1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SUPERIOR COURT OF THE STATE OF CALIFORNIA DAVID SANTIAGO, individually, and on behalf of all others similarly situated, vs. FOR THE COUNTY OF SACRAMENTO Plaintiff, MERIWEST CREDIT UNION, and DOES 1-100, Defendants. I, ERIC KIERKEGAARD, declare and state as follows: Case No. 34-2015-00183730 DECLARATION OF ERIC KIERKEGAARD REGARDING NOTICE AND SETTLEMENT ADMINISTRATION 1. I am Assistant Director, Operations at Garden City Group, LLC ( GCG ). The following statements are based on my personal knowledge and information provided by other experienced GCG employees working under my supervision and, if called on to do so, I could and would be competent to testify thereto. 2. GCG is a recognized leader in providing legal notice and administrative services. GCG has offices in Lake Success, New York, Seattle, Washington, Dublin, Ohio, Tallahassee, Florida, and Waterloo, Ontario, Canada. GCG has hundreds of employees, including former class action attorneys, software engineers, call center professionals, in-house legal advertising specialists, and graphic artists with extensive website design experience, among other professionals. 3. GCG routinely develops and executes notice programs and administrations in a wide variety of class action and mass action contexts, with subject matters including, but not limited to, products liability, consumer, mass tort, antitrust, labor and employment, ERISA, civil and human rights, insurance, securities fraud, and healthcare. Our team has served as DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-1 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 administrator for over 3,400 cases during GCG s 30 plus year history. Additionally, GCG has mailed hundreds of millions of notices, disseminated over 400 million emails, handled over 35 million phone calls, processed tens of millions claims, and distributed over $72 billion in payments. www.gardencitygroup.com. Additional information about GCG can be found on our website at 4. GCG routinely provides, and anticipated providing in this administration, the following administration services: (i) notification of settlement information to potential class members through email and postal mail; (ii) management of class member data, either received from the parties or collected directly from Class Members, in a secure, dedicated proprietary database customized for this administration; (iii) execution of address searches utilizing the United States Postal Service National Change of Address ( NCOA ) database 1 or other skiptrace databases; (iv) coordination and printing of settlement notices; (v) mailing and forwarding of notices to potential class members; (vi) handling of all communications with potential class members via mail; (vii) creation and maintenance of a dedicated website for the settlement; (viii) receiving, reviewing, and processing opt-out requests; (ix) administration of bank or escrow accounts for settlement funds, including tax reporting when requested; and (x) management of the distribution process, including, but not limited to, issuing checks to authorized class members and calculation of benefits. In addition, GCG anticipated handling all reporting to counsel as requested, including upon-request statistical reports and updates for the Court regarding the 1 The NCOA database is the official United States Postal Service technology product, which makes change of address information available to mailers to help reduce undeliverable mail pieces before mail enters the mail stream. This product is an effective tool to update address changes when a person has completed a change of address form with the post office. DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-2 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 administration and status of the settlement administration 5. GCG was appointed as the Claims Administrator pursuant to the Court s December 7, 2017 Order Granting Preliminary Approval of Class Action Settlement with Schedule of Dates and Notice to Class Members (the Order ). In accordance with the Settlement Agreement and Release (the Agreement ), 2 I submit this Declaration in order to advise the Parties and the Court regarding implementation of notice to the Class and to report on settlement administration. CLASS DATA TRANSFER 6. Pursuant to Section 5(b) of the Agreement, on December 8, 2017, Counsel for Meriwest Credit Union ( Defendant ) provided to GCG an electronic file containing a list of all Class Members. The list contained the Class Members (i) name, (ii) mailing address, and (iii) email address, where available (the Class Data ). The Class Data also indicated whether a Class Member had agreed to receive notices regarding their accounts from the Defendant by email, whether the Class Member s account with the Defendant had been closed, and the count and total fees paid by the Class Member. 7. GCG promptly loaded the Class Data into a dedicated database created for the purpose of the Settlement administration. GCG assigned unique identifiers to all records in order to maintain the ability to track them throughout the Settlement administration. 