Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 1 of 44

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1 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 1 of 44 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 1:09-MD JLK IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No THIS DOCUMENT RELATES TO: SECOND TRANCHE ACTION Given v. Manufacturers and Traders Trust Company a/k/a/ M&T Bank S.D. Fla. Case No.: 1-10-CV JLK D. Md. Case No. 1:09-cv WDQ PLAINTIFF S AND CLASS COUNSEL S MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT, AND APPLICATION FOR SERVICE AWARD, ATTORNEYS FEES AND EXPENSES AND INCORPORATED MEMORANDUM OF LAW After more than five years of litigation, Class Counsel negotiated the Settlement Agreement and Release attached as Exhibit A ( Settlement or Agreement ) with Defendant Manufacturers and Traders Trust Company a/k/a M&T Bank ( M&T Bank or the Bank ) M&T Bank. 1 The Settlement which consists of the Bank s payment of Four Million and 00/100 Dollars ($4,000,000) to create a Settlement Fund, plus its payment of all fees and costs associated with the Notice Program and administration of the Settlement will provide immediate benefits to the Settlement Class without further risks, delays and costs. See Joint Declaration of Robert C. Gilbert, E. Adam Webb, and Nicholas A. Carlin 2, 26, attached as Exhibit B ( Joint Decl. ). In the opinion of one nationally recognized expert, the Settlement 1 All capitalized defined terms used herein have the same meanings ascribed in the Agreement.

2 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 2 of 44 represents fair value in light of the current posture and substantial future risks presented by the litigation. See Declaration of Professor Brian T. Fitzpatrick 10, attached as Exhibit C ( Fitzpatrick Decl. ). Plaintiff and Class Counsel now seek Final Approval of the Settlement. Based on the controlling legal standards and supporting facts, Final Approval is warranted. In addition, Class Counsel respectfully request that the Court award a Service Award to the named Plaintiff, whose willingness to represent the Settlement Class and active participation in the Action helped make possible the Settlement. Finally, Class Counsel respectfully request that the Court award attorneys fees equal to thirty percent (30%) of the Settlement Fund to compensate us for our work in achieving the Settlement, and approve reimbursements of certain expenses incurred in prosecuting the Action and in connection with the Settlement. I. INTRODUCTION Beginning in August 2009, Plaintiff sought declaratory relief, monetary damages and restitution challenging M&T Bank s High-to-Low Posting of Debit Card Transactions. Joint Decl. 5. Plaintiff alleged that as a result of M&T Bank s High-to-Low Posting of customers Debit Card Transactions, customers funds were depleted more rapidly than they should have been, and that Plaintiff and Settlement Class Members paid more Overdraft Fees than they should have paid. Id. According to Plaintiff, M&T Bank s practices violated the Bank s contractual and good faith duties to the Settlement Class, were substantively and procedurally unconscionable, and resulted in conversion and unjust enrichment. Id. Under this Settlement, all identifiable Settlement Class Members who sustained Positive Differential Overdraft Fees during the Class Period and do not opt-out will automatically receive their pro rata share of the Net Settlement Fund. For those Settlement Class Members, there are 2

3 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 3 of 44 no claim forms to fill out, and they will not be asked to prove that they were damaged as a result of the Bank s High-to-Low-Posting. Instead, Settlement Class Counsel and their experts have used available M&T Bank electronic data to determine which M&T Bank checking, savings and demand deposit account holders ( Account holders ) sustained Positive Differential Overdraft Fees as a result of High-to-Low-Posting, and will apply a formula (detailed in paragraph 87 of the Agreement) to calculate each identifiable Settlement Class Member s pro rata share of the Net Settlement Fund. A testament to the reasonableness and fairness of the Settlement is the amount of the Settlement Fund. Settlement Class Counsel negotiated a $4,000,000 cash payment, which is remarkable given that M&T Bank successfully asserted before this Court and would continue to assert in the absence of this Settlement that Plaintiff and all Settlement Class Members are required to individually arbitrate the claims asserted on their behalf in the Action and, therefore, that no class could ever be certified. Thus, without a settlement of the Action, if M&T Bank continued to succeed in enforcing its arbitration rights, there would be no further litigation in this Court on an individual or class-wide basis and Plaintiff and every Settlement Class Member would be required to individually pursue arbitration proceedings in an attempt to establish that M&T Bank s practice of High-to-Low-Posting was unlawful and, thereby, to recover damages. In the face of that risk, the $4,000,000 cash recovery secured through this Settlement merits Final Approval. This Action involves sharply opposed positions on several fundamental legal questions, including: (i) whether M&T Bank s arbitration provisions in its Account agreements are enforceable; (ii) whether M&T Bank breached its duty of good faith and fair dealing when it engaged in High-to-Low-Posting of its customers Debit Card Transactions; (iii) whether M&T 3

4 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 4 of 44 Bank s policies and practices involving High-to-Low-Posting were unconscionable, constituted conversion and/or resulted in unjust enrichment; and (iv) the appropriate methodology for establishing damages on a class-wide basis and the amount of damages to be recovered. M&T Bank argued that Plaintiff s claims are subject to binding individual arbitration and that the applicable Account agreements expressly authorized its High-to-Low-Posting practices. The substantial legal risks posed by these issues strongly militate in favor of this Settlement. Plaintiff and Class Counsel litigated this Action for over five years. The Parties engaged in significant motion practice on the issue of arbitration and limited arbitration-related discovery. Preliminary settlement discussions began in the Fall of Joint Decl. 24. Although the initial mediation session in November 2013 with Professor Eric Green of Resolution, LLC was unsuccessful, the Parties continued settlement discussions with Professor Green s assistance. Id. at As a result of their continued efforts, Settlement Class Counsel and M&T Bank ultimately reached agreement in principle on April 14, Id. at 26. On October 17, 2014, Plaintiff and Class Counsel filed their Motion for Preliminary Approval (DE # 3992). On October 20, 2014, the Court entered the Order Preliminarily Approving Class Settlement and Certifying Settlement Class (DE # 3993). Pursuant to the Preliminary Approval Order, Notice was provided to the Settlement Class in accord with the approved Notice Program. Plaintiff and Class Counsel now respectfully request that the Court: (1) grant Final Approval to the Settlement; (2) certify for settlement purposes the Settlement Class, pursuant to Rule 23(b)(3) and (e) of the Federal Rules of Civil Procedure; (3) appoint Plaintiff Maxine Given as class representative; (4) appoint as Class Counsel and Settlement Class Counsel the law firms and attorneys listed in paragraphs 24 and 53 of the Agreement, respectively; (5) approve a 4

5 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 5 of 44 Service Award to Plaintiff; (6) award Class Counsel attorneys fees and reimbursement of certain expenses pursuant to Rule 23(h) of the Federal Rules of Civil Procedure; and (7) enter Final Judgment dismissing the Action with prejudice. II. MOTION FOR FINAL APPROVAL A. Procedural History. The Court is familiar with the background and history of this case. On August 21, 2009, Plaintiff filed a Class Action Complaint in the United States District Court for the District of Maryland seeking monetary damages, restitution, and other relief from M&T Bank based on its allegedly unfair assessment and collection of Overdraft Fees on Debit Card Transactions. Joint Decl. 8. On October 28, 2009, M&T Bank filed a Motion to Compel Arbitration or, in the Alternative, to Dismiss. Id. at 9. M&T Bank argued that Plaintiff should be compelled to arbitrate her alleged claims or, alternatively, that the Class Action Complaint should be dismissed for failure to state any claim upon which relief can be granted. Id. Plaintiff filed an opposition to this motion on November 16, Id. In February 2010, before the Maryland federal court addressed the pending motion, the Judicial Panel on Multi-District Litigation transferred the Given action to MDL No for pretrial proceedings. Joint Decl. 10. On April 14, 2010, the Court denied M&T Bank s motion to dismiss for failure to state a claim. Id. at 11. On May 10, 2010, the Court denied M&T Bank s motion to compel arbitration (the First Order ). Id. at 12. M&T Bank appealed from the First Order. Joint Decl. 13. On April 29, 2011, the Eleventh Circuit vacated the First Order and remanded the matter for reconsideration in light of AT&T Mobility LLC v. Concepcion, 131 S. Ct (2011). Id.; see also In re: Checking Account Overdraft Litig., 425 Fed. Appx. 857 (11th Cir. 2011) (per curiam). On June 2, 2011, M&T Bank filed a renewed motion to compel arbitration. Id. at 14. Plaintiff filed an 5

6 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 6 of 44 opposition to this renewed motion on July 5, Id. On September 1, 2011, the Court denied M&T Bank s renewed motion (the Second Order ). Id. at 15. M&T Bank appealed from the Second Order. Joint Decl. 16. On March 21, 2012, the Eleventh Circuit vacated the Second Order. Id.; see also In re: Checking Account Overdraft Litig., 674 F.3d 1252 (11th Cir. 2012) (per curiam). On April 20, 2012, M&T Bank filed a second renewed motion to compel arbitration. Id. at 17. On April 25, 2012, Plaintiff filed a motion to defer ruling on M&T Bank s second renewed motion to compel arbitration, and requested leave to conduct arbitration-related discovery. Id. at 18. The Court granted Plaintiff s motion on April 26, Id. The Parties thereafter engaged in limited arbitration-related discovery, including interrogatories, document productions, and a deposition of a M&T Bank designee. Joint Decl. 19. In early 2013, as a result of the Action and other factors, M&T Bank changed its posting order applicable to Accounts, such that it generally no longer sequences Debit Card Transactions in highest-to-lowest order based on dollar amount. Id. at 20. On April 8, 2013, after the conclusion of discovery, M&T Bank filed a brief in further support of the second renewed motion to compel arbitration. Joint Decl. 21. On the same day, Plaintiff filed a brief in opposition to M&T Bank s second renewed motion. Id. On August 5, 2013, the Court granted M&T Bank s second renewed motion to compel arbitration. Id. at 22. On September 3, 2013, Plaintiff filed a notice of appeal to the Eleventh Circuit Court of Appeals. Id. at 23. B. Settlement Negotiations. Beginning in the Fall of 2013, Settlement Class Counsel and M&T Bank engaged in preliminary settlement discussions. Joint Decl. 24. On November 20, 2013, Settlement Class 6

7 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 7 of 44 Counsel and M&T Bank participated in a formal mediation session before Professor Eric Green. Id. The Parties did not reach an agreement at mediation; however, Settlement Class Counsel and M&T Bank continued negotiations over the next several months facilitated by Professor Green. Id. at During the post-mediation settlement negotiations, M&T Bank provided Professor Green and Settlement Class Counsel with certain information and representations concerning the amount of its net debit card overdraft fee revenue during the period August 2006 through August Joint Decl. 25. Settlement Class Counsel relied on this information and representations in the continued settlement negotiations. Id. As a result of their continued settlement discussions and negotiations, and based on the information and representations provided by M&T Bank regarding the amount of its net debit card overdraft fee revenue during the period August 2006 through August 2010, Settlement Class Counsel and M&T Bank reached an agreement and executed a Summary Agreement on April 14, 2014 that memorialized, subject to negotiation and execution of the Agreement, and subject to Preliminary Approval and Final Approval as required by Rule 23 of the Federal Rules of Civil Procedure, and subject to dismissal, with prejudice, of the Action, the Parties good faith intention to fully, finally, and forever resolve, discharge and release all rights and claims of Plaintiff and the Settlement Class Members in exchange for M&T Bank s payment of the sum of $4,000, to create a common fund for the benefit of the Settlement Class, and to separately pay the costs of Class Notice and Settlement administration. Joint Decl

8 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 8 of 44 On April 22, 2014, the Parties filed with the Eleventh Circuit a joint notice of settlement, motion to stay further proceedings pending finalization of settlement, and to relinquish jurisdiction to the Court. Joint Decl. at 27. On May 15, 2014, the Eleventh Circuit granted the motion and relinquished jurisdiction to the Court for the limited purpose of overseeing and approving this Settlement. Id. 28. At all times throughout the mediation proceedings and settlement discussions, the negotiations were adversarial, non-collusive and at arm s length. Id. at 29. C. Summary of the Settlement Terms The Settlement s terms are detailed in the Agreement attached as Exhibit A. 1. The Settlement Class The Settlement Class is an opt-out class under Rule 23(b)(3) of the Federal Rule of Civil Procedure. The Settlement Class is defined as: All M&T Bank customers in the United States who had one or more Accounts and who, during the Class Period, incurred one or more Overdraft Fees as a result of M&T Bank s High to Low posting. Agreement Monetary Relief The Settlement required M&T Bank to deposit $4,000,000 into an Escrow Account within fourteen (14) days of entry of the Preliminary Approval Order. Agreement 58. M&T Bank timely deposited that sum, creating the Settlement Fund. Joint Decl. 30. The Settlement Fund will be used to pay: (i) all distributions of money to the Settlement Class; (ii) all attorneys fees, costs and expenses of Class Counsel; (iii) the Service Award to the Plaintiff; (iv) any residual distributions; (v) any Taxes; (vi) any costs of Settlement Administration other than those to be paid by M&T Bank; and (vii) additional fees, costs and expenses not specifically 8

9 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 9 of 44 enumerated in the Agreement, subject to approval of Settlement Class Counsel and M&T Bank. Agreement 62. In addition to the $4,000,000 Settlement Fund, M&T Bank is responsible for paying all costs and fees associated with the Notice Program and Settlement administration. Agreement 63. All identifiable Settlement Class Members who experienced a Positive Differential Overdraft Fee during the Class Period will receive pro rata distributions from the Net Settlement Fund, provided they do not opt-out of the Settlement. Agreement 88. The Positive Differential Overdraft Fee analysis determines, among other things, which M&T Bank Account holders were assessed additional Overdraft Fees that would not have been assessed if the Bank had used an alternative posting sequence or method for posting Debit Card Transactions other than High-to- Low-Posting, and how much in additional Overdraft Fees those Account holders paid. The calculation involves a multi-step process that is described in detail in the Agreement. Agreement The Net Settlement Fund which will be distributed pro rata among all identifiable Settlement Class Members who experienced Positive Differential Overdraft Fees is equal to the Settlement Fund, plus interest earned (if any), less Court-awarded attorneys fees and costs, and the Service Award for the Plaintiff. Agreement 37. Settlement Class Members do not have to submit claims or take any other affirmative step to receive relief under the Settlement. The amount of their pro rata distributions will be determined by Settlement Class Counsel and their expert through analysis of M&T Bank s electronic data. Agreement Soon after the Effective Date of the Settlement, M&T Bank and the Settlement Administrator will distribute the Net Settlement Fund to all eligible 9

