indeed should not, become green-eyeshade accountants”).

The percentage method is an appropriate method of fee recovery here because, among other

things, it aligns Class Counsel’s interest in being paid a fair fee with the Settlement Class’s interests. It

achieves the maximum recovery in the shortest amount of time required under the circumstances, is

supported by public policy, has been recognized as appropriate by the Supreme Court for cases of this

nature, and represents the current trend in the Second Circuit.

The 33.33% requested fee is within the range of reason when considering the foregoing and

when analyzing the following guidelines set forth by the Second Circuit in Goldberger: (1) the time and

labor expended by counsel, (2) the magnitude of the litigation, (3) the risk of the litigation, (4) the

quality of the representation, (5) the requested fee in relation to the settlement, and (6) public policy

considerations. 209 F.3d at 50.10 Decl. ¶ 52.

2. Goldberger Factors

a. The Magnitude and Complexities of Litigation

The magnitude and complexity of the litigation weighs in favor of approval. Raniere, 310 F.R.D.

10 See, e.g., Capsolas v. Pasta Res. Inc., 2012 WL 4760910, at *8 (S.D.N.Y. Oct. 5, 2012) (“Class counsel’s request for onethird of the Fund is reasonable and consistent with the norms of class litigation in this circuit”); Mohney v. Shelly’s Prime Steak, Stone Crab & Oyster Bar, 2009 WL 5851465, at *5 (S.D.N.Y. Mar. 31, 2009) (noting “request for 33% of the Settlement Fund is typical”); Gilliam v. Addicts Rehab. Ctr. Fund, 2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008) (same); In re Med. X-Ray Film Antitrust Litig., No. CV-93-5904, 1998 WL 661515, *7 (E.D.N.Y. Aug. 7, 1998) (same); Klein v. PDG Remediation, Inc., No. 95-cv-4954- DAB, 1999 WL 38179, at *4 (S.D.N.Y. Jan. 28, 1999) (same). The one-third award is also common in the Second Circuit in much larger cases as well. See, e.g., Landmen Partners, Inc. v. Blackstone Grp., L.P., No. 08-cv-03601-HB-FM, 2013 WL 11330936, at *3 (S.D.N.Y. Dec. 18, 2013) (awarding 33.33% of $85 million recovery, plus expenses); In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467 (S.D.N.Y. 2009) (awarding 33.33% of $586 million).


25

at 221. This Action is complex presenting novel factual and legal issues, which have yet to be tried in

this Court or others. Id.; see also Decl. ¶ 53. Legally, the case involved complex issues which required

guidance from the Second Circuit in a similar case, Roberts v. Capital One, N.A., 719 F. App’x 33 (2d

Cir. 2017). Factually, the case was difficult as it involved the detailed review of back-end transactional

data from Community Bank, and review of several different versions of binding account contracts

during the relevant limitations period. While Plaintiffs prevailed at the motion to dismiss stage, the

fundamental contract construction issue remained unresolved when the Parties agreed to settle. Decl.

¶ 55. That issue, along with other merits issues and the yet to be filed and decided motion for class

certification, would have been litigated aggressively. Id. If Community Bank was successful in

opposing class certification or at trial, that would have prevented recovering anything at all.

b. Risks of Litigation

The Second Circuit has historically labeled the risk of success as ‘‘perhaps the foremost factor

to be considered in determining whether to award an enhancement.” Goldberger, 209 F.3d at 54).

Courts recognize that regardless of the perceived strength of a plaintiff’s case, liability is no sure thing.

Wal-Mart Stores, Inc., 396 F.3d at 118.

Plaintiffs’ Counsel took on considerable risk in filing and prosecuting this case. Indeed,

Community Bank argued strenuously that the Second Circuit’s decision in Roberts v. Capital One did

not apply to the instant matter, as a result of materially different contract language. Decl. ¶ 54.

Nevertheless, Class Counsel proceeded with the litigation and received a favorable order from the

Court at the motion to dismiss stage. However, that ruling leaves open the risk that the trier of fact

would determine that Community Bank was permitted to assess the challenged overdraft fees or

compel claims to individual arbitration. Id. ¶ 55. Thus, Class Counsel certainly invested extensive time

and costs with no guarantee of success.


26

c. Quality of Representation

Class Counsel are experienced in class action litigation, serving as Lead or Co-Lead Counsel

in dozens of consumer class actions in federal and state courts throughout the country. Decl. ¶ 56.

Counsel used their experience to obtain a great result for the Settlement Class. “[T]he quality of

representation is best measured by results, and such results may be calculated by comparing ‘the extent

of possible recovery with the amount of actual verdict or settlement.’” Goldberger, 209 F.3d at 55

(citation omitted). Here the Settlement representing a 39% recovery of the most probable damages is

an excellent result. Thus, the Court should easily find counsel achieved success. Decl. ¶ 57.

“The quality of opposing counsel is also important in evaluating the quality of class counsel’s

work.” See Anyoku v. World Airways (In re Nig. Charter Flights Litig.), No. MD 2004-1613, 2011 U.S.

Dist. LEXIS 155180, *28 (E.D.N.Y. Aug. 25, 2011). Community Bank is represented by Stuart Richter

of Katten Muchin, who has defended numerous financial institutions in class actions. Counsel have

professionally and zealously represented the Parties.

d. Requested Fee in Relation to the Settlement

The $1,153,610 requested fee, which is 33.33% of the Value of the Settlement, is reasonable

in light of the work performed, the results obtained, and falls within the range of common fund awards

in the Second Circuit. In considering the results, courts examine the value of both monetary and

injunctive relief. See Story, 2021 U.S. Dist. LEXIS 34909, at *25 (holding that the overall value of the

settlement, from which attorneys’ fees are calculated, comprises monetary as well as non-monetary

relief.); Baudin v. Res. Mktg. Corp., LLC, No. 1:19-cv-386 (MAD/CFH), 2020 U.S. Dist. LEXIS 146280,

at *7 (N.D.N.Y. Aug. 13, 2020) (awarding class counsels a 33% of the Settlement Fund). The results

achieved here, including recovery of 39% of the disputed amounts plus other non-monetary relief in

the form of account disclosure changes, demonstrate the excellent results achieved through the

Settlement.


27

The attorneys’ fee requested is lower than what would be requested in individual contingent

fee litigation, which generally start at 33.33% of any recovery and frequently go up to 40% or more.

Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical

Legal Stud. 811, 830 (2010) (the attorneys’ fees generally awarded to class action lawyers are lower

than what “contingency-fee lawyers receive in individual litigation, which are usually at least 33

percent.”); see also Decl. ¶ 58. As discussed above, courts in this circuit have found an award of 33.33%

of a class settlement as the benchmark to be fair, reasonable, and within the range of what is normally

awarded for a class settlement. See Guevoura Fund Ltd., 2019 U.S. Dist. LEXIS 218116, at *46

(compiling cases awarding 33% for settlements between $6,750,000 and $21,000,000, and noting

reasonable paying clients typically pay one-third pursuant to contingent fee agreements). See also Mohney

v. Shelly’s Prime Steak, Stone Crab & Oyster Bar, 2009 U.S. Dist. LEXIS 27899, at *16 (S.D.N.Y. Mar. 31,

2009) (“Class Counsel’s request for 33% of the Settlement Fund is typical in class action settlements

in the Second Circuit.”). Here, the requested fee, 33.33% of the Value of the Settlement, is clearly

within the range of acceptable attorneys’ fees in Second Circuit cases and is common in overdraft fee

litigation. Courts regularly award fees in excess of 30% when awarding attorneys’ fees in similar

financial services class action settlements. The following depicts these settlements nationwide, all of

which resulted in fee awards at or above the 33.33% that Class Counsel requests here:

Bank Fee Case Name Percentage of the Fund Awarded

Lopez v. JPMorgan Chase Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.)

44% of value of settlement, which includes 30% of $110 million cash fund and 30% of value of practice changes

Jacobs v. Huntington Bancshares Inc. No. 11-cv-000090 (Lake County Ohio)

40% of value of settlement, which includes 40% of $8.975 million and 40% of $7 Million in debt forgiveness

Farrell v. Bank of Am., N.A., 327 F.R.D. 422 (S.D. Cal. 2018), aff’d sub nom. Farrell v. Bank of Am. Corp., N.A., 827 F. App’x 628 (9th Cir. 2020)

40% of 37.5 million common fund

Wolfgeher v. Commerce Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.) (Dkt. No. 3574),

38% of $18.3 million common fund


28

Nelson v. Rabobank, N.A., No. RIC 1101391 (Cal. Supr.)

35.2% ($750k fee includes % of practice changes)

In re Checking Account Overdraft Litig., No. 1:09-MD-02036-JLK, 2020 U.S. Dist. LEXIS 142012 (S.D. Fla. Aug. 10, 2020)

35% of $7.5 million

Molina v. Intrust Bank, N.A., No. 10-CV-3686 (Dist. Ct. Ks.)

33% of $2.7 million

Hawkins et al v. First Tenn. Bank, N.A. (Cir. Ct. Tenn.)

35% of $16.75 million

Swift v BancorpSouth, No. 1:10-cv-00090-GRJ (N.D. Fla.)

35% of $24 million

Casto v. City National Bank, N.A., No. 10-C-1089 (Cir. Ct. W.Va.)

33.33% of $3 million

Schulte v. Fifth Third Bank, No. 09-cv-6655 (N.D. Ill.)

33.33% of $9.5 million

Johnson v. Community Bank, N.A., No. 12-cv-01405-RDM (M.D. Pa.)


Bodnar v. Bank of America, No. 5:14-cv-03224-EGS (E.D. Pa.)


Holt v. Community America Credit Union, No. 4:19-CV-00629-FJG (W.D. Mo.) 33.33% of 3.078 million

White v. Members 1st Federal Credit Union, Case No. 1:19-cv-00556-JEJ (W.D. Pa.) 33.33% of $910,000

Figueroa v. Capital One, Case No. 3:18-cv-00692-JM-BGS (S.D. Cal.) 33.33% of $13 million

Liggio v. Apple Federal Credit Union, No. 1:18-cv-01059-LO-MSN (E.D. Va.)


Lambert v. Navy Fed. Credit Union, No. 1:19-cv-103-LO-MSN, 2019 U.S. Dist. LEXIS 138592, at *3 (E.D. Va.)


As the requested fee is clearly in line with other similar overdraft litigation around the nation that

settled for a similar amount, the fee requested is reasonable.

e. Public Policy Considerations

Where relatively small claims can only be prosecuted through aggregate litigation, “private

attorneys general” play an important role. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 338-39 (1980).

Attorneys who fill the private attorney general role must be adequately compensated for their efforts.

Id. See also Wal-Mart Stores, 396 F.3d 96 (policy issue in evaluating a fee request is that fees “must . . .


29

serve as an inducement for lawyers to make similar efforts in the future”). Counsel’s fees should reflect

the important public policy goal of “providing lawyers with sufficient incentive to bring common fund

cases that serve the public interest.” Goldberger, 209 F.3d at 51. This and the other Goldberger factors

support approval of the attorneys’ fees requested by Class Counsel.

f. The Time and Labor Expended by Counsel and Lodestar Cross-Check

“The last Goldberger factor to consider is the time and labor expended by counsel, which is

essentially what the lodestar method does by assessing the value of attorney hours worked times a

reasonable billing rate.” In re Colgate-Palmolive Co. ERISA Litig., 36 F. Supp. 3d at 353. Under the

lodestar method, the court “scrutinizes the fee petition to ascertain the number of hours reasonably

billed to the class and then multiplies that figure by an appropriate hourly rate” to calculate the

“lodestar.” Goldberger, 209 F.3d at 47. “Of course, where used as a mere cross-check, the hours

documented by counsel need not be exhaustively scrutinized by the district court.” Goldberger, 209 F.3d

at 50. In considering the lodestar in common fund settlements, it is appropriate to enhance the lodestar

by a multiplier accounting for “(1) the contingent nature of the expected compensation for services

rendered; (2) the consequent risk of non-payment viewed as of the time of filing the suit; (3) the quality

of representation; and (4) the results achieved.” Goodwin v. Boesky (In re Ivan F. Boesky Sec. Litig.), 888 F.

Supp. 551, 562 (S.D.N.Y. 1995).

There was no unnecessary amount of time, labor, and resources expended by the Parties. Id.

As is detailed above, this Action was hotly contested and litigated efficiently and intelligently, including

discovery, motions practice, complaint amendment, a mediation, negotiating and documenting the

Settlement, and the Settlement approval process. Decl. ¶ 59.

To date, Class Counsel have expended a total of 683.20 hours in the prosecution of this case.

Id. ¶ 60. It is anticipated that from the date of the filing of this Motion forward, Class Counsel will

spend an additional 40 hours, which includes the filing of supplemental declarations, responding to


30

objections, if any, and preparing for and attending the Final Approval Hearing. Further, there will be

significant post-Final Approval work ensuring that the Settlement proceeds are properly distributed

to Settlement Class Members, responding to Settlement Class Members’ inquiries, and effectuating a

secondary or cy pres distribution, as needed. Id. ¶ 61.

Summaries of the time expended by all counsel and paralegals on the Action appear in Class

Counsel’s Joint Declaration in support of this Motion, organized by work performed in the various

stages of the Action. Hourly rates of attorneys and paralegals are commensurate with the rates charged

by class action practitioners in this state with similar experience. Id. ¶ 62. See, e.g., United States ex rel.

Fox Rx, Inc. v. Omnicare, Inc., No. 12cv275 (DLC), 2015 U.S. Dist. LEXIS 49477, at *5 (S.D.N.Y. Apr.

15, 2015) (approving as reasonable in this district $836/hour for a litigation partner; $631.75/hour for

an eighth-year associate; and $541.50/hour for a fourth-year associate); In re Platinum & Palladium

Commodities Litig., No. 10cv3617, 2015 U.S. Dist. LEXIS 98691, at *13 (S.D.N.Y. July 7, 2015)

(approving rates up to $950/hour and citing National Law Journal survey indicating that the average

partner billing rate at the largest New York-based law firms is $982 per hour); City of Providence v.

Aéropostale, Inc., 2014 U.S. Dist. LEXIS 64517, at *38 (S.D.N.Y. May 9, 2014), aff’d sub nom. Arbuthnot v.

Pierson, 607 F. App’x 73, 73 (2d Cir. 2015) (approving rates ranging from $640 to $875 for partners, $550

to $725 for of counsels, and $335 to $665 for other attorneys).11

Finally, although not required to be performed by this Court, as Plaintiff is applying pursuant

to the percentage-of-benefit for attorneys’ fees, a lodestar analysis also supports the requested fee.

The Court need not exhaustively scrutinize the hours documented. Goldberger, 209 F.3d at 50. Fees

representing multiples of lodestar are regularly awarded in a case like this to reflect the contingency-

fee risk and other relevant factors. See, e.g., In re Flag Telecom Holdings, Ltd. Sec. Litig., 2010 WL 4537550,

11 Timesheets supports the hours set forth in Class Counsel’s Joint Declaration can also be brought to the hearing.


31

at *26 (S.D.N.Y. Nov. 8, 2010) (“‘Under the lodestar method, a positive multiplier is typically applied

to the lodestar in recognition of the risk of the litigation, the complexity of the issues, the contingent

nature of the engagement, the skill of the attorneys, and other factors.’”).

Here, the aggregate lodestar is $447,783.30. Class Counsel seek fees of $1,153,610.00. Class

Counsel seek a lodestar multiplier of 2.576, which is well within the range of what Court’s in this

circuit typically award. Hanifin, 2014 U.S. Dist. LEXIS 115710 at *19 (“Courts regularly award lodestar

multipliers of up to eight times the lodestar, and in some cases, even higher multipliers.”); see also James

v. China Grill Mgmt., 2019 U.S. Dist. LEXIS 72759, at *8 (S.D.N.Y. Apr. 30, 2019) (approving “a fee

award equivalent to 30% of the settlement fund [that] represents a lodestar multiplier of approximately

3.53.”); Wal-Mart, 396 F.3d at 123 (upholding multiplier of 3.5); NECA -IBEW Health & Welfare Fund

v. Goldman, Sachs & Co., No. 1:08-cv-10783-LAP, 2016 WL 3369534, at *1 (S.D.N.Y. May 2, 2016)

(3.9 multiplier on $272 million settlement); In re Colgate-Palmolive Co. ERISA Litig., 36 F. Supp. 3d at

353 (finding that a multiplier of five “was large, but not unreasonable”); Davis v. J.P. Morgan Chase &

Co., 827 F. Supp. 2d 172, 185 (W.D.N.Y. 2011) (multiplier of 5.3 was “not atypical” in similar cases);

Woburn Ret. Sys. v. Salix Pharm., Ltd., No. 14-CV-8925 (KMW), 2017 WL 3579892, at *6 (S.D.N.Y.

Aug. 18, 2017) (3.14 multiplier was “within the range of reasonable . . . multipliers approved in this

Circuit”); Cornwell v. Credit Suisse Grp., No. 08-cv-03758 (VM), 2011 WL 13263367, at *2 (S.D.N.Y.

July 20, 2011) (4.7 multiplier); In re Telik, Inc. Sec. Litig., 576 F. Supp. 2d 570, 590 (S.D.N.Y. 2008) (“In

contingent litigation, lodestar multiples of over 4 are routinely awarded by courts, including this

Court.”); Johnson v. Brennan, No. No. 10-cv- 4712, 2011 U.S. Dist. LEXIS 105775, at *58 (S.D.N.Y.

Sep. 16, 2011) (“Courts regularly award lodestar multipliers from two to six times lodestar.”).

As detailed above, Class Counsel assumed significant risks in representing Plaintiffs on a

contingent fee basis. Those risks should be rewarded. Given that this Court applies the percentage of

the fund method with a lodestar crosscheck, the 2.576 multiplier is reasonable. Class Counsel


32

expended resources to achieve a prompt fair, adequate and reasonable settlement.

For the reasons set forth above, the requested fee is appropriate, fair, and reasonable, and

should therefore be approved.

G. Application for Service Award

As noted above, a $5,000.00 Service Award is sought for each of the Plaintiffs as Class

Representatives. “Courts regularly grant requests for service awards in class actions ‘to compensate

plaintiffs for the time and effort expended in assisting the prosecution of the litigation, the risks

incurred by becoming and continuing as a litigant, and any other burdens sustained by the plaintiffs.’”

Story v. SEFCU, No. 1:18-CV-764 (MAD/DJS), 2021 U.S. Dist. LEXIS 34909, at *28-29 (N.D.N.Y.

Feb. 25, 2021) (awarding $15,000 service award to each class representative). Plaintiffs invested

significant time in this case and risked their reputations in doing so, by publicly disclosing their

personal financial difficulties, creating notoriety regardless of their success on the claims. Had they

failed, they created risk to their reputations. They should be commended for taking action to protect

the interests of tens of thousands of Community Bank accountholders who were affected by

Community Bank’s practices, on top of their individual claims. It is undisputed that the Plaintiffs’

efforts have created extraordinary financial benefits for the Class, compensating them for past harm

and protecting them from future harm. Their efforts will also inure to the benefit of new

accountholders, who will better be able to understand how Community Bank assesses fees. Plaintiffs

expended hours in advancing this litigation against a large and powerful adversary. Each conferred

with Class Counsel on a number of occasions. Decl. ¶ 63. Specifically, Plaintiffs provided assistance

that enabled Class Counsel to successfully prosecute the Action and reach the Settlement, including:

(1) submitting to interviews with Class Counsel; (2) locating and forwarding responsive documents

and information; (3) providing discovery documents; and (4) participating in conferences with Class

Counsel. Id. ¶ 64.


33

The awards sought are for the Class Representatives are well within the range awarded in this

District and should be awarded here.

H. Reimbursement of Costs

“It is well established that counsel who create a common fund are entitled to the

reimbursement of expenses that they advanced to a class.” Guevoura Fund Ltd., 2019 U.S. Dist. LEXIS

218116, at *67 (citation omitted). Second Circuit courts grant such requests as a matter of course. Id.

Class Counsel requests reimbursement of $12,992.70 for actual costs advanced and necessarily

incurred in connection with the prosecution and settlement of the Action. Decl. ¶ 65. Specifically,

those costs and expenses consist of filing fees and service of process costs, pro hac vice admission

fees, expert witness fees, and, most substantially, the services of a well-qualified mediator. Id. Class

Counsel is not seeking costs related to legal research, copying, and other overhead expenses, which

were advanced and are commonly reimbursed. All of these out of these pockets were reasonably and

necessarily incurred to pursue this Action. Id.

IV. CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that the Court: (1) grant Final Approval

to the Settlement; (2) certify for settlement purposes the proposed Settlement Class, pursuant to

Federal Rule of Civil Procedure 23(a) and 23(b)(3); (3) appoint Plaintiffs as Class Representatives; (4)

appoint as Class Counsel the attorneys previously appointed in the Preliminary Approval Order; (5)

award Class Representative Service Awards in the amount of $5,000.00 each; (6) award attorneys’ fees

to Class Counsel in an amount of $1,153,610.00 which is 33.33% of the Value of the Settlement; (7)

award Class Counsel reimbursement of litigation costs and expenses in the amount of $12,992.70; and

(8) enter final judgment dismissing this Action, and reserving jurisdiction over settlement

implementation. For the Court’s convenience, a proposed Final Approval Order is attached hereto as

Exhibit D.


34

DATED: July 12, 2021. By: /s/ Jonathan M. Streisfeld__ Jeff Ostrow (pro hac vice) Jonathan M. Streisfeld (pro hac vice) Joshua R. Levine (pro hac vice) KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas Boulevard, Suite 500 Fort Lauderdale, Florida 33301 Telephone: 954-525-4100 Facsimile: 954-525-4300 [email protected] [email protected] [email protected]

Jeffrey D. Kaliel (pro hac vice) Sophia G. Gold (pro hac vice) KALIEL GOLDPLLC 1100 15th St., NW, 4th Floor Washington, D.C. 20005 Telephone: 202-350-4783 [email protected] [email protected]

James R. Peluso, Esq. (105634) DREYER BOYAJIAN LLP 75 Columbia Street Albany, New York 12210 Telephone: (518) 463-7784 [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 12, 2021, the foregoing was filed via CM/ECF, which

caused a true and correct copy to be served to all counsel of record.

Respectfully submitted, By: /s/ Jonathan M. Streisfeld______ Jonathan M. Streisfeld


EXHIBIT A


146358862


TINA THOMPSON and SCOTT DOXEY, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.


Defendant.


SETTLEMENT AGREEMENT AND RELEASES

This Settlement Agreement and Releases (“Settlement” or “Agreement”)1, dated as of

December __, 2020, is entered into by Plaintiffs, Tina Thompson and Scott Doxey, individually

and on behalf of the Settlement Class, and Defendant Community Bank, N.A.. The Parties hereby

agree to the following terms in full settlement of the action currently entitled Charles Kelly, Tina

Thompson and Scott Doxey v. Community Bank, N.A., No. 8:19-cv-0919, subject to Final

Approval, by the United States District Court for the Northern District of New York.

I. Procedural History and Recitals

1. On July 26, 2019, former Plaintiff Charles Kelly filed a putative class action

complaint in the Action seeking damages, restitution, and declaratory relief arising from the

allegedly unfair and unconscionable assessment and collection of APPSN Fees and Account

Verification Fees.

2. On November 15, 2019, Defendant filed a Motion to Dismiss the Complaint

1 All capitalized terms herein have the meanings ascribed to them in Section II or various places in the Agreement.

4


2

146358862

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

3. On December 15, 2019, Plaintiff Charles Kelly moved to amend the Complaint,

adding two new plaintiffs, Tina Thompson and Scott Doxey.

4. On February 18, 2020, the Court granted in part and denied in part Defendant’s

motion to dismiss, dismissing Plaintiff Charles Kelly’s claims, and granting leave to amend for

Plaintiff Thompson’s APPSN fee claim and Plaintiff Doxey’s Account Verification fee claim.

5. On February 28, 2020, Plaintiffs Thompson and Doxey filed an Amended

Complaint, alleging claims on behalf of two classes for breach of the Account agreement.

6. On March 13, 2020, Defendant filed its Answer and Affirmative Defenses.

7. The Parties were directed by the Court to submit their Case Management Plan on

April 6, 2020, which resulted in the Court issuing its Scheduling Order on April 14, 2020.

8. The Parties initiated the discovery process with Plaintiffs Thompson and Doxey

serving document requests and interrogatories on March 24, 2020, to which Defendant served its

written responses on June 29, 2020.

9. The Court entered an Order directing the Parties to attend a mediation in an effort

to resolve the putative class claims in this Action.

10. On October 14, 2020, the Parties participated in a mediation before Eric D. Green.

The Parties did not settle at the mediation, but further negotiations by the Parties resulted in the

Settlement reflected in this Agreement. On October 20, 2020, the Parties filed a Notice of

Settlement, confirming their agreement in principle and requesting that the Court stay all deadlines

in the Action.

11. The Parties now agree to settle the Action in its entirety, without any admission of

liability, with respect to all Released Claims of the Releasing Parties. Defendant has entered into


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this Agreement to resolve any and all controversies and disputes arising out of or relating to the

allegations made in the Amended Complaint, and to avoid the burden, risk, uncertainty, expense,

and disruption to its business operations associated with further litigation. Defendant does not in

any way acknowledge, admit to or concede any of the allegations made in the Amended Complaint,

and expressly disclaims and denies any fault or liability, or any charges of wrongdoing that have

been or could have been asserted in the Amended Complaint. Nothing contained in this Agreement

shall be used or construed as an admission of liability and this Agreement shall not be offered or

received in evidence in any action or proceeding in any court or other forum as an admission or

concession of liability or wrongdoing of any nature or for any other purpose other than to enforce

the terms of this Agreement. Plaintiffs have entered into this Agreement to liquidate and recover

on the claims asserted in the Amended Complaint, and to avoid the risk, delay, and uncertainty of

continued litigation. Plaintiffs do not in any way concede the claims alleged in the Amended

Complaint lack merit or are subject to any defenses. The Parties intend this Agreement to bind

Plaintiffs, Defendant, and all Settlement Class Members.

NOW, THEREFORE, in light of the foregoing, for good and valuable consideration, the

receipt and sufficiency of which is hereby mutually acknowledged, the Parties agree, subject to

approval by the Court, as follows.

II. Definitions

In addition to the terms defined at various points within this Agreement, the following

Defined Terms apply throughout this Agreement:

12. “Account” means any consumer checking account maintained by Defendant.

13. “Account Holder” means any person who has or had any interest, whether legal or

equitable, in an Account during the Class Period.


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14. “Account Verification Fee Class” shall mean those current or former customers of

Defendant who were assessed Account Verification Fees.

15. “Account Verification Fees” shall mean Overdraft Fees that were charged and not

refunded from January 1, 2015 to December 31, 2019, as a result of a verification process on the

customer’s Account that resulted in no change to their account balances.

16. “Action” currently means Charles Kelly, Tina Thompson and Scott Doxey v.

Community Bank, N.A., No. 8:19-cv-0919. The Parties agree to move the Court to modify the case

style to eliminate the reference to Charles Kelly, at which time they agree the Action will mean

Tina Thompson and Scott Doxey v. Community Bank, N.A., No. 8:19-cv-0919, for all purposes.

17. “Amended Complaint” means the Amended Complaint filed in this Action on

February 28, 2020.

18. “APPSN Fees” means fees that Defendant charged and did not refund on signature

Point of Sale Debit Card transactions from January 1, 2015 to December 31, 2019, where there

was a sufficient available balance at the time the transaction was authorized, but an insufficient

available balance at the time the transaction was presented to Defendant for payment and posted

to a customer’s Account.

19. “APPSN Fee Class” means those current or former customers of Defendant who

were assessed APPSN Fees.

20. “Class Counsel” means:

KOPELOWITZ OSTROW P.A. Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq. 1 West Las Olas Blvd. Suite 500 Fort Lauderdale, FL 33301

KALIEL PLLC Jeffrey Kaliel, Esq. Sophia Goren Gold, Esq. 1875 Connecticut Ave. NW 10th Floor Washington, DC 20009


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21. “Class Period” means the period from January 1, 2015 to December 31, 2019.

22. “Class Representatives” means Tina Thompson and Scott Doxey.

23. “Court” means the United States District Court for the Northern District of New

York.

24. “Current Account Holder” means a Settlement Class Member who continues to

have his or her Account as of the date that the Net Settlement Fund is distributed to Settlement

Class Members pursuant to this Agreement.

25. “Debit Card” means a card or similar device issued or provided by Defendant,

including a debit card, check card, or automated teller machine (“ATM”) card that can or could be

used to debit funds from an Account by Point of Sale and/or ATM transactions.

26. “Defendant” means Community Bank, N.A.

27. “Effective Date” means 10 days after the entry of the Final Approval Order

provided no objections are made to this Agreement. If there are objections to the Agreement, then

the Effective Date shall be the later of: (1) 30 days after entry of the Final Approval Order if no

appeals are taken from the Final Approval Order; or (2) if appeals are taken from the Final

Approval Order, then the earlier of 30 days after an appellate court ruling affirming the Final

Approval Order or 30 days after entry of a dismissal of the appeal.

28. “Email Notice” means a short form of notice that shall be sent by email to

Settlement Class members who agreed to receive account statements by email in the form attached

as Exhibit 1.

29. “Final Approval” means the date that the Court enters the Final Approval Order.

30. “Final Approval Hearing” is the hearing held before the Court wherein the Court


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will consider granting Final Approval to the Settlement and further determine the amount of fees,

costs awarded to Class Counsel and the amount of any Service Award to the Class Representatives.

31. “Final Approval Order” means the final order that the Court enters granting Final

Approval to the Settlement. The proposed Final Approval Order shall be in a form agreed upon by

the Parties and shall be substantially in the form attached as an exhibit to the motion for Final

Approval. Final Approval Order also includes the orders, which may be entered separately,

determining the amount of fees, and costs awarded to Class Counsel and the amount of any Service

Award to the Class Representatives.

32. “Long Form Notice” means the form of notice that shall be posted on the Settlement

website created by the Settlement Administrator and shall be available to Settlement Class

members by mail on request made to the Settlement Administrator in the form attached as Exhibit

2.

33. “Net Settlement Fund” means the Settlement Fund, minus Court approved

attorneys’ fees, and costs awarded to Class Counsel, any Settlement Administration Costs, and any

Court approved Service Award to the Class Representatives.

34. “Notice” means the Email Notice, Long Form Notice, and Postcard Notice that the

Parties will ask the Court to approve in connection with the Motion for Preliminary Approval of

the Settlement.

35. “Notice Program” means the methods provided for in this Agreement for giving the

Notice and consists of Email Notice, Postcard Notice, and Long Form Notice, which shall be

substantially in the forms as the exhibits attached to this Agreement.

36. “Opt-Out Period” means the period that begins the day after the earliest date on

which the Notice is first distributed, and that ends no later than 30 days before the Final Approval


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Hearing. The deadline for the Opt-Out Period shall be specified in the Notice.

37. “Overdraft Fee” means any fee or fees assessed to an Account Holder for items

paid when the Account had insufficient funds.

38. “Party” means each of the Plaintiffs and Defendant and “Parties” means Plaintiffs

and Defendant collectively.

39. “Past Account Holder” means a Settlement Class Member who no longer holds his

or her Account as of the date that the Net Settlement Fund is distributed to Settlement Class

Members pursuant to this Agreement.

40. “Plaintiffs” means Tina Thompson and Scott Doxey, collectively.

41. “Postcard Notice” shall mean the short form of notice that shall be sent by mail to

Settlement Class members who did not agree to receive notices by email, or for whom the

Settlement Administrator is unable to send Email Notice using the email address provided by

Defendant, in the form attached as Exhibit 1.

42. “Preliminary Approval” means the date that the Court enters, without material

change, an order preliminarily approving the Settlement, substantially in the form of the exhibit

attached to the Motion for Preliminary Approval.

43. “Preliminary Approval Order” means the order granting Preliminary Approval of

this Settlement.

44. “Releasing Parties” means Plaintiffs and all Settlement Class Members, and each

of their respective executors, representatives, heirs, predecessors, assigns, beneficiaries,

successors, bankruptcy trustees, guardians, joint tenants, tenants in common, tenants by entireties,

agents, attorneys, and all those who claim through them or on their behalf.

45. “Relevant Overdraft Fees” means APPSN Fees and Account Verification Fees.


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46. “Service Award” means any Court ordered payment to Plaintiffs for serving as

Class Representatives, which is in addition to any payment due Plaintiffs as Settlement Class

Members or foregiveness of Uncollected Overdraft Fees.

47. “Settlement Administrator” means Epiq Systems. Settlement Class Counsel and

Defendant may, by agreement, substitute a different organization as Settlement Administrator,

subject to approval by the Court if the Court has previously approved the Settlement preliminarily

or finally. In the absence of agreement, either Settlement Class Counsel or Defendant may move

the Court to substitute a different organization as Settlement Administrator, upon a showing that

the responsibilities of Settlement Administrator have not been adequately executed by the

incumbent.

48. “Settlement Administration Costs” means all costs and fees of the Settlement

Administrator regarding Notice and Settlement administration.

49. “Settlement Class” means all current and former customers of Defendant with

consumer checking accounts, who were charged a Relevant Overdraft Fee during the Class Period.

Excluded from the Settlement Class is Defendant, its parents, subsidiaries, affiliates, officers and

directors; all Settlement Class members who make a timely election to be excluded; and all judges

assigned to this litigation and their immediate family members.

50. “Settlement Class Member” means any member of the Settlement Class who has

not opted-out of the Settlement and who is entitled to the benefits of the Settlement, including a

Settlement Class Member Payment and/or forgiveness of Uncollected Overdraft Fees.

51. “Settlement Class Member Payment” means the cash distribution that will be made

from the Net Settlement Fund to each Settlement Class Member, pursuant to the allocation terms

of the Settlement.


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52. “Settlement Fund” means the $2,850,000.00 common cash fund Defendant is

obligated to pay under the terms of this Settlement. The Settlement Fund shall be paid into an

account established by the Settlement Administrator within 10 days of the Court’s entry of the

Final Approval Order, less the total amount that will be credited to Settlement Class Members by

Defendant, as provided in Paragraph 76(d)(iii) below.

53. “Settlement Website” means the website that the Settlement Administrator will

establish as a means for Settlement Class members to obtain notice of and information about the

Settlement, through and including hyperlinked access to this Agreement, the Long Form Notice,

Preliminary Approval Order, and such other documents as the Parties agree to post or that the

Court orders posted on the website. These documents shall remain on the Settlement Website at

least until Final Approval.

54. “Uncollected Overdraft Fees” means any Relevant Overdraft Fees that were

assessed but were not paid when an Account was closed and the Relevant Overdraft Fees charged

off.

55. “Value of the Settlement” means the Settlement Fund plus the Uncollected

Overdraft Fees.

III. Certification of the Settlement Class

56. For Settlement purposes only, Plaintiffs and Defendant agree to ask the Court to

certify the Settlement Class under the Federal Rule of Civil Procedure 23.

IV. Settlement Consideration

57. Within 10 days of Final Approval by the Court, Defendant shall pay $2,850,000.00

in cash to the Settlement Administrator to create the Settlement Fund for the benefit of the

Settlement Class. The Settlement Fund shall be used to pay Settlement Class Members their


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respective Settlement Class Member Payments; any and all attorneys’ fees, and costs awarded to

Class Counsel; any Service Award to the Class Representatives; and all Settlement Administration

Costs. Defendant shall not be responsible for any other payments under this Agreement.

58. Defendant shall forgive, waive, and agree not to collect from Settlement Class

Members all Uncollected Overdraft Fees, an amount calculated to be $610,833.02.

59. For avoidance of doubt, it is agreed by the Parties that a Settlement Class Member

may qualify for a Settlement Class Member Payment and forgiveness of Uncollected Overdraft

Fees by virtue having paid one or more Relevant Overdraft Fees and having been assessed at least

one other Relevant Overdraft Fee that became an Uncollected Overdraft Fee.

V. Settlement Approval

60. Upon execution of this Agreement by all Parties, Class Counsel shall promptly

move the Court for a Preliminary Approval Order. The proposed Preliminary Approval Order

shall be attached to the motion, or otherwise filed with the Court, and shall be in a form agreed to

by Class Counsel and Defendant. The Motion for Preliminary Approval shall, among other things,

request that the Court: (1) preliminarily approve the terms of the Settlement as being within the

range of fair, adequate, and reasonable; (2) provisionally certify the Settlement Class pursuant to

Federal Rule of Civil Procedure 23, for settlement purposes only; (3) approve the Notice Program

set forth herein and approve the form and content of the Notices of the Settlement; (4) approve the

procedures set forth herein for Settlement Class members to exclude themselves from the

Settlement Class or for Settlement Class Members to object to the Settlement; (5) stay the Action

pending Final Approval of the Settlement; and (6) schedule a Final Approval Hearing for a time

and date mutually convenient for the Court, Class Counsel, and counsel for Defendant, at which

the Court will conduct an inquiry into the fairness of the Settlement, determine whether it was


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made in good faith, and determine whether to approve the Settlement and Class Counsel’s

application for attorneys’ fees, and costs and for a Service Award to the Class Representatives.

VI. Settlement Administrator

61. The Settlement Administrator shall administer various aspects of the Settlement as

described in the next paragraph and perform such other functions as are specified for the Settlement

Administrator elsewhere in this Agreement, including, but not limited to, effectuating the Notice

Program and distributing the Settlement Fund as provided herein.

62. The duties of the Settlement Administrator are as follows:

a. Use the name and address information for Settlement Class members provided by

Defendant in connection with the Notice Program approved by the Court, for the purpose of

distributing the Postcard Notice and Email Notice, and later mailing Settlement Class Member

Payments to Past Account Holder Settlement Class Members, and to Current Account Holder

Settlement Class Members where it is not feasible or reasonable for Defendant to make the

Settlement Class Member Payments by a credit to the Current Settlement Class Members

Accounts;

b. Establish and maintain a post office box for requests for exclusion from the

Settlement Class;

c. Establish and maintain the Settlement Website;

d. Establish and maintain an automated toll-free telephone line for Settlement Class

members to call with Settlement-related inquiries, and answer the questions of Settlement Class

members who call with or otherwise communicate such inquiries;

e. Respond to any mailed Settlement Class member inquiries;

f. Process all requests for exclusion from the Settlement Class;


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g. Provide weekly reports to Class Counsel and Defendant that summarizes the

number of requests for exclusion received that week, the total number of exclusion requests

received to date, and other pertinent information;

h. In advance of the Final Approval Hearing, prepare a declaration or affidavit to

submit to the Court confirming that the Notice Program was completed, describing how the Notice

Program was completed, providing the names of each Settlement Class member who timely and

properly requested exclusion from the Settlement Class, and other information as may be necessary

to allow the Parties to seek and obtain Final Approval.

i. Distribute Settlement Class Member Payments by check to Past Account Holder

Settlement Class Members and Current Account Holder Settlement Class Members who are unable

to receive credits;

j. Provide to Defendant the amount of the Settlement Class Member Payments to

Current Account Holder Settlement Class Members and instruct Defendant to initiate the direct

deposit or credit of Settlement Class Member Payments to Current Account Holder Settlement

Class Members.

k. Pay invoices, expenses, and costs upon approval by Class Counsel and Defendant,

as provided in this Agreement;

l. Provide notice of this Settlement as required under the Class Action Fairness Act,

28 U.S.C. § 1715; and

m. Any other Settlement Administration function at the instruction of Class Counsel

and Defendant, including, but not limited to, verifying that the Settlement Funds have been

distributed.


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VII. Notice to Settlement Class Members

63. As soon as practicable after Preliminary Approval through the time directed by the

Court, the Settlement Administrator shall implement the Notice Program provided herein, using

the forms of Notice approved by the Court. The Notice shall include, among other information: a

description of the material terms of the Settlement; a date by which Settlement Class members

may exclude themselves from or “opt-out” of the Settlement Class; a date by which Settlement

Class Members may object to the Settlement; the date upon which the Final Approval Hearing is

scheduled to occur; and the address of the Settlement Website at which Settlement Class members

may access this Agreement and other related documents and information. Class Counsel and

Defendant shall insert the correct dates and deadlines in the Notice before the Notice Program

commences, based upon those dates and deadlines set by the Court in the Preliminary Approval

Order. Notices provided under or as part of the Notice Program shall not bear or include

Defendant’s logo or trademarks or the return address of Defendant, or otherwise be styled to appear

to originate from Defendant.

64. The Notice also shall include a procedure for Settlement Class members to opt-out

of the Settlement Class. A Settlement Class member may opt-out of the Settlement Class at any

time during the Opt-Out Period, provided the opt-out notice that must be sent to the Settlement

Administrator is postmarked no later than the last day of the Opt-Out Period. Any Settlement Class

Member who does not timely and validly request to opt-out shall be bound by the terms of this

Agreement. If an Account has more than one Account Holder, and if one Account Holder excludes

himself or herself from the Settlement Class, then all Account Holders on that Account shall be

deemed to have opted-out of the Settlement with respect to that Account, and no Account Holder

shall be entitled to a payment under the Settlement.


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65. The Notice also shall include a procedure for Settlement Class Members to object

to the Settlement and/or to Class Counsel’s application for attorneys’ fees, and costs and/or Service

Award for the Class Representatives. Objections to the Settlement, to the application for fees and

costs and/or to the Service Award must be mailed to the Clerk of the Court, Class Counsel,

Defendant’s counsel, and the Settlement Administrator. For an objection to be considered by the

Court, the objection must be submitted no later than the last day of the Opt-Out Period, as specified

in the Notice. If submitted by mail, an objection shall be deemed to have been submitted when

posted if received with a postmark date indicated on the envelope if mailed first-class postage

prepaid and addressed in accordance with the instructions. If submitted by private courier (e.g.,

Federal Express), an objection shall be deemed to have been submitted on the shipping date

reflected on the shipping label.

66. For an objection to be considered by the Court, the objection must also set forth:

a. the name of the Action;

b. the objector’s full name, address and telephone number;

c. all grounds for the objection, accompanied by any legal support for the objection

known to the objector or objector’s counsel;

d. the number of times the objector has objected to a class action settlement within the

five years preceding the date that the objector files the objection, the caption of each case in which

the objector has made such objection, and a copy of any orders related to or ruling upon the

objector’s prior objections that were issued by the trial and appellate courts in each listed case;

e. the identity of all counsel who represent the objector, including any former or

current counsel who may be entitled to compensation for any reason related to the objection to the

Settlementor fee application;


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f. the number of times in which the objector’s counsel and/or counsel’s law firm have

objected to a class action settlement within the five years preceding the date that of the filed

objection, the caption of each case in which counsel or the firm has made such objection, and a

copy of any orders related to or ruling upon counsel’s or the counsel’s law firm’s prior objections

that were issued by the trial and appellate courts in each listed case in which the objector’s counsel

and/or counsel’s law firm have objected to a class action settlement within the preceding five years;

g. any and all agreements that relate to the objection or the process of objecting—

whether written or oral—between objector or objector’s counsel and any other person or entity;

h. the identity of all counsel (if any) representing the objector who will appear at the

Final Approval Hearing;

i. a list of all persons who will be called to testify at the Final Approval Hearing in

support of the objection;

j. a statement confirming whether the objector intends to personally appear and/or

testify at the Final Approval Hearing; and

k. the objector’s signature (an attorney’s signature is not sufficient).

Class Counsel and/or Defendant may conduct limited discovery on any objector or objector’s

counsel consistent with the Federal Rules of Civil Procedure.

67. For those Settlement Class Members who are Current Account Holders, and have

agreed, or Past Account Holders who had agreed, to receive Account statements from Defendant

electronically, Defendant shall provide the Settlement Administrator with the most recent email

addresses it has for these customers. The Settlement Administrator shall send the Email Notice to

each such customer’s last known email address, in a manner that is calculated to avoid being caught

and excluded by spam filters or other devices intended to block mass email. For any emails that


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are returned undeliverable, the Settlement Administrator shall send a Postcard Notice in the

manner described below. The Email Notice shall inform Settlement Class members how they may

request a copy of the Long Form Notice.

68. For those Settlement Class members who are Current Account Holders of

Defendant who have not agreed to, or Past Account Holders who had not agreed to, receive

Account statements from Defendant electronically, the Postcard Notice shall be mailed to these

customers by first class United States mail to the best available mailing addresses. Defendant shall

provide the Settlement Administrator with last known mailing addresses for these customers. The

Settlement Administrator shall run the names and addresses through the National Change of

Address Registry and update as appropriate. If a mailed Postcard Notice is returned with

forwarding address information, the Settlement Administrator shall re-mail the Postcard Notice to

the forwarding address. For all mailed Postcard Notices that are returned as undeliverable, the

Settlement Administrator shall use standard skip tracing devices to obtain forwarding address

information and, if the skip tracing yields a different forwarding address, the Settlement

Administrator shall re-mail the Postcard Notice once to the address identified in the skip trace, as

soon as reasonably practicable after the receipt of the returned mail. The Postcard Notice shall

inform Settlement Class Members how they may request a copy of the Long Form Notice.

69. The Settlement Administrator shall maintain a database showing mail and email

addresses to which each Notice was sent and any Notices that were not delivered by mail and/or

email. In addition to weekly updates to the Parties regarding the progress of the Notice Program

and the declaration or affidavit by the Settlement Administrator in advance of the Final Approval

Hearing and in support of the motion for Final Approval, a summary report of the Notice Program

shall be provided to the Parties three days prior to the Final Approval Hearing. The database


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maintained by the Settlement Administrator regarding the Notices shall be available to the parties

and the Court upon request. It shall otherwise be confidential and shall not be disclosed to any

third party. To the extent the database is provided to Class Counsel, it shall be kept confidential,

not be shared with any third party and used only for purposes of implementing the terms of this

Agreement, and shall not be used for any other purposes.

70. The Email Notice, Postcard Notice, and Long Form Notice shall be in forms

approved by the Court and, substantially similar to the notice forms attached hereto as Exhibits 1

and 2. The parties may by mutual written consent make non-substantive changes to the Notices

without Court approval.

VIII. Final Approval Order and Judgment

71. Plaintiffs shall file their motion for Final Approval of the Settlement, inclusive of

Class Counsel’s application for attorneys’ fees, and costs and for a Service Award for the Class

Representatives, no later than 15 days before the last day of the Opt-Out Period. At the Final

Approval Hearing, the Court will hear argument on Plaintiffs’ motion for Final Approval of the

Settlement, and on Class Counsel’s application for attorneys’ fees, and costs and for the Service

Awards for the Class Representatives. In the Court’s discretion, the Court also will hear argument

at the Final Approval Hearing from any Settlement Class Members (or their counsel) who object

to the Settlement or to Class Counsel’s application for attorneys’ fees, and costs or the Service

Award application, provided the objectors submitted timely objections that meet all of the

requirements listed in the Agreement.

