Broockmann v. The Bank of Greene County

The lawsuit that is being settled is entitled Broockmann v. The Bank of Greene County. It is pending in the United States District Court for the Northern District of New York, Case No. 1:22-cv- 00390-AMN-ATB. The case is a “class action.” That means that the “Class Representative,” Andrew Broockmann, is an individual who is acting on behalf of current and former customers who were assessed certain assessed certain Overdraft fees (“Relevant Fees”). The Class Representative has asserted a claim for breach of the Account agreement and violation of consumer protection laws.

Defendant maintains the overdraft fees were proper and permissible under the terms of its agreements and applicable law. Defendant denies that its practices give rise to claims for damages by the Class Representative or any settlement Class Member.

You received the Notice because Defendant’s records indicate that you were charged one or more Relevant Fees that are the subject of this action. The Court directed that the Notice be sent to all settlement Class Members because each such member has a right to know about the proposed settlement and the options available to him or her before the Court decides whether to approve the settlement.

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Class Representative’s and their lawyers’ job to identify when a proposed settlement offer is good enough that it justifies recommending settling the case instead of continuing to trial. In a class action, the Class Representative’s lawyers, known as Class Counsel, make this recommendation to the Class Representative. The Class Representative has the duty to act in the best interests of the class as a whole and, in this case, it is their belief, as well as Class Counsels’ opinion, that this settlement is in the best interest of all settlement Class Members.

There is legal uncertainty about whether a judge or a jury will find that Defendant was contractually and otherwise legally obligated not to assess the fees at issue. And even if the applicable agreements did not permit Defendant to assess these fees, there is uncertainty about whether the Class Representative’s claims are subject to other defenses that might result in no or less recovery to settlement Class Members. Even if the Class Representative were to win at trial, there is no assurance that the settlement 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 settlement Class Members will avoid these and other risks and the delays associated with continued litigation.

Defendant disputes the allegations in the lawsuit and denies any liability or wrongdoing and enters into the settlement solely to avoid the expense, inconvenience, and distraction of further proceedings in the litigation.

If you received the Notice, then Defendant’s records indicate that you are a member of the settlement Class who is entitled to receive a payment or credit to your Account.

You have three options:

1. do nothing and you will receive a payment according to the terms of this settlement;
2. exclude yourself from the settlement (“opt out” of it); or
3. participate in the settlement but object to it.

Each of these options is described in a separate section below.

There is no deadline to receive a payment. If you do nothing, then you will get a payment or forgiveness of Uncollected Fees.

The deadline for sending a letter to exclude yourself from or opt out of the settlement is August 24, 2023.

The deadline to file an objection with the Court is also August 24, 2023.

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, you can object to the settlement terms. The Court will decide if your objection is valid. If the Court agrees, the settlement may not be approved and no payments will be made to you or any other member of the Classes. If your objection (and any other objection) is overruled, and the settlement is approved, you may still get a payment and/or forgiveness of Uncollected Fees and will be bound by the settlement.

If you want to participate in the settlement, you don’t have to do anything; you will receive a payment if the settlement is approved by the Court.

The Court has to decide that the settlement is fair, reasonable, and adequate before it will approve it. The Court has already decided to provide Preliminary Approval of the settlement, which is why you received a Notice. The Court will make a final decision regarding the settlement at a “Fairness Hearing” or “Final Approval Hearing,” which is currently scheduled for October 11, 2023.

Defendant has agreed to create a Settlement Fund of $1,150,000.00. It will also forgive Uncollected Fees totaling approximately $64,500, as defined in the Settlement Agreement, and cease assessing overdraft fees on “authorize positive, settle negative” debit card transactions.

As discussed separately below, attorneys’ fees, litigation costs, and the costs paid to a third- party Settlement Administrator to administer the settlement (including mailing and emailing notice) will be paid out of the Settlement Fund. The Net Settlement Fund will be divided among all settlement Class Members entitled to settlement Class Member payments based on formulas described in the Settlement Agreement.

Class Counsel will request the Court to approve attorneys’ fees of not more than 33.33% of the Value of the settlement, and will request that it be reimbursed for 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.

Class Counsel will request that the Class Representative be paid a Service Award in the amount of $7,500 for his work in connection with this case. The Service Award must be approved by the Court.

The balance of the Settlement Fund after attorneys’ fees and costs, the Service Award and the Settlement Administrator’s fees, also known as the Net Settlement Fund, will be divided among all settlement Class Members entitled to payments in accordance with the formulas outlined in the Settlement Agreement. Current customers of Defendant will receive a credit to their Accounts for the amount they are entitled to receive. Former customers of Defendant shall receive a check from the Settlement Administrator. Settlement Class Members entitled to forgiveness of Uncollected Fees shall receive this benefit automatically.

No. If you received the Notice, then you may be entitled to receive a payment for a Relevant Fees and/or forgiveness of Uncollected Fees without having to make a claim, unless you choose to exclude yourself from the settlement, or “opt out.”

The Court will hold a Final Approval Hearing on October 11, 2023, at 10:00 a.m. to consider whether the settlement should be approved. If the Court approves the settlement, then payments should be made or credits should be issued approximately 90 days later. 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.

If you do not want to receive a payment or if you want to keep any right you may have to sue Defendant for the claims alleged in this lawsuit, then you must exclude yourself, or “opt out.”

To opt out, you must send a letter to the Settlement Administrator that you want to be excluded. Your letter can simply say, “I hereby elect to be excluded from the settlement in the Broockmann v. The Bank of Greene County class action. Be sure to include your name, the last four digits of your account number(s) or former account number(s), address, telephone number, and email address. Your exclusion or opt-out request must be postmarked by August 24, 2023, and sent to:

Broockmann v. The Bank of Greene County
Attn:
Settlement Administrator
P.O. Box 2088
Portland, OR 97208-2088

If you opt out of the settlement, you will preserve and not give up any of your rights to sue Defendant for the claims alleged in this case. However, you will not be entitled to receive a payment from the settlement.