8. After analyzing the Class Data, GCG determined that there were 5,839 unique Class Member records included in the Class Data. 2 All capitalized terms not otherwise defined in this document shall have the same meaning ascribed to them in the Agreement. DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-3 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SETTLEMENT NOTICE PROGRAM 9. The elements of the Notice Program included sending the Notice via email, sending the Notice via U.S. Mail, and a dedicated Settlement Website on which the Notice has been posted. Notice to the Class 10. Pursuant to Paragraph 5(b) of the Agreement, GCG caused the Court-approved Notice to be formatted for electronic distribution by email to Class Members. Attached hereto as Exhibit A is a template of the Court-approved Notice sent to Class Members via email. GCG identified 3,384 Class Members in the Class Data that were current members of Defendant, had agreed to receive notices regarding their accounts from Defendant by email, and for whom an email address was provided. On December 15, 2017, GCG emailed a Notice to those 3,384 email addresses in a manner that was calculated to avoid being caught and excluded by spam filters or other devices intended to block mass email. 11. Ultimately, 3,239 Notices of the 3,384 Notices that GCG sent to Class Members by email, or approximately 95.7% of emails sent, were not returned as undeliverable. GCG could not deliver a total of 145 Notices sent by email. A total of 133 Notices sent by email could not be delivered to Class Members because the email address no longer existed, the email account was closed, or the email address had a bad domain name or address error (collectively, Hard Bouncebacks ). After three attempts, the remaining 12 Notices sent by email could not be delivered to Class Members due to an inactive or disabled account, the recipient s mailbox was full, technical auto-replies, or the recipient server was busy or unable to deliver (collectively, Soft Bouncebacks ). 12. Pursuant to Section 5(b) of the Agreement, GCG promptly performed an email DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-4 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 address search consistent with industry standards to obtain any available email address updates. With respect to the Notices sent by email but returned as undeliverable, GCG was able to locate an updated email address for 82 of the 145 records. GCG promptly resent the Notice by updated email addresses to these 82 Class Members. The emails for a total of 33 of the 82 Class Members to whom a Notice was resent by email were not returned as undeliverable. The Notices resent to the remaining 49 Class Members could not be delivered due to either a Hard Bounceback or a Soft Bounceback. 13. Ultimately, GCG was able to deliver Notices by email to 3,272 of the 3,384 Class Members, or approximately 96.7%, in the Class Data that were current members of the Defendant, had agreed to receive notices regarding their accounts from the Defendant by email, and for whom there was an email address. 14. Pursuant to Paragraph 5(c) of the Agreement, GCG was also responsible for providing the Court-approved Notice by mail to Class Members who were not members of the Defendant, were members of the Defendant but had not agreed to receive notices regarding their accounts, or for whom there was no email address in the Class List but there was a mailing address. GCG identified 2,455 such Class Members, and on December 15, 2017, GCG mailed the Notice to those Class Members by first class United States mail. Attached hereto as Exhibit B is a template of the Court-approved Notice that GCG disseminated by mail. 15. Pursuant to Paragraph 5(c) of the Agreement, prior to mailing the Notice to Class Members, GCG ran the mailing addresses in the Class Data for all Class Members through the NCOA database. To the extent that any Class Member had filed a U.S. Postal Service change of address request, the current address listed on the NCOA database was used in connection with the Notice mailing, rather than the original mailing address in the Class Data. A total of 433 DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-5 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Class Member records in the Class Data sent through the NCOA database were updated with a new address prior to the initial mailing. 16. Since the initial mailing and pursuant to Section 5(c) of the Agreement, GCG has promptly re-mailed a Notice to one (1) Class Member for whom the U.S. Postal Service returned mail to GCG with forwarding information. 17. Pursuant to Section 5(c) of the Agreement, GCG promptly performed Skip Traces consistent with industry standards to obtain address updates. With respect to 95 Notices returned to GCG as undeliverable without a forwarding address, GCG was able to update address information through skip tracing searches and re-mail Notices to 47 Class Members. 18. As of January 18, 2018, approximately 96.7% of Notices sent by email were delivered and approximately 98.0% of Notices mailed are not undeliverable. Accordingly, a total of 5,679 Class Member Notices were successfully served, which is approximately 97.26% of all Class Member Notices sent. Website 19. Pursuant to Section 5(d) of the Agreement, on December 15, 2017, GCG launched the Settlement Website, www.meriwestcreditunionoverdraftfeessettlement.com, containing detailed information about the Settlement. The Settlement Website address was included in the Notice sent to Class Members. The Notice, along with other relevant Court documents, was posted on the Settlement Website, so that potential class members may review and download them. The Settlement Website also includes relevant dates and other Settlementrelated information. 