Susan Roy v. ESL Federal Credit Union

Frequently Asked Questions

1. BASIC INFORMATION

1. What is this lawsuit about?

   The lawsuit that is being settled is entitled Susan Roy v. ESL Federal Credit Union. It is pending in the United States District Court for the Western District of New York, Case No. 6:19-cv-06122. The case is a “class action.” That means that the “Class Representative,” Susan Roy, is an individual who is acting on behalf of current and former members who were assessed certain Overdraft Fees and Returned Item Fees between January 1, 2016 to October 31, 2019. The Class Representative has asserted claims for breach of the account agreement and violations of New York’s Consumer Protection Laws.

   Defendant does not deny it charged the fees the Class Representative is 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 Representative or any Sufficient Funds Fee Class and/or Retry Fee Class members.

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

   You received the Notice because Defendant’s records indicate that you were charged one or more Overdraft Fees or Returned Item Fees that are the subject of this action. You may be a member of the Sufficient Funds Fee Class or Retry Fee Class, or both classes. The Court directed that the Notice be sent to all Sufficient Funds Fee Class and Retry Fee 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 Representative’s and her 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 Representative’s lawyers, known as Class Counsel, make this recommendation to the Class Representative. The Class Representative has the duty to act in the best interests of the classes 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 Sufficient Funds Fee Class and Retry Fee 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 Representative’s claims are subject to other defenses that might result in no or less recovery to Sufficient Funds Fee Class and Retry Fee Class members. Even if the Class Representative were to win at trial, there is no assurance that the Sufficient Funds Fee Class and Retry Fee 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 Sufficient Funds Fee Class and Retry Fee 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.

4. 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 Sufficient Funds Fee Class and/or the Retry Fee Class who may be entitled to receive a payment or credit to your Account, forgiveness of Uncollected Relevant Fees, or both. You may be a member of each class.

5. 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. In addition, you may enter an appearance by hiring your own counsel.

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 April 24, 2022.

   The deadline to file an objection with the Court is also April 24, 2022.

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. You may choose to exclude yourself from the Sufficient Funds Fee Class or Retry Fee Class, or both classes, if you are a member of both. If you are a member of one of the classes, then you may exclude yourself from that class.

   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 Sufficient Funds Fee Class and/or the Retry Fee Class, nor will any forgiveness of Uncollected Relevant Fees occur. 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 Sufficient Funds Fees and/or Retry 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 and/or forgiveness of Uncollected Relevant Fees 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 May 24, 2022.

9. THE SETTLEMENT PAYMENT

9. How much is the Settlement?

   Defendant has agreed to create a Settlement Fund of $935,000 for the Sufficient Funds Fee Class and $765,000 for the Retry Fee Class. It will also forgive Uncollected Sufficient Funds Fees for the Sufficient Funds Fee Class in an amount calculated to be $29,785.14, and forgive Uncollected Retry Fees for the Retry Fee Class in an amount calculated to be $100,973.22.

   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), and a Service Award to the Class Representative will be allocated between and paid out of the Settlement Fund for both the Sufficient Funds Fee Class and Retry Fee Class. Thereafter, the Sufficient Funds Fee Net Settlement Fund and Retry Fee Net Settlement Fund will be divided among all members of each of those classes entitled to Settlement Class Member Payments based on formulas described in the Settlement Agreement and stated in response to FAQ 13 below.

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 up to 33.33% of the Value of the Settlement, plus reimbursement of reasonable litigation costs, to be approved by the Court. 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 Representative a Service Award?

    Class Counsel will request that the Class Representative be paid a Service Award in the amount of $5,000.00 for her work in connection with this case. The Service Award 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 $45,719.00.

13. How much will my payment be?

    The balance of the Settlement Fund after attorneys’ fees and costs, the Service Award and the Settlement Administration Costs, 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 and summarized below:

    The Sufficient Funds Fee Net Settlement Fund shall be paid pro rata to the members of the Sufficient Funds Fee Class using the following calculation:

    • The dollar amount of the Sufficient Funds Fee Net Settlement Fund divided by the total number of Sufficient Funds Fees paid by all members of the Sufficient Funds Fee Class, which yields a per-fee amount.
    • Multiply the per-fee amount by the total number of Sufficient Funds Fees charged to and paid by each member of the Sufficient Funds Fee Class.
    • This results in a Sufficient Funds Fee Settlement Class Member Payment.

    The Retry Fee Net Settlement Fund shall be paid pro rata to the members of the Retry Fee Class using the following calculation:

    • The dollar amount of the Retry Fee Net Settlement Fund divided by the total number of Retry Fees paid by all members of the Retry Fee Class, which yields a per-fee amount.
    • Multiply the per-fee amount by the total number of Retry Fees charged to and paid by each member of the Retry Fee Class.
    • This results in a Retry Fee Class Settlement Class Member Payment.

    The total of the Sufficient Funds Fee Class Member Payment and/or the Retry Fee Class Member Payment due to each Settlement Class Member is the total Settlement Class Member Payment.

