UNITED STATES DISTRICT COURT SOUTHERN DIVISION Civil …€¦ · Case 1:15-cv-01208-GJQ-RSK ECF No. 148-1 filed 10/20/19 PageID.4783 Page 1 of 10. developed and executed notice programs

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Case No.: 1:15-CV-1208 BECKY PINGS TON-POLING, individually, and on behalf of all others similarly situated, Honorable Gordon J. Quist

Plaintiff,

v.

DECLARATION OF AMANDA STERNBERG REGARDING IMPLEMENTATION OF NOTICE AND CLAIMS ADMINISTRATION

ADVIA CREDIT UNION,

Defendant.


I, AMANDA STERNBERG, hereby declare and state as follows:

1. I am a Senior Project Manager employed by Epiq Class Action & Claims Solutions,

Inc. ("Epiq"). The statements of fact in this declaration are based on my personal knowledge and

information provided to me by my colleagues in the ordinary course of business, and if called on

to do so, I could and would testify competently thereto.

2. Epiq was appointed as the Claims Administrator pursuant to the Court's Order (the

"Order") dated July 11, 2019, and in accordance with the Settlement Agreement dated June 29,

2019 (the "Agreement,,).l I submit this Declaration in order to advise the Parties and the Court

regarding the implementation of notice to the Class, and to report on Epiq' s handling to date of the

claims administration, in accordance with the Order and the Agreement.

3. 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

1 All capitalized terms not otherwise defined in this document shall have the same meanings ascribed to them in the Agreement.


Case 1:15-cv-01208-GJQ-RSK ECF No. 148-1 filed 10/20/19 PageID.4783 Page 1 of 10

developed and executed notice programs and administrations in a wide variety of mass 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 telephone numbers with

recorded information and/or live operators, 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 OF ADMINISTRATION

4. Pursuant to the Agreement and Order, Epiq was appointed to provide, and did

provide, the following administrative services for the benefit of Settlement Class Members, as they

are defined in the Agreement:

• As appropriate, email a Notice to Class Members;

• As appropriate, mail a Long Form Notice or Claim Form Packet to Class Members;



• Establish and maintain an official Settlement Website containing information about the

Pingston-Poling v. Advia Credit Union Claims Administration.

• Establish and maintain an official toll-free number that Settlement Class Members may

contact for additional information about the Settlement;

• Review and process opt outs sent to or received by Epiq;

• Review and track objections sent to or received by Epiq;

• Receive, process, track, and reporton claim forms sent to or received by Epiq;

DATA TRANSFER

5. Pursuant to Section 5(d) of the Agreement, on August 2,2019, Counsel for Advia

Credit Union ("Defendant") provided to Epiq an electronic file containing a partial list of Class

Members. The list contained the Class Members' (i) name, (ii) mailing address, (iii) email address,

where available, (iv) phone number, and (v) the amounts and number of instances of both

Sufficient Funds Overdrafts and Regulation E Overdrafts.

6. On September 3, 2019, the Expert for Plaintiff provided Epiq with a second

electronic file containing a partial list of Class Members for the period from November 2009 to

November 2012. This file also contained the Class Member's (i) name, (ii) mailing address, (iii)

email address, where available, (iv) phone number, and (v) the amounts and number of instances

of both Sufficient Funds Overdrafts and Regulation E Overdrafts. The two combined files make

up the entirety of the Class Member Data ("Class Data").

7. Epiq promptly loaded the Class Data into a dedicated database created for the

purpose of the Settlement administration. Epiq assigned unique identifiers to all records to

maintain the ability to track them through the Settlement administration.



8. After analyzing the Class Data, Epiq determined there were 55,602 unique Class

Member records included in the Class Data. Based on an analysis of the Class Data, 33,171 Class

Members are members of the Sufficient Funds Class, 51,202 are members of the Regulation E

Overdraft Class, and 28,771 are members of both classes.

DISSEMINATION OF INDIVIDUAL CLASS NOTICE VIA EMAIL

9. Pursuant to Section 5(b) of the Agreement, Epiq caused the Court-approved Notice

to be formatted for electronic distribution by email to Class Members. Attached herto as Exhibits

A and B are templates of the Court-approved Notice sent to Class Members via email ("Email

Notices"). For Reguation E Class Members, Epiq included the number of eligible Regulation E

charges for which each Regulation E Class Member could file a claim, and a unique ID that

allowed these Class Members to file their claim online.