72. At or following the Final Approval Hearing, the Court will determine whether to

enter the Final Approval Order granting Final Approval of the Settlement and final judgment

thereon, and whether to approve Class Counsel’s request for attorneys’ fees, and costs and any


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Service Award. Such proposed Final Approval Order shall, among other things:

a. Determine that the Settlement is fair, adequate and reasonable;

b. Finally certify the Settlement Class for settlement purposes only;

c. Determine that the Notice provided satisfies Due Process requirements;

d. Bar and enjoin all Releasing Parties from asserting any of the Released Claims; bar

and enjoin all Releasing Parties from pursuing any Released Claims (defined below) against

Defendant or its affiliates at any time, including during any appeal from the Final Approval Order;

and retain jurisdiction over the enforcement of the Court’s injunctions;

e. Release Defendant and the Released Parties from the Released Claims; and

f. Reserve the Court’s continuing and exclusive jurisdiction over the Parties to this

Agreement, including Defendant, all Settlement Class Members, and all objectors, to administer,

supervise, construe, and enforce this Agreement in accordance with its terms.

IX. Calculation and Disbursement of Settlement Class Member Payments.

73. Within 10 days after entry of the Final Approval Order, Defendant shall transfer

the Settlement Fund to the Settlement Administrator, less the total amount that will be credited to

Settlement Class Members by Defendant, as provided in Paragraph 76(d)(iii), below.

74. All funds held by the Settlement Administrator shall be deemed and considered to

be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until

distributed pursuant to this Agreement.

75. All funds held by the Settlement Administrator at any time shall be deemed to be a

Qualified Settlement Fund as described in Treasury Regulation §1.468B-1, 26 C.F.R. §1.468B-1.

76. Payments shall be made from the Settlement Fund as follows:

a. Class Counsels’ Fees and Costs. Class Counsels’ reasonable attorneys’ fees


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and costs, as determined and approved by the Court, shall be paid from the Settlement Fund within

10 days after entry of the Final Approval Order. Class Counsel shall apply for an award of

attorneys’ fees of up to 33.33% of the Value of the Settlement, plus reimbursement of reasonable

litigation costs, to be approved by the Court. Defendant agrees not to oppose an application for

attorneys’ fees of up to 33.33% of the Value of the Settlement, but reserves the right to oppose an

application for attorneys’ fees in excess of that amount. Should the Final Approval Order be

reversed on appeal, Class Counsel shall immediately repay all attorneys’ fees and costs to the

Settlement Administrator; should the award of attorneys’ fees and costs be reduced on appeal,

Class Counsel shall immediately repay into the Settlement Fund an amount equal to the reduction

ordered by the appellate court.

b. Service Award. Subject to Court approval, the Class Representatives shall be

entitled to receive a Service Award of up to $5,000.00 each for their role as the Class

Representives. The Service Awards shall be paid no later than 10 days after the Effective Date.

c. Settlement Administrator’s Fees and Costs. Consistent with Section VI above,

the Settlement Administrator’s fees and costs shall be paid from the Settlement Fund within 10

days after invoicing to and approval by the Parties. The Parties and the Settlement Administrator

agree that any fees or costs incurred by the Settlement Administrator prior to funding of the

Settlement Fund shall be deferred and not invoiced until the Settlement Fund has been funded. In

the event the Final Approval Order is not entered or this Agreement is terminated pursuant to

Section XII below, Defendant agrees to cover any costs incurred and fees charged by the

Settlement Administrator pursuant to Section VII above prior to the denial of Final Approval or

the termination of this Agreement.

d. Settlement Class Member Payments. Of the $2,850,000.00 paid into the


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Settlement Fund, $2,830,000 (99.3%) is allocated to the APPSN Fee Class and $20,000.00 (.7%)

is allocated to the Account Verification Fee Class. If applicable, Settlement Class Members may

receive payments as members of the APPSN Fee Class and the Account Verification Fee Class.

Based on this allocation, payments from the Net Settlement Fund to the Settlement Class Members

shall be calculated as follows:

i. Settlement Class Members of the APPSN Fee Class shall be paid

per incurred APPSN Fee calculated as follows: (0.993 of the Net

Settlement Fund/Total APPSN Fees) x Total number of APPSN

Fees charged to and paid by each APPSN Fee Class member;

ii. Settlement Class Members of the Account Verification Fee Class

shall be paid per Account Verification Fee calculated as follows:

(0.007 of the Net Settlement Fund/Total Account Verification Fees)

x Total number of Account Verification Fees charged to and paid by

each Account Verification Fee Class member;

iii. Settlement Class Member Payments shall be made no later than 90

days after the Effective Date, as follows:

1. For those Settlement Class Members who are Current

Account Holders at the time of the distribution of the

Settlement Fund, a credit in the amount of the Settlement

Class Member Payment they are entitled to receive shall be

applied to any account they are maintaining individually at

the time of the credit. If by the deadline for Defendant to

apply credits of Settlement Class Member Payments to


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accounts Defendant is unable to complete certain credit(s),

Defendant shall deliver the total amount of such

unsuccessful Settlemetn Class Member Payment credits to

the Settlement Administrator to be paid by check in

accordance with subsection 2 below.

2. For those Settlement Class Members who are Past Account

Holders at the time of the distribution of the Net Settlement

Fund or at that time do not have an individual account, they

shall be sent a check by the Settlement Administrator at the

address used to provide the Notice, or at such other address

as designated by the Settlement Class Member. For jointly

held accounts, checks will be payable to all customers, and

will be mailed to the first customer listed on the account. The

Settlement Administrator will make reasonable efforts to

locate the proper address for any check returned by the

Postal Service as undeliverable and will re-mail it once to

the updated address or, in the case of a jointly held account,

and in the Settlement Administrator’s discretion, to an

accountholder other than the one listed first. The Settlement

Class Member shall have one-hundred 180 days to negotiate

the check. Any checks uncashed after 180 days shall be

distributed pursuant to Section X.

iv. In no event shall any portion of the Settlement Fund revert to


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Defendant.

e. Forgiveness of Uncollected Overdraft Fees. Uncollected Overdraft Fees shall

be forgiven in full within 10 days after the Effective Date. Defendant shall update any negative

reporting to Chexsystems or credit reporting agencies with respect to Settlement Class Members

who receive forgiveness of Uncollected Overdraft Fees.

X. Disposition of Residual Funds

77. Within one year after the date the Settlement Administrator mails the first

Settlement Class Member Payment, any remaining amounts resulting from uncashed checks shall

be distributed to an appropriate cy pres recipient agreed to by the Parties and approved by the

Court.

XI. Releases

78. As of the Effective Date, Releasing Parties shall automatically be deemed to have

fully and irrevocably released and forever discharged Defendant and each of its present and former

parents, subsidiaries, divisions, affiliates, predecessors, successors and assigns, and the present

and former directors, officers, employees, agents, insurers, members, attorneys, advisors,

consultants, representatives, partners, joint venturers, independent contractors, wholesalers,

resellers, distributors, retailers, predecessors, successors and assigns of each of them (“Released

Parties”), of and from any and all liabilities, rights, claims, actions, causes of action, demands,

damages, costs, attorneys’ fees, losses and remedies, whether known or unknown, existing or

potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, based

on contract, tort or any other theory, that result from, arise out of, are based upon, or relate to the

conduct, omissions, duties or matters during the Class Period that were or could have been alleged

in the Action, relating to the assessment of APPSN Fees or Account Verification Fees (“Released


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Claims”).

79. Each Settlement Class Member is barred and permanently enjoined from bringing

on behalf of themselves, or through any person purporting to act on their behalf or purporting to

assert a claim under or through them, any of the Released Claims against Defendant in any forum,

action, or proceeding of any kind.

80. Plaintiffs or any Settlement Class Member may hereafter discover facts other than

or different from those that he/she knows or believes to be true with respect to the subject matter

of the claims released herein, or the law applicable to such claims may change. Nonetheless, each

of those individuals expressly agrees that, as of the Effective Date, he/she shall have automatically

and irrevocably waived and fully, finally, and forever settled and released any known or unknown,

suspected or unsuspected, asserted or unasserted, liquidated or unliquidated, contingent or non-

contingent claims with respect to all of the matters described in or subsumed by herein. Further,

each of those individuals agrees and acknowledges that he/she shall be bound by this Agreement,

including by the release herein and that all of their claims in the Action shall be dismissed with

prejudice and released, whether or not such claims are concealed or hidden; without regard to

subsequent discovery of different or additional facts and subsequent changes in the law; and even

if he/she never receives actual notice of the Settlement and/or never receives a distribution of funds

or credits from the Settlement. In addition to the releases made by Plaintiffs and Settlement Class

Members above, Plaintiffs, including each and every one of their agents, representatives, attorneys,

heirs, assigns, or any other person acting on their behalf or for their benefit, and any person

claiming through them, makes the additional following general release of all claims, known or

unknown, in exchange and consideration of the Settlement set forth in this Agreement. These

Plaintiffs agree to a general release of the Released Parties from all claims, demands, rights,


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liabilities, grievances, demands for arbitration, and causes of action of every nature and description

whatsoever, known or unknown, pending or threatened, asserted or that might have been asserted,

whether brought in tort or in contract, whether under state or federal or local law.

81. Nothing in this Agreement shall operate or be construed to release any claims or

rights that Defendant has to recover any past, present, or future amounts that may be owed by

Plaintiffs or by any Settlement Class Member on his/her accounts, loans or any other debts with

Defendant, pursuant to the terms and conditions of such accounts, loans, or any other debts, with

the exception of the Uncollected Overdraft Fees under this Agreement. Likewise, nothing in this

Agreement shall operate or be construed to release any defenses or rights of set-off that Plaintiffs

or any Settlement Class Member has, other than with respect to the claims expressly released by

this Agreement, in the event Defendant and/or its assigns seeks to recover any past, present, or

future amounts that may be owed by Plaintiffs or by any Settlement Class Member on his/her

accounts, loans, or any other debts with Defendant, pursuant to the terms and conditions of such

accounts, loans, or any other debts.

XII. Termination of Settlement

82. This Agreement shall be subject to and is expressly conditioned on the occurrence

of all of the following events:

a. The Court has entered the Preliminary Approval Order, as required by Section

V above;

b. The Court has entered the Final Approval Order as required by Section VIII,

above, and all objections, if any, to such Order are overruled, and all appeals taken from such

Order are resolved in favor of approval; and

c. The Effective Date has occurred.


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83. If all of the conditions specified in Paragraph 82 are not met, then this Agreement

shall be cancelled and terminated.

84. Defendant shall have the option to terminate this Agreement if five percent (5%) or

more of the total Settlement Class members opt out. Defendant shall notify Class Counsel and the

Court of its intent to terminate this Agreement pursuant to this Section XII within 10 business days

after the end of the Opt-Out Period, or the option to terminate shall be considered waived.

85. In the event this Agreement is terminated, or fails to become effective, then the

Parties shall be restored to their respective positions in this case as they existed as of the date of

the execution of this Agreement. In such event, the terms and provisions of this Agreement shall

have no further force and effect with respect to the parties and shall not be used in this case or in

any other action or proceeding for any other purpose, and any order entered by this Court in

accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc.

XIII. Effect of a Termination

86. The grounds upon which this Agreement may be terminated are set forth herein

above. In the event of a termination, this Agreement shall be considered null and void; all of

Plaintiffs’, Class Counsel’s, and Defendant’s obligations under the Settlement shall cease to be of

any force and effect; and the Parties shall return to the status quo ante in the Action as if the Parties

had not entered into this Agreement. In addition, in the event of such a termination, all of the

Parties’ respective pre-Settlement rights, claims and defenses will be retained and preserved.

87. In the event the Settlement is terminated in accordance with the provisions of this

Agreement, any discussions, offers, or negotiations associated with this Settlement shall not be

discoverable or offered into evidence or used in the Action or any other action or proceeding for

any purpose. In such event, all Parties to the Action shall stand in the same position as if this


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Agreement had not been negotiated, made or filed with the Court.

XIV. No Admission of Liability

88. Defendant continues to dispute its liability for the claims alleged in the Action and

maintains that its overdraft practices and representations concerning those practices complied, at

all times, with applicable laws and regulations and the terms of the account agreements with its

members. Defendant does not admit any liability or wrongdoing of any kind, by this Agreement

or otherwise. Defendant has agreed to enter into this Agreement to avoid the further expense,

inconvenience, and distraction of burdensome and protracted litigation, and to be completely free

of any further claims that were asserted or could possibly have been asserted in the Action.

89. Class Counsel believe that the claims asserted in the Action have merit, and they

have examined and considered the benefits to be obtained under the proposed Settlement set forth

in this Agreement, the risks associated with the continued prosecution of this complex, costly, and

time-consuming litigation, and the likelihood of success on the merits of the Action. Class Counsel

fully investigated the facts and law relevant to the merits of the claims, conducted significant

informal discovery, and conducted independent investigation of the challenged practices. Class

Counsel concluded that the proposed Settlement set forth in this Agreement is fair, adequate,

reasonable, and in the best interests of the Settlement Class Members.

90. The Parties understand and acknowledge that this Agreement constitutes a

compromise and settlement of disputed claims. No action taken by the Parties either previously or

in connection with the negotiations or proceedings connected with this Agreement shall be deemed

or construed to be an admission of the truth or falsity of any claims or defenses heretofore made,

or an acknowledgment or admission by any party of any fault, liability, or wrongdoing of any kind

whatsoever.


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91. Neither the Settlement, nor any act performed or document executed pursuant to or

in furtherance of the Settlement: (a) is or may be deemed to be, or may be used as, an admission

of, or evidence of, the validity of any claim made by the Plaintiffs or Settlement Class Members,

or of any wrongdoing or liability of the Released Parties; or (b) is or may be deemed to be, or may

be used as, an admission of, or evidence of, any fault or omission of any of the Released Parties,

in the Action or in any proceeding in any court, administrative agency, or other tribunal.

92. In addition to any other defenses Class Counsel may have at law, in equity, or

otherwise, to the extent permitted by law, this Agreement may be pleaded as a full and complete

defense to, and may be used as the basis for an injunction against, any action, suit or other

proceeding that may be instituted, prosecuted, or attempted in breach of this Agreement or the

Releases contained herein.

XIX. No Press Release

93. Neither Party shall issue any press release or shall otherwise initiate press coverage

of the Settlement. If contacted, the Party may respond generally by stating that they are happy that

the Settlement was reached and that it was a fair and reasonable result.

XX. Miscellaneous Provisions

94. Gender and Plurals. As used in this Agreement, the masculine, feminine or neuter

gender, and the singular or plural number, shall each be deemed to include the others whenever

the context so indicates.

95. Binding Effect. This Agreement shall be binding upon, and inure to for the benefit

of, the successors and assigns of the Releasing Parties and the Released Parties.

96. Cooperation of Parties. The Parties to this Agreement agree to cooperate in good

faith to prepare and execute all documents, to seek Court approval, uphold Court approval, and do

all things reasonably necessary to complete and effectuate the Settlement described in this


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Agreement.

97. Obligation to Meet and Confer. Before filing any motion in the Court raising a

dispute arising out of or related to this Agreement, the Parties shall consult with each other and

certify to the Court that they have consulted.

98. Integration. This Agreement constitutes a single, integrated written contract

expressing the entire agreement of the Parties relative to the subject matter hereof. No covenants,

agreements, representations, or warranties of any kind whatsoever have been made by any Party

hereto, except as provided for herein.

99. No Conflict Intended. Any inconsistency between the headings used in this

Agreement and the text of the paragraphs of this Agreement shall be resolved in favor of the text.

100. Governing Law. Except as otherwise provided herein, the Agreement shall be

construed in accordance with, and be governed by, the laws of the State of New York, without

regard to the principles thereof regarding choice of law.

101. Counterparts. This Agreement may be executed in any number of counterparts,

each of which shall be deemed an original, but all of which together shall constitute one and the

same instrument, even though all Parties do not sign the same counterparts. Original signatures are

not required. Any signature submitted by facsimile or through email of an Adobe PDF shall be

deemed an original.

102. Jurisdiction. The Court shall retain jurisdiction over the implementation,

enforcement, and performance of this Agreement, and shall have exclusive jurisdiction over any

suit, action, proceeding, or dispute arising out of or relating to this Agreement that cannot be

resolved by negotiation and agreement by counsel for the Parties. The Court shall retain

jurisdiction with respect to the administration, consummation, and enforcement of the Agreement


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and shall retain jurisdiction for the purpose of enforcing all terms of the Agreement. The Court

shall also retain jurisdiction over all questions and/or disputes related to the Notice Program and

the Settlement Administrator. As part of their agreement to render services in connection with this

Settlement, the Settlement Administrator shall consent to the jurisdiction of the Court for this

purpose. The Court shall retain jurisdiction over the enforcement of the Court’s injunction barring

and enjoining all Releasing Parties from asserting any of the Released Claims and from pursuing

any Released Claims against Defendant or its affiliates at any time, including during any appeal

from the Final Approval Order.

103. Notices. All notices to Class Counsel provided for herein, shall be sent by email

with a hard copy sent by overnight mail to:

KOPELOWITZ OSTROW P.A. Jeff Ostrow, Esq. Jonathan M. Streisfeld. Esq. 1 West Las Olas Blvd., Suite 500 Fort Lauderdale, Florida 33301 Email: [email protected] Class Counsel

KALIEL PLLC Jeffrey Kaliel, Esq. Sophia Goren Gold 1875 Connecticut Avenue NW, 10th Floor Washington, DC 20009 Email: [email protected] Class Counsel

KATTEN MUCHIN ROSENMAN LLP Stuart M. Richter, Esq. Andrew J. Demko, Esq. 2029 Century Park East, Suite 2600 Los Angeles, CA 90067 Email: [email protected] Counsel for Community Bank, N.A.

The notice recipients and addresses designated above may be changed by written notice.


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Upon the request of any of the Parties, the Parties agree to promptly provide each other with copies

of objections, requests for exclusion, or other filings received as a result of the Notice program.

104. Modification and Amendment. This Agreement may not be amended or modified,

except by a written instrument signed by Class Counsel and counsel for Defendant and, if the

Settlement has been approved preliminarily by the Court, approved by the Court.

105. No Waiver. The waiver by any Party of any breach of this Agreement by another

Party shall not be deemed or construed as a waiver of any other breach, whether prior, subsequent,

or contemporaneous, of this Agreement.

106. Authority. Class Counsel (for the Plaintiffs and the Settlement Class Members),

and counsel for Defendant, represent and warrant that the persons signing this Agreement on their

behalf have full power and authority to bind every person, partnership, corporation or entity

included within the definitions of Plaintiffs and Defendant to all terms of this Agreement. Any

person executing this Agreement in a representative capacity represents and warrants that he or

she is fully authorized to do so and to bind the Party on whose behalf he or she signs this Agreement

to all of the terms and provisions of this Agreement.

107. Agreement Mutually Prepared. Neither Defendant nor Plaintiffs, nor any of them,

shall be considered to be the drafter of this Agreement or any of its provisions for the purpose of

any statute, case law, or rule of interpretation or construction that would or might cause any

provision to be construed against the drafter of this Agreement.

108. Independent Investigation and Decision to Settle. The Parties understand and

acknowledge that they: (a) have performed an independent investigation of the allegations of fact

and law made in connection with this Action; and (b) that even if they may hereafter discover facts

in addition to, or different from, those that they now know or believe to be true with respect to the


December 4, 2020


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Exhibit 1 – Email and Postcard Notice

Tina Thompson and Scott Doxey v. Community Bank, N.A.

NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT

MAY AFFECT YOUR RIGHTS! IF YOU HAVE OR HAD A CHECKING ACCOUNT WITH COMMUNITY BANK, N.A. AND YOU WERE CHARGED CERTAIN OVERDRAFT FEES BETWEEN JANUARY 1, 2015 TO DECEMBER 31, 2019, THEN YOU MAY

BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT AND/OR FORGIVENESS OF CERTAIN UNCOLLECTED

OVERDRAFT FEES The United States District Court for the Northern District of New York has authorized

this Notice; it is not a solicitation from a lawyer.

You may be a member of the Settlement Class in Thompson, et al. v. Community Bank, N.A., in which the plaintiffs allege that defendant Community Bank, N.A. (“Defendant”) unlawfully assessed certain Relevant Overdraft Fees between January 1, 2015 and December 31, 2019. If you are a member of the Settlement Class and if the Settlement is approved, you may be entitled to receive a cash payment from the $2,850,000.00 Settlement Fund and/or the forgiveness of Uncollected Overdraft Fees, benefits established by the Settlement. If you are a member of the Settlement Class, you will receive a payment from the Settlement Fund so long as you do not opt out of or exclude yourself from the Settlement. You do not have to do anything to be entitled to a payment from the Settlement Fund.

The Court has preliminarily approved this Settlement. It will hold a Final Approval Hearing in this case on [INSERT DATE]. At that hearing, the Court will consider whether to grant Final Approval to the Settlement, and whether to approve payment from the Settlement Fund of up to $5,000.00 in a Service Award to each Class Representative, up to 33.33% of the Value of the Settlement as attorneys’ fees, and reimbursement of costs to the attorneys and the Settlement Administrator. If the Court grants Final Approval of the Settlement and you do not request to be excluded from the Settlement, you will release your right to bring any claim covered by the Settlement. In exchange, Defendant has agreed to issue a credit to your Account, a cash payment to you if you are no longer a customer, and/or to forgive certain Relevant Overdraft Fees.

To obtain a Long Form Notice and other important documents please visit [INSERT WEBSITE ADDRESS]. Alternatively, you may call [INSERT PHONE #]. If you do not want to participate in this Settlement—you do not want to receive a cash payment and/or the forgiveness of Uncollected Overdraft Fees and you do not want to be bound by any judgment entered in this case—you may exclude yourself by submitting an opt-out request postmarked no later than [PARTIES TO INSERT DATE]. If you want to object to this Settlement because you think it is not fair, adequate, or reasonable, you may object by submitting an objection postmarked no later than [PARTIES TO INSERT DATE]. You may learn more about the opt-out and objection procedures by visiting [PARTIES TO PROVIDE WEBSITE ADDRESS] or by calling [Insert Phone #].


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Exhibit 2 – Long Form Notice

Tina Thompson and Scott Doxey v.

Community Bank, N.A.

NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT

READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT MAY AFFECT YOUR RIGHTS!

IF YOU HAVE OR HAD A CHECKING ACCOUNT WITH COMMUNITY BANK, N.A (“DEFENDANT”) AND YOU WERE CHARGED CERTAIN OVERDRAFT FEES BETWEEN JANUARY 1, 2015 TO DECEMBER 31,

2019, THEN YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT

The United States District Court for the Northern District of New York has authorized this Notice; it is not a solicitation from a lawyer.

SUMMARY OF YOUR OPTIONS AND THE LEGAL EFFECT OF EACH OPTION

DO NOTHING If you don’t do anything, you will receive a payment from the Settlement Fund so long as you do not opt out of or exclude yourself from the settlement (described in the next box).

EXCLUDE YOURSELF FROM THE SETTLEMENT; RECEIVE NO PAYMENT BUT RELEASE NO CLAIMS

You can choose to exclude yourself from the settlement or “opt out.” This means you choose not to participate in the settlement. You will keep your individual claims against Defendant but you will not receive a payment for Relevant Overdraft Fees and/or forgiveness of Uncollected Overdraft Fees. If you exclude yourself from the settlement but want to recover against Defendant, you will have to file a separate lawsuit or claim.

OBJECT TO THE SETTLEMENT

You can file an objection with the Court explaining why youbelieve the Court should reject the settlement. If your objection is overruled by the Court, then you may receive a payment and/or forgiveness of Uncollected Overdraft Feesand you will not be able to sue Defendant for the claims asserted in this litigation. If the Court agrees with your objection, then the settlement may not be approved.

These rights and options – and the deadlines to exercise them – along with the material terms of the settlement are explained in this Notice.


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BASIC INFORMATION

1. What is this lawsuit about?

The lawsuit that is being settled is entitled Tina Thompson and Scott Doxey v. Community Bank, N.A. It is pending in the United States District Court for the Northern District of New York, Case No. 19-cv-0919. The case is a “class action.” That means that the “Class Representatives,” Tina Thompson and Scott Doxey, are individuals who are acting on behalf of current and former customers who were assessed certain Relevant Overdraft Fees between January 1, 2015 to December 31, 2019. The Class Representatives have asserted a claim for breach of the Account agreement.

Defendant does not deny it charged the fees the Class Representatives are complaining about, but contends it did so properly and in accordance with the terms of its agreements and applicable law. Defendant therefore denies that its practices give rise to claims for damages by the Class Representatives or any Settlement Class members.

2. Why did I receive this Notice of this lawsuit?

You received this Notice because Defendant’s records indicate that you were charged one or more Relevant Overdraft Fees that are the subject of this action. The Court directed that this Notice be sent to all Settlement Class members because each such member has a right to know about the proposed settlement and the options available to him or her before the Court decides whether to approve the settlement.

3. Why did the parties settle?

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Class Representatives’ and their lawyers’ job to identify when a proposed settlement offer is good enough that it justifies recommending settling the case instead of continuing to trial. In a class action, the Class Representatives’ lawyers, known as Class Counsel, make this recommendation to the Class Representatives. The Class Representatives have the duty to act in the best interests of the class as a whole and, in this case, it is their belief, as well as Class Counsels’ opinion, that this settlement is in the best interest of all Settlement Class members.

There is legal uncertainty about whether a judge or a jury will find that Defendant was contractually and otherwise legally obligated not to assess the fees at issue. And even if it was contractually wrong to assess these fees, there is uncertainty about whether the Class Representatives’ claims are subject to other defenses that might result in no or less recovery to Settlement Class members. Even if the Class Representatives were to win at trial, there is no assurance that the Settlement Class Members would be awarded more than the current settlement amount and it may take years of litigation before any payments would be made. By settling, the Settlement Class members will avoid these and other risks and the delays associated with continued litigation.

While Defendant disputes the allegations in the lawsuit and denies any liability or wrongdoing, it enters into the Settlement solely to avoid the expense, inconvenience, and distraction of further proceedings in the litigation.


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WHO IS IN THE SETTLEMENT

4. How do I know if I am part of the Settlement?

If you received this notice, then Defendant’s records indicate that you are a member of the Settlement Class who is entitled to receive a payment or credit to your Account.

YOUR OPTIONS

5. What options do I have with respect to the Settlement?

You have three options: (1) do nothing and you will receive a payment according to the terms of this Settlement; (2) exclude yourself from the settlement (“opt-out” of it); or (3) participate in the Settlement but object to it. Each of these options is described in a separate section below.

6. What are the critical deadlines?

There is no deadline to receive a payment. If you do nothing, then you will get a payment.

The deadline for sending a letter to exclude yourself from or opt-out of the settlement is ________.

The deadline to file an objection with the Court is also ________.

7. How do I decide which option to choose?

If you do not like the Settlement and you believe that you could receive more money by pursuing your claims on your own (with or without an attorney that you could hire) and you are comfortable with the risk that you might lose your case or get less than you would in this Settlement, then you may want to consider opting out.

If you believe the Settlement is unreasonable, unfair, or inadequate and the Court should reject the Settlement, you can object to the Settlement terms. The Court will decide if your objection is valid. If the Court agrees, then the Settlement may not be approved and no payments will be made to you or any other member of the Settlement Class. If your objection (and any other objection) is overruled, and the Settlement is approved, then you may still get a payment and/or forgiveness of Uncollected Overdraft Fees, and will be bound by the Settlement.

If you want to participate in the Settlement, then you don’t have to do anything; you will receive a payment if the Settlement is approved by the Court.

8. What has to happen for the Settlement to be approved?

The Court has to decide that the Settlement is fair, reasonable, and adequate before it will approve it. The Court already has decided to provide Preliminary Approval of the Settlement, which is why you received a Notice. The Court will make a final decision regarding the Settlement at a “Fairness Hearing” or “Final Approval Hearing,” which is currently scheduled for _______.


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THE SETTLEMENT PAYMENT

9. How much is the Settlement?

Defendant has agreed to create a Settlement Fund of $2,850,000.00. It will also forgive Uncollected Overdraft Fees totaling $610,833.02, as defined in the Settlement Agreement.

As discussed separately below, attorneys’ fees, litigation costs, and the costs paid to a third-party Settlement Administrator to administer the Settlement (including mailing and emailing notice) will be paid out of the Settlement Fund. The Net Settlement Fund will be divided among all Settlement Class Members entitled to Settlement Class Member Payments based on formulas described in the Settlement Agreement.

10. How much of the Settlement Fund will be used to pay for attorney fees and costs?

Class Counsel will request the Court to approve attorneys’ fees of not more than 33.33% of the Value of the Settlement, and will request that it be reimbursed for litigation costs incurred in prosecuting the case. The Court will decide the amount of the attorneys’ fees and costs based on a number of factors, including the risk associated with bringing the case on a contingency basis, the amount of time spent on the case, the amount of costs incurred to prosecute the case, the quality of the work, and the outcome of the case.

11. How much of the Settlement Fund will be used to pay the Class Representatives a Service Award?

Class Counsel will request that the Class Representatives be paid a service award in the amount of $5,000.00 each for their work in connection with this case. The Service Awards must be approved by the Court.

12. How much of the Settlement Fund will be used to pay the Settlement Administrator’s expenses?

The Settlement Administrator estimates its expenses at $81,371.

13. How much will my payment be?

The balance of the Settlement Fund after attorneys’ fees and costs, the service award and the Settlement Administrator’s fees, also known as the Net Settlement Fund, will be divided among all Settlement Class Members entitled to Settlement Class Member Payments in accordance with the formulas outlined in the Settlement Agreement. Current customers of Defendant will receive a credit to their Accounts for the amount they are entitled to receive. Former customers of Defendant shall receive a check from the Settlement Administrator. Settlement Class Members entitled to forgiveness of Uncollected Overdraft Fees shall receive this benefit automatically.

14. Do I have to do anything if I want to participate in the Settlement?

No. If you received this Notice, then you may be entitled to receive a payment for a Relevant Overdraft Fee and/or forgiveness of Uncollected Overdraft Fees without having to make a claim, unless you choose to exclude yourself from the settlement, or “opt out.”


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15. When will I receive my payment?

The Court will hold a Final Approval Hearing on _____, at _____ to consider whether the Settlement should be approved. If the Court approves the Settlement, then payments should be made or credits should be issued approximately 90 days later. However, if someone objects to the Settlement, and the objection is sustained, then there is no Settlement. Even if all objections are overruled and the Court approves the Settlement, an objector could appeal, and it might take months or even years to have the appeal resolved, which would delay any payment.

EXCLUDING YOURSELF FROM THE SETTLEMENT

16. How do I exclude myself from the settlement?

If you do not want to receive a payment or if you want to keep any right you may have to sue Defendant for the claims alleged in this lawsuit, then you must exclude yourself, or “opt-out.”

To opt-out, you must send a letter to the Settlement Administrator that you want to be excluded. Your letter can simply say “I hereby elect to be excluded from the settlement in the Tina Thompson and Scott Doxey v. Community Bank, N.A. class action. Be sure to include your name, the last four digits of your account number(s) or former account number(s), address, telephone number, and email address. Your exclusion or opt-out request must be postmarked by ________, and sent to:

Tina Thompson and Scott Doxey v. Community Bank Attn:

ADDRESS OF THE SETTLEMENT ADMINISTRATOR

17. What happens if I opt-out of the Settlement?

If you opt-out of the Settlement, you will preserve and not give up any of your rights to sue Defendant for the claims alleged in this case. However, you will not be entitled to receive a payment from the settlement.

OBJECTING TO THE SETTLEMENT

18. How do I notify the Court that I do not like the Settlement?

You can object to the settlement or any part of it that you do not like IF you do not exclude yourself, or opt-out, from the Settlement. (Settlement Class members who exclude themselves from the Settlement have no right to object to how other Settlement Class members are treated.) To object, you must send a written document by mail or private courier (e.g., Federal Express) to the Clerk of Court, Settlement Administrator, Class Counsel, and Defendant’s Counsel at the addresses below. Your objection must include the following information:



c. all grounds for the objection, accompanied by any legal support for the objection known to


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the objector or objector’s counsel;

d. the number of times the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders related to or ruling upon the objector’s prior objections that were issued by the trial and appellate courts in each listed case;

e. the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application;

f. the number of times in which the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that of the filed objection, the caption of each case in which counsel or the firm has made such objection and a copy of any orders related to or ruling upon counsel’s or the counsel’s law firm’s prior objections that were issued by the trial and appellate courts in each listed case in which the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the preceding five years;

g. any and all agreements that relate to the objection or the process of objecting—whether written or oral—between objector or objector’s counsel and any other person or entity;

h. the identity of all counsel (if any) representing the objector who will appear at the Final Approval Hearing;

i. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;

j. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and


All objections must be post-marked no later than _______, and must be mailed to the Settlement Administrator as follows:


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CLERK OF COURT SETTLEMENT

ADMINSTRATOR CLASS COUNSEL DEFENDANT’S

COUNSEL Clerk of the United States District Court for the Northern District of New York, which is located at 445 Broadway, Albany, New York 12207

Tina Thompson and Scott Doxey v. Community Bank, N.A. Settlement Administrator Attn: ADDRESS OF THE SETTLEMENT ADMINISTRATOR

Jeffrey D. Kaliel Sophia Goren Gold Kaliel PLLC 1875 Connecticut Ave NW 10th Floor Washington, DC 20009

and

Jeffrey Ostrow Jonathan M. Streisfeld Kopelowitz Ostrow P.A.One West Las Olas BoulevardSuite 500Fort Lauderdale, Florida 33301

Sturt M. Richter Andrew J. Demko Katten Muchin Rosenman LLP 2029 Century Park East, Suite 2600 Los Angeles, California 90067

19. What is the difference between objecting and requesting exclusion from the settlement?

Objecting is telling the Court that you do not believe the Settlement is fair, reasonable, and adequate for the Settlement Class, and asking the Court to reject it. You can object only if you do not opt-out of the settlement. If you object to the Settlement and do not opt-out, then you are entitled to a payment for a Relevant Overdraft Fee and/or forgiveness of Uncollected Overdraft Fees if the Settlement is approved, but you will release claims you might have against Defendant. Excluding yourself or opting-out is telling the Court that you do not want to be part of the Settlement, and do not want to receive a payment for a Relevant Overdaft Fee or forgiveness of Uncollected Overdraft Fees, or release claims you might have against Defendant for the claims alleged in this lawsuit.

20. What happens if I object to the Settlement?

If the Court sustains your objection, or the objection of any other member of the Settlement Class, then there is no Settlement. If you object, but the Court overrules your objection and any other objection(s), then you will be part of the Settlement.

THE COURT’S FINAL APPROVAL HEARING

21. When and where will the Court decide whether to approve the Settlement?

The Court will hold a Final Approval or Fairness Hearing at ___ on _____, 2020 at the United States District Court for the Northern District of New York, James T. Foley U.S. Courthouse, which is located at 445 Broadway, Courtroom 5, Albany, New York 12207. At this hearing, the


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Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. The Court may also decide how much to award Class Counsel for attorneys’ fees and litigation costs and the amount of the Service Awards to the Class Representatives. The hearing may be virtual, in which case the instructions to participate shall be posted on the website at www.__________.

22. Do I have to come to the hearing?

No. Class Counsel will answer any questions the Court may have. You may attend if you desire to do so. If you have submitted an objection, then you may want to attend.

23. May I speak at the hearing?

If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must include with your objection, described in Question 18, above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

THE LAWYERS REPRESENTING YOU

24. Do I have a lawyer in this case?

The Court ordered that the lawyers and their law firms referred to in this notice as “Class Counsel” will represent you and the other Settlement Class members.

25. Do I have to pay the lawyer for accomplishing this result?

No. Class Counsel will be paid directly from the Settlement Fund.

26. Who determines what the attorneys’ fees will be?

The Court will be asked to approve the amount of attorneys’ fees at the Fairness Hearing. Class Counsel will file an application for attorneys’ fees and costs and will specify the amount being sought as discussed above. You may review a physical copy of the fee application at the website established by the Settlement Administrator, or by requesting the court record online from the United States District Court for the Northern District of New York at https://eservices.archives.gov/orderonline.


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GETTING MORE INFORMATION

This Notice only summarizes the proposed Settlement. More details are contained in the Settlement Agreement, which can be viewed/obtained online at [WEBSITE] or at the Office of the Clerk of the United States District Court for the Northern District of New York, which is located at 445 Broadway, Albany, New York 12207, by asking for the Court file containing the Motion For Preliminary Approval of Class Settlement (the settlement agreement is attached to the motion) or obtaining a copy online at https://eservices.archives.gov/orderonline.

For additional information about the settlement and/or to obtain copies of the Settlement Agreement, or to change your address for purposes of receiving a payment, you should contact the Settlement Administrator as follows:

Tina Thompson and Scott Doxey v. Community Bank, N.A. Settlement Administrator Attn:

For more information, you also can contact the Class Counsel as follows:

Jeffrey D. Kaliel Sophia Goren Gold Kaliel PLLC 1875 Connecticut Ave NW 10th Floor Washington, DC 20009 202-350-4783 [email protected]@kalielpllc.com

Jeffrey Ostrow Jonathan M. Streisfeld Kopelowitz Ostrow P.A. One West Las Olas Boulevard Suite 500 Fort Lauderdale, Florida 33301 954-525-4100 Fax: 954-525-4300 [email protected] [email protected]

PLEASE DO NOT CONTACT THE COURT OR ANY REPRESENTATIVE OF DEFENDANT CONCERNING THIS NOTICE OR THE SETTLEMENT.


EXHIBIT B


000118/01339175_1


TINA THOMPSON and SCOTT DOXEY, on behalf of themselves and all others similarly situated,

Plaintiffs, v.

COMMUNITY BANK, N.A., Defendant.

Case No. 8:19-cv-0919 (MAD-CFH)

JOINT DECLARATION IN SUPPORT OF PLAINTIFFS’ UNOPPOSED

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND APPLICATION FOR ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS

We, Jeffrey D. Kaliel and Jeff Ostrow, declare:

1. We are Class Counsel of record for Plaintiffs Tina Thompson and Scott Doxey, and

the proposed Settlement Class in the Action.1 We submit this Joint Declaration in support of

Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement and Application for

Attorneys’ Fees and Costs and Service Awards.

2. Class Counsel have emerged as leaders in nationwide litigation against financial

institutions over the assessment of improper fees, regularly working together to efficiently and

successfully represent classes of accountholders . As detailed in Class Counsel’s firm resumes, attached

hereto as Exhibits 1-2, Class Counsel also have extensive experience in a wide range of consumer

protection litigation in New York and around the country.

Kaliel Gold PLLC

3. Kaliel Gold PLLC (“KG”) has extensive experience in consumer protection class

actions in both state and federal court and has represented accountholders in hundreds of class actions

1 All capitalized terms in this declaration shall have the same meanings as those defined in the Settlement Agreement.


000118/01339175_1 2

against financial institutions.

4. Mr. Kaliel has been appointed lead Class Counsel in numerous nationwide and state-

specific class actions. In that capacity, Mr. Kaliel has won contested class certification motions,

defended dispositive motions, engaged in data-intensive discovery, and worked extensively with

economics and information technology experts to build damages models. Mr. Kaliel has also

successfully resolved numerous class actions by settlement, resulting in hundreds of millions of dollars

in relief for millions of class members.

5. Mr. Kaliel and his colleague Sophia Gold are currently class counsel in numerous

ongoing putative class action lawsuits. Additionally, KG has been named class counsel or settlement

class counsel in numerous class actions including, inter alia, Figueroa v. Capital One, N.A. et al., No. 3:18-

cv-00692 (S.D. Cal.); Roberts v. Capital One, No. 1:16-cv-04841 (S.D.N.Y.); Liggio v. Apple Federal Credit

Union, No. 18-cv-01059 (E.D. Va.); Walters v. Target Corporation, No. 3:16-CV-01678-L-MDD (S.D.

Cal.); Robinson v. First Hawaiian Bank, Civil No.17-1-0167-01-GWBC (1st Cir. Haw.); Brooks v. Canvas

Credit Union, 2019CV30516 (Denver Cnty., Colo. Dist. Ct); Martin v. L&N Federal Credit Union, No.

19-CI-002873 (Jefferson Cir. Ct., Tenn.); Lambert v Navy Federal Credit Union, No. 1:19-cv-00103 (E.D.

Va.); Perks v Activehouse d/b/a Earnin, No. 5:19-cv-05543 (N.D. Cal.); and White v Members 1st Credit

Union, No. 1:19-cv-00556 (M.D. Pa.). Mr. Kaliel and Ms. Gold’s biographies and experience are further

detailed in the firm’s resume attached hereto as Exhibit 1.

Kopelowitz Ostrow Ferguson Weiselberg Gilbert

6. Kopelowitz Ostrow Ferguson Weiselberg Gilbert (“KO”) has extensive experience

litigating nationwide and state consumer class actions. Although the firm handles a variety of

consumer class actions, KO focuses a significant amount of its resources pursuing financial

institutions and other corporations that assess their customers unlawful fees.


000118/01339175_1 3

7. KO has been appointed class counsel in dozens of cases throughout the country and

have tried several to verdict. The firm is well positioned to understand the risks of this Action and

why settlement at this stage of the litigation was the best option for the putative class. Based upon its

experience as one of the leading financial services and unlawful fee class action firms for over a decade,

KO is confident that the Settlement obtained here is a good result. KO has devoted the time and

resources of its attorneys and staff to ensure the vigorous prosecution of the claims brought on behalf

of the putative classes in this litigation. The KO firm resume, including biographical information for

Jeff Ostrow, Jonathan Streisfeld, Daniel Tropin and Rachel Glaser, and a listing of cases demonstrative

of KO’s success in litigation against financial institutions, is attached as Exhibit 2.

Dreyer Boyajian LLP

8. Class Counsel was also aided by the legal services of James Peluso, Esq., of the Dreyer

Boyanjian LLP who has served as local counsel for the Plaintiffs throughout the Action. Mr. Peluso

litigates personal injury and commercial disputes in state and federal court and manages the firm’s

complex litigation and class action practice. Jim has extensive experience in handling complex multi-

party litigation and is known for his creative and practical approach to solving complicated legal issues.

Additional detail regarding Mr. Peluso’s experience and qualifications can be found at

https://www.dreyerboyajian.com/our-team/james-r-peluso/.

Litigation

9. Class Counsel has vigorously litigated the Action, including initial investigation of the

claims, drafting of the complaint and amendments, analysis of the claims and defenses, research and

preparation of motion to dismiss responses, review of discovery, advocacy for the class es in settlement

negotiations, and preparation of the settlement documents, forms of notice, and related documents.

Plaintiffs have actively participated in the Action, communicated with counsel, and provided requested

documents and information.


000118/01339175_1 4

10. Beginning in March, 2020, the Parties engaged in written discovery and in settlement-

related discovery, providing Class Counsel with facts necessary to enter into informed settlement

negotiations. Plaintiffs prepared requests for production and interrogatories, to which Defendant

Community Bank, N.A. (“Community Bank”) served its written responses, as well as a proposed

electronically stored information (“ESI”) protocol and search terms .

11. In addition to producing over 1,000 pages of documents, Community Bank retrieved

a significant amount of transaction data from its business records and enlisted an expert to analyze

this data. Plaintiffs’ expert reviewed and verified the calculation, which allowed Plaintiffs to be well-

informed about the range of damages at issue in this matter prior to engaging in settlement discussions.

The review and analysis of this information positioned Class Counsel to confidently evaluate the

strengths and weaknesses of Plaintiffs’ claims and prospects for success at class certification, summary

judgment, and trial.

12. On October 14, 2020, the Parties participated in a full day of formal mediation of

before Professor Eric D. Green, who is a nationally renowned mediator with substantial experience

mediating consumer banking related claims. The mediation did not result in a settlement, but helped

open the door for future negotiations, which resulted in the Parties agreeing to the material terms of

the Settlement.

13. The Settlement was reached only after significant investigation and litigation. Class

Counsel spent many hours investigating the claims of several potential plaintiffs against Community

Bank.

14. Class Counsel interviewed a number of Community Bank customers to gather

information about Community Bank’s conduct and its impact upon consumers, which was essential

to their ability to understand the nature of Community Bank’s conduct, the relevant language of the

Account agreement and other documents at issue, and potential remedies.


000118/01339175_1 5

15. The issues were heavily contested at the Motion to Dismiss stage, following which the

Parties initiated discovery.

16. Class Counsel, along with its damages expert, spent a significant amount of time

analyzing data regarding Community Bank’s fee revenue related to the assessment of the APPSN Fees

and the Account Verification Fees at issue.

17. The Parties conferred regarding the calculations’ accuracy, with Community Bank

retaining its own expert. Prior to mediation, Class Counsel and Plaintiffs’ expert used this data to

analyze the damages at issue.

18. Consequently, Class Counsel mediated with Professor Green, fully informed of the

merits of Settlement Class members’ claims and negotiated the proposed Settlement while zealously

advancing the position of Plaintiffs and Settlement Class members and being fully prepared to

continue to litigate rather than accept a settlement that was not in the best interest of Plaintiffs and

the Settlement Class.

19. After the mediation, Professor Green continued to actively participate in the

settlement discussions and helped the Parties reach an acceptable compromise.

Settlement

20. The total value of the Settlement is $3,460,833.02, consisting of Community Bank’s

(a) commitment to established and pay a cash Settlement Fund of $2,850,000.00; and (b) its agreement

to forgive, waive, and not collect $610,833.02 in Uncollected Overdraft Fees.

21. Effective January 1, 2020, after this Action was filed, Community Bank modified its

disclosures to better inform members they may incur an Overdraft Fee on Debit Card transactions

authorized against a positive available balance, if at the time of settlement if the account balance is

negative. This practice change inures to the benefit of Settlement Class Members and to other


000118/01339175_1 6

Community Bank customers, which has resulted in and will continue to result in millions of dollars in

savings.

22. The Settlement Administrator, Epiq Class Action & Claims Solutions, Inc., has

overseen the Notice Program, which was designed to provide the best notice practicable and is tailored

to take advantage of the information Community Bank has available about the Settlement Class.

23. Class Counsel has not been paid for their extensive efforts or reimbursed for litigation

costs. They are entitled to request, and Community Bank will not oppose, attorneys’ fees of up to

33.33% of the Value of the Settlement, as well as reimbursement of litigation costs incurred in

connection with the Action.

24. The Parties negotiated and reached agreement regarding fees and costs only after

agreeing on all material terms of the Settlement.

25. The relevant factors weigh in favor of Final Approval. First, the Settlement was

reached in the absence of collusion, and is the product of good faith, informed and arm’s length

negotiations by competent counsel, making it procedurally fair. Furthermore, a review of the

substantive factors related to the Settlement’s fairness, adequacy and reasonableness demonstrates that

Final Approval is warranted. Any settlement requires the parties to balance the claims’ merits and the

defenses asserted against the attendant risks of continued litigation and delay. Plaintiffs believe they

asserted meritorious claims and would prevail if this matter proceeded to trial. Community Bank

argues the claims are unfounded, denies any potential liability, and up to the point of settlement

indicated a willingness to litigate those claims vigorously. The Parties concluded that the benefits of

settlement outweigh the risks and uncertainties of continued litigation, as well as the attendant time

and expenses associated with contested class certification proceedings and possible interlocutory

appellate review, completing class discovery, pretrial motion practice, trial, and finally appellate review.