10 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 10 of 44 Settlement Class Members who do not timely opt out of the Settlement and are entitled to a distribution. Agreement Payments to Settlement Class Members who are Current Account Holders will be made by the Bank crediting such Settlement Class Members Accounts, and notifying them of the credit. Agreement 92. M&T Bank will then be entitled to a reimbursement for such credits from the Settlement Fund. Agreement 92. Former Account Holders (and Current Account Holders whose Accounts cannot feasibly be automatically credited) will receive payments from the Settlement Fund by checks mailed by the Settlement Administrator. Agreement Any uncashed or returned checks will remain in the Settlement Fund for one year from the date the first distribution check is mailed by the Settlement Administrator, during which time the Settlement Administrator will make reasonable efforts to effectuate delivery of the Settlement Fund Payments. Agreement 97. Any residual funds remaining in the Settlement Fund one year after the first distribution check is mailed will be distributed as follows: First, to M&T Bank to reimburse it for actual, third party expenses paid to the Notice Administrator and Settlement Administrator associated with the Notice Program and Settlement identification and administration; Second, any remaining funds shall be distributed on a pro rata basis to participating Settlement Class Members who received Settlement Fund Payments pursuant to Section XII of the Agreement, to the extent feasible and practical in light of the costs of administering such subsequent payments, unless the amounts involved are too small to make individual distributions economically viable or other specific reasons exist that would make such further distributions impossible or unfair; or 10

11 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 11 of 44 Third, if the costs of preparing, transmitting and administering subsequent payments to participating Settlement Class Members are not feasible and practical to make individual distributions economically viable, or other specific reasons exist that make such further distributions impossible or unfair, Settlement Class Counsel and counsel for M&T Bank will jointly propose a plan for distribution of the residual funds consistent with the American Law Institute, Principles of Aggregate Litigation 3.07(c), and will present the plan to the Court for its consideration. The Court will have the discretion to approve, deny, amend or modify, in whole or in part, the proposed plan for distribution of the residual funds in a manner consistent with the American Law Institute, Principles of Aggregate Litigation 3.07(c). The residual funds shall not be used for any litigation purpose or to disparage any Party. The Parties agree that the Court s approval, denial, amendment or modification, in whole or in part, of the proposed plan for distribution of the residual funds shall not constitute grounds for termination of the Settlement pursuant to paragraph 98 of the Agreement. Agreement Non-Monetary Relief. In addition to the $4 million cash recovery, as additional consideration for the Settlement Class, M&T Bank agreed to maintain, through December 31, 2014, its current method of posting on consumer checking accounts, absent the obligation to comply with statutory or other legal authority or through communications with its regulators.. Agreement Class Release In exchange for the benefits conferred by the Settlement, all Settlement Class Members who do not opt out will be deemed to have released M&T Bank from claims related to the subject matter of the Action. The detailed release language is found in Section XIV of the Agreement. 11

12 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 12 of The Notice Program Epiq Class Action & Claims Solutions, Inc. and its affiliate Hilsoft Notifications are the Settlement Administrator and Notice Administrator, respectively, for the Settlement. Agreement 38, 51. The Notice Program was designed to provide the best notice practicable, and was tailored to take advantage of the information M&T Bank has available about the Settlement Class Members. Id. at Subject to limited exceptions, M&T Bank will pay all fees and costs of the Notice Program. Id. at 82. The Notice Program was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, the terms of the Settlement, Class Counsel s Fee Application and request for a Service Award for Plaintiff, and their rights to opt-out of the Settlement Class or object to the Settlement. The Notices and Notice Program constituted sufficient notice to all persons entitled to notice. Id. at The Notices and Notice Program satisfied all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the constitutional requirement of due process. 6. Settlement Termination Either Party may terminate the Settlement if the Settlement is rejected or materially modified by the Court or an appellate court. Agreement 111. M&T Bank also has the right to terminate the Settlement if the number of Settlement Class Members who timely opt out of the Settlement Class equals or exceeds the number or percentage specified in the separate letter executed concurrently with the Agreement by M&T Bank s counsel and Settlement Class Counsel. Agreement 112. The number or percentage will be confidential except to the Court, who upon request will be provided with a copy of the letter agreement for in camera review. Id. 7. Class Representative Service Award Class Counsel will seek and M&T Bank will not oppose a Service Award of $10,000 for the named Plaintiff. Agreement 109. If the Court approves it, the Service Award will be paid 12

13 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 13 of 44 from the Settlement Fund, and will be in addition to any other relief to which the named Plaintiff is entitled as a Settlement Class Member. Id. The Service Award will compensate the named Plaintiff for her time and effort in the Action, and for the risks she undertook in prosecuting the Action against M&T Bank. Joint Decl. 51, Attorneys Fees and Costs M&T Bank will not oppose Class Counsel s request for attorneys fees of up to thirty percent (30%) of the Settlement Fund, plus reimbursement of litigation costs and expenses. Agreement 105. The Parties negotiated and reached agreement regarding attorneys fees and costs only after reaching agreement on all other material terms of the Settlement. Agreement 106; Joint Decl. 52, 79. D. Argument. Court approval is required for settlement of a class action. Fed. R. Civ. P. 23(e). The federal courts have long recognized a strong policy and presumption in favor of class settlements. The Rule 23(e) analysis should be informed by the strong judicial policy favoring settlements as well as the realization that compromise is the essence of settlement. In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 238 (5th Cir. Unit B 1982). In evaluating a proposed class settlement, the Court will not substitute its business judgment for that of the parties; the only question... is whether the settlement, taken as a whole, is so unfair on its face as to preclude judicial approval. Rankin v. Rots, 2006 WL , at *3 (E.D. Mich. June 28, 2006) (quoting Zerkle v. Cleveland-Cliffs Iron Co., 52 F.R.D. 151, 159 (S.D.N.Y. 1971)). Indeed, [s]ettlement agreements are highly favored in the law and will be upheld whenever possible because they are a means of amicably resolving doubts and uncertainties and preventing lawsuits. In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1105 (5th Cir. 1977). Class settlements minimize the litigation expenses of the parties and reduce the strain that litigation 13

14 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 14 of 44 imposes upon already scarce judicial resources. Therefore, federal courts naturally favor the settlement of class action litigation. Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996). The Settlement here is more than sufficient under Rule 23(e) and Final Approval is clearly warranted. 1. The Court Has Personal Jurisdiction Over the Settlement Class Because Settlement Class Members Received Adequate Notice and an Opportunity to Be Heard. In addition to having personal jurisdiction over the Plaintiff, who is a party to this Action, the Court also has personal jurisdiction over all members of the Settlement Class because they received the requisite notice and due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, (1985) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, (1950)); see also In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 306 (3d Cir. 1998), cert. denied, 525 U.S (1999). a. The Best Notice Practicable Was Furnished. The Notice Program was comprised of three parts: (1) direct mail postcard notice ( Mailed Notice ) to all identifiable Settlement Class Members; (2) publication notice ( Published Notice ) designed to reach those Settlement Class Members for whom direct mail notice was not possible; and (3) a Long Form notice with more detail than the direct mail or publication notices, that has been available on the Settlement Website and via mail upon request. Agreement, Section VIII; See Affidavit of Cameron R. Azari, Esq., on Implementation and Adequacy of Settlement Notice Program 12-27, attached as Exhibit D ( Azari Decl. ). Each facet of the Notice Program was timely and properly accomplished. Azari Decl The Settlement Administrator received the data files that identified the names and last known addresses of all identifiable Settlement Class Members, ran the addresses through the 14

15 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 15 of 44 National Change of Address Database, and mailed postcards to 497,902 Settlement Class Members. Id. 16. The Published Notice Program was completed through advertisements in 13 of the highest daily circulation newspapers and/or newspapers that were more likely to be read by Settlement Class Members in the geographic markets where M&T Bank maintained branches during the Class Period. Id. at 22. The Settlement Website with a Long Form notice was established to enable Settlement Class Members to obtain detailed information about the Action and the Settlement. Id. at 25. As of January 2, 2015, the Settlement Website had over 8,000 website visitor sessions. Id. at 26. In addition, a toll free number has been operational since December 19, Azari Decl. 27. By calling this number, Settlement Class Members can listen to answers to frequently asked questions and request a copy of the Long Form notice and Claim Form. Id. As of January 2, 2015, the toll free number had handled 3,370 calls. Id. b. The Notice and Notice Program Were Reasonably Calculated to Inform Settlement Class Members of Their Rights. The Court-approved Notice and Notice Program satisfied due process requirements because they described the substantive claims... [and] contain[ed] information reasonably necessary to make a decision to remain a class member and be bound by the final judgment. In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, (5th Cir. 1977). The Notice, among other things, defined the Settlement Class, described the release provided to M&T Bank under the Settlement as well as the amount and proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their right to opt-out or object, the procedures for doing so, and the time and place of the Final Approval Hearing. It also notified Settlement Class Members that a class judgment would bind them unless they opted out, and told them where they could get more information for example, at the Settlement Website that posts a copy of the 15

16 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 16 of 44 Agreement, as well as other important documents. Further, the Notice described Class Counsel s intention to seek attorneys fees of up to thirty percent (30%) of the $4,000,000 Settlement Fund. Hence, the Settlement Class Members were provided with the best practicable notice that was reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at ); see also Azari Decl As of January 2, 2015, the Notice Administrator had received only two (2) requests for exclusion (opt-outs). Azari Decl. 28; Joint Decl. 72. As of that date, no objections to the Settlement had been received. Id. 2. The Settlement Should Be Approved as Fair, Adequate and Reasonable. In deciding whether to approve the Settlement, the Court will analyze whether it is fair, adequate, reasonable, and not the product of collusion. Leverso v. Southtrust Bank, 18 F.3d 1527, 1530 (11th Cir. 1994); see also Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). A settlement is fair, reasonable and adequate when the interests of the class as a whole are better served if the litigation is resolved by the settlement rather than pursued. In re Lorazepam & Clorazepate Antitrust Litig., MDL No. 1290, 2003 WL , at *2 (D.D.C. June 16, 2003) (quoting Manual for Complex Litigation (Third) (1995)). Importantly, the Court is not called upon to determine whether the settlement reached by the parties is the best possible deal, nor whether class members will receive as much from a settlement as they might have recovered from victory at trial. In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1014 (N.D. Ill. 2000) (citations omitted). The Eleventh Circuit has identified six factors to be considered in analyzing the fairness, reasonableness and adequacy of a class settlement under Rule 23(e): 16

17 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 17 of 44 (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of the plaintiffs success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and the substance and amount of opposition to the settlement. Leverso, 18 F.3d at 1530 n.6; see also Bennett, 737 F.2d at 986. The analysis of these factors set forth below shows this Settlement to be eminently fair, adequate and reasonable. a. There Was No Fraud or Collusion. This Court well knows the vigor with which the Parties litigated until they reached the Settlement. The sharply contested nature of the proceedings in this Action demonstrates the absence of fraud or collusion behind the Settlement. See, e.g., In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323, 1329 n.3 (S.D. Fla. 2001); Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001) (court had no doubt that this case has been adversarial, featuring a high level of contention between the parties ); In re Motorsports Merchandise Antitrust Litig., 112 F. Supp. 2d 1329, 1338 (N.D. Ga. 2000) ( This was not a quick settlement, and there is no suggestion of collusion ); Warren v. City of Tampa, 693 F. Supp. 1051, 1055 (M.D. Fla. 1988) (record disclosed no evidence of collusion, but to the contrary showed that the parties conducted discovery and negotiated the terms of settlement for an extended period of time ), aff d, 893 F.2d 347 (11th Cir. 1989). Settlement Class Counsel negotiated the Settlement with similar vigor. Plaintiff and the Settlement Class were represented by experienced counsel throughout the negotiations. The 17

18 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 18 of 44 Parties engaged in an extensive mediation session and additional settlement negotiations with the assistance of an experienced and respected mediator. These negotiations were arm s-length and extensive. Joint Decl , 29. b. The Settlement Will Avert Years of Highly Complex and Expensive Litigation. The claims and defenses are complex; litigating them is both difficult and timeconsuming. Joint Decl. 4, Although this Action was litigated for over five years before the Parties reached an agreement to resolve it, recovery by any means other than settlement would require additional years of litigation. Id. at 64-65; see United States v. Glens Falls Newspapers, Inc., 160 F. 3d 853, 856 (2d Cir. 1998) (noting that a principal function of a trial judge is to foster an atmosphere of open discussion among the parties attorneys and representatives so that litigation may be settled promptly and fairly so as to avoid the uncertainty, expense and delay inherent in a trial. ); In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 317, & n.32 (N.D. Ga. 1993) ( [A]djudication of the claims of two million claimants could last half a millennium ). In contrast, the Settlement provides immediate benefits to approximately 440,000 Settlement Class Members, all of whom are current or former M&T Bank customers. Joint Decl. 91. As stated in In re Shell Oil Refinery, 155 F.R.D. 552 (E.D. La. 1993): The Court should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In this respect, [i]t has been held proper to take the bird in the hand instead of a prospective flock in the bush. Id. at 560 (alterations in original) (quoting Oppenlander v. Standard Oil Co., 64 F.R.D. 597, 624 (D. Colo. 1974)); see also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (noting 18