10. The Email Notices, which were formatted for distribution using imbedded html

text, provided Class Members with a link to the Settlement website. The Email Notices were

formatted with easy to read text without graphics, tables, images and other elements that would

increase the likelihood that the message could be blocked by Internet Service Providers and/or

SP AM filters. Epiq also followed standard email protocols, including utilizing "unsubscribe' links

in the Email Notices.

11. Epiq sent the Email Notices to 52,173 records with email addresses provided in

the Class Data on September 13, 2019. Of these, 48,191 Class Members were identified as

Regulation E Class Members, and 4,020 were identified as Sufficient Funds Class Members. Each

Email Notice was transmitted with a unique message identifier. If the receiving e-mail server

DECLARATION OF AMANDA STERNBERG REGARDING IMPLEMENT A TION OF NOTICE AND CLAIMS ADMINISTRATION


could not deliver the message, a "bounce code" was returned along with the unique message

identifier.

12. For all Class Members with potentially valid email addresses in the Class Data,

Epiq closely monitored all deliverability attempts of the Email Notice throughout the Email Notice

campaign. A total of 51,784 Email Notices were delivered. Of the 472 Email Notices that could

not be delivered, 51 of them were undeliverable because the email address no longer existed, the

email account was closed, or the email address had a bad domain name or address error

(collectively, "Hard Bouncebacks"). After three attempts, the remaining 421 Email Notices could

not be delivered due to an inactive or disabled account, the recipient's mailbox was full, technical

auto-replies, or the recipient server was busy or unable to deliver (collectively, "Soft

Bouncebacks").

13. Pursuant to Section 5(b) of the Agreement, Epiq promptly performed an email

address search consistent with industry standards to obtain any available email address updates.

With respect to the Notices sent by email but returned as undeliverable, Epiq was able to locate an

updated email address for 327 of the 472 Class Members. Epiq promptly resent the Email Notices

to these 327 Class Members. A total of 219 of the 327 Class Members to whom a Notice was

resent by email were not returned as undeliverable. The Notices resent to the remaining 108 Class

Members could not be delivered due to a Bounceback.

14. Ultimately, Epiq was able to deliver direct Email Notice to over 99% of the email

addresses provided in the Class Data.

DECLARATION OF AMANDA STERNBERG REGARDING IMPLEMENT A TION OF NOTICE AND CLAIMS ADMINISTRATION


DISSEMINATION OF THE INDIVIDUAL CLASS NOTICE BY POSTAL MAIL

15. Pursuant to Section 5(c) of the Agreement, Epiq was responsible for sending the

Long Form Notice and Claim Form to all Class Members who: (1) were not current members of'

Defendant, (2) who were members ofthe Defendant, but did not agree to receive notices regarding

their accounts from Defendant via email, or (3) for whom there was no valid email address in the

Class List, but there was a mailing address. Attached hereto as Exhibit C is the Long Form Notice

that Epiq disseminated by mail (''Notice''). For Regulation E Class Members, Epiq was also

responsible for providing a personalized copy of the Claim Form. Attached hereto as Exhibit D is

a representative copy of the Claim Form that Regulation E Class Members received.

16. Prior to mailing the Notice to the Class List, all mailing addresses were checked

against the National Change of Address ("NCOA") database maintained by the United States

Postal Service ("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. To the extent that any Class

Member had filed a USPS change of address request, and the address was certified and verified,

the current address listed in the NCOA database was used in connection with the notice mailing.

This address updating process is standard for the industry and for the majority of promotional

mailings that occur today. A total of 6,515 records in the Class List sent through the USPS NCOA,

CASS, and DPV process were updated with new addresses.

17. Prior to commencing any mailings for this matter, Epiq established a dedicated post

office box to mail notice from and to allow Class Members to contact the Claims Administrator or

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 last known address.

DEC LARA TION OF AMANDA STERNBERG REGARDING IMPLEMENTATION OF NOTICE AND CLAIMS ADMINISTRATION


submit documents by mail. Epiq has and will continue to maintain the P.O. Box throughout the

administration process.

18. Epiq identified 3,429 Class Members in the Class List where an email address was

not provided. Of those, 3,253 Class Members contained physical mail address information to

which Epiq could send Notice via mail as they did not have email addresses provided in the data.

