U NITED STA TES DISTRIC T C O U R T SO UTH ERN D ISTR IC T O F FLO RIDA
M IA M I D IV ISIO N CASE N o. 1:09-M D -02036-R K IN RE : C H ECK IN G A C C O UN T
O VER D R AFT LITIG A TIO N M DL N o. 2036
TH IS D O CU M EN T R ELA TES TO :
FO UR TH TM N C H E A C TION S
Cas6bvuran, et al. v. PN C Bank, N A .
D .N .J. Case N o. 2:09-5155
S.D . Fla. Case N o. 10-cv-20496-JLK Cowen, et al. v. PN C Bank, N A. S.D . Fla. Case N o. 10-cv-21869-JLK
Hèrnandez,
et al.
v.
PNC
Bank N A.
S.D . Fla. Case N o. 10-cv-21868-JLK
O R D ER GM N TIN G JO IN T M O T IO N TO A U TH O R IZE D ISTR IBU TIO N O F SETTLEM EN T FU ND PA Y M EN TS
TH IS CA U SE cam e before the Court upon the Joint M otion to A uthorize D istribution of
Settlement Fund Payments Ct
loint M otion''
) ûled by Settlement Class Counsel
and Defendant
'
NC Bnnk N.
A.
pursuant to the February 10,
2014 Order (DE # 3581).1
The Court now enters
1
,
this O rder based on the Joint M otion and accom panying declarations subm itted by Settlem ent
Class Counsel and PNC.
(DE # 3798).
1
Except as specifically modified by the Final
Approval
Order and/or Final Judgment (DE #
3580,
358
1),
a11 capitalized defined terms used herein have the meaning set forth in the
Settlem ent A greem ent and Release and A m endm ent to Settlem ent A greem ent and Release
Backzround
This A ction w as com m enced in October 2009. Plaintiffs sued on behalf of them selves and a11 others sim ilarly situated w ho incurred Overdraft Fees as a result of PN C'S practice of H igh-to-laow Posting of Debit Card Transactions. The Parties actively litigated this A ction for nearly three years.
On M ay 16, 2012 the Court entered an Order granting Plaintiffs' m otion for class
certification.
(DE # 2697).
On June 26,
2012,
Settlement Class Counsel
and PNC fled a Joint
Notice of
Settlement (DE # 2792), which notified the Court that they had reached an agreement
to resolve the pending litigation, and requesting suspension of all case deadlines pending the drafting and execution of a snal settlem ent agreem ent. The Court granted that request on June
27,
2012.
(DE # 2793).
In December 2012,
the Parties executed the Agreement resolving all
clisputes that tmderlie this Action.
(DE # 3505-1).
The Court
granted Preliminary Approval to
the Settlement on Janllngy 4,
2013.
(DE # 3151).
ln the Spring of 2013,
the Notice
A dm inistrator provided Class N otice to approxim ately 960,000 Settlem ent Class M em bers via:
(1) published notice in twentpone (21) of the highest daily circulation newspapers and/or
new spapers that w ere m ore likely to be read by Settlem ent Class M em bers in the geographic
markets where PNC maintained branches during the Class Period ('
DE # 3505-5) Cd
published
Notice'
);
direct postcard mailings to the last known address of
each identit
iable Settlement Class
Idember (DE # 3505-5) (dtMailed Notice');
and through publication of Long Form notice on the
Settlement W ebsite (ttLong Form Notice'
).
(DE # 3505-5).
On A ugust 5, 2013, this Court entered the Final A pproval Order and Final Judgm ent.
(DE # 3580,
358
1).
No appeals were taken.
Ptlrsuant to the terms of the Settlement and the
Settlement Class Members by February 7,
2014 (within 150 days after the Effective Date).
(DE
# 3505-1 at ! 108).
Settlement Fund Payments to Sett
lement Class M embers who are Current
Account H olders are to be m ade by PN C by issuing credits to Settlem ent Class M em bers' PN C A ccounts or by m ailed check in those instnnces w here it is not feasible or reasonable to m ake the paym ent by a credit, and Settlem ent Fund Paym ents to eligible Past A ccount H olders are to be
made via checks mailed by the Settlement Administrator.(DE # 3505-1 at !! 114,
116).
On February 3,
2014,
Settlement Class Counsel and PNC jointly moved to temporarily
suspend the deadline for distributing Settlem ent Fund Paym ents because of a recently-detected
technical error.
(DE # 3780).
On February 10,2014,
the Court
temporarily suspended the
deadline for distributing Settlem ent Fund Paym ents, and directed Settlem ent Class Cotm sel and PN C to subm it a m otion describing the nature of the technical error that necessitated the tem porary suspension of paym ent deadlines and setting forth a plan for distributing the
Settlement Fund Payments as soon as possible.
(DE # 3782).
