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Shannon Schulte, On Behalf of Herself and All Others Similarly Situated v. Fifth Third Bank

July 29, 2011

SHANNON SCHULTE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF,
v.
FIFTH THIRD BANK DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is the settling parties' motion for final approval of the settlement and Class Counsel's motion for approval of attorneys' fees, costs, and expenses, and for approval of incentive awards for the Class Representatives [103]. For the reasons explained below, the motion is granted in part and denied in part. Specifically, the Court (1) grants final approval of the settlement, finding that the settlement is fair, reasonable, and adequate; (2) approves Class Counsel's request for attorneys' fees of $3,166,666; (3) denies Class Counsel's request for cost and expense reimbursement without prejudice; and (4) approves an incentive award of $1,000 each for the Class Representatives, Shannon Schulte and Marlene Willard.

I. Factual Background

A. History of the Litigation

Plaintiff filed her class action complaint in this case [1]*fn1 on November 21, 2009. In their complaints, Plaintiffs allege that they were Fifth Third*fn2 accountholders and had used a debit card in connection with their accounts. Plaintiffs further allege that Fifth Third improperly assessed them (and other Fifth Third customers) overdraft fees for insufficient funds on debit card purchases and ATM withdrawals by "re-sequencing" transactions in order to maximize the number of overdraft fees. To explain, Fifth Third did not process debit card and ATM transactions in strict chronological order; rather, within a given posting period, the bank processed the transactions in high-to-low order. If a customer overdrew his account, posting transactions in a high-to-low order sometimes resulted in Fifth Third charging the customer a higher number of overdraft fees than it would have charged had it posted the transactions chronologically. Plaintiffs allege that Fifth Third's practice was unlawful and caused them and others similarly situated to suffer financial injury.

On February 16, 2010, Defendant filed a motion to dismiss the Schulte case [17].

On March 2, 2010, the United States Judicial Panel on Multidistrict Litigation ("JPML"), entered a Conditional Transfer Order ("CTO 13") conditionally transferring the Actions to the Southern District of Florida, where the Multidistrict Litigation, In re Checking Account Overdraft Litigation, MDLNo. 2036(the "Overdraft MDL"), was and remains pending. Shortly thereafter, Plaintiffs and Defendant filed oppositions to CTO 13 and, on April 2, 2010, Fifth Third filed a motion with the JPML requesting that the Actions be transferred to this Court for coordinated or consolidated pretrial proceedings.

That same day, Objector Michelle Keyes, who is represented, inter alia, by various counsel from the Overdraft MDL, filed a complaint against Fifth Third in the United States District Court for the Southern District of Florida. See Keyes v. Fifth Third Bank, Case No. 10-cv-21283 (S.D. Fla.). Less than a week later, on April 7, 2010, Objector Keyes requested that her case be consolidated into the Overdraft MDL; that request was granted on April 19, 2010. On April 19, 2010, an attorney representing Objector Keyes sent a letter to the JPML arguing that Defendant's motion to transfer the Actions was inappropriate, because it would create a new MDL and Objector Keyes' case had already been consolidated into the Overdraft MDL.

On May 27, 2010, the parties entered into the Settlement Agreement, the terms of which are discussed below. That day, the parties filed a motion for preliminary approval of the settlement [35].*fn3

Later that day, counsel for the settling parties notified the JPML that the parties had entered into the Settlement Agreement and, on June 3, 2010, the JPML vacated CTO 13. The JPML reasoned that in light of the settlement reached between Plaintiffs and Defendant, the Schulte and Willard cases should not be transferred into the Overdraft MDL. The Panel further ruled that the Schulte and Willard cases should not be centralized as a separate and new MDL in this district. The Panel noted that its ruling does not bar either the creation of a new MDL, or the transfer of the Actions to the Overdraft MDL, in the event that the settlement here was not approved or did not fully resolve those actions.

On June 9, 2010, Objectors Michelle Keyes, Amanda Ratliff and Verdel Ratliff appeared and filed objections to the motion for preliminary approval of the proposed settlement [39]. The Court postponed ruling on the motion for preliminary approval to allow the parties time to respond in writing to the objections. See [45, 46]. Objectors Keyes and the Ratliffs subsequently filed a copy of the Findings of Fact and Conclusions of Law After Bench Trial issued in Guitierrez v. Wells Fargo Bank, 730 F. Supp. 2d 1080 (N.D. Cal. 2010) [53], another case involving overdraft fees resulting from debit reordering, which the Objectors argued supported their position that the settlement here should not be preliminarily approved. The parties each responded to that filing [54, 57].