Amongst the 3,253 Class Members, 2,878 were identified as Regulation E Class Members, and a

personalized copy of the Claim Form was enclosed with their Notice. On September 13,2019,

Epiq mailed 3,253 Notices via First Class USPS Mail to Class Members on the Class List with a

valid mailing address.

19. The return address on the notices is the post office box maintained by Epiq. As of

October 18, 2019, seven (7) Notices have been returned by the USPS with forwarding information

and promptly re-mailed to the forwarding address.

20. As of October 18,2019, a total of 426 Notices have been returned to Epiq without

forwarding address information.

21. Ultimately, Epiq was able to deliver direct mail Notice to approximately 87% of

Class Members where no email address was provided but a physical addresses was available in

the Class Data.

22. As of October 18, 2019, Epiq has mailed and/or emailed Notice to 55,426 Class

Members, with mail and/or emailed Notice to 680 unique Class Members currently known to be

undeliverable and 176 Class Members for which no contact information was provided, which is a

98.5% deliverable rate.

DEC LARA nON OF AMANDA STERNBERG REGARDING IMPLEMENT A nON OF NonCE AND CLAIMS ADMINISTRATION


SETTLEMENT WEBSITE

23. Pursuant to Section 5(e) of the Agreement, on September 13,2019, Epiq launched

a website, https:llwww.acuoverdraftsfeesettlement.com. that potential Class Members could visit

to obtain additional information about the Settlement, as well as important documents, including

the Long Form Notice, Claim Form, Complaint, Settlement Agreement with Exhibits, Preliminary

Approval Order of Settlement and Notice Order, and any other relevant information that the parties

agree to provide or that the Court may require ("Website"). The Website contains a summary of

options available to Class Members, deadlines to act, and provides answers to frequently asked

questions. Class Members were also able to file a Claim Form via the website, or download a

paper Claim Form, which they could then file by mail.

24. As of October 18,2019, the Website has been visited by 2,948 unique visitors and

11,619 website pages have been viewed. Epiq has maintained and will continue to maintain and

update the Website throughout the administration of the Settlement.

TOLL-FREE INFORMATION LINE

25. On September 12,2019, Epiq established and is maintaining a toll-free interactive

Voice Response Unit ("VRU"), +1 (877) 241-6405, to provide information and accommodate

inquiries from Class Members. Callers hear an introductory message and then are provided with

scripted information about the Settlement in the form of recorded answers to frequently asked

questions. The toll-free number was included in the Notice sent to Class Members and the

automated telephone system is available 24 hours per day, 7 days per week.



26. As of October 18, 2019, the toll-free number has received 140 calls representing

417 total minutes of use. Epiq has and will continue to maintain and update the VRU throughout

the settlement administration process.

OPT OUTS

27. Pursuant to Section 12 of the Agreement, Class Members who wished to be

excluded from the Settlement were required to mail a written Request for Exclusion to Epiq

postmarked by October 18, 2019. As of October 18, 2019, Epiq has received 5 timely and

potentially valid opt out requests and 0 late postmarked or received opt out requests. A report

listing the five (5) timely requests received to date is attached hereto as Exhibit E.

OBJECTIONS RECIEVED

28. Pursuant to Section 13 ofthe Agreement, Class Members wishing to object to the

fairness, reasonableness, or adequacy of the Agreement have the option to submit written

objections to the Claims Administrator, postmarked no later than November 2, 2019. As of October

18, 2019, Epiq has not received any objections. As the deadline to object has not passed, Epiq will

continue to monitor closely.

CLAIMS RECEIVED

29. Pursuant to Section 8(d)(iv)(l) of the Agreement, Regulation E Class Members

who wished to make a claim for up to ten (10) Regulation E Overdraft Charges that were not

reversed within 30 days after they were assessed were required to submit a completed Claim Form

to the Claims Administrator via U.S. Mail, or online, so that it was submitted or postmarked no



later than October 14,2019. As of October 18,2019, Epiq has received 935 total claims, 155 paper

and 780 web. Processing oflill received claims is ongoing as of October 18,2019.

30. Timely claims received as of October 14, 2019 are subject to maximum of a ten

(10) Regulation E Overdraft charges per claim. As a total of $35,057,144.00 of Regulation E

Overdraft charges were provided in the Class Data, up to $9,496,058.05 could be claimed by

eligible Class Members. Pursuant to the Agreement, Sufficient Funds Class Members were not

required to file claims to be eligible for payment. The amount of fees provided in the Class Data

for the Sufficient Funds class was $5,394,100.00, accounting for 171,746 overdraft charges.

