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Settlement update: June 28, 2013

On June 28, 2013, the 1-800 telephone number referenced on this site or previous Settlement Administrator mailings will be disconnected.  Any inquiries or requests can continue via written correspondence, addressed to Checking Account Overdraft Litigation, c/o Rust Consulting Inc., P.O. Box 2812, Faribault, MN 55021-8617.  This includes requests for re-issued checks.  As a reminder, checks issued February 15, 2013 have an expiration date of August 14, 2013, and requests for re-issuance of any checks should be made prior to the expiration date.
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 Settlement update: january 28, 2013

The Court granted Final Approval of the Settlement on December 18, 2012.  Distribution of awards by account credit for current customers or by mailed check for former customers is currently scheduled to be completed by mid-to-late February.

Most current Bank of the West customers will see a credit to their account effective January 29, 2013 with the following descriptor: "Credit from overdraft settlement 800-383-5319."  Online customers will see the credit as of Janaury 30, 2013.  The credit will appear on paper and electronic versions of statements covering the January 29 time period.

Former Bank of the West customers and a small number of current customers, such as those with inactive accounts, will receive payment in the form of a check from Bank of the West Overdraft Litigation, C/O Rust Consulting, Inc., mailed in mid-to-late February.  The check will arrive in an envelope from Bank of the West Overdraft Litigation, C/O Rust Consulting, Inc.

Notice

CLICK HERE FOR A PRINTER-FRIENDLY VERSION OF THE NOTICE

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

If You Paid Overdraft Fees to Bank of the West,

You May Be Eligible for a Payment from a Class Action Settlement.

A federal court authorized this notice. This is not a solicitation from a lawyer.

·          An $18 million Settlement has been reached in a class action about the order in which Bank of the West posted Debit Card Transactions to customer accounts, and the alleged effect the posting order had on the number of Overdraft Fees charged to account holders. Bank of the West maintains that there was nothing wrong about the posting process used and that it has not violated any laws.

·          Current and former holders of Bank of the West consumer checking accounts may be eligible for a payment or account credit from the Settlement Fund.

·           Your legal rights are affected whether you act or don’t act. Read this notice carefully.

Summary of Your Legal Rights and Options in this Settlement

 

Receive A Payment Or Account Credit

 

If you are entitled under the Settlement to a payment or account credit, you do not have to do anything to receive it. If the Court approves the Settlement and it becomes final and effective, and you remain in the Settlement Class, you will automatically receive a payment or account credit.

Exclude Yourself From The Settlement

Receive no benefit from the Settlement. This is the only option that allows you to retain your right to bring any other lawsuit against Bank of the West about the claims in this case.

Object

Write to the Court if you do not like the Settlement.

Go To A Hearing

Ask to speak in Court about the fairness of the Settlement.

Do Nothing

You will receive any payment or account credit to which you are entitled, and will give up your right to bring your own lawsuit against Bank of the West about the claims in this case.

·           These rights and options – and the deadlines to exercise them – are explained in this notice.

·           The Court in charge of this case still has to decide whether to approve the Settlement. Payments and account credits will be provided if the Court approves the Settlement and after any appeals are resolved. Please be patient.


WHAT THIS NOTICE CONTAINS

 

BASIC INFORMATION                                                                                        

1.         Why is there a notice?

2.         What is this lawsuit about?

3.         What is an overdraft fee?

4.         Why is this a class action?

5.         Why is there a Settlement?

 

WHO IS IN THE SETTLEMENT                                                                        

6.         Who is included in the Settlement?

 

THE SETTLEMENT’S BENEFITS                                                                     

7.         What does the Settlement provide?

8.         How do I receive a payment or account credit?

9.         What am I giving up to stay in the Settlement Class?

 

EXCLUDING YOURSELF FROM THE SETTLEMENT                               

10.     How do I get out of the Settlement?

11.     If I don’t exclude myself, can I sue Bank of the West for the same thing later?

12.     If I exclude myself from the Settlement, can I still receive a payment?

 

THE LAWYERS REPRESENTING YOU                                                          

13.     Do I have a lawyer in this case?

14.     How will the lawyers be paid?

 