After considering the arguments from the parties and from the Keyes and Ratliff Objectors, on September 10, 2010, the Court entered an order addressing the various objections and (1) preliminarily approving the settlement; (2) approving the notice plan; (3) appointing a notice specialist and claims administrator; (4) certifying the Settlement Class for settlement purposes only; (5) appointing Class Counsel; and (6) scheduling a final fairness hearing to consider final approval of the settlement [59]. The Court subsequently reset the final fairness hearing to March 3, 2011 [70].*fn4

Beginning in January, 2010, a number of Class Members submitted objections to the settlement.*fn5 On March 7, the parties each filed their memoranda in support of final approval [102, 103], which, inter alia, responded to the various objections. After denying a request by the parties to conduct discovery on some of the objectors (see [111]), the Court held a fairness hearing on March 16, 2011 [112], at which time the Court heard argument from counsel for the parties and from a number of objectors. Subsequently, the Court requested additional briefing on one issue raised at the fairness hearing [117], and the parties provided that briefing shortly thereafter [118]. Finally, on June 3, 2011, the Keyes and Ratliff Objectors filed a Notice of Recent Developments in Support of Objections, in which they notified the Court of an order preliminarily approving a settlement in MDL 2036.

B. Terms of the Settlement*fn6

The Court here briefly summarizes the more important provisions of the Settlement Agreement. The Agreement and Preliminary Approval Order define the relevant class as follows:

All persons in the United States who hold or held a Fifth Third Account who at any time during the Class Period incurred at least one Overdraft Fee (as defined in the Settlement Agreement) associated with at least one Fifth Third Debit Card Transaction.

Excluded from the Settlement Class are Fifth Third Bank, any parent, subsidiary, affiliate or sister company of Fifth Third Bank, and all officers or directors of Fifth Third Bank, or any parent, subsidiary, affiliate or sister company at any time during the Class Period, and the legal representatives, heirs, successors, and assigns of any of the foregoing. The Court presiding over any motion to approve the Settlement Agreement is excluded from the Settlement Class. Also excluded from the Settlement Class is any person who timely submits a valid request to be excluded from this Settlement.

¶ 7; Preliminary Approval Order [59] at 10. The class period is from October 21, 2004 through July 1, 2010. ¶ 1(d). The term "Overdraft Fee" means an "insufficient funds fee, overdraft fee, or other similar fee, incurred as a result of the 're-sequencing' of a Fifth Third Debit Card Transaction in non-chronological order that was not previously reversed, refunded, or returned to the Settlement Class Member by Defendant." ¶ 1(s). The term "re-sequencing" is not defined in the Agreement or elsewhere. A "Fifth Third Debit Card Transaction" is a transaction that is "effectuated with or relating to such Fifth Third Debit Card(s), including but not limited to automatic teller machine ("ATM") transactions and point of sale ("POS") transactions." ¶ 1(l).

Accordingly, the settlement covers overdraft fees that result from debit card purchases and ATM transactions, but not fees that are the result of the payment of checks or other transfers.

The settlement provides for the creation of a $9,500,000 settlement fund from which Class Members may receive reimbursement for overdraft charges incurred during any one continuous forty-five day period within the Class Period. ¶¶ 9, 23-24. There is no cap on the amount that an individual Class Member may recover. If, after fees, costs, expenses, and incentive awards are paid, the amount claimed by Class Members is less than the remaining amount, the remainder will be distributed to claimants on a pro rata basis, with each such Class Member receiving up to (but not exceeding) three times the amount claimed on his or her claim form. After that, any remaining amounts will be distributed under the cy pres doctrine to one nonprofit credit counseling organization in each of the twelve states in which Fifth Third has branches. See ¶¶ 30, 31.