I declare under penalty of perjury that the foregoing is true and correct and that this

declaration was executed on October 18,2019, in Seattle, Washington.

Amanda Sternberg Senior Project Manager Epiq Class Action & Claims Solutions, Inc. ("Epiq")



EXHIBIT A


If You Had a Checking Account with Advia Credit Union and You Were Charged an

Overdraft Fee Between November 19, 2009, and April 30, 2019, Then You May Be Entitled to a

Payment from a Class Action Settlement

A settlement has been reached in a class action lawsuit alleging that Advia Credit Union (“ACU”)

improperly charged overdraft fee(s) to two groups. The first is all members of ACU who were

charged an Overdraft Fee for any payment transaction from November 19, 2009, and April 30, 2019,

and, at the time such fee was imposed, that person had sufficient funds in the ledger balance but not

the available balance in his or her account to complete the transaction. The second group is all

members of ACU who were charged Overdraft Fees for ATM and debit card transactions from

August 15, 2010, to April 30, 2019.

ACU does not deny it charged Overdraft Fees but contends it did so properly and in accordance with

the terms of its agreements and applicable law. ACU assessed Overdraft Fees based on the available

balance in a member’s account. ACU maintains that this practice is proper and was disclosed to its

members, and therefore denies that its practices give rise to claims for damages by the Named

Plaintiff or any Class Member. ACU also alleges that it properly gave notice and opted members into

its overdraft program for ATM and debit card transactions. The Court has not decided who is right.

Who is Included? You received this Notice because ACU’s records indicate that you are in one or

both groups that was alleged to have been charged improper overdraft fee(s). The Court directed that

this Notice be sent to all Class Members because each Class 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.

What Are the Settlement Terms? A portion of the Net Settlement Fund will be paid to Class

Members who filed a claim on a pro rata basis, less deductions for fees and costs. The remaining

funds from the Net Settlement Fund will be disbursed to Class Members who were assessed

Overdraft Fees for payments made when they had a positive ledger balance in their checking

accounts on a pro rata basis.

How Can I Get a Payment? You are entitled to receive a payment without having to make a claim

for Overdraft Fees assessed when you had enough money in your account to pay the transaction that

resulted in the fee, if you do not opt out.

Your Other Options. If you do not want to be legally bound by the Settlement, you must exclude

yourself by October 14, 2019. If you do not exclude yourself, you will release any claims you may

have, as more fully described in the Settlement Agreement, available at the Settlement Website. You

may object to the Settlement by November 2, 2019. The Long-Form Notice available on the

Settlement Website explains how to exclude yourself or object. The Court will hold a Final Approval

Hearing on December 4, 2019, at 11:00 A.M. to consider whether to approve the Settlement, a

request for attorneys’ fees, and a service award to the Class Representative. You may appear at the

hearing, either yourself or through an attorney you hire, but you do not have to. For more

information, call, or visit the Settlement Website.

www.ACUOverdraftsFeeSettlement.com 1-877-241-6405


EXHIBIT B


If You Had a Checking Account with Advia Credit Union and You Were Charged an

Overdraft Fee Between November 19, 2009, and April 30, 2019, Then You May Be Entitled to a

Payment from a Class Action Settlement

A settlement has been reached in a class action lawsuit alleging that Advia Credit Union (“ACU”)

improperly charged overdraft fee(s) to two groups. The first is all members of ACU who were

charged an Overdraft Fee for any payment transaction from November 19, 2009 and April 30, 2019,

and, at the time such fee was imposed, that person had sufficient funds in the ledger balance but not

the available balance in his or her account to complete the transaction. The second group is all

members of ACU who were charged Overdraft Fees for ATM and debit card transaction for from

August 15, 2010 to April 30, 2019.

ACU does not deny it charged Overdraft Fees but contends it did so properly and in accordance with

the terms of its agreements and applicable law. ACU assessed Overdraft Fees based on the available

balance in a member’s account. ACU maintains that this practice is proper and was disclosed to its

members, and therefore denies that its practices give rise to claims for damages by the Named

Plaintiff or any Class Member. ACU also alleges that it properly gave notice and opted members into

its overdraft program for ATM and debit card transactions. The Court has not decided who is right.