19 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 19 of 44 that complex litigation can occupy a court s docket for years on end, depleting the resources of the parties and taxpayers while rendering meaningful relief increasingly elusive ). Particularly because the demand for time on the existing judicial system must be evaluated in determining the reasonableness of the settlement, Ressler v. Jacobson, 822 F. Supp. 1551, 1554 (M.D. Fla. 1992) (citation omitted), there can be no doubt about the adequacy of the present Settlement, which provides reasonable benefits to the Class. Fitzpatrick Decl c. The Factual Record Is Sufficiently Developed to Enable Class Counsel to Make a Reasoned Judgment. Courts also consider the degree of case development that class counsel have accomplished prior to settlement to ensure that counsel had an adequate appreciation of the merits of the case before negotiating. In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 813 (3d Cir. 1995). At the same time, [t]he law is clear that early settlements are to be encouraged, and accordingly, only some reasonable amount of discovery should be required to make these determinations. Ressler, 822 F. Supp. at Settlement Class Counsel negotiated the Settlement with the benefit of limited arbitration-specific discovery and a 30(b)(6) deposition of M&T Bank, as well as confidential overdraft fee information provided by M&T Bank. Joint Decl. 25, 54, 63. Review of those documents and information positioned Settlement Class Counsel to evaluate with confidence the strengths and weaknesses of Plaintiffs claims and defenses relating to arbitration, as well as the amount of and range of damages that were potentially recoverable if the Action successfully proceeded to judgment on a class-wide basis. Id. Even in the absence of such discovery, Settlement Class Counsel are familiar with the practices and likely defenses of banks on these issues throughout MDL No. 2036, and [i]nformation obtained from other cases may be used to 19

20 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 20 of 44 assist in evaluating the merits of a proposed settlement of a different case. Lipuma, 406 F. Supp. 2d at d. Plaintiff Would Have Faced Significant Obstacles to Prevailing. The likelihood and extent of any recovery from the defendants absent... settlement is another important factor in assessing the reasonableness of a settlement. Domestic Air, 148 F.R.D. at 314; see also Ressler, 822 F. Supp. at 1555 ( A Court is to consider the likelihood of the plaintiff s success on the merits of his claims against the amount and form of relief offered in the settlement before judging the fairness of the compromise. ). In the words of Professor Fitzpatrick: The arbitration clause alone but certainly when combined with the other uncertainties outlined below with regard to the merits paints an extremely challenging picture for the class had this lawsuit gone forward. Fitzpatrick Decl. 11. Class Counsel believe that Plaintiff had a solid case against M&T Bank. Joint Decl. 64. Even so, we are mindful that in addition to arbitration, M&T Bank advanced significant defenses that we would have been required to overcome in the absence of the Settlement. Id. This Action involved several major litigation risks. Id. As this Court recognized in granting final approval to the settlement with Bank of America: The combined risks here were real and potentially catastrophic.... [B]ut for the Settlement, Plaintiffs and the class faced a multitude of potentially serious, substantive defenses, any one of which could have precluded or drastically reduced the prospects of recovery. In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, (S.D. Fla. 2011). Apart from the risks, continued litigation would have involved substantial delay and expense, which further counsels in favor of Final Approval. Had Plaintiff defeated M&T Bank s repeated motions to compel arbitration and succeeded in obtaining class certification of a multistate class, Plaintiff and the certified class would still have faced summary judgment, a trial 20

21 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 21 of 44 on the merits, and a post-judgment appeal. Joint Decl. 65. The uncertainties and delays from this process would have been significant. Id. Given the myriad risks attending these claims, as well as the certainty of substantial delay and expense from ongoing litigation, the Settlement cannot be seen as anything except a fair compromise. See, e.g., Bennett v. Behring Corp., 96 F.R.D. 343, (S.D. Fla. 1982), aff d, 737 F.2d 982 (11th Cir. 1984) (plaintiffs faced a myriad of factual and legal problems creating great uncertainty as to the fact and amount of damage, making it unwise [for plaintiffs] to risk the substantial benefits which the settlement confers... to the vagaries of a trial ). e. The Benefits Provided by the Settlement Are Fair, Adequate and Reasonable Compared to the Range of Possible Recovery. In determining whether a settlement is fair given the potential range of recovery, the Court should be guided by the fact that a proposed settlement amounts to only a fraction of the potential recovery does not mean the settlement is unfair or inadequate. Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988) (King, J.), aff d, 899 F.2d 21 (11th Cir. 1990). Indeed, [a] settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery. Id. This is because a settlement must be evaluated in light of the attendant risks with litigation. Thompson v. Metropolitan Life Ins. Co., 216 F.R.D. 55, 64 (S.D.N.Y. 2003); see also Bennett, 737 F.2d at 986 ( [C]ompromise is the essence of settlement. ). Thus, courts regularly find settlements to be fair where [p]laintiffs have not received the optimal relief. Warren, 693 F. Supp. at 1059; see, e.g., Great Neck Capital Appreciation Investment P ship, L.P. v. PriceWaterHouseCoopers, L.L.P., 212 F.R.D. 400, (E.D. Wis. 2002) ( The mere possibility that the class might receive more if the case were fully litigated is not a good reason for disapproving the settlement. ). 21

22 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 22 of 44 Class Counsel have a thorough understanding of the practical and legal issues they would continue to face litigating these claims against M&T Bank based, in part, on litigation of similar claims against a number of other banks in MDL 2036 over the past five years. Joint Decl. 55. Analysis of M&T Bank s transactional data showed that the most probable sum Plaintiff and the Settlement Class could reasonably have anticipated recovering at trial was approximately $73.9 million. Declaration of Arthur Olsen 27, attached as Exhibit E ( Olsen Decl. ); Joint Decl. 66. Through this Settlement, Plaintiff and the Settlement Class Members have achieved a recovery of approximately 5.41% of those damages without any further risk or delay. This Settlement provides a fair and reasonable recovery to the Settlement Class in light of M&T Bank s defenses and the challenging, unpredictable path of litigation Plaintiff would otherwise have continued to face in the trial and appellate courts. Joint Decl The $4,000,000 cash recovery is fair and reasonable given the obstacles confronted and the complexity of the Action, and the significant barriers that stood between the pre-settlement status of the Action and final judgment, including the prospect of being compelled to participate in individual arbitration proceedings, contested class certification and interlocutory Rule 23(f) proceedings challenging any order granting class certification; motions for summary judgment; trial; and post-trial appeals. Joint Decl. 67. Taking these risks into account, the $4,000,000 Settlement Fund represents fair value. Fitzpatrick Decl. 10, 17; Joint Decl. 70. M&T Bank s agreement to pay the substantial fees, costs and expenses of the Notice Administrator and Settlement Administrator further enhances the recovery. Joint Decl. 91. Given the extraordinary obstacles that Plaintiff faced in the litigation, this recovery is a positive achievement by any objective measure. 22

23 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 23 of 44 f. The Opinions of Class Counsel, the Class Representative, and Absent Class Members Favor Approval of the Settlement. Class Counsel endorse the Settlement with M&T Bank. Joint Decl The Court should give great weight to the recommendations of counsel for the parties, given their considerable experience in this type of litigation. Warren, 693 F. Supp. at 1060; see also Domestic Air, 148 F.R.D. at ( In determining whether to approve a proposed settlement, the Court is entitled to rely upon the judgment of the parties experienced counsel. [T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel. ) (citations omitted). To date, there has been no opposition to the Settlement. As of January 2, 2015, only two (2) Settlement Class Members had requested to be excluded from the Settlement Class. Azari Decl. 28; Joint Decl. 72. Also as of January 2, 2015, no Settlement Class Members had objected to the Settlement. Id. This is another indication that the Settlement Class is satisfied with the Settlement. It is settled that [a] small number of objectors from a plaintiff class of many thousands is strong evidence of a settlement s fairness and reasonableness. Association for Disabled Americans. v. Amoco Oil Co., 211 F.R.D. 457, 467 (S.D. Fla. 2002); also Mangone v. First USA Bank, 206 F.R.D. 222, 227 (S.D. Ill. 2001) ( In evaluating the fairness of a class action settlement, such overwhelming support by class members is strong circumstantial evidence supporting the fairness of the Settlement. ); Austin v. Pennsylvania Dept. of Corrections, 876 F. Supp. 1437, 1458 (E.D. Pa. 1995) ( Because class members are presumed to know what is in their best interest, the reaction of the class to the Settlement Agreement is an important factor for the court to consider. ). 23

24 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 24 of The Court Should Certify the Settlement Class. This Court has previously found the requirements of Rule 23(a) and 23(b)(3) satisfied in this Action in a settlement posture (DE # 3993), and in similar actions in MDL 2036 on contested motions for class certification [see, e.g., DE # 1763 (Union Bank); DE # 2615 (TD Bank); DE # 2673 (BancorpSouth); DE # 2697 (PNC Bank); DE # 2875 (Comerica); and DE # 2847 (Capital One)] and in the context of settlement [see, e.g., DE # 1520, 2150 (Bank of America); DE # 2712, 3134 (JPMorgan Chase Bank); DE # 2959, 3331 (Citizens Financial)]. The Court should make the same class certification findings in granting Final Approval. Based on the foregoing, the Settlement is fair, adequate and reasonable, and merits Final Approval. III. APPLICATION FOR SERVICE AWARD Pursuant to the Settlement, Class Counsel request, and M&T Bank does not oppose, a Service Award of $10,000 for Plaintiff Maxine Given. Agreement 109; Joint Decl. 74. The Service Award will be paid from the Settlement Fund. Agreement 109. Service awards compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Allapattah Services, Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006). [T]here is ample precedent for awarding incentive compensation to class representatives at the conclusion of a successful class action. David v. American Suzuki Motor Corp., 2010 WL , at *6 (S.D. Fla. Apr. 15, 2010). Courts have consistently found service awards to be an efficient and productive way to encourage members of a class to become class representatives. See, e.g., Ingram v. The Coca- Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (awarding class representatives $300,000 each, explaining that the magnitude of the relief the Class Representatives obtained on behalf of the 24

25 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 25 of 44 class warrants a substantial incentive award. ); Spicer v. Chi. Bd. Options Exchange, Inc., 844 F. Supp. 1226, (N.D. Ill. 1993) (collecting cases approving service awards ranging from $5,000 to $100,000, and awarding $10,000 to each named plaintiff). The relevant factors include: (1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation. See, e.g., Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998). The above factors, as applied to this Action, demonstrate the reasonableness of the Service Award to the named Plaintiff. Joint Decl ; see, e.g., Checking Account Overdraft, 830 F. Supp. 2d at ( The Court notes that the class representatives expended time and effort in meeting their fiduciary obligations to the Class, and deserve to be compensated for it. ). The named Plaintiff provided assistance that enabled Class Counsel to successfully prosecute the Action and reach the Settlement, including (1) submitting to interviews with Class Counsel, (2) locating and forwarding responsive documents and information (i.e., monthly account statements and account agreements), and (3) participating in conferences with Class Counsel. In so doing, Plaintiff was integral to forming the theory of the case. Joint Decl. 77. The named Plaintiff not only devoted time and effort to the litigation, but the end result of her efforts, coupled with those of Class Counsel, provided a benefit to the Settlement Class. Joint Decl. 77. If the Court approves it, the total Service Award will be $10,000. This amount is % of the Settlement Fund, a ratio that falls well below the range of what has been deemed to be reasonable. Id. at 78; see, e.g., Enter. Energy Corp. v. Columbia Gas Transmission, 137 F.R.D. 240, 251 (S.D. Ohio 1991) (approving service awards totaling 25

26 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 26 of 44 $300,000, or 0.56% of a $56.6 million settlement). The Service Award requested here is reasonable and should be approved. IV. APPLICATION FOR ATTORNEYS FEES AND EXPENSES As indicated in the Agreement and the Notice, and consistent with standard class action practice and procedure, Class Counsel respectfully request attorneys fees equal to thirty percent (30%) of the $4,000,000 Settlement Fund created through our efforts, 2 Agreement 107; Joint Decl Class Counsel also request reimbursement of limited out-of-pocket costs and expenses totaling $87, incurred in connection with the prosecution of the Action and in connection with the Settlement. Joint Decl The Parties negotiated and reached agreement regarding attorneys fees and costs only after reaching agreement on all other material terms of this Settlement. Agreement 108; Joint Decl. 79. The thirty percent (30%) fee request is within the guidelines set forth by the Eleventh Circuit in Camden I Condo. Ass n. v. Dunkle, 946 F.2d 768 (11th Cir. 1991), and adheres to this Court s prior decisions in MDL 2036 regarding attorneys fees. Fitzpatrick Decl For the reasons detailed herein, Class Counsel submit that the requested fee is appropriate, fair and reasonable and should be approved. A. The Law Awards Class Counsel Fees From the Common Fund Created Through Their Efforts. It is well established that when a representative party has conferred a substantial benefit upon a class, counsel is entitled to attorneys fees based upon the benefit obtained. Camden I, 946 F.2d at 771; Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). The common benefit doctrine is an exception to the general rule that each party must bear its own litigation costs. The doctrine serves the twin goals of removing a potential financial obstacle to a plaintiff s pursuit of a claim 2 In addition to the firms identified as Class Counsel in paragraph 24 of the Agreement, this fee request also includes Alters Law Firm, P.A. 26