In order to obtain these benefits, Class Members are required to fill out a claim form. Dissatisfaction with the claim form (in fact, with the entire claims process) has been the subject of many of the objections submitted to the Court. Following the preliminary approval order, in which the Court expressed some skepticism regarding the claims process ([59] at 8-9), the parties submitted a revised claim form [62], which the Court approved [64]. On the revised form, Class Members must provide their name, address, social security or tax identification number, and account number(s) with Fifth Third. Class Members can then choose one of two options for submitting a claim. "Option 1" is the option for customers who "do not have all of [their] records," and allows the Class Member to make a claim "to the best of [his or her] knowledge or belief." Class Members are asked to identify a year, and then estimate the number of Overdraft Fees incurred during any 45-day period within that year, along with the aggregate amount of fees charged during that 45-day period. Class Members are not asked to identify the specific 45-day period for which they are making a claim, only the year. "Option 2" is for customers who "used [their] bank statements and/or other records to determine the information" that they were providing. Under that option, the Class Member was to identify the number and amount of "Overdraft Fees" incurred in a particular 45-day period. Under both options, the Class Member was asked to "declare under penalty of perjury that I believe that the information I am providing is true and correct to the best of my knowledge and belief." (emphasis in original).

The settlement also provides for non-monetary consideration. By entering into the settlement, Fifth Third agrees to modify its business practices to no longer re-sequence debits from highest to lowest amount; instead, it will process all charges in the order that they are presented to Defendant for payment. ¶ 10(a).*fn7 Fifth Third further agrees to train its call center telephone operators on issues related to overdraft charges and to authorize those operators to waive any overdraft fee for good cause (including an automatic waiver of one overdraft fee per year, plus those resulting from errors in account reporting and other hardship situations such as hospitalization or illness causing an inability to examine account balances). ¶ 10(b).

In addition to paying Class Members, the $9.5 million settlement fund was also intended to be used to pay all attorneys' fees, costs and expenses, incentive payments, and the costs of claims administration and notice. ¶ 9; see also ¶¶ 14; 20.*fn8 To date, $1,000,984.18 had been paid from the fund to cover such costs. Further, in a letter to the Court, the parties indicated that as of May 18, 2011, they "have agreed that the Settlement Fund will not be required to pay any more of the notice and claims administration costs * * *" [119]. It appears that Defendant has paid at least an additional $668,580.52 out of pocket to cover notice and claims administration costs. See [113]. The Agreement provides that Class Counsel will "seek approval of the Court for payment of not more than one-third of the Settlement Fund for attorneys' fees." ¶ 11. The Agreement also provides for an incentive award not to exceed $1,000 for Plaintiffs Schulte and Willard. ¶ 12. In their motion [103], Class Counsel requests $3,166,666 (which is 33.3% of the settlement fund) in attorneys' fees, and $54,281.32 as reimbursement for costs and expenses. Counsel also requests an incentive award of $1,000 for Plaintiffs Schulte and Willard.

Once the settlement becomes final (see ¶ 32), Class Members will be bound to a broad release. ¶ 34. The Agreement provides that Defendant "expressly denies any and all liability" in the lawsuits. ¶ 33.

As of May 13, 2011, the claims administrator had received "over 100,000 claims." Parties Supplemental Mem. [118] at 1. In contrast to this high participation rate, 342 Class Members excluded themselves from the settlement, and 15 Class Members submitted 13 separate objections to the settlement.

C. Plaintiffs' Expert Report

As explained in detail below, before the Court can finally approve the settlement, it must first quantify the "net expected value of continued litigation to the class." Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006). For that reason, in its order preliminarily approving the settlement, the Court called for the parties to provide at the final approval stage "evidence that would enable the Court to determine the potential value of Class Members' claims." [59] at 5.

In response to that directive, Plaintiffs have attached to their memorandum in support of final approval an expert report prepared by Mr. Thomas A. Tarter, an expert in banking and financial institutions.*fn9 Class Counsel retained Mr. Tarter to estimate: (1) the amount of excess overdraft fees caused by Defendant's practice of re-sequencing debit card and ATM transactions from the highest to lowest amount during the class period; and (2) the present value of Defendant's change in business practices, required under the settlement, to no longer re-sequence debit card and ATM transactions. Tarter Expert Report at 6. Mr. Tarter estimates that during the class period, Defendant collected approximately $97.7 million as a result of its re-sequencing policy. Id. at 15. Mr. Tarter also estimates that the present value of Fifth Third's agreement to end its practice of re-sequencing is $58.8 million over the next five years, or $108.8 million over the next ten years (computed at a 3.5% discount rate). Id. at 15-16.

In order to reach his opinions, Mr. Tarter reviewed various documents including the complaint, settlement-related documents, Defendant's public filings and web site, and information provided by Defendant including non-public and confidential documents and data. Id. at 5.