000118/01339175_1 7

26. In negotiating this Settlement in particular, Class Counsel had the benefit of years of

experience and familiarity with the facts of this case as well as with other cases involving overdraft

fees across the country.

27. Class Counsel conducted a thorough investigation and analysis of Plaintiffs’ claims and

engaged in important motion practice throughout this Action.

28. Class Counsel reviewed over 1,000 pages of Community Bank’s documents and a

separate production of transactional data.

29. Class Counsel engaged a data expert to analyze Community Bank’s sample data to

determine whether a class could be ascertained and to support Plaintiffs’ future motion for class

certification.

30. Class Counsel was able to accurately evaluate the strengths and weakness of Plaintiffs’

claims.

31. Finally, Class Counsel used an experienced mediator to achieve this Settlement. This

factor, too, supports Final Approval.

32. Although Plaintiffs believe they have a strong chance on the merits, Plaintiffs might

not certify the classes or would lose at summary judgment or trial, or on appeal.

33. The Value of the Settlement represents approximately 39% of the APPSN Fees and

Account Verification Fees allegedly wrongly charged to the Settlement Class, without the inherent

litigation risks, is a very fair and reasonable recovery. The Settlement Fund alone is 32% of the

probable damages. Indeed, it is a very good result comparing the results in other overdraft cases.

34. Under the circumstances, Plaintiffs and Class Counsel appropriately determined that

the Settlement outweighs the gamble of continued litigation.

35. This Settlement provides substantial relief to Settlement Class Members without delay.


000118/01339175_1 8

36. Finally, as discussed above, the Settlement is the product of arm’s-length negotiations

conducted by the Parties’ experienced counsel with the assistance of a well-respected mediator.

37. These negotiations led the Parties to a Settlement that Class Counsel believes to be

fair, reasonable, and in the best interest of the Settlement Class.

38. Given Class Counsel’s experience in these cases, Class Counsel’s assessment in this

regard is entitled to considerable deference. The benefits are fair and reasonable in light of Community

Bank’s defenses, and the challenging and unpredictable litigation path in the absence of settlement.

39. Recovery by any means other than settlement would require additional years of

litigation in this Court and the Second Circuit. Delay, both at the trial stage, and through post-trial

motions and appeals, could force the Class to wait even longer, further reducing its value.

40. Further, this litigation activity would have required the expenditure of significant

resources.

41. Class Counsel devoted substantial time and resources investigating, litigating, and

resolving this case. Plaintiffs settled the Action with the benefit of Class Counsel’s years of experience

litigating cases like this one, discovery, and data and damage analysis.

42. Class Counsel have shown their willingness to litigate this action and their past

experience shows that they will zealously represent their clients.

43. The Parties negotiated and reached agreement regarding fees and costs only after

agreeing on all material terms of the Settlement.

44. As described more fully above, the Notice Program was designed to provide the best

notice practicable and was tailored to take advantage of the information Community Bank has

available about the Settlement Class.

45. The Notice Program was reasonably calculated under the circumstances to apprise

Settlement Class members of: the material terms of the Settlement; the deadline for them to exclude


000118/01339175_1 9

themselves from the Settlement Class; the deadline to object to the Settlement; the Final Approval

Hearing date; and the Settlement Website address to access the Agreement and other related

documents and information.

46. The Settlement Class of 46,404 Settlement Class Members is so numerous that joinder

of all members is impracticable.

47. There are questions of law or fact common to the Settlement Class including whether

Community Bank’s alleged systematic practice of assessing Overdraft Fees breached its contract.

48. Plaintiffs are typical of absent members of the Settlement Class as they were subjected

to the same Community Bank practices leading to the assessment of fees and suffered from the same

injuries, and they will benefit equally from the Settlement relief.

49. Plaintiffs’ interests are coextensive with, not antagonistic to, the interests of the

Settlement Class because Plaintiffs and the absent Settlement Class members have the same interest

in the Settlement’s relief, and the absent Settlement Class members have no diverging interests.

50. Plaintiffs are represented by qualified and competent counsel who devoted a

substantial time to the litigation and who have extensive experience and expertise prosecuting complex

class actions, including consumer actions like the instant case.

51. While discretionary, to the extent that the Court wishes to perform a lodestar cross-

check, it should be noted that there is a reasonable 2.576 - lodestar multiplier as a result of the hard

work Class Counsel performed.

52. The 33.33% requested fee is within the range of reason when considering the

foregoing and when analyzing the following guidelines set forth by the Second Circuit in Goldberger v.

Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000): (1) the time and labor expended by counsel, (2)

the magnitude of the litigation, (3) the risk of the litigation, (4) the quality of the representation, (5)

the requested fee in relation to the settlement, and (6) public policy considerations.


000118/01339175_1 10

53. This Action is complex presenting novel factual and legal issues, which have yet to be

tried in this Court or others.

54. As stated above, Class Counsel took on considerable risk in filing and prosecuting this

case. Indeed, Community Bank argued strenuously that the Second Circuit’s decision in Roberts v.

Capital One did not apply to the instant matter, as a result of materially different contract language.

55. Nevertheless, Class Counsel proceeded with the litigation and received a favorable

order from the Court at the motion to dismiss stage. However, that ruling leaves open the risk that

the trier of fact would determine that Community Bank was permitted to assess the challenged

Overdraft Fees.

56. Class Counsel are experienced in class action litigation, serving as Lead or Co-Lead

Counsel in dozens of consumer class actions in federal and state courts throughout the country.

57. Here the Settlement representing a 39% recovery of the most probable damages is an

excellent result. Thus, the Court should easily find counsel achieved success.

58. The $1,153,610.00 requested fee – which is 33.33% of the Value of the Settlement - is

reasonable in light of the work performed, the results obtained, and falls within the range of common

fund awards in the Second Circuit. The attorneys’ fee requested is lower than what would be requested

in individual contingent fee litigation, which generally start at 33.33% of any recovery and frequently

go up to 40% or more.

59. There was no unnecessary amount of time, labor, and resources expended by the

Parties. Id. As is detailed above, this Action was hotly contested and litigated efficiently and

intelligently, including discovery, motion practice, complaint amendment, a mediation, negotiating and

documenting the Settlement, and the Settlement approval process.

60. To date, Class Counsel and Local Counsel have expended a total of 638.20 hours in

the prosecution of this case.


000118/01339175_1 11

61. It is anticipated that from the date of the filing of this Motion forward, Class Counsel

will spend an additional 40 hours preparing for the Final Approval Hearing, which includes the filing

of supplemental declarations, responding to any objections, if any, and preparing for and attending

the Final Approval Hearing. Furthermore, there will be significant post-Final Approval work ensuring

that the Settlement proceeds are properly distributed to Settlement Class Members, responding to

Settlement Class Members’ inquiries, and effectuating a secondary or cy pres distribution, as needed.

62. Summaries of the time expended by all counsel and paralegals on the Action are listed

below in support of the Motion, organized by work performed in the various stages of the Action.

Should the Court require detailed billing, Class Counsel will promptly submit it. Hourly rates of

attorneys and paralegals are commensurate with the rates charged by class action practitioners in this

district with similar experience.

63. Plaintiffs invested significant time in this case and risked their reputations in doing so,

by publicly disclosing their personal financial difficulties, creating notoriety regardless of their success

on the claims. Had they failed, they created risk to their reputations. They should be commended for

taking action to protect the interests of over 46,000 Community Bank Account Holders who were

affected by Community Bank’s practices, on top of their own individual claims. It cannot be disputed

that the Plaintiffs’ efforts have created extraordinary financial benefits for the Class, compensating

them for past harm and protecting them from future harm. Their efforts will also inure to the benefit

of new accountholders, who will better be able to understand how Community Bank assesses fees.

Plaintiffs expended hours in advancing this litigation against a large and powerful adversary. Each

conferred with Class Counsel on a number of occasions.

64. Specifically, Plaintiffs provided assistance that enabled Class Counsel to successfully

prosecute the Action and reach the Settlement, including: (1) submitting to interviews with Class


000118/01339175_1 12

Counsel; (2) locating and forwarding responsive documents and information; (3) providing discovery

documents; and (4) participating in conferences with Class Counsel.

65. Class Counsel requests reimbursement of $12,992.70 for actual costs advanced and

necessarily incurred in connection with the prosecution and settlement of the Action.

66. Specifically, those costs and expenses consist of filing fees and service of process costs,

pro hac vice admission fees, expert witness fees, and, most substantially, the services of a well-qualified

mediator.

67. Class Counsel is not seeking costs related to legal research, copying, and other

overhead expenses, which were advanced and are commonly reimbursed. All of these out of these

pockets were reasonably and necessarily incurred to pursue this Action.

68. In connection with this litigation, the firms representing Plaintiffs and the Settlement

Classes report a combined lodestar of $447,783.30.

69. Class Counsel has organized the time spent by each firm into the following chart with

categories describing the services rendered in the prosecution of this Action:

Task Kaliel Gold PLLC Kopelowitz Ostrow Dreyer Boyajian

Pre-suit investigation, Factual Development, Client Meetings, Correspondence, Legal Research

J. Kaliel (20.80) S. Gold (7.60)

Strategy/Case Analysis, Class Counsel Conferences

J. Kaliel (7.90) S. Gold (3.50)

J. Ostrow. (.75) J. Streisfeld (1.75)

J. Peluso (5.50) D. Boyajian (.70)

Pleadings J. Kaliel (33.70) S. Gold (7.60)

J. Ostrow. (6.00) J. Streisfeld (13.00) D. Tropin (17.75)

J. Peluso (16.70)

D. DeSanto (6.10)

Motion Practice J. Kaliel (25.70) S. Gold (6.80)

J. Ostrow. (2.00) J. Streisfeld (3.75) D. Tropin (6.00) R. Glaser (3.50)

J. Peluso (8.00)

Discovery J. Kaliel (27.50) S. Gold (5.50)

J. Ostrow. (1.25) J. Streisfeld (4.25) D. Tropin (3.50) R. Glaser (1.00)

J. Peluso (1.40)


000118/01339175_1 13

T. Becker (.50)

Case Management and Other Court-Mandated Tasks

J. Kaliel (6.80) S. Gold (2.60)

J. Ostrow. (2.00) J. Streisfeld (2.50) D. Tropin (.50)

J. Peluso (5.90)

Settlement J. Kaliel (94.30) S. Gold (33.50)

J. Ostrow. (25.75) J. Streisfeld (8.75) D. Tropin (.50) R. Glaser T. Becker

J. Peluso (1.70)

Preliminary Approval J. Kaliel (15.50) S. Gold (6.40)

J. Ostrow. (14.25) J. Streisfeld (14.25) D. Tropin R. Glaser (19.50) T. Becker (3.25)

J. Peluso (.70)

Class Notice J. Kaliel (19.00) S. Gold (6.00)

J. Ostrow. (1.75) J. Streisfeld (1.75)

Motion for Final Approval and Application for Attorneys’ Fees, Costs, and Service Awards

J. Kaliel (40.00) S. Gold (5.00)

J. Ostrow. (12.00) J. Streisfeld (13.25) R. Glaser (26.00) T. Becker (4.50)

J. Peluso (.50) R. Clothier (.30)

Final Approval Hearing Preparation, Hearing Attendance, Post-Final Approval Work (estimated)

J. Kaliel (20.00) J. Ostrow (10.00) J. Streisfeld (10.00)

TOTALS BY FIRM J. Kaliel (311.20) S. Gold (84.50) Total Hours 395.7

J. Ostrow. (75.75) J. Streisfeld (73.25) D. Tropin (28.25) R. Glaser (50.0) T. Becker (7.75) Total Hours 235.0

J. Peluso (40.4) D. DeSanto (6.10) D. Boyajian (.70) R. Clothier (.30) Total Hours 47.5

70. The hourly rates for each law firm are broken down as follows:

Kaliel Gold PLLC Jeffrey D. Kaliel - $759.00 Sophia G. Gold - $465.00 Kopelowitz Ostrow Jeff Ostrow - $775.00 Jonathan Streisfeld - $775.00 Daniel Tropin - $500.00 Rachel Glaser - $200.00; $350.002

2 Ms. Glaser became an attorney on November 23, 2020. Prior to that time, she was a law clerk with KO.


000118/01339175_1 14

Todd Becker (paralegal)- $200.00

Dreyer Boyajian James Peluso - $625.00 Donald W. Boyajian - $625.00 Diane DeSanto (paralegal) - $150.00 Rachel L. Clothier (paralegal) - $125.00

71. The time and lodestar expended by the attorneys, paralegals and law clerks at all three

law firms is as follows:

a. Kaliel Gold PLLC – 395.7, $275,493.30

b. Kopelowitz Ostrow – 235.0, $145,650.00

c. Dreyer Boyajian LLP – 47.5, $26,640.00

72. The total time of all firms is 678.20 hours (including estimated time), with a total

lodestar of $447,783.30.

73. Cognizant of the need to work efficiently, Plaintiffs’ counsel coordinated their work

to avoid duplication of effort and assigned work to associates and paralegal personnel whenever

possible and prudent to keep costs low.

74. An attorneys’ fee request of 33.33% results in a lodestar multiplier of 2.6. This

multiplier falls within the range of multipliers awarded in New York and the Second Circuit.

75. The retention agreements with Plaintiffs are contingent fee agreements. The requested

33.33% fee has routinely been awarded in similar bank fee litigation and in class action litigation in

general, in courts across the country, as referenced in the Motion.

76. The total costs and expenses incurred by both law firms in this Action which have not

been reimbursed is $12,992.70 are broken down by firm and category in the chart below.

EXPENSES

Category Kaliel Gold PLLC

Kopelowitz Ostrow

Dreyer Boyajian

Filing Fee $400.00

Pro Hac Vice Fees $500.00


000118/01339175_1 15

Process Service $142.70 Mediation Fees $3,875.00 $3,875.00

Expert Fees $4,200.00 Total $8,075.00 $4,017.70 $900.00

77. The expenses were incurred to initiate the action; serve the Defendant; admit Class

Counsel pro hac vice; to retain the services of a preeminent mediator that assisted the parties in

successfully settling the case; and the costs of expert assistance.

78. Finally, as discussed above, Plaintiffs have been an integral part of this lawsuit. In our

experience, a $5,000.00 service award to each of the Plaintiffs is reasonable and in line with amounts

regularly awarded by courts in similar litigation.

I declare under penalty of perjury that the foregoing is true of my own personal knowledge.

Executed in Washington, D.C. this 12th day of July, 2021.

/s/ Jeffrey D. Kaliel JEFFREY D. KALIEL

I declare under penalty of perjury that the foregoing is true of my own personal knowledge.

Executed in Ft. Lauderdale, Florida this 12th day of July, 2021.

/s/ Jeff Ostrow

JEFF OSTROW


EXHIBIT 1


1100 15th Street, NW | 4th Floor Washington, DC 20005 202.350.4783 www.kalielgold.com

KALIEL GOLD PLLC

Kaliel Gold PLLC was founded in 2017 and is a 100% contingency Plaintiff-side law firm.

Our attorneys have decades of combined experience and have secured hundreds of millions of dollars

for their clients. Our firm’s practice focuses on representing consumers in class action litigation and

specifically on cases in the consumer financial services sector. In the four years since our firm was

founded, our firm has been appointed lead counsel or co-lead counsel in numerous class action and

putative class action lawsuits in state and federal courts nationwide including most recently in Roberts

v. Capital One, No. 1:16-cv-04841 (S.D.N.Y.); Walters v. Target Corp., No. 3:16-cv-00492 (S.D. Cal.);

Robinson v. First Hawaiian Bank, Civil No.17-1-0167-01 GWBC (1st Cir. Haw.); Liggio v. Apple Federal

Credit Union, No. 18-cv-01059 (E.D. Va.); Morris et al. v. Bank of America, N.A., No. 3:18-cv-00157-

RJC-DSC (W.D.N.C.); Brooks et al. v. Canvas Credit Union, 2019CV30516 (Dist. Ct. for Denver Cnty.,

Colo.); Figueroa v. Capital One, N.A., Case No. 3:18-cv-00692-JM-BGS (S.D. Cal.); White v. Members 1st

Credit Union, Case No. 1:19-cv-00556-JEJ (M.D. Pa.); Plummer v. Centra Credit Union, Case No. 03D01-

1804-PL-001903 (Cnty. Of Bartholomew, Ind.); Holt v. Community America Credit Union, Case No. 4:19-

cv-00629-FJG (W.D. Mo.); Trinity Management v. Charles Puckett, Case No. GCG-17-558960 (Super. Ct.,

San Francisco Cnty, Cal.); Martin v. L&N Federal Credit Union. No. 19-CI-022873 (Jefferson Cir. Ct.,

Div. One); Clark v. Hills Bank and Trust Company, No. LACV080753 (Iowa Dist. Ct. Johnson Cnty.);

Morris v. Provident Credit Union, Case No. CGC-19-581616 (Super. Ct., San Francisco Cnty., Cal.).

As shown in the biographies of our attorneys and the list of class counsel appointments, Kaliel

Gold PLLC is well versed in class action litigation and zealously advocates for its clients. To learn

more about Kaliel Gold PLLC, or any of the firm’s attorneys, please visit www.kalielgold.com.


JEFFREY D. KALIEL

Jeffrey Kaliel earned his law degree from Yale Law School in 2005. He graduated from Amherst College summa cum laude in 2000 with a degree in Political Science, and spent one year studying Philosophy at Cambridge University, England.

Over the last 10 years, Jeff has built substantial class action experience. He has received “Washington D.C. Rising Stars Super Lawyers 2015″ recognition.

Jeff has been appointed lead Class Counsel in numerous nationwide and state-specific class actions. In those cases, Jeff has won contested class certification motions, defended dispositive motions, engaged in data-intensive discovery and worked extensively with economics and information technology experts to build damages models. Jeff has also successfully resolved numerous class actions by settlement, resulting in hundreds of millions of dollars in relief for millions of class members.

Currently Jeff is actively litigating several national class action cases, including actions against financial services entities and other entities involved in predatory lending and financial services targeting America’s most vulnerable populations.

Jeff's class action successes extend beyond financial services litigation. He seeks to lead cases that serve the public interest. Jeff has worked with nonprofits such as the Humane Society, Compassion Over Killing, and the National Consumers League to fight for truth in the marketplace on food and animal products.

Jeff has over a decade of experience in high-stakes litigation. He was in the Honors Program at the Department of Homeland Security, where he worked on the Department’s appellate litigation. Jeff also helped investigate the DHS response to Hurricane Katrina in preparation for a Congressional inquiry. Jeff also served as a Special Assistant US Attorney in the Southern District of California, prosecuting border-related crimes.

Jeff is a former Staff Sergeant in the Army, with Airborne and Mountain Warfare qualifications. He is a veteran of the second Iraq war, having served in Iraq in 2003.

Jeff is admitted to practice in California and Washington, DC, and in appellate and district courts across the country.

Jeff lives in Washington, D.C. with his wife, Debbie, and their three children.


SOPHIA GOREN GOLD

Sophia Goren Gold is a third-generation Plaintiff’s lawyer. A summa cum laude graduate of Wake Forest University and the University of California, Berkeley, School of Law, Sophia has spent her entire career fighting for justice.

A fierce advocate for those in need, Sophia’s practice centers around taking on financial institutions, insurance companies, and other large corporate interests. Sophia has participated in hundreds of individual and class cases in both state and federal courts across the country. Collectively, she has helped secure tens of millions of dollars in relief on behalf of the classes she represents.

In addition to providing monetary relief, Sophia’s extensive litigation experience has resulted in real-world positive change. For example, she brought litigation which resulted in the elimination of the Tampon Tax in the State of Florida, and she was influential in changing the state of Delaware’s Medicaid policy, resulting in greater access to life-saving medication.

Sophia is currently representing consumers in numerous cases involving the assessment of improper fees by banks and credit unions, such as overdraft fees, insufficient funds fees, and out of network ATM fees. She is also currently representing consumers who have been the victims of unfair and deceptive business practices.

Sophia is admitted to practice in California and Washington, D.C. When not working, Sophia enjoys spending time with her husband, daughter, and their goldendoodle.


BRITTANY CASOLA

Brittany Casola attended the University of Central Florida in Orlando and graduated in 2012 with a bachelor’s degree in Political Science and a minor in Spanish. Brittany earned her Juris Doctorate from California Western School of Law in 2015 and graduated magna cum laude in the top 10% of her class.

Throughout the course of her law school career, she served as a judicial extern to the Honorable Anthony J. Battaglia for the United States District Court, Southern District of California and worked multiple semesters as a certified legal intern for the San Diego County District Attorney’s Office. Brittany was awarded Academic Excellence Awards in law school for receiving the highest grade in Trial Practice, Health Law & Policy, and Community Property.

Before joining Kaliel Gold PLLC, Brittany worked as a judicial law clerk for the Honorable Anthony J. Battaglia and as an associate attorney for Carlson Lynch LLP, specializing in consumer complex litigation.


AMANDA ROSENBERG

Amanda Rosenberg graduated cum laude from the University of California, Hastings College of the Law in 2011 and the University of California, San Diego in 2008, where she earned departmental Honors with Highest Distinction in history.

Before joining Kaliel Gold PLLC, Amanda represented and advised small businesses and financial institutions in litigation matters including employment disputes, merchant disputes, credit and charge card disputes, wrongful foreclosures, and securities. She has successfully litigated cases in California, Illinois, and Michigan.

Amanda is an active volunteer in her community and has helped numerous individuals understand and navigate their rights in the workplace.

In law school, Amanda worked as an extern for the Honorable Judge Vaughn Walker in the United States District Court, Northern District of California. Amanda was awarded academic excellence awards for receiving the highest grades in Trial Advocacy and Litigating Class Action Employment.

When not working, Amanda loves exploring Michigan’s outdoors with her husband, kids, and rescue dog.


CLASS COUNSEL APPOINTMENTS

• Roberts v. Capital One, No. 1:16-cv-04841 (S.D.N.Y.);

• Walters v. Target Corp., No. 3:16-cv-00492 (S.D. Cal.);

• Figueroa v. Capital One, N.A., Case No. 3:18-cv-00692-JM-BGS (S.D. Cal.).

• Robinson v. First Hawaiian Bank, Civil No.17-1-0167-01 GWBC (1st Cir. Haw.);

• Brooks et al. v. Canvas Credit Union, 2019CV30516 (Dist. Ct. for Denver Cnty., Colo.).

• Liggio v. Apple Federal Credit Union, Civil No. 18-cv-01059 (E.D. Va.);

• Morris et al. v. Bank of America, N.A., Civil No. 3:18-cv-00157-RJC-DSC (W.D.N.C.);

• White v. Members 1st Credit Union, Case No. 1:19-cv-00556-JEJ (M.D. Pa.);

• Plummer v. Centra Credit Union, Case No. 03D01-1804-PL-001903 (Bartholomew Cnty., Ind.);

• Holt v. Community America Credit Union, Case No. 4:19-cv-00629-FJG (W.D. Mo.);

• Trinity Management v. Charles Puckett, Case No. GCG-17-558960 (Super. Ct., San Francisco, Cnty., Cal.);

• Martin v. L&N Federal Credit Union. No. 19-CI-022873 (Jefferson Cir. Ct., Division One);

• Clark v. Hills Bank and Trust Company, No. LACV080753 (Iowa Dist. Ct. Johnson Cnty.);

• Morris v. Provident Credit Union, Case No. CGC-19-581616 (Super. Ct. San Francisco Cnty., Cal.).

• Bodnar v. Bank of America, N.A., 5:14-cv-03224 (E.D. Pa.);

• In re Higher One OneAccount Marketing and Sales Practice Litigation., No. 12-md-02407-VLB (D. Conn.).

• Shannon Schulte, et al. v. Fifth Third Bank., No. 1:09-cv-06655 (N.D. Ill.);

• Kelly Mathena v. Webster Bank, No. 3:10-cv-01448 (D. Conn.);

• Nick Allen, et al. v. UMB Bank, N.A., et al., No. 1016 Civ. 34791 (Cir. Ct. Jackson Cnty., Mo.);

• Thomas Casto, et al. v. City National Bank, N.A., 10 Civ. 01089 (Cir. Ct. Kanawha Cnty., W. Va.);

• Eaton v. Bank of Oklahoma, N.A., and BOK Financial Corporation, d/b/a Bank of Oklahoma, N.A., No. CJ-2010-5209 (Dist. Ct. for Tulsa Cnty., Okla.);

• Lodley and Tehani Taulva, et al., v. Bank of Hawaii and Doe Defendants 1-50, No. 11-1-0337-02 (Cir. Ct. of 1st Cir., Haw.);

• Jessica Duval, et al. v. Citizens Financial Group, Inc., et al, No. 1:10-cv-21080 (S.D. Fla.);

• Mascaro, et al. v. TD Bank, Inc., No. 10-cv-21117 (S.D. Fla.);

• Theresa Molina, et al., v. Intrust Bank, N.A., No. 10-cv-3686 (18th Judicial Dist., Dist. Ct. Sedgwick Cnty., Kan.);

• Trombley v. National City Bank, 1:10-cv-00232-JDB (D.D.C.); Galdamez v. I.Q. Data Internatonal, Inc., No. l:15-cv-1605 (E.D. Va.);

• Brown et al. v. Transurban USA, Inc. et al., No. 1:15-CV-00494 (E.D. Va.);

• Grayson v. General Electric Co., No. 3:13-cv-01799 (D. Conn.);

• Galdamez v. I.Q. Data Internatonal, Inc., No. l:15-cv-1605 (E.D. Va.).


EXHIBIT 2


One West Las Olas Boulevard, Suite 500Fort Lauderdale, Florida 33301

Telephone: 954.525.4100Facsimile: 954.525.4300 Website: www.kolawyers.com

Miami – Fort Lauderdale – Boca Raton

FIRM RESUME


WHO WE ARE

The firm has a roster of accomplished attorneys. Clients have an

opportunity to work with some of the finest lawyers in Florida and the

United States, each one committed to upholding KO’s principles of

professionalism, integrity, and personal service. Among our roster, you’ll

find attorneys whose accomplishments include: being listed among the

“Legal Elite Attorneys” and as “Florida Super Lawyers”; achieving an AV®

Preeminent™ rating by the Martindale-Hubbell peer review process; being

Board Certified in their specialty; serving as in-house counsel for major

corporations, as a city attorney handling government affairs, as a public

defender, and as a prosecutor; achieving multi-millions of dollars through

verdicts and settlements in trials, arbitrations, and alternative dispute

resolution procedures; successfully winning appeals at every level in Florida

state and federal courts; and serving government in various elected and

appointed positions.

KO has the experience and resources necessary to represent large putative

classes. The firm’s attorneys are not simply litigators, but rather,

experienced trial attorneys with the support staff and resources needed to

coordinate complex cases.

For over two decades, Kopelowitz Ostrow Ferguson Weiselberg Gilbert

(KO) has provided comprehensive, results-oriented legal representation to

individual, business, and government clients throughout Florida and the

rest of the country. KO has the experience and capacity to represent its

clients effectively and has the legal resources to address almost any legal

need. The firm’s 26-plus attorneys have practiced at several of the nation’s

largest and most prestigious firms and are skilled in almost all phases of

law, including consumer class actions, multidistrict litigation involving mass

tort actions, complex commercial litigation, and corporate transactions. In

the class action arena, the firm has experience not only representing

individual aggrieved consumers, but also defending large institutional

clients, including multiple Fortune 100 companies.

OUR FIRM


Since its founding, KO has initiated and served as co-lead counsel and liaison

counsel in many high-profile class actions. Currently, the firm serves as liaison

counsel in a multidistrict class action antitrust case against four of the largest

contact lens manufacturers pending before Judge Schlesinger in the Middle

District of Florida. See In Re: Disposable Contact Lens Antitrust Litigation,

MDL 2626 as well as co-lead counsel in In re Zantac (Ranitidine) Prods. Liab. Litig.,

9:20-md-02924-RLR (S.D. Fla.).

Further, the firm has served or is currently serving as lead or co-lead counsel in

dozens of certified and/or proposed class actions against national and regional

banks involving the unlawful re-sequencing of debit and ATM transactions

resulting in manufactured overdraft fees, and other legal theories pertaining to

overdraft fees and insufficient funds (NSF) fees. The cases are pending, or were

pending, in various federal and state jurisdictions throughout the country,

including some in multidistrict litigation pending in the Southern District of

Florida and others in federal and state courts dispersed throughout the country.

KO’s substantial knowledge and experience litigating overdraft class actions and

analyzing overdraft damage data has enabled the firm to obtain about a dozen

multi-million dollar settlements (in excess of $400 million) for the classes KO

represents.

Additionally, other current cases are being litigated against automobile insurers

for failing to pay benefits owed to insureds with total loss vehicle claims; data

breaches; false advertising; defective consumer products and vehicles; antitrust

violations; and suits on behalf of students against colleges and universities

arising out of the COVID-19 pandemic.

The firm has in the past litigated certified and proposed class actions against

Blue Cross Blue Shield and United Healthcare related to their improper

reimbursements of health insurance benefits. Other insurance cases include

auto insurers failing to pay benefits owed to insureds with total loss vehicle

claims. Other class action cases include cases against Microsoft Corporation

related to its Xbox 360 gaming platform, ten of the largest oil companies in the

world in connection with the destructive propensities of ethanol and its impact

on boats, Nationwide Insurance for improper mortgage fee assessments, and

several of the nation’s largest retailers for deceptive advertising and marketing at

their retail outlets and factory stores.

CLASS ACTION

PLAINTIFF


The firm also brings experience in successfully defended many classactions on behalf of banking institutions, mortgage providers andservicers, an aircraft maker and U.S. Dept. of Defense contractor, amanufacturer of breast implants, and a national fitness chain.

The firm also has extensive experience in mass tort litigation, including thehandling of cases against Bausch & Lomb in connection with its Renu withMoistureLoc product, Wyeth Pharmaceuticals related to Prempro, BayerCorporation related to its birth control pill YAZ, and HowmedicaOsteonics Corporation related to the Stryker Rejuvenate and AGB II hipimplants. In connection with the foregoing, some of which has beenlitigated within the multidistrict arena, the firm has obtained millions inrecoveries for its clients.

CLASS ACTIONDEFENSE

MASS TORTLITIGATION

OTHER AREASOF PRACTICE

In addition to class action and mass tort litigation, the firm has extensiveexperience in the following practice areas: commercial and general civillitigation, corporate transactions, health law, insurance law, labor andemployment law, marital and family law, real estate litigation andtransaction, government affairs, receivership, construction law, appellatepractice, estate planning, wealth preservation, healthcare providerreimbursement and contractual disputes, white collar and criminal defense,employment contracts, environmental, and alternative dispute resolution.

FIND USONLINE

To learn more about KO, or any of the firm’s other attorneys, please visitwww.kolawyers.com.


Roberts v. Capital One, N.A., 16 Civ. 4841 (LGS) (S.D.N.Y 2020) - $17 million

Lloyd v. Navy Federal Credit Union, 17-cv-01280-BAS-RBB (S.D. Ca. 2019) - $24.5 million

Farrell v. Bank of America, N.A., 3:16-cv-00492-L-WVG (S.D. Ca. 2018) - $66.6 million

Bodnar v. Bank of America, N.A., 5:14-cv-03224-EGS (E.D. Pa. 2015) - $27.5 million

Morton v. Green Bank, 11-135-IV (20th Judicial District Tenn. 2018) - $1.5 million

Hawkins v. First Tennessee Bank, CT-004085-11 (13th Judicial District Tenn. 2017) -$16.75 million

Payne v. Old National Bank, 82C01-1012 (Cir. Ct. Vanderburgh 2016) - $4.75 million

Swift. v. Bancorpsouth, 1:10-CV-00090 (N.D. Fla. 2016) - $24.0 million

Mello v. Susquehanna Bank, 1:09-MD-02046 (S.D. Fla. 2014) – $3.68 million

Johnson v. Community Bank, 3:11-CV-01405 (M.D. Pa. 2013) - $1.5 million

McKinley v. Great Western Bank, 1:09-MD-02036 (S.D. Fla. 2013) - $2.2 million

Blahut v. Harris Bank, 1:09-MD-02036 (S.D. Fla. 2013) - $9.4 million

Wolfgeher Commerce Bank, 1:09-MD-02036 (S.D. Fla. 2013) - $18.3 million

Case v. Bank of Oklahoma, 09-MD-02036 (S.D. Fla. 2012) - $19.0 million Settlement

Hawthorne v. Umpqua Bank, 3:11-CV-06700 (N.D.Ca. 2012) - $2.9 million Settlement

Simpson v. Citizens Bank, 2:12-CV-10267 (E.D. Mi. 2012) - $2.0 million

Nelson v. Rabobank, RIC 1101391 (Riverside County, Ca. 2012) - $2.4 million

Harris v. Associated Bank, 1:09-MD-02036 (S.D. Fla. 2012) - $13.0 million

LaCour v. Whitney Bank, 8:11-CV-1896 (M.D. Fla. 2012) - $6.8 million

Orallo v. Bank of the West, 1:09-MD-202036 (S.D. Fla. 2012) - $18.0 million

Taulava v. Bank of Hawaii, 11-1-0337-02 (1st Cir. Hawaii 2011) - $9.0 million

Trevino v. Westamerica, CIV 1003690 (Marin County, CA 2010) - $2.0 million

FINANCIALINSTITUTIONS

CLASS ACTION AND MASS TORT SETTLEMENTSCase 8:19-cv-00919-MAD-CFH Document 71-3 Filed 07/12/21 Page 29 of 39

FALSEPRICING

Gattinella v. Michael Kors (USA), 14-Civ-5731 (WHP) (S.D. NY 2015) - $4.875 million

Stathakos v. Columbia Sportswear, 4:15-cv-04543-YGR (N.D. Ca. 2018) - Injunctive relief prohibiting deceptive pricing practices

CONSUMERPROTECTION

Walters v. Target Corp., 3:16-cv-1678-L-MDD (S.D. Cal. 2020) – $8.2 million

Papa v. Grieco Ford Fort Lauderdale, LLC, 18-cv-21897-JEM (S.D. Fla. 2019) - $4.9 million

Bloom v. Jenny Craig, Inc., 18-cv-21820-KMM (S.D. Fla. 2019) - $3 million

DiPuglia v. US Coachways, Inc., 1:17-cv-23006-MGC (S.D. Fla. 2018) - $2.6 million

Masson v. Tallahassee Dodge Chrysler Jeep, LLC, 1:17-cv-22967-FAM (S.D. Fla. 2018) -$850,000

MASSTORT

In re Zantac (Ranitidine) Prods. Liab. Litig., 9:20-md-02924-RLR (S.D. Fla.) - MDL No. 2924 – Co-Lead Counsel

In re: Stryker Rejuvenate and ABG II PRODUCTS LIABILITY LITIGATION, 13-MD-2411 (17th Jud. Cir. Fla. Complex Litigation Division)

In re: National Prescription Opiate Litigation, 1:17-md-02804-DAP (N.D. Ohio) - MDL 2804

In re: Smith and Nephew BHR Hip Implant Products Liability Litigation, MDL-17-md-2775

Yasmin and YAZ Marketing, Sales Practivces and Products Liability Litigation, 3:09-md-02100-DRH-PMF (S.D. Ill.) – MDL 2100

In re: Prempro Products Liability Litigation, MDL Docket No. 1507, No. 03-cv-1507 (E.D. Ark.)


Jeff Ostrow is the Managing Partner of Kopelowitz Ostrow P.A. He established his ownlaw practice immediately upon graduation from law school in 1997, co-founded the currentfirm in 2001, and has since grown it to nearly 50 attorneys in 3 offices throughout SouthFlorida. In addition to overseeing the firm’s day-to-day operations and strategic direction,Mr. Ostrow practices full time in the areas of consumer class actions, sports and businesslaw. He is a Martindale-Hubbell AV® Preeminent™ rated attorney in both legal ability andethics.

Mr. Ostrow is an accomplished trial attorney who represents both Plaintiffs andDefendants, successfully trying many cases to verdict involving multi-million dollar damageclaims in state and federal courts. Currently, he serves as lead counsel in nationwide andstatewide class action lawsuits against many of the world’s largest financial institutions inconnection with the unlawful assessment of fees. To date, his efforts have successfullyresulted in the recovery of over $400,000,000 for tens of millions of bank customers, aswell as monumental changes in the way banks assess fees. In addition, Mr. Ostrow haslitigated consumer class actions against some of the world’s largest clothing retailers, healthinsurance carriers, technology companies, and oil conglomerates, along with serving asclass action defense counsel for some of the largest advertising and marketing agencies inthe world, banking institutions, real estate developers, and mortgage companies.

JEFF OSTROWManaging Partner

Bar AdmissionsThe Florida Bar

Court AdmissionsSupreme Court of the United States U.S. Court of Appeals for the Eleventh CircuitU.S. District Court, Southern District of FloridaU.S. District Court, Middle District of FloridaU.S. District Court, Northern District of FloridaU.S. District Court, Northern District of IllinoisU.S. District Court, Eastern District of MichiganU.S. District Court, Western District of TennesseeU.S. District Court, Western District of Wisconsin

EducationNova Southeastern University, J.D. - 1997University of Florida, B.S. – 1994

Email: [email protected]


Mr. Ostrow often serves as outside General Counsel to companies, advising them inconnection with their legal and regulatory needs. He has represented many Fortune 500®Companies in connection with their Florida litigation. He has handled cases covered bymedia outlets throughout the country and has been quoted many times on various legaltopics in almost every major news publication, including the Wall Street Journal, New YorkTimes, Washington Post, Miami Herald, and Sun-Sentinel. He has also appeared on CNN,ABC, NBC, CBS, FoxNews, ESPN, and almost every other major national andinternational television network in connection with his cases, which often involve industrychanging litigation or athletes in Olympic Swimming, the NFL, NBA and MLB.

In addition to the law practice, he is the President of ProPlayer Sports LLC, a full-servicesports agency and marketing firm. He represents both Olympic swimmers and select NFLathletes and is licensed by both the NFL Players Association and the NBA PlayersAssociation as a certified Contract Advisor. Mr. Ostrow handles all player-teamnegotiations of contracts, represents his clients in legal proceedings, negotiates allmarketing engagements, and oversees public relations and crisis management. He hasextensive experience in negotiating, mediating and arbitrating a wide-range of issues onbehalf of clients with the NFL Players Association, the International Olympic Committee,the United States Olympic Committee, USA Swimming and the United States Anti-DopingAgency.

He is the founder and President of Class Action Lawyers of American, a member of thePublic Justice Foundation, and a lifetime member of the Million Dollar Advocates Forum.The Million Dollar Advocates Forum is the most prestigious group of trial lawyers in theUnited States. Membership is limited to attorneys who have won multi-million dollarverdicts. Additionally, he has been named as one of the top lawyers in Florida by SuperLawyers® for several years running, honored as one of Florida’s Legal Elite Attorneys,recognized as a Leader in Law by the Lifestyle Media Group®, and nominated by theSouth Florida Business Journal® as a finalist for its Key Partners Award. Mr. Ostrow is arecipient of the Gator 100 award for the fastest growing University of Florida alumni-owned law firm in the world.’

When not practicing law, Mr. Ostrow serves on the Board of Governors of NovaSoutheastern University’s Wayne Huizenga School of Business and is a Member of theBroward County Courthouse Advisory Task Force. He is also the Managing Member ofOne West LOA LLC, a commercial real estate development company. Mr. Ostrow is afounding board member for the Jorge Nation Foundation, a 501(c)(3) non-profitorganization that partners with the Joe DiMaggio Children’s Hospital to send childrendiagnosed with cancer on all-inclusive Dream Trips to destinations of their choice. He haspreviously sat on the boards of a national banking institution and a national healthcaremarketing company.


Robert C. “Bobby” Gilbert has over three decades of experience handling class actions,multidistrict litigation and complex business litigation throughout the United States. He hasbeen appointed lead counsel, co-lead counsel, coordinating counsel or liaison counsel inmany federal and state court class actions. Bobby has served as trial counsel in class actionsand complex business litigation tried before judges, juries and arbitrators. He has alsobriefed and argued numerous appeals, including two precedent-setting cases before theFlorida Supreme Court.

Bobby was appointed as Plaintiffs’ Coordinating Counsel in In re Checking Account OverdraftLitig., MDL 2036, class action litigation brought against many of the nation’s largest banksthat challenged the banks’ internal practice of reordering debit card transactions in amanner designed to maximize the frequency of customer overdrafts. In that role, Bobbymanaged the large team of lawyers who prosecuted the class actions and served as theplaintiffs’ liaison with the Court regarding management and administration of themultidistrict litigation. He also led or participated in settlement negotiations with thebanks that resulted in settlements exceeding $1.1 billion, including Bank of America ($410million), Citizens Financial ($137.5 million), JPMorgan Chase Bank ($110 million), PNCBank ($90 million), TD Bank ($62 million), U.S. Bank ($55 million), Union Bank ($35million) and Capital One ($31.7 million).

Bobby has been appointed to leadership positions is numerous other class actions andmultidistrict litigation proceedings. He is currently serving as co-lead counsel in In re Zantac(Ranitidine) Prods. Liab. Litig., 9:20-md-02924-RLR (S.D. Fla.), as well as liaison counsel in Inre Disposable Contact Lens Antitrust Litig., MDL 2626 (M.D. Fla.); liaison counsel in In re 21stCentury Oncology Customer Data Security Beach Litig., MDL 2737 (M.D. Fla.); and In re Farm-Raised Salmon and Salmon Products Antitrust Litig., No. 19-21551 (S.D. Fla.). He previouslyserved as liaison counsel for indirect purchasers in In re Terazosin Hydrochloride AntitrustLitig., MDL 1317 (S.D. Fla.), an antitrust class action that settled for over $74 million.

ROBERT C. GILBERTPartner

Bar AdmissionsThe Florida BarDistrict of Columbia Bar

Court AdmissionsSupreme Court of the United StatesU.S. Court of Appeals for the 11th CircuitU.S. District Court, Southern District of FloridaU.S. District Court, Middle District of Florida

EducationUniversity of Miami School of Law, J.D. - 1985Florida International University, B.S. - 1982



For the past 18 years, Bobby has represented thousands of Florida homeowners in classactions to recover full compensation under the Florida Constitution based on the FloridaDepartment of Agriculture’s taking and destruction of the homeowners’ private property.As lead counsel, Bobby argued before the Florida Supreme Court to establish thehomeowners’ right to pursue their claims; served as trial counsel in non-jury liability trialsfollowed by jury trials that established the amount of full compensation owed to thehomeowners for their private property; and handled all appellate proceedings. Bobby’stireless efforts on behalf of the homeowners resulted in judgments exceeding $93 million.

Bobby previously served as an Adjunct Professor at Vanderbilt University Law School,where he co-taught a course on complex litigation in federal courts that focused onmultidistrict litigation and class actions. He continues to frequently lecture and makepresentations on a variety of topics.

Bobby has served for many years as a trustee of the Greater Miami Jewish Federation andpreviously served as chairman of the board of the Alexander Muss High School in Israel,and as a trustee of The Miami Foundation.


JONATHAN M. STREISFELDPartner


Court AdmissionsSupreme Court of the United StatesU.S. Court of Appeals for the First, Second, Fourth, Fifth Ninth,and Eleventh CircuitsU.S. District Court, Southern District of FloridaU.S. District Court, Middle District of FloridaU.S. District Court, Northern District of FloridaU.S. District Court, Northern District of IllinoisU.S. District Court, Western District of MichiganU.S. District Court, Western District of New YorkU.S. District Court, Western District of Tennessee

EducationNova Southeastern University, J.D. - 1997Syracuse University, B.S. - 1994


Jonathan M. Streisfeld joined KO as a partner in 2008. Mr. Streisfeld concentrates his practice inthe areas of consumer class actions, business litigation, and appeals nationwide. He is a Martindale-Hubbell AV® Preeminent™ rated attorney in both legal ability and ethics.

Mr. Streisfeld has vast and successful experience in class action litigation, serving as class counsel innationwide and statewide consumer class action lawsuits against the nation’s largest financialinstitutions in connection with the unlawful assessment of fees. To date, his efforts havesuccessfully resulted in the recovery of over $400,000,000 for millions of bank and credit unioncustomers, as well as profound changes in the way banks assess fees. Additionally, he has andcontinues to serve as lead and class counsel for consumers in many class actions involving falseadvertising and pricing, defective products, and data breach. In addition, Mr. Streisfeld has litigatedclass actions against some of the largest health and automobile insurance carriers and oilconglomerates, and defended class and collective actions in other contexts.

Mr. Streisfeld has represented a variety of businesses and individuals in a broad range of businesslitigation matters, including contract, fraud, breach of fiduciary duty, intellectual property, realestate, shareholder disputes, wage and hour, and deceptive trade practices claims. He also assistsbusiness owners and individuals with documenting contractual relationships. Mr. Streisfeld alsoprovides legal representation in bid protest proceedings.

Mr. Streisfeld oversees the firm’s appellate and litigation support practice, representing clients inthe appeal of final and non-final orders, as well as writs of certiorari, mandamus, and prohibition.His appellate practice includes civil and marital and family law matters.

Previously, Mr. Streisfeld served as outside assistant city attorney for the City of Plantation andVillage of Wellington in a broad range of litigation matters.

As a member of The Florida Bar, Mr. Streisfeld served for many years on the Executive Council ofthe Appellate Practice Section and is a past Chair of the Section’s Communications Committee.Mr. Streisfeld currently serves as a member of the Board of Temple Kol Ami Emanu-El.


DANIEL TROPINPartner


Court AdmissionsU.S. District Court, Southern District of FloridaU.S. District Court, Middle District of Florida

EducationUniversity of Virginia, J.D. - 2012Emory University, B.A. - 2008


Daniel Tropin is a litigator who specializes in complex commercial cases and class actionlitigation. Mr. Tropin joined the law firm as a partner in 2018, and has a wealth ofexperience across the spectrum of litigation, including class actions, derivative actions,trade secrets, arbitrations, and product liability cases.

Mr. Tropin graduated from the University of Virginia law school in 2012, and prior tojoining this firm, was an associate at a major Miami law firm and helped launch a new lawfirm in Wynwood. He was given the Daily Business Review’s Most Effective Lawyers,Corporate Securities award in 2014. His previous representative matters include:

• Represented a major homebuilder in an action against a former business partner, whohad engaged in a fraud and defamation scheme to extort money from the client.Following a jury trial, the homebuilder was awarded $1.02 billion in damages. The awardwas affirmed on appeal.

• Represented the former president and CEO of a cruise line in a lawsuit against a majorinternational venture capital conglomerate, travel and entertainment company, based onallegations of misappropriation of trade secrets, breach of a non-disclosure agreement,and breach of a partnership agreement.

• Represented the CEO of a rapid finance company in an action seeking injunctive reliefto protect his interest in the company.

• Represented a medical supply distribution company an action that involved allegationsof misappropriation and breach of a non-circumvention agreement.

• Represented a mobile phone manufacturer and distributor in a multi-million-dollardispute regarding membership interests in a Limited Liability Company, with claimsalleging misappropriation of trade secrets and breach of fiduciary duty.