27 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 27 of 44 on behalf of a class and of equitably distributing the fees and costs of successful litigation among all who gained from the named plaintiff s efforts. In re Gould Sec. Litig., 727 F. Supp. 1201, 1202 (N.D. Ill. 1989) (citation omitted). The common benefit doctrine stems from the premise that those who receive the benefit of a lawsuit without contributing to its costs are unjustly enriched at the expense of the successful litigant. Van Gemert, 444 U.S. at 478. As a result, the Supreme Court, the Eleventh Circuit, and courts in this District have all recognized that [a] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney s fee from the fund as whole. Sunbeam, 176 F. Supp. 2d at 1333 (citing Van Gemert, 444 U.S. at 478); see also Camden I, 946 F.2d at 771 ( Attorneys in a class action in which a common fund is created are entitled to compensation for their services from the common fund, but the amount is subject to court approval. ). Courts have also recognized that appropriate fee awards in cases such as this encourage redress for wrongs caused to entire classes of persons, and deter future misconduct of a similar nature. See, e.g., Mashburn, 684 F. Supp. at 687; see also Deposit Guar. Nat l Bank v. Rope, 445 U.S. 326, (1980). Adequate compensation promotes the availability of counsel for aggrieved persons: If the plaintiffs bar is not adequately compensated for its risk, responsibility, and effort when it is successful, then effective representation for plaintiffs in these cases will disappear.... We as members of the judiciary must be ever watchful to avoid being isolated from the experience of those who are actively engaged in the practice of law. It is difficult to evaluate the effort it takes to successfully and ethically prosecute a large plaintiffs class action suit. It is an experience in which few of us have participated. The dimensions of the undertaking are awesome. Muehler v. Land O Lakes, Inc., 617 F. Supp. 1370, (D. Minn. 1985). In the Eleventh Circuit, class counsel receives a percentage of the funds obtained through a settlement. In Camden I the controlling authority regarding attorneys fees in common-fund class actions the Eleventh Circuit held that the percentage of the fund approach [as opposed to 27

28 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 28 of 44 the lodestar approach] is the better reasoned in a common fund case. Henceforth in this circuit, attorneys fees awarded from a common fund shall be based upon a reasonable percentage of the fund established for the benefit of the class. Camden I, 946 F.2d at 774. This Court has applied the percentage of the fund approach in MDL 2036, holding: The Eleventh Circuit made clear in Camden I that percentage of the fund is the exclusive method for awarding fees in common fund class actions. Camden I, 946 F.2d at 774. Even before Camden I, courts in this Circuit recognized that a percentage of the gross recovery is the only sensible method of awarding fees in common fund cases. Mashburn v. Nat l Healthcare, Inc., 684 F. Supp. 660, 670 (M.D. Ala. 1988). More importantly, the Court observed first hand the monumental effort exerted by Class Counsel in this case, and does not need to see timesheets to know how much work Class Counsel have put in to reach this point. Checking Account Overdraft, 830 F. Supp. 2d at The Court has substantial discretion in determining the appropriate fee percentage. There is no hard and fast rule mandating a certain percentage of a common fund which may be awarded as a fee because the amount of any fee must be determined upon the facts of each case. Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I, 946 F.2d at 774). Nonetheless, [t]he majority of common fund fee awards fall between 20 percent to 30 percent of the fund though an upper limit of 50 percent of the fund may be stated as a general rule. Id. (quoting Camden I, 946 F.2d at ); see also Waters v. Int l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999), cert. denied, 530 U.S (2000) (approving fee award where the district court determined that the benchmark should be 30 percent and then adjusted the fee award higher in view of the circumstances of the case). Class Counsel s fee request falls within this accepted range and is in accord with the Court s prior fee awards in MDL Fitzpatrick Decl. 22, 25. There is no reason for the Court to deviate from its prior fee rulings here. 28

29 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 29 of 44 B. Application of the Camden I Factors Supports the Requested Fee. The Eleventh Circuit has provided a set of factors the Court should use to determine a reasonable percentage to award as an attorney s fee to class counsel in class actions: (1) the time and labor required; (2) the novelty and difficulty of the relevant questions; (3) the skill required to properly carry out the legal services; (4) the preclusion of other employment by the attorney as a result of his acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the clients or the circumstances; (8) the results obtained, including the amount recovered for the clients; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and the length of the professional relationship with the clients; and (12) fee awards in similar cases. Camden I, 946 F.2d at 772 n.3 (citing factors originally set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, (5th Cir. 1974)). These twelve factors are guidelines and are not exclusive. Other pertinent factors are the time required to reach a settlement, whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by counsel, any nonmonetary benefits conferred upon the class by the settlement, and the economics involved in 29

30 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 30 of 44 prosecuting a class action. Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I, 946 F.2d at 775). In addition, the Eleventh Circuit has encouraged the lower courts to consider additional factors unique to the particular case. Camden I, 946 F.2d at 775. As applied here, the Camden I factors demonstrate that the Court should approve the requested fee. Fitzpatrick Decl The Claims Against M&T Bank Required Substantial Time and Labor. Prosecuting and settling these claims demanded considerable time and labor, making this fee request reasonable. Throughout the pendency of the Action, the internal organization of Class Counsel ensured that we were engaged in coordinated, productive work to maximize efficiency and minimize duplication of effort. Joint Decl. 81. Class Counsel spent a substantial amount of time investigating the claims of potential plaintiffs against M&T Bank. Id. at 82. Class Counsel interviewed numerous M&T Bank customers and potential plaintiffs to gather information about M&T Bank s conduct, both at the time the lawsuit was filed and in the past, to determine the effect that M&T Bank s conduct had on consumers. Id. This information was essential to Class Counsel s ability to understand the nature of M&T Bank s conduct, the language of the Account agreements at issue, and potential remedies. Id. Class Counsel also expended significant resources researching and developing the legal claims at issue. Id. at 83. Class Counsel faced a significant hurdle with the filing of M&T Bank s repeated motions to compel arbitration. Substantial legal research and briefing was necessary to oppose those motions and the motion to dismiss, as well as conducting arbitration related discovery. Joint Decl. 83. Settlement negotiations consumed additional time and resources. Joint Decl As noted previously, preliminary settlement discussions began in 2103 and the mediation session was held in November Id. at To facilitate settlement negotiations, M&T Bank 30

31 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 31 of 44 provided certain confidential overdraft fee information to the mediator and to Settlement Class Counsel. Id. On November 20, 2013, the Parties participated in mediation at Professor Green s office in Boston, Massachusetts. Joint Decl. 24. Although an agreement was not reached at this mediation session, the Parties continued settlement discussions thereafter with the assistance of Professor Green. Id. at On April 14, 2014, the Parties executed a Summary Agreement memorializing the material terms of the Settlement, and filed a Joint Notice of Settlement with the Court, requesting a suspension of deadlines related to the evidentiary hearing pending the drafting and execution of a final settlement agreement. Id. at All told, Class Counsel s coordinated work paid dividends for the Settlement Class. Each of the above-described efforts was essential to achieving the Settlement before the Court. Joint Decl. 86. The time and resources Class Counsel devoted to prosecuting and settling this Action justify the fee that we now request. According to Professor Fitzpatrick, the award requested here is within the range of reason because nearly all of the factors listed by the Eleventh Circuit in Camden I suggest that this percentage should exceed the 25% benchmark. See Fitzpatrick Decl The Issues Involved Were Novel and Difficult, and Required the Skill of Highly Talented Attorneys. The Court regularly witnessed and commented upon the high quality of our legal work, which conferred a substantial benefit on the Settlement Class in the face of significant litigation obstacles. To begin with, it is very difficult to identify let alone establish liability based upon the High-to-Low-Posting practice that lies at the heart of the Action. The management of this very large MDL, including the Action against M&T Bank, presented challenges most law firms are simply not able to meet. Joint Decl

32 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 32 of 44 In any given case, the skill of legal counsel should be commensurate with the novelty and complexity of the issues, as well as the skill of the opposing counsel. Joint Decl Litigation of this Action required counsel highly trained in class action law and procedure as well as the specialized issues presented here. Class Counsel possess these attributes, and their participation added immense value to the representation of this large Settlement Class. Id. at 88. The record demonstrates that the Action involved a broad range of complex and novel challenges, which Class Counsel met at every juncture. Id. at 89; Fitzpatrick Decl. 23. In evaluating the quality of representation by Class Counsel, the Court should also consider the quality of opposing counsel. See Camden I, 946 F.2d at 772 n.3; Ressler, 149 F.R.D. at 654. M&T Bank was represented by extremely capable counsel. They were worthy, highly competent adversaries. Joint Decl. 90; see also Checking Account Overdraft, 830 F. Supp. 2d at 1348 (finding Class Counsel confronted not merely a single large bank, but the combined forces of a substantial portion of the entire American banking industry, and with them a large contingent of some of the largest and most sophisticated law firms in the country. ) (internal quotation marks and citation omitted); Walco Invs. v. Thenen, 975 F. Supp. 1468, 1472 (S.D. Fla. 1997) (stating that [g]iven the quality of defense counsel from prominent national law firms, the Court is not confident that attorneys of lesser aptitude could have achieved similar results ). 3. Class Counsel Achieved a Successful Result. Given the procedural posture and substantial litigation risks faced by the Settlement Class here, the Settlement represents a successful result. Fitzpatrick Decl. 10, 13, 16. Rather than facing more years of costly and uncertain litigation, the overwhelming majority of Settlement Class Members will receive an immediate cash benefit. Joint Decl. 91. The Settlement Fund 32

33 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 33 of 44 will not be reduced by costs of Notice or Settlement administration; such expenses have been and will continue to be borne separately by M&T Bank. Agreement 62-63; Joint Decl. 91. Moreover, payments to Settlement Class Members will be forthcoming automatically, through direct deposit (for Current Account Holders) or checks (for Past Account Holders). Agreement 92-96; Joint Decl The Claims Presented Serious Risk. The Settlement here is particularly noteworthy given the combined litigation risks. M&T Bank successfully advanced arguments in seeking to enforce arbitration. Joint Decl Success under these circumstances represents a genuine milestone. Consideration of the litigation risks factor under Camden I recognizes that counsel should be rewarded for taking on a case from which other law firms shrunk. Such aversion could be due to any number of things, including social opprobrium surrounding the parties, thorny factual circumstances, or the possible financial outcome of a case. All of this and more is enveloped by the term undesirable. Sunbeam, 176 F. Supp. 2d at Further, [t]he point at which plaintiffs settle with defendants... is simply not relevant to determining the risks incurred by their counsel in agreeing to represent them. Skelton v. General Motor Corp., 860 F.2d 250, 258 (7th Cir. 1988), cert. denied, 493 U.S. 810 (1989). Undesirability and relevant risks must be evaluated from the standpoint of plaintiffs counsel as of the time they commenced the suit not retroactively, with the benefit of hindsight. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 112 (3d Cir. 1976); Walco, 975 F. Supp. at If M&T Bank succeeded on appeal in enforcing its arbitration agreement, the result would have effectively wiped out 100% of the value of Plaintiff s and all Settlement Class 33

34 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 34 of 44 Members claims in the Action. Moreover, the likelihood that more than a handful of Settlement Class Members could or would have successfully pursued individual arbitrations was virtually non-existent. Thus, if M&T Bank succeeded in enforcing its arbitration agreement, it would have effectively spelled the death-knell of Plaintiff s and every Settlement Class Members ability to successfully recover any damages arising from M&T Bank s High-to-Low-Posting practices challenged in the Action. Given these risks, the $4,000,000 cash recovery obtained through the Settlement represents a successful result. These risks could easily have impeded, if not altogether derailed Plaintiff s and the Settlement Class successful prosecution of these claims at trial and in an eventual appeal. The recovery achieved by this Settlement must be measured against the fact that any recovery by Plaintiff and Settlement Class Members through continued litigation could only have been achieved if: (i) M&T Bank s successful effort to enforce mandatory, individual arbitration was reversed on appeal; (ii) Plaintiff succeeded in certifying a multistate class and the Eleventh Circuit declined to accept M&T Bank s inevitable rule 23(f) petition; (iii) Plaintiff and the certified class defeated summary judgment; (iv) Plaintiff and the certified class established liability and recovered damages at trial under the same posting order adopted by Judge Alsup in Gutierrez v. Wells Fargo Bank, N.A.; and (v) the final judgment was affirmed on appeal. The Settlement is an extremely fair and reasonable recovery for the Settlement Class in light of M&T Bank s arbitration and anticipated merits defenses, and the challenging and unpredictable path of litigation Plaintiff would have faced absent the Settlement. Joint Decl

35 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 35 of Class Counsel Assumed Considerable Risk to Pursue This Action on a Pure Contingency Basis. In undertaking to prosecute this complex case entirely on a contingent fee basis, Class Counsel assumed a significant risk of nonpayment or underpayment. Joint Decl. 96. That risk warrants an appropriate fee. Indeed, [a] contingency fee arrangement often justifies an increase in the award of attorney s fees. Sunbeam, 176 F. Supp. 2d at 1335 (quoting Behrens, 118 F.R.D. at 548); see also In re Continental Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) (holding that when a common fund case has been prosecuted on a contingent-fee basis, plaintiffs counsel must be adequately compensated for the risk of non-payment); Ressler, 149 F.R.D. at 656 ( Numerous cases recognize that the attorney s contingent fee risk is an important factor in determining the fee award. ). Public policy concerns in particular, ensuring the continued availability of experienced and capable counsel to represent classes of injured plaintiffs holding small individual claims support the requested fee. Joint Decl. 97. In the Court s words: Generally, the contingency retainment must be promoted to assure representation when a person could not otherwise afford the services of a lawyer.... A contingency fee arrangement often justifies an increase in the award of attorney s fees. This rule helps assure that the contingency fee arrangement endures. If this bonus methodology did not exist, very few lawyers could take on the representation of a class client given the investment of substantial time, effort, and money, especially in light of the risks of recovering nothing. Behrens, 118 F.R.D. at 548. The progress of the Action shows the inherent risk faced by Class Counsel in accepting these cases on a contingency fee basis. Despite Class Counsel s effort in litigating this Action for over five years, we remain completely uncompensated for the time invested in the Action, in 35