Findinzs of Fact and C onclusions of L aw
The Court has reviewed the Joint M otion and all declarations attached thereto. Based on the declaration of PN C Vice President D aniel G affney, the Court is satisfied that the technical error, w hereby PN C included the m 'ong nam es and addresses for approxim ately 360,000 Settlem ent Class M em bers when com piling the m aster database for transm ittal to the N otice A dm inistrator in January 2013, w as tmintentional and occurred as a result of a coding m istake.
N otw ithstanding the foregoing error, based on the inform ation set forth in the
declarations of R icky Borges of Epiq Class A ction & M ass Tort Solutions, Inc., the N otice
A dm inistrator and Settlem ent Adm inistrator, as w ell as G w endolyn Friedm an, Senior M anager, Research System s w ith Ballard Spnhr, LLP, PN C 'S cotm sel in this A ction, and the opinions
expressed in the supplem ental declaration of Professor Brian Fitzpatrick of Vanderbilt Law
School,
a recognized expert on Rule 23 and class actionjurisprudence,
the Court is satisfied that
the N otice Program set forth under the Settlem ent, and perform ed by the N otice A dm inistrator, w as com prehensive and provided sufficient notice to a11 persons entitled to receive N otice of the
Settlement,
as well an adequate time to opt-out or object to the Settlement.
As this Court
noted in the Final
Approval
Order (DE # 3580),
the Settlement was also
w idely publicized prior to the deadline for Settlem ent Class M em bers to tim ely subm it requests
for exclusion or objections to the Settlement.
Settlement Class M embers received notice of the
Settlem ent through local and internet new s sources. N ew s reports of the Settlem ent appeared in 40 newspapers, in 93 published articles between June 26, 2012, when the Parties first filed the
Joint Notice of Settlement (DE # 2792) and April 12,
2013,
the deadline for timely submitting
requests for exclusion and objections.
The effectiveness of the Notice Progrnm is demonstrated
by the fact that 25% of
the objections to the Sett
lement were filed by Settlement Class Members
w ho did not receive Postcard N otice.
Federal courts that have addressed the adequacy of notice in sim ilar contexts have fbcused on whether the breadth of notice program provided a reasonable opporttm ity to the class
as a whole for the full range of relevant objections to be raised.
The United States Court
of
Appeals for the Ninth Circuit held that settlement of a Rule 23(b)(3) class was proper and valid
even though approxim ately one-third of the class m em bers did not receive tim ely notice. See
Tt
vrgf v.
Tucson Electric Power Co.,
8 F.3d 1370 (9th Cir.
1993).
In Torrisi,
the Court
r'
easoned:
t
tl-
flhe question before us today is not whether some individual
shareholders got
adequate notice, but w hether the class as a w hole had notice adequate to flush out whatever
534 F.3d 508,
514 (6th Cir.
2008) (affirming settlement where twenty percent of class did not
receive timely notice).
A s in Torrisi and Fï#e/, the N otice Program under the Settlem ent here w as legally s'ufficient because the Settlem ent Class as a whole was provided with adequate notice through the N otice Program . The w ide distribution of N otice through the Publication N otice, and the
Settlement W ebsite and toll-free number two months before the opt-out and objection period
elapsed provided adequate opportunity to flush out whatever objectionsmight reasonably be
raised to the Settlem ent, even though approxim ately one-third of the Settlem ent Class M em bers did not receive individual Postcard N otice of the Settlem ent as a result of PN C 'S acknow ledged error in providing the data to the N otice A dm inistrator. In addition to the Court-ordered N otice P'rogram , widespread coverage of the Settlem ent in local print m edia and contem poraneous
internet coverage created further opporttmity to flush out any objections that might have been
reasonably raised to the Settlem ent. Indeed, the sufficiency of the N otice Progrnm is supported
not simply by the breadth of the Notice Progrnm,
but also by the fact that 25% of the objections
were subm itted by individuals w ho did not receive Postcard N otice. ytccording to Professor
F'
itzpatrick,
due process does not require that an additional period for opt-outs or objections be
provided to those Settlem ent Class M em bers w ho w ere not provided w ith Postcard N otice as a result of PN C'S error.
Based on the foregoing, the Court finds and concludes that there is no legal im perative
that requires nor warrants an additional
period for opt-outs or objections to those Settlement
Class M em bers w ho w ere not provided w ith Postcard N otice as a result of PN C'S error. The N otice Progrnm satisfied all applicable requirem ents of law including, but not lim ited to, Federal
N otwithstanding the foregoing findings and conclusions, in an abtm dance of caution, the Court w ill afford the approxim ately 360,000 Settlem ent Class M em bers w ho were not m ailed Postcard N otice as a result of PN C 'S error w ith a brief additional opportunity to exclude them selves from the Settlem ent, should they choose to do so. The process for affording those Settlem ent Class M em bers the additional opportunity to opt-out shall be undertaken and canied out as set forth in the Joint M otion, including use of the special language on the check stub of the checks to be distributed to those Settlem ent Class M em bers notifying them of their additional opportunity to opt-out w ithin the additional 30-day period. Should any Settlem ent Class M em bers w ho receive Settlem ent Fund Paym ent checks w ith this m essage tim ely and properly subm it requests for exclusion w ithin the additional 30-day period, Settlem ent C lass Counsel and F'N C shall file an A ddendum Exhibit A-1 to the Final Judgm ent, updating the list of exclusions in Exhibit A to the Final Judgm ent.