You can object to the settlement or any part of it that you do not like IF you do not exclude yourself, or opt-out, from the settlement. (Settlement Class Members who exclude themselves from the settlement have no right to object to how other settlement Class Members are treated.) To object, you must send a written document by mail or private courier (e.g., FedEx) to the Clerk of Court, Settlement Administrator, Class Counsel, and Defendant’s Counsel at the addresses below. Your objection must include the following information:

1. the name of the Action;
2. your full name, address, and telephone number;
3. all grounds for the objection, accompanied by any legal support for the objection known to you or your counsel;
4. the number of times you have objected to a class action settlement within the five years preceding the date that you file the objection, the caption of each case in which you have made such objection, and a copy of any orders related to or ruling upon your prior objections that were issued by the trial and appellate courts in each listed case;
5. the identity of all counsel who represent you, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the settlement or fee application;
6. the number of times in which your counsel and/or your counsel’s law firm have objected to a class action settlement within the five years preceding the date of the filed objection, the caption of each case in which your counsel or their firm has made such objection and a copy of any orders related to or ruling upon your counsel’s or your counsel’s law firm’s prior objections that were issued by the trial and appellate courts in each listed case in which your counsel and/or your counsel’s law firm have objected to a class action settlement within the preceding five years;
7. any and all agreements that relate to the objection or the process of objecting—whether written or oral—between you or your counsel and any other person or entity;
8. the identity of all counsel (if any) representing you who will appear at the Final Approval Hearing;
9. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;
10. a statement confirming whether you intend to personally appear and/or testify at the Final Approval Hearing; and
11. your signature (an attorney’s signature is not sufficient).

All objections must be postmarked no later than August 24, 2023, and must be mailed to the Settlement Administrator as follows:

Broockmann v. The Bank of Greene County
Attn:
Settlement Administrator
P.O. Box 2088
Portland, OR 97208-2088

Objecting is telling the Court that you do not believe the settlement is fair, reasonable, and adequate for the settlement class, and asking the Court to reject it. You can object only if you do not opt-out of the settlement. If you object to the settlement and do not opt out, then you are entitled to a payment for a Relevant Fee and/or forgiveness of Uncollected Fees if the settlement is approved, but you will release claims you might have against Defendant. Excluding yourself or opting out is telling the Court that you do not want to be part of the settlement and do not want to receive a payment for Relevant Fees or forgiveness of Uncollected Fees, or release claims you might have against Defendant for the claims alleged in this lawsuit.

If the Court sustains your objection, or the objection of any other member of the settlement class, there is no settlement. If you object but the Court overrules your objection and any other objection(s), you will be part of the settlement class.

The Court will hold a Final Approval or Fairness Hearing at 10:00 a.m. on October 11, 2023, at the United States District Court for the Northern District of New York, Federal Building and U.S. Courthouse, which is located at 15 Henry St., Binghamton, NY 13901. At this hearing, the Court will consider whether the settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. The Court may also decide how much to award Class Counsel for attorneys’ fees and litigation costs and the amount of the Service Awards to the Class Representative. The hearing may be virtual, in which case the instructions to participate shall be posted on this.

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.

If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must include with your objection, described in FAQ 18, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

The Court ordered that the lawyers and their law firms referred to in the Notice as “Class Counsel” will represent you and the other settlement Class Members.

No. Class Counsel will be paid directly from the Settlement Fund.

The Court will be asked to approve the amount of attorneys’ fees at the Final Approval Hearing. Class Counsel will file an application for attorneys’ fees and costs and will specify the amount being sought as discussed above. You may review a physical copy of the fee application at the website established by the Settlement Administrator or by requesting the court record online from the United States District Court for the Northern District of New York at https://eservices.archives.gov/orderonline.

All requests for reissue must be submitted in writing and signed. Please send your reissue request, along with the check to reissue, if available, to the following address:

Broockmann v. The Bank of Greene County
Settlement Administrator
P.O. Box 2088
Portland, OR 97208-2088

Address Change: If you are requesting your award to be sent to a new address, please provide your previous and current address.

Name Change: If your name has changed, please provide documentation showing this to be the case, which can include documents such as a marriage certificate or court papers indicating a name change.

Deceased Class Member: If the Class Member indicated on the check is deceased, please submit a copy of the death certificate and indicate the name and address you are requesting the check reissue to be sent to.

Incapacitated Class Member: If the claimant cannot act on his or her own behalf, please submit acceptable documentation in the form of Power of Attorney, guardianship or custodial paperwork. Please also provide the name and address you are requesting the check reissue to be sent to.

Closed Business: If the business is no longer active, please provide documentation of the business closure or asset sale. Please also provide the name and address you are requesting the check reissue to be sent to. Please note that all award payment reissues will be sent via check.

This website and the Notice only summarize the proposed settlement. More details are contained in the Settlement Agreement, which can be viewed/obtained here, or at the Office of the Clerk of the United States District Court for the Northern District of New York, which is located at 15 Henry Street, Binghamton, NY 13901, by asking for the Court file containing the Unopposed Memorandum of Law in Support of Plaintiffs’ Motion For Preliminary Approval of Class Action Settlement (the Settlement Agreement is attached to the motion) or obtaining a copy online at https://eservices.archives.gov/orderonline.

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 Settlement Administrator as follows:

Broockmann v. The Bank of Greene County
Settlement Administrator
P.O. Box 2088
Portland, OR 97208-2088

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

KalielGold PLLC
1100 15^th St. NW
4^th Floor
Washington, D.C. 20005
202-350-4783

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