Who is Included? You received this Notice because ACU’s records indicate that you are in one or

both groups that was alleged to have been charged improper overdraft fee(s). The Court directed that

this Notice be sent to all Class Members because each Class 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.

What Are the Settlement Terms? A portion of the Net Settlement Fund will be paid to Class

Members who filed a claim on a pro rata basis, less deduction for fees and costs. The remaining

funds from the Net Settlement Fund will be disbursed to Class Members who were assessed

Overdraft Fees for payments made when they had a positive ledger balance in their checking

accounts on a pro rata basis.

How Can I Get a Payment? If you are qualified, you may submit a Claim Form by the deadline

stated below online at www.ACUOverdraftsfeesettlement.com. To be valid, a Claim Form must be

completed fully and accurately, signed, and submitted timely. The deadline to file a claim is October

14, 2019.

Your Other Options. If you do not want to be legally bound by the Settlement, you must exclude

yourself by October 14, 2019. If you do not exclude yourself, you will release any claims you may

have, as more fully described in the Settlement Agreement, available at the Settlement Website. You

may object to the Settlement by November 2, 2019. The Long Form Notice available on the

Settlement Website explains how to exclude yourself or object. The Court will hold a Final Approval

Hearing on December 4, 2019 at 11:00 A.M. to consider whether to approve the Settlement, a

request for attorneys’ fees, and a service award to the Class Representative. You may appear at the

hearing, either yourself or through an attorney you hire, but you do not have to. For more

information, call, or visit the Settlement Website.

www.ACUoverdraftsfeesettlement.com 1-877-241-6405

Unique ID: <<Unique_ID>>

Number of Overdraft Fees: <<dynamic>>


http://www.acuoverdraftsfeesettlement.com/

EXHIBIT C


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Questions? Visit: www.ACUOverdraftsFeeSettlement.com Call: (877) 241-6405

Becky Pingston-Poling v.Advia Credit Union

NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT

READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENTMAY AFFECT YOUR RIGHTS!

IF YOU HAD A CHECKING ACCOUNT WITH ADVIA CREDIT UNION(“ACU”) AND YOU WERE CHARGED AN OVERDRAFT FEE BETWEEN

NOVEMBER 19, 2009, AND APRIL 30, 2019, THEN YOU MAY BEENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT.

The United States District Court for the Western District of Michigan has authorized thisNotice; it is not a solicitation from a lawyer.

SUMMARY OF YOUR OPTIONS AND THE LEGAL EFFECT OF EACH OPTION

MAKE A CLAIM You may make a claim for up to ten (10) overdraft fees which were paid by you on a debit card or ATM transaction if there was no refund of the overdraft fee regardless of the funds in your account. The number of such overdraft fees you may have incurred are shown on the Claim Form attached to this Notice. If you did not receive a Claim Form, then you have no eligible ATM or debit card fees of this type and therefore need not make a claim. You may still be entitled to payment for other Overdraft Fees. If you are eligible to make a claim for ATM and debit card fees, you should fill out and submit the Claim Form by October 14, 2019, or you might not receive any funds.

DO NOTHING Even if you do not make a claim, if you have incurred an Overdraft Fee on a debit card or ATM transaction, or any check, ACH, or other payment transaction while your ledger balance was sufficient to pay for the transaction, you will receive a payment from the settlement Fund if you do not opt out. However, you may receive more if you receive a Claim Form and make a claim.

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 ACU but you will not receive a payment. If you want to recover against ACU, then 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, you will receive a payment and you will not be able to sue ACU 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.


Y4562 v.06


BASIC INFORMATION

1. What is this lawsuit about?

The lawsuit that is being settled is entitled Becky Pingston-Poling v. Advia Credit Union, in the United States District Court for the Western District of Michigan, Case No. 1:15-cv-1208. The case is a “class action.” That means that the “Named Plaintiff,” Ms. Pingston-Poling is an individual who is acting on behalf of two groups. The first is all members of ACU who were charged an Overdraft Fee for any payment transaction from November 19, 2009 and April 30, 2019, and, at the time such fee was imposed, that person had sufficient funds in the ledger balance but not the available balance in his or her account to complete the transaction. The second group is all members of ACU who were charged Overdraft Fees for ATM and debit card transaction for from August 15, 2010 to April 30, 2019. The persons in these groups are collectively called the “Class Members.”