To estimate total "Excess OD Fees" (Mr. Tarter's term for earnings from overdraft fees resulting from re-sequencing), Mr. Tarter multiplied the net overdraft fees attributable to debit card and ATM transactions by the probability that the fees collected by FTB were the result of re-sequencing. First, using data provided by Defendant, Mr. Tarter took the total amount of overdraft fees received from customers for each month during the class period (adjusted for waivers, reversals and charge offs).*fn10 He then multiplied these monthly charge amounts by .57, to reflect that approximately 57% of overdraft fees were generated by debit card and ATM transactions. See id. at 8. These monthly totals gave Mr. Tarter an estimation of the total monthly amounts of overdraft fees collected by Defendant that resulted from debit card or ATM transactions. Mr. Tarter then attempted to estimate how much of these totals were "Excess OD Fees."

Defendant provided Mr. Tarter with the average number of overdraft fees charged to customers who incurred one or more overdraft fee for each month during the class period. Id. at 9. (Over the class period, the average number of overdraft fees for this customer population ranged between 3.12 and 4.24 fees per month). Mr. Tarter recognized that there was a direct relationship between the number of overdraft fees charged to a customer in any given day*fn11 and the likelihood that one or more of the fees was the result of re-sequencing. When a fee was the result of re-sequencing, Mr. Tarter called it a "mismatch." Using a set of matrices, Mr. Tarter calculated that the probability of mismatch was 0% where there was only one overdraft transaction,*fn12 10% for two, 17.65% for three, and 20.21% for four. Id. at 11. These probabilities were plotted on a graph, and a "best-fit" curve was created, which enabled Mr. Tarter to calculate the probability of "mismatch" for average numbers of overdraft transactions that were not whole numbers.*fn13

Mr. Tarter calculated the total amount of Excess OD Fees for three different scenarios, assessing the likely total Excess OD Fees depending on whether the average number of fees assessed per month all occur on one day, or are spread over two or three days. Mr. Tarter reasoned that if overdrafts were spread over two or three days, the percentage of OD fees that were "mismatched" would be lower. To calculate Excess OD Fees, assuming the average number of fees assessed per month all occur on one day, Mr. Tarter multiplied 57% of the total amount of overdraft fees collected for a given month by the mismatch probability for that month. Each month's totals were then summed, giving Fifth Third's total Excess OD Fee earnings for the entire class period, assuming the average number of fees assessed per month all occurred on one day. The calculation assuming the average number of fees assessed per month occurred on two or three days was identical, except that Mr. Tarter divided the probability of a "mismatch" by two or three, respectively, to reflect the chance that overdrafts within a particular month were spread over two or three days.

Ultimately, Mr. Tarter concluded, based on his experience in banking, that the average number of overdraft fees assessed per month would likely be spread over two or three days. This assumption was based on the fact that most people are paid by their employers either twice or three times per month, and individuals are most likely to overdraft their accounts the day before they are paid. Id. at 9. Thus, to calculate Excess OD Fees for the class period, Mr. Tarter averaged the total Excess OD Fees collected, where the average number of overdraft fees assessed per month would likely be spread over two or three days. This resulted in a figure of $97.7 million.*fn14

Mr. Tarter then estimated the present value of Defendant's change in business practices, required under the settlement, to no longer re-sequence debit card and ATM transactions. In determining this figure, Mr. Tarter had to account for Regulation E, which became effective in July and August of 2010. This regulation provided that accountholders can only be assessed overdraft fees for debit and ATM transactions if they have affirmatively authorized a bank to allow them to overdraft their account-otherwise, the transaction is simply declined. Id at 13. Analysis of data provided by Defendant indicated that Regulation E is associated with a 36% decrease in overdraft fee revenue.

Thus, to estimate the present value of the settlement's requirement that Defendant no longer re-sequence, Mr. Tarter used the most recent completed calendar year for which data was available, 2009, to calculate Defendant's likely theoretical future earnings from re-sequencing. In this calculation, the estimated Excess OD Fees for 2009 were reduced by 36% to take into account Regulation E. Id at 14. The resulting figure was discounted at a rate of 3.50% (to correlate with the 10-year U.S. Treasury Bond) for five and ten years, resulting in a net present value of $58.8 million over five years or $108.3 million over ten years in losses to Defendant resulting from the settlement's requirement that it no longer engage in re-sequencing.