OBJECTING TO THE SETTLEMENT                                                              

15.     How do I tell the Court that I don’t like the Settlement?

16.     What’s the difference between objecting and excluding?

 

THE COURT’S FINAL APPROVAL HEARING                                              

17.     When and where will the Court decide whether to approve the Settlement?

18.     Do I have to come to the hearing?

19.     May I speak at the hearing?

 

IF YOU DO NOTHING                                                                                          

20.     What happens if I do nothing at all?

 

GETTING MORE INFORMATION                                                                    

21.     How do I get more information?


BASIC INFORMATION

1.      Why is there a notice?

A Court authorized this notice because you have a right to know about the proposed Settlement of this class action lawsuit and about all of your options, before the Court decides whether to give final approval to the Settlement. This notice explains the lawsuit, the Settlement and your legal rights.

Senior Judge James Lawrence King, of the U.S. District Court for the Southern District of Florida, is overseeing this case. The case is known as In Re: Checking Account Overdraft Litigation, 1:09-MD-02036-JLK. The people who sued are called the “Plaintiffs.” The defendant is Bank of the West.

2.      What is this lawsuit about?

The lawsuit claims that Bank of the West posted Debit Card Transactions in the order of highest-to-lowest dollar amount, which Plaintiffs argue results in an increased number of Overdraft Fees assessed to customers. The complaint in this Action is posted on this website, and contains all of the allegations and claims asserted against Bank of the West. Bank of the West maintains that there was nothing wrong about the posting process it used and that it has not violated any laws.

3.       What is an overdraft fee?

An Overdraft Fee may be assessed when a customer’s withdrawals from a bank account exceed the available balance.

4.      Why is this a class action?

In a class action, one or more people, called class representatives (in this case, three Bank of the West customers who were assessed Overdraft Fees), sue on behalf of people who have similar claims.

All of the people who have claims similar to the class representatives are members of the Settlement Class, except for those who exclude themselves from the class.

5.      Why is there a Settlement?

The Court has not decided in favor of either Plaintiffs or Bank of the West. Instead, both sides agreed to the Settlement. By agreeing to the Settlement, the parties avoid the costs and uncertainty of a trial, and Settlement Class Members receive the benefits described in this notice. The class representatives and their attorneys think the Settlement is best for everyone who is affected.

WHO IS IN THE SETTLEMENT?

If you received notice of the Settlement from a postcard addressed to you, then you are in the Settlement Class. But even if you did not receive a postcard with Settlement notice, you may still be in the Settlement Class, as described below.

6.      Who is included in the Settlement?

You are included in the Settlement Class if you had one or more Bank of the West consumer checking accounts that you could access with a Debit Card and, at any time between June 1, 2005 and July 1, 2011, incurred an Overdraft Fee as a result of Bank of the West’s practice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period. If this happened to you, you may be in the Settlement Class. If it did not happen to you, you are not a member of the Settlement Class. Further, you are not eligible for a payment under the Settlement if your Account was closed with a negative balance and the amount of the benefits that would otherwise be provided for in the Settlement would be insufficient to make the balance in that Account positive. You may contact the Settlement Administrator if you have any questions as to whether you are in the Settlement Class.

THE SETTLEMENT’S BENEFITS

7.      What does the Settlement provide?

Bank of the West has agreed to establish a Settlement Fund of $18 million from which identifiable Settlement Class Members may receive payments or account credits. The amount of such payments or account credits cannot be determined at this time. However, it will be based on the number of people in the Settlement Class and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of Bank of the West’s posting order practice. Bank of the West will separately pay for settlement administration and related costs; such amounts will not come out of the $18 million Settlement Fund.

8.      How do I receive a payment or account credit?

If you are in the Settlement Class and entitled to receive a cash benefit, you do not need to do anything to receive a payment or account credit. If the Court approves the Settlement and it becomes final and effective, you will automatically receive a payment or account credit.

9.      What am I giving up to stay in the Settlement Class?

Unless you exclude yourself from the Settlement Class, you cannot sue, continue to sue or be part of any other lawsuit against Bank of the West about the legal issues in this case. It also means that all of the decisions by the Court will bind you. The “Release of Claims” included in the Settlement Agreement describes the precise legal claims that you give up if you remain in the Settlement. The Settlement Agreement is available on this website by clicking here.