20. GCG has maintained and will continue to maintain and update the Settlement Website throughout the Settlement administration as required by the Agreement or as directed by DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-6 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the Parties. OBJECTIONS AND OPT OUTS 21. Pursuant to Section 13 of the Agreement and Paragraph 10 of the Order, Class Members wishing to be excluded from the Settlement were required to submit written requests for exclusion to the Claims Administrator, postmarked no later than January 17, 2018. As of January 18, 2018, GCG has received one (1) request for exclusion. 22. Pursuant to Section 14 of the Agreement and Paragraph 10 of the Order, Class Members wishing to object to the fairness, reasonableness, or adequacy of the Agreement have the option to submit written objections to the Claims Administrator, emailed or postmarked no later than February 6, 2018. As of January 18, 2018, GCG has not received any objections. 23. GCG has also provided the Parties with an estimate for all of its notice and settlement administration services in this matter. Based on the number of Class Members identified above, GCG has estimated that its fees and expenses related to the Settlement administration are likely to be in the range of $20,125 to $21,500. GCG has agreed, based on the number of class members remaining the same throughout the administration, that its fees and expenses will be capped at $25,800. 3 I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this 18 th day of January 2018 in Seattle, Washington. Eric Kierkegaard 3 As indicated in GCG s pricing proposal, the agreed upon cap is conditioned on the class size, the scope of work described in the proposal, and excludes optional services. DECLARATION OF ERIC KIERKEGAARD Case No. 34-2015-00183730-7 -
Exhibit A
From: Sent: To: Subject: DoNotReply@LegalClaimsAdmin.com Court Authorized Notice of Settlement David L. Santiago v. Meriwest Credit Union NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT MAY AFFECT YOUR RIGHTS! IF YOU HAD A CHECKING ACCOUNT WITH MERIWEST CREDIT UNION ("MERIWEST") AND YOU WERE CHARGED AN OVERDRAFT FEE BETWEEN SEPTEMBER 1, 2011 AND APRIL 16, 2016, THEN YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT The Sacramento County Superior Court has authorized this Notice; it is not a solicitation from a lawyer. SUMMARY OF YOUR OPTIONS AND THE LEGAL EFFECT OF EACH OPTION Unless you exclude yourself from the settlement (see the next APPROVE THE paragraph), then you will receive a check or a credit to your SETTLEMENT AND account (depending on whether you are still a member of RECEIVE A PAYMENT; YOU Meriwest). The approximate amount of the payment you will NEED NOT DO ANYTHING receive and when you will receive it is described below. EXCLUDE YOURSELF FROM THE SETTLEMENT; RECEIVE NO PAYMENT BUT RELEASE NO CLAIMS OBJECT TO THE SETTLEMENT You can choose to exclude yourself from the settlement or opt out. This means you choose not to participate in the settlement. You will keep your individual claims against Meriwest but you will not receive a payment. If you want to recover against Meriwest, then you will have to file a separate lawsuit or claim. You can file an objection with the Court explaining why you believe the Court should reject the settlement. If your objection is overruled by the Court, then you will receive a payment and you will not be able to sue Meriwest for the claims asserted in this litigation. If the Court agrees with your objection, then the settlement may not be approved. These rights and options and the deadlines to exercise them along with the material terms of the settlement are explained in this Notice. 1
BASIC INFORMATION 1. What is this lawsuit about? The lawsuit that is being settled is entitled David L. Santiago v. Meriwest Credit Union, Sacramento County Superior Court Case No. 34-2015-00183730-CU-BC-GDS. The case is a class action. That means that the Named Plaintiff, David L. Santiago is an individual who is acting on behalf of all persons who were charged an overdraft fee by Meriwest at any time from September 1, 2011 to April 16, 2016, and, at the time such fee was imposed, that person had sufficient funds in the ledger balance but not the available balance in his or her account to complete the transaction. This group is called the Class Members. He is asserting claims for breach of contract, and violations of the California Unfair Competition Law, and other causes of action. He seeks a refund of alleged improper overdraft fees charged to Class Member accounts. Meriwest does not deny it charged overdraft fees but contends it did so properly and in accordance with the terms of its agreements and applicable law because Meriwest assesses overdrafts based on the available balance in a member s account. Meriwest maintains that this practice is proper and was disclosed to its members, and therefore denies that its practices give rise to claims for damages by Mr. Santiago or any Class Member. 