D. Defendant's Damage Calculation

Attached to their memorandum in support of final approval of the settlement (Ex. 1 to [102]), Defendant includes its own damage calculation that estimates that "the impact of high-to- low posting on debit and ATM transactions during the Class Period was $16,752,710 annually." See Affidavit of Kevin Sullivan, Senior Vice President, CFO-Retail, Banking ("Sullivan Aff."), ¶ 9. Extrapolated out over the entire class period, that figure amounts to approximately $95,281,038.

Mr. Sullivan explains that over the class period, Fifth Third realized an average total of approximately $244,922,667 per year in overdraft fees.*fn15 This figure represents all overdraft fees, not just those that resulted from debit card or ATM transactions. Fifth Third determined that "approximately 57% of the yearly realized overdraft fees were the result of a debit card or ATM transaction." Id. ¶ 8. Thus, multiplying the above figure by .57 resulted in average yearly overdraft fees of $139,605,920 that were the result of debit card and ATM transactions. Using financial models that Fifth Third prepared for its periodic regulatory filings, Fifth Third estimated that approximately 12% of the overdraft fees relating to debit card and ATM transactions were attributable to its use of a high-to-low posting order. Id. ¶ 9. Thus, the "estimated impact of high-to-low posting on debit and ATM transactions during the Class Period was $16,752,710 annually," id., which is $1,396,059 per month, or $95,281,038 over a 68.25-month class period.

Fifth Third's data further showed that approximately 72% of the overdraft fee revenue was generated by the approximately 7% of Fifth Third's customers who overdrafted six or more times a month. Id. ¶ 10. Adjusting for these "chronic overdrafters," the "total estimated impact of high-to-low posting on debit card and ATM transactions for the 93% 'non-frequent overdrafters' was * * * $26,711,266" over the entire class period. Id. ¶ 11.

E. Objections to the Settlement

As noted above, construing the term "objection" broadly, 15 Class Members filed 13 separate objections to the settlement. The Court summarizes each of the objections below.

1. Keyes and Ratliff, and Kannapel Objections

Objectors Michelle Keyes, Amanda Ratliff, Verdel Ratliff, and Laura Kannapel are each represented by members of the Plaintiffs' Executive Committee ("PEC") in the Overdraft MDL. Objectors Keyes, Amanda Ratliff, and Verdel Ratliff filed an objection [90] that challenges the settlement on numerous grounds. Objector Kannapel filed a separate objection [91]. In further support of their objection, the Keyes/Ratliff Objectors filed the preliminary approval order of a settlement agreement reached between the plaintiffs and defendant Bank of America in the Overdraft MDL [121]. The Court will discuss these objections together and will refer to the two groups of objectors collectively as the "PEC Objectors."

a. Amount of Settlement Fund and Criticism of Expert Report

The PEC Objectors argue that given the potentially high value of Class Members' claims, the amount that the settlement fund provides to reimburse Class Members is inadequate.

Before discussing this objection, the Court should note that pursuant to the schedule set by the Court, the PEC Objectors' filed their objections before the parties filed their briefs in support of the settlement. As discussed in detail above, Plaintiffs' brief attached and discussed the Tarter Expert Report and Defendant provided its own damages calculation. In their opening objections, the PEC Objectors argued that the Court could not grant final approval because the settling parties had, at the time those objections were filed, failed to provide evidence that would enable the Court to determine the value of Class Members' claims. See, e.g. Keyes/Ratliff Objection at 3-4; Kannapel Objection at 4-5. The filing of the Tarter Report and Sullivan Affidavit corrected this deficiency, and so, the Court need not discuss these arguments further.

After receiving the parties' memoranda in support of final approval, the PEC Objectors did not seek leave to file a reply brief to attack the Tarter Report or Sullivan Affidavit (or to address any other issues with the parties' memoranda).*fn16 However, at the fairness hearing, counsel for Objectors Keyes and Ratliff did offer two specific criticisms of the way in which Mr. Tarter calculated the value of the class's claims. See Fairness Hearing Tr. at 96-100. First, the Keyes/Ratliff Objectors note that while Mr. Tarter recognized that those individuals who incurred only one overdraft fee in a month could not be Class Members, the population from which he obtained his average number of fees charged per month was customers who incurred one or more overdraft fees for each month during the class period. Tarter Report at 9. Counsel argues that there is no way to know how much this "mistake" skewed Mr. Tarter's results. Second, Mr. Tarter assumed that because 57 percent of all transactions were debit card or ATM transactions, 57 percent of overdraft fees were attributable to debit card or ATM transactions. Counsel argues that this is a non sequitur. In fact, according to counsel, a customer would probably be more likely to overdraft when making a debit card transaction than when writing a check. Fairness Hearing Tr. at 98-99 ("Debit cards probably account for 95 percent of the overdraft fees.").