The Named Plaintiff claims ACU did not properly opt members into its overdraft program for ATM and debit card payment transactions. Plaintiff also alleges ACU improperly charged overdraft fees when members had enough money in the ledger balances of their checking accounts, but not in their available balances, to pay for the transaction in question. The Named Plaintiff is seeking a refund of alleged improper Overdraft Fees charged to Class Member accounts. ACU does not deny it charged Overdraft Fees but contends it did so properly and in accordance with the terms of its agreements and applicable law. ACU assessed Overdraft Fees based on the available balance in a member’s account. ACU maintains that this practice is proper and was disclosed to its members, and therefore denies that its practices give rise to claims for damages by the Named Plaintiff or any Class Member. ACU also alleges that it properly gave notice and opted members into its overdraft program for ATM and debit card transactions.

2. Why did I receive this Notice of this lawsuit?

You received this Notice because ACU’s records indicate that you are in one or both of the groups that was alleged to have been charged improper overdraft fee(s). The Court directed that this Notice be sent to all Class Members because each Class 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 Named Plaintiff’s 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, these lawyers, known as Class Counsel, make this recommendation to the Named Plaintiff. The Named Plaintiff has the duty to act in the best interests of the class as a whole and, in this case, it is her belief, as well as Class Counsel’s opinion, that this settlement is in the best interest of all Class Members for at least the following reasons:

There is legal uncertainty about whether a judge or a jury will find that ACU was contractually and otherwise legally obligated not to assess Overdraft Fees when the ledger balance was sufficient to pay for a transaction even though the available balance was not, and whether ACU properly opted members into its overdraft program for ATM and debit card transactions. There is also uncertainty about whether the Named Plaintiff’s claims are subject to other defenses that might result in Class Members receiving no recovery, or a substantially smaller recovery than that being offered here. Even if the Named Plaintiff were to win at trial, there is no assurance that the 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 Class Members will avoid these and other risks and the delays associated with continued litigation.

While ACU disputes Plaintiff’s claims, it has agreed to settle to avoid the costs, distractions and risks of litigation. Thus, even though ACU denies that it did anything improper, it believes settlement is in its best interest and in the best interests of all of its members.

WHO IS IN THE SETTLEMENT

4. How do I know if I am part of the settlement?

If you received this Notice, then ACU’s records indicate that you are a Class Member who is entitled to receive a payment or credit to your account.


Y4563 v.06


YOUR OPTIONS

5. What options do I have with respect to the settlement?

You have four options: (1) file a claim with the claims administrator on the Claim Form attached to this Notice to recover for the Overdraft Fees you were charged for ATM and debit card transactions pertaining to the Claim Form (if you did not receive a Claim Form then you were not assessed any eligible ATM and debit card fees); (2) do nothing and receive a payment according to the terms of this settlement for other Overdraft Fees you have been charged; (3) exclude yourself from the settlement (“opt out” of it); or (4) 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?

The deadline for sending a Claim Form to the Claims Administrator is October 14, 2019. If you do nothing, you may nonetheless receive settlement funds by credit to your account if you are still a member of ACU when the settlement is paid or via check mailed to your residence of record if you are not a member of ACU when the settlement is paid at the close of the claims period but only if you were assessed Overdraft Fees while you had sufficient funds in your account to cover the transaction.

The deadline for sending a letter to exclude yourself from or opt out of the settlement is October 14, 2019.

The deadline to file an objection with the Court is November 2, 2019.

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 will not be approved and no payments will be made to you or any other Class Member. If your objection (and any other objection) is overruled, and the settlement is approved, then you will still get a payment.

If you want to participate in the settlement, and the Claim Form attached to this Notice indicates you were assessed Overdraft Fees for ATM withdrawals or one-time (non-recurring) debit card signature payments, then you should fill out the Claim Form and return it. See Question 25, below. If you did not receive a Claim Form with this Notice, then ACU’s records indicate you were not assessed the type of Overdraft Fees for ATM withdrawals or debit card payments that are reimbursable under the claims portion of the settlement. In that case, you need not do anything and you will still receive a payment for other Overdraft Fees assessed when you had sufficient ledger balance in your account if you do not opt out.

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 this Notice. The Court will make a final decision regarding the settlement at a “Fairness Hearing” or “Final Approval Hearing”, which is currently scheduled for December 4, 2019.