36 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 36 of 44 addition to the expenses we advanced. Joint Decl. 98. There can be no dispute that this case entailed substantial risk of nonpayment for Class Counsel. 6. The Requested Fee Comports With Fees Awarded in Similar Cases. The fee sought here matches the fee typically awarded in similar cases. Fitzpatrick Decl. 22; Joint Decl. 99. Legions of decisions have found that a thirty percent fee is well within the range of a customary fee. See, e.g., Sunbeam, 176 F. Supp. 2d at Indeed, several recent decisions within this Circuit have awarded attorneys fees up to (or in excess of) thirty percent, confirming the fairness and reasonableness of the thirty percent fee requested here. Fitzpatrick Decl. 22; Joint Decl. 99. As another member of this Court observed: [F]ederal district courts across the country have, in the class action settlement context, routinely awarded class counsel fees in excess of the 25 percent benchmark, even in so-called mega-fund cases. 3 Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1210 (S.D. Fla. 2006) (emphasis added) (awarding fees equaling 31⅓ percent of settlement fund; citing, inter alia, In re Relafen Antitrust Litig., No WGY (D. Mass. Apr. 9, 2004) (33⅓ percent); In re Lease Oil Antitrust Litig., 186 F.R.D. 403 (S.D. Tex. 1999) (35.1 percent)); see also Gaskill v. Gordon, 942 F. Supp. 382, (N.D. Ill. 1996), aff d, 160 F.3d 361 (7th Cir. 1998) (finding that 33 percent is the norm, and awarding 38 percent of settlement fund); In re Combustion, Inc., 968 F. Supp (W.D. La. 1997) (36 percent); In re Crazy Eddie Sec. Litig., 824 F. Supp. 320, 326 (E.D.N.Y. 1993) (33.8 percent); In re Ampicillin Antitrust Litig., 526 F. Supp. 494, 498 (D.D.C. 1981) (45 percent); Beech Cinema, 3 See also 1 Court Awarded Attorney Fees, 2.06[3], at 2-88 (Matthew Bender 2010) (noting that, when appropriate circumstances have been identified, a court may award a percentage significantly higher than 25 percent); 4 Newberg on Class Actions, 14:6, at 551 (4th ed. 2002) ( Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery. ). 36

37 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 37 of 44 Inc. v. Twentieth-Century Fox Film Corp., 480 F. Supp. 1195, 1199 (S.D.N.Y. 1979), aff d, 622 F.2d 1106 (2d Cir. 1980) (approximately 53 percent); Zinman v. Avemco Corp., 1978 WL 5686 (E.D. Pa. Jan. 18, 1978) (Higginbotham, J.) (50 percent). Class Counsel s fee request falls within the range of the private marketplace, where contingency fee arrangements often approach or equal forty percent of any recovery. Fitzpatrick Decl ; see Continental, 962 F.2d at 572 ( The object in awarding a reasonable attorneys fee... is to simulate the market. ); RJR Nabisco, Inc. Sec. Litig., Fed. Sec. L. Rep. (CCH) 94, 268 (S.D.N.Y. 1992) ( [W]hat should govern [fee] awards is... what the market pays in similar cases ). And, [i]n tort suits, an attorney might receive one-third of whatever amount the Plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery. Blum v. Stenson, 465 U.S. 886, 904 (1984) (Brennan, J., concurring); see also Kirchoff v. Flynn, 786 F.2d 320, 323, 325 n.5 (7th Cir. 1986) (noting 40 percent is the customary fee in tort litigation ); In re Public Service Co. of New Mexico, 1992 WL , at *7 (S.D. Cal. July 28, 1992) ( If this were a non-representative litigation, the customary fee arrangement would be contingent, on a percentage basis, and in the range of 30% to 40% of the recovery. ). The record here leaves no doubt that Class Counsel s fee request is appropriate and comports with attorneys fees awarded in similar cases. Professor Fitzpatrick distilled several major empirical studies of attorneys fees, including his own, awarded in connection with class action settlements. Fitzpatrick Decl. 22. He concluded that the empirical data from those studies supports the reasonableness of a thirty percent (30%) fee award in this case. Id. Class Counsel s fee request also falls within the range of awards in numerous recent cases in this Circuit and District. Fitzpatrick Decl. 22; see, e.g., Waters, 190 F.3d 1291 (11th 37

38 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 38 of 44 Cir. 1999) (affirming fee award of 33⅓ percent on settlement of $40 million even though most of the fund ultimately reverted to the defendant); In re Managed Care Litig. v. Aetna, MDL No. 1334, 2003 WL (S.D. Fla. Oct. 24, 2003) (35.5 percent on settlement of $100 million); Gutter v. E.I. Dupont De Nemours & Co., CIV-Gold (S.D. Fla. May 30, 2003) (33⅓ percent of $77.5 million settlement); In re Terazosin Hydrochloride Antitrust Litig., MDL-Seitz (S.D. Fla. Apr. 19, 2005) (33⅓ percent on settlement of over $30 million); Sands Point Partners, LP v. Pediatrix Med. Group, Inc., 2002 U.S. Dist. LEXIS (S.D. Fla. 2002) (30 percent of $12 million settlement); In re CHS Elecs., Inc. Sec. Litig., CIV-Gold (S.D. Fla. 2002) (30 percent on settlement of over $11 million); Ehrenreich v. Sensormatic Elecs. Corp., CIV-Zloch (S.D. Fla. 1998) (30 percent on settlement of over $44 million); Tapken v. Brown, CIV-Marcus (S.D. Fla. 1995) (33 percent of $10 million settlement) The Remaining Camden I Factors also Favor Approving the Requested Fee. The remaining Camden I factors likewise support granting Class Counsel s fee request. I can say that class counsel count among their number some of the most experienced and highly regarded lawyers in the United States. Fitzpatrick Decl. 24. Had they not had the skill to perform the necessary services, it is highly doubtful class counsel could have achieved the results 4 See also In re Friedman s, Inc. Sec. Litig., No. 1:03-cv-3475-WSD, 2009 WL (N.D. Ga. May 22, 2009) (30 percent); Francisco v. Numismatic Guar. Corp. of Am., No CIV-Martinez, 2008 WL (S.D. Fla. 2008) (30 percent); Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334 (S.D. Fla. 2007) (30 percent); In re BellSouth Corp. Sec. Litig., Civil Action No. 1:02-cv-2142-WSD (N.D. Ga. Apr. 9, 2007) (30 percent); In re Cryolife, Inc. Sec. Litig., Civil Action No. 1:02-cv-1868-BBM (N.D. Ga. Nov. 9, 2005) (30 percent); In re Profit Recovery Group Int l, Inc. Sec. Litig., Civil Action No. 1:00-cv-1416-CC (N.D. Ga. May 26, 2005) (33⅓ percent plus interest and expenses); In re Clarus Corp. Sec. Litig., Civil Action No. 1:00-CV-2841-CAP (N.D. Ga. Jan. 6, 2005) (33⅓ percent); In re Pediatric Servs. of Am., Inc. Sec. Litig., Civil Action No. 1:99-CV-0670-RLV (N.D. Ga. Mar. 15, 2002) (33⅓ percent); Ressler v. Jacobson, 149 F.R.D. 651 (M.D. Fla. 1992) (30 percent). 38

39 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 39 of 44 obtained for the class in this case. Id. Moreover, without adequate compensation and financial reward, cases such as this simply could not be pursued. Id. The Court previously held that, given the positive societal benefits to be gained from lawyers willingness to undertake difficult and risky, yet important, work like this, such decisions must be properly incentivized. The Court believes, and holds, that the proper incentive here is a 30% fee. Checking Account Overdraft, 830 F. Supp. 2d at The record before the Court compels the same outcome in this parallel MDL 2036 Action. 8. The Expense Request Is Appropriate. Class Counsel also request reimbursement for a total of $87, in certain litigation costs and expenses. Joint Decl. 101; see Mills v. Electric Auto-Lite Co., 396 U.S. 375, (1970). This sum corresponds to certain actual out-of-pocket costs and expenses that Class Counsel necessarily incurred and paid in connection with the prosecution of the Action and the Settlement. Id. at 101. Specifically, these costs and expenses consist of: (1) $76, in fees and expenses for expert Arthur Olsen, whose services were critical in determining the damages for the Settlement Class, in identifying Settlement Class Members, and in allocating the Settlement Fund; (2) $2, in court reporter fees and transcripts associated with court hearings and the arbitration-related deposition taken in the Action; and (3) $8, in mediator s fees and expenses for the services rendered by the mediator in connection with the mediation session. 5 Id. All of these out-of-pocket expenses were reasonably and necessarily incurred and paid in furtherance of the prosecution of this Action. Id. 5 Class Counsel have limited the categories of expenses for which reimbursement is being sought, and are not seeking reimbursement for thousands of dollars in other expenses that are routinely sought and recovered in common fund class actions. Joint Decl

40 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 40 of 44 V. CONCLUSION The Settlement with M&T Bank securing $4,000,000 in cash compensation for the benefit of the Settlement Class represents a successful result given the obstacles confronted in this Action. The Settlement more than satisfies the fairness and reasonableness standard of Rule 23(e), as well as the class certification requirements of Rules 23(a) and (b)(3). Further, Class Counsel s application for fees and expenses is reasonable under all the circumstances. The request satisfies the guidelines of Camden I given the results achieved, the notable litigation risks, the extremely complicated nature of the factual and legal issues, and the time, effort and skill required to litigate claims of this nature to a satisfactory conclusion. Accordingly, Plaintiff and Class Counsel respectfully request that this Court (1) grant Final Approval to the Settlement; (2) certify for settlement purposes the Settlement Class pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(e); (3) appoint Plaintiff Maxine Given as class representative; (4) appoint as Class Counsel and Settlement Class Counsel the law firms and attorneys listed in paragraphs 24 and 53 of the Agreement, respectively; (5) approve the requested Service Award for the named Plaintiff; (6) award Class Counsel attorneys fees and expenses; and (7) enter Final Judgment dismissing the Action with prejudice. 40

41 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 41 of 44 Dated: January 7, Respectfully submitted, /s/ Aaron S. Podhurst Aaron S. Podhurst, Esquire Florida Bar No Peter Prieto, Esquire Florida Bar No Stephen F. Rosenthal, Esquire Florida Bar No PODHURST ORSECK, P.A. City National Bank Building 25 W. Flagler Street, Suite 800 Miami, FL Tel: Fax: /s/ Bruce S. Rogow Bruce S. Rogow, Esquire Florida Bar No BRUCE S. ROGOW, P.A. Broward Financial Center 500 E. Broward Boulevard Suite 1930 Fort Lauderdale, FL Tel: Fax: Co-Lead Counsel for Plaintiffs /s/ Robert C. Gilbert Robert C. Gilbert, Esquire Florida Bar No Stuart Z. Grossman, Esquire Florida Bar No David M. Buckner, Esquire Florida Bar No GROSSMAN ROTH, P.A Ponce de Leon Boulevard Eleventh Floor Coral Gables, FL Tel: Fax: Coordinating Counsel for Plaintiffs 41

42 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 42 of 44 /s/ E. Adam Webb E. Adam Webb, Esquire Georgia Bar No Matthew C. Klase, Esquire Georgia Bar No G. Franklin Lemond, Jr., Esquire Georgia Bar No WEBB, KLASE & LEMOND, L.L.C The Exchange, S.E. Suite 480 Atlanta, GA Tel: Fax: /s/ Michael W. Sobol Michael W. Sobol, Esquire California Bar No Roger N. Heller, Esquire California Bar No Jordan Elias, Esquire California Bar No LIEFF CABRASER HEIMANN & BERNSTEIN L.L.P. Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA Tel: Fax: /s/ Russell W. Budd Russell W. Budd, Esquire Texas Bar No BARON & BUDD, P.C Oak Lawn Avenue Suite 1100 Dallas, TX Tel: Fax: /s/ David S. Stellings David S. Stellings, Esquire New York Bar No LIEFF CABRASER HEIMANN & BERNSTEIN L.L.P. 250 Hudson Street 8th Floor New York, NY Tel: Fax:

43 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 43 of 44 /s/ Ruben Honik Ruben Honik, Esquire Pennsylvania Bar No Kenneth J. Grunfeld, Esquire Pennsylvania Bar No GOLOMB & HONIK, P.C Market Street Suite 1100 Philadelphia, PA Tel: Fax: /s/ Ted E. Trief Ted E. Trief, Esquire New York Bar No Barbara E. Olk, Esquire New York Bar No TRIEF & OLK 150 E. 58th Street 34th Floor New York, NY Tel: Fax: Plaintiffs Executive Committee 43

44 Case 1:09-md JLK Document 4042 Entered on FLSD Docket 01/07/2015 Page 44 of 44 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 09-MD JLK IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No CERTIFICATE OF SERVICE I hereby certify that on January 7, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Robert C. Gilbert Robert C. Gilbert, Esquire Florida Bar No GROSSMAN ROTH, P.A Ponce de Leon Boulevard Eleventh Floor Coral Gables, FL Tel: Fax:

45 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 1 of 60 EXHIBIT A

46 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 2 of 60 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. 1:09-MD JLK ) IN RE: CHECKING ACCOUNT ) OVERDRAFT LITIGATION ) ) MDL No ) ) ) THIS DOCUMENT RELATES TO: ) SECOND TRANCHE ACTION ) ) Given v. Manufacturers and Traders Trust ) Company a/k/a M&T Bank ) S.D. Fla. Case No.: 1-10-CV JLK ) D.Md. Case No. 1:09-cv WDQ ) ) SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the Agreement or Settlement ) is made by and among: (1) Plaintiff Maxine Given ( Plaintiff ), on behalf of herself and the Settlement Class (as defined below); and (2) Manufacturers and Traders Trust Company a/k/a M&T Bank. Plaintiff, Settlement Class Counsel (as defined below), and M&T Bank hereby stipulate and agree that, in consideration of the promises and covenants set forth in this Agreement and upon entry by the Court (as defined below) of a Final Approval Order (as defined below), all claims of Plaintiff and the Settlement Class Members (as defined below) against M&T Bank in the cases styled Given v. Manufacturers and Traders Trust Co., D. Md. Case No. 1:09-cv WDQ, Given v. Manufacturers and Traders Trust Co., S.D. Fla. Case No. 1:10-cv JLK, and In re: Checking Account Overdraft Litigation, S.D. Fla. Case No. 1:09-MD JLK ( MDL 2036 ), and Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank, 11th Cir. Appeal No EE (collectively, the Action ) shall be settled, compromised, and released upon the terms and conditions contained herein.