Because the PEC Objectors could not challenge the Tarter Report or Sullivan Affidavit in their opening objections, the PEC Objectors instead pointed to settlements and verdicts in other cases involving claims similar to those at issue in this lawsuit as proof that the settlement amount here is inadequate. Specifically, the objectors argue that the decision in Gutierrez v. Wells Fargo Bank Case No. C07-05923 WHA(N.D. Cal. Aug. 10, 2010), where a judge excoriated Wells Fargo for its debit reordering practices and ordered it to pay $203 million in restitution to its California customers and cease its reordering practices, is evidence of the inadequacy of this settlement. Keyes/Ratliff Obj. at 5-6. The Court discussed the Gutierrez decision in its preliminary approval order ([59] at 6 n.4) and will do so again below. Further, the objectors point to a settlement reached in the Overdraft MDL between the plaintiffs there and Bank of America, in which Bank of America agreed to pay class members $410 million to resolve the claims pending against it in that litigation. See Ex. A to [121]. The Court will address the objection about the size of the $9.5 million fund in detail below, along with each of the other objections raised.

b. Benefits Allocation

The PEC Objectors argue that the distribution of the settlement proceeds is arbitrary and capricious, resulting in unwarranted inequitable treatment of Class Members. Keyes/Ratliff Obj. at 7-9; Kannapel Obj. at 7-10. Objectors argue that by forcing Class Members to choose a single 45-day period in which to claim a refund of overdraft charges, the settlement will unfairly "benefit[] a Class Member who incurred the brunt of his or her overdraft fees over a short period of time at the expense of another Class Member who accumulated a larger amount of impermissible fees over a greater period of time." Kannapel Obj. at 8. For instance, a customer who incurred a total amount of overdraft fees of $100, but incurred them all in one month, may be entitled to a full refund. However, a customer who incurred $1,000 in total fees, spread out evenly over a two-year period, could only recover approximately $63. Further, the Objectors take issue with the fact that funds left over after the initial distribution are to be used to pay up to treble damages to Class Members who have already been compensated, instead of being used to refund Class Members for charges from outside the 45-day period.

c. Claims Process

The PEC Objectors argue that the claims process is unnecessary and that it is unduly burdensome on Class Members and deters claims.

First, the Objectors have a fundamental disagreement with the need for a claims process. The Objectors argue that because the identity of Class Members and the amount that each has been overcharged can be determined from Fifth Third's records, there is no need for customers to submit a claim form. Instead, argue the Objectors, Fifth Third should simply send payments directly to Class Members. The Keyes/Ratliff Objectors argue that "[t]he Bank of America settlement demonstrates the feasibility of a direct distribution of settlement benefits to class members without the requirement of self identification." [121] at 1. "There, the settlement administrator will identify class members and the harm they incurred for the [class period] and then class members will have a credit posted to their account, or in the case of former customers, have a check sent to their most recent address." Id.

Next, the Objectors identify problems with the claims process as it is employed in this case. First, as the Court explained in its order calling for additional briefing [117], the Objectors argued that it would be impossible for any Class Member to submit a claim in good faith on the basis of the settlement documents as they currently are written. Id.; see also Kannapel Obj. at 12; Fairness Hearing Tr. at 73-78. As the Court also explained in its prior order, under both options in the claim form, a Class Member must identify an amount of "Overdraft Fees" that he or she incurred during a particular time period. Again, the term "Overdraft Fee" means "an insufficient funds fee, overdraft fee, returned item fee, daily overdraft fee, overlimit fee, or other similar fee, incurred as a result of the 're-sequencing' of a Fifth Third Debit Card Transaction in non-chronological order that was not previously reversed or refunded." According to the Objectors, a major problem with the settlement is that Class Members have no way of knowing which fees were the "result of [* * *] 're-sequencing'" such that they could accurately fill out the form and make a claim. The Objectors argue that Defendant has not disclosed how it determines the order in which charges are posted to ...


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