2. Why did I receive this Notice of this lawsuit? You received this Notice because Meriwest s records indicate that you were charged overdraft fee(s) between September 1, 2011 and April 16, 2016, while your available balance was insufficient but your ledger balance contained enough money to complete the transaction at issue. The Court directed that this Notice be sent to all Class Members because each Class 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 Named Plaintiff s 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, these lawyers, known as Class Counsel, make this recommendation to the Named Plaintiff. The Named Plaintiff has the duty to act in the best interests of the class as a whole and, in this case, it is her belief, as well as Class Counsel s opinion, that this settlement is in the best interest of all Class Members for at least the following reasons: There is legal uncertainty about whether a judge or a jury will find that Meriwest was contractually and otherwise legally obligated not to assess overdraft fees when the ledger balance was sufficient to pay for a transaction although the available balance was insufficient, and even if that were to be the case, there is uncertainty about whether the claims are subject to other defenses that might result in no or less recovery to Class Members. Even if the Named Plaintiff were to win at trial, there is no assurance that the 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 Class Members will avoid these and other risks and the delays associated with continued litigation. WHO IS IN THE SETTLEMENT 4. How do I know if I am part of the Settlement? 2
If you received this notice, then Meriwest s records indicate that you are a Class Member who is entitled to receive a payment or credit to your account. YOUR OPTIONS 5. What options do I have with respect to the Settlement? You have three options: (1) do nothing and automatically participate in the 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. 6. What are the critical deadlines? To participate in the settlement, you need not do anything; so long as you do not opt out or exclude yourself (described in Questions 16 through 18, below), a payment will be made to you, either by crediting your account if you are still a member of Meriwest or by mailing a check to you at the last address on file with Meriwest (or any other address you provide). The deadline for sending a letter to exclude yourself from or opt out of the settlement is January 17, 2018. The deadline to file an objection with the Court is February 6, 2018. 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. If you believe the settlement is unreasonable, unfair, or inadequate and the Court should reject the settlement, then you can object to the settlement terms. The Court will decide if your objection is valid. If the Court agrees, then the settlement will not be approved and no payments will be made to you or any other Class Member. If your objection (and any other objection) is overruled, and the settlement is approved, then you will still get a payment. 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 this Notice. The Court will make a final decision regarding the settlement at a Fairness Hearing or Final Approval Hearing, which is currently scheduled for February 22, 2018. 9. How much is the Settlement? THE SETTLEMENT PAYMENT 3
Meriwest has agreed to create a Settlement Fund of $667,000. In addition, Meriwest will forgive approximately $30,000 of allegedly improper overdraft fees that were assessed against but have not been collected from Class Members and have been charged off by Meriwest, making the value of the settlement $697,000. As discussed separately below, Attorneys fees, litigation costs, a Service Award to the Named Plaintiff, and the costs paid to a third party Claims Administrator to administer the settlement (including mailing and emailing this notice) will be paid out of the Settlement Fund. The balance of the Settlement Fund will be divided among all Class Members based on the amount of eligible overdraft fees they paid. 10. How much of the settlement fund will be used to pay for attorney fees and costs? Class Counsel has requested that the Court award up to one-third of the value of the settlement as attorneys fees. Class Counsel has also requested that it be reimbursed approximately $40,000.00 in litigation costs incurred in prosecuting the case. 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 Named Plaintiff a Service Award? Class Counsel on behalf of the Named Plaintiff has requested that the Court award him $5,000 for his role in acting as the Named Plaintiff and securing this settlement on behalf of the class. The Court will decide if a Service Award is appropriate and if so, the amount of the award. 12. How much of the settlement fund will be used to pay the Class Administrator s expenses? The Claims Administrator has agreed to cap its expenses at $25,800. 13. How much will my payment be? After payment of attorneys fees and costs of litigation, the Service Award payment to the Named Plaintiff and the costs of the Claims Administrator, there will be approximately $363,866.67. 14. Do I have to do anything if I want to participate in the Settlement? No. As long as you do not opt out, a credit will be applied to your checking account if you are an existing member, or a check will be mailed to you at the last known address Meriwest has for you if you are not an existing credit union member. If your address has changed, you should provide your current address to the Claims Administrator at the address set forth in Question 16, below. 15. When will I receive my payment? 4