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you do not want benefits from the Settlement, and you want to keep the right to sue or continue to sue Bank of the West on your own about the legal issues in this case, then you must take steps to get out of the Settlement. This is called excluding yourself – or it is sometimes referred to as “opting out” of the Settlement Class.

10.  How do I get out of the Settlement?

To exclude yourself from the Settlement, you must send a letter that includes the following:

·           Your name, address and telephone number;

·           A statement that you want to be excluded from the Bank of the West Settlement in In Re:  Checking Account Overdraft Litigation, 1:09-MD-02036-JLK; and

·           Your signature.

You must mail your exclusion request, postmarked no later than November 6, 2012, to:

Checking Account Overdraft Litigation Exclusions

c/o Rust Consulting, Inc. 

P.O. Box 2812

Faribault, MN 55021-8617

 

11.  If I don’t exclude myself, can I sue Bank of the West for the same thing later?

No. Unless you exclude yourself, you give up the right to sue Bank of the West for the claims that the Settlement resolves. You must exclude yourself from this Settlement Class in order to try to pursue your own lawsuit.

12.  If I exclude myself from the Settlement, can I still receive a payment?

No. You will not receive a payment or account credit if you exclude yourself from the Settlement.

THE LAWYERS REPRESENTING YOU

13.  Do I have a lawyer in this case?

The Court has appointed lawyers to represent you and others in the Settlement Class as “Class Counsel,” including:

Michael Sobol

Lieff Cabraser Heimann & Bernstein, LLP

Embarcadero Center West

275 Battery Street, 29th Floor

San Francisco, CA 94111-3339

Robert C. Gilbert

Grossman Roth, P.A.

2525 Ponce de Leon Blvd., Ste. 1150

Miami, FL 33134

 

Jeffrey M. Ostrow

Kopelowitz Ostrow P.A.

200 SW 1st Avenue, Ste. 1200

Fort Lauderdale, FL 33301

Class Counsel will represent you and others in the Settlement Class. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

14.  How will the lawyers be paid?

Class Counsel intends to request up to 30 percent of the money in the Settlement Fund for attorneys’ fees, plus reimbursement of their expenses incurred in connection with prosecuting this case. The fees and expenses awarded by the Court will be paid out of the Settlement Fund. The Court will determine the amount of fees and expenses to award. Class Counsel will also request that up to $5,000 per Plaintiff be paid from the Settlement Fund to the three class representatives for their service to the entire Settlement Class.

OBJECTING TO THE SETTLEMENT

You can tell the Court that you do not agree with the Settlement or some part of it.

15.  How do I tell the Court that I don’t like the Settlement?

If you are a member of the Settlement Class, you can object to any part of the Settlement, the Settlement as a whole, Class Counsel’s requests for fees and expenses and/or Class Counsel’s request for service awards for Plaintiffs. To object, you must submit a letter that includes the following:

·           The name of this case, which is In Re: Checking Account Overdraft Litigation, 1:09-MD-02036-JLK;

·           Your full name, address and telephone number;

·           An explanation of the basis upon which you claim to be a member of the Settlement Class;

·           All grounds for the objection, accompanied by any legal support for the objection known to you or your counsel;

·           The identity of all counsel who represent you, 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;

·           The number of times in which you have objected to a class action settlement within the five years preceding the date that you file the objection, the caption of each case in which you have made such objection and a copy of any orders or opinions related to or ruling upon the prior objections that were issued by the trial and appellate courts in each listed case;

·           Any and all agreements that relate to the objection or the process of objecting – whether written or verbal – between you or your counsel and any other person or entity;

·           The identity of all counsel representing you who will appear at the hearing that the Court has scheduled to determine whether to grant final approval to the Settlement and Class Counsel’s request for attorneys’ fees and service awards to Plaintiffs (the “Final Approval Hearing”);

·           The number of times in which your counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that you file the 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 firm’s prior objections that were issued by the trial and appellate courts in each listed case;

·           A list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;

·           A statement confirming whether you intend to personally appear and/or testify at the Final Approval Hearing; and

·           Your signature (an attorney’s signature is not sufficient).