THE SETTLEMENT PAYMENT

9. How much is the settlement?

ACU has agreed to create a Settlement Fund of $3,000,000. As discussed separately below, attorneys’ fees, litigation costs, a service award to the Named Plaintiff, and the costs paid to a third-party Claims Administrator to administer the settlement (including mailing and emailing this Notice) will be paid out of this amount. The balance of the Settlement Fund will be divided among all Class Members based on the amount of Eligible Overdraft Fees they paid, and if eligible to make a claim, whether they make a claim.


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10. How much of the Settlement Fund will be used to pay for attorneys’ fees and costs?

Class Counsel will request that the Court award up to $1,200,000 of the Settlement Fund as attorneys’ fees. Class Counsel will also request reimbursement of approximately $160,000 in litigation costs incurred in prosecuting the case. The Court will decide the amount of the attorneys’ fees based on a number of factors, including the risk associated with bringing the case, 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 Named Plaintiff a Service Award?

Class Counsel on behalf of the Named Plaintiff will request that the Court award her $10,000 for her role in securing this settlement on behalf of the class. The Court will decide if a Service Award is appropriate and if so, the amount of the award.

12. How much of the Settlement Fund will be used to pay the Class Administrator’s expenses?

The Claims Administrator has estimated its total costs at $100,453, and agreed to cap them at $111,831.

13. How much will my payment be?

If you have received a Claim Form and are qualified to make a claim, you may do so for up to ten of the ATM and debit card overdraft fees listed on the attached Claim Form, which will be paid from a portion of the Net Settlement Fund on a pro rata basis, less deduction for fees and costs. The remaining funds from the Net Settlement Fund will be disbursed to Class Members who were assessed Overdraft Fees for payments made when they had a positive ledger balance in their checking accounts on a pro rata basis.

14. Do I have to do anything if I want to participate in the settlement?

If you received a Claim Form with this Notice and it indicates you had qualifying Overdraft Fees from ATM and debit card transactions within the requisite period, then you should fill out the Claim Form and send it to the Administrator as provided in Question 25, below. If you received this Notice but there is no Claim Form attached, then you will still be entitled to receive a payment without having to make a claim for Overdraft Fees assessed when you had enough money in your account to pay the transaction that resulted in the fee, if you do not opt out. If you are qualified to make a claim, you may receive a greater payment if you do so.

15. When will I receive my payment?

The Court will hold a Fairness Hearing (explained below in Questions 22–24) on December 4, 2019 to consider whether the settlement should be approved. If the Court approves the settlement, then the Claims Administrator should begin processing and paying claims within about 10 days. 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.


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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 ACU 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 Claims Administrator that you want to be excluded. Your letter can simply say “I hereby elect to be excluded from the settlement in the Pingston-Poling v. Advia Credit Union class action.” Be sure to include your name, last four digits of your member number, address, telephone number, and email address. Your exclusion or opt out request must be postmarked by October 14, 2019, and sent to:

Pingston-Poling v. Advia Credit Union Claims AdministratorAttn: Epiq

PO Box 3747Portland, OR 97208-3747

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 ACU for the claims alleged in this case. However, you will not be entitled to receive a payment from this settlement.

18. If I exclude myself, can I obtain a payment?

No. If you exclude yourself, you will not be entitled to a payment.

OBJECTING TO THE SETTLEMENT

19. 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. (Class Members who exclude themselves from the settlement have no right to object to how other Class Members are treated.) To object, you must send a written document to the Claims Administrator at the address below. Your objection should say that you are a Class Member, that you object to the settlement, and the factual and legal reasons why you object, and whether you intend to appear at the hearing. In your objection, you must include your name, address, telephone number, email address (if applicable) and your signature.

All objections must be post-marked no later than November 2, 2019, and must be mailed to the Court as follows: United States District Court for the Western District of Michigan, 482 Federal Building, 110 Michigan Ave. NW, Grand Rapids, Michigan 49503.

And to the Claims Administrator as follows:

CLAIMS ADMINISTRATORPingston-Poling v. Advia Credit Union Claims Administrator

Attn: EpiqPO Box 3747

Portland, OR 97208-3747

20. 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 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 if the settlement is approved, but you will release claims you might have against ACU. 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 or release claims you might have against ACU for the claims alleged in this lawsuit.


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21. What happens if I object to the settlement?