The Court will hold a Fairness Hearing (explained below in Questions 22-24) on February 22, 2018 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 about 10 days. 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. EXCLUDING YOURSELF FROM THE SETTLEMENT 16. How do I exclude myself from the settlement? If you do not want to receive a payment, or if you want to keep any right you may have to sue Meriwest 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 Claims Administrator that you want to be excluded. Your letter can simply say I hereby elect to be excluded from the settlement in the Santiago v. Meriwest Credit Union class action. Be sure to include your name, last four digits of your member number, address, telephone number, and email address. Your exclusion or opt out request must be postmarked by January 17, 2018, and sent to: Santiago v. Meriwest Credit Union Claims Administrator c/o GCG P.O. Box 9349 Dublin, OH 43017-4249 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 Meriwest for the claims alleged in this case. However, you will not be entitled to receive a payment from this settlement. 18. If I exclude myself, can I obtain a payment? No. If you exclude yourself, you will not be entitled to a payment. OBJECTING TO THE SETTLEMENT 19. 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. (Class Members who exclude themselves from the settlement have no right to object to how other Class Members are treated.) To object, you must send a written document to the Claims Administrator at the address below. Your objection should say that you are a Class Member, that you object to the settlement, and the factual and legal reasons why you object, and whether you intend to appear at the hearing. In your objection, you must include your name, address, telephone number, email address (if applicable) and your signature. 5
All objections must be post-marked no later than February 6, 2018, and must be mailed to the Claims Administrator as follows: CLAIMS ADMINSTRATOR Santiago v. Meriwest Union Claims Administrator c/o GCG P.O. Box 9349 Dublin, OH 43017-4249 20. 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 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 if the settlement is approved, but you will release claims you might have against Meriwest. 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 or release claims you might have against Meriwest for the claims alleged in this lawsuit. 21. What happens if I object to the settlement? If the Court sustains your objection, or the objection of any other Class Member, then there is no settlement. If you object, but the Court overrules your objection and any other objection(s), then you will be part of the settlement. THE COURT S FAIRNESS HEARING 22. When and where will the Court decide whether to approve the settlement? The Court will hold a Final Approval or Fairness Hearing at 2:00 p.m. on February 22, 2018 at the Sacramento County Court, located at 720 9th Street, Sacramento, CA 95814, Department 35. 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 expenses and how much the Named Plaintiff should get as a Service Award for acting as the class representative. 23. 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. 24. 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 Question 19, above, the statement, I hereby give notice that I intend to appear at the Final Approval Hearing. 6
25. What happens if I do nothing at all? IF YOU DO NOTHING If you do nothing at all, and if the settlement is approved, then you will receive a payment that represents your share of the Settlement Fund net of attorneys fees, Claims Administrator expenses, and the Named Plaintiff s Service Award. You will be considered a part of the class, and you will give up claims against Meriwest for the conduct alleged in this lawsuit. You will not give up any other claims you might have against Meriwest that are not part of this lawsuit. 26. Do I have a lawyer in this case? THE LAWYERS REPRESENTING YOU The Court ordered that the lawyers and their law firms referred to in this notice as Class Counsel will represent you and the other Class Members. 27. Do I have to pay the lawyer for accomplishing this result? No. Class Counsel will be paid directly from the Settlement Fund. 28. 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 fees and costs and will specify the amount being sought as discussed above. You may review the fee application at www.meriwestcreditunionoverdraftfeessettlement.com or view a physical copy at the Office of the Clerk of the Sacramento County Superior Court, which is located at 720 9th Street, Sacramento, CA 95814. GETTING MORE INFORMATION This Notice only summarizes the proposed settlement. More details are contained in the settlement agreement, which can be viewed/obtained online at www.meriwestcreditunionoverdraftfeessettlement.com or at the Office of the Clerk of the Sacramento County Superior Court, which is located at 720 9th Street, Sacramento, CA 95814, by asking for the Court file containing the Motion for Preliminary Approval of Class Settlement (the settlement agreement is attached to the motion). For additional information about the settlement and/or to obtain copies of the settlement agreement, or to change your address for purposes of receiving a payment, you should contact the Claims Administrator as follows: Santiago v. Meriwest Credit Union Claims Administrator c/o GCG P.O. Box 9349 Dublin, OH 43017-4249 7
For more information you also can contact the Class Counsel as follows: Richard D. McCune Taras Kick Jae (Eddie) K. Kim The Kick Law Firm, APC McCune Wright Alevaro LLP 815 Moraga Drive 3281 E. Guasti Road, Ste. 100 Los Angeles, CA 90049 Ontario, CA 91761 Telephone: (310) 395-2988 Telephone: (909) 557-1250 Taras@kicklawfirm.com rdm@mccunewright.com PLEASE DO NOT CONTACT THE COURT OR ANY REPRESENTATIVE OF MERIWEST CONCERNING THIS NOTICE OR THE SETTLEMENT If you wish to UNSUBSCRIBE from future email messages from the Claims Administrator with regard to this Settlement, please click on this link. 8