    Current members of Defendant entitled to a Settlement Class Member Payment will receive a credit to their Accounts for the amount they are entitled to receive. Former members of Defendant entitled to receive a Settlement Class Member Payment shall receive a check from the Settlement Administrator. Settlement Class Members entitled to forgiveness of Uncollected Sufficient Funds Fees and/or Uncollected Retry Fees shall receive this benefit automatically. You may receive both a cash payment and forgiveness of Uncollected Relevant Fees, if you are eligible for both Settlement benefits, or you may only be eligible for one of those Settlement benefits.

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 Fee and/or forgiveness of Uncollected Relevant Fees without having to make a claim, unless you choose to exclude yourself from the settlement, or “opt out.”

15. When will I receive my payment?

    The Court will hold a Final Approval Hearing on May 24, 2022 at 11:00am to consider whether the Settlement should be approved. If the Court approves the Settlement, then payments should be made or credits should be issued within 30 days of the Effective Date. 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.

16. EXCLUDING YOURSELF FROM THE SETTLEMENT

16. How do I exclude myself from the Settlement?

    If you do not want to receive a payment or debt forgiveness, 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 Susan Roy v. ESL Federal Credit Union class action.” Be sure to include your name, the last four digits of your member number(s) or former member number(s), address, telephone number, and email address. Your exclusion or opt out request must be postmarked by April 24, 2022, and sent to:

    Susan Roy v. ESL Federal Credit Union
    c/o Settlement Administrator
    Attn: Exclusion Request
    P.O. Box 58220
    Philadelphia, PA 19102

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 or forgiveness of Uncollected Relevant Fees from the Settlement.

    In the event an account has multiple Account Holders and one such individual opts out of the Settlement, all of the Account Holders will be deemed to have opted out of the Settlement.

18. 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 at the address below. Your objection must include the following information:

    1. the name of the Action;
    2. the objector’s full name, address and telephone number;
    3. all grounds for the objection;
    4. the identity of all counsel (if any) representing the objector who prepared the objection and/or will appear at the Final Approval Hearing;
    5. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and
    6. the objector’s signature (an attorney’s signature is not sufficient).

    All objections must be post-marked no later than April 24, 2022, and must be mailed to the Clerk of the Court as follows:

    Clerk of the U.S. Dist. Court for the Western District of New York
    100 State Street
    Rochester, NY 14614

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 Sufficient Funds Fee Class and/or the Retry Fee 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 Fee and/or forgiveness of Uncollected Relevant 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 Fee or forgiveness of Uncollected Relevant 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 Sufficient Funds Fee Class and/or the Retry Fee Class, then there may be no Settlement. If you object, but the Court overrules your objection and any other objection(s), then you will be part of the Settlement.

21. 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 11:00am on May 24, 2022 at the United States District Court for the Western District of New York, which is located at 100 State Street, Rochester, New York 14614. 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 Award to the Class Representative. The hearing will also be available on Zoom at the following link: https://nywd-uscourts.zoomgov.com/j/1600371022.

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 FAQ 18, above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

24. 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 the notice as “Class Counsel” will represent you and the other members of the Sufficient Funds Fee Class and/or Retry Fees Class.

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 copy of the fee application, once available, or by requesting the court record from the Clerk of the United States District Court for the Western District of New York at https://www.nywd.uscourts.gov/document-requests.

27. GETTING MORE INFORMATION

27. More information.

    The Notice only summarizes the proposed Settlement. More details are contained in the Settlement Agreement, the Renewed Motion for Preliminary Approval, which can be viewed/obtained on this website or at the Office of the Clerk of the United States District Court for the Western District of New York, which is located at 100 State Street, Rochester, NY 14614, by asking for the Court file containing the Renewed Motion for Preliminary Approval (the Revised Settlement Agreement is attached to the motion) or obtaining a copy by requesting a copy from the Clerk of the United States District Court for the Western District of New York at https://www.nywd.uscourts.gov/document-requests.

    For additional information about the settlement and/or to obtain copies of the Revised Settlement Agreement, or to change your address for purposes of receiving a payment, you should contact the Settlement Administrator as follows:

    Susan Roy v. ESL Federal Credit Union
    Attn: SETTLEMENT ADMINISTRATOR
    1650 Arch Street, Suite 2210
    Philadelphia, PA 19103

    For more information, you also can contact the Class Counsel as follows:

    Sophia Goren Gold KALIEL GOLD PLLC 1100 15th St. NW 4th Floor Washington, DC 20005 202-350-4783 sgold@kalielgold.com

    Jeffrey Ostrow Jonathan M. Streisfeld KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard Suite 500 Fort Lauderdale, Florida 33301 954-525-4100 954-525-4300 ostrow@kolawyers.com streisfeld@kolawyers.com

    Andrea Gold, Esq. TYCKO & ZAVAREEI LLP 1828 L St. NW, Suite 1000 Washington, DC 20036 202-973-0900 agold@tzlegal.com

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