47 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 3 of 60 I. Recitals 1. On August 21, 2009, Plaintiff filed a Class Action Complaint in the United States District Court for the District of Maryland seeking monetary damages, restitution, and other relief from M&T Bank based on its allegedly unfair assessment and collection of Overdraft Fees on Debit Card Transactions. 2. On October 28, 2009, M&T Bank filed a Motion to Compel Arbitration or, in the Alternative, to Dismiss. M&T Bank argued that Plaintiff should be compelled to arbitrate her alleged claims or, alternatively, that the Class Action Complaint should be dismissed for failure to state any claim upon which relief can be granted. Plaintiff filed an opposition to this motion on November 16, In February 2010, before the Maryland federal court addressed the pending motion, the Judicial Panel on Multi-District Litigation transferred the Given action to MDL No for pretrial proceedings. 4. On April 14, 2010, the Court denied M&T Bank s motion to dismiss for failure to state a claim. 5. On May 10, 2010, the Court denied M&T Bank s motion to compel arbitration (the First Order ). 6. M&T Bank appealed from the First Order. On April 29, 2011, the Eleventh Circuit vacated the First Order and remanded the matter for reconsideration in light of AT&T Mobility LLC v. Concepcion, 131 S. Ct (2011). In re: Checking Account Overdraft Litig., 425 Fed. Appx. 857 (11th Cir. 2011) (per curiam). 7. On June 2, 2011, M&T Bank filed a renewed motion to compel arbitration. Plaintiff filed an opposition to this renewed motion on July 5, On September 1, 2011, the Court denied M&T Bank s renewed motion (the Second Order ). 2

48 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 4 of M&T Bank appealed from the Second Order. On March 21, 2012, the Eleventh Circuit vacated the Second Order. In re: Checking Account Overdraft Litig., 674 F.3d 1252 (11th Cir. 2012) (per curiam). 10. On April 20, 2012, M&T Bank filed a second renewed motion to compel arbitration. 11. On April 25, 2012, Plaintiff filed a motion to defer ruling on M&T Bank s second renewed motion to compel arbitration, and requested leave to conduct arbitration-related discovery. The Court granted Plaintiff s motion on April 26, The Parties thereafter engaged in arbitration-related discovery, including interrogatories, document productions, and a deposition of a M&T Bank designee. 13. In early 2013, as a result of the Action and other factors, M&T Bank changed its posting order applicable to Accounts, such that it generally no longer sequences Debit Card Transactions in highest-to-lowest order based on dollar amount. 14. On April 8, 2013, after the conclusion of discovery, M&T Bank filed a brief in further support of the second renewed motion to compel arbitration. On the same day, Plaintiff filed a brief in opposition to M&T Bank s second renewed motion. 15. On August 5, 2013, the Court granted M&T Bank s second renewed motion to compel arbitration. 16. On September 3, 2013, Plaintiff filed a notice of appeal to the Eleventh Circuit Court of Appeals. To date, no briefing or argument has occurred in this appeal. 17. Beginning in the Fall of 2013, Settlement Class Counsel and M&T Bank engaged in preliminary settlement discussions. On November 20, 2013, Settlement Class Counsel and M&T Bank participated in a formal mediation session before Professor Eric Green. 18. The Parties did not reach an agreement at mediation; however, Settlement Class Counsel and M&T Bank continued negotiations over the next several months facilitated by Professor Green. In connection with those continued settlement negotiations, M&T Bank provided Professor Green and Settlement Class Counsel with certain information and 3

49 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 5 of 60 representations about the amount of its net debit card overdraft revenue during the period August 2006 through August Settlement Class Counsel relied on this information and representations in the continued settlement negotiations. 19. As a result of their continued settlement discussions and negotiations, and based on the information and representations provided by M&T Bank regarding the amount of its net debit card overdraft revenue during the period August 2006 through August 2010, Settlement Class Counsel and M&T Bank reached an agreement and executed a Summary Agreement on April 14, 2014 that memorialized, subject to negotiation and execution of this Agreement, and subject to Preliminary Approval and Final Approval (as defined below) by the Court as required by Rule 23 of the Federal Rules of Civil Procedure, and subject to dismissal of the Action, with prejudice, by the Court, the Parties good faith intention to fully, finally, and forever resolve, discharge and release all rights and claims of Plaintiff and the Settlement Class Members in exchange for M&T Bank s agreement to pay the sum of Four Million Dollars ($4,000,000.00) to create a common fund for the benefit of the Settlement Class, and to separately pay the costs of class notice and settlement administration as specified herein. 20. On April 22, 2014, the Parties filed with the Eleventh Circuit a joint notice of settlement, motion to stay further proceedings pending finalization of settlement, and to relinquish jurisdiction to the Court. 21. On May 15, 2014, the Eleventh Circuit granted the motion and relinquished jurisdiction to the Court for the limited purpose of overseeing and approving this Settlement. 22. The Parties now agree to settle the Action in its entirety, without any admission of liability, with respect to all Released Claims (as defined below) by the Settlement Class Members. The Parties intend this Agreement to bind Plaintiff, the Settlement Class Members, and M&T Bank. NOW, THEREFORE, in light of the foregoing, for good and valuable consideration, the receipt of which is hereby mutually acknowledged, Plaintiff and M&T Bank agree to the Settlement, subject to approval by the Court, as follows. 4

50 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 6 of 60 II. Definitions In addition to the terms defined at various points within this Agreement, the following Defined Terms apply throughout this Agreement and the attached exhibits: 23. Account means any consumer checking, demand deposit, money market or savings account maintained by M&T Bank in the United States that may be accessed by a Debit Card. Account does not include Health Savings Accounts. 24. Class Counsel means Bruce S. Rogow, P.A.; Podhurst Orseck, P.A.; Grossman Roth, P.A.; Lieff Cabraser Heimann & Bernstein, LLP; Baron & Budd, P.C.; Golomb & Honik, P.C.; Trief & Olk; Webb, Klase & Lemond, L.L.C.; Phillips, Erlewine & Given L.L.P., and such other firms as are identified in the motion for final approval and Class Counsel s fee application. 25. Class Period means the period from August 21, 2006 through, and including, August 15, Court means the United States District Court for the Southern District of Florida. 27. Current Account Holder means a Settlement Class Member who had an Account during the Class Period, and who continues to have that Account as of the date that the Net Settlement Fund is distributed to the Settlement Class Members pursuant to this Agreement. 28. Debit Card means a card or other access device issued or provided by M&T Bank, including a debit card, check card or automated teller machine ( ATM ) card, as well as any card number, card data or other card information associated with any such card that can be used to access and debit funds from an Account to conduct Point of Sale, ATM or other electronic fund transfer transactions. 29. Debit Card Transaction means any transaction effectuated with a Debit Card, including, but not limited to, a Point of Sale transaction (whether pinned or pinless) and an ATM transaction, that results in a debit to an Account. 5

51 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 7 of High to Low posting means posting debits to an Account pursuant to M&T Bank s former policy and practice of posting transactions, including Debit Card Transactions, in highest to lowest dollar amount. 31. Effective Date means the fifth business day after which all of the following events have occurred: a. All Parties, M&T Bank s Counsel, and Settlement Class Counsel have executed this Agreement; b. The Court has entered, without material change, the Final Approval Order; and c. The time for appeal or petition has expired, and no appeal or petition for rehearing or review has been timely filed; or the Settlement is affirmed on appeal or review without material change, no other appeal or petition for rehearing or review is pending, and the time period during which further petition for hearing, review, appeal or certiorari could be taken has finally expired and relief from a failure to file same is not available. 32. Escrow Account means the account to be established consistent with the terms and conditions described in Section III below. The Escrow Account shall be held at Northern Trust Bank, or such other FDIC insured bank selected by Settlement Class Counsel. 33. Escrow Agent means Epiq Class Action & Claims Solutions, Inc. or some other entity selected by the Parties. The Escrow Agent shall administer the Escrow Account. 34. Final Approval means the date that the Court enters the Final Approval Order granting Final Approval to the Settlement and determines the amount of fees, costs and expenses awarded to Class Counsel and the amount of the Service Award (defined below) to Plaintiff. The proposed Final Approval Order that will be attached to the motion for final approval of the Settlement shall be in a form agreed upon by Settlement Class Counsel and M&T Bank s Counsel. 35. Final Approval Order means the order and judgment that the Court enters upon finally approving the Settlement. 6

52 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 8 of M&T Bank means Manufacturers and Traders Trust Co. (a/k/a M&T Bank) and each of its present and former parents, subsidiaries, divisions, affiliates, predecessors, successors and assigns, and its present and former directors, officers, employees, agents, insurers, shareholders, attorneys, advisors, consultants, representatives, partners, joint venturers, independent contractors, wholesalers, resellers, distributors, retailers, predecessors, successors and assigns. M&T Bank does not include: (a) Partners Trust Bank during the period before the closing of M&T Bank s acquisition of Partners Trust Bank (closing on M&T Bank s acquisition of Partners Trust Bank occurred in or around November 2007); or (b) Provident Bank of Maryland (a/k/a Provident Bankshares) during the period before the closing of M&T Bank s acquisition of Provident Bank of Maryland (closing on M&T Bank s acquisition of Provident Bank of Maryland occurred in or around May 2009). 37. Net Settlement Fund means the Settlement Fund, plus any interest earned, minus Court-approved attorneys fees, costs and expenses, any Court-approved Service Award to Plaintiff, and any costs associated with taxes and investments as to the Settlement Fund. 38. Notice means the notices of proposed class action settlement that the Parties will ask the Court to approve in connection with the motion for preliminary approval of the Settlement. Notice Program means the methods provided for in this Agreement for giving the Notice and consists of Mailed Notice, Published Notice and Long-form Notice substantially in the forms attached hereto as Exhibits 1, 2 and 3, respectively. A complete description of the contemplated Notice Program is provided in Section VIII, below. Notice Administrator means Epiq Class Action & Claims Solutions, Inc. or some other entity selected by the Parties. 39. Opt-Out Period means the period that begins the day after the earliest date on which the Notice is first mailed or published, and that ends no later than 30 days prior to the Final Approval Hearing. The Opt-Out deadline will be specified in the Notice. 40. Overdraft Fee means any fee incurred by a holder of an Account resulting from an item or other debit transaction posting against insufficient funds, including extended overdraft fees. Fees charged to transfer balances from other accounts are excluded. 7

53 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 9 of Parties means Plaintiff and M&T Bank. 42. Past Account Holder means a Settlement Class Member who held an Account at some time during the Class Period but no longer holds that Account as of the date that the Net Settlement Fund is distributed to Settlement Class Members pursuant to this Agreement. 43. Plaintiff means Maxine Given. 44. Point of Sale or POS means a transaction (whether pinned or pinless) in which an Account holder uses his or her Debit Card to purchase a product or service. 45. Preliminary Approval means the date that the Court enters, without material change, an order preliminarily approving the Settlement in the form jointly agreed upon by the Parties. 46. Released Claims means all claims to be released as specified in Section XIV of this Agreement. The Releases means all of the releases contained in Section XIV of this Agreement. 47. Released Parties means those persons and entities released by paragraphs 102 and 103, below. 48. Releasing Parties means Plaintiff and all Settlement Class Members, and each of their respective estates, heirs, assigns, beneficiaries, and successors. 49. Service Award means any Court-ordered payment to Plaintiff in addition to any payment due Plaintiff as a Settlement Class Member. 50. Settlement means the settlement into which the Parties have entered to resolve the Action. The terms of the Settlement are as set forth in this Agreement and the attached exhibits. 51. Settlement Administrator means Epiq Class Action & Claims Solutions, Inc. or some other entity selected by the Parties. 52. Settlement Class means customers of M&T Bank in the United States who had one or more Accounts and who, during the Class Period, incurred one or more Overdraft Fees as a result of M&T Bank s High to Low posting. 8

54 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 10 of Settlement Class Counsel means Aaron S. Podhurst of Podhurst Orseck, P.A.; Bruce S. Rogow of Bruce S. Rogow, P.A.; Robert C. Gilbert of Grossman Roth, P.A.; E. Adam Webb of Webb, Klase & Lemond, L.L.C., and Nicholas A. Carlin of Phillips, Erlewine & Given L.L.P. Settlement Class Counsel are a subset of Class Counsel and are responsible for handling all Settlement-related matters on behalf of Plaintiff. 54. Settlement Class Member means any person in the Settlement Class who does not opt-out of the Settlement. 55. Settlement Fund means the fund established under Section III of this Agreement. 56. Settlement Website means the website that the Settlement Administrator will establish as soon as practicable following Preliminary Approval, but prior to the commencement of the Notice Program, as a means for persons in the Settlement Class to obtain notice of and information about the Settlement, through and including hyperlinked access to this Agreement, the Long-Form Notice, the order preliminarily approving this Settlement and such other documents as Settlement Class Counsel and M&T Bank s Counsel agree to post or that the Court orders posted on the website. These documents shall remain on the Settlement Website at least until Final Approval. The URL of the Settlement Website shall be as agreed to by the Settlement Administrator, Settlement Class Counsel, and M&T Bank s Counsel. The Settlement Website shall not include any advertising, and shall not bear or include the M&T Bank logo or trademarks. Ownership of the Settlement Website URL shall be transferred to M&T Bank within 10 days after the Effective Date, unless otherwise agreed to by the Settlement Administrator, M&T Bank, and Settlement Class Counsel. 57. M&T Bank s Counsel means Venable LLP. 9