Exhibit B
David L. Santiago v. Meriwest Credit Union NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT READ THIS NOTICE FULLY AND CAREFULLY; THE PROPOSED SETTLEMENT MAY AFFECT YOUR RIGHTS! IF YOU HAD A CHECKING ACCOUNT WITH MERIWEST CREDIT UNION ( MERIWEST ) AND YOU WERE CHARGED AN OVERDRAFT FEE BETWEEN SEPTEMBER 1, 2011 AND APRIL 16, 2016, THEN YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT The Sacramento County Superior Court has authorized this Notice; it is not a solicitation from a lawyer. SUMMARY OF YOUR OPTIONS AND THE LEGAL EFFECT OF EACH OPTION APPROVE THE SETTLEMENT AND RECEIVE A PAYMENT; YOU NEED NOT DO ANYTHING Unless you exclude yourself from the settlement (see the next paragraph), then you will receive a check or a credit to your account (depending on whether you are still a member of Meriwest). The approximate amount of the payment you will receive and when you will receive it is described below. EXCLUDE YOURSELF FROM THE SETTLEMENT; RECEIVE NO PAYMENT BUT RELEASE NO CLAIMS You can choose to exclude yourself from the settlement or opt out. This means you choose not to participate in the settlement. You will keep your individual claims against Meriwest but you will not receive a payment. If you want to recover against Meriwest, then you will have to file a separate lawsuit or claim. OBJECT TO THE SETTLEMENT You can file an objection with the Court explaining why you believe the Court should reject the settlement. If your objection is overruled by the Court, then you will receive a payment and you will not be able to sue Meriwest for the claims asserted in this litigation. If the Court agrees with your objection, then the settlement may not be approved. These rights and options and the deadlines to exercise them along with the material terms of the settlement are explained in this Notice. 1
BASIC INFORMATION 1. What is this lawsuit about? The lawsuit that is being settled is entitled David L. Santiago v. Meriwest Credit Union, Sacramento County Superior Court Case No. 34-2015-00183730-CU-BC-GDS. The case is a class action. That means that the Named Plaintiff, David L. Santiago is an individual who is acting on behalf of all persons who were charged an overdraft fee by Meriwest at any time from September 1, 2011 to April 16, 2016, and, at the time such fee was imposed, that person had sufficient funds in the ledger balance but not the available balance in his or her account to complete the transaction. This group is called the Class Members. He is asserting claims for breach of contract, and violations of the California Unfair Competition Law, and other causes of action. He seeks a refund of alleged improper overdraft fees charged to Class Member accounts. Meriwest does not deny it charged overdraft fees but contends it did so properly and in accordance with the terms of its agreements and applicable law because Meriwest assesses overdrafts based on the available balance in a member s account. Meriwest maintains that this practice is proper and was disclosed to its members, and therefore denies that its practices give rise to claims for damages by Mr. Santiago or any Class Member. 2. Why did I receive this Notice of this lawsuit? You received this Notice because Meriwest s records indicate that you were charged overdraft fee(s) between September 1, 2011 and April 16, 2016, while your available balance was insufficient but your ledger balance contained enough money to complete the transaction at issue. The Court directed that this Notice be sent to all Class Members because each Class 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 Named Plaintiff s 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, these lawyers, known as Class Counsel, make this recommendation to the Named Plaintiff. The Named Plaintiff has the duty to act in the best interests of the class as a whole and, in this case, it is her belief, as well as Class Counsel s opinion, that this settlement is in the best interest of all Class Members for at least the following reasons: There is legal uncertainty about whether a judge or a jury will find that Meriwest was contractually and otherwise legally obligated not to assess overdraft fees when the ledger balance was sufficient to pay for a transaction although the available balance was insufficient, and even if that were to be the case, there is uncertainty about whether the claims are subject to other defenses that might result in no or less recovery to Class Members. Even if the Named Plaintiff were to win at trial, there is no assurance that the 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 Class Members will avoid these and other risks and the delays associated with continued litigation. 4. How do I know if I am part of the Settlement? WHO IS IN THE SETTLEMENT If you received this notice, then Meriwest s records indicate that you are a Class Member who is entitled to receive a payment or credit to your account. YOUR OPTIONS 5. What options do I have with respect to the Settlement? You have three options: (1) do nothing and automatically participate in the 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. 2