• Represented a major liquor manufacturer in a products liability lawsuit arising out of anincident involving flaming alcohol.


JOSH LEVINEPartnerBar AdmissionsThe Florida Bar

Court AdmissionsU.S. Court of Appeals for the Fifth CircuitU.S. Court of Appeals for the Sixth CircuitU.S. Court of Appeals for the Eleventh CircuitU.S. District Court, Southern District of FloridaU.S. District Court, Middle District of FloridaU.S. District Court, Northern District of Illinois

EducationUniversity of Miami School of Law, J.D. - 2011University of Central Florida, B.A. - 2006Email: [email protected]

Josh Levine is a litigation attorney, and his practice takes him all over the State of Floridaand the United States. Mr. Levine focuses on civil litigation and appellate practice, primarilyin the areas of class actions and commercial litigation.

Mr. Levine has handled over 175 appeals in all five of Florida’s District Courts of Appealand the Florida Supreme Court, as well as multiple federal appellate courts. Mr. Levine hasrepresented both businesses and individuals in litigation matters, including contractualclaims, fraud, breach of fiduciary duty, negligence, professional liability, enforcement ofnon-compete agreements, trade secret infringement, real estate and title claims, otherbusiness torts, insurance coverage disputes, as well as consumer protection statutes.

Mr. Levine is a member of the Florida Bar Appellate Court Rules Committee, currentlyserving as the vice-chair of the Civil Practice Subcommittee and is an active member ofthe Appellate Practice Section of the Florida Bar and the Broward County Bar Association.Mr. Levine recently completed a four-year term as a member of the Board of Directors ofthe Broward County Bar Association Young Lawyers Section.

Mr. Levine received a Juris Doctor degree, Magna Cum Laude, from the University ofMiami School of Law. While attending law school, he served as an Articles and CommentsEditor on the University of Miami Inter-American Law Review and was on the Dean’sList, and a Merit Scholarship recipient. Mr. Levine also was awarded the Dean’s Certificateof Achievement in Legal Research and Writing, Trusts & Estates, & ProfessionalResponsibility classes.

Before joining KO, Mr. Levine worked at an Am Law 100 firm where he also focused oncivil litigation and appellate practice, primarily representing banks, lenders, and loanservicers in consumer finance related litigation matters.


KRISTEN LAKE CARDOSOPartner


Court AdmissionsU.S. District Court, Southern District of FloridaU.S. District Court, Middle District of Florida

EducationNova Southeastern University, J.D., 2007 University of Florida, B.A., 2004


Kristen Lake Cardoso is a litigation attorney focusing on complex commercial cases andconsumer class actions. She has gained valuable experience representing individuals andbusinesses in state and federal courts at both the trial and appellate levels in a variety oflitigation matters, including contractual claims, fraud, breach of fiduciary duty, negligence,professional liability, real estate claims, enforcement of non-compete agreements, tradesecret infringement, shareholder disputes, deceptive trade practices, other business torts, aswell as consumer protection statutes.

Mrs. Cardoso’s class action cases have involved, amongst other things, data breaches,violations of state consumer protection statutes, and breaches of contract. Mrs. Cardosohas represented students seeking reimbursements of tuition, room and board, and otherfees paid to their colleges and universities for in-person education, housing, meals, andother services not provided when campuses closed during the COVID-19 pandemic. Ms.Cardoso has also represented consumers seeking recovery of gambling losses from techcompanies that profit from illegal gambling games offered, sold, and distributed on theirplatforms.

Mrs. Cardoso is admitted to practice law throughout the State of Florida, as well as in theUnited States District Courts for the Southern District of Florida and the NorthernDistrict of Florida. Mrs. Cardoso attended the University of Florida, where she receivedher Bachelor's degree in Political Science, cum laude. She received her law degree fromNova Southeastern University, magna cum laude. While in law school, Mrs. Cardoso servedas an Articles Editor for the Nova Law Review, was on the Dean's List, and was therecipient of a scholarship granted by the Broward County Hispanic Bar Association for heracademic achievements. When not practicing law, Mrs. Cardoso serves as a volunteer atSaint David Catholic School. She has also served on various committees with the JuniorLeague of Greater Fort Lauderdale geared towards improving the local communitythrough leadership and volunteering.


RACHEL GLASERAssociate


EducationNova Southeastern University, J.D., 2020 Florida State University, B.S., 2017


Rachel Feder Glaser is an attorney in KO’s Fort Lauderdale office and is an active memberof the Florida Bar. Her practice focuses primarily on class action litigation. Ms. Glaserlitigates consumer class action lawsuits, including cases against some of the largest financialinstitutions in Florida and around the United States, challenging their unlawful assessmentand collection of account fees. She has also assisted the firm in class actions targeting autoinsurance companies across the country, in connection with the failure to provide propercoverage in the event of a total vehicular loss.

Ms. Glaser earned her Juris Doctor, summa cum laude, from Nova SoutheasternUniversity, Shepard Broad College of Law, where she served as an Executive BoardMember of the Nova Trial Association, Senior Associate for the Nova Law Review, and asa teaching assistant for the Legal Research and Writing department. Ms. Glaser wasconsistently placed on the Dean’s List and received the Book Awards in Legal research andWriting, Evidence, and Trial Advocacy.

While in law school, Ms. Glaser participated in national competitions for both the NovaTrial Association and the Moot Court Honor Society, winning a National Championship atthe 2019 Buffalo-Niagara Mock Trial Competition. For her excellence in advocacy, Ms.Glaser was inducted into the Order of the Barristers.

Ms. Glaser received a Bachelor of Science in both Accounting and Finance from FloridaState University. While attending Florida State, she interned for the University’s Office ofInspector General Services where she assisted internal auditors in investigating allegationsrelated to compliance, fraud, and abuse of university resources.


EXHIBIT C


DECLARATION OF CAMERON AZARI, ESQ. ON IMPLEMENTATION AND ADEQUACY OF

SETTLEMENT NOTICE PLAN


TINA THOMPSON and SCOTT DOXEY, onf behalf of themselves and all others similarly situated, Plaintiffs, vs. COMMUNITY BANK, N.A.,

Defendant.

Case No. 8:19-cv-0919-MAD-CFH

DECLARATION OF CAMERON AZARI, ESQ. ON IMPLEMENTATION AND

ADEQUACY OF SETTLEMENT NOTICE PLAN

I, Cameron Azari, declare as follows:

1. My name is Cameron R. Azari, Esq. I have personal knowledge of the matters set

forth herein, and I believe them to be true and correct.

2. I am a nationally recognized expert in the field of legal notice and I have served as

an expert in dozens of federal and state cases involving class action notice plans.

3. I am a Senior Vice President with Epiq Class Action & Claims Solutions, Inc.

(“Epiq”) and the Director of Legal Notice for Hilsoft Notifications (“Hilsoft”); a firm that

specializes in designing, developing, analyzing and implementing large-scale legal notification

plans. Hilsoft is a business unit of Epiq.

4. Hilsoft has been involved with some of the most complex and significant notices

and notice programs in recent history. With experience in more than 400 cases, including more

than 35 MDLs, notices prepared by Hilsoft have appeared in 53 languages with distribution in

almost every country, territory and dependency in the world. Judges, including in published

decisions, have recognized and approved numerous notice plans developed by Hilsoft, and those

decisions invariably have withstood appellate challenges and collateral reviews by other courts.

5. Hilsoft has been involved with some of the most complex and significant notices


2 DECLARATION OF CAMERON AZARI, ESQ. ON IMPLEMENTATION AND ADEQUACY OF


and notice programs in recent history. We have been recognized by courts for our testimony as to

which method of notification is appropriate for a given case, and we have provided testimony on

numerous occasions on whether a certain method of notice represents the best notice practicable

under the circumstances. Hilsoft’s CV is included as Attachment 1. We have designed and

implemented notice plans in many overdraft-related cases such as this, for example:

A. Farrell v. Bank of America, NA., No. 3:16-cv-00492, S.D. Cal. (overdraft litigation settlement; individual notification reached approximately 93% of class members; granted final approval);

B. In re: Checking Account Overdraft Litigation (Comerica Bank), MDL No. 2036, S.D. Fla. (overdraft litigation settlement; individual notification reached1 approximately 93% of class members; granted final approval);

C. In re: Checking Account Overdraft Litigation (Susquehanna Bank), MDL No.

2036, S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 88% of class members; granted final approval);

D. In re: Checking Account Overdraft Litigation (M&I Bank), MDL No. 2036,

S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 97.5% of class members; granted final approval);

E. In re: Checking Account Overdraft Litigation (Compass Bank, N.A.), MDL No.

2036, S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 88.7% of class members; granted final approval);

F. In re: Checking Account Overdraft Litigation (Associated Bank, N.A.), MDL

No. 2036, S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 95% of class members; granted final approval);

G. In re: Checking Account Overdraft Litigation (Harris Bank, N.A.), MDL No.

2036, S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 97% of class members; granted final approval);

H. In re: Checking Account Overdraft Litigation (Commerce Bank, N.A.), MDL


1 Reach is defined as the percentage of a class exposed to a notice, net of any duplication among people who may have been exposed more than once. Notice “exposure” is defined as the opportunity to view a notice. The average “frequency” of notice exposure is the average number of times that those reached by a notice would be exposed to a notice.




I. In re: Checking Account Overdraft Litigation (PNC Bank, N.A.), MDL No. 2036, S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 97% of class members; granted final approval);

J. In re: Checking Account Overdraft Litigation (TD Bank, N.A.), MDL No. 2036,

S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 90.5% of class members; granted final approval);

K. Costello v. NBT Bank, N.A., No. 2011 1037, Sup. Ct., N.Y. (overdraft litigation

settlement; individual notification reached approximately 94% of class members; granted final approval);

L. In re: Checking Account Overdraft Litigation (RBS Citizens Bank, N.A.), MDL


M. In re: Checking Account Overdraft Litigation (Bank of Oklahoma, N.A.), MDL


N. In re: Checking Account Overdraft Litigation (IBERIABANK), MDL No. 2036,

S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 97% of class members; granted final approval);

O. Schulte v. Fifth Third Bank, No. 09-CV-06655, N.D. Ill. (overdraft litigation

settlement; individual notification reached approximately 89.7% of class members; granted final approval);

P. Trombley v. National City Bank, No. 1:10-CV-00232, D.D.C. (overdraft

litigation settlement; individual notification reached approximately 93.3% of class members; granted final approval);

Q. Mathena v. Webster Bank, N.A., No. 3:10-cv-01448, D. Conn. (overdraft

litigation settlement; individual notification reached approximately 97.6% of class members; granted final approval);

R. Simpson v. Citizens Bank; No. 2:12-cv-10267, E.D. Mich. and Liddell v.

Citizens Bank, et al.; No. 2:12-cv-11604, E.D. Mich. (overdraft litigation settlement; individual notification reached approximately 87% of class members; granted final approval);

S. Swift v. BancorpSouth Bank, No. 1:10-cv-00090, N.D. Fla. (overdraft litigation

settlement; individual notification reached approximately 93% of class members; granted final approval);




T. Forgione v. Webster Bank N.A., No. X10-UWY-CV-12-6015956-S, Sup. Ct. Conn. (overdraft litigation settlement; individual notification reached approximately 99.5% of class members; granted final approval);

U. In re: HSBC Bank USA, N.A., Checking Account Overdraft Litigation, No.

650562/2011, Sup. Ct. N.Y. (overdraft litigation settlement; individual notification reached approximately 88.7% of class members; granted final approval);

V. Hawkins v. First Tennessee Bank, N.A., et al., No. CT-004085-11, 13th Jud. Cir.

Tenn. (overdraft litigation settlement; individual notification reached approximately 96% of class members; granted final approval);

W. Ratzlaff v. BOKF, NA d/b/a Bank of Oklahoma, et al., No. CJ-2015-00859, Dist.

Ct. Okla., (overdraft litigation settlement; individual notification reached approximately 98.6% of class members; granted final approval);

X. Jacobs, et al. v. Huntington Bancshares Inc. et al. (FirstMerit), No.

11CV000090, Ohio C.P., (overdraft litigation settlement; individual notification reached approximately 99.7% of class members; granted final approval);

Y. Glaske v. Independent Bank Corporation, No. 13-009983-CZ, Cir. Ct. Mich.,

(overdraft litigation settlement, individual notification reached approximately 97% of identified settlement class members; granted final approval);

Z. Morton v. Greenbank, No. 11-135-IV, 20th Jud. Dist. Tenn. (overdraft litigation

settlement; individual notification reached approximately 94.7% of class members; granted final approval);

AA. Stahl v. Bank of the West, No. BC673397, Sup. Ct., Cal., (overdraft litigation;

individual notification reached approximately 96% of the class members; granted final approval);

BB. Robinson v. First Hawaiian Bank, 17-1-0167-01, Cir. Ct. of First Cir. Haw.,

(overdraft litigation; individual notification reached approximately 95% of the class members; granted final approval);

CC. Dasher v. RBC Bank (USA) predecessor in interest to PNC Bank, N.A. 1:10-cv-

22190, S.D. Fla., as part of In re: Checking Account Overdraft Litigation MDL No. 2036, S.D. Fla. (overdraft litigation; individual notification and banner notices reached approximately 87% of the class members; granted final approval);

DD. Lashambae v. Capital One, 1:2017-cv-06406, E.D.N.Y. (overdraft litigation;

individual notification reached approximately 98.7% of the class members; granted final approval);




EE. Walters v. Target Corp, 3:16-cv-1678, S.D. Cal. (overdraft litigation; individual notification reached approximately 97.8% of the identified class; granted final approval); and

FF. Morris v. Provident Credit Union, CGC-19-581616, Sup. Ct. Cal. Cty. of San

Fran. (overdraft litigation; individual notification reached approximately 99% of the identified class; granted final approval).

6. In forming expert opinions, my staff and I draw from our in-depth class action case

experience, as well as our educational and related work experiences. I am an active member of

the Oregon State Bar, having received my Bachelor of Science from Willamette University and

my Juris Doctor from Northwestern School of Law at Lewis and Clark College. I have served as

the Director of Legal Notice for Hilsoft since 2008 and have overseen the detailed planning of

virtually all of our court-approved notice programs during that time. Before assuming my current

role with Hilsoft, I served in a similar role as Director of Epiq Legal Noticing (previously called

Huntington Legal Advertising). Overall, I have over 21 years of experience in the design and

implementation of legal notification and claims administration programs, having been personally

involved in hundreds of successful notice programs.

Epiq’s Background and Qualifications

7. Epiq was established in 1968 as a client services and data processing company.

Epiq has administered bankruptcies since 1985 and settlements since 1993. Epiq has routinely

developed and executed notice programs and administrations in a wide variety of mass and class

action contexts including settlements of consumer, antitrust, products liability, and labor and

employment class actions, settlements of mass tort litigation, Securities and Exchange

Commission enforcement actions, Federal Trade Commission disgorgement actions, insurance

disputes, bankruptcies, and other major litigation. Epiq has administered more than 4,500

settlements, including some of the largest and most complex cases ever settled. Epiq’s class action

case administration services include administering notice requirements, designing direct-mail

notices, implementing notice fulfillment services, coordinating with the United States Postal

Service (“USPS”), developing and maintaining notice websites and dedicated settlement telephone




numbers, processing exclusion requests, objections, claim forms and correspondence, maintaining

class member databases, adjudicating claims, managing settlement funds, and calculating claim

payments and distributions. As an experienced neutral third-party administrator working with

settling parties, courts, and mass action participants, Epiq has handled hundreds of millions of

notices, disseminated hundreds of millions of emails, handled millions of phone calls, processed

tens of millions of claims, and distributed hundreds of billions in payments.

OVERVIEW

8. This declaration details the Settlement Notice Plan (“Notice Plan” or “Plan”)

implemented here for the Settlement in Tina Thompson and Scott Doxey v. Community Bank, N.A.

Case No. 8:19-cv-0919, United States District Court for the Northern District of New York. The

facts in this declaration are based on my personal knowledge, as well as information provided to

me by my colleagues in the ordinary course of my business at Hilsoft and Epiq.

9. On May 10, 2021, the Court approved the Notice Plan as designed by Hilsoft and

appointed Epiq as the Settlement Administrator in the Amended Order (“Amended Preliminary

Approval Order”). I have reviewed the Settlement Agreement and the Notice Plan was designed

to provide notice to the following Settlement Class:

[A]ll current and former customers of Defendant with consumer checking accounts, who were charged a Relevant Overdraft Fee during the Class Period. Excluded from the Settlement Class is Defendant, its parents, subsidiaries, affiliates, officers and directors; all Settlement Class members who make a timely election to be excluded; and all judges assigned to this litigation and their immediate family members.

10. From the Settlement Agreement, I understand the defined terms used in the

definition of the Settlement Class and subsequent defined terms are as follows. “Relevant

Overdraft Fees” means APPSN Fees and Account Verification Fees. “APPSN Fees” means fees

that Defendant charged and did not refund on signature Point of Sale Debit Card transactions from

January 1, 2015 to December 31, 2019, where there was a sufficient available balance at the time




the transaction was authorized, but an insufficient available balance at the time the transaction was

presented to Defendant for payment and posted to a customer’s Account. “Account Verification

Fees” means Overdraft Fees that were charged and not refunded from January 1, 2015 to December

31, 2019, as a result of a verification process on the customer’s Account that resulted in no change

to their account balances. “Overdraft Fee” means any fee or fees assessed to an Account Holder

for items paid when the Account had insufficient funds. “Class Period” means the period from

January 1, 2015 to December 31, 2019.

11. On December 10, 2020, Epiq received one data file from Defendant Community

Bank with contact information in the form of names and physical mailing addresses and/or email

addresses available for virtually all 46,404 accounts of Settlement Class Members. This data was

used to provide individual notice to virtually all Settlement Class Members. Notice consisted of a

summary Postcard Notice that was sent via USPS first class mail and/or a summary Email Notice

that was sent via email. For the 46,404 accounts of Settlement Class Members for the initial notice

efforts, 32,547 records were sent a summary Postcard Notice and 16,834 records were sent a

summary Email Notice (some Settlement Class Members received both a summary Postcard

Notice and a summary Email Notice).

12. The individual notice effort of the Notice Plan reached approximately 94.5% of

identified Settlement Class Members. This reach of the Notice Plan is consistent with other court-

approved notice programs. The Notice Plan was designed and implemented to meet due process

requirements. In my opinion, providing notice via individual notice in a case such as this with

good and reliable data for the entire class fully satisfied the requirements of due process, including

its “desire to actually inform” requirement.

CAFA Notice

13. As described in the Declaration of Stephanie J. Fiereck, Esq. on Implementation of

CAFA Notice, dated January 15, 2021 (“Fiereck Declaration”), Epiq sent a CAFA notice packet

(or “CAFA Notice”), on behalf of Community Bank, N.A.—as required by the federal Class

Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1715, to one official, the Office of the




Comptroller of the Currency (OCC) on January 15, 2021. The CAFA Notice was sent via United

Parcel Service (“UPS”) to the OCC. The Fiereck Declaration is included as Attachment 2.

Individual Notice - Postcard Notice

14. On May 26, 2021, Epiq sent 32,547 summary Postcard Notices to all records with

an associated physical mailing address for those Settlement Class Members without a facially valid

email address. On June 6, 2021, Epiq also sent 2,284 summary Postcard Notices to all records

with an undeliverable Email Notice after several attempts who had an associated physical mailing

address for those Settlement Class Members.

15. The summary Postcard Notices were sent via USPS first class mail. Prior to

mailing, all mailing addresses were checked against the National Change of Address (“NCOA”)

database maintained by the USPS.2 In addition, the addresses were certified via the Coding

Accuracy Support System (“CASS”) to ensure the quality of the zip code, and verified through

Delivery Point Validation (“DPV”) to verify the accuracy of the addresses. This address updating

process is standard for the industry and for the majority of promotional mailings that occur today.

The summary Postcard Notice is included as Attachment 3.

16. The return address on the summary Postcard Notices is a post office box maintained

by Epiq. The USPS automatically forwards summary Postcard Notices with an available

forwarding address order that has not expired (“Postal Forwards”). For summary Postcard Notices

returned as undeliverable, Epiq re-mails the Notice to any new address available through USPS

(for example, to the address provided by the USPS on returned pieces for which the automatic

forwarding order has expired, but which is still during the period in which the USPS returns the

piece with the address indicated). Epiq also obtains better addresses by using a third-party lookup

service. Upon successfully locating better addresses, summary Postcard Notices are promptly re-

mailed. As of July 12, 2021, the USPS has sent 222 Postal Forwards. As of July 12, 2021, Epiq

2 The NCOA database contains records of all permanent change of address submissions received by the USPS for the last four years. The USPS makes this data available to mailing firms and lists submitted to it are automatically updated with any reported move based on a comparison with the person’s name and known address.




has received 2,551 undeliverable summary Postcard Notices and re-mailed 1,211 summary

Postcard Notices for those addresses where a forwarding address was provided or address research

identified a new address.

Individual Notice - Email Notice

17. On May 26, 2021, Epiq sent 16,834 summary Email Notices to all records with a

facially valid email address for Settlement Class Members. The Email Notice was created using

an embedded html text format. This format provided text that is easy to read without graphics,

tables, images and other elements that would increase the likelihood that the message could be

blocked by Internet Service Providers (ISPs) and/or SPAM filters. The emails were sent using a

server known to the major emails providers as one not used to send bulk “SPAM” or “junk” email

blasts. The emails were also sent in small groups so as to not be erroneously flagged as a bulk

junk email blast. Each Email Notice was transmitted with a unique message identifier. The Email

Notice is included as Attachment 4.

18. If the receiving email server could not deliver the message, a “bounce code” was

returned along with the unique message identifier. For any Email Notice for which a bounce code

was received indicating that the message was undeliverable, at least two additional attempts were

made to deliver the Email Notice via email. After completion of the initial Email Notice effort,

2,284 Email Notices remain undeliverable.

19. The Email Notice included an embedded link to the settlement website. By clicking

the link, Settlement Class Members were able to easily access information about the Settlement,

including the deadlines for excluding themselves or objecting, the Long Form Notice, the

Settlement Agreement, and other important documents.

Summary Notice Results

20. As of July 12, 2021, 43,853 of the 46,404 total Settlement Class Members’ account

records were successfully delivered Notice. This resulted in the summary Postcard Notice and/or

Email Notice being successfully delivered to approximately 94.5% of the identified Settlement

Class Members.




Settlement Website, Toll-free Telephone Number, and Postal Mailing Address

21. On May 26, 2021, a dedicated website was established for the Settlement with an

easy-to-remember domain name (www.CommunityOverdraftSettlement.com). At the website,

Settlement Class Members are able to obtain detailed information about the case and review key

documents, including the Long Form Notice, Class Notice, Settlement Agreement, Amended

Complaint, Motion for Preliminary Approval, and Preliminary Approval Order, as well as answers

to frequently asked questions (FAQs). The settlement website address was displayed prominently

on all notice documents. As of July 12, 2021, there have been 137 unique visitors to the website

and 247 website pages presented.

22. On May 26, 2021, a toll-free telephone number (1-800-578-2974) was also

established to allow Settlement Class Members to call for additional information, listen to answers

to FAQs and request that a Long Form Notice be mailed to them. The toll-free telephone number

was prominently displayed in the Notice documents as well. As of July 12, 2021, the toll-free

telephone number has handled 407 calls representing 1,161 minutes of use. As of July 12, 2021,

Epiq has mailed 145 Long Form Notices as a result of such requests made via the toll-free

telephone number. The Long Form Notice is included as Attachment 5.

23. A post office box for correspondence about the Settlement was also established and

maintained, which allow Settlement Class Members to contact the Settlement Administrator by

mail with any specific requests or questions, including requests for exclusion.

Requests for Exclusion and Objections

24. The deadline to request exclusion from the Settlement or to object to the Settlement

is July 26, 2021. As of July 12, 2021, Epiq has received one request for exclusion. As of July 12,

2021, I am aware of no objections to the Settlement. If requested by the parties, I will provide a

supplemental declaration to the Court prior to the Final Approval Hearing to provide updated

information regarding any requests for exclusion and/or objection to the Settlement that may be

received.




Conclusion

25. In class action notice planning, execution, and analysis, we are guided by due

process considerations under the United States Constitution, by state and local rules and statutes,

and by case law pertaining to the recognized notice standards. This framework directs that the

notice program be optimized to reach the class and, in a settlement class action notice situation

such as this, that the notice or notice program itself not limit knowledge of the availability of

benefits—nor the ability to exercise other options—to class members in any way. All of these

requirements were met in this case.

26. As detailed previously, the Notice Plan reached approximately 94.5% of Settlement

Class Members. It delivered “noticeable” Notices to capture Settlement Class Members’ attention

and provide them with information necessary to understand their rights and options.

27. The Notice Plan schedule afforded sufficient time to provide full and proper notice

to Settlement Class Members before the opt-out and objection deadlines.

28. The Notice Program described above, including individual notice to all identifiable

Settlement Class Members provided for the best notice practicable under the circumstances of this

case, conformed to all aspects of Federal Rules of Civil Procedure Rule 23, and comported with

the guidance for effective notice articulated in the Manual for Complex Litigation 4th Ed.

I declare under penalty of perjury that the foregoing is true and correct. Executed on July

12, 2021.

_____________________________

Cameron R. Azari


Attachment 1


PORTLAND OFFICE 10300 SW ALLEN BLVD, BEAVERTON, OR 97005 T 503-597-7697 WWW.HILSOFT.COM [email protected]

Hilsoft Notifications (“Hilsoft”) is a leading provider of legal notice services for large-scale class action and bankruptcy matters. We specialize in providing quality, expert, and notice plan development – designing notice programs that satisfy due process requirements and withstand judicial scrutiny. Hilsoft is a business unit of Epiq Class Action & Claims Solutions, Inc. (“Epiq”). Hilsoft has been retained by defendants or plaintiffs for more than 500 cases, including more than 40 MDL cases, with notices appearing in more than 53 languages and in almost every country, territory and dependency in the world. For more than 25 years, Hilsoft’s notice plans have been approved and upheld by courts. Case examples include:

Hilsoft designed and implemented monumental notice campaigns to notify current or former owners or lessees of certain BMW, Mazda, Subaru, Toyota, Honda, Nissan, and Ford vehicles as part of $1.49 billion in settlements regarding Takata airbags. The Notice Plans included individual mailed notice to more than 59.6 million potential class members and notice via consumer publications, U.S. Territory newspapers, radio, internet banners, mobile banners, and other behaviorally targeted digital media. Combined, the Notice Plans reached more than 95% of adults aged 18+ in the U.S. who owned or leased a subject vehicle with a frequency of 4.0 times each. In re: Takata Airbag Products Liability Litigation (OEMS – BMW, Mazda, Subaru, Toyota, Honda, Nissan and Ford), MDL No. 2599 (S.D. Fla.).

For a landmark $6.05 billion settlement reached by Visa and MasterCard in 2012, Hilsoft implemented an intensive notice program, which included over 19.8 million direct mail notices to class members together with insertions in over 1,500 newspapers, consumer magazines, national business publications, trade and specialty publications, and language & ethnic targeted publications. Hilsoft also implemented an extensive online notice campaign with banner notices, which generated more than 770 million adult impressions, a settlement website in eight languages, and acquisition of sponsored search listings to facilitate locating the website. For the subsequent, superseding $5.54 billion settlement reached by Visa and MasterCard in 2019, Hilsoft implemented an extensive notice program, which included over 16.3 million direct mail notices to class members together with over 354 print publication insertions and banner notices, which generated more than 689 million adult impressions. In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 05-MD-1720, MDL No. 1720 (E.D.N.Y.).

For a $250 million settlement with approximately 4.7 million class members, Hilsoft designed and implemented a notice program with individual notice via postcard or email to approximately 1.43 million class members and a robust publication program, which combined, reached approximately 78.8% of all U.S. adults aged 35+ approximately 2.4 times each. Hale v. State Farm Mutual Automobile Insurance Company, et al., 12-cv-00660 (S.D. Ill.).

Hilsoft designed and implemented an extensive individual notice program, which included 8.6 million double-postcard notices and 1.4 million email notices. The notices informed class members of a $32 million settlement for a “security incident” regarding class members’ personal information stored in Premera’s computer network, which was compromised. The individual notice efforts reached 93.3% of the settlement class. A settlement website, an informational release, and a geo-targeted publication notice further enhanced the notice efforts. In re: Premera Blue Cross Customer Data Security Breach Litigation, 3:15-md-2633 (D. Ore.).

Hilsoft provided notice for the $113 million lithium-ion batteries antitrust litigation settlements, which included individual notice via email to millions of class members, banner and social media ads, an informational release, and a settlement website. In re: Lithium Ion Batteries Antitrust Litigation, 4:13-md-02420, MDL No. 2420 (N.D. Cal.).

Hilsoft designed a notice program that included extensive data acquisition and mailed notice to inform owners and lessees of specific models of Mercedes-Benz vehicles. The notice program reached approximately 96.5% of all class members. Callaway v. Mercedes-Benz USA, LLC, 8:14-cv-02011 (C.D. Cal.).


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PORTLAND AREA OFFICE 10300 SW ALLEN BLVD BEAVERTON, OR 97005 T 503-597-7697

Hilsoft provided notice for a $520 million settlement, which involved utility customers (residential, commercial, industrial, etc.) who paid utility bills. The notice program included individual notice to more than 1.6 million known class members via postal mail or email and a supplemental publication notice in local newspapers, banner notices, and a settlement website. The individual notice efforts alone reached more than 98.6% of the class. Cook, et al. v. South Carolina Public Service Authority, et al., 2019-CP-23-6675 (Ct. of Com. Pleas. 13th Jud. Cir. S.C.).

For a $20 million TCPA settlement that involved Uber, Hilsoft created a notice program, which resulted in notice via mail or email to more than 6.9 million identifiable class members. The combined measurable notice effort reached approximately 90.6% of the settlement class with direct mail and email, newspaper and internet banner ads. Vergara, et al., v. Uber Technologies, Inc., 1:15-CV-06972 (N.D. Ill.).

A comprehensive notice program within the Volkswagen Emissions Litigation that provided individual notice to more than 946,000 vehicle owners via first class mail and to more than 855,000 vehicle owners via email. A targeted internet campaign further enhanced the notice effort. In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch Settlement), MDL No. 2672 (N.D. Cal.).

Hilsoft designed and implemented a comprehensive notice plan, which included individual notice via an oversized postcard notice to more than 740,000 class members as well as email notice to class members. Combined the individual notice efforts delivered notice to approximately 98% of the class. Supplemental newspaper notice in four large-circulation newspapers and a settlement website further expanded the notice efforts. Lusnak v. Bank of America, N.A., CV 14-1855 (C.D. Cal.).

Hilsoft provided notice for both the class certification and the settlement phases of the case. The individual notice efforts included sending postcard notices to more than 2.3 million class members, which reached 96% of the class. Publication notice in a national newspaper, targeted internet banner notices and a settlement website further extended the reach of the notice plan. Waldrup v. Countrywide Financial Corporation, et al., 2:13-cv-08833 (C.D. Cal.).

An extensive notice effort regarding asbestos personal injury claims and rights as to Debtors’ Joint Plan of Reorganization and Disclosure Statement that was designed and implemented by Hilsoft. The notice program included nationwide consumer print publications, trade and union labor publications, internet banner advertising, an informational release, and a website. In re: Kaiser Gypsum Company, Inc., el al., 16-31602 (Bankr. W.D. N.C.).

Hilsoft designed and implemented an extensive settlement notice plan for a class period spanning more than 40 years for smokers of light cigarettes. The notice plan delivered a measured reach of approximately 87.8% of Arkansas adults 25+ with a frequency of 8.9 times and approximately 91.1% of Arkansas adults 55+ with a frequency of 10.8 times. Hispanic newspaper notice, an informational release, radio public service announcements (“PSAs”), sponsored search listings and a case website further enhanced reach. Miner v. Philip Morris USA, Inc., 60CV03-4661 (Ark. Cir. Ct.).

A large asbestos bar date notice effort, which included individual notice, national consumer publications, hundreds of local and national newspapers, Spanish newspapers, union labor publications, and digital media to reach the target audience. In re: Energy Future Holdings Corp., et al., 14-10979 (Bankr. D. Del.).

Overdraft fee class actions have been brought against nearly every major U.S. commercial bank. For related settlements from 2010-2020, Hilsoft has developed programs that integrate individual notice, and in some cases paid media efforts. Fifth Third Bank, National City Bank, Bank of Oklahoma, Webster Bank, Harris Bank, M& I Bank, PNC Bank, Compass Bank, Commerce Bank, Citizens Bank, Great Western Bank, TD Bank, BancorpSouth, Comerica Bank, Susquehanna Bank, Associated Bank, Capital One, M&T Bank, Iberiabank and Synovus are among the more than 20 banks that have retained Epiq (Hilsoft). In re: Checking Account Overdraft Litigation, MDL No. 2036 (S.D. Fla.).

For one of the largest and most complex class action case in Canadian history, Hilsoft designed and implemented groundbreaking notice to disparate, remote indigenous people in the multi-billion-dollar settlement. In re: Residential Schools Class Action Litigation, 00-CV-192059 CPA (Ont. Super. Ct.).


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BP’s $7.8 billion settlement related to the Deepwater Horizon oil spill emerged from possibly the most complex class action case in U.S. history. Hilsoft drafted and opined on all forms of notice. The 2012 dual notice program to “Economic and Property Damages” and “Medical Benefits” settlement classes designed by Hilsoft reached at least 95% Gulf Coast region adults via more than 7,900 television spots, 5,200 radio spots, 5,400 print insertions in newspapers, consumer publications, and trade journals, digital media, and individual notice. Subsequently, Hilsoft designed and implemented one of the largest claim deadline notice campaigns ever implemented, which resulted in a combined measurable paid print, television, radio and internet effort, which reached in excess of 90% of adults aged 18+ in the 26 identified DMAs covering the Gulf Coast Areas an average of 5.5 times each. In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. La.).

Extensive point of sale notice program of a settlement, which provided payments of up to $100,000 related to Chinese drywall – 100 million notices distributed to Lowe’s purchasers during a six-week period. Vereen v. Lowe’s Home Centers, SU10-CV-2267B (Ga. Super. Ct.).

LEGAL NOTICING EXPERTS

Cameron Azari, Esq., Epiq Senior Vice President, Hilsoft Director of Legal Notice Cameron Azari, Esq. has more than 21 years of experience in the design and implementation of legal notice and claims administration programs. He is a nationally recognized expert in the creation of class action notification campaigns in compliance with Fed R. Civ. P. 23(c)(2) (d)(2) and (e) and similar state class action statutes. Cameron has been responsible for hundreds of legal notice and advertising programs. During his career, he has been involved in an array of high profile class action matters, including In re: Takata Airbag Products Liability Litigation, In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MasterCard & Visa), In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch Settlement), In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, In re: Checking Account Overdraft Litigation, and In re: Residential Schools Class Action Litigation. He is an active author and speaker on a broad range of legal notice and class action topics ranging from FRCP Rule 23 to email noticing, response rates, and optimizing settlement effectiveness. Cameron is an active member of the Oregon State Bar. He received his B.S. from Willamette University and his J.D. from Northwestern School of Law at Lewis and Clark College. Cameron can be reached at [email protected]. Lauran Schultz, Epiq Managing Director Lauran Schultz consults with Hilsoft clients on complex noticing issues. Lauran has more than 20 years of experience as a professional in the marketing and advertising field, specializing in legal notice and class action administration since 2005. High profile actions he has been involved in include companies such as BP, Bank of America, Fifth Third Bank, Symantec Corporation, Lowe’s Home Centers, First Health, Apple, TJX, CNA and Carrier Corporation. Prior to joining Epiq in 2005, Lauran was a Senior Vice President of Marketing at National City Bank in Cleveland, Ohio. Lauran’s education includes advanced study in political science at the University of Wisconsin-Madison along with a Ford Foundation fellowship from the Social Science Research Council and American Council of Learned Societies. Lauran can be reached at [email protected]. Kyle Bingham, Manager of Strategic Communications Kyle Bingham has 15 years of experience in the advertising industry. At Hilsoft and Epiq, Kyle is responsible for overseeing the research, planning, and execution of advertising campaigns for legal notice programs including class action, bankruptcy and other legal cases. Kyle has been involved in the design and implementation of numerous legal notice campaigns, including In re: Takata Airbag Products Liability Litigation, In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch), In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MasterCard & Visa), In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bar Notice), In re: Residential Schools Class Action Litigation, Hale v. State Farm Mutual Automobile Insurance Company, and In re: Checking Account Overdraft Litigation. Prior to joining Epiq and Hilsoft, Kyle worked at Wieden+Kennedy for seven years, an industry-leading advertising agency where he planned and purchased print, digital and broadcast media, and presented strategy and media campaigns to clients for multi-million dollar branding campaigns and regional direct response initiatives. He received his B.A. from Willamette University. Kyle can be reached at [email protected].


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ARTICLES AND PRESENTATIONS

Cameron Azari Speaker, “Virtual Global Class Actions Symposium 2020, Class Actions Case Management Panel.” November 18, 2020.

Cameron Azari Speaker, “Consumers and Class Action Notices: An FTC Workshop.” Federal Trade

Commission, Washington, DC, October 29, 2019. Cameron Azari Speaker, “The New Outlook for Automotive Class Action Litigation: Coattails, Recalls, and

Loss of Value/Diminution Cases.” ACI’s Automotive Product Liability Litigation Conference.” American Conference Institute, Chicago, IL, July 18, 2019.

Cameron Azari Moderator, “Prepare for the Future of Automotive Class Actions.” Bloomberg Next,

Webinar-CLE, November 6, 2018. Cameron Azari Speaker, “The Battleground for Class Certification: Plaintiff and Defense Burdens,

Commonality Requirements and Ascertainability.” 30th National Forum on Consumer Finance Class Actions and Government Enforcement, Chicago, IL, July 17, 2018.

Cameron Azari Speaker, “Recent Developments in Class Action Notice and Claims Administration.” PLI's

Class Action Litigation 2018 Conference, New York, NY, June 21, 2018. Cameron Azari Speaker, “One Class Action or 50? Choice of Law Considerations as Potential Impediment

to Nationwide Class Action Settlements.” 5th Annual Western Regional CLE Program on Class Actions and Mass Torts. Clyde & Co LLP, San Francisco, CA, June 22, 2018.

Cameron Azari Co-Author, A Practical Guide to Chapter 11 Bankruptcy Publication Notice. E-book,

published, May 2017. Cameron Azari Featured Speaker, “Proposed Changes to Rule 23 Notice and Scrutiny of Claim Filing

Rates,” DC Consumer Class Action Lawyers Luncheon, December 6, 2016. Cameron Azari Speaker, “Recent Developments in Consumer Class Action Notice and Claims

Administration." Berman DeValerio Litigation Group, San Francisco, CA, June 8, 2016. Cameron Azari Speaker, “2016 Cybersecurity & Privacy Summit. Moving From ‘Issue Spotting’ To

Implementing a Mature Risk Management Model.” King & Spalding, Atlanta, GA, April 25, 2016. Cameron Azari Speaker, “Live Cyber Incident Simulation Exercise.” Advisen’s Cyber Risk Insights

Conference, London, UK, February 10, 2015. Cameron Azari Speaker, “Pitfalls of Class Action Notice and Claims Administration.” PLI's Class Action

Litigation 2014 Conference, New York, NY, July 9, 2014. Cameron Azari Co-Author, “What You Need to Know About Frequency Capping In Online Class Action

Notice Programs.” Class Action Litigation Report, June 2014. Cameron Azari Speaker, “Class Settlement Update – Legal Notice and Court Expectations.” PLI's 19th

Annual Consumer Financial Services Institute Conference, New York, NY, April 7-8, 2014 and Chicago, IL, April 28-29, 2014.

Cameron Azari Speaker, “Legal Notice in Consumer Finance Settlements - Recent Developments.” ACI’s

Consumer Finance Class Actions and Litigation, New York, NY, January 29-30, 2014. Cameron Azari Speaker, “Legal Notice in Building Products Cases.” HarrisMartin’s Construction Product

Litigation Conference, Miami, FL, October 25, 2013.


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Cameron Azari Co-Author, “Class Action Legal Noticing: Plain Language Revisited.” Law360, April 2013. Cameron Azari Speaker, “Legal Notice in Consumer Finance Settlements Getting your Settlement

Approved.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 31-February 1, 2013. Cameron Azari Speaker, “Perspectives from Class Action Claims Administrators: Email Notices and

Response Rates.” CLE International’s 8th Annual Class Actions Conference, Los Angeles, CA, May 17-18, 2012. Cameron Azari Speaker, “Class Action Litigation Trends: A Look into New Cases, Theories of Liability &

Updates on the Cases to Watch.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 26-27, 2012.

Lauran Schultz Speaker, “Legal Notice Best Practices: Building a Workable Settlement Structure.” CLE

International’s 7th Annual Class Action Conference, San Francisco, CA, May 2011. Cameron Azari Speaker, “Data Breaches Involving Consumer Financial Information: Litigation Exposures

and Settlement Considerations.” ACI’s Consumer Finance Class Actions and Litigation, New York, NY, January 2011.

Cameron Azari Speaker, “Notice in Consumer Class Actions: Adequacy, Efficiency and Best Practices.”

CLE International’s 5th Annual Class Action Conference: Prosecuting and Defending Complex Litigation, San Francisco, CA, 2009.

Lauran Schultz Speaker, “Efficiency and Adequacy Considerations in Class Action Media Notice

Programs.” Chicago Bar Association, Chicago, IL, 2009. Cameron Azari Author, “Clearing the Five Hurdles of Email - Delivery of Class Action Legal Notices.”

Thomson Reuters Class Action Litigation Reporter, June 2008. Cameron Azari Speaker, “Planning for a Smooth Settlement.” ACI: Class Action Defense – Complex

Settlement Administration for the Class Action Litigator, Phoenix, AZ, 2007. Cameron Azari Speaker, “Structuring a Litigation Settlement.” CLE International’s 3rd Annual Conference

on Class Actions, Los Angeles, CA, 2007. Cameron Azari Speaker, “Noticing and Response Rates in Class Action Settlements” – Class Action Bar

Gathering, Vancouver, British Columbia, 2007. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Skadden Arps Slate

Meagher & Flom, LLP, New York, NY, 2006. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Bridgeport

Continuing Legal Education, Class Action and the UCL, San Diego, CA, 2006. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Stoel Rives litigation

group, Portland, OR / Seattle, WA / Boise, ID / Salt Lake City, UT, 2005. Cameron Azari Speaker, “Notice and Response Rates in Class Action Settlements” – Stroock & Stroock

& Lavan Litigation Group, Los Angeles, CA, 2005. Cameron Azari Author, “Twice the Notice or No Settlement.” Current Developments – Issue II, August 2003. Cameron Azari Speaker, “A Scientific Approach to Legal Notice Communication” – Weil Gotshal litigation

group, New York, NY, 2003.


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JUDICIAL COMMENTS

Judge Anne-Christine Massullo, Morris v. Provident Credit Union (June 23, 2021) CGC-19-581616, Sup. Ct. Cal. Cty. of San Fran.:

The Notice approved by this Court was distributed to the Classes in substantial compliance with this Court’s Order Certifying Classes for Settlement Purposes and Granting Preliminary Approval of Class Settlement (“Preliminary Approval Order”) and the Agreement. The Notice met the requirements of due process and California Rules of Court, rules 3.766 and 3.769(f). The notice to the Classes was adequate.

Judge Esther Salas, Sager, et al. v. Volkswagen Group of America, Inc., et al. (June 22, 2021) 18-cv-13556 (D.N.J.):

The Court further finds and concludes that Class Notice was properly and timely disseminated to the Settlement Class in accordance with the Class Notice Plan set forth in the Settlement Agreement and the Preliminary Approval Order (Dkt. No. 69). The Class Notice Plan and its implementation in this case fully satisfy Rule 23, the requirements of due process and constitute the best notice practicable under the circumstances.

Judge Josephine L. Staton, In re: Hyundai and Kia Engine Litigation and Flaherty v. Hyundai Motor Company, Inc., et al. (June 10, 2021) 8:17-CV-00838 & 18-cv-02223 (C.D. Cal.):

The Class Notice was disseminated in accordance with the procedures required by the Court’s Orders … in accordance with applicable law, and satisfied the requirements of Rule 23(e) and due process and constituted the best notice practicable for the reasons discussed in the Preliminary Approval Order and Final Approval Order.

Judge Harvey Schlesinger, In re: Disposable Contact Lens Antitrust Litigation (ABB Concise Optical Group, LLC) (May 31, 2021) 3:15-md-02626 (M.D. Fla.):

The Court finds that the dissemination of the Notice: (a) was implemented in accordance with the Preliminary Approval Order; (b) constitutes the best notice practicable under the circumstances; (c) constitutes notice that was reasonably calculated, under the circumstances, to apprise the Settlement Class of (i) the pendency of the Action; (ii) the effect of the Settlement Agreement (including the Releases to be provided thereunder); (iii) Class Counsel's possible motion for an award of attorneys' fees and reimbursement of expenses; (iv) the right to object to any aspect of the Settlement Agreement, the Plan of Distribution, and/or Class Counsel's motion for attorneys' fees and reimbursement of expenses; (v) the right to opt out of the Settlement Class; (vi) the right to appear at the Fairness Hearing; and (vii) the fact that Plaintiffs may receive incentive awards; (d) constitutes due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the Settlement Agreement; and (e) satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and the United States Constitution (including the Due Process Clause).

Judge Haywood S. Gilliam, Jr. Richards, et al. v. Chime Financial, Inc. (May 24, 2021) 4:19-cv-06864 (N.D. Cal.):

The Court finds that the notice and notice plan previously approved by the Court was implemented and complies with Rule 23(c)(2)(B)… The Court ordered that the third-party settlement administrator send class notice via email based on a class list Defendant provided… Epiq Class Action & Claims Solutions, Inc., the third-party settlement administrator, represents that class notice was provided as directed… Epiq received a total of 527,505 records for potential Class Members, including their email addresses…. If the receiving email server could not deliver the message, a “bounce code” was returned to Epiq indicating that the message was undeliverable…. Epiq made two additional attempts to deliver the email notice… As of Mach 1, 2021, a total of 495,006 email notices were delivered, and 32,499 remained undeliverable… In light of these facts, the Court finds that the parties have sufficiently provided the best practicable notice to the Class Members.

Judge Henry Edward Autrey, Pearlstone v. Wal-Mart Stores, Inc. (Apr. 22, 2021) 4:17-cv-02856 (C.D. Cal.):

The Court finds that adequate notice was given to all Settlement Class Members pursuant to the terms of the Parties’ Settlement Agreement and the Preliminary Approval Order. The Court has further determined that the Notice Plan fully and accurately informed Settlement Class Members of all material elements of the Settlement, constituted the best notice practicable under the circumstances, and fully satisfied the requirements of Federal Rule 23(c)(2) and 23(e)(1), applicable law, and the Due Process Clause of the United States Constitution.