55 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 11 of 60 III. Establishing and Maintaining the Settlement Fund; Maintenance of Posting Order; Costs of Notice and Settlement Administration 58. Within fourteen business days of Preliminary Approval, M&T Bank shall deposit the sum of Four Million Dollars ($4,000,000.00) into the Escrow Account to create the Settlement Fund. 59. M&T Bank shall continue to use the posting order set forth in Exhibit 4 for every Account until at least December 31, Upon the establishment of the Escrow Account, the Escrow Agent may, but shall not be obligated to, cause the Settlement Fund in the Escrow Account to be invested in interestbearing short-term instruments to be agreed upon by Settlement Class Counsel and M&T Bank that are backed by the full faith and credit of the United States Government or that are fully insured by the United States Government or an agency thereof (the Instruments ). The Escrow Agent may thereafter re-invest the interest proceeds and the principal as they mature in similar Instruments, bearing in mind the liquidity requirements of the Escrow Account to ensure that it contains sufficient cash available to pay all invoices, taxes, fees, costs and expenses, and other required disbursements, in a timely manner. Except as otherwise specified herein, the Instruments at all times will remain in the Escrow Account and under the control of the Escrow Agent. The Escrow Agent shall communicate with Settlement Class Counsel and M&T Bank s Counsel on at least a monthly basis to discuss potential cash needs for the following month. All costs incurred in connection with investing in the Instruments shall be paid from the Settlement Fund. 61. The Settlement Fund at all times shall be deemed a qualified settlement fund within the meaning of United States Treasury Reg B-l. All taxes (including any estimated taxes, and any interest or penalties relating to them) arising with respect to the income earned by the Settlement Fund or otherwise, including any taxes or tax detriments that may be imposed upon M&T Bank, M&T Bank s Counsel, Plaintiff, and/or Class Counsel with respect to income earned by the Settlement Fund for any period during which the Settlement Fund does not qualify 10

56 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 12 of 60 as a qualified settlement fund for the purpose of federal or state income taxes or otherwise (collectively, Taxes ), shall be paid out of the Settlement Fund. M&T Bank and M&T Bank s Counsel and Plaintiff and Class Counsel shall have no liability or responsibility for any of the Taxes. The Settlement Fund shall indemnify and hold M&T Bank and M&T Bank s Counsel and Plaintiff and Class Counsel harmless for all Taxes (including, without limitation, Taxes payable by reason of any such indemnification). 62. The Settlement Fund shall be used to pay all distributions to Settlement Class Members, any Service Award to Plaintiff, and all attorneys fees, costs and expenses awarded to Class Counsel, as follows: a. Distribution of payments to Settlement Class Members pursuant to Section XI herein. b. Reimbursement to M&T Bank for the settlement payment amounts that will be credited to Current Account Holder Settlement Class Members. c. Payment of the Court-ordered award of Class Counsel s attorneys fees, costs and expenses pursuant to Section XV herein. d. Payment of any Court-ordered Service Award to Plaintiff pursuant to Section XV(C) herein. e. Payment to M&T Bank, if any, for costs of notice and administration pursuant to paragraph 98a of this Agreement. 63. In addition to the $4.0 million payment required by paragraph 58, and subject to reimbursement as provided for under paragraphs 61 and 98a of this Agreement, M&T Bank shall pay the following: a. The costs of Notice to the Settlement Class and for the related services of the Settlement Administrator, within 30 days of Settlement Class Counsel s and M&T Bank s Counsel s receipt and approval of invoices received, as provided in Section VIII herein. 11

57 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 13 of 60 b. The Settlement Administrator s costs and fees for services provided pursuant to Section VII herein, within 30 days of Settlement Class Counsel s and M&T Bank s Counsel s receipt and approval of invoices received from the Settlement Administrator. c. Other than the costs incurred for the provision of Class Notice and for Settlement Administration services, as specifically addressed in subparagraphs 63(a)-(b) above, in no event shall M&T Bank be required to pay more than a total of $4.0 million in connection with this Settlement or otherwise. IV. Conditional Certification of the Settlement Class 64. Solely for purposes of avoiding the expense and inconvenience of further litigation, M&T Bank does not oppose the certification for settlement purposes only of the Settlement Class. 65. M&T Bank shall have the right to terminate the Settlement pursuant to Section XVI if the Court declines to approve the Settlement, or if the Court changes the Settlement Class composition or the terms of the Settlement in any material way not acceptable to M&T Bank after reasonable consultation with Settlement Class Counsel, or if certification of the Settlement Class or approval of the Settlement is reversed, or if certification of the Settlement Class or approval of the Settlement is changed upon appeal or review in any material way not acceptable to M&T Bank after reasonable consultation with Settlement Class Counsel. 66. If the Settlement is not finally approved by the Court, or the Settlement is terminated, the certification of the Settlement Class will be void, and no doctrine of waiver, estoppel, or preclusion will be asserted in any litigated certification proceedings in the Action. If the Settlement is not finally approved or is terminated, M&T Bank shall not be precluded from challenging class certification in further proceedings in the Action or in any other action. No agreements made by or entered into by M&T Bank in connection with the Settlement may be used by Plaintiff, any person in the Settlement Class, or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in the Action or any other action. 12

58 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 14 of 60 V. Preliminary Approval 67. Upon execution of this Agreement by all Parties, Plaintiff and Settlement Class Counsel shall promptly move the Court for an Order granting Preliminary Approval of this Settlement ( Preliminary Approval Order ). The proposed Preliminary Approval Order that will be attached to the motion shall be in a form agreed upon by Settlement Class Counsel and M&T Bank s Counsel. The motion for preliminary approval shall request that the Court: (i) approve the terms of the Settlement as within the range of fair, adequate and reasonable; (ii) provisionally certify the Settlement Class pursuant to Federal Rule of Civil Procedure 23(b)(3) and (e) for settlement purposes only; (iii) approve the Notice Program set forth herein and approve the form and content of the Notices of the Settlement, substantially in the forms attached to this Agreement as Exhibits 1, 2 and 3; (iv) approve the procedures set forth in paragraphs 74 and 75 below for persons in the Settlement Class to exclude themselves from the Settlement or to object to the Settlement; (v) stay the Action pending Final Approval of the Settlement; and (vi) schedule a Final Approval Hearing for a time and date mutually convenient for the Court, Settlement Class Counsel and M&T Bank s Counsel, at which the Court will conduct an inquiry into the fairness, reasonableness and adequacy of the Settlement, and determine whether to approve the Settlement and Class Counsel s application for attorneys fees, costs and expenses, and for a Service Award to Plaintiff ( Final Approval Hearing ). 68. M&T Bank, at its own expense, shall serve or cause to be served a notice of the proposed Settlement, in conformance with the Class Action Fairness Act, 28 U.S.C. 1715(b). VI. Discovery 69. M&T Bank has already provided limited customer-related data and overdraft fee policy and financial information to Settlement Class Counsel. In addition, and consistent with its statutory and regulatory obligations to protect its customers private financial information, M&T Bank will continue to reasonably cooperate in an informal manner with Settlement Class Counsel by providing reasonably available data to permit Settlement Class Counsel and their expert(s) to compile the list of names and addresses of identifiable persons in the Settlement Class that will be 13

59 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 15 of 60 used in providing the Mailed Notice to the Settlement Class and to perform the allocation analysis detailed in Section X below. VII. Settlement Administrator 70. Settlement Class Counsel and M&T Bank shall select and M&T Bank shall pay all the fees and expenses of Epiq Class Action & Claims Solutions, Inc. (or some other entity) to serve as the Settlement Administrator. The Settlement Administrator shall administer various aspects of the Settlement as described in paragraph 71 and perform such other functions assigned to the Settlement Administrator elsewhere in this Agreement, including, but not limited to: providing Mailed Notice to persons in the Settlement Class; effectuating the Notice Program pursuant to Section VIII below; distributing the Settlement Fund as provided herein; repaying M&T Bank its actual notice and administration costs pursuant to paragraph 63; repaying M&T Bank from the Settlement Fund the amount of account credits M&T Bank provides to Current Account Holder Settlement Class Members pursuant to paragraph 92; and, in the event of a termination of the Settlement pursuant to Section XVI below, returning the Settlement Fund, along with any accrued interest or earnings, less any amounts already committed to pay for expenses and costs associated with investments and/or taxes with respect to the Settlement Fund, to M&T Bank. Settlement Class Counsel and M&T Bank s Counsel will jointly oversee the Settlement Administrator. 71. As specified below, all Settlement Administrator fees, charges and expenses shall be paid by M&T Bank within 30 days of Settlement Class Counsel s and M&T Bank s Counsel s receipt and approval of an invoice. The duties of the Settlement Administrator, in addition to other responsibilities that are described in this Agreement, are as follows: a. Obtain from M&T Bank and Settlement Class Counsel the name and address information (to the extent it is reasonably available) for persons in the Settlement Class, and, to the extent necessary, verify and update the addresses received through the National Change of Address database for the purpose of mailing the Mailed Notice, and later mailing distribution checks to Past Account Holder Settlement Class Members, and to Current Account 14

60 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 16 of 60 Holder Settlement Class Members where it is not feasible or reasonable for M&T Bank to make the payment by a credit to the Settlement Class Members Accounts; b. Establish and maintain a Post Office box for requests for exclusion from the Settlement Class; c. Establish and maintain the Settlement Website; d. Establish and maintain an automated toll-free telephone line for persons in the Settlement Class to call with Settlement-related inquiries, and answer the questions of persons who call with or otherwise communicate such inquiries (except that the Settlement Administrator shall not give, and shall not be expected to give, legal advice); e. Respond to any mailed inquiries from persons in the Settlement Class; f. Process all requests for exclusion from persons in the Settlement Class; g. Provide weekly reports and a final report to Settlement Class Counsel and M&T Bank s Counsel that summarize the number of requests for exclusion received that week, the total number of exclusion requests received to date and other pertinent information; h. At Settlement Class Counsel s request in advance of the Final Approval Hearing, prepare an affidavit to submit to the Court that identifies each person in the Settlement Class who timely and properly requested exclusion from the Settlement Class; i. Process and transmit distributions to Settlement Class Members from the Net Settlement Fund; j. Perform all tax-related services for the Escrow Account as provided in this Agreement; k. Perform the duties of Escrow Agent as described in this Agreement, and any other Settlement administration-related function at the instruction of Settlement Class Counsel and M&T Bank s Counsel, including, but not limited to, verifying (through affidavit or other written statement) that M&T Bank has correctly made a distribution to Settlement Class Members pursuant to paragraph 92 herein; and 15

61 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 17 of 60 l. Pay invoices, expenses and costs upon approval by Settlement Class Counsel and M&T Bank s Counsel, as provided in this Agreement. VIII. Providing Notice to the Settlement Class 72. M&T Bank shall pay the Settlement Administrator to effectuate the Notice Program that provides Notice to the Settlement Class. 73. Upon Preliminary Approval of the Settlement, the Settlement Administrator shall implement the Notice Program outlined herein, using the forms of Notice approved by the Court in the Preliminary Approval Order. The Notice shall include, among other information: a description of the material terms of the Settlement; a date by which persons in the Settlement Class may exclude themselves from or opt-out of the Settlement Class; a date by which persons in the Settlement Class may object to the Settlement; the date upon which the Final Approval Hearing will occur; and the address of the Settlement Website at which persons in the Settlement Class may access this Agreement and other related documents and information. Settlement Class Counsel and M&T Bank s Counsel shall insert the correct dates and deadlines in the Notice before the Notice Program commences, based upon those dates and deadlines set by the Court in the Preliminary Approval Order. Notices and publications provided under or as part of the Notice Program shall not bear or include the M&T Bank logo or trademarks, the return address of M&T Bank, the M&T Bank colors, or otherwise be styled so as to appear to originate from M&T Bank. 74. The Notice also shall include a procedure for persons in the Settlement Class to opt out at any time during the Opt-Out Period. A person in the Settlement Class who does not timely and validly request to opt out shall be bound by the terms of this Agreement. 75. The Notice also shall include a procedure for Settlement Class Members to object to the Settlement and/or to Class Counsel s application for attorneys fees, costs and expenses, and/or for a Service Award to Plaintiff. Objections to the Settlement or to the application for attorneys fees, costs, expenses and a Service Award must be mailed to the Clerk of the Court, Settlement Class Counsel and M&T Bank s Counsel. For an objection to be considered by the Court, the objection must be postmarked no later than the last day of the Opt-Out Period, as 16

62 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 18 of 60 specified in the Notice. For an objection to be considered by the Court, the objection must also set forth: a. the name of MDL 2036; b. the objector s full name, address and telephone number; c. an explanation of the basis upon which the objector claims to be a Settlement Class Member; d. all grounds for the objection, accompanied by any legal support for the objection known to the objector or his or her counsel; e. the number of times in which the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders or opinions related to or ruling upon the objector s prior such objections that were issued by the trial and appellate courts in each listed case; f. the identity of all counsel who represent the objector, 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; g. the number of times in which the objector s counsel and/or counsel s law firm have objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which counsel or the firm has made such objection, and a copy of any orders related to or ruling upon counsel s or the firm s prior such objections that were issued by the trial and appellate courts in each listed case; h. any and all agreements that relate to the objection or the process of objecting whether written or verbal between objector or objector s counsel and any other person or entity; i. the identity of all counsel representing the objector who will appear at the Final Approval Hearing; 17

63 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 19 of 60 j. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; k. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and l. the objector s signature (an attorney s signature is not sufficient). 76. Notice shall be provided to the Settlement Class in three different ways: Mailed Notice; Published Notice; and Long-form Notice on the Settlement Website. Not all persons in the Settlement Class will receive all forms of Notice, as detailed below. 77. The Mailed Notice shall be substantially in the form attached hereto as Exhibit 1; Published Notice shall be substantially in the form attached hereto as Exhibit 2; and the Longform Notice shall be substantially in the form attached hereto as Exhibit Within 28 days of the date that the Settlement Administrator receives from Settlement Class Counsel the data files (to the extent they are available) that identify the names and last known addresses of persons in the Settlement Class, the Settlement Administrator shall, to the extent necessary, run the addresses through the National Change of Address Database, and shall mail to all such persons in the Settlement Class a postcard containing the Mailed Notice ( Initial Mailed Notice ). 79. The Settlement Administrator shall perform reasonable address traces for all Initial Mailed Notices that are returned as undeliverable. No later than 70 days before the Final Approval Hearing, the Settlement Administrator shall complete the r ing of the Mailed Notice to those persons in the Settlement Class whose new addresses were identified as of that time through address traces ( Notice R ing Process ). 80. The Mailed Notice (which is comprised of both the Initial Mailed Notice, and the Notice R ing Process) shall be completed no later than 70 days before the Final Approval Hearing. Within 7 days after the date the Settlement Administrator completes the Notice R ing Process, the Settlement Administrator shall provide Settlement Class Counsel and M&T Bank s Counsel an affidavit that confirms that the Mailed Notice was completed in a timely 18