6. What are the critical deadlines? To participate in the settlement, you need not do anything; so long as you do not opt out or exclude yourself (described in Questions 16 through 18, below), a payment will be made to you, either by crediting your account if you are still a member of Meriwest or by mailing a check to you at the last address on file with Meriwest (or any other address you provide). The deadline for sending a letter to exclude yourself from or opt out of the settlement is January 17, 2018. The deadline to file an objection with the Court is February 6, 2018. 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. If you believe the settlement is unreasonable, unfair, or inadequate and the Court should reject the settlement, then you can object to the settlement terms. The Court will decide if your objection is valid. If the Court agrees, then the settlement will not be approved and no payments will be made to you or any other Class Member. If your objection (and any other objection) is overruled, and the settlement is approved, then you will still get a payment. 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 this Notice. The Court will make a final decision regarding the settlement at a Fairness Hearing or Final Approval Hearing, which is currently scheduled for February 22, 2018. 9. How much is the Settlement? THE SETTLEMENT PAYMENT Meriwest has agreed to create a Settlement Fund of $667,000. In addition, Meriwest will forgive approximately $30,000 of allegedly improper overdraft fees that were assessed against but have not been collected from Class Members and have been charged off by Meriwest, making the value of the settlement $697,000. As discussed separately below, Attorneys fees, litigation costs, a Service Award to the Named Plaintiff, and the costs paid to a third party Claims Administrator to administer the settlement (including mailing and emailing this notice) will be paid out of the Settlement Fund. The balance of the Settlement Fund will be divided among all Class Members based on the amount of eligible overdraft fees they paid. 10. How much of the settlement fund will be used to pay for attorney fees and costs? Class Counsel has requested that the Court award up to one-third of the value of the settlement as attorneys fees. Class Counsel has also requested that it be reimbursed approximately $40,000.00 in litigation costs incurred in prosecuting the case. 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 Named Plaintiff a Service Award? Class Counsel on behalf of the Named Plaintiff has requested that the Court award him $5,000 for his role in acting as the Named Plaintiff and securing this settlement on behalf of the class. The Court will decide if a Service Award is appropriate and if so, the amount of the award. 12. How much of the settlement fund will be used to pay the Class Administrator s expenses? The Claims Administrator has agreed to cap its expenses at $25,800. 3
13. How much will my payment be? After payment of attorneys fees and costs of litigation, the Service Award payment to the Named Plaintiff and the costs of the Claims Administrator, there will be approximately $363,866.67. 14. Do I have to do anything if I want to participate in the Settlement? No. As long as you do not opt out, a credit will be applied to your checking account if you are an existing member, or a check will be mailed to you at the last known address Meriwest has for you if you are not an existing credit union member. If your address has changed, you should provide your current address to the Claims Administrator at the address set forth in Question 16, below. 15. When will I receive my payment? The Court will hold a Fairness Hearing (explained below in Questions 22-24) on February 22, 2018 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 about 10 days. 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. EXCLUDING YOURSELF FROM THE SETTLEMENT 16. How do I exclude myself from the settlement? If you do not want to receive a payment, or if you want to keep any right you may have to sue Meriwest 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 Claims Administrator that you want to be excluded. Your letter can simply say I hereby elect to be excluded from the settlement in the Santiago v. Meriwest Credit Union class action. Be sure to include your name, last four digits of your member number, address, telephone number, and email address. Your exclusion or opt out request must be postmarked by January 17, 2018, and sent to: 17. What happens if I opt out of the settlement? Santiago v. Meriwest Credit Union Claims Administrator c/o GCG P.O. Box 9349 Dublin, OH 43017-4249 If you opt out of the settlement, you will preserve and not give up any of your rights to sue Meriwest for the claims alleged in this case. However, you will not be entitled to receive a payment from this settlement. 18. If I exclude myself, can I obtain a payment? No. If you exclude yourself, you will not be entitled to a payment. OBJECTING TO THE SETTLEMENT 19. 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. (Class Members who exclude themselves from the settlement have no right to object to how other Class Members are treated.) To object, you must send a written document to the Claims Administrator at the address below. Your objection should say that you are a Class Member, that you object to the settlement, and the factual and legal reasons why you object, and whether you intend to appear at the hearing. In your objection, you must include your name, address, telephone number, email address (if applicable) and your signature. All objections must be post-marked no later than February 6, 2018, and must be mailed to the Claims Administrator as follows: 4