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Judge Lucy H. Koh, Grace v. Apple, Inc. (Mar. 31, 2021) 17-CV-00551 (N.D. Cal.):

Federal Rule of Civil Procedure 23(c)(2)(B) requires that the settling parties provide class members with “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).” The Court finds that the Notice Plan, which was direct notice sent to 99.8% of the Settlement Class via email and U.S. Mail, has been implemented in compliance with this Court’s Order (ECF No. 426) and complies with Rule 23(c)(2)(B).

Judge Gary A. Fenner, In re: Pre-Filled Propane Tank Antitrust Litigation (Mar. 30, 2021) MDL No. 2567, 14-2567 (W.D. Mo.):

Based upon the Declaration of Cameron Azari, on behalf of Epiq, the Administrator appointed by the Court, the Court finds that the Notice Program has been properly implemented. That Declaration shows that there have been no requests for exclusion from the Settlement, and no objections to the Settlement. Finally, the Declaration reflects that AmeriGas has given appropriate notice of this settlement to the Attorney General of the United States and the appropriate State officials under the Class Action Fairness Act, 28 U.S.C. § 1715, and no objections have been received from any of them.

Judge Richard Seeborg, Bautista v. Valero Marketing and Supply Company (Mar. 17, 2021) 3:15-cv-05557 (N.D. Cal.):

The Notice given to the Settlement Class in accordance with the Notice Order was the best notice practicable under the circumstances of these proceedings and of the matters set forth therein, including the proposed Settlement set forth in the Settlement Agreement, to all Persons entitled to such notice, and said notice fully satisfied the requirements of Fed. R. Civ. P. 23 and due process.

Judge James D. Peterson, Fox, et al. v. Iowa Health System d.b.a. UnityPoint Health (Mar. 4, 2021) 18-cv-327 (W.D. Wis.):

The approved Notice plan provided for direct mail notice to all class members at their last known address according to UnityPoint’s records, as updated by the administrator through the U.S. Postal Service. For postcards returned undeliverable, the administrator tried to find updated addresses for those class members. The administrator maintained the Settlement website and made Spanish versions of the Long Form Notice and Claim Form available upon request. The administrator also maintained a toll-free telephone line which provides class members detailed information about the settlement and allows individuals to request a claim form be mailed to them. The Court finds that this Notice (i) constituted the best notice practicable under the circumstances; (ii) was reasonably calculated, under the circumstances, to apprise Settlement Class members of the Settlement, the effect of the Settlement (including the release therein), and their right to object to the terms of the settlement and appear at the Final Approval Hearing; (iii) constituted due and sufficient notice of the Settlement to all reasonably identifiable persons entitled to receive such notice; (iv) satisfied the requirements of due process, Federal Rule of Civil Procedure 23(e)(1) and the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and all applicable laws and rules.

Judge Larry A. Burns, Trujillo, et al. v. Ametek, Inc., et al. (Mar. 3, 2021) 3:15-cv-01394 (S.D. Cal.):

The Class has received the best practicable notice under the circumstances of this case. The Parties’ selection and retention of Epiq Class Action & Claims Solutions, Inc. (“Epiq”) as the Claims Administrator was reasonable and appropriate. Based on the Declaration of Cameron Azari of Epiq, the Court finds that the Settlement Notices were published to the Class Members in the form and manner approved by the Court in its Preliminary Approval Order. See Dkt. 181-6. The Settlement Notices provided fair, effective, and the best practicable notice to the Class of the Settlement’s terms. The Settlement Notices informed the Class of Plaintiffs’ intent to seek attorneys’ fees, costs, and incentive payments, set forth the date, time, and place of the Fairness Hearing, and explained Class Members’ rights to object to the Settlement or Fee Motion and to appear at the Fairness Hearing… The Settlement Notices fully satisfied all notice requirements under the law, including the Federal Rules of Civil Procedure, the requirements of the California Legal Remedies Act, Cal. Civ. Code § 1781, and all due process rights under the U.S. Constitution and California Constitutions.


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Judge Sherri A. Lydon, Fitzhenry v. Independent Home Products, LLC (Mar. 2, 2021) 2:19-cv-02993 (D.S.C.):

Notice was provided to Class Members in compliance with Section VI of the Settlement Agreement, due process, and Rule 23 of the Federal Rules of Civil Procedure. The notice: (i) fully and accurately informed Settlement Class Members about the lawsuit and settlement; (ii) provided sufficient information so that Settlement Class Members could decide whether to accept the benefits offered, opt-out and pursue their own remedies, or object to the settlement; (iii) provided procedures for Class Members to file written objections to the proposed settlement, to appear at the hearing, and to state objections to the proposed settlement; and (iv) provided the time, date, and place of the final fairness hearing.

Judge James V. Selna, Alvarez v. Sirius XM Radio Inc. (Feb. 9, 2021) 2:18-cv-8605 (C.D. Cal.):

The Court finds that the dissemination of the Notices attached as Exhibits to the Settlement Agreement: (a) was implemented in accordance with the Notice Order; (b) constituted the best notice practicable under the circumstances; (c) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of (i) the pendency of the Action; (ii) their right to submit a claim (where applicable) by submitting a Claim Form; (iii) their right to exclude themselves from the Settlement Class; (iv) the effect of the proposed Settlement (including the Releases to be provided thereunder); (v) Named Plaintiffs’ application for the payment of Service Awards; (vi) Class Counsel’s motion for an award an attorneys’ fees and expenses; (vii) their right to object to any aspect of the Settlement, and/or Class Counsel’s motion for attorneys’ fees and expenses (including a Service Award to the Named Plaintiffs and Mr. Wright); and (viii) their right to appear at the Final Approval Hearing; (d) constituted due, adequate, and sufficient notice to all Persons entitled to receive notice of the proposed Settlement; and (e) satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States (including the Due Process Clause), and all other applicable laws and rules.

Judge Jon S .Tigar, Elder v. Hilton Worldwide Holdings, Inc. (Feb. 4, 2021) 16-cv-00278 (N.D. Cal.):

“Epiq implemented the notice plan precisely as set out in the Settlement Agreement and as ordered by the Court.” ECF No. 162 at 9-10. Epiq sent initial notice by email to 8,777 Class Members and by U.S. Mail to the remaining 1,244 Class members. Id. at 10. The Notice informed Class Members about all aspects of the Settlement, the date and time of the fairness hearing, and the process for objections. ECF No. 155 at 28-37. Epiq then mailed notice to the 2,696 Class Members whose emails were returned as undeliverable. Id. “Of the 10,021 Class Members identified from Defendants’ records, Epiq was unable to deliver the notice to only 35 Class Members. Accordingly, the reach of the notice is 99.65%.” Id. (citation omitted). Epiq also created and maintained a settlement website and a toll-free hotline that Class Members could call if they had questions about the settlement. Id. The Court finds that the parties have complied with the Court’s preliminary approval order and, because the notice plan complied with Rule 23, have provided adequate notice to class members.

Judge Michael W. Jones, Wallace, et al, v. Monier Lifetile LLC, et al. (Jan. 15, 2021) SCV-16410 (Sup. Ct. Cal.):

The Court also finds that the Class Notice and notice process were implemented in accordance with the Preliminary Approval Order, providing the best practicable notice under the circumstances.

Judge Kristi K. DuBose, Drazen v. GoDaddy.com, LLC and Bennett v. GoDaddy.com, LLC (Dec. 23, 2020) 1:19-cv-00563 (S.D. Ala.):

The Court finds that the Notice and the claims procedures actually implemented satisfy due process, meet the requirements of Rule 23(e)(1), and the Notice constitutes the best notice practicable under the circumstances.

Judge Haywood S. Gilliam, Jr., Izor v. Abacus Data Systems, Inc. (Dec. 21, 2020) 19-cv-01057 (N.D. Cal.): The Court finds that the notice plan previously approved by the Court was implemented and that the notice thus satisfied Rule 23(c)(2)(B). [T]he Court finds that the parties have sufficiently provided the best practicable notice to the class members.


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Judge Christopher C. Conner, Al’s Discount Plumbing, et al. v. Viega, LLC (Dec. 18, 2020) 19-cv-00159 (M.D. Pa.): The Court finds that the notice and notice plan previously approved by the Court was implemented and complies with Fed. R. Civ. P. 23(c)(2)(B) and due process. Specifically, the Court ordered that the third-party Settlement Administrator, Epiq, send class notice via email, U.S. mail, by publication in two recognized industry magazines, Plumber and PHC News, in both their print and online digital forms, and to implement a digital media campaign. (ECF 99). Epiq represents that class notice was provided as directed. See Declaration of Cameron R. Azari, ¶¶ 12-15 (ECF 104-13).

Judge Naomi Reice Buchwald, In re: Libor-Based Financial Instruments Antitrust Litigation (Dec. 16, 2020) MDL No. 2262 1:11-md-2262 (S.D.N.Y.):

Upon review of the record, the Court hereby finds that the forms and methods of notifying the members of the Settlement Classes and their terms and conditions have met the requirements of the United States Constitution (including the Due Process Clause), Rule 23 of the Federal Rules of Civil Procedure, and all other applicable law and rules; constituted the best notice practicable under the circumstances; and constituted due and sufficient notice to all members of the Settlement Classes of these proceedings and the matters set forth herein, including the Settlements, the Plan of Allocation and the Fairness Hearing. Therefore, the Class Notice is finally approved.

Judge Larry A. Burns, Cox, et al. Ametek, Inc., et al. (Dec 15, 2020) 3:17-cv-00597 (S.D. Cal.):

The Class has received the best practicable notice under the circumstances of this case. The Parties’ selection and retention of Epiq Class Action & Claims Solutions, Inc. (“Epiq”) as the Claims Administrator was reasonable and appropriate. Based on the Declaration of Cameron Azari of Epiq, the Court finds that the Settlement Notices were published to the Class Members in the form and manner approved by the Court in its Preliminary Approval Order. See Dkt. 129-6. The Settlement Notices provided fair, effective, and the best practicable notice to the Class of the Settlement’s terms. The Settlement Notices informed the Class of Plaintiffs’ intent to seek attorneys’ fees, costs, and incentive payments, set forth the date, time, and place of the Fairness Hearing, and explained Class Members’ rights to object to the Settlement or Fee Motion and to appear at the Fairness Hearing… The Settlement Notices fully satisfied all notice requirements under the law, including the Federal Rules of Civil Procedure, the requirements of the California Legal Remedies Act, Cal. Civ. Code § 1781, and all due process rights under the U.S. Constitution and California Constitutions.

Judge Timothy J. Sullivan, Robinson v. Nationstar Mortgage LLC (Dec. 11, 2020) 8:14-cv-03667 (D. Md.):

The Class Notice provided to the Settlement Class conforms with the requirements of Fed. Rule Civ. Proc. 23, the United States Constitution, and any other applicable law, and constitutes the best notice practicable under the circumstances, by providing individual notice to all Settlement Class Members who could be identified through reasonable effort, and by providing due and adequate notice of the proceedings and of the matters set forth therein to the other Settlement Class Members. The Class Notice fully satisfied the requirements of Due Process.

Judge Yvonne Gonzalez Rogers, In re: Lithium Ion Batteries Antitrust Litigation (Dec. 10, 2020) 4:13-md-02420, MDL No. 2420 (N.D. Cal.):

The proposed notice plan was undertaken and carried out pursuant to this Court’s preliminary approval order prior to remand, and a second notice campaign thereafter. (See Dkt. No. 2571.) The class received direct and indirect notice through several methods – email notice, mailed notice upon request, an informative settlement website, a telephone support line, and a vigorous online campaign. Digital banner advertisements were targeted specifically to settlement class members, including on Google and Yahoo’s ad networks, as well as Facebook and Instagram, with over 396 million impressions delivered. Sponsored search listings were employed on Google, Yahoo and Bing, resulting in 216,477 results, with 1,845 clicks through to the settlement website. An informational released was distributed to 495 media contacts in the consumer electronics industry. The case website has continued to be maintained as a channel for communications with class members. Between February 11, 2020 and April 23, 2020, there were 207,205 unique visitors to the website. In the same period, the toll-free telephone number available to class members received 515 calls.


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Judge Katherine A. Bacal, Garvin v. San Diego Unified Port District (Nov. 20, 2020) 37-2020-00015064 (Sup. Ct. Cal.): Notice was provided to Class Members in compliance with the Settlement Agreement, California Code of Civil Procedure §382 and California Rules of Court 3.766 and 3.769, the California and United States Constitutions, and any other applicable law, and constitutes the best notice practicable under the circumstances, by providing notice to all individual Class Members who could be identified through reasonable effort, and by providing due and adequate notice of the proceedings and of the matters set forth therein to the other Class Members. The Notice fully satisfied the requirements of due process.

Judge Catherine D. Perry, Pirozzi, et al. v. Massage Envy Franchising, LLC (Nov. 13, 2020) 4:19-cv-807 (E.D. Mo.):

The COURT hereby finds that the CLASS NOTICE given to the CLASS: (i) fairly and accurately described the ACTION and the proposed SETTLEMENT; (ii) provided sufficient information so that the CLASS MEMBERS were able to decide whether to accept the benefits offered by the SETTLEMENT, exclude themselves from the SETTLEMENT, or object to the SETTLEMENT; (iii) adequately described the time and manner by which CLASS MEMBERS could submit a CLAIM under the SETTLEMENT, exclude themselves from the SETTLEMENT, or object to the SETTLEMENT and/or appear at the FINAL APPROVAL HEARING; and (iv) provided the date, time, and place of the FINAL APPROVAL HEARING. The COURT hereby finds that the CLASS NOTICE was the best notice practicable under the circumstances, constituted a reasonable manner of notice to all class members who would be bound by the SETTLEMENT, and complied fully with Federal Rule of Civil Procedure Rule 23, due process, and all other applicable laws.

Judge Robert E. Payne, Skochin, et al. v. Genworth Life Insurance Company, et al. (Nov. 12, 2020) 3:19-cv-00049 (E.D. Vir.):

For the reasons set forth in the Court’s Memorandum Opinion addressing objections to the Settlement Agreement, . . . the plan to disseminate the Class Notice and Publication Notice, which the Court previously approved, has been implemented and satisfied the requirements of Fed. R. Civ. P. 23(c)(2)(B) and due process.

Judge Jeff Carpenter, Eastwood Construction LLC, et al. v. City of Monroe (Oct. 27, 2020) 18-cvs-2692 and The Estate of Donald Alan Plyler Sr., et al. v. City of Monroe (Oct. 27, 2020) 19-cvs-1825 (Sup. Ct. N.C.):

Therefore, the Court GRANTS the Final Approval Motion, CERTIFIES the class as defined below for settlement purposes only, APPROVES the Settlement, and GRANTS the Fee Motion… The Settlement Agreement and the Settlement Notice are found to be fair, reasonable, adequate, and in the best interests of the Settlement Class, and are hereby approved pursuant to North Carolina Rule of Civil Procedure 23. The Parties are hereby authorized and directed to comply with and to consummate the Settlement Agreement in accordance with the terms and provisions set forth in the Settlement Agreement, and the Clerk of the Court is directed to enter and docket this Order and Final Judgement in the Actions.

Judge M. James Lorenz, Walters, et al. v. Target Corp. (Oct. 26, 2020) 3:16-cv-1678 (S.D. Cal.):

The Court has determined that the Class Notices given to Settlement Class members fully and accurately informed Settlement Class members of all material elements of the proposed Settlement and constituted valid, due, and sufficient notice to Settlement Class members consistent with all applicable requirements. The Court further finds that the Notice Program satisfies due process and has been fully implemented.

Judge Maren E. Nelson, Harris, et al. v. Farmers Insurance Exchange and Mid Century Insurance Company (Oct. 26, 2020) BC 579498 (Sup. Ct Cal.):

Distribution of Notice directed to the Settlement Class Members as set forth in the Settlement has been completed in conformity with the Preliminary Approval Order, including individual notice to all Settlement Class members who could be identified through reasonable effort, and the best notice practicable under the circumstances. The Notice, which reached 99.9% of all Settlement Class Members, provided due and adequate notice of the proceedings and of the matters set forth therein, including the proposed Settlement, to all persons entitled to Notice, and the Notice and its distribution fully satisfied the requirements of due process.


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Judge Vera M. Scanlon, Lashambae v. Capital One Bank, N.A. (Oct. 21, 2020) 1:17-cv-06406 (E.D.N.Y.): The Class Notice, as amended, contained all of the necessary elements, including the class definition, the identifies of the named Parties and their counsel, a summary of the terms of the proposed Settlement, information regarding the manner in which objections may be submitted, information regarding the opt-out procedures and deadlines, and the date and location of the Final Approval Hearing. Notice was successfully delivered to approximately 98.7% of the Settlement Class and only 78 individual Settlement Class Members did not receive notice by email or first class mail. Having reviewed the content of the Class Notice, as amended, and the manner in which the Class Notice was disseminated, this Court finds that the Class Notice, as amended, satisfied the requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and all other applicable law and rules. The Class Notice, as amended, provided to the Settlement Class in accordance with the Preliminary Approval Order was the best notice practicable under the circumstances and provided this Court with jurisdiction over the absent Settlement Class Members. See Fed. R. Civ. P. 23(c)(2)(B).

Chancellor Walter L. Evans, K.B., by and through her natural parent, Jennifer Qassis, and Lillian Knox-Bender v. Methodist Healthcare - Memphis Hospitals (Oct. 14, 2020) CH-13-04871-1 (30th Jud. Dist. Tenn.):

Based upon the filings and the record as a whole, the Court finds and determines that dissemination of the Class Notice as set forth herein complies with Tenn. R. Civ. P. 23.03(3) and 23.05 and (i) constitutes the best practicable notice under the circumstances, (ii) was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of Class Settlement, their rights to object to the proposed Settlement, (iii) was reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice, (iv) meets all applicable requirements of Due Process; (v) and properly provides notice of the attorney’s fees that Class Counsel shall seek in this action. As a result, the Court finds that Class Members were properly notified of their rights, received full Due Process . . . .

Judge Sara L. Ellis, Nelson v. Roadrunner Transportation Systems, Inc. (Sept. 15, 2020) 1:18-cv-07400 (N.D. Ill.):

Notice of the Final Approval Hearing, the proposed motion for attorneys’ fees, costs, and expenses, and the proposed Service Award payment to Plaintiff have been provided to Settlement Class Members as directed by this Court’s Orders, The Court finds that such Notice as therein ordered, constitutes the best possible notice practicable under the circumstances and constitutes valid, due, and sufficient notice to all Settlement Class Members in compliance with the requirements of Federal Rule of Civil Procedure 23(c)(2)(B).

Judge George H. Wu, Lusnak v. Bank of America, N.A. (Aug. 10, 2020) CV 14-1855 (C.D. Cal.): The Court finds that the Notice program for disseminating notice to the Settlement Class, provided for in the Settlement Agreement and previously approved and directed by the Court, has been implemented by the Settlement Administrator and the Parties. The Court finds that such Notice program, including the approved forms of notice: (a) constituted the best notice that is practicable under the circumstances; (b) included direct individual notice to all Settlement Class Members who could be identified through reasonable effort; (c) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the nature of the Lawsuit, the definition of the Settlement Class certified, the class claims and issues, the opportunity to enter an appearance through an attorney if the member so desires; the opportunity, the time, and manner for requesting exclusion from the Settlement Class, and the binding effect of a class judgment; (d) constituted due, adequate and sufficient notice to all persons entitled to notice; and (e) met all applicable requirements of Federal Rule of Civil Procedure 23, due process under the U.S. Constitution, and any other applicable law.

Judge James Lawrence King, Dasher v. RBC Bank (USA) predecessor in interest to PNC Bank, N.A. (Aug. 10, 2020) 1:10-cv-22190 (S.D. Fla.) as part of In re: Checking Account Overdraft Litigation MDL No. 2036 (S.D. Fla.):

The Court finds that the members of the Settlement Class were provided with the best practicable notice; the notice was “reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at 314-15). This Settlement was widely publicized, and any member of the Settlement Class who wished to express comments or objections had ample opportunity and means to do so.


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Judge Jeffrey S. Ross, Lehman v. Transbay Joint Powers Authority, et al. (Aug. 7, 2020) CGC-16-553758 (Sup. Ct. Cal.):

The Notice approved by this Court was distributed to the Settlement Class Members in compliance with this Court’s Order Granting Preliminary Approval of Class Action Settlement, dated May 8, 2020. The Notice provided to the Settlement Class Members met the requirements of due process and constituted the best notice practicable in the circumstances. Based on evidence and other material submitted in conjunction with the final approval hearing, notice to the class was adequate.

Judge Jean Hoefer Toal, Cook, et al. v. South Carolina Public Service Authority, et al. (July 31, 2020) 2019-CP-23-6675 (Ct. of Com. Pleas. 13th Jud. Cir. S.C.):

Notice was sent to more than 1.65 million Class members, published in newspapers whose collective circulation covers the entirety of the State, and supplemented with internet banner ads totaling approximately 12.3 million impressions. The notices directed Class members to the settlement website and toll-free line for additional inquiries and further information. After this extensive notice campaign, only 78 individuals (0.0047%) have opted-out, and only nine (0.00054%) have objected. The Court finds this response to be overwhelmingly favorable.

Judge Peter J. Messitte, Jackson, et al. v. Viking Group, Inc., et al. (July 28, 2020) 8:18-cv-02356 (D. Md.):

[T]he Court finds, that the Notice Plan has been implemented in the manner approved by the Court in its Preliminary Approval Order as amended. The Court finds that the Notice Plan: (i) constitutes the best notice practicable to the Settlement Class under the circumstances; (ii) was reasonably calculated, under the circumstances, to apprise the Settlement Class of the pendency of this Lawsuit and the terms of the Settlement, their right to exclude themselves from the Settlement, or to object to any part of the Settlement, their right to appear at the Final Approval Hearing (either on their own or through counsel hired at their own expense), and the binding effect of the Final Approval Order and the Final Judgment, whether favorable or unfavorable, on all Persons who do not exclude themselves from the Settlement Class, (iii) due, adequate, and sufficient notice to all Persons entitled to receive notice; and (iv) notice that fully satisfies the requirements of the United States Constitution (including the Due Process Clause), Fed. R. Civ. P. 23, and any other applicable law.

Judge Michael P. Shea, Grayson, et al. v. General Electric Company (July 27, 2020) 3:13-cv-01799 (D. Conn.): Pursuant to the Preliminary Approval Order, the Settlement Notice was mailed, emailed and disseminated by the other means described in the Settlement Agreement to the Class Members. This Court finds that this notice procedure was (i) the best practicable notice; (ii) reasonably calculated, under the circumstances, to apprise the Class Members of the pendency of the Civil Action and of their right to object to or exclude themselves from the proposed Settlement; and (iii) reasonable and constitutes due, adequate, and sufficient notice to all entities and persons entitled to receive notice.

Judge Gerald J. Pappert, Rose v. The Travelers Home and Marine Insurance Company, et al. (July 20, 2020) 19-cv-00977 (E.D. Pa.):

The Class Notice . . . has been given to the Settlement Class in the manner approved by the Court in its Preliminary Approval Order. Such Class Notice (i) constituted the best notice practicable to the Settlement Class under the circumstances; (ii) was reasonably calculated, under the circumstances, to apprise the Settlement Class of the pendency and nature of this Action, the definition of the Settlement Class, the terms of the Settlement Agreement, the rights of the Settlement Class to exclude themselves from the settlement or to object to any part of the settlement, the rights of the Settlement Class to appear at the Final Approval Hearing (either on their own or through counsel hired at their own expense), and the binding effect of the Settlement Agreement on all persons who do not exclude themselves from the Settlement Class, (iii) provided due, adequate, and sufficient notice to the Settlement Class; and (iv) fully satisfied all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the due process requirements of the United States Constitution.

Judge Christina A. Snyder, Waldrup v. Countrywide Financial Corporation, et al. (July 16, 2020) 2:13-cv-08833 (C.D. Cal.):

The Court finds that mailed and publication notice previously given to Class Members in the Action was the best notice practicable under the circumstances, and satisfies the requirements of due process and FED. R. CIV. P. 23. The Court further finds that, because (a) adequate notice has been provided to all Class Members


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and (b) all Class Members have been given the opportunity to object to, and/or request exclusion from, the Settlement, it has jurisdiction over all Class Members. The Court further finds that all requirements of statute (including but not limited to 28 U.S.C. § 1715), rule, and state and federal constitutions necessary to effectuate this Settlement have been met and satisfied.

Judge James Donato, Coffeng, et al. v. Volkswagen Group of America, Inc. (June 10, 2020) 17-cv-01825 (N.D. Cal.):

The Court finds that, as demonstrated by the Declaration and Supplemental Declaration of Cameron Azari, and counsel’s submissions, Notice to the Settlement Class was timely and properly effectuated in accordance with FED. R. CIV. P. 23(e) and the approved Notice Plan set forth in the Court’s Preliminary Approval Order. The Court finds that said Notice constitutes the best notice practicable under the circumstances, and satisfies all requirements of Rule 23(e) and due process.

Judge Michael W. Fitzgerald, Behfarin v. Pruco Life Insurance Company, et al. (June 3, 2020) 17-cv-05290 (C.D. Cal.):

The Court finds that the requirements of Rule 23 of the Federal Rule of Civil Procedure and other laws and rules applicable to final settlement approval of class actions have been satisfied . . . . This Court finds that the Claims Administrator caused notice to be disseminated to the Class in accordance with the plan to disseminate Notice outlined in the Settlement Agreement and the Preliminary Approval Order, and that Notice was given in an adequate and sufficient manner and complies with Due Process and Fed. R. Civ. P. 23.

Judge Nancy J. Rosenstengel, First Impressions Salon, Inc., et al. v. National Milk Producers Federation, et al. (Apr. 27, 2020) 3:13-cv-00454 (S.D. Ill.):

The Court finds that the Notice given to the Class Members was completed as approved by this Court and complied in all respects with the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process. The settlement Notice Plan was modeled on and supplements the previous court-approved plan and, having been completed, constitutes the best notice practicable under the circumstances. In making this determination, the Court finds that the Notice provided Class members due and adequate notice of the Settlement, the Settlement Agreement, the Plan of Distribution, these proceedings, and the rights of Class members to opt-out of the Class and/or object to Final Approval of the Settlement, as well as Plaintiffs’ Motion requesting attorney fees, costs, and Class Representative service awards.

Judge Harvey Schlesinger, In re: Disposable Contact Lens Antitrust Litigation (CooperVision, Inc.) (Mar. 4, 2020) 3:15-md-02626 (M.D. Fla.):

The Court finds that the dissemination of the Notice: (a) was implemented in accordance with the Preliminary Approval Orders; (b) constitutes the best notice practicable under the circumstances; (c) constitutes notice that was reasonably calculated, under the circumstances, to apprise the Settlement Classes of (i) the pendency of the Action; (ii) the effect of the Settlement Agreements (including the Releases to the provided thereunder); (iii) Class Counsel’s possible motion for an award of attorneys’ fees and reimbursement of expenses; (iv) the right to object to any aspect of the Settlement Agreements, the Plan of Distribution, and/or Class Counsel’s motion for attorneys’ fees and reimbursement of expenses; (v) the right to opt out of the Settlement Classes; (vi) the right to appear at the Fairness Hearing; and (vii) the fact that Plaintiffs may receive incentive awards; (d) constitutes due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the Settlement Agreement and (e) satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and the United States Constitution (including the Due Process Clause).

Judge Amos L. Mazzant, Stone, et al. v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens (Mar. 3, 2020) 4:17-cv-00001 (E.D. Tex.):

The Court has reviewed the Notice Plan and its implementation and efficacy, and finds that it constituted the best notice practicable under the circumstances and was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to the proposed settlement in full compliance with the requirements of applicable law, including the Due Process Clause of the United States Constitution and Rules 23(c) and (e) of the Federal Rules of Civil Procedure. In addition, Class Notice clearly and concisely stated in plain, easily understood language: (i) the nature of the action; (ii) the definition of the certified Equitable Relief Settlement Class; (iii) the claims and issues of the


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Equitable Relief Settlement Class; (iv) that a Settlement Class Member may enter an appearance through an attorney if the member so desires; (v) the binding effect of a class judgment on members under Fed. R. Civ. P. 23(c)(3).

Judge Michael H. Simon, In re: Premera Blue Cross Customer Data Security Breach Litigation (Mar. 2, 2020) 3:15-md-2633 (D. Ore.):

The Court confirms that the form and content of the Summary Notice, Long Form Notice, Publication Notice, and Claim Form, and the procedure set forth in the Settlement for providing notice of the Settlement to the Class, were in full compliance with the notice requirements of Federal Rules of Civil Procedure 23(c)(2)(B) and 23(e), fully, fairly, accurately, and adequately advised members of the Class of their rights under the Settlement, provided the best notice practicable under the circumstances, fully satisfied the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure, and afforded Class Members with adequate time and opportunity to file objections to the Settlement and attorney’s fee motion, submit Requests for Exclusion, and submit Claim Forms to the Settlement Administrator.

Judge Maxine M. Chesney, McKinney-Drobnis, et al. v. Massage Envy Franchising (Mar. 2, 2020) 3:16-cv-6450 (N.D. Cal.):

The COURT hereby finds that the individual direct CLASS NOTICE given to the CLASS via email or First Class U.S. Mail (i) fairly and accurately described the ACTION and the proposed SETTLEMENT; (ii) provided sufficient information so that the CLASS MEMBERS were able to decide whether to accept the benefits offered by the SETTLEMENT, exclude themselves from the SETTLEMENT, or object to the SETTLEMENT; (iii) adequately described the manner in which CLASS MEMBERS could submit a VOUCHER REQUEST under the SETTLEMENT, exclude themselves from the SETTLEMENT, or object to the SETTLEMENT and/or appear at the FINAL APPROVAL HEARING; and (iv) provided the date, time, and place of the FINAL APPROVAL HEARING. The COURT hereby finds that the CLASS NOTICE was the best notice practicable under the circumstances and complied fully with Federal Rule of Civil Procedure Rule 23, due process, and all other applicable laws.

Judge Harry D. Leinenweber, Albrecht v. Oasis Power, LLC d/b/a Oasis Energy (Feb. 6, 2020) 1:18-cv-1061 (N.D. Ill.):

The Court finds that the distribution of the Class Notice, as provided for in the Settlement Agreement, (i) constituted the best practicable notice under the circumstances to Settlement Class Members, (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of, among other things, the pendency of the Action, the nature and terms of the proposed Settlement, their right to object or to exclude themselves from the proposed Settlement, and their right to appear at the Final Approval Hearing, (iii) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to be provided with notice, and (iv) complied fully with the requirements of Fed. R. Civ. P. 23, the United States Constitution, the Rules of this Court, and any other applicable law. The Court finds that the Class Notice and methodology set forth in the Settlement Agreement, the Preliminary Approval Order, and this Final Approval Order (i) constitute the most effective and practicable notice of the Final Approval Order, the relief available to Settlement Class Members pursuant to the Final Approval Order, and applicable time periods; (ii) constitute due, adequate, and sufficient notice for all other purposes to all Settlement Class Members; and (iii) comply fully with the requirements of Fed. R. Civ. P. 23, the United States Constitution, the Rules of this Court, and any other applicable laws.

Judge Robert Scola, Jr., Wilson, et al. v. Volkswagen Group of America, Inc., et al. (Jan. 28, 2020) 17-cv-23033 (S.D. Fla.):

The Court finds that the Class Notice, in the form approved by the Court, was properly disseminated to the Settlement Class pursuant to the Notice Plan and constituted the best practicable notice under the circumstances. The forms and methods of the Notice Plan approved by the Court met all applicable requirements of the Federal Rules of Civil Procedure, the United States Code, the United States Constitution (including the Due Process Clause), and any other applicable law.

Judge Michael Davis, Garcia v. Target Corporation (Jan. 27, 2020) 16-cv-02574 (D. Minn.):

The Court finds that the Notice Plan set forth in Section 4 of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Class of the pendency of this case, certification of the Settlement Class for settlement purposes only, the terms of the Settlement Agreement, and the Final


15


Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law.

Judge Bruce Howe Hendricks, In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation (Jan. 9, 2020) MDL No. 2613, 6:15-MN-02613 (D.S.C.):

The Classes have been notified of the settlement pursuant to the plan approved by the Court. After having reviewed the Declaration of Cameron R. Azari (ECF No. 220-1) and the Supplemental Declaration of Cameron R. Azari (ECF No. 225-1), the Court hereby finds that notice was accomplished in accordance with the Court’s directives. The Court further finds that the notice program constituted the best practicable notice to the Settlement Classes under the circumstances and fully satisfies the requirements of due process and Federal Rule 23.

Judge Margo K. Brodie, In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Dec. 13, 2019) MDL No. 1720, 05-md-1720 (E.D.N.Y.):

The notice and exclusion procedures provided to the Rule 23(b)(3) Settlement Class, including but not limited to the methods of identifying and notifying members of the Rule 23(b)(3) Settlement Class, were fair, adequate, and sufficient, constituted the best practicable notice under the circumstances, and were reasonably calculated to apprise members of the Rule 23(b)(3) Settlement Class of the Action, the terms of the Superseding Settlement Agreement, and their objection rights, and to apprise members of the Rule 23(b)(3) Settlement Class of their exclusion rights, and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, any other applicable laws or rules of the Court, and due process.

Judge Steven Logan, Knapper v. Cox Communications, Inc. (Dec. 13, 2019) 2:17-cv-00913 (D. Ariz.):

The Court finds that the form and method for notifying the class members of the settlement and its terms and conditions was in conformity with this Court’s Preliminary Approval Order (Doc. 120). The Court further finds that the notice satisfied due process principles and the requirements of Federal Rule of Civil Procedure 23(c), and the Plaintiff chose the best practicable notice under the circumstances. The Court further finds that the notice was clearly designed to advise the class members of their rights.

Judge Manish Shah, Prather v. Wells Fargo Bank, N.A. (Dec. 10, 2019) 1:17-cv-00481 (N.D. Ill.):

The Court finds that the Notice Plan set forth in Section VIII of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Class of the pendency of this case, certification of the Settlement Class for settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law.

Judge Liam O’Grady, Liggio v. Apple Federal Credit Union (Dec. 6, 2019) 1:18-cv-01059 (E.D. Vir.):

The Court finds that the manner and form of notice (the “Notice Plan”) as provided for in the this Court’s July 2, 2019 Order granting preliminary approval of class settlement, and as set forth in the Parties’ Settlement Agreement was provided to Settlement Class Members by the Settlement Administrator. . . The Notice Plan was reasonably calculated to give actual notice to Settlement Class Members of the right to receive benefits from the Settlement, and to be excluded from or object to the Settlement. The Notice Plan met the requirements of Rule 23(c)(2)(B) and due process and constituted the best notice practicable under the circumstances.

Judge Brian McDonald, Armon, et al. v. Washington State University (Nov. 8, 2019) 17-2-23244-1 (consolidated with 17-2-25052-0) (Sup. Ct. Wash.):

The Court finds that the Notice Program, as set forth in the Settlement and effectuated pursuant to the Preliminary Approval Order, satisfied CR 23(c)(2), was the best Notice practicable under the circumstances, was reasonably calculated to provide-and did provide-due and sufficient Notice to the Settlement Class of the pendency of the Litigation; certification of the Settlement Class for settlement purposes only; the existence and terms of the Settlement; the identity of Class Counsel and appropriate information about Class Counsel’s then-forthcoming application for attorneys’ fees and incentive awards to the Class Representatives; appropriate information about how to participate in the Settlement; Settlement Class Members’ right to exclude themselves; their right to object to the Settlement and to appear at the Final Approval Hearing, through counsel if they desired; and appropriate


16


instructions as to how to obtain additional information regarding this Litigation and the Settlement. In addition, pursuant to CR 23(c)(2)(B), the Notice properly informed Settlement Class Members that any Settlement Class Member who failed to opt-out would be prohibited from bringing a lawsuit against Defendant based on or related to any of the claims asserted by Plaintiffs, and it satisfied the other requirements of the Civil Rules.

Judge Andrew J. Guilford, In re: Wells Fargo Collateral Protection Insurance Litigation (Nov. 4, 2019) 8:17-ml-02797 (C.D. Cal.):

Epiq Class Action & Claims Solutions, Inc. (“Epiq”), the parties’ settlement administrator, was able to deliver the court-approved notice materials to all class members, including 2,254,411 notice packets and 1,019,408 summary notices.

Judge Paul L. Maloney, Burch v. Whirlpool Corporation (Oct. 16, 2019) 1:17-cv-00018 (W.D. Mich.):

[T]he Court hereby finds and concludes that members of the Settlement Class have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of federal and applicable state laws and due process.

Judge Gene E.K. Pratter, Tashica Fulton-Green, et al. v. Accolade, Inc. (Sept. 24, 2019) 2:18-cv-00274 (E.D. Pa.):

The Court finds that such Notice as therein ordered, constitutes the best possible notice practicable under the circumstances and constitutes valid, due, and sufficient notice to all Settlement Class Members in compliance with the requirements of Federal Rule of Civil Procedure 23(c)(2)(B).

Judge Edwin Torres, Burrow, et al. v. Forjas Taurus S.A., et al. (Sept. 6, 2019) 1:16-cv-21606 (S.D. Fla.):

Because the Parties complied with the agreed-to notice provisions as preliminarily approved by this Court, and given that there are no developments or changes in the facts to alter the Court’s previous conclusion, the Court finds that the notice provided in this case satisfied the requirements of due process and of Rule 23(c)(2)(B).

Judge Amos L. Mazzant, Fessler v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens (Aug. 30, 2019) 4:19-cv-00248 (E.D. Tex.):

The Court has reviewed the Notice Plan and its implementation and efficacy, and finds that it constituted the best notice practicable under the circumstances and was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to the proposed settlement or opt out of the Settlement Class in full compliance with the requirements of applicable law, including the Due Process Clause of the United States Constitution and Rules 23(c) and (e) of the Federal Rules of Civil Procedure. In addition, Class Notice clearly and concisely stated in plain, easily understood language: (i) the nature of the action; (ii) the definition of the certified 2011 Settlement Class; (iii) the claims and issues of the 2011 Settlement Class; (iv) that a Settlement Class Member may enter an appearance through an attorney if the member so desires; (v) that the Court will exclude from the Settlement Class any member who requests exclusions; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Fed. R. Civ. P. 23(c)(3).

Judge Karon Owen Bowdre, In re: Community Health Systems, Inc. Customer Data Security Breach Litigation (Aug. 22, 2019) MDL No. 2595, 2:15-cv-222 (N.D. Ala.):

The court finds that the Notice Program: (1) satisfied the requirements of Fed. R. Civ. P. 23(c)(2)(B) and due process; (2) was the best practicable notice under the circumstances; (3) reasonably apprised Settlement Class members of the pendency of the Action and their right to object to the settlement or opt-out of the Settlement Class; and (4) was reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notice. Approximately 90% of the 6,081,189 individuals identified as Settlement Class members received the Initial Postcard Notice of this Settlement Action. The court further finds, pursuant to Fed. R. Civ. P. 23(c)(2)(B), that the Class Notice adequately informed Settlement Class members of their rights with respect to this action.


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Judge Christina A. Snyder, Zaklit, et al. v. Nationstar Mortgage LLC, et al. (Aug. 21, 2019) 5:15-cv-02190 (C.D. Cal.):

The Class Notice provided to the Settlement Class conforms with the requirements of Fed. Rule Civ. Proc. 23, the California and United States Constitutions, and any other applicable law, and constitutes the best notice practicable under the circumstances, by providing individual notice to all Settlement Class Members who could be identified through reasonable effort, and by providing due and adequate notice of the proceedings and of the matters set forth therein to the other Settlement Class Members. The notice fully satisfied the requirements of Due Process. No Settlement Class Members have objected to the terms of the Settlement.

Judge Brian M. Cogan, Luib v. Henkel Consumer Goods Inc. (Aug. 19, 2019) 1:17-cv-03021 (E.D.N.Y.):

The Court finds that the Notice Plan, set forth in the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order: (i) was the best notice practicable under the circumstances; (ii) was reasonably calculated to provide, and did provide, due and sufficient notice to the Settlement Class regarding the existence and nature of the Action, certification of the Settlement Class for settlement purposes only, the existence and terms of the Settlement Agreement, and the rights of Settlement Class members to exclude themselves from the Settlement Agreement, to object and appear at the Final Approval Hearing, and to receive benefits under the Settlement Agreement; and (iii) satisfied the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and all other applicable law.

Judge Yvonne Gonzalez Rogers, In re: Lithium Ion Batteries Antitrust Litigation (Aug. 16, 2019) 4:13-md-02420 MDL No. 2420 (N.D. Cal.):

The proposed notice plan was undertaken and carried out pursuant to this Court’s preliminary approval order. [T]he notice program reached approximately 87 percent of adults who purchased portable computers, power tools, camcorders, or replacement batteries, and these class members were notified an average of 3.5 times each. As a result of Plaintiffs’ notice efforts, in total, 1,025,449 class members have submitted claims. That includes 51,961 new claims, and 973,488 claims filed under the prior settlements.

Judge Jon Tigar, McKnight, et al. v. Uber Technologies, Inc., et al. (Aug. 13, 2019) 3:14-cv-05615 (N.D. Cal.):

The settlement administrator, Epiq Systems, Inc., carried out the notice procedures as outlined in the preliminary approval. ECF No. 162 at 17-18. Notices were mailed to over 22 million class members with a success rate of over 90%. Id. at 17. Epiq also created a website, banner ads, and a toll free number. Id. at 17-18. Epiq estimates that it reached through mail and other formats 94.3% of class members. ECF No. 164 ¶ 28. In light of these actions, and the Court’s prior order granting preliminary approval, the Court finds that the parties have provided adequate notice to class members.

Judge Gary W.B. Chang, Robinson v. First Hawaiian Bank (Aug. 8, 2019) 17-1-0167-01 (Cir. Ct. of First Cir. Haw.):

This Court determines that the Notice Program satisfies all of the due process requirements for a class action settlement.

Judge Karin Crump, Hyder, et al. v. Consumers County Mutual Insurance Company (July 30, 2019) D-1-GN-16-000596 (D. Ct. of Travis County Tex.):

Due and adequate Notice of the pendency of this Action and of this Settlement has been provided to members of the Settlement Class, and this Court hereby finds that the Notice Plan described in the Preliminary Approval Order and completed by Defendant complied fully with the requirements of due process, the Texas Rules of Civil Procedure, and the requirements of due process under the Texas and United States Constitutions, and any other applicable laws.

Judge Wendy Bettlestone, Underwood v. Kohl's Department Stores, Inc., et al. (July 24, 2019) 2:15-cv-00730 (E.D. Pa.):

The Notice, the contents of which were previously approved by the Court, was disseminated in accordance with the procedures required by the Court's Preliminary Approval Order in accordance with applicable law.


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Judge Andrew G. Ceresia, J.S.C., Denier, et al. v. Taconic Biosciences, Inc. (July 15, 2019) 00255851 (Sup Ct. N.Y.):

The Court finds that such Notice as therein ordered, constitutes the best possible notice practicable under the circumstances and constitutes valid, due, and sufficient notice to all Settlement Class Members in compliance with the requirements of the CPLR.

Judge Vince G. Chhabria, Parsons v. Kimpton Hotel & Restaurant Group, LLC (July 11, 2019) 3:16-cv-05387 (N.D. Cal.):

Pursuant to the Preliminary Approval Order, the notice documents were sent to Settlement Class Members by email or by first-class mail, and further notice was achieved via publication in People magazine, internet banner notices, and internet sponsored search listings. The Court finds that the manner and form of notice (the “Notice Program”) set forth in the Settlement Agreement was provided to Settlement Class Members. The Court finds that the Notice Program, as implemented, was the best practicable under the circumstances. The Notice Program was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, class certification, the terms of the Settlement, and their rights to opt-out of the Settlement Class and object to the Settlement, Class Counsel’s fee request, and the request for Service Award for Plaintiff. The Notice and Notice Program constituted sufficient notice to all persons entitled to notice. The Notice and Notice Program satisfy all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the constitutional requirement of due process.

Judge Daniel J. Buckley, Adlouni v. UCLA Health Systems Auxiliary, et al. (June 28, 2019) BC589243 (Sup. Ct. Cal.):

The Court finds that the notice to the Settlement Class pursuant to the Preliminary Approval Order was appropriate, adequate, and sufficient, and constituted the best notice practicable under the circumstances to all Persons within the definition of the Settlement Class to apprise interested parties of the pendency of the Action, the nature of the claims, the definition of the Settlement Class, and the opportunity to exclude themselves from the Settlement Class or present objections to the settlement. The notice fully complied with the requirements of due process and all applicable statutes and laws and with the California Rules of Court.

Judge John C. Hayes III, Lightsey, et al. v. South Carolina Electric & Gas Company, a Wholly Owned Subsidiary of SCANA, et al. (June 11, 2019) 2017-CP-25-335 (Ct. of Com. Pleas., S.C.):

These multiple efforts at notification far exceed the due process requirement that the class representative provide the best practical notice. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140 (1974); Hospitality Mgmt. Assoc., Inc. v. Shell Oil, Inc., 356 S.C. 644, 591 S.E.2d 611 (2004). Following this extensive notice campaign reaching over 1.6 million potential class member accounts, Class counsel have received just two objections to the settlement and only 24 opt outs.

Judge Stephen K. Bushong, Scharfstein v. BP West Coast Products, LLC (June 4, 2019) 1112-17046 (Ore. Cir., County of Multnomah):

The Court finds that the Notice Plan was effected in accordance with the Preliminary Approval and Notice Order, dated March 26, 2019, was made pursuant to ORCP 32 D, and fully met the requirements of the Oregon Rules of Civil Procedure, due process, the United States Constitution, the Oregon Constitution, and any other applicable law.

Judge Cynthia Bashant, Lloyd, et al. v. Navy Federal Credit Union (May 28, 2019) 17-cv-1280 (S.D. Cal.):

This Court previously reviewed, and conditionally approved Plaintiffs’ class notices subject to certain amendments. The Court affirms once more that notice was adequate.

Judge Robert W. Gettleman, Cowen v. Lenny & Larry's Inc. (May 2, 2019) 1:17-cv-01530 (N.D. Ill.):

Notice to the Settlement Class and other potentially interested parties has been provided in accordance with the elements specified by the Court in the preliminary approval order. Adequate notice of the amended settlement and the final approval hearing has also been given. Such notice informed the Settlement Class members of all material elements of the proposed Settlement and of their opportunity to object or comment thereon or to exclude themselves from the Settlement; provided Settlement Class Members adequate instructions and a means to obtain additional information; was adequate notice under the circumstances; was valid, due, and sufficient notice to all Settlement Class [M]embers; and complied fully with the laws of the State of Illinois, Federal Rules of Civil Procedure, the United States Constitution, due process, and other applicable law.


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Judge Edward J. Davila, In re: HP Printer Firmware Update Litigation (Apr. 25, 2019) 5:16-cv-05820 (N.D. Cal.):

Due and adequate notice has been given of the Settlement as required by the Preliminary Approval Order. The Court finds that notice of this Settlement was given to Class Members in accordance with the Preliminary Approval Order and constituted the best notice practicable of the proceedings and matters set forth therein, including the Settlement, to all Persons entitled to such notice, and that this notice satisfied the requirements of Federal Rule of Civil Procedure 23 and of due process.

