Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons below, Defendant's motion to enforce the settlement agreement  is granted.
O[ For further details see text below.] Docketing to mail notices.
Before the Court is Fifth Third Bank's motion to enforce the settlement agreement . Defendant filed the motion after Creative Home Accents, LLC, ("Creative Home"), a class member, filed a claim, Creative Home Accents, LLC v. Fifth Third Bancorp., N.D. Ohio, Case No. 3:11-cv-1421, in the Northern District of Ohio, ("Ohio Action") alleging what Defendant believes to be identical claims to those that were litigated, settled, and released in this case. Defendant filed a motion to dismiss the complaint in the Ohio Action, and on December 15, 2011, Judge Carr advised counsel that the issue should be presented to this Court for determination.
The Schulte Settlement Agreement provided for a class period that ran from October 21, 2004 to July 1, 2010 ("Class Period") and defined the class as: "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." The parties do not dispute that Creative Home is a member of the Schulte Class.
The Settlement Agreement provided for a $9.5 million settlement fund from which class member could receive reimbursement for overdraft charges incurred during one forty-five day period during the Class Period. Fifth Third also agreed to change its business practices-discontinuing the practice of debiting Firth Third debit card and ATM transactions from highest amount to lowest amount for all customer accounts-so that it now posts all transactions for all customers in chronological order, regardless of amount. The Agreement provided that Fifth Third had until April 1, 2011, to implement this change due to technological and other logistical issues. More specifically, the language of the Agreement instructs that:
10. Non-Monetary Considerations. As additional consideration for the release of claims as set forth herein of the Settlement Class Members, Fifth Third will implement the following modifications to its business practices, subject to the limitations identified below, within thirty (30) days of the Effective Date of Settlement . . .
1) Debits from Fifth Third Debit Card transactions will not be charged to a customer's Fifth Third Account from highest amount to lowest amount; rather debits from Fifth Third Debit Card Transactions will be posted in chronological order . . . Fifth Third presently targets April 1, 2011 as the effective date for the new posting procedure and agrees to act with due diligence to implement the procedure. [103, at 7-8]
The Agreement also contained a broad release that stated:
As of the Effective Date, Plaintiff and each and every Settlement Class Member shall be deemed to have fully released and forever discharged Fifth Third . . . from any and all rights, claims, actions, causes of action, demands and remedies, known or unknown, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out of, are based upon, or related to in any way to the conduct, omissions, duties or matters alleged in the Complaints, including claims related . . . in any way, upon the use of a Fifth Third Debit Card by the cardholder or by an authorized user of the debit card that led to the assessment of one or more Overdraft Fees. [103, at 20-21].
On July 29, 2011, this Court granted final approval of the settlement agreement  between the parties, including Fifth Third's agreement to change in practice of resequencing no later than April 1, 2011. Fifth Third completed the process of eliminating resequencing, in compliance with the Settlement agreement, on ...