C onclusion
B ased on the foregoing, it is O RD ER ED and A D JU D GED as follow s:
Settlem ent Class Counsel, PN C, and the Settlem ent A dm inistrator are hereby authorized and directed to proceed w ith the distribution of Settlem ent Fund Paym ents to eligible Settlem ent Class M em bers as soon as possible, but no later than 60 days from the entry of the Order. Except as otherwise provided herein, PNC and the Settlement Administrator shall utilize the sam e procedures for distribution of Settlem ent Fund Paym ents as set forth in the Settlem ent. PN C shall issue accotm t credits to a11 eligible Settlem ent Class M em bers w ho are Current A ccount H olders, and the Settlem ent Adm inistrator shall m ail checks to al1 eligible Past A ccotm t H olders at their last know n addresses.
W ithin 60 days follow ing entry of an Order authorizing distribution of Settlem ent F'und Paym ents to eligible Settlem ent Class M em bers, PN C and the Settlem ent A dm inistrator shall distribute Settlem ent Fund Paym ents to al1 eligible Settlem ent Class M em bers who w ere previously sent Postcard N otice and/or w ho filed Claim s utilizing the sam e procedures for distribution of Settlem ent Fund Paym ents as set forth in the Settlem ent. These Settlem ent Fund F'aym ents shall be distributed to approxim ately 600,000 eligible Settlem ent Class M em bers unaffected by PN C'S data error described in the Joint M otion.
At the sam e tim e as the foregoing Settlem ent Fund Paym ents are distributed, the Settlem ent A dm inistrator shall also m ail Settlem ent Fund Paym ents in the form of checks to approxim ately 360,000 Settlem ent Class M em bers w ho w ere not previously m ailed Postcard N otice as a result of PN C 'S data error discussed in the Joint M otion. The check stub on these checks shall contain substantially the following language:
This check is your paym ent for settlem ent of a class action law suit settlem ent in the cases brought against PN C Bank, N .A . that were m ade part of In Re: Checking Account Overdra.
h L
iti
gations
Case No.
1:
09-md-02036-JLK.
You may
go to m .pN cBankoverdrahsedlem ent.com to read about the law suit and the settlem ent. A lthough N otice was previously provided to the Settlem ent Class, the C ourt has decided that you should be given an additional 30 days to exclude yourself from the Settlem ent, should you choose to do so. If you w ish to exclude yourself from the Settlem ent you m ust sign the enclosed Check Stub w here indicated below and m ail this form , along w ith the attached undeposited check, to PN C Overdraft Settlem ents PO Box 3219, Portland, Oregon 97208-3219 no
later than IDATE TO BE INSERTED BASED ON 30 DAYS FROM DATE
OF CHECK M AILINGI.
lf you deposit this check,
you relinquish your
additional right to opt-out of the Settlem ent, and w ill be bound by the term s of the Settlem ent and the Final Judgm ent. lf you do not sign this Check Stub and return
it along wi
th the undeposited check,
by (DATE TO BE INSERTED BASED
ON 30 DAYS FROM DATE OF CHECK M AILINGI,
you will
remain bound
by the term s of the Settlem ent and Final Judgm ent. lf you do not opt out, w e encotlrage you to prom ptly deposit the check.
The exclusion language that w ill appear above the signature line on the check stub shall read as follow s: tiBy signing belom I elect to exclude m yself from the PN C O verdraft
Settlem ent-''
4. Settlem ent Class Cotm sel and PN C shall file a report with the C ourt w ithin sixty
(60) days following the distribution of the Settlement Ftmd Payments pursuant to this Order,
advising the Court that distribution of Settlement Ftmd Payments has occurred as provided herein, and notifying the Court of any additional issues that m ay arise in connection therew ith.
A s part of their report, Settlem ent Class Counsel and PN C shall include a list of al1 Settlem ent Class M em bers who received Settlem ent Fund Paym ent checks w ith the foregoing m essage and w ho tim ely and properly
provided herein. The list of those Settlem ent Class M em bers shall also be filed separately as an Addendum Exhibit A-1 to the Final Judgm ent, updating the list of exclusions in Exhibit A to the submit requests for exclusion within the additional 30-day period
Final Judgment.
(DE # 3581).
Except as specifically m odified by this Order, a11 term s and provisions of the
Settlement (DE # 3505-1,
3505-2),
the Final
Approval Order (DE # 3580),
and the Final
Judgment (DE # 3581) remain unchanged.
DON E AN D O RD ERED in Cham bers at the Jam es Lawrence King Federal Justice Building and United states courthouse in M iam i, Florida this day of M arch, 2014.
JAM ES LAW RENCE K I
NITED STATES DISTR ICT DG E SO UTH ER N DISTRICT O F FL RIDA