Judge Claudia Wilken, Naiman v. Total Merchant Services, Inc., et al. (Apr. 16, 2019) 4:17-cv-03806 (N.D. Cal.):

The Court also finds that the notice program satisfied the requirements of Federal Rule of Civil Procedure 23 and due process. The notice approved by the Court and disseminated by Epiq constituted the best practicable method for informing the class about the Final Settlement Agreement and relevant aspects of the litigation.

Judge Paul Gardephe, 37 Besen Parkway, LLC v. John Hancock Life Insurance Company (U.S.A.) (Mar. 31, 2019) 15-cv-9924 (S.D.N.Y.):

The Notice given to Class Members complied in all respects with the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process and provided due and adequate notice to the Class.

Judge Alison J. Nathan, Pantelyat, et al. v. Bank of America, N.A., et al. (Jan. 31, 2019) 16-cv-08964 (S.D.N.Y.):

The Class Notice provided to the Settlement Class in accordance with the Preliminary Approval Order was the best notice practicable under the circumstances, and constituted due and sufficient notice of the proceedings and matters set forth therein, to all persons entitled to notice. The notice fully satisfied the requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and all other applicable law and rules.

Judge Kenneth M. Hoyt, Al's Pals Pet Card, LLC, et al. v. Woodforest National Bank, N.A., et al. (Jan. 30, 2019) 4:17-cv-3852 (S.D. Tex.):

[T]he Court finds that the class has been notified of the Settlement pursuant to the plan approved by the Court. The Court further finds that the notice program constituted the best practicable notice to the class under the circumstances and fully satisfies the requirements of due process, including Fed. R. Civ. P. 23(e)(1) and 28 U.S.C. § 1715.

Judge Robert M. Dow, Jr., In re: Dealer Management Systems Antitrust Litigation (Jan. 23, 2019) MDL No. 2817, 18-cv-00864 (N.D. Ill.):

The Court finds that the Settlement Administrator fully complied with the Preliminary Approval Order and that the form and manner of providing notice to the Dealership Class of the proposed Settlement with Reynolds was the best notice practicable under the circumstances, including individual notice to all members of the Dealership Class who could be identified through the exercise of reasonable effort. The Court further finds that the notice program provided due and adequate notice of these proceedings and of the matters set forth therein, including the terms of the Agreement, to all parties entitled to such notice and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1715(b), and constitutional due process.

Judge Federico A. Moreno, In re: Takata Airbag Products Liability Litigation (Ford) (Dec. 20, 2018) MDL No. 2599 (S.D. Fla.):

The record shows and the Court finds that the Class Notice has been given to the Class in the manner approved by the Court in its Preliminary Approval Order. The Court finds that such Class Notice: .(i) is reasonable and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense) and the binding effect of the orders and Final Order and Final Judgment in the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United States


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Constitution (including the Due Process Clause), FED. R. Civ. P. 23 and any other applicable law as well as complying with the Federal Judicial Center's illustrative class action notices.

Judge Herndon, Hale v. State Farm Mutual Automobile Insurance Company, et al. (Dec. 16, 2018) 3:12-cv-00660 (S.D. Ill.):

The Class here is estimated to include approximately 4.7 million members. Approximately 1.43 million of them received individual postcard or email notice of the terms of the proposed Settlement, and the rest were notified via a robust publication program “estimated to reach 78.8% of all U.S. Adults Aged 35+ approximately 2.4 times.” Doc. 966-2 ¶¶ 26, 41. The Court previously approved the notice plan (Doc. 947), and now, having carefully reviewed the declaration of the Notice Administrator (Doc. 966-2), concludes that it was fully and properly executed, and reflected “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” See Fed. R. Civ. P. 23(c)(2)(B). The Court further concludes that CAFA notice was properly effectuated to the attorneys general and insurance commissioners of all 50 states and District of Columbia.

Judge Jesse M. Furman, Alaska Electrical Pension Fund, et al. v. Bank of America, N.A., et al. (Nov. 13, 2018) 14-cv-7126 (S.D.N.Y.):

The mailing and distribution of the Notice to all members of the Settlement Class who could be identified through reasonable effort, the publication of the Summary Notice, and the other Notice efforts described in the Motion for Final Approval, as provided for in the Court's June 26, 2018 Preliminary Approval Order, satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and constitute due and sufficient notice to all Persons entitled to notice.

Judge William L. Campbell, Jr., Ajose, et al. v. Interline Brands, Inc. (Oct. 23, 2018) 3:14-cv-01707 (M.D. Tenn.):

The Court finds that the Notice Plan, as approved by the Preliminary Approval Order: (i) satisfied the requirements of Rule 23(c)(3) and due process; (ii) was reasonable and the best practicable notice under the circumstances; (iii) reasonably apprised the Settlement Class of the pendency of the action, the terms of the Agreement, their right to object to the proposed settlement or opt out of the Settlement Class, the right to appear at the Final Fairness Hearing, and the Claims Process; and (iv) was reasonable and constituted due, adequate, and sufficient notice to all those entitled to receive notice.

Judge Joseph C. Spero, Abante Rooter and Plumbing v. Pivotal Payments Inc., d/b/a/ Capital Processing Network and CPN (Oct. 15, 2018) 3:16-cv-05486 (N.D. Cal.):

[T]the Court finds that notice to the class of the settlement complied with Rule 23(c)(3) and (e) and due process. Rule 23(e)(1) states that “[t]he court must direct notice in a reasonable manner to all class members who would be bound by” a proposed settlement, voluntary dismissal, or compromise. Class members are entitled to the “best notice that is practicable under the circumstances” of any proposed settlement before it is finally approved by the Court. Fed. R. Civ. P. 23(c)(2)(B)…The notice program included notice sent by first class mail to 1,750,564 class members and reached approximately 95.2% of the class.

Judge Marcia G. Cooke, Dipuglia v. US Coachways, Inc. (Sept. 28, 2018) 1:17-cv-23006 (S.D. Fla.):

The Settlement Class Notice Program was the best notice practicable under the circumstances. The Notice Program provided due and adequate notice of the Case 1:17-cv-23006-MGC Document 66 Entered on FLSD Docket 09/28/2018 Page 3 of 7 4 proceedings and of the matters set forth therein, including the proposed settlement set forth in the Agreement, to all persons entitled to such notice and said notice fully satisfied the requirements of the Federal Rules of Civil Procedure and the United States Constitution, which include the requirement of due process.

Judge Beth Labson Freeman, Gergetz v. Telenav, Inc. (Sept. 27, 2018) 5:16-cv-04261 (N.D. Cal.):

The Court finds that the Notice and Notice Plan implemented pursuant to the Settlement Agreement, which consists of individual notice sent via first-class U.S. Mail postcard, notice provided via email, and the posting of relevant Settlement documents on the Settlement Website, has been successfully implemented and was the best notice practicable under the circumstances and: (1) constituted notice that was reasonably calculated, under the circumstances, to apprise the Settlement Class Members of the pendency of the Action, their right to object to or to exclude themselves from the Settlement Agreement, and their right to appear at the Final Approval Hearing; (2) was reasonable and constituted due, adequate, and sufficient notice to all persons


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entitled to receive notice; and (3) met all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause, and the Rules of this Court.

Judge M. James Lorenz, Farrell v. Bank of America, N.A. (Aug. 31, 2018) 3:16-cv-00492 (S.D. Cal.): The Court therefore finds that the Class Notices given to Settlement Class members adequately informed Settlement Class members of all material elements of the proposed Settlement and constituted valid, due, and sufficient notice to Settlement Class members. The Court further finds that the Notice Program satisfies due process and has been fully implemented.

Judge Dean D. Pregerson, Falco, et al. v. Nissan North America, Inc., et al. (July 16, 2018) 2:13-cv-00686 (C.D. Cal.):

Notice to the Settlement Class as required by Rule 23(e) of the Federal Rules of Civil Procedure has been provided in accordance with the Court’s Preliminary Approval Order, and such Notice by first-class mail was given in an adequate and sufficient manner, and constitutes the best notice practicable under the circumstances, and satisfies all requirements of Rule 23(e) and due process.

Judge Lynn Adelman, In re: Windsor Wood Clad Window Product Liability Litigation (July 16, 2018) MDL No. 2688, 16-md-02688 (E.D. Wis.):

The Court finds that the Notice Program was appropriately administered, and was the best practicable notice to the Class under the circumstances, satisfying the requirements of Rule 23 and due process. The Notice Program, constitutes due, adequate, and sufficient notice to all persons, entities, and/or organizations entitled to receive notice; fully satisfied the requirements of the Constitution of the United States (including the Due Process Clause), Rule 23 of the Federal Rules of Civil Procedure, and any other applicable law; and is based on the Federal Judicial Center’s illustrative class action notices.

Judge Stephen K. Bushong, Surrett, et al. v. Western Culinary Institute, et al. (June 18, 2018) 0803-03530 (Ore. Cir. County of Multnomah):

This Court finds that the distribution of the Notice of Settlement was effected in accordance with the Preliminary Approval/Notice Order, dated February 9, 2018, was made pursuant to ORCP 32 D, and fully met the requirements of the Oregon Rules of Civil Procedure, due process, the United States Constitution, the Oregon Constitution, and any other applicable law.

Judge Jesse M. Furman, Alaska Electrical Pension Fund, et al. v. Bank of America, N.A., et al. (June 1, 2018) 14-cv-7126 (S.D.N.Y.):

The mailing of the Notice to all members of the Settlement Class who could be identified through reasonable effort, the publication of the Summary Notice, and the other Notice distribution efforts described in the Motion for Final Approval, as provided for in the Court’s October 24, 2017 Order Providing for Notice to the Settlement Class and Preliminarily Approving the Plan of Distribution, satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and constitute due and sufficient notice to all Persons entitled to notice.

Judge Brad Seligman, Larson v. John Hancock Life Insurance Company (U.S.A.) (May 8, 2018) RG16813803 (Sup. Ct. Cal.):

The Court finds that the Class Notice and dissemination of the Class Notice as carried out by the Settlement Administrator complied with the Court’s order granting preliminary approval and all applicable requirements of law, including, but not limited to California Rules of Court, rule 3.769(f) and the Constitutional requirements of due process, and constituted the best notice practicable under the circumstances and sufficient notice to all persons entitled to notice of the Settlement. [T]he dissemination of the Class Notice constituted the best notice practicable because it included mailing individual notice to all Settlement Class Members who are reasonably identifiable using the same method used to inform class members of certification of the class, following a National Change of Address search and run through the LexisNexis Deceased Database.


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Judge Federico A. Moreno, Masson v. Tallahassee Dodge Chrysler Jeep, LLC (May 8, 2018) 17-cv-22967 (S.D. Fla.): The Settlement Class Notice Program was the best notice practicable under the circumstances. The Notice Program provided due and adequate notice of the proceedings and of the matters set forth therein, including the proposed settlement set forth in the Agreement, to all persons entitled to such notice and said notice fully satisfied the requirements of the Federal Rules of Civil Procedure and the United States Constitution, which include the requirement of due process.

Chancellor Russell T. Perkins, Morton v. GreenBank (Apr. 18, 2018) 11-135-IV (20th Jud. Dist. Tenn.):

The Notice Program as provided or in the Agreement and the Preliminary Amended Approval Order constituted the best notice practicable under the circumstances, including individual notice to all Settlement Class members who could be identified through reasonable effort. The Notice Plan fully satisfied the requirements of Tennessee Rule of Civil Procedure 23.03, due process and any other applicable law.

Judge James V. Selna, Callaway v. Mercedes-Benz USA, LLC (Mar. 8, 2018) 8:14-cv-02011 (C.D. Cal.):

The Court finds that the notice given to the Class was the best notice practicable under the circumstances of this case, and that the notice complied with the requirements of Federal Rule of Civil Procedure 23 and due process. The notice given by the Class Administrator constituted due and sufficient notice to the Settlement Class, and adequately informed members of the Settlement Class of their right to exclude themselves from the Settlement Class so as not to be bound by the terms of the Settlement Agreement and how to object to the Settlement. The Court has considered and rejected the objection . . . [regarding] the adequacy of the notice plan. The notice given provided ample information regarding the case. Class members also had the ability to seek additional information from the settlement website, from Class Counsel or from the Class Administrator

Judge Thomas M. Durkin, Vergara, et al., v. Uber Technologies, Inc. (Mar. 1, 2018) 1:15-cv-06972 (N.D. Ill.):

The Court finds that the Notice Plan set forth in Section IX of the Settlement Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under the circumstances and shall constitute due and sufficient notice to the Settlement Classes of the pendency of this case, certification of the Settlement Classes for settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law. Further, the Court finds that Defendant has timely satisfied the notice requirements of 28 U.S.C. Section 1715.

Judge Federico A. Moreno, In re: Takata Airbag Products Liability Litigation (Honda & Nissan) (Feb. 28, 2018) MDL No. 2599 (S.D. Fla.):

The Court finds that the Class Notice has been given to the Class in the manner approved by the Court in its Preliminary Approval Order. The Court finds that such Class Notice: (i) is reasonable and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense) and the binding effect of the orders and Final Order and Final Judgment in the Action, whether favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United States Constitution (including the Due Process Clause), FED R. CIV. R. 23 and any other applicable law as well as complying with the Federal Judicial Center's illustrative class action notices.

Judge Susan O. Hickey, Larey v. Allstate Property and Casualty Insurance Company (Feb. 9, 2018) 4:14-cv-04008 (W.D. Kan.):

Based on the Court’s review of the evidence submitted and argument of counsel, the Court finds and concludes that the Class Notice and Claim Form was mailed to potential Class Members in accordance with the provisions of the Preliminary Approval Order, and together with the Publication Notice, the automated toll-free telephone number, and the settlement website: (i) constituted, under the circumstances, the most effective and practicable notice of the pendency of the Lawsuit, this Stipulation, and the Final Approval


23


Hearing to all Class Members who could be identified through reasonable effort; and (ii) met all requirements of the Federal Rules of Civil Procedure, the requirements of due process under the United States Constitution, and the requirements of any other applicable rules or law.

Judge Muriel D. Hughes, Glaske v. Independent Bank Corporation (Jan. 11, 2018) 13-009983 (Cir. Ct. Mich.):

The Court-approved Notice Plan satisfied due process requirements . . . The notice, among other things, was calculated to reach Settlement Class Members because it was sent to their last known email or mail address in the Bank’s files.

Judge Naomi Reice Buchwald, Orlander v. Staples, Inc. (Dec. 13, 2017) 13-CV-0703 (S.D.N.Y.):

The Notice of Class Action Settlement (“Notice”) was given to all Class Members who could be identified with reasonable effort in accordance with the terms of the Settlement Agreement and Preliminary Approval Order. The form and method of notifying the Class of the pendency of the Action as a class action and the terms and conditions of the proposed Settlement met the requirements of Federal Rule of Civil Procedure 23 and the Constitution of the United States (including the Due Process Clause); and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto.

Judge Lisa Godbey Wood, T.A.N. v. PNI Digital Media, Inc. (Dec. 1, 2017) 2:16-cv-132 (S.D. Ga.):

Notice to the Settlement Class Members required by Rule 23 has been provided as directed by this Court in the Preliminary Approval Order, and such notice constituted the best notice practicable, including, but not limited to, the forms of notice and methods of identifying and providing notice to the Settlement Class Members, and satisfied the requirements of Rule 23 and due process, and all other applicable laws.

Judge Robin L. Rosenberg, Gottlieb v. Citgo Petroleum Corporation (Nov. 29, 2017) 9:16-cv-81911 (S.D. Fla):

The Settlement Class Notice Program was the best notice practicable under the circumstances. The Notice Program provided due and adequate notice of the proceedings and of the matters set forth therein, including the proposed settlement set forth in the Settlement Agreement, to all persons entitled to such notice and said notice fully satisfied the requirements of the Federal Rules of Civil Procedure and the United States Constitution, which include the requirement of due process.

Judge Donald M. Middlebrooks, Mahoney v. TT of Pine Ridge, Inc. (Nov. 20, 2017) 9:17-cv-80029 (S.D. Fla.):

Based on the Settlement Agreement, Order Granting Preliminary Approval of Class Action Settlement Agreement, and upon the Declaration of Cameron Azari, Esq. (DE 61-1), the Court finds that Class Notice provided to the Settlement Class was the best notice practicable under the circumstances, and that it satisfied the requirements of due process and Federal Rule of Civil Procedure 23(e)(1).

Judge Gerald Austin McHugh, Sobiech v. U.S. Gas & Electric, Inc., i/t/d/b/a Pennsylvania Gas & Electric, et al. (Nov. 8, 2017) 2:14-cv-04464 (E.D. Pa.):

Notice has been provided to the Settlement Class of the pendency of this Action, the conditional certification of the Settlement Class for purposes of this Settlement, and the preliminary approval of the Settlement Agreement and the Settlement contemplated thereby. The Court finds that the notice provided was the best notice practicable under the circumstances to all persons entitled to such notice and fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process.

Judge Federico A. Moreno, In re: Takata Airbag Products Liability Litigation (BMW, Mazda, Toyota, & Subaru) (Nov. 1, 2017) MDL No. 2599 (S.D. Fla.):

[T]he Court finds that the Class Notice has been given to the Class in the manner approved in the Preliminary Approval Order. The Class Notice: (i) is reasonable and constitutes the best practicable notice to Class Members under the circumstances; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action and the terms of the Settlement Agreement, their right to exclude themselves from the Class or to object to all or any part of the Settlement Agreement, their right to appear at the Fairness Hearing (either on their own or through counsel hired at their own expense), and the binding effect of the orders and Final Order and Final Judgment in the Action, whether


24


favorable or unfavorable, on all persons and entities who or which do not exclude themselves from the Class; (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to receive notice; and (iv) fully satisfied the requirements of the United States Constitution (including the Due Process Clause), Federal Rule of Civil Procedure 23 and any other applicable law as well as complying with the Federal Judicial Center's illustrative class action notices.

Judge Charles R. Breyer, In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation (May 17, 2017) MDL No. 2672 (N.D. Cal.):

The Court is satisfied that the Notice Program was reasonably calculated to notify Class Members of the proposed Settlement. The Notice “apprise[d] interested parties of the pendency of the action and afford[ed] them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indeed, the Notice Administrator reports that the notice delivery rate of 97.04% “exceed[ed] the expected range and is indicative of the extensive address updating and re-mailing protocols used.” (Dkt. No. 3188-2 ¶ 24.)

Judge Rebecca Brett Nightingale, Ratzlaff, et al. v. BOKF, NA d/b/a Bank of Oklahoma, et al. (May 15, 2017) CJ-2015-00859 (Dist. Ct. Okla.):

The Court-approved Notice Plan satisfies Oklahoma law because it is "reasonable" (12 O.S. § 2023(E)(I)) and it satisfies due process requirements because it was "reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at 314-15).

Judge Joseph F. Bataillon, Klug v. Watts Regulator Company (Apr. 13, 2017) No. 8:15-cv-00061 (D. Neb.):

The court finds that the notice to the Settlement Class of the pendency of the Class Action and of this settlement, as provided by the Settlement Agreement and by the Preliminary Approval Order dated December 7, 2017, constituted the best notice practicable under the circumstances to all persons and entities within the definition of the Settlement Class, and fully complied with the requirements of Federal Rules of Civil Procedure Rule 23 and due process. Due and sufficient proof of the execution of the Notice Plan as outlined in the Preliminary Approval Order has been filed.

Judge Yvonne Gonzalez Rogers, Bias v. Wells Fargo & Company, et al. (Apr. 13, 2017) 4:12-cv-00664 (N.D. Cal.):

The form, content, and method of dissemination of Notice of Settlement given to the Settlement Class was adequate and reasonable and constituted the best notice practicable under the circumstances, including both individual notice to all Settlement Class Members who could be identified through reasonable effort and publication notice. Notice of Settlement, as given, complied with the requirements of Rule 23 of the Federal Rules of Civil Procedure, satisfied the requirements of due process, and constituted due and sufficient notice of the matters set forth herein. Notice of the Settlement was provided to the appropriate regulators pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715(c)(1).

Judge Carlos Murguia, Whitton v. Deffenbaugh Industries, Inc., et al. (Dec. 14, 2016) 2:12-cv-02247 and Gary, LLC v. Deffenbaugh Industries, Inc., et al. 2:13-cv-02634 (D. Kan.):

The Court determines that the Notice Plan as implemented was reasonably calculated to provide the best notice practicable under the circumstances and contained all required information for members of the proposed Settlement Class to act to protect their interests. The Court also finds that Class Members were provided an adequate period of time to receive Notice and respond accordingly.

Judge Yvette Kane, In re: Shop-Vac Marketing and Sales Practices Litigation (Dec. 9, 2016) MDL No. 2380 (M.D. Pa.):

The Court hereby finds and concludes that members of the Settlement Class have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and all other applicable laws.


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Judge Timothy D. Fox, Miner v. Philip Morris USA, Inc. (Nov. 21, 2016) 60CV03-4661 (Ark. Cir. Ct.):

The Court finds that the Settlement Notice provided to potential members of the Class constituted the best and most practicable notice under the circumstances, thereby complying fully with due process and Rule 23 of the Arkansas Rules of Civil Procedure.

Judge Eileen Bransten, In re: HSBC Bank USA, N.A., as part of In re: Checking Account Overdraft Litigation (Oct. 13, 2016) 650562/2011 (Sup. Ct. N.Y.):

This Court finds that the Notice Program and the Notice provided to Settlement Class members fully satisfied the requirements of constitutional due process, the N.Y. C.P.L.R., and any other applicable laws, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all persons entitled thereto.

Judge Jerome B. Simandle, In re: Caterpillar, Inc. C13 and C15 Engine Products Liability Litigation (Sept. 20, 2016) MDL No. 2540 (D.N.J.):

The Court hereby finds that the Notice provided to the Settlement Class constituted the best notice practicable under the circumstances. Said Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the terms of the Settlement Agreement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Fed. R. Civ. P. 23, requirements of due process and any other applicable law.

Judge Marcia G. Cooke, Chimeno-Buzzi v. Hollister Co. and Abercrombie & Fitch Co. (Apr. 11, 2016) 14-23120 (S.D. Fla.):

Pursuant to the Court’s Preliminary Approval Order, the Settlement Administrator, Epiq Systems, Inc. [Hilsoft Notifications], has complied with the approved notice process as confirmed in its Declaration filed with the Court on March 23, 2016. The Court finds that the notice process was designed to advise Class Members of their rights. The form and method for notifying Class Members of the settlement and its terms and conditions was in conformity with this Court’s Preliminary Approval Order, constituted the best notice practicable under the circumstances, and satisfied the requirements of Federal Rule of Civil Procedure 23(c)(2)(B), the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715, and due process under the United States Constitution and other applicable laws.

Judge Yvonne Gonzalez Rogers, In re: Lithium Ion Batteries Antitrust Litigation (Mar. 22, 2016) 4:13-md-02420 MDL No. 2420 (N.D. Cal.):

From what I could tell, I liked your approach and the way you did it. I get a lot of these notices that I think are all legalese and no one can really understand them. Yours was not that way.

Judge Christopher S. Sontchi, In re: Energy Future Holdings Corp, et al. (July 30, 2015) 14-10979 (Bankr. D. Del.):

Notice of the Asbestos Bar Date as set forth in this Asbestos Bar Date Order and in the manner set forth herein constitutes adequate and sufficient notice of the Asbestos Bar Date and satisfies the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.

Judge David C. Norton, In re: MI Windows and Doors Inc. Products Liability Litigation (July 22, 2015) MDL No. 2333, 2:12-mn-00001 (D.S.C.):

The court finds that the Notice Plan, as described in the Settlement and related declarations, has been faithfully carried out and constituted the best practicable notice to Class Members under the circumstances of this Action, and was reasonable and constituted due, adequate, and sufficient notice to all Persons entitled to be provided with Notice. The court also finds that the Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of: (1) the pendency of this class action; (2) their right to exclude themselves from the Settlement Class and the proposed Settlement; (3) their right to object to any aspect of the proposed Settlement (including final certification of the Settlement Class, the fairness, reasonableness, or adequacy of the proposed Settlement, the adequacy of the Settlement Class’s representation by Named Plaintiffs or Class Counsel, or the award of attorney’s and representative fees); (4) their right to appear at the fairness hearing (either on their own or through counsel hired at their own expense); and (5) the binding and


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preclusive effect of the orders and Final Order and Judgment in this Action, whether favorable or unfavorable, on all Persons who do not request exclusion from the Settlement Class. As such, the court finds that the Notice fully satisfied the requirements of the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 23(c)(2) and (e), the United States Constitution (including the Due Process Clause), the rules of this court, and any other applicable law, and provided sufficient notice to bind all Class Members, regardless of whether a particular Class Member received actual notice.

Judge Robert W. Gettleman, Adkins, et al. v. Nestlé Purina PetCare Company, et al. (June 23, 2015) 1:12-cv-02871 (N.D. Ill.):

Notice to the Settlement Class and other potentially interested parties has been provided in accordance with the notice requirements specified by the Court in the Preliminary Approval Order. Such notice fully and accurately informed the Settlement Class members of all material elements of the proposed Settlement and of their opportunity to object or comment thereon or to exclude themselves from the Settlement; provided Settlement Class Members adequate instructions and a variety of means to obtain additional information; was the best notice practicable under the circumstances; was valid, due, and sufficient notice to all Settlement Class members; and complied fully with the laws of the State of Illinois, Federal Rules of Civil Procedure, the United States Constitution, due process, and other applicable law.

Judge James Lawrence King, Steen v. Capital One, N.A. (May 22, 2015) 2:10-cv-01505 (E.D. La.) and 1:10-cv-22058 (S.D. Fla.) as part of In re: Checking Account Overdraft Litigation, MDL No. 2036 (S.D. Fla.):

The Court finds that the Settlement Class Members were provided with the best practicable notice; the notice was reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'' Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at 314-15). This Settlement with Capital One was widely publicized, and any Settlement Class Member who wished to express comments or objections had ample opportunity and means to do so. Azari Decl. ¶¶ 30-39.

Judge Rya W. Zobel, Gulbankian et al. v. MW Manufacturers, Inc. (Dec. 29, 2014) 1:10-cv-10392 (D. Mass.):

This Court finds that the Class Notice was provided to the Settlement Class consistent with the Preliminary Approval Order and that it was the best notice practicable and fully satisfied the requirements of the Federal Rules of Civil Procedure, due process, and applicable law. The Court finds that the Notice Plan that was implemented by the Claims Administrator satisfies the requirements of FED. R. CIV. P. 23, 28 U.S.C. § 1715, and Due Process, and is the best notice practicable under the circumstances. The Notice Plan constituted due and sufficient notice of the Settlement, the Final Approval Hearing, and the other matters referred to in the notices. Proof of the giving of such notices has been filed with the Court via the Azari Declaration and its exhibits.

Judge Edward J. Davila, Rose v. Bank of America Corporation, et al. (Aug. 29, 2014) 5:11-cv-02390 and 5:12-cv-0400 (N.D. Cal.):

The Court finds that the notice was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of this action, all material elements of the Settlement, the opportunity for Settlement Class Members to exclude themselves from, object to, or comment on the settlement and to appear at the final approval hearing. The notice was the best notice practicable under the circumstances, satisfying the requirements of Rule 23(c)(2)(B); provided notice in a reasonable manner to all class members, satisfying Rule 23(e)(1)(B); was adequate and sufficient notice to all Class Members; and, complied fully with the laws of the United States and of the Federal Rules of Civil Procedure, due process and any other applicable rules of court.

Judge James A. Robertson, II, Wong, et al. v. Alacer Corp. (June 27, 2014) CGC-12-519221 (Sup. Ct. Cal.):

Notice to the Settlement Class has been provided in accordance with the Preliminary Approval Order. Based on the Declaration of Cameron Azari dated March 7, 2014, such Class Notice has been provided in an adequate and sufficient manner, constitutes the best notice practicable under the circumstances and satisfies the requirements of California Civil Code Section 1781, California Civil Code of Civil Procedure Section 382, Rules 3.766 of the California Rules of Court, and due process.


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Judge John Gleeson, In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Dec. 13, 2013) MDL No. 1720, 05-md-01720 (E.D.N.Y.):

The Class Administrator notified class members of the terms of the proposed settlement through a mailed notice and publication campaign that included more than 20 million mailings and publication in more than 400 publications. The notice here meets the requirements of due process and notice standards… The objectors’ complaints provide no reason to conclude that the purposes and requirements of a notice to a class were not met here.

Judge Lance M. Africk, Evans, et al. v. TIN, Inc., et al. (July 7, 2013) 2:11-cv-02067 (E.D. La.): The Court finds that the dissemination of the Class Notice… as described in Notice Agent Lauran Schultz’s Declaration: (a) constituted the best practicable notice to Class Members under the circumstances; (b) constituted notice that was reasonably calculated, under the circumstances…; (c) constituted notice that was reasonable, due, adequate, and sufficient; and (d) constituted notice that fully satisfied all applicable legal requirements, including Rules 23(c)(2)(B) and (e)(1) of the Federal Rules of Civil Procedure, the United States Constitution (including Due Process Clause), the Rules of this Court, and any other applicable law, as well as complied with the Federal Judicial Center’s illustrative class action notices.

Judge Edward M. Chen, Marolda v. Symantec Corporation (Apr. 5, 2013) 3:08-cv-05701 (N.D. Cal.):

Approximately 3.9 million notices were delivered by email to class members, but only a very small percentage objected or opted out . . . The Court . . . concludes that notice of settlement to the class was adequate and satisfied all requirements of Federal Rule of Civil Procedure 23(e) and due process. Class members received direct notice by email, and additional notice was given by publication in numerous widely circulated publications as well as in numerous targeted publications. These were the best practicable means of informing class members of their rights and of the settlement’s terms.

Judge Ann D. Montgomery, In re: Zurn Pex Plumbing Products Liability Litigation (Feb. 27, 2013) MDL No. 1958, 08-md-1958 (D. Minn.):

The parties retained Hilsoft Notifications ("Hilsoft"), an experienced class-notice consultant, to design and carry out the notice plan. The form and content of the notices provided to the class were direct, understandable, and consistent with the "plain language" principles advanced by the Federal Judicial Center. The notice plan's multi-faceted approach to providing notice to settlement class members whose identity is not known to the settling parties constitutes "the best notice [*26] that is practicable under the circumstances" consistent with Rule 23(c)(2)(B).

Magistrate Judge Stewart, Gessele, et al. v. Jack in the Box, Inc. (Jan. 28, 2013) 3:10-cv-960 (D. Ore.):

Moreover, plaintiffs have submitted [a] declaration from Cameron Azari (docket #129), a nationally recognized notice expert, who attests that fashioning an effective joint notice is not unworkable or unduly confusing. Azari also provides a detailed analysis of how he would approach fashioning an effective notice in this case.

Judge Carl J. Barbier, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Medical Benefits Settlement) (Jan. 11, 2013) MDL No. 2179 (E.D. La.):

Through August 9, 2012, 366,242 individual notices had been sent to potential [Medical Benefits] Settlement Class Members by postal mail and 56,136 individual notices had been e-mailed. Only 10,700 mailings—or 3.3%—were known to be undeliverable. (Azari Decl. ¶¶ 8, 9.) Notice was also provided through an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, highly-trafficked websites, and Sunday local newspapers (via newspaper supplements). Notice was also provided in non-measured trade, business and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The combined measurable paid print, television, radio, and Internet effort reached an estimated 95% of adults aged 18+ in the Gulf Coast region an average of 10.3 times each, and an estimated 83% of all adults in the United States aged 18+ an average of 4 times each. (Id. ¶¶ 8, 10.) All notice documents were designed to be clear, substantive, and informative. (Id. ¶ 5.)


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The Court received no objections to the scope or content of the [Medical Benefits] Notice Program. (Azari Supp. Decl. ¶ 12.) The Court finds that the Notice and Notice Plan as implemented satisfied the best notice practicable standard of Rule 23(c) and, in accordance with Rule 23(e)(1), provided notice in a reasonable manner to Class Members who would be bound by the Settlement, including individual notice to all Class Members who could be identified through reasonable effort. Likewise, the Notice and Notice Plan satisfied the requirements of Due Process. The Court also finds the Notice and Notice Plan satisfied the requirements of CAFA.

Judge Carl J. Barbier, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Economic and Property Damages Settlement) (Dec. 21, 2012) MDL No. 2179 (E.D. La.):

The Court finds that the Class Notice and Class Notice Plan satisfied and continue to satisfy the applicable requirements of Federal Rule of Civil Procedure 23(c)(2)(b) and 23(e), the Class Action Fairness Act (28 U.S.C. § 1711 et seq.), and the Due Process Clause of the United States Constitution (U.S. Const., amend. V), constituting the best notice that is practicable under the circumstances of this litigation. The notice program surpassed the requirements of Due Process, Rule 23, and CAFA. Based on the factual elements of the Notice Program as detailed below, the Notice Program surpassed all of the requirements of Due Process, Rule 23, and CAFA. The Notice Program, as duly implemented, surpasses other notice programs that Hilsoft Notifications has designed and executed with court approval. The Notice Program included notification to known or potential Class Members via postal mail and e-mail; an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, and Sunday local newspapers. Notice placements also appeared in non-measured trade, business, and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The Notice Program met the objective of reaching the greatest possible number of class members and providing them with every reasonable opportunity to understand their legal rights. See Azari Decl. ¶¶ 8, 15, 68. The Notice Program was substantially completed on July 15, 2012, allowing class members adequate time to make decisions before the opt-out and objections deadlines.

The media notice effort alone reached an estimated 95% of adults in the Gulf region an average of 10.3 times each, and an estimated 83% of all adults in the United States an average of 4 times each. These figures do not include notice efforts that cannot be measured, such as advertisements in trade publications and sponsored search engine listings. The Notice Program fairly and adequately covered and notified the class without excluding any demographic group or geographic area, and it exceeded the reach percentage achieved in most other court-approved notice programs.

Judge Alonzo Harris, Opelousas General Hospital Authority, A Public Trust, D/B/A Opelousas General Health System and Arklamiss Surgery Center, L.L.C. v. FairPay Solutions, Inc. (Aug. 17, 2012) 12-C-1599 (27th Jud. D. Ct. La.):

Notice given to Class Members and all other interested parties pursuant to this Court’s order of April 18, 2012, was reasonably calculated to apprise interested parties of the pendency of the action, the certification of the Class as Defined for settlement purposes only, the terms of the Settlement Agreement, Class Members rights to be represented by private counsel, at their own costs, and Class Members rights to appear in Court to have their objections heard, and to afford persons or entities within the Class Definition an opportunity to exclude themselves from the Class. Such notice complied with all requirements of the federal and state constitutions, including the Due Process Clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Class as Defined.

Judge James Lawrence King, Sachar v. Iberiabank Corporation (Apr. 26, 2012) as part of In re: Checking Account Overdraft MDL No. 2036 (S.D. Fla):

The Court finds that the Notice previously approved was fully and properly effectuated and was sufficient to satisfy the requirements of due process because it described “the substantive claims . . . [and] contained information reasonably necessary to [allow Settlement Class Members to] make a decision to remain a class member and be bound by the final judgment.'' In re: Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104-05 (5th Cir. 1977). The Notice, among other things, defined the Settlement Class, described the release as well as the amount and method and manner of proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their rights to opt-out or object, the procedures for doing so, and the time and place of the Final Approval Hearing. The Notice also informed Settlement Class


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Members that a class judgment would bind them unless they opted out, and told them where they could obtain more information, such as access to a full copy of the Agreement. Further, the Notice described in summary form the fact that Class Counsel would be seeking attorneys' fees of up to 30 percent of the Settlement. Settlement Class Members were provided with the best practicable notice “reasonably calculated, under [the] circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections.'' Mullane, 339 U.S. at 314. The content of the Notice fully complied with the requirements of Rule 23.

Judge Bobby Peters, Vereen v. Lowe’s Home Centers (Apr. 13, 2012) SU10-cv-2267B (Ga. Super. Ct.):

The Court finds that the Notice and the Notice Plan was fulfilled, in accordance with the terms of the Settlement Agreement, the Amendment, and this Court’s Preliminary Approval Order and that this Notice and Notice Plan constituted the best practicable notice to Class Members under the circumstances of this action, constituted due and sufficient Notice of the proposed Settlement to all persons entitled to participate in the proposed Settlement, and was in full compliance with Ga. Code Ann § 9-11-23 and the constitutional requirements of due process. Extensive notice was provided to the class, including point of sale notification, publication notice and notice by first-class mail for certain potential Class Members.

The affidavit of the notice expert conclusively supports this Court’s finding that the notice program was adequate, appropriate, and comported with Georgia Code Ann. § 9-11-23(b)(2), the Due Process Clause of the Constitution, and the guidance for effective notice articulate in the FJC’s Manual for Complex Litigation, 4th.

Judge Lee Rosenthal, In re: Heartland Payment Systems, Inc. Customer Data Security Breach Litigation (Mar. 2, 2012) MDL No. 2046 (S.D. Tex.):

The notice that has been given clearly complies with Rule 23(e)(1)’s reasonableness requirement… Hilsoft Notifications analyzed the notice plan after its implementation and conservatively estimated that notice reached 81.4 percent of the class members. (Docket Entry No. 106, ¶ 32). Both the summary notice and the detailed notice provided the information reasonably necessary for the presumptive class members to determine whether to object to the proposed settlement. See Katrina Canal Breaches, 628 F.3d at 197. Both the summary notice and the detailed notice “were written in easy-to-understand plain English.” In re: Black Farmers Discrimination Litig., — F. Supp. 2d —, 2011 WL 5117058, at *23 (D.D.C. 2011); accord AGGREGATE LITIGATION § 3.04(c).15 The notice provided “satisf[ies] the broad reasonableness standards imposed by due process” and Rule 23. Katrina Canal Breaches, 628 F.3d at 197.

Judge John D. Bates, Trombley v. National City Bank (Dec. 1, 2011) 1:10-cv-00232 (D.D.C.) as part of In re: Checking Account Overdraft Litigation MDL No. 2036 (S.D. Fla.):

The form, content, and method of dissemination of Notice given to the Settlement Class were in full compliance with the Court’s January 11, 2011 Order, the requirements of Fed. R. Civ. P. 23(e), and due process. The notice was adequate and reasonable, and constituted the best notice practicable under the circumstances. In addition, adequate notice of the proceedings and an opportunity to participate in the final fairness hearing were provided to the Settlement Class.

Judge Robert M. Dow, Jr., Schulte v. Fifth Third Bank (July 29, 2011) 1:09-cv-06655 (N.D. Ill.):

The Court has reviewed the content of all of the various notices, as well as the manner in which Notice was disseminated, and concludes that the Notice given to the Class fully complied with Federal Rule of Civil Procedure 23, as it was the best notice practicable, satisfied all constitutional due process concerns, and provided the Court with jurisdiction over the absent Class Members.

Judge Ellis J. Daigle, Williams v. Hammerman & Gainer Inc. (June 30, 2011) 11-C-3187-B (27th Jud. D. Ct. La.):

Notices given to Settlement Class members and all other interested parties throughout this proceeding with respect to the certification of the Settlement Class, the proposed settlement, and all related procedures and hearings—including, without limitation, the notice to putative Settlement Class members and others more fully described in this Court’s order of 30th day of March 2011 were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination, to apprise interested parties and members of the Settlement Class of the pendency of the action, the certification of the Settlement Class, the Settlement Agreement and its contents, Settlement Class members’ right to be represented by private counsel, at their own cost, and Settlement Class members’ right to appear in Court


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to have their objections heard, and to afford Settlement Class members an opportunity to exclude themselves from the Settlement Class. Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedures, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class.

Judge Stefan R. Underhill, Mathena v. Webster Bank, N.A. (Mar. 24, 2011) 3:10-cv-01448 (D. Conn.) as part of In re: Checking Account Overdraft Litigation MDL No. 2036 (S.D. Fla.):

The form, content, and method of dissemination of Notice given to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process.

Judge Ted Stewart, Miller v. Basic Research, LLC (Sept. 2, 2010) 2:07-cv-00871 (D. Utah):

Plaintiffs state that they have hired a firm specializing in designing and implementing large scale, unbiased, legal notification plans. Plaintiffs represent to the Court that such notice will include: 1) individual notice by electronic mail and/or first-class mail sent to all reasonably identifiable Class members; 2) nationwide paid media notice through a combination of print publications, including newspapers, consumer magazines, newspaper supplements and the Internet; 3) a neutral, Court-approved, informational press release; 4) a neutral, Court-approved Internet website; and 5) a toll-free telephone number. Similar mixed media plans have been approved by other district courts post class certification. The Court finds this plan is sufficient to meet the notice requirement.

Judge Sara Loi, Pavlov v. Continental Casualty Co. (Oct. 7, 2009) 5:07-cv-2580 (N.D. Ohio):

As previously set forth in this Memorandum Opinion, the elaborate notice program contained in the Settlement Agreement provides for notice through a variety of means, including direct mail to each class member, notice to the United States Attorney General and each State, a toll free number, and a website designed to provide information about the settlement and instructions on submitting claims. With a 99.9% effective rate, the Court finds that the notice program constituted the “best notice that is practicable under the circumstances,” Fed. R. Civ. P. 23(c)(2)(B), and clearly satisfies the requirements of Rule 23(c)(2)(B).

Judge James Robertson, In re: Department of Veterans Affairs (VA) Data Theft Litigation (Sept. 23, 2009) MDL No. 1796 (D.D.C.):

The Notice Plan, as implemented, satisfied the requirements of due process and was the best notice practicable under the circumstances. The Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the action, the terms of the Settlement, and their right to appear, object to or exclude themselves from the Settlement. Further, the notice was reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notice.

LEGAL NOTICE CASES

Hilsoft has served as a notice expert for planning, implementation and/or analysis in the following partial list of cases:

Yamagata et al. v. Reckitt Benckiser LLC N.D. Cal., No. 3:17-cv-03529

Thompson et al. v. Community Bank, N.A. (Overdraft) N.D.N.Y., No. 8:19-cv-0919

Silveira v. M&T Bank C.D. Cal., No. 2:19-cv-06958

In re Toll Roads Litigation; Borsuk et al. v. Foothill/Eastern Transportation Corridor Agency, et al. (OCTA Settlement)

C.D. Cal., No. 8:16-cv-00262

In Re: Toll Roads Litigation (3M/TCA Settlement) C.D. Cal., No. 8:16-cv-00262


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Pearlstone v. Wal-Mart Stores, Inc. (Sales Tax) C.D. Cal., No. 4:17-cv-02856

Zanca, et al. v. Epic Games, Inc. (Fortnite or Rocket League Video Games)

Sup Ct. Wake Cnty., N.C., No. 21-CVS-534

In re: Flint Water Cases E.D. Mich., No. 5:16-cv-10444

Kukorinis, et al. v. Walmart, Inc. S.D. Fla., No. 1:19-cv-20592

Grace v. Apple, Inc. N.D. Cal., No. 17-CV-00551

Alvarez v. Sirius XM Radio Inc. C.D. Cal., No. 2:18-cv-8605

In re: Pre-Filled Propane Tank Antitrust Litigation W.D. Mo., No. MDL No. 2567, No. 14-2567

In re: Disposable Contact Lens Antitrust Litigation (ABB Concise Optical Group, LLC)

M.D. Fla., No. 3:15-md-02626

Bally v. State Farm Insurance Company N.D. Cal., No. 3:18-cv-04954

Morris v. Provident Credit Union (Overdraft) Sup. Ct. Cal. Cty. of San Fran., No. CGC-19-581616

Pennington v. Tetra Tech, Inc. et al. N.D. Cal., No. 3:18-cv-05330

Maldonado et al. v. Apple Inc, et al. N.D. Cal., No. 3:16-cv-04067

UFCW & Employers Benefit Trust v. Sutter Health, et al. Sup. Ct. of Cal., Cnty of San Fran., No. CGC 14-538451 Consolidated with CGC-18-565398

Fitzhenry v. Independent Home Products, LLC (TCPA) D.S.C., No. 2:19-cv-02993

In re: Hyundai and Kia Engine Litigation and Flaherty v. Hyundai Motor Company, Inc., et al.

C.D. Cal., Nos. 8:17-CV-00838 & 18-cv-02223

Sager, et al. v. Volkswagen Group of America, Inc., et al. D.N.J., No. 18-cv-13556

Bautista v. Valero Marketing and Supply Company N.D. Cal., No. 3:15-cv-05557

Snee Farm Lakes Homeowner's Association Inc. v. The Commissioners of Public Works for the Town of Mount Pleasant d/b/a Mount Pleasant Waterworks

Ct. of Com. Pleas., S.C., No. 2018-CP-10-2764

Richards, et al. v. Chime Financial, Inc. N.D. Cal., No. 4:19-cv-06864

In re: Health Insurance Innovations Securities Litigation M.D. Fla., No. 8:17-cv-02186

Fox, et al. v. Iowa Health System d.b.a. UnityPoint Health (Data Breach)

W.D. Wis., No. 18-cv-327

Smith v. Costa Del Mar, Inc. M.D. Fla., No. 3:18-cv-1011

Al’s Discount Plumbing, et al. v. Viega, LLC (Building Products) M.D. Pa., No. 19-cv-00159

The Weinstein Company Holdings, LLC Bankr. D. Del., No. 18-10601

Rose v. The Travelers Home and Marine Insurance Company, et al. E.D. Pa., No. 19-cv-00977

Paris et al. v. Progressive American Insurance Company, et al. S.D. Fla., No. 19-cv-21761

Chinitz v. Intero Real Estate Services N.D. Cal., No. 5:18-cv-05623

Eastwood Construction LLC, et al. v. City of Monroe The Estate of Donald Alan Plyler Sr., et al. v. City of Monroe

Sup. Ct. N.C., Nos. 18-CVS-2692 & 19-CVS-1825


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Garvin v. San Diego Unified Port District Sup. Ct. Cal., No. 37-2020-00015064

Consumer Financial Protection Bureau v. Siringoringo Law Firm C.D. Cal., No. 8:14-cv-01155

Robinson v. Nationstar Mortgage LLC D. Md., No. 8:14-cv-03667

Drazen v. GoDaddy.com, LLC and Bennett v. GoDaddy.com, LLC (TCPA)

S.D. Ala., No. 1:19-cv-00563

In re: Libor-Based Financial Instruments Antitrust Litigation S.D.N.Y., MDL No. 2262, No. 1:11-md-2262

Izor v. Abacus Data Systems, Inc. (TCPA) N.D. Cal., No. 19-cv-01057

Cook, et al. v. South Carolina Public Service Authority, et al. Ct. of Com. Pleas. 13th Jud. Cir. S.C., No. 2019-CP-23-6675

K.B., by and through her natural parent, Jennifer Qassis, and Lillian Knox-Bender v. Methodist Healthcare - Memphis Hospitals

30th Jud. Dist. Tenn., No. CH-13-04871-1

In re: Roman Catholic Diocese of Harrisburg Bank. Ct. M.D. Pa., No. 1:20-bk-00599

Denier, et al. v. Taconic Biosciences, Inc. Sup Ct. N.Y., No. 00255851

Robinson v. First Hawaiian Bank (Overdraft) Cir. Ct. of First Cir. Haw., No. 17-1-0167-01

Burch v. Whirlpool Corporation W.D. Mich., No. 1:17-cv-00018

Armon, et al. v. Washington State University (Data Breach) Sup. Ct. Wash., No. 17-2-23244-1 consolidated with No. 17-2-25052-0

Wilson, et al. v. Volkswagen Group of America, Inc., et al. S.D. Fla., No. 17-cv-23033

Prather v. Wells Fargo Bank, N.A. (TCPA) N.D. Ill., No. 1:17-cv-00481

In re: Wells Fargo Collateral Protection Insurance Litigation C.D. Cal., No. 8:17-ml-02797

Ciuffitelli, et al. v. Deloitte & Touche LLP, et al. D. Ore., No. 3:16-cv-00580

Coffeng, et al. v. Volkswagen Group of America, Inc. N.D. Cal., No. 17-cv-01825

In re: Disposable Contact Lens Antitrust Litigation (CooperVision, Inc.)