You must submit your objection to the following addresses, so that it is received by all the people listed below no later than November 6, 2012:

 

Clerk of the Court

U.S. District Court for the

  Southern District of Florida James Lawrence King

  Federal Justice Building

99 Northeast Fourth Street Miami, FL 33128

Checking Account

  Overdraft Litigation

P.O. Box 2812

c/o Rust Consulting Inc.

Faribault, MN 55021-8617

 

Michael Sobol

Lieff Cabraser Heimann &

  Bernstein, LLP

Embarcadero Center West

275 Battery Street

29th Floor

San Francisco, CA 94111

Jeffrey M. Ostrow

Kopelowitz Ostrow P.A.

200 SW 1st Avenue

Suite 1200

Fort Lauderdale, FL 33301

Robert C. Gilbert

Grossman Roth,P.A.

2525 Ponce de Leon   Boulevard, Suite 1150 Miami, FL 33134

Lisa M. Simonetti

Stroock & Stroock &     

  Lavan LLP

2029 Century Park East

Los Angeles, CA 90067

 

16.  What’s the difference between objecting and excluding?

Objecting is telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you don’t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object to the Settlement because it no longer affects you.

THE COURT’S FINAL APPROVAL HEARING

The Court will hold the Final Approval Hearing to decide whether to approve the Settlement and the request for attorneys’ fees and service awards for Plaintiffs. You may attend and you may ask to speak, but you don’t have to do so.

17.  When and where will the Court decide whether to approve the Settlement?

The Court will hold a Final Approval Hearing at 9:30 a.m. on December 6, 2012, at the United States District Court for Southern District of Florida, Miami Division, located at James Lawrence King Federal Justice Building, 99 Northeast Fourth Street, Miami, FL 33128. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check this website for updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. The Court will also consider any request by Class Counsel for attorneys’ fees and expenses and for service awards for Plaintiffs. If there are objections, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

18.  Do I have to come to the hearing?

No. Class Counsel will answer any questions the Court may have. But, you may come at your own expense. If you send an objection, you don’t have to come to Court to talk about it. As long as you submitted your written objection on time, to the proper address and it complies with the requirements set forth above, the Court will consider it. You may also pay your own lawyer to attend, but it’s not necessary.

19.  May I speak at the hearing?

You may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your Notice of Intention to Appear must include the following:

·           Your name, address and telephone number;

·           A statement that this is your “Notice of Intention to Appear” at the Final Approval Hearing for the Bank of the West Settlement in In Re: Checking Account Overdraft Litigation, 1:09-MD-02036-JLK;

·           The reasons you want to be heard;

·           Copies of any papers, exhibits, or other evidence or information that is to be presented to the Court at the Final Approval Hearing; and

·           Your signature.

You must submit your Notice of Intention to Appear, so that it is received no later than November 6, 2012, to all of the addresses in Question 15.

IF YOU DO NOTHING

20.  What happens if I do nothing at all?

If you do nothing, you will still receive the benefits to which you are entitled. Unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit or be part of any other lawsuit against Bank of the West relating to the issues in this case.

GETTING MORE INFORMATION

21.  How do I get more information?

The Notice summarizes the proposed Settlement. More details can be found in the Settlement Agreement. You can obtain a copy of the Settlement Agreement on this website by clicking here.  You may also write with questions to Checking Account Overdraft Litigation, c/o Rust Consulting Inc., P.O. Box 2812, Faribault, MN 55021-8617, or call the toll-free number, 1-800-383-5319. Do not contact Bank of the West or the Court for information.

Disclaimer

Please do not contact either Bank of the West or the Court with questions about this Settlement. Any and all callers will be directed to this website. If you have questions, please refer to the FAQs and the other information posted here or contact the Settlement Administrator by calling 1-800-383-5319 or writing to Checking Account Overdraft Litigation, c/o Rust Consulting, Inc., P.O. Box 2812, Faribault, MN 55021-8617.

This site is not operated by Bank of the West. This class action Settlement is supervised by the Court and is administered by an administration firm that handles all aspects of claims processing. Bank of the West is not authorized to respond to questions from members of the Settlement Class regarding the Settlement.

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