CLAIMS ADMINSTRATOR Santiago v. Meriwest Union Claims Administrator c/o GCG P.O. Box 9349 Dublin, OH 43017-4249 20. 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 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 if the settlement is approved, but you will release claims you might have against Meriwest. 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 or release claims you might have against Meriwest for the claims alleged in this lawsuit. 21. What happens if I object to the settlement? If the Court sustains your objection, or the objection of any other Class Member, then there is no settlement. If you object, but the Court overrules your objection and any other objection(s), then you will be part of the settlement. THE COURT S FAIRNESS HEARING 22. When and where will the Court decide whether to approve the settlement? The Court will hold a Final Approval or Fairness Hearing at 2:00 p.m. on February 22, 2018 at the Sacramento County Court, located at 720 9 th Street, Sacramento, CA 95814, Department 35. 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 expenses and how much the Named Plaintiff should get as a Service Award for acting as the class representative. 23. 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. 24. 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 Question 19, above, the statement, I hereby give notice that I intend to appear at the Final Approval Hearing. 25. What happens if I do nothing at all? IF YOU DO NOTHING If you do nothing at all, and if the settlement is approved, then you will receive a payment that represents your share of the Settlement Fund net of attorneys fees, Claims Administrator expenses, and the Named Plaintiff s Service Award. You will be considered a part of the class, and you will give up claims against Meriwest for the conduct alleged in this lawsuit. You will not give up any other claims you might have against Meriwest that are not part of this lawsuit. 26. Do I have a lawyer in this case? THE LAWYERS REPRESENTING YOU The Court ordered that the lawyers and their law firms referred to in this notice as Class Counsel will represent you and the other Class Members. 5
27. Do I have to pay the lawyer for accomplishing this result? No. Class Counsel will be paid directly from the Settlement Fund. 28. 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 fees and costs and will specify the amount being sought as discussed above. You may review the fee application at www.meriwestcreditunionoverdraftfeessettlement.com or view a physical copy at the Office of the Clerk of the Sacramento County Superior Court, which is located at 720 9th Street, Sacramento, CA 95814. GETTING MORE INFORMATION This Notice only summarizes the proposed settlement. More details are contained in the settlement agreement, which can be viewed/obtained online at www.meriwestcreditunionoverdraftfeessettlement.com or at the Office of the Clerk of the Sacramento County Superior Court, which is located at 720 9th Street, Sacramento, CA 95814, by asking for the Court file containing the Motion for Preliminary Approval of Class Settlement (the settlement agreement is attached to the motion). For additional information about the settlement and/or to obtain copies of the settlement agreement, or to change your address for purposes of receiving a payment, you should contact the Claims Administrator as follows: Santiago v. Meriwest Credit Union Claims Administrator c/o GCG P.O. Box 9349 Dublin, OH 43017-4249 For more information you also can contact the Class Counsel as follows: Richard D. McCune Taras Kick Jae (Eddie) K. Kim The Kick Law Firm, APC McCune Wright Alevaro LLP 815 Moraga Drive 3281 E. Guasti Road, Ste. 100 Los Angeles, CA 90049 Ontario, CA 91761 Telephone: (310) 395-2988 Telephone: (909) 557-1250 Taras@kicklawfirm.com rdm@mccunewright.com PLEASE DO NOT CONTACT THE COURT OR ANY REPRESENTATIVE OF MERIWEST CONCERNING THIS NOTICE OR THE SETTLEMENT 6
1 2 3 4 5 6 7 8 9 STATE OF CALIFORNIA COUNTY OF SACRAMENTO David Santiago v. Meriwest Credit Union, et al. Sacramento County Superior Court Case No. 34-2015-00183730 ) ) ) I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is The Kick Law Firm, APC, 815 Moraga Drive, Los Angeles, CA 90049 On January 22, 2018 I served the foregoing document described as: DECLARATION OF ERIC KIERKEGAARD REGARDING NOTICE AND SETTLEMENT ADMINISTRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 as follows: X by placing the documents listed above in sealed envelopes with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth on the attached Service List. by facsimile transmission on the interested parties in this action at the fax numbers listed on the attached Service List. I received confirmed transmission reports indicating that the document was successfully transmitted. The transmissions were reported as complete and without error. by placing the document above in a sealed Federal Express envelope and affixing a prepaid airbill and causing the envelope to be delivered to a Federal Express agent for delivery to the persons at the addresses set forth on the attached Service List. by electronic mail. I hereby certify that I served the above-described document on the interested parties in this action electronically pursuant to the stipulation of the parties by attaching an electronic copy of the document to an email addressed to the parties at their most recent email address of record in this action. I did not receive, within a reasonable time after the transmission, any electronic message or indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 24 25 26 Executed on January 22, 2018 at Los ng ' 1 Robert Dart 27 28 PROOF OF SERVICE