M.D. Fla., No. 3:15-md-02626

Audet, et al. v. Garza, et al. D. Conn., No. 3:16-cv-00940

Hyder, et al. v. Consumers County Mutual Insurance Company D. Ct. of Travis County Tex., No. D-1-GN-16-000596

Fessler v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens

E.D. Tex., No. 4:19-cv-00248

In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation D.S.C., MDL No. 2613, No. 6:15-MN-02613

Liggio v. Apple Federal Credit Union E.D. Vir., No. 1:18-cv-01059

Garcia v. Target Corporation (TCPA) D. Minn., No. 16-cv-02574

Albrecht v. Oasis Power, LLC d/b/a Oasis Energy N.D. Ill., No. 1:18-cv-1061

McKinney-Drobnis, et al. v. Massage Envy Franchising N.D. Cal., No. 3:16-cv-6450


33


In re: Optical Disk Drive Products Antitrust Litigation N.D. Cal., MDL No. 2143, No. 3:10-md-2143

Stone, et al. v. Porcelana Corona De Mexico, S.A. DE C.V f/k/a Sanitarios Lamosa S.A. DE C.V. a/k/a Vortens

E.D. Tex., No. 4:17-cv-00001

In re: Kaiser Gypsum Company, Inc., el al. (Asbestos) Bankr. W.D. N.C., No. 16-31602

Kuss v. American HomePatient, Inc., et al. (Data Breach) M.D. Fla., No. 8:18-cv-2348

Lusnak v. Bank of America, N.A. C.D. Cal., No. 14-cv-1855

In re: Premera Blue Cross Customer Data Security Breach Litigation

D. Ore., No. 3:15-md-2633

Elder v. Hilton Worldwide Holdings, Inc. (Hotel Stay Promotion) N.D. Cal., No. 16-cv-00278

Grayson, et al. v. General Electric Company (Microwaves) D. Conn., No. 3:13-cv-01799

Harris, et al. v. Farmers Insurance Exchange and Mid Century Insurance Company

Sup. Ct Cal., No. BC 579498

Lashambae v. Capital One Bank, N.A. (Overdraft) E.D.N.Y., No. 1:17-cv-06406

Trujillo, et al. v. Ametek, Inc., et al. (Toxic Leak) S.D. Cal., No.3:15-cv-01394

Cox, et al. v. Ametek, Inc., et al. (Toxic Leak) S.D. Cal., No. 3:17-cv-00597

Pirozzi, et al. v. Massage Envy Franchising, LLC E.D. Mo., No. 4:19-CV-807

Lehman v. Transbay Joint Powers Authority, et al. (Millennium Tower)

Sup. Ct. Cal., No. GCG-16-553758

In re: FCA US LLC Monostable Electronic Gearshift Litigation E.D. Mich., MDL No. 2744 & No. 16-md-02744

Dasher v. RBC Bank (USA) predecessor in interest to PNC Bank, N.A., as part of In re: Checking Account Overdraft

S.D. Fla., No. 1:10-CV-22190, as part of MDL No. 2036

Behfarin v. Pruco Life Insurance Company, et al. C.D. Cal., No. 17-cv-05290

In re: Renovate America Finance Cases Sup. Ct, Cal., County of Riverside, No. RICJCCP4940

Nelson v. Roadrunner Transportation Systems, Inc. (Data Breach) N.D. Ill., No. 1:18-cv-07400

Skochin, et al. v. Genworth Life Insurance Company, et al. E.D. Vir., No. 3:19-cv-00049

Walters, et al. v. Target Corp. (Overdraft) S.D. Cal., No. 3:16-cv-1678

Jackson, et al. v. Viking Group, Inc., et al. D. Md., No. 8:18-cv-02356

Waldrup v. Countrywide Financial Corporation, et al. C.D. Cal., No. 2:13-cv-08833

Burrow, et al. v. Forjas Taurus S.A., et al. S.D. Fla., No. 1:16-cv-21606

Henrikson v. Samsung Electronics Canada Inc. Ontario Sup. Ct., No. 2762-16cp

In re: Comcast Corp. Set-Top Cable Television Box Antitrust Litigation

E.D. Pa., No. 2:09-md-02034

Lightsey, et al. v. South Carolina Electric & Gas Company, a Wholly Owned Subsidiary of SCANA, et al.

Ct. of Com. Pleas., S.C., No. 2017-CP-25-335


34


Rabin v. HP Canada Co., et al. Quebec Ct., Dist. of Montreal, No. 500-06-000813-168

McIntosh v. Takata Corporation, et al.; Vitoratos, et al. v. Takata Corporation, et al.; and Hall v. Takata Corporation, et al.

Ontario Sup Ct., No. CV-16-543833-00CP; Quebec Sup. Ct of Justice, No. 500-06-000723-144; & Court of Queen’s Bench for Saskatchewan, No. QBG. 1284 or 2015

Di Filippo v. The Bank of Nova Scotia, et al. (Gold Market Instrument)

Ontario Sup. Ct., No. CV-15-543005-00CP & No. CV-16-551067-00CP

Adlouni v. UCLA Health Systems Auxiliary, et al. Sup. Ct. Cal., No. BC589243

Lloyd, et al. v. Navy Federal Credit Union S.D. Cal., No. 17-cv-1280

Luib v. Henkel Consumer Goods Inc. E.D.N.Y., No. 1:17-cv-03021

Zaklit, et al. v. Nationstar Mortgage LLC, et al. (TCPA) C.D. Cal., No. 5:15-cv-02190

In re: HP Printer Firmware Update Litigation N.D. Cal., No. 5:16-cv-05820

In re: Dealer Management Systems Antitrust Litigation N.D. Ill., MDL No. 2817, No. 18-cv-00864

Mosser v. TD Bank, N.A. and Mazzadra, et al. v. TD Bank, N.A., as part of In re: Checking Account Overdraft

E.D. Pa., No. 2:10-cv-00731, S.D. Fla., No. 10-cv-21386 and S.D. Fla., No. 1:10-cv-21870, as part of S.D. Fla., MDL No. 2036

Naiman v. Total Merchant Services, Inc., et al. (TCPA) N.D. Cal., No. 4:17-cv-03806

In re: Valley Anesthesiology Consultants, Inc. Data Breach Litigation

Sup. Ct. Cal., No. CV2016-013446

Parsons v. Kimpton Hotel & Restaurant Group, LLC (Data Breach) N.D. Cal., No. 3:16-cv-05387

Stahl v. Bank of the West Sup. Ct. Cal., No. BC673397

37 Besen Parkway, LLC v. John Hancock Life Insurance Company (U.S.A.)

S.D.N.Y., No. 15-cv-9924

Tashica Fulton-Green, et al. v. Accolade, Inc. E.D. Pa., No. 2:18-cv-00274

In re: Community Health Systems, Inc. Customer Data Security Breach Litigation

N.D. Ala., MDL No. 2595, No. 2:15-CV-222

Al's Pals Pet Card, LLC, et al. v. Woodforest National Bank, N.A., et al.

S.D. Tex., No. 4:17-cv-3852

Cowen v. Lenny & Larry's Inc. N.D. Ill., No. 1:17-cv-01530

Martin v. Trott (MI - Foreclosure) E.D. Mich., No. 2:15-cv-12838

Knapper v. Cox Communications, Inc. (TCPA) D. Ariz., No. 2:17-cv-00913

Dipuglia v. US Coachways, Inc. (TCPA) S.D. Fla., No. 1:17-cv-23006

Abante Rooter and Plumbing v. Pivotal Payments Inc., d/b/a/ Capital Processing Network and CPN (TCPA)

N.D. Cal., No. 3:16-cv-05486

First Impressions Salon, Inc., et al. v. National Milk Producers Federation, et al.

S.D. Ill., No. 3:13-cv-00454

Raffin v. Medicredit, Inc., et al. C.D. Cal., No. 15-cv-4912


35


Gergetz v. Telenav, Inc. (TCPA) N.D. Cal., No. 5:16-cv-04261

Ajose, et al. v. Interline Brands Inc. (Plumbing Fixtures) M.D. Tenn., No. 3:14-cv-01707

Underwood v. Kohl's Department Stores, Inc., et al. E.D. Pa., No. 2:15-cv-00730

Surrett, et al. v. Western Culinary Institute, et al. Ore. Cir., County of Multnomah, No. 0803-03530

Vergara, et al., v. Uber Technologies, Inc. (TCPA) N.D. Ill., No. 1:15-CV-06972

Watson v. Bank of America Corporation, et al.; Bancroft-Snell et al. v. Visa Canada Corporation, et al.; Bakopanos v. Visa Canada Corporation, et al.; Macaronies Hair Club and Laser Center Inc. operating as Fuze Salon v. BofA Canada Bank, et al.; Hello Baby Equipment Inc. v. BofA Canada Bank and others (Visa and Mastercard Canadian Interchange Fees)

Sup. Ct. of B.C., No. VLC-S-S-112003; Ontario Sup. Ct., No. CV-11-426591; Sup. Ct. of Quebec, No. 500-06-00549-101; Ct. of QB of Alberta, No. 1203-18531; Ct. of QB of Saskatchewan, No. 133 of 2013

In re: Takata Airbag Products Liability Litigation (OEMs – BMW, Mazda, Subaru, and Toyota)

S.D. Fla., MDL No. 2599

In re: Takata Airbag Products Liability Litigation (OEMs – Honda and Nissan)


In re: Takata Airbag Products Liability Litigation (OEM – Ford) S.D. Fla., MDL No. 2599

Poseidon Concepts Corp., et al. (Canadian Securities Litigation) Ct. of QB of Alberta, No. 1301-04364

Callaway v. Mercedes-Benz USA, LLC (Seat Heaters) C.D. Cal., No. 8:14-cv-02011

Hale v. State Farm Mutual Automobile Insurance Company, et al. S.D. Ill., No. 3:12-cv-0660

Farrell v. Bank of America, N.A. (Overdraft) S.D. Cal., No. 3:16-cv-00492

In re: Windsor Wood Clad Window Products Liability Litigation E.D. Wis., MDL No. 2688, No. 16-MD-02688

Wallace, et al, v. Monier Lifetile LLC, et al. Sup. Ct. Cal., No. SCV-16410

In re: Parking Heaters Antitrust Litigation E.D.N.Y., No. 15-MC-0940

Pantelyat, et al. v. Bank of America, N.A., et al. (Overdraft / Uber) S.D.N.Y., No. 16-cv-08964

Falco et al. v. Nissan North America, Inc., et al. (Engine – CA & WA) C.D. Cal., No. 2:13-cv-00686

Alaska Electrical Pension Fund, et al. v. Bank of America N.A., et al. (ISDAfix Instruments)

S.D.N.Y., No. 14-cv-7126

Larson v. John Hancock Life Insurance Company (U.S.A.) Sup. Ct. Cal., No. RG16813803

Larey v. Allstate Property and Casualty Insurance Company W.D. Kan., No. 4:14-cv-04008

Orlander v. Staples, Inc. S.D.N.Y., No. 13-cv-0703

Masson v. Tallahassee Dodge Chrysler Jeep, LLC (TCPA) S.D. Fla., No. 1:17-cv-22967

Gordon, et al. v. Amadeus IT Group, S.A., et al. S.D.N.Y., No. 1:15-cv-05457

Alexander M. Rattner v. Tribe App., Inc., and

Kenneth Horsley v. Tribe App., Inc. S.D. Fla., Nos. 1:17-cv-21344 & 1:14-cv-2311


36


Sobiech v. U.S. Gas & Electric, Inc., i/t/d/b/a Pennsylvania Gas & Electric, et al.

E.D. Pa., No. 2:14-cv-04464

Mahoney v. TT of Pine Ridge, Inc. S.D. Fla., No. 9:17-cv-80029

Ma, et al. v. Harmless Harvest Inc. (Coconut Water) E.D.N.Y., No. 2:16-cv-07102

Reilly v. Chipotle Mexican Grill, Inc. S.D. Fla., No. 1:15-cv-23425

The Financial Oversight and Management Board for Puerto Rico as representative of Puerto Rico Electric Power Authority (“PREPA”) (Bankruptcy)

D. Puerto Rico, No. 17-04780

In re: Syngenta Litigation 4th Jud. Dist. Minn., No. 27-CV-15-3785

T.A.N. v. PNI Digital Media, Inc. S.D. Ga., No. 2:16-cv-132

Lewis v. Flue-Cured Tobacco Cooperative Stabilization Corporation (n/k/a United States Tobacco Cooperative, Inc.)

N.C. Gen. Ct of Justice, Sup. Ct. Div., No. 05 CVS 188, No. 05 CVS 1938

McKnight, et al. v. Uber Technologies, Inc., et al. N.D. Cal., No. 14-cv-05615

Gottlieb v. Citgo Petroleum Corporation (TCPA) S.D. Fla., No. 9:16-cv-81911

Farnham v. Caribou Coffee Company, Inc. (TCPA) W.D. Wis., No. 16-cv-00295

Jacobs, et al. v. Huntington Bancshares Inc., et al. (FirstMerit Overdraft Fees)

Ohio C.P., No. 11CV000090

Morton v. Greenbank (Overdraft Fees) 20th Jud. Dist. Tenn., No. 11-135-IV

Ratzlaff, et al. v. BOKF, NA d/b/a Bank of Oklahoma, et al. (Overdraft Fees)

Dist. Ct. Okla., No. CJ-2015-00859

Klug v. Watts Regulator Company (Product Liability) D. Neb., No. 8:15-cv-00061

Bias v. Wells Fargo & Company, et al. (Broker’s Price Opinions) N.D. Cal., No. 4:12-cv-00664

Greater Chautauqua Federal Credit Union v. Kmart Corp., et al. (Data Breach)

N.D. Ill., No. 1:15-cv-02228

Hawkins v. First Tennessee Bank, N.A., et al. (Overdraft Fees) 13th Jud. Cir. Tenn., No. CT-004085-11

In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation (Bosch Settlement)

N.D. Cal., MDL No. 2672

In re: HSBC Bank USA, N.A. Sup. Ct. N.Y., No. 650562/11

Glaske v. Independent Bank Corporation (Overdraft Fees) Cir. Ct. Mich., No. 13-009983

MSPA Claims 1, LLC v. IDS Property Casualty Insurance Company

11th Jud. Cir. Fla, No. 15-27940-CA-21

In re: Lithium Ion Batteries Antitrust Litigation N.D. Cal., MDL No. 2420, No. 4:13-MD-02420

Chimeno-Buzzi v. Hollister Co. and Abercrombie & Fitch Co. S.D. Fla., No. 14-cv-23120

Small v. BOKF, N.A. D. Colo., No. 13-cv-01125

Forgione v. Webster Bank N.A. (Overdraft Fees) Sup. Ct. Conn., No. X10-UWY-CV-12-6015956-S


37


Swift v. BancorpSouth Bank, as part of In re: Checking Account Overdraft

N.D. Fla., No. 1:10-cv-00090, as part of S.D. Fla, MDL No. 2036

Whitton v. Deffenbaugh Industries, Inc., et al. Gary, LLC v. Deffenbaugh Industries, Inc., et al.

D. Kan., No. 2:12-cv-02247 D. Kan., No. 2:13-cv-02634

In re: Citrus Canker Litigation 11th Jud. Cir., Fla., No. 03-8255 CA 13

In re: Caterpillar, Inc. C13 and C15 Engine Products Liability Litigation

D.N.J., MDL No. 2540

In re: Shop-Vac Marketing and Sales Practices Litigation M.D. Pa., MDL No. 2380

Opelousas General Hospital Authority, A Public Trust, D/B/A Opelousas General Health System and Arklamiss Surgery Center, L.L.C. v. FairPay Solutions, Inc.

27th Jud. D. Ct. La., No. 12-C-1599

Opelousas General Hospital Authority v. PPO Plus, L.L.C., et al. 27th Jud. D. Ct. La., No. 13-C-5380

Russell Minoru Ono v. Head Racquet Sports USA C.D. Cal., No. 2:13-cv-04222

Kerry T. Thibodeaux, M.D. (A Professional Medical Corporation) v. American Lifecare, Inc.

27th Jud. D. Ct. La., No. 13-C-3212

Gattinella v. Michael Kors (USA), Inc., et al. S.D.N.Y., No. 14-civ-5731

In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bar Notice)

Bankr. D. Del., No. 14-10979

Dorothy Williams d/b/a Dot’s Restaurant v. Waste Away Group, Inc.

Cir. Ct., Lawrence Cnty, Ala., No. 42-cv-2012- 900001.00

Kota of Sarasota, Inc. v. Waste Management Inc. of Florida 12th Jud. Cir. Ct., Sarasota Cnty, Fla., No. 2011-CA-008020NC

Steen v. Capital One, N.A., as part of In re: Checking Account Overdraft

E.D. La., No. 2:10-cv-01505 and 1:10-cv-22058, as part of S.D. Fla., MDL No. 2036

Childs, et al. v. Synovus Bank, et al., as part of In re: Checking Account Overdraft


In re: MI Windows and Doors Inc. Products Liability Litigation (Building Products)

D.S.C., MDL No. 2333

Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank, as part of In re: Checking Account Overdraft


Scharfstein v. BP West Coast Products, LLC Ore. Cir., County of Multnomah, No. 1112-17046

Adkins, et al. v. Nestlé Purina PetCare Company, et al. N.D. Ill., No. 1:12-cv-02871

Smith v. City of New Orleans Civil D. Ct., Parish of Orleans, La., No. 2005-05453

Hawthorne v. Umpqua Bank (Overdraft Fees) N.D. Cal., No. 11-cv-06700

Gulbankian, et al. v. MW Manufacturers, Inc. D. Mass., No. 1:10-cv-10392

Costello v. NBT Bank (Overdraft Fees) Sup. Ct. Del Cnty., N.Y., No. 2011-1037

In re American Express Anti-Steering Rules Antitrust Litigation (II) (Italian Colors Restaurant)

E.D.N.Y., MDL No. 2221, No. 11-MD-2221


38


Wong, et al. v. Alacer Corp. (Emergen-C) Sup. Ct. Cal., No. CGC-12-519221

Mello et al. v. Susquehanna Bank, as part of In re: Checking Account Overdraft


In re: Plasma-Derivative Protein Therapies Antitrust Litigation N.D. Ill., No. 09-CV-7666

Simpson v. Citizens Bank (Overdraft Fees) E.D. Mich., No. 2:12-cv-10267

George Raymond Williams, M.D., Orthopedic Surgery, a Professional Medical, LLC, et al. v. Bestcomp, Inc., et al.

27th Jud. D. Ct. La., No. 09-C-5242-B

Simmons v. Comerica Bank, N.A., as part of In re: Checking Account Overdraft


McGann, et al., v. Schnuck Markets, Inc. (Data Breach) Mo. Cir. Ct., No. 1322-CC00800

Rose v. Bank of America Corporation, et al. (TCPA) N.D. Cal., Nos. 5:11-cv-02390 & 5:12-cv-0400

Johnson v. Community Bank, N.A., et al. (Overdraft Fees) M.D. Pa., No. 3:12-cv-01405

National Trucking Financial Reclamation Services, LLC, et al. v. Pilot Corporation, et al.

E.D. Ark., No. 4:13-cv-00250

Price v. BP Products North America N.D. Ill., No. 12-cv-06799

Yarger v. ING Bank D. Del., No. 11-154-LPS

Glube, et al. v. Pella Corporation, et al. (Building Products) Ont. Super. Ct., No. CV-11-4322294-00CP

Fontaine v. Attorney General of Canada (Mistassini Hostels Residential Schools)

Qué. Super. Ct., No. 500-06-000293-056 & No. 550-06-000021-056

Miner v. Philip Morris Companies, Inc., et al. (Light Cigarettes) Ark. Cir. Ct., No. 60CV03-4661

Williams v. SIF Consultants of Louisiana, Inc., et al. 27th Jud. D. Ct. La., No. 09-C-5244-C

Opelousas General Hospital Authority v. Qmedtrix Systems, Inc. 27th Jud. D. Ct. La., No. 12-C-1599-C

Evans, et al. v. TIN, Inc., et al. (Environmental) E.D. La., No. 2:11-cv-02067

Anderson v. Compass Bank, as part of In re: Checking Account Overdraft


Casayuran v. PNC Bank, as part of In re: Checking Account Overdraft


Eno v. M & I Marshall & Ilsley Bank as part of In re: Checking Account Overdraft


Blahut v. Harris, N.A., as part of In re: Checking Account Overdraft


In re: Zurn Pex Plumbing Products Liability Litigation D. Minn., MDL No. 1958, No. 08-md-1958

Saltzman v. Pella Corporation (Building Products) N.D. Ill., No. 06-cv-4481

In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Mastercard & Visa)

E.D.N.Y., MDL No. 1720, No. 05-MD-1720

RBS v. Citizens Financial Group, Inc., as part of In re: Checking Account Overdraft



39


Gessele, et al. v. Jack in the Box, Inc. D. Ore., No. 3:10-cv-960

Vodanovich v. Boh Brothers Construction (Hurricane Katrina Levee Breaches)

E.D. La., No. 05-cv-4191

In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Medical Benefits Settlement)

E.D. La., MDL No. 2179

In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Economic & Property Damages Settlement)

E.D. La., MDL No. 2179

Marolda v. Symantec Corporation (Software Upgrades) N.D. Cal., No. 3:08-cv-05701

Opelousas General Hospital Authority v. FairPay Solutions 27th Jud. D. Ct. La., No. 12-C-1599-C

Fontaine v. Attorney General of Canada (Stirland Lake and Cristal Lake Residential Schools)

Ont. Super. Ct., No. 00-CV-192059 CP

Nelson v. Rabobank, N.A. (Overdraft Fees) Sup. Ct. Cal., No. RIC 1101391

Case v. Bank of Oklahoma, as part of In re: Checking Account Overdraft


Harris v. Associated Bank, as part of In re: Checking Account Overdraft


Wolfgeher v. Commerce Bank, as part of In re: Checking Account Overdraft


McKinley v. Great Western Bank, as part of In re: Checking Account Overdraft


Lawson v. BancorpSouth (Overdraft Fees) W.D. Ark., No. 1:12cv1016

LaCour v. Whitney Bank (Overdraft Fees) M.D. Fla., No. 8:11cv1896

Sachar v. Iberiabank Corporation, as part of In re: Checking Account Overdraft


Williams v. S.I.F. Consultants (CorVel Corporation) 27th Jud. D. Ct. La., No. 09-C-5244-C

Gwiazdowski v. County of Chester (Prisoner Strip Search) E.D. Pa., No. 2:08cv4463

Williams v. Hammerman & Gainer, Inc. (SIF Consultants) 27th Jud. D. Ct. La., No. 11-C-3187-B

Williams v. Hammerman & Gainer, Inc. (Risk Management) 27th Jud. D. Ct. La., No. 11-C-3187-B

Williams v. Hammerman & Gainer, Inc. (Hammerman) 27th Jud. D. Ct. La., No. 11-C-3187-B

Gunderson v. F.A. Richard & Assocs., Inc. (First Health) 14th Jud. D. Ct. La., No. 2004-002417

Delandro v. County of Allegheny (Prisoner Strip Search) W.D. Pa., No. 2:06-cv-00927

Mathena v. Webster Bank, N.A., as part of In re: Checking Account Overdraft

D. Conn, No. 3:10-cv-01448, as part of S.D. Fla., MDL No. 2036

Vereen v. Lowe’s Home Centers (Defective Drywall) Ga. Super. Ct., No. SU10-CV-2267B

Trombley v. National City Bank, as part of In re: Checking Account Overdraft

D.D.C., No. 1:10-CV-00232, as part of S.D. Fla., MDL No. 2036


40


Schulte v. Fifth Third Bank (Overdraft Fees) N.D. Ill., No. 1:09-cv-06655

Satterfield v. Simon & Schuster, Inc. (Text Messaging) N.D. Cal., No. 06-CV-2893

In re: Heartland Data Payment System Inc. Customer Data Security Breach Litigation

S.D. Tex., MDL No. 2046

Coyle v. Hornell Brewing Co. (Arizona Iced Tea) D.N.J., No. 08-CV-2797

Holk v. Snapple Beverage Corporation D.N.J., No. 3:07-CV-03018

Weiner v. Snapple Beverage Corporation S.D.N.Y., No. 07-CV-08742

Gunderson v. F.A. Richard & Assocs., Inc. (Cambridge) 14th Jud. D. Ct. La., No. 2004-002417

Miller v. Basic Research, LLC (Weight-loss Supplement) D. Utah, No. 2:07-cv-00871

In re: Countrywide Customer Data Breach Litigation W.D. Ky., MDL No. 1998

Boone v. City of Philadelphia (Prisoner Strip Search) E.D. Pa., No. 05-CV-1851

Little v. Kia Motors America, Inc. (Braking Systems) N.J. Super. Ct., No. UNN-L-0800-01

Opelousas Trust Authority v. Summit Consulting 27th Jud. D. Ct. La., No. 07-C-3737-B

Steele v. Pergo (Flooring Products) D. Ore., No. 07-CV-01493

Pavlov v. Continental Casualty Co. (Long Term Care Insurance) N.D. Ohio, No. 5:07-cv-2580

Dolen v. ABN AMRO Bank N.V. (Callable CD’s) Ill. Cir. Ct., Nos. 01-L-454 & 01-L-493

In re: Department of Veterans Affairs (VA) Data Theft Litigation D.D.C., MDL No. 1796

In re: Katrina Canal Breaches Consolidated Litigation E.D. La., No. 05-4182

Hilsoft-cv-146


Attachment 2


DECLARATION OF STEPHANIE J. FIERECK, ESQ. ON IMPLEMENTATION OF CAFA NOTICE


TINA THOMPSON and SCOTT DOXEY, onf behalf of themselves and all others similarly situated,

Plaintiffs,

vs.


Defendant.

Case No. 8:19-cv-0919-MAD-CFH


I, STEPHANIE J. FIERECK, ESQ., hereby declare and state as follows:

1. My name is Stephanie J. Fiereck, Esq. I am over the age of 21 and I have

personal knowledge of the matters set forth herein, and I believe them to be true and correct.

2. I am the Legal Notice Manager for Epiq Class Action & Claims Solutions, Inc.

(“Epiq”), a firm that specializes in designing, developing, analyzing and implementing large-scale,

un-biased, legal notification plans.

3. Epiq is a firm with more than 20 years of experience in claims processing and

settlement administration. Epiq’s class action case administration services include coordination

of all notice requirements, design of direct-mail notices, establishment of fulfillment services,

receipt and processing of opt-outs, coordination with the United States Postal Service, claims

database management, claim adjudication, funds management and distribution services.

4. The facts in this Declaration are based on what I personally know, as well as

information provided to me in the ordinary course of my business by my colleagues at Epiq.



2

CAFA NOTICE IMPLEMENTATION

5. At the direction of counsel for the Defendant Community Bank, N.A., one

official, the Office of the Comptroller of the Currency (OCC) was identified to receive the

CAFA notice.

6. On January 15, 2021, Epiq sent one CAFA Notice Package (“Notice”) via United

Parcel Service (“UPS”) to the Office of the Comptroller of the Currency (OCC). The CAFA

Notice Service List is included hereto as Attachment 1.

7. The materials sent to the Office of the Comptroller of the Currency (OCC)

included a cover letter, which provided notice of the proposed settlement of the above-captioned

case. The cover letter is included hereto as Attachment 2.

8. The cover letter was accompanied by a CD, which included the following:

a. Class Action Complaint (with exhibits)

b. Amended Class Action Complaint (with exhibits);

c. Settlement Agreement and Releases (with exhibits);

d. Proposed Forms of Notice (Email/Postcard Notice and Long Form Notice);

e. Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement;

f. Unopposed Memorandum of Law in Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement;

g. Exhibit A to Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement;

h. Exhibit B to Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement;

i. Exhibit C Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement;

j. Class Member Report; and

k. Class Member Geographic Analysis Report.



3

I declare under penalty of perjury that the foregoing is true and correct. Executed on

January 15, 2021.

Stephanie J. Fiereck, Esq.


Attachment 1


CAFA Notice Service List

UPS

Company FullName Address1 Address2 City State Zip

Office of the Comptroller of the Currency Greg Taylor 400 7th Street SW Washington DC 20219


Attachment 2


NOTICE ADMINISTRATOR HILSOFT NOTIFICATIONS

10300 SW Allen Blvd Beaverton, OR 97005

P 503-350-5800 [email protected]

January 15, 2021

VIA UPS

Class Action Fairness Act – Notice to Federal and State Officials

Dear Sir or Madam:

Pursuant to the “Class Action Fairness Act,” (“CAFA”), 28 U.S.C. §1715, please find enclosed information from Community Bank, N.A. relating to the proposed settlement of a class action lawsuit. Community Bank, N.A. denies any wrongdoing or liability whatsoever, but has decided to settle this action solely in order to eliminate the burden, expense, and uncertainties of further litigation.

Case: Thompson and Doxey v. Community Bank, N.A., Case No. 8:19-cv-00919.

Court: United States District Court, Northern District of New York.

Defendant: Community Bank, N.A.

Date Settlement Filed with Court: January 14, 2021.

Judicial Hearing Scheduled: At this time, a Preliminary Approval Hearing and a FinalApproval Hearing have not been scheduled by the Court. At the time of the hearings, thesematters may be continued without further notice.

Documents Enclosed: Copies of the following documents are contained on the enclosed CD:

1. Class Action Complaint (with exhibits)

2. Amended Class Action Complaint (with exhibits);

3. Settlement Agreement and Releases (with exhibits);

4. Proposed Forms of Notice (Email/Postcard Notice and Long Form Notice);

5. Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class ActionSettlement;

6. Unopposed Memorandum of Law in Support of Plaintiffs’ Unopposed Motion forPreliminary Approval of Class Action Settlement;

7. Exhibit A to Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval ofClass Action Settlement;

8. Exhibit B to Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval ofClass Action Settlement;


NOTICE ADMINISTRATOR

HILSOFT NOTIFICATIONS 10300 SW Allen Blvd Beaverton, OR 97005

P 503-350-5800 [email protected]

9. Exhibit C Notice of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class

Action Settlement;

10. Class Member Report; and

11. Class Member Geographic Analysis Report.

Very truly yours, Notice Administrator Enclosures


Attachment 3


Tina Thompson and Scott Doxey v. Community BankAttn: Settlement AdministratorP.O. Box 2698Portland, OR 97208-2698

<<MAIL ID>><<NAME 1>><<NAME 2>><<ADDRESS LINE 1>><<ADDRESS LINE 2>><<ADDRESS LINE 3>><<ADDRESS LINE 4>><<ADDRESS LINE 5>><<CITY, STATE ZIP>><<COUNTRY>>



READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT MAY AFFECT

YOUR RIGHTS!

BARCODE NO-PRINT

ZONE

FIRST-CLASS MAILU.S. POSTAGE

PAIDPortland, OR

PERMIT NO. 2882

Barcode No-Print Zone


IF YOU HAVE OR HAD A CHECKING ACCOUNT WITH COMMUNITY BANK, N.A. AND YOU WERE CHARGED CERTAIN OVERDRAFT FEES BETWEEN

JANUARY 1, 2015, AND DECEMBER 31, 2019, THEN YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT AND/OR FORGIVENESS

OF CERTAIN UNCOLLECTED OVERDRAFT FEES. The United States District Court for the Northern District of New York has authorized this Notice; it is not a solicitation from a lawyer.You may be a member of the Settlement Class in Thompson, et al. v. Community Bank, N.A., in which the plaintiffs allege that defendant Community Bank, N.A. (“Defendant”) unlawfully assessed certain Relevant Overdraft Fees between January 1, 2015, and December 31, 2019. If you are a member of the Settlement Class and if the Settlement is approved, you may be entitled to receive a cash payment from the $2,850,000.00 Settlement Fund and/or the forgiveness of Uncollected Overdraft Fees, benefits established by the Settlement. If you are a member of the Settlement Class, you will receive a payment from the Settlement Fund so long as you do not opt out of or exclude yourself from the Settlement. You do not have to do anything to be entitled to a payment from the Settlement Fund. The Court has preliminarily approved this Settlement. It will hold a Final Approval Hearing in this case on Wednesday, August 25, 2021. At that hearing, the Court will consider whether to grant Final Approval to the Settlement, and whether to approve payment from the Settlement Fund of up to $5,000.00 in a Service Award to each Class Representative, up to 33.33% of the Value of the Settlement as attorneys’ fees, and reimbursement of costs to the attorneys and the Settlement Administrator. If the Court grants Final Approval of the Settlement and you do not request to be excluded from the Settlement, you will release your right to bring any claim covered by the Settlement. In exchange, Defendant has agreed to issue a credit to your Account, a cash payment to you if you are no longer a customer, and/or to forgive certain Relevant Overdraft Fees. To obtain a Long Form Notice and other important documents, please visit CommunityOverdraftSettlement.com. Alternatively, you may call 1 (800) 578-2974. If you do not want to participate in this Settlement—you do not want to receive a cash payment and/or the forgiveness of Uncollected Overdraft Fees, and you do not want to be bound by any judgment entered in this case—you may exclude yourself by submitting an opt-out request postmarked no later than Monday, July 26, 2021. If you want to object to this Settlement because you think it is not fair, adequate, or reasonable, you may object by submitting an objection postmarked no later than Monday, July 26, 2021. You may learn more about the opt-out and objection procedures by visiting CommunityOverdraftSettlement.com or by calling 1 (800) 578-2974.

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Attachment 4


1

From: [email protected] on behalf of NoReply_communityoverdraftseSent: Thursday, May 20, 2021 2:39 PMTo:Subject: HTML Sample -- Legal Notice of Class Action Settlement


NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT MAY AFFECT YOUR

RIGHTS!

IF YOU HAVE OR HAD A CHECKING ACCOUNT WITH COMMUNITY BANK, N.A. AND YOU WERE CHARGED CERTAIN OVERDRAFT FEES BETWEEN JANUARY 1, 2015, AND DECEMBER 31, 2019, THEN YOU

MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT AND/OR FORGIVENESS OF CERTAIN UNCOLLECTED

OVERDRAFT FEES.


You may be a member of the Settlement Class in Thompson, et al. v. Community Bank, N.A., in which the plaintiffs allege that defendant Community Bank, N.A. (“Defendant”) unlawfully assessed certain RelevantOverdraft Fees between January 1, 2015, and December 31, 2019. If you are a member of the SettlementClass and if the Settlement is approved, you may be entitled to receive a cash payment from the $2,850,000.00Settlement Fund and/or the forgiveness of Uncollected Overdraft Fees, benefits established by the Settlement.If you are a member of the Settlement Class, you will receive a payment from the Settlement Fund so long asyou do not opt out of or exclude yourself from the Settlement. You do not have to do anything to be entitledto a payment from the Settlement Fund.

The Court has preliminarily approved this Settlement. It will hold a Final Approval Hearing in this case onWednesday, August 25, 2021. At that hearing, the Court will consider whether to grant Final Approval to theSettlement, and whether to approve payment from the Settlement Fund of up to $5,000.00 in a Service Awardto each Class Representative, up to 33.33% of the Value of the Settlement as attorneys’ fees, and reimbursement of costs to the attorneys and the Settlement Administrator. If the Court grants Final Approvalof the Settlement and you do not request to be excluded from the Settlement, you will release your right tobring any claim covered by the Settlement. In exchange, Defendant has agreed to issue a credit to yourAccount, a cash payment to you if you are no longer a customer, and/or to forgive certain Relevant OverdraftFees.

To obtain a Long Form Notice and other important documents, please visit CommunityOverdraftSettlement.com. Alternatively, you may call 1 (800) 578-2974.


2

If you do not want to participate in this Settlement—you do not want to receive a cash payment and/or theforgiveness of Uncollected Overdraft Fees, and you do not want to be bound by any judgment entered in thiscase—you may exclude yourself by submitting an opt-out request postmarked no later than Monday, July 26,2021. If you want to object to this Settlement because you think it is not fair, adequate, or reasonable, youmay object by submitting an objection postmarked no later than Monday, July 26, 2021. You may learn more about the opt-out and objection procedures by visiting CommunityOverdraftSettlement.com or by calling 1(800) 578-2974.

If you would prefer not to receive further messages from this sender, please Click Here and confirm your request.


Attachment 5


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Tina Thompson and Scott Doxeyv.

Community Bank, N.A.


READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT MAY AFFECT YOUR RIGHTS!

IF YOU HAVE OR HAD A CHECKING ACCOUNT WITH COMMUNITY BANK, N.A (“DEFENDANT”) AND YOU WERE CHARGED CERTAIN OVERDRAFT FEES BETWEEN JANUARY 1, 2015, AND

DECEMBER 31, 2019, THEN YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT.


SUMMARY OF YOUR OPTIONS AND THE LEGAL EFFECT OF EACH OPTION

DO NOTHING AND RECEIVE A PAYMENT OR FORGIVENESS OF UNCOLLECTED OVERDRAFT FEES

If you don’t do anything, you will receive a payment from the Settlement Fund and/or forgiveness of Uncollected Overdraft Fees so long as you do not opt out of or exclude yourself from the settlement (described in the next box).

EXCLUDE YOURSELF FROM THE SETTLEMENT; RECEIVE NO PAYMENT BUT RELEASE NO CLAIMS

You can choose to exclude yourself from the Settlement or “opt out.” This means you choose not to participate in the Settlement. You will keep your individual claims against Defendant but you will not receive a payment for Relevant Overdraft Fees and/or forgiveness of Uncollected Overdraft Fees. If you exclude yourself from the Settlement but want to recover against Defendant, you will have to file a separate lawsuit or claim.

OBJECT TO THE SETTLEMENT

You can file an objection with the Court explaining why you believe the Court should reject the Settlement. If your objection is overruled by the Court, then you may receive a payment and/or forgiveness of Uncollected Overdraft Fees and you will not be able to sue Defendant for the claims asserted in this litigation. If the Court agrees with your objection, then the Settlement may not be approved.

These rights and options—and the deadlines to exercise them—along with the material terms of the Settlement are explained in this Notice.

BASIC INFORMATION

1. What is this lawsuit about?

The lawsuit that is being settled is entitled Tina Thompson and Scott Doxey v. Community Bank, N.A. It is pending in the United States District Court for the Northern District of New York, Case No. 8:19-cv-0919. The case is a “class action.” That means that the “Class Representatives,” Tina Thompson and Scott Doxey, are individuals who are acting on behalf of current and former customers who were assessed certain Relevant Overdraft Fees between January 1, 2015, and December 31, 2019. The Class Representatives have asserted a claim for breach of the Account agreement.

Defendant does not deny it charged the fees the Class Representatives are complaining about, but contends it did so properly and in accordance with the terms of its agreements and applicable law. Defendant therefore denies that its practices give rise to claims for damages by the Class Representatives or any Settlement Class members.


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2. Why did I receive this Notice of this lawsuit?

You received this Notice because Defendant’s records indicate that you were charged one or more Relevant Overdraft Fees that are the subject of this action. The Court directed that this Notice be sent to all Settlement Class members because each such member has a right to know about the proposed settlement and the options available to him or her before the Court decides whether to approve the Settlement.

3. Why did the parties settle?

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Class Representatives’ and their lawyers’ job to identify when a proposed settlement offer is good enough that it justifies recommending settling the case instead of continuing to trial. In a class action, the Class Representatives’ lawyers, known as Class Counsel, make this recommendation to the Class Representatives. The Class Representatives have the duty to act in the best interests of the class as a whole and, in this case, it is their belief, as well as Class Counsels’ opinion, that this Settlement is in the best interest of all Settlement Class Members.

There is legal uncertainty about whether a judge or a jury will find that Defendant was contractually and otherwise legally obligated not to assess the fees at issue. And even if it was contractually wrong to assess these fees, there is uncertainty about whether the Class Representatives’ claims are subject to other defenses that might result in no or less recovery to Settlement Class Members. Even if the Class Representatives were to win at trial, there is no assurance that the Settlement Class Members would be awarded more than the current Settlement amount and it may take years of litigation before any payments would be made. By settling, the Settlement Class Members will avoid these and other risks and the delays associated with continued litigation.

While Defendant disputes the allegations in the lawsuit and denies any liability or wrongdoing, it enters into the Settlement solely to avoid the expense, inconvenience, and distraction of further proceedings in the litigation.

WHO IS IN THE SETTLEMENT

4. How do I know if I am part of the Settlement?

If you received this Notice, then Defendant’s records indicate that you are a member of the Settlement Class who is entitled to receive a payment or credit to your Account.

YOUR OPTIONS

5. What options do I have with respect to the Settlement?

You have three options: (1) do nothing and you will receive a payment according to the terms of this Settlement; (2) exclude yourself from the Settlement (“opt out” of it); or (3) participate in the Settlement but object to it. Each of these options is described in a separate section below.

6. What are the critical deadlines?

There is no deadline to receive a payment. If you do nothing, then you will get a payment.

The deadline for sending a letter to exclude yourself from or opt out of the Settlement is Monday, July 26, 2021.

The deadline to file an objection with the Court is Monday, July 26, 2021.

7. How do I decide which option to choose?

If you do not like the Settlement and you believe that you could receive more money by pursuing your claims on your own (with or without an attorney that you could hire) and you are comfortable with the risk that you might lose your case or get less than you would in this Settlement, then you may want to consider opting out.

If you believe the Settlement is unreasonable, unfair, or inadequate and the Court should reject the Settlement, you can object to the Settlement terms. The Court will decide if your objection is valid. If the Court agrees, then the Settlement may not be approved and no payments will be made to you or any other member of the Settlement Class.


AD4793 v.06

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If your objection (and any other objection) is overruled, and the Settlement is approved, then you may still get a payment and/or forgiveness of Uncollected Overdraft Fees, and will be bound by the Settlement.

If you want to participate in the Settlement, then you don’t have to do anything; you will receive a payment if the Settlement is approved by the Court.

8. What has to happen for the Settlement to be approved?

The Court has to decide that the Settlement is fair, reasonable, and adequate before it will approve it. The Court already has decided to provide Preliminary Approval of the Settlement, which is why you received a Notice. The Court will make a final decision regarding the Settlement at a “Fairness Hearing” or “Final Approval Hearing,” which is currently scheduled for Wednesday, August 25, 2021.

THE SETTLEMENT PAYMENT

9. How much is the Settlement?

Defendant has agreed to create a Settlement Fund of $2,850,000.00. It will also forgive Uncollected Overdraft Fees totaling $610,833.02, as defined in the Settlement Agreement.

As discussed separately below, attorneys’ fees, litigation costs, and the costs paid to a third-party Settlement Administrator to administer the Settlement (including mailing and emailing Notice) will be paid out of the Settlement Fund. The Net Settlement Fund will be divided among all Settlement Class Members entitled to Settlement Class Member Payments based on formulas described in the Settlement Agreement.

10. How much of the Settlement Fund will be used to pay for attorney fees and costs?

Class Counsel will request the Court to approve attorneys’ fees of not more than 33.33% of the Value of the Settlement and will request that it be reimbursed for litigation costs incurred in prosecuting the case. The Court will decide the amount of the attorneys’ fees and costs based on a number of factors, including the risk associated with bringing the case on a contingency basis, the amount of time spent on the case, the amount of costs incurred to prosecute the case, the quality of the work, and the outcome of the case.

11. How much of the Settlement Fund will be used to pay the Class Representatives a Service Award?

Class Counsel will request that the Class Representatives be paid a service award in the amount of $5,000.00 each for their work in connection with this case. The Service Awards must be approved by the Court.

12. How much of the Settlement Fund will be used to pay the Settlement Administrator’s expenses?

The Settlement Administrator estimates its expenses at $81,371.00.

13. How much will my payment be?

The balance of the Settlement Fund after attorneys’ fees and costs, the service award and the Settlement Administrator’s fees, also known as the Net Settlement Fund, will be divided among all Settlement Class Members entitled to Settlement Class Member Payments in accordance with the formulas outlined in the Settlement Agreement. Current customers of Defendant will receive a credit to their Accounts for the amount they are entitled to receive. Former customers of Defendant shall receive a check from the Settlement Administrator. Settlement Class Members entitled to forgiveness of Uncollected Overdraft Fees shall receive this benefit automatically.

14. Do I have to do anything if I want to participate in the Settlement?

No. If you received this Notice, then you may be entitled to receive a payment for a Relevant Overdraft Fee and/or forgiveness of Uncollected Overdraft Fees without having to make a claim, unless you choose to exclude yourself from the Settlement, or “opt out.”


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15. When will I receive my payment?

The Court will hold a Final Approval Hearing on Wednesday, August 25, 2021 at 12:30PM to consider whether the Settlement should be approved. If the Court approves the Settlement, then payments should be made or credits should be issued approximately 90 days later. However, if someone objects to the Settlement, and the objection is sustained, then there is no Settlement. Even if all objections are overruled and the Court approves the Settlement, an objector could appeal, and it might take months or even years to have the appeal resolved, which would delay any payment.

EXCLUDING YOURSELF FROM THE SETTLEMENT

16. How do I exclude myself from the Settlement?

If you do not want to receive a payment or if you want to keep any right you may have to sue Defendant for the claims alleged in this lawsuit, then you must exclude yourself, or “opt out.”

To opt out, you must send a letter to the Settlement Administrator that you want to be excluded. Your letter can simply say “I hereby elect to be excluded from the Settlement in the Tina Thompson and Scott Doxey v. Community Bank, N.A. class action. Be sure to include your name, the last four digits of your account number(s) or former account number(s), address, telephone number, and email address. Your exclusion or opt out request must be postmarked by Monday, July 26, 2021 and sent to:

Tina Thompson and Scott Doxey v. Community BankAttn:

Settlement AdministratorP.O. Box 2698

Portland, OR 97208-2698

17. What happens if I opt out of the Settlement?

If you opt out of the Settlement, you will preserve and not give up any of your rights to sue Defendant for the claims alleged in this case. However, you will not be entitled to receive a payment from the Settlement.