If the Court sustains your objection, or the objection of any other Class Member, 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 FAIRNESS HEARING

22. When and where will the Court decide whether to approve the settlement?

The Court will hold a Final Approval or Fairness Hearing at 11:00 A.M. on December 4, 2019 at the United States District Court for the Western District of Michigan, located at 482 Federal Building, 110 Michigan Ave. NW, Grand Rapids, Michigan 49503. 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 expenses and how much the Named Plaintiff should get as a “Service Award” for acting as the class representative.

23. 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.

24. 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 19, above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

SUBMIT A CLAIM

25. How do I make a claim if I received a Claim Form?

If you received a Claim Form, then you should use it to make a claim. It should be filled out, signed, and sent to the Claims Administrator.

All claims must be post-marked no later than October 14, 2019, and must be mailed as follows:

CLAIMS ADMINISTRATORPingston-Poling v. Advia Credit Union Claims Administrator

Attn: EpiqPO Box 3747

Portland, OR 97208-3747

IF YOU DO NOTHING

26. What happens if I do nothing at all?

If you do nothing at all, and if the settlement is approved, then you may receive a payment that represents your share of the Settlement Fund net of attorneys’ fees, Claims Administrator expenses, and the Named Plaintiff’s Service Award. You will be considered a part of the class, and you will give up claims against ACU for the conduct alleged in this lawsuit. You will not give up any other claims you might have against ACU that are not part of this lawsuit.


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THE LAWYERS REPRESENTING YOU

27. 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 Class Members.

28. Do I have to pay the lawyer for accomplishing this result?

No. Class Counsel will be paid directly from the Settlement Fund.

29. 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 fees and costs and will specify the amount being sought as discussed above. You may review the fee application at ACUOverdraftsFeeSettlement.com or view a physical copy at the Office of the Clerk of the United States District Court for the Western District of Michigan, which is located at 482 Federal Building, 110 Michigan Ave. NW, Grand Rapids, Michigan 49503.

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 ACUOverdraftsFeeSettlement.com or at the Office of the Clerk of the United States District Court for the Western District of Michigan, which is located at 482 Federal Building, 110 Michigan Ave. NW, Grand Rapids, Michigan 49503, by asking for the court file containing the Motion For Preliminary approval of Class Settlement and all supporting declarations (the Settlement Agreement is attached to a declaration filed in support of the motion). 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 Claims Administrator as follows:



For more information you also can contact the Claims Administrator or Class Counsel as follows:



Richard D. McCune Taras Kick McCune Wright Arevalo, LLP The Kick Law Firm, APC3281 E. Guasti Road, Ste. 100 815 Moraga DriveOntario, CA 91761 Los Angeles, CA 90049 Telephone: (909) 557-1250 Telephone: (310) 395-2988 [email protected] [email protected]

PLEASE DO NOT CONTACT THE COURT OR ANY REPRESENTATIVE OF ACU CONCERNING THIS NOTICE OR THE SETTLEMENT


EXHIBIT D


01-CA4627Y4551 v.06


1



Pingston-Poling v. Advia Credit Union Claim Form

Please completely fill out the form below and send to the Claims Administrator.First Name: MI: Last Name:

Address (not a post office box):

City: State: ZIP Code:

Telephone Number:– –

Email Address:

Attn: Claims Administrator:I am making a claim for <<dynamic>> overdraft fees related to Regulation E Overdraft Fees for my member number ending in the last three digits of

.

I certify that I believe this number of overdraft fees is compensable under the Pingston-Poling v. Advia Credit Union settlement.

Signature: Date: – –MM DD YY

All claims must be postmarked no later than October 14, 2019 and must be mailed as follows:



Placeholder MailID Barcode *Placeholder Human-Readable MailID* required Unique ID: <<Unique ID>>


EXHIBIT E


Pingston-Poling v. Advia Credit Union

Opt-out Requests

Epiq ID Name

12971 THURSTON SANDLIN

74542 CASSANDRA MAJOR

105079 EUGENE MILOTZ

55437 TINA M DENNIS

105958 JANET SANDLIN


Documents

UNITED STATES DISTRICT COURT SOUTHERN DIVISION Civil …€¦ · Case 1:15-cv-01208-GJQ-RSK ECF No. 148-1 filed 10/20/19 PageID.4783 Page 1 of 10. developed and executed notice programs