OBJECTING TO THE SETTLEMENT

18. How do I notify the Court that I do not like the Settlement?

You can object to the Settlement or any part of it that you do not like IF you do not exclude yourself, or opt out, from the Settlement. (Settlement Class Members who exclude themselves from the Settlement have no right to object to how other Settlement Class Members are treated.) To object, you must send a written document by mail or private courier (e.g., Federal Express) to the Clerk of Court, Settlement Administrator, Class Counsel, and Defendant’s Counsel at the addresses below. Your objection must include the following information:



c. all grounds for the objection, accompanied by any legal support for the objection known to the objector or objector’s counsel;

d. the number of times the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders related to or ruling upon the objector’s prior objections that were issued by the trial and appellate courts in each listed case;

e. the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application;


AD4795 v.06

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f. the number of times in which the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that of the filed objection, the caption of each case in which counsel or the firm has made such objection and a copy of any orders related to or ruling upon counsel’s or the counsel’s law firm’s prior objections that were issued by the trial and appellate courts in each listed case in which the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the preceding five years;

g. any and all agreements that relate to the objection or the process of objecting—whether written or oral—between objector or objector’s counsel and any other person or entity;

h. the identity of all counsel (if any) representing the objector who will appear at the Final Approval Hearing;

i. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;

j. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and


All objections must be postmarked no later than Monday, July 26, 2021, and must be mailed to the Settlement Administrator as follows:

CLERK OF COURTSETTLEMENT

ADMINISTRATOR CLASS COUNSEL DEFENDANT’S COUNSELClerk of the United States District Court for the Northern District of New York, which is located at 445 Broadway, Albany, NY 12207

Tina Thompson and Scott Doxey v. Community Bank, N.A. Attn:Settlement AdministratorP.O. Box 2698Portland, OR 97208-2698

Jeffrey D. KalielSophia Goren GoldKaliel PLLC1875 Connecticut Ave. NW10th FloorWashington, DC 20009

and

Jeffrey OstrowJonathan M. StreisfeldKopelowitz Ostrow P.A.1 West Las Olas Blvd.Suite 500Fort Lauderdale, FL 33301

Sturt M. RichterAndrew J. DemkoKatten Muchin Rosenman LLP2029 Century Park East, Suite 2600Los Angeles, CA 90067

19. What is the difference between objecting and requesting exclusion from the Settlement?

Objecting is telling the Court that you do not believe the Settlement is fair, reasonable, and adequate for the Settlement Class, and asking the Court to reject it. You can object only if you do not opt out of the Settlement. If you object to the Settlement and do not opt out, then you are entitled to a payment for a Relevant Overdraft Fee and/or forgiveness of Uncollected Overdraft Fees if the Settlement is approved, but you will release claims you might have against Defendant. Excluding yourself or opting out is telling the Court that you do not want to be part of the Settlement and do not want to receive a payment for a Relevant Overdraft Fee or forgiveness of Uncollected Overdraft Fees, or release claims you might have against Defendant for the claims alleged in this lawsuit.

20. What happens if I object to the Settlement?

If the Court sustains your objection, or the objection of any other member of the Settlement Class, then there is no Settlement. If you object, but the Court overrules your objection and any other objection(s), then you will be part of the Settlement.


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THE COURT’S FINAL APPROVAL HEARING

21. When and where will the Court decide whether to approve the Settlement?

The Court will hold a Final Approval or Fairness Hearing on Wednesday, August 25, 2021 at the United States District Court for the Northern District of New York, James T. Foley U.S. Courthouse, which is located at 445 Broadway, Courtroom 5, Albany, New York 12207. At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. The Court may also decide how much to award Class Counsel for attorneys’ fees and litigation costs and the amount of the Service Awards to the Class Representatives. The hearing may be virtual, in which case the instructions to participate shall be posted on the website at CommunityOverdraftSettlement.com.

22. Do I have to come to the hearing?

No. Class Counsel will answer any questions the Court may have. You may attend if you desire to do so. If you have submitted an objection, then you may want to attend.

23. May I speak at the hearing?

If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must include with your objection, described in Question 18, above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

THE LAWYERS REPRESENTING YOU

24. Do I have a lawyer in this case?

The Court ordered that the lawyers and their law firms referred to in this notice as “Class Counsel” will represent you and the other Settlement Class members.

25. Do I have to pay the lawyer for accomplishing this result?

No. Class Counsel will be paid directly from the Settlement Fund.

26. Who determines what the attorneys’ fees will be?

The Court will be asked to approve the amount of attorneys’ fees at the Fairness Hearing. Class Counsel will file an application for attorneys’ fees and costs and will specify the amount being sought as discussed above. You may review a physical copy of the fee application at the website established by the Settlement Administrator, or by requesting the court record online from the United States District Court for the Northern District of New York at https://eservices.archives.gov/orderonline.

GETTING MORE INFORMATION

This Notice only summarizes the proposed Settlement. More details are contained in the Settlement Agreement, which can be viewed/obtained online at CommunityOverdraftSettlement.com or at the Office of the Clerk of the United States District Court for the Northern District of New York, which is located at 445 Broadway, Albany, New York 12207, by asking for the Court file containing the Motion For Preliminary Approval of Class Settlement (the Settlement Agreement is attached to the motion) or by obtaining a copy online at https://eservices.archives.gov/orderonline.

For additional information about the Settlement and/or to obtain copies of the Settlement Agreement, or to change your address for purposes of receiving a payment, you should contact the Settlement Administrator as follows:

Tina Thompson and Scott Doxey v. Community Bank, N.A.Attn:Settlement AdministratorP.O. Box 2698Portland, OR 97208-2698


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For more information, you also can contact the Class Counsel as follows:

Jeffrey D. KalielSophia Goren GoldKaliel PLLC1875 Connecticut Ave. NW10th FloorWashington, DC [email protected]@kalielpllc.com

Jeffrey OstrowJonathan M. StreisfeldKopelowitz Ostrow P.A.1 West Las Olas BoulevardSuite 500Fort Lauderdale, FL 33301954-525-4100Fax: [email protected]@kolawyers.com

PLEASE DO NOT CONTACT THE COURT OR ANY REPRESENTATIVE OF DEFENDANT CONCERNING THIS NOTICE OR THE SETTLEMENT.


EXHIBIT D


000118/01339188_1 1




situated,

Plaintiffs,

vs.


Defendant.


[PROPOSED] FINAL APPROVAL ORDER APPROVING

CLASS ACTION SETTLEMENT AND GRANTING APPLICATION FOR ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS

I. INTRODUCTION

On June 26, 2019, this Action1 was filed against Defendant Community Bank, alleging multiple

causes of action stemming from Community Bank’s policy regarding certain Overdraft Fees. See Dkt.

No. 1. On November 15, 2019, Defendant moved to dismiss the complaint. Dkt. No. 35. On

December 15, 2019, a motion to amend the complaint was filed, adding Plaintiffs, Tina Thompson

and Scott Doxey. Dkt. No. 39. On February 18, 2020, the Court granted in part and denied in part

Plaintiff’s motion to amend the complaint and granted in part and denied in part Defendant’s motion

to dismiss. Former Plaintiff Charles Kelly’s individual claims were dismissed and leave to amend was

granted. Dkt. No. 41. On February 28, 2020, Plaintiffs Thompson and Doxey filed an Amended

Complaint alleging breach of contract. See Dkt. No. 42. The parties also participated in formal

discovery. Thereafter, the Parties engaged in settlement discussions, including attending a mediation.

1 All capitalized terms herein have the same meaning as those terms defined in the Settlement Agreement.


000118/01339188_1 2

Further negotiations resulted in the Parties’ Settlement Agreement.

On January 14, 2021, Plaintiffs filed a motion for Preliminary Approval. See Dkt. No. 63. On

May 10, 2021, the Court granted Preliminary Approval and directed that Notice be sent to Settlement

Class members. See Dkt. No. 65. On August 25, 2021, the Court held a Final Approval Hearing, during

which it signaled its intent to approve the Settlement and requested attorneys’ fees, costs, and Services

Awards, and indicated that a written decision would follow.

As set forth below, the Court hereby grants Plaintiffs’ Unopposed Motion for Final Approval

of Class Action Settlement and Application for Attorneys’ Fees and Costs and Service Awards.

II. BACKGROUND

A. Factual Allegations

This Action seeks monetary damages, restitution, and declaratory relief due to Defendant’s

policy and practice of assessing APPSN Fees on transactions when there was a sufficient available

balance in a customer’s account at the time the transaction was authorized, but an insufficient available

balance at the time the transaction was presented to the Defendant for payment and posted to the

customer’s account. This Action further claims that Defendant improperly assessed Account

Verification Fees, meaning Overdraft Fees as a result of a verification process on the customer’s

Account that resulted in no change to their account balances. See Dkt. No. 42 at ¶ 1. Plaintiffs allege

that assessment of such fees violated the agreement between Defendant and Plaintiffs. See id.

B. Settlement Negotiations

The Court ordered the Parties to attend mediation. Dkt. No. 46. On October 14, 2020, the

Parties mediated before Professor Eric D. Green, a nationally-renowned mediator with substantial

experience mediating consumer banking related claims. The mediation did not result in settlement,

but after further negotiations, the Parties agreed to resolve the Action.

On January 14, 2021, Plaintiffs filed their Unopposed Motion for Preliminary Approval of


000118/01339188_1 3

Class Action Settlement. See Dkt. No. 63. Plaintiffs requested, among other things, that the Court

grant Preliminary Approval of the Settlement and certify the Settlement Class for the settlement

purposed. See id. at ¶25. On May 6, 2021, the Court granted Preliminary Approval. See Dkt. No. 65.

C. CAFA Notice

On January 15, 2021, the Settlement Administrator sent notice packets to federal authorities

as required by the Class Action Fairness Act (“CAFA”). See 28 U.S.C. § 1715(d). The 90-day CAFA

Notice period concluded on April 15, 2021.

D. Summary of the Settlement Terms

1. The Value of the Settlement

The total Value of the Settlement is $3,460,833.02 consisting of a cash Settlement Fund of

$2,850,000.00 and $610,833.02 in forgiven Uncollected Overdraft Fees. See Dkt. No. 63-2 at § 52.

Settlement Class Members Payments shall be distributed from the Net Settlement Fund. See Dkt. No.

63-2at § 51. Further, the Settlement Fund shall cover any Court approved attorneys’ fees and costs

awarded to Class Counsel, any Court approved Service Award to the Class Representatives, and the

Settlement Administration Costs. See id. at § 33.

2. Settlement Classes and Releases

There are two classes in this Settlement:

APPSN Fee Class - Current or former customers of Defendant who were assessed APPSN Fees from January 1, 2015 to December 31, 2019. Account Verification Fee Class - Current or former customers of Defendant who were assessed Account Verification Fees from January 1, 2015 to December 31, 2019.

See id. at §§ 14, 19. All Settlement Class members who did not timely opt-out of the Settlement will

release Defendant from all claims that arise out of and relate to the facts and claims alleged in the

Action. See id. at § XI. In addition, Plaintiffs will provide a general release, including a release of

unknown claims. See id.


000118/01339188_1 4

3. Allocation Formula

Of the $2,850,000.00 cash in the Settlement Fund, $2,830,000.00 (99.3%) shall be allocated to

the APPSN Fee Class and $20,000.00 (.7%) to the Account Verification Fee Class. See id. at § 76(d).

If applicable, Settlement Class Members may receive payments as members of the APPSN Fee Class

and the Account Verification Fee Class. Id. Based on this allocation, Settlement Class Member

Payments from the Net Settlement Fund shall be calculated as follows:

i. Settlement Class Members of the APPSN Fee Class shall be paid per incurred

APPSN Fee calculated as follows: (0.993 of the Net Settlement Fund/Total APPSN Fees) x

Total number of APPSN Fees charged to and paid by each APPSN Fee Class member; and

ii. Settlement Class Members of the Account Verification Fee Class shall be paid

per incurred Account Verification Fee calculated as follows: (0.007 of the Net Settlement

Fund/Total Account Verification Fees) x Total number of Account Verification Fees charged

to and paid by each Account Verification Fee Class member.

Id. All Settlement Class Members who are Current Account Holders at the time of distribution will be

paid by direct deposit into their Accounts. See id. Settlement Class Members who are Past Account

Holders at the time of the distribution shall be sent a check by the Settlement Administrator at the

address used to provide the Notice, or at such other address as designated by the Settlement Class

Member. See id. No portion of the Settlement Fund will revert to Defendant. See id.

4. Attorneys’ Fees and Costs

Class Counsel have requested an award of attorneys’ fees in the amount of $1,153,610.00,

which constitutes 33.33% of the Value of the Settlement here. Additionally, Class Counsel have

requested reimbursement of $12,992.70 in costs incurred to be paid from the Settlement Fund.

5. Settlement Administration

To facilitate the logistics of executing this Settlement, the Parties agreed to the appointment


000118/01339188_1 5

of Epiq Class Action and Claims Solutions, Inc to serve as the Settlement Administrator. The

Settlement Administrator shall receive up to $81,371.00 in fees and costs from the Settlement Fund.

The Notice advised Settlement Class members of their right to object or opt-out of the

Settlement and explained how to do so. There have been zero objections, and only one Settlement

Class member has opted-out of the settlement. See attached Exhibit A.

Prior to distributing Notice to the Settlement Class members, the Settlement Administrator

established a website, www.CommunityOverdraftSettlement.com, as well as a toll-free line that Settlement

Class members could access or call for any questions or additional information about the proposed

Settlement, including the Long Form Notice. Once Settlement Class members were identified via

Defendant’s business records, the Notices attached to the Agreement and approved by the Court were

sent to each Settlement Class member. For Current Account Holders who have elected to receive

bank communications via email, Email Notice was delivered. To Past Defendant Account Holders,

and Current Account Holders who have not elected to receive communications by email or for whom

the Defendant does not have a valid email address, Postcard Notice was delivered by U.S. Mail.

The Settlement Administrator successfully mailed the 32,547 Postcard Notice. The

Settlement Administrator successfully sent 14,550 Email Notices, including emails to those Settlement

Class members who elected to receive Notices by mail, but whose mailing address was not accurate.

As a result of the Notice Program, 95% of the 46,404 Settlement Class member accounts received

Notice of the Settlement.

III. DISCUSSION

A. Class Certification

1. Rule 23

“Before approving a class settlement agreement, a district court must first determine whether

the requirements for class certification in Rule 23(a) and (b) have been satisfied.” In re Am. Int’l Grp.,


000118/01339188_1 6

Inc. Sec. Litig. (In re AIG), 689 F.3d 229, 238 (2d Cir. 2012). “Confronted with a request for settlement-

only class certification, a district court need not inquire whether the case, if tried, would present

intractable management problems” precluding findings of predominance under Rule 23(b)(3). Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997); see also In re AIG, 689 F.3d at 242 (“[M]anageability

concerns do not stand in the way of certifying a settlement class”). “But other specifications of the

Rule — those designed to protect absentees by blocking unwarranted or overbroad class definitions

— demand undiluted, even heightened, attention in the settlement context.” Amchem, 521 U.S. at 620.

On May 6, 2021, the Court preliminarily certified the Settlement Class. See Dkt. No. 65.

Plaintiffs now request that the Court certify the Settlement Class (consisting of the APPSN Fee Class

and the Account Verification Fee Class) for purposes of effectuating the settlement.

Rule 23(a) requires that “(1) the class is so numerous that joinder of all members is impractical;

(2) there are questions of law or fact common to the class; (3) the claims or defenses of the

representative parties are typical of the claims or defenses of the class; and (4) the representative parties

will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). A class action may

be maintained if the requirements of Rule 23(a) are satisfied and, as relevant here, “the court finds that

the questions of law or fact common to class members predominate over any questions affecting only

individual members, and that a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In the Second Circuit, “‘Rule 23 is

given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility’ in

deciding whether to grant certification.” Story v. SEFCU, No. 1:18-CV-764 (MAD/DJS), 2021 U.S.

Dist. LEXIS 34909, at *13 (N.D.N.Y. Feb. 25, 2021) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377

(2d Cir. 1997)).

2. Numerosity

It is apparent that the proposed class satisfies the numerosity requirement. “[N]umerosity is


000118/01339188_1 7

presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.

1995). As such, numerosity here is easily satisfied because there are approximately 46,404 Settlement

Class members.

3. Commonality

The proposed Settlement Class also satisfies the commonality requirement, the purpose of

which is to test “whether the named plaintiff’s claim and the class claims are so interrelated that the

interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of

Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Although the claims need not be identical, they must share

common questions of fact or law. See Frank v. Eastman Kodak Co., 228 F.R.D. 174, 181 (W.D.N.Y.

2005). Courts construe the commonality requirement liberally. See id.

Here, the case involves numerous common issues. Plaintiffs and Settlement Class members

all bring identical claims, i.e., that Defendant improperly charged Relevant Overdraft Fees in violation

of the Account agreements. Courts have found such allegations sufficient to satisfy the commonality

requirement. See Story, 2021 U.S. Dist. LEXIS 34909 at *14 (citing Pantelyat v. Bank of America, N.A.,

No. 16-CV-8964, 2019 WL 402854, *2 (S.D.N.Y. Jan. 31, 2019)).

4. Typicality

Rule 23(a)(3) requires that the representative plaintiff’s claims or defenses “are typical of the

claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality requires that a class representative

have “the incentive to prove all the elements of the cause of action which would be presented by the

individual members of the class were they initiating individualized actions.” Story, 2021 U.S. Dist.

LEXIS 34909 at *14-15 (quoting In re Oxford Health Plans, Inc., 191 F.R.D. 369, 375 (S.D.N.Y. 2000)).

The requirement is met if the (1) “claims of representative plaintiffs arise from same course of conduct

that gives rise to claims of the other class members,” (2) “where the claims are based on the same legal

theory,” and (3) “where the class members have allegedly been injured by the same course of conduct


000118/01339188_1 8

as that which allegedly injured the proposed representative.” Id. (citing In re Drexel Burnham Lambert

Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992)).

Here, Plaintiffs’ claims arise from the same factual and legal circumstances that form the bases

of the Settlement Class members’ claims. Plaintiffs and the Settlement Class members entered into

the same types of Account agreements and were allegedly assessed the same Relevant Overdraft Fees

in violation of those contracts. Additionally, the claimed injuries arise from the same course of conduct

for both the Settlement Class members and Plaintiffs. As such, Plaintiffs have satisfied the typicality

requirement. See Morris, 859 F. Supp. 2d at 616; Frank, 228 F.R.D. at 182.

5. Adequacy of the Named Plaintiffs and Class Counsel

“Determination of adequacy typically ‘entails inquiry as to whether: (1) plaintiff’s interests are

antagonistic to the interest of other members of the class and (2) plaintiff’s attorneys are qualified,

experienced, and able to conduct the litigation.’” Cordes & Co. Fin. Servs. v. A.G. Edwards & Sons, Inc.,

502 F.3d 91, 99 (2d Cir. 2007) (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60

(2d Cir. 2000)). “The adequacy requirement exists to ensure that the named representatives will ‘have

an interest in vigorously pursuing the claims of the class, and ... have no interests antagonistic to the

interests of other class members.’” Story, 2021 U.S. Dist. LEXIS 34909 at *15-16 (quoting Penney v.

Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)).

In the present matter, there is no evidence that the interests of Plaintiffs and the Settlement

Class members are at odds. Rather, the record reflects that Plaintiffs, and the Settlement Class

members have the same incentive to maximize their compensation for past harm.

Additionally, Class Counsel in this Action have established that they are qualified, experienced,

and able to conduct the litigation of this Action. Class Counsel is experienced in handling class actions,

complex litigation, and claims stemming from assessment of Overdraft Fees. As such, the Court finds

that Class Counsel also meets the Rule 23(a)(4) requirements for adequate representation.


000118/01339188_1 9

6. Certification is Proper Under Rule 23(b)(3)

Pursuant to Rule 23(b)(3), a class action may be maintained if Rule 23(a) is satisfied and “the

court finds that the questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The matters

pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Id. Satisfaction of Rule 23(a) “goes a long way toward satisfying the Rule 23(b)(3) requirement of

commonality.” Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986).

Here, again, Plaintiffs have satisfied the requirements of Rule 23(b)(3). As discussed, common

questions of law and fact predominate over any questions that might affect the individual Plaintiffs.

Further, a class action is far superior to requiring the claims to be tried individually given the relatively

small awards that each Settlement Class member is otherwise entitled. Additionally, litigating this

matter as a class action will conserve judicial resources and is more efficient for the Settlement Class

members, particularly those who lack the resources to bring their claims individually. Accordingly,

the Court grants Plaintiffs’ motion insofar as it seeks class certification for settlement purposes.

B. Fairness of the Proposed Settlement

1. Standard of Review

“The compromise of complex litigation is encouraged by the courts and favored by public

policy.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116-17 (2d Cir. 2005); see also Story, 2021


000118/01339188_1 10

U.S. Dist. LEXIS 34909 at *18. Federal Rule of Civil Procedure 23(e)(2) provides that a court may

approve a class action settlement if “it is fair, reasonable, and adequate” after considering the

following:

(A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2).

Courts in the Second Circuit also analyze proposed class-action settlements under the

framework set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on

other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000), in tandem with Rule 23

to determine whether a class settlement is substantively fair and warrants final approval. See Story, 2021

U.S. Dist. LEXIS 34909 at *18 (citing Grinnell, 495 F.2d at 463). The Grinnell factors include (1) the

complexity, expense and likely duration of the litigation; (2) the reaction of the class; (3) the stage of

the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the

risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the

ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the

settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the

settlement fund to a possible recovery in light of all the attendant risks of litigation. See Grinnell, 495

F.2d at 463.


000118/01339188_1 11

2. The Settlement is Procedurally Fair

Rules 23(e)(2)(A)-(B) “constitute the procedural analysis” of the fairness inquiry. Story, 2021

U.S. Dist. LEXIS 34909 at *18. “A strong initial presumption of fairness attaches to a proposed

settlement if it is reached by experienced counsel after arm’s-length negotiations, and great weight is

accorded to counsel’s recommendation.” Story, 2021 U.S. Dist. LEXIS 34909 at *19 (quoting Guevoura

Fund Ltd. v. Sillerman, No. 1:15-CV-7192, 2019 U.S. Dist. LEXIS 218116, *6 (S.D.N.Y. Dec. 18, 2019)).

This presumption of fairness and adequacy applies here.

Based on the submissions before the Court and as discussed at the Final Approval Hearing,

the Settlement was reached through arm’s-length negotiations, with a well-regarded mediator’s

assistance, and after experienced counsel had evaluated the merits of Plaintiffs’ claims. Plaintiffs’

counsel conducted a thorough investigation, engaged in formal discovery which involved Defendant

producing more than a thousand pages of documents as well as transactional data, and engaged a data

expert to analyze Community Bank’s data to determine whether a class could be ascertained and to

support Plaintiffs’ future motion for class certification. Class Counsel also participated in extensive

settlement negotiations with Defendant. The final terms of the Settlement were memorialized in a

comprehensive Agreement. See Dkt. No. 63-2. These arm’s-length negotiations raise a presumption

that the Settlement meets the requirements of due process. See Story, 2021 U.S. Dist. LEXIS 34909 at

*20. Accordingly, the Court finds that the requirements of Rule 23(e)(2)(A)-(B) have been satisfied.

3. The Settlement is Substantively Fair

a. The Complexity, Expense, and Likely Duration of Litigation

The first Grinnell factor evaluates whether the continuation of the litigation would be complex,

expensive, and lengthy. This case, had it not settled, would have been all three. “Most class actions are

inherently complex, and settlement avoids the costs, delays and multitude of other problems

associated with them.” Story, 2021 U.S. Dist. LEXIS 34909 at *20 (quoting In re Austrian & German


000118/01339188_1 12

Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000)). This case is no exception, with

approximately 46,404 Settlement Class members. Additionally, settlement of this matter avoided the

delay that necessarily would have followed motion practice and the time needed for the Court to act

on those motions. After all that, a lengthy and complex trial would be required, that would consume

tremendous time and resources for all Parties and the Court. Therefore, the first Grinnell factor weighs

heavily in favor of Final Approval.

b. The Reaction of the Class

“It is well-settled that the reaction of the class to the settlement is perhaps the most significant

factor to be weighed in considering its adequacy.” Story, 2021 U.S. Dist. LEXIS 34909 at *21 (quoting

Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 362 (S.D.N.Y. 2002)). The lack of class member

objections “may itself be taken as evidencing the fairness of a settlement.” Id. There is only one

Settlement Class members that opted-out of the Settlement and there have been no objections. As

such, this factor favors Final Approval. See id. (citing Wright v. Stern, 553 F. Supp. 2d 337, 344-45

(S.D.N.Y. 2008) (“The fact that the vast majority of class members neither objected nor opted out is

a strong indication” of fairness). The Settlement Class member who is not bound by the Settlement

is identified in attached Exhibit A.

c. The Stage of the Proceedings and the Amount of Discovery Completed

The third Grinnell factor considers the amount of discovery completed, with a “focus [] on

whether the plaintiffs obtained sufficient information through discovery to properly evaluate their

case and to assess the adequacy of any settlement proposal.” Story, 2021 U.S. Dist. LEXIS 34909 at

*21-22 (quoting Fleisher v. Phoenix Life Ins. Co., No. 11-CV-8405, 2015 U.S. Dist. LEXIS 121574 *7

(S.D.N.Y. Sept. 9, 2015)). The Parties’ discovery meets this standard. They exchanged more than a

thousand pages of documents as well as a separate production of transactional data, which as discussed

above, was analyzed by the Parties’ experts. Therefore, this factor favors Final Approval.


000118/01339188_1 13

d. Risk of Establishing Liability and Damages and Maintaining Class Action

The fourth, fifth, and sixth Grinnell factors, which address “the risks of establishing liability,”

“the risks of establishing damages,” and “the risks of maintaining the class action through the trial,”

also strongly support the Settlement. In assessing the fourth, fifth, and sixth factors, which are often

considered together, “the Court is not required to decide the merits of the case, resolve unsettled legal

questions, or to ‘foresee with absolute certainty the outcome of the case.’” Story, 2021 U.S. Dist.

LEXIS 34909 at *22 (quoting Fleisher, 2015 U.S. Dist. LEXIS 121574 at *8). “‘[R]ather, the Court need

only assess the risks of litigation against the certainty of recovery under the proposed settlement.’” Id.

(quoting In re Global Crossing Secs. and ERISA Litig., 225 F.R.D. 436, 459 (S.D.N.Y. 2004)). “In assessing

the risks, courts recognize that ‘the complexity of Plaintiff’s claims ipso facto creates uncertainty.’” Id.

(quoting In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 123 (S.D.N.Y. 2009)).

Here, while Plaintiffs and Class Counsel believe that they would prevail on their claims asserted

against Defendant, they also recognize the risks and uncertainties inherent in pursuing the action

through class certification, summary judgment, trial, and appeal. A trial on the merits would involve

risks for Plaintiffs as to both liability and damages. Plaintiffs would have to prove that they and the

Settlement Class were charged Overdraft Fees and that the assessment of those fees was in violation

of their Account agreements. Plaintiffs would risk a trier of fact reaching the conclusion that the

language of the agreement, and other related disclosure documents, permits Defendant to assess

Relevant Overdraft Fees in the manner that it did.

Additionally, there is risk and additional expense associated with obtaining class certification

and maintaining both conditional and class certification through trial. The Court has not certified a

Rule 23 class, and such a determination would only be reached after further discovery and exhaustive

briefing by the Parties. Even assuming that the Court granted certification, there is always the risk of

decertification after the close of discovery. See Story, 2021 U.S. Dist. LEXIS 34909 at *23-24; Zivali v.


000118/01339188_1 14

AT&T Mobility, LLC, 784 F. Supp. 2d 456, 470 (S.D.N.Y. 2011) (granting the defendant’s motion to

decertify collective action). Risk, expense, and delay permeate such processes. As such, the Court finds

that the fourth, fifth, and sixth Grinnell factors weigh in favor of granting Final Approval.

e. Defendant’s Ability to Withstand a Greater Judgment

The seventh Grinnell factor addresses the defendant’s ability to withstand a greater judgment.

Even assuming that it could withstand a greater judgment, “this factor, standing alone, does not

suggest that the settlement is unfair.” D’Amato v. Deutsche Bank, 236 F.3d 78, 86 (2d Cir. 2001) (citations

omitted). Indeed, “a defendant is not required to ‘empty its coffers’ before a settlement can be found

adequate.” Story, 2021 U.S. Dist. LEXIS 34909 at *24 (quoting McBean v. City of N.Y., 233 F.R.D. 377,

388 (S.D.N.Y. 2006)). Here, this factor is, at best, neutral, and “does not suggest that the settlement

is unfair.” D’Amato, 236 F.3d at 86 (citations omitted).

f. Range of Reasonableness

The final two Grinnell factors, “the range of reasonableness of the settlement fund in light of

the best possible recovery” and “the range of reasonableness of the settlement fund to a possible

recovery in light of all the attendant risks of litigation,” also strongly support approval of the

settlement. Grinnell, 495 F.2d at 463. Courts typically analyze the final two Grinnell factors together. See

Global Crossing, 225 F.R.D. at 460. In analyzing these two factors, a reviewing court “consider[s] and

weigh[s] the nature of the claim, the possible defenses, the situation of the parties, and the exercise of

business judgment in determining whether the proposed settlement is reasonable.” Grinnell, 495 F.2d

at 462. “The determination of whether a settlement amount is reasonable ‘does not involve the use of

a mathematical equation yielding a particularized sum.’” Story, 2021 U.S. Dist. LEXIS 34909 at *25

(quoting Frank, 228 F.R.D. at 186). Rather, “there is a range of reasonableness with respect to a

settlement — a range which recognizes the uncertainties of law and fact in any particular case and the

concomitant risks and costs necessarily inherent in taking any litigation to completion.” Visa, 396 F.3d


000118/01339188_1 15

at 119. Moreover, the settlement amount must be judged “not in comparison with the possible

recovery in the best of all possible worlds, but rather in light of the strengths and weaknesses of

plaintiffs’ case.” Story, 2021 U.S. Dist. LEXIS 34909 at *25 (quoting In re Agent Orange Prod. Liab. Litig.,

597 F. Supp. 740, 762 (E.D.N.Y. 1984)). The overall Value of the Settlement comprises monetary as

well as non-monetary relief (Account disclosure changes). See id.; Velez v. Novartis Pharm. Corp., No.

04- CV-09194, 2010 WL 4877852, *18 (S.D.N.Y. Nov. 30, 2010) (holding that both the monetary and

non-monetary relief must be considered in calculating value of a settlement).

In the present matter, the Value of the Settlement is $3,460,833.02 and represents substantial

value given the attendant risks of litigation, even though recovery could be greater if Plaintiffs attained

class certification, overcame a motion to decertify any class, succeeded on all claims at trial, and

survived an appeal with their judgment intact.

By Class Counsel’s estimation, the Value of the Settlement represents approximately 39% of

Defendant’s potential damages exposure of $8,865,226.0, assuming Plaintiffs were to prevail on all of

their claims. Even if the Court were to look only to the $2,850,000.00 of Settlement Fund, this still

represents approximately 32% of the total damages at issue. The Settlement represents a substantial

recovery for Settlement Class Members, particularly in light of the risks of litigation.

The Class Members will receive a pro rata payment based a percentage of the Net Settlement

Fund multiplied by the total amount of Overdraft Fees assessed. See Dkt. No. 63-2 at § 76(d).

Settlement Class Member Payment amounts and forgiveness of Uncollected Overdraft Fees will

depend on the class or classes to which they belong. See id. Weighing the benefits of settlement against

the available evidence and the risks associated with proceeding in the litigation, the Court finds that

the Value of the Settlement is reasonable.

g. Rule 23(e)(2)(C)-(D)

Rule 23 also requires the Court to consider whether the relief provided for the Settlement


000118/01339188_1 16

Class is adequate and whether the proposed Settlement treats Settlement Class Members equitably

relative to each other. As discussed above, the record demonstrates that the Settlement provides

adequate relief to Settlement Class Members by avoiding the cost and risk of further litigation and the

Parties have proposed an effective method for processing and allocating Settlement Class Members’

claims. The Agreement calls for automatic payments to Settlement Class Members and automatic

forgiveness of Uncollected Overdraft Fees.

The Agreement’s allocation plan calls for Settlement Class Members to receive a pro rata share

of the Net Settlement Fund based upon the amount of Relevant Overdraft Fees they incurred. See id.

It also provides for forgiveness of 100% of the Uncollected Overdraft Fees to those eligible for such

relief. The Court finds that this allocation is reasonable and treats all Settlement Class Members in an

equitable manner. See Story, 2021 U.S. Dist. LEXIS 34909 at *27; In re Vitamin C Antitrust Litig., No.

06-MD-1738, 2012 WL 5289514, *7 (E.D.N.Y. Oct. 23, 2012) (“An allocation formula need only have

a reasonable, rational basis, particularly if recommended by experienced and competent class counsel”)

(quotation omitted); Christine Asia Co. v. Yun Ma, No. 15-MD-2631, 2019 WL 5257534, *15 (S.D.N.Y.

Oct. 16, 2019) (finding that the requirement that class members be treated equitably relative to each

other is satisfied where each class member was to receive a “pro rata share” of the settlement fund).

Finally, as will be discussed in more detail below, Plaintiffs’ proposed award of attorneys’ fees

is reasonable and the Parties filed the Agreement required by Rule 23(e)(3), including the attorneys’

fees awarded pursuant to the Settlement, on the docket. See 5 William B. Rubenstein, Newberg on

Class Actions § 15:12 (5th ed. 2018).

C. Service Award

The named Plaintiffs seek Service Awards of $5,000.00 each for serving as Class

Representatives. Class Counsel argue that these Service Awards are appropriate and reasonable in light

of the substantial and meaningful work that Plaintiffs have contributed.


000118/01339188_1 17

“Courts regularly grant requests for service awards in class actions ‘to compensate plaintiffs

for the time and effort expended in assisting the prosecution of the litigation, the risks incurred by

becoming and continuing as a litigant, and any other burdens sustained by the plaintiffs.’” Story, 2021

U.S. Dist. LEXIS 34909 at *28-29 (quoting Hall v. ProSource Technologies, LLC, No. 14-CV-2502, 2016

U.S. Dist. LEXIS 53791, *9 (E.D.N.Y. Apr. 11, 2016). A Service Award of $5,000.00 for each Class

Representative is reasonable and within the range of awards granted in this Circuit. See id. (awarding

the named plaintiffs service awards of $15,000)). Therefore, the Court approves a $5,000.00 Service

Award for each of the Class Representatives.

D. Costs

Class Counsel request reimbursement of $12,992.70 in costs to be paid from the Settlement

Fund. “Attorneys may be compensated for reasonable out-of-pocket expenses incurred and

customarily charged to their clients, as long as they were ‘incidental and necessary to the

representation’ of those clients.” Story, 2021 U.S. Dist. LEXIS 34909 at *29 (quoting In re Indep. Energy

Holdings PLC Sec. Litig., 302 F. Supp. 2d 180, 183 n.3 (S.D.N.Y. 2003)). Here, the Notice informed

Settlement Class members that Class Counsel would seek reimbursement of expenses. See Dkt. No.

63-2, Ex. 2 ¶10. The vast majority of the costs are attributable to expert expenses and were necessary

for Plaintiffs’ expert to review and verify the calculations performed by Community Bank’s expert,

which allowed Plaintiffs to be well-informed about the range of damages at issue in this matter prior

to engaging in settlement discussions. Accordingly, the Court awards costs in the amount of

$____________.

E. Settlement Administrator Costs

Class Counsel also seeks payment to Epiq Class Action and Claims Solutions, Inc, which was

selected to serve as the Settlement Administrator, to be paid out of the Settlement Fund. Notice of

this selection and payment was provided to the Settlement Class and no objections were made. The


000118/01339188_1 18

Court finds that this expense (estimated at $81,371.00) is in line with cases of a similar nature.

Accordingly, the Court grants Class Counsel’s request, and Epiq shall be reimbursed for overseeing

and implementing the Notice Program and administering the Settlement up to $81,371.00.

F. Attorney’s Fees

Class Counsel move for an award of attorneys’ fees in the amount of $1,153,610.00, which

constitutes a 33.33% of the Value of the Settlement.

i. Method of Calculating Attorneys’ Fees

“Attorneys who create a common fund from which members of a class are compensated are

entitled to ‘a reasonable fee — set by the court — to be taken from the fund.’” Story, 2021 U.S. Dist.

LEXIS 34909 at *32 (quoting Goldberger, 209 F.3d at 47). Such a fee award directly depletes the amount

by which the class benefits. Accordingly, the Court has a duty to award fees with moderation and a

regard for the rights of those with an interest in the fund who are not before the Court. See, e.g., Burger

v. CPC Intern., Inc., 76 F.R.D. 183, 188 (S.D.N.Y. 1977).

The Second Circuit has sanctioned two methods — the percentage method and lodestar

method — for calculating reasonable attorneys’ fees in class actions. See Goldberger, 209 F.3d at 50. The

Court has discretion to award fees based on either the percentage method or the lodestar method. See

McDaniel v. County of Schenectady, 595 F.3d 411, 417 (2d Cir. 2010). Courts in this Circuit routinely use

the percentage method to compensate attorneys in common fund cases such as this Action. See Story,

2021 U.S. Dist. LEXIS 34909 at *32 (citing McDaniel, 595 F.3d at 417); WalMart, 396 F.3d at 121. The

“percentage method,” is the far simpler method by which the fee award is “some percentage of the

fund created for the benefit of the class.” Savoie, 166 F.3d at 460 (citing Blum v. Stenson, 465 U.S. 886,

900 n.16 (1984)). In determining what percentage of the fee to award, courts consider the same factors

used to gauge the appropriate multiplier for the lodestar. See Goldberger, 209 F.3d at 47. When utilizing

the percentage method, courts often “crosscheck” the adequacy of the resulting fee by applying the


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lodestar method. See Goldberger, 209 F.3d at 50. Under use of either method, the touchstone of the

inquiry is whether the award is reasonable. See id. A court determines reasonableness by evaluating: (1)

counsel’s time and labor; (2) the litigation’s complexities and magnitude; (3) the litigation risks; (4)

quality of representation; (5) the relationship of the requested fee to the settlement; and (6)

considerations of public policy. See id.

a. Comparison to Court-Approved Fees in Other Common Fund Settlements

In using the percentage of the fund approach, the Court must first determine a baseline

reasonable fee percentage in relation to the settlement, using common fund settlements of similar

magnitude and complexity as guidance. Story, 2021 U.S. Dist. LEXIS 34909 at *32. Additionally, a

sliding scale approach – awarding a smaller percentage of the settlement as the amount of the

settlement fund increases – is appropriate in order to avoid overcompensating the plaintiffs’ counsel

to the detriment of the class members they represent. See id. (citing In re Bank of Am. Corp. Sec., Derivative

& Emp. Ret. Income Sec. Act (ERISA) Litig., 772 F.3d 125, 134 (2d Cir. 2014)) (other citation omitted).

Class Counsel contend that a fee of 33.33% of the Value of the Settlement to be payable from the

Settlement Fund is reasonable and commonly awarded in cases of this nature. The Court finds that it

is a reasonable baseline in the present matter. Baudin v. Res. Mktg. Corp., LLC, No. 1:19-cv-386

(MAD/CFH), 2020 U.S. Dist. LEXIS 146280, at *7 (N.D.N.Y. Aug. 13, 2020) (awarding class

counsels a 33% of the Settlement Fund); see also Elliot v. Leatherstocking Corp., No. 3:10-CV-0934

(MAD/DEP), 2012 U.S. Dist. LEXIS 171443, at *18-19 (N.D.N.Y. Dec. 4, 2012) (citing Chavarria v.

N.Y. Airport Serv., LLC, 875 F. Supp. 2d 164, 179 (E.D.N.Y. 2012)(awarding attorneys’ fees of one-

third of the settlement); deMunecas v. Bold Food, LLC, 2010 U.S. Dist. LEXIS 87644, at *3 (S.D.N.Y.

Aug. 23, 2010) (awarding 33% of the settlement fund). The Court also notes that the Plaintiff’s Motion

for Final Approval details the numerous cases in which Courts have awarded fees at or above 33.33%.


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b. Counsel’s Time and Labor

Class Counsel spent significant effort to achieve the settlement. During the formal litigation

of this Action, Class Counsel conducted a thorough investigation into the merits of the potential

claims and defenses. Class Counsel engaged in discovery, among other important pleading activities

conducted research and drafted Plaintiffs’ opposition to Defendant’s motion to dismiss. Finally, Class

Counsel took part in mediation, and negotiated the terms of a favorable settlement for Plaintiffs.

Class Counsel is particularly experienced in the litigation, certification, trial, and settlement of

nationwide class action cases in the financial services industry. In negotiating this Settlement in

particular, Class Counsel had the benefit of years of experience and familiarity with the facts of this

case as well as with other cases involving overdraft fees across the country.

Upon completion of the Agreement, Plaintiffs carefully drafted and filed their motion for

Preliminary Approval. See Dkt. No. 63. After Preliminary Approval was granted, Class Counsel actively

worked and communicated with the Settlement Administrator to ensure that the Notice Program was

carried out efficiently and correctly. Further, Class Counsel spent hours preparing the Motion for Final

Approval, which included the filing of additional declarations, and preparing for and attending the

Final Approval Hearing. Further, there will be significant post-Final Approval work ensuring that the

Settlement benefits are properly distributed to Settlement Class Members, responding to Settlement

Class Members’ inquiries, and effectuating a secondary or cy pres distribution, as needed.

In performing these and other tasks, Class Counsel contends that their total hours of attorney,

paralegal, and staff member time is 678.20, including an estimate of hours spent preparing for and

attending the Final Approval Hearing, and future hours to assist the Settlement Administrator

following Final Approval, which they claim represents an aggregate lodestar of approximately

$447,783.30. Considering the complexity of class actions in general and the overall result obtained, the

Court finds that the time spent by counsel is reasonable and supports the requested award.


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c. Complexity of the Case

The magnitude and complexity of this case also supports the requested award. “Most class

actions are inherently complex, and settlement avoids the costs, delays and multitudes of other

problems associated with them.” Story, 2021 U.S. Dist. LEXIS 34909 at *34 (quoting In re Austrian &

German Bank Holocaust Litig., 80 F. Supp. 2d at 174). This case is no exception. Plaintiffs’ claims

involved complicated banking activities and the analysis of voluminous data to determine which

Account Holders are members of the Settlement Class. See Dkt. No. 41.

d. Risk of Litigation

Class Counsel undertook risk in accepting the case on a contingency basis. Story, 2021 U.S.

Dist. LEXIS 34909 at *34. In the face of the risk of no recovery, Class Counsel proceeded with the

litigation and obtained a favorable outcome for the class. Thus, Class Counsel certainly invested

extensive time and costs with no guarantee of success.

e. Quality of the Representation

Class Counsel competently and efficiently represented Plaintiffs in prosecuting this Action. As

such, this factor supports the requested award.

f. Policy Considerations

Lastly, the attorneys’ fees award may be altered due to policy considerations. See In re World

Trade Ctr. Disaster Site Litig., 754 F.3d 114, 127 (2d Cir. 2014). Counsel’s fees should reflect the

important public policy goal of “providing lawyers with sufficient incentive to bring common fund

cases that serve the public interest.” Goldberger, 209 F.3d at 51. “On the other hand, fees should

compensate counsel only for the value they create, or the court risks incentivizing class counsel to

settle cases in a manner detrimental to the class.” Story, 2021 U.S. Dist. LEXIS 34909 at *34.

Class Counsel obtained a favorable settlement in an efficient manner. Additionally, as result

of this litigation, Defendant has improved its disclosures of the challenged practices. Ultimately, Class


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Counsel’s fee award is tied directly to the Value of the Settlement they created, with no claims process

to obtain the benefits of the Settlement. No money will revert to the Defendant.

g. Lodestar Cross-Check

In assessing the reasonableness of a fee award, the Court may use the lodestar amount as a

cross-check to the fees awarded under the percentage of the fund method. See In re Citigroup Inc. Sec.

Litig., 965 F. Supp. 2d 369, 388 (S.D.N.Y. 2013). The lodestar method entails “scrutiniz[ing] the fee

petition to ascertain the number of hours reasonably billed to the class and then multipl[ying] that

figure by an appropriate hourly rate.” Goldberger, 209 F.3d at 47 (citing Savoie v. Merchants Bank, 166

F.3d 456, 460 (2d Cir. 1999)). The resulting lodestar may then be increased (or decreased) by applying

a multiplier based on certain factors related to the litigation. See id.

When the lodestar method is used as a cross-check, “the Court need not exhaustively scrutinize

the hours documented by class counsel; instead, the reasonableness of the lodestar ‘can be tested by

the court’s familiarity with the case.’” Story, 2021 U.S. Dist. LEXIS 34909 at *35. (quoting Sewell v.

Bovis Lend Lease, Inc., No. 09-CV-6548, 2012 WL 1320124, *13 (S.D.N.Y. Apr. 16, 2012)). “Under the

lodestar method, a positive multiplier is typically applied to the lodestar in recognition of the risk of

the litigation, the complexity of the issues, the contingent nature of the engagement, the skill of the

attorneys, and other factors.” Id.

Here, Class Counsel asserts that its combined lodestar is $447,783.30, resulting in a multiplier

of about 2.576. This multiplier is within the range of accepted multipliers for this Circuit. See Hanifin

v. Accurate Inventory & Calculating Serv., 2014 U.S. Dist. LEXIS 115710, at *19 (N.D.N.Y. Aug. 20, 2014)

(“Courts regularly award lodestar multipliers of up to eight times the lodestar, and in some cases, even

higher multipliers.”); see also Wal-Mart, 396 F.3d at 123 (upholding multiplier of 3.5); NECAIBEW

Health & Welfare Fund v. Goldman, Sachs & Co., No. 1:08-CV-10783, 2016 WL 3369534, *1 (S.D.N.Y.

May 2, 2016) (approving a multiplier of 3.9 on a $272 million settlement); Woburn Ret. Sys. v. Salix


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Pharm., Ltd., No. 14-CV-8925, 2017 WL 3579892, *6 (S.D.N.Y. Aug. 18, 2017) (finding that a 3.14

multiplier was “within the range of reasonable … multipliers approved in this Circuit”). Accordingly,

the Court finds that Class Counsel is entitled to $_____________ in reasonable attorneys’ fees.

G. Cy Pres Distribution

Pursuant to the Agreement, no money shall revert to Defendant. Instead, within one year after

the date the Settlement Administrator mails the first Settlement Class Member Payment, any remaining

amounts resulting from uncashed checks shall be to the cy pres beneficiary that the Parties shall suggest,

and the Court approves.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the Parties’ submissions, and the

applicable law, and for the reasons set forth herein, the Court hereby

ORDERS that Plaintiffs’ unopposed motion for certification of the Settlement Class, Final

Approval of the class action Settlement, approval of Service Awards, and approval of attorneys’ fees

and costs is GRANTED; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Plaintiffs’ favor and close this

case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and

Order on the Parties in accordance with the Local Rules.

IT IS SO ORDERED. DATED: ___________________, 2021 Albany, New York __________________________

Honorable Mae A. D’Agostino UNITED STATES DISTRICT JUDGE


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EXHIBIT A

EXCLUSION LIST

1. Insert Name