64 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 20 of 60 manner. Settlement Class Counsel shall file that affidavit with the Court as an exhibit to or in conjunction with Plaintiff s motion for final approval of the Settlement. 81. The Settlement Administrator shall administer the Published Notice, which shall be comprised of a one-time appropriate sized advertisement in all the areas in which M&T Bank has bank branches. The Published Notice shall be completed no later than 70 days before the Final Approval Hearing. 82. Subject to paragraph 98a, M&T Bank shall pay all costs associated with the Mailed Notice and Published Notice and all related fees for the services of the Settlement Administrator, within 30 days of an invoice being approved by Settlement Class Counsel and M&T Bank s Counsel. 83. Within 7 days after the date the Settlement Administrator completes the Published Notice, the Settlement Administrator shall provide Settlement Class Counsel and M&T Bank s Counsel with one or more affidavits that confirm that the Published Notice was given in accordance with the Preliminary Approval Order. Settlement Class Counsel shall file such affidavit(s) with the Court in conjunction with Plaintiff s motion for final approval of the Settlement. IX. Final Approval Order and Judgment 84. Plaintiff s and Settlement Class Counsel s motion for Preliminary Approval of the Settlement will include a request to the Court for a scheduled date on which the Final Approval Hearing will occur. Plaintiff and Settlement Class Counsel shall file their motion for Final Approval of the Settlement, application for attorneys fees, costs and expenses, and for a Service Award for Plaintiff no later than 56 days prior to the Final Approval Hearing. At the Final Approval Hearing, the Court will hear argument on Plaintiff s and Settlement Class Counsel s motion for Final Approval of the Settlement, application for attorneys fees, costs and expenses, and for a Service Award for Plaintiff. In the Court s discretion, the Court also will hear argument at the Final Approval Hearing from any Settlement Class Members (or their counsel) who timely 19

65 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 21 of 60 object to the Settlement or to the application for attorney s fees, costs, expenses, or for a Service Award, provided that said objections meet all of the requirements listed in paragraph 75 above. 85. The Court at the Final Approval Hearing will determine whether to enter the Final Approval Order granting final approval of the Settlement, and whether to approve Class Counsel s request for attorneys fees, costs, expenses, and a Service Award. The proposed Final Approval Order, in a form agreed upon by Settlement Class Counsel and M&T Bank s Counsel, shall, among other things: a. Determine that the Settlement is fair, reasonable and adequate; b. Finally certify the Settlement Class for settlement purposes only; c. Determine that the Notice provided satisfies Due Process requirements; d. Dismiss the Action with prejudice and without costs; e. Bar and enjoin Plaintiff and all Settlement Class Members from asserting any of the Released Claims, as set forth in Section XIV, including during any appeal from the Final Approval Order; f. Release M&T Bank and the Released Parties from the Released Claims, as set forth in Section XIV; and g. Reserve the Court s continuing and exclusive jurisdiction over the Parties to this Agreement, including Plaintiff, M&T Bank and all Settlement Class Members, to administer, supervise, construe and enforce this Agreement in accordance with its terms. X. Allocation of Settlement Fund Among Settlement Class Members 86. Consistent with its statutory and regulatory obligations to protect its customers private financial information and a mutually acceptable Confidentiality Agreement, M&T Bank shall make available to Settlement Class Counsel and their expert data to the extent it exists in reasonably accessible electronic form sufficient to determine and implement the amount of each Settlement Class Member s allocation of the Net Settlement Fund as provided for in this Section of the Agreement. Settlement Class Counsel and their expert shall apply the methodology set forth below to the data as consistently, sensibly and conscientiously as reasonably possible, 20

66 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 22 of 60 recognizing and taking into consideration the nature and completeness of the data and the purpose of the computation. 87. Settlement Class Counsel and their expert will use the following methodology to determine the amount of the pro rata allocation from the Settlement Fund to which each Settlement Class Member that can be identified from the data will be entitled: a. All Accounts held by Settlement Class Members will be identified in which, on one or more calendar days, M&T Bank assessed two or more Overdraft Fees on such day or days. For each calendar day with respect to which M&T Bank assessed two or more Overdraft Fees, all transactions posted in such Accounts on that day will be ordered in the following posting order: i. All credits; ii. All Debit Card Transactions from the lowest dollar amount to highest dollar amount of transaction; iii. All other debit transactions, including Bank initiated transactions, check transactions, ACH transactions, and non-debit Card initiated cash withdrawals, left in the order originally posted by the Bank (from the highest dollar amount to the lowest dollar amount). b. After ordering the transactions as set forth in subparagraph (a) above, each Account on a daily basis will be identified in which the number of Overdraft Fees M&T Bank actually assessed exceeds the number of Overdraft Fees that would have been assessed if the Account transactions had been ordered as set forth in subparagraph (a) above ( Additional Overdrafts ); c. The dollar amount of Overdraft Fees for the Additional Overdrafts will be calculated ( Additional Overdrafts Amount ); d. For each Account in which one or more Additional Overdrafts have been identified, it will be determined to the extent possible how many (if any) Overdraft Fees M&T 21

67 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 23 of 60 Bank refunded during the thirty-day period following each calendar day on which any Additional Overdraft occurred ( Refunded Additional Overdrafts ); e. The dollar amount of the Overdraft Fees for the Refunded Additional Overdrafts will be calculated ( Refunded Additional Overdrafts Amount ); f. All Accounts will be identified in which, on any calendar day the Additional Overdrafts Amount exceeds the Refunded Additional Overdrafts Amount. The Refunded Additional Overdrafts Amount will be subtracted from the Additional Overdrafts Amount to determine the Differential Overdraft Fee ; g. All Accounts that experienced a Differential Overdraft Fee will be checked against a list of Accounts that M&T Bank closed with negative balances after writing them off as uncollectable ( Uncollectable Accounts ); h. For any Uncollectable Accounts that experienced a Differential Overdraft Fee, the Differential Overdraft Fee will be reduced dollar-for-dollar by the dollar amount of the negative closing Account balance. When the dollar amount of the negative closing Account balance equals or exceeds the Differential Overdraft Fee for the Account, the Differential Overdraft Fee shall be reduced to zero for purposes of calculating that Settlement Class Member s distribution, and the Settlement Class Member will not receive a distribution from the Net Settlement Fund for such Account; i. The foregoing allocation formula will yield the identification of Settlement Class Members whose Accounts experienced a Differential Overdraft Fee greater than zero dollars ( Positive Differential Overdraft Fee ) as well as the amounts of their respective Positive Differential Overdraft Fees. j. The Parties agree that the foregoing allocation formula is exclusively for purposes of computing retrospectively, in a reasonable and efficient fashion, the amount of Positive Differential Overdraft Fees each Settlement Class Member incurred as a result of High to Low posting and, subject to paragraphs below, the amount of any distribution each Settlement Class Member should receive from the Net Settlement Fund. The fact that this 22

68 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 24 of 60 allocation formula is used herein is not intended and shall not be used for any other purpose or objective whatsoever. XI. Distribution of Net Settlement Fund to Settlement Class Members 88. Within 30 days of the Effective Date, M&T Bank and the Settlement Administrator shall distribute the Net Settlement Fund to the Settlement Class Members. Each Settlement Class Member who had a Positive Differential Overdraft Fee shall receive a distribution in the amount of a pro rata share of the Net Settlement Fund. 89. The Settlement Administrator, in consultation with Settlement Class Counsel and M&T Bank, shall divide the total amount of the Net Settlement Fund by the total amount of all Settlement Class Members Positive Differential Overdraft Fees as computed pursuant to paragraph 87, which yields the Pro Rata Percentage. 90. The Settlement Administrator, in consultation with Settlement Class Counsel and M&T Bank, shall adjust the amount of each Settlement Class Member s total Positive Differential Overdraft Fees by multiplying it by the Pro Rata Percentage, which yields each Settlement Class Member s Differential Overdraft Payment Amount. 91. Every Settlement Class Member shall be paid the total Differential Overdraft Payment Amount to which he or she is entitled as calculated above ( Settlement Class Member Payments ). In no event shall M&T Bank ever be required to pay more than a total of $4.0 million to the Settlement Class, inclusive of all attorneys fees, costs and expenses, and a Service Award. 92. M&T Bank shall make Settlement Class Member Payments to Current Account Holders either by a credit to those Settlement Class Members Accounts or by mailed check from the Settlement Administrator in those circumstances where it is not feasible or reasonable for M&T Bank to make the payment by a credit to the Settlement Class Members Account. For those Settlement Class Members who receive their Settlement Class Member Payments by credits to their Accounts, M&T Bank shall notify the Current Account Holders of the credit, and provide a brief explanation that the credit has been made as a payment in connection with the Current 23

69 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 25 of 60 Account Holder s membership in the Settlement Class. M&T Bank shall provide the notice of account credit described in this paragraph in or with the account statement on which the credit is reflected, or through some other reasonably contemporaneous electronic or written notice. M&T Bank will bear any costs associated with implementing the account credits and notification discussed in this paragraph. M&T Bank shall be entitled to a payment from the Settlement Fund equal to the amount of credits paid pursuant to this paragraph 92. Such payment shall be made within three days after M&T Bank provides written notice to Settlement Class Counsel and the Settlement Administrator of the amount of credits given pursuant to this paragraph Settlement Class Member Payments made to Current Account Holders by check will be cut and mailed by the Settlement Administrator with an appropriate legend, in a form approved by Settlement Class Counsel and M&T Bank s Counsel, to indicate that it is from the Settlement, and will be sent to the addresses that the Settlement Administrator identifies as valid Settlement Class Member addresses. Checks shall be valid for 180 days. The Settlement Administrator will make reasonable efforts to locate the proper address for any Settlement Class Member whose check is returned by the Postal Service as undeliverable, and will r it once to the updated address. 94. Subject to paragraph 98a, M&T Bank shall pay all costs associated with the process of printing and mailing the checks and any accompanying communication to Current Account Holders within 30 days of Settlement Class Counsel s and M&T Bank s approving the invoice for payment. 95. Settlement Class Member Payments to Past Account Holders will be made by check with an appropriate legend, in a form approved by Settlement Class Counsel and M&T Bank s Counsel, to indicate that it is from the Settlement. Checks will be cut and mailed by the Settlement Administrator, and will be sent to the addresses that the Settlement Administrator identifies as valid Settlement Class Member addresses. Checks shall be valid for 180 days. The Settlement Administrator will make reasonable efforts to locate the proper address for any 24

70 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 26 of 60 Settlement Class Member whose check is returned by the Postal Service as undeliverable, and will r it once to the updated address. 96. Subject to paragraph 98a, M&T Bank shall pay all costs associated with the process of printing and mailing the checks and any accompanying communication to Past Account Holders within 30 days of Settlement Class Counsel s and M&T Bank s Counsel s approving the invoice for payment. 97. The amount of the Net Settlement Fund attributable to uncashed checks and checks returned to the Settlement Administrator shall remain in the Settlement Fund for one year from the date that the first distribution check is mailed by the Settlement Administrator, during which time the Settlement Administrator shall make a reasonable effort to locate Settlement Class Members whose checks were returned to effectuate delivery of such checks to the Settlement Class Members entitled to them. The Settlement Administrator shall make only one attempt to r or re-issue a distribution check. XII. Disposition of Residual Funds After Distribution to Settlement Class Members 98. Within one year plus 30 days after the date the Settlement Administrator mails the first Settlement Class Member Payment, any funds remaining in the Settlement Fund shall be distributed as follows: a. First, the funds shall be paid to M&T Bank in such amount as to reimburse M&T Bank for the actual amounts paid by M&T Bank to the Settlement Administrator and Notice Administrator for costs of Class Notice and Settlement Administration, including any Excess Costs that M&T Bank has advanced or paid pursuant to paragraph 63 hereof; b. Second, any funds remaining after distribution pursuant to subparagraph 98a above shall be distributed on a pro rata basis to participating Settlement Class Members who received Settlement Class Member Payments pursuant to Section XI of the Agreement, to the extent feasible and practical in light of the costs of administering such subsequent payments unless the amounts involved are too small to make individual distributions economically viable or other specific reasons exist that would make such further distributions impossible or unfair; or 25

71 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 27 of 60 c. Third, in the event the costs of preparing, transmitting and administering such subsequent payments pursuant to subparagraph 98b above are not feasible and practical to make individual distributions economically viable or other specific reasons exist that would make such further distributions impossible or unfair, Settlement Class Counsel and M&T Bank s Counsel shall jointly propose a plan for distribution of the residual funds consistent with the American Law Institute, Principles of Aggregate Litigation 3.07(c), and shall bring the matter, together with supporting materials and argument, for consideration by the Court. After consultation with the Parties, the Court shall have the discretion to approve, deny, amend or modify, in whole or in part, the proposed plan for distribution of the residual funds in a manner consistent with the American Law Institute, Principles of Aggregate Litigation 3.07(c). The residual funds shall not be used for any litigation purpose or to disparage any Party. The Parties agree that the Court s approval, denial, amendment or modification, in whole or in part, of the proposed plan for distribution of the residual funds pursuant to this paragraph shall not constitute grounds for termination of the Settlement. d. All costs associated with the disposition of residual funds whether through additional distributions to Settlement Class Members or through an alternative plan approved by the Court shall be borne solely by the Settlement Fund. Under no circumstances shall M&T Bank have responsibility for any costs associated with the disposition of residual funds whether through additional distributions to Settlement Class Members and/or through an alternative plan approved by the Court. e. In the event no money remains in the Settlement Fund after distributions under subparagraph 98a, the Parties shall have no obligation whatsoever to make any distributions as contemplated by subparagraphs (b), (c), or (d) above. XIII. Effect of a Termination 99. The grounds upon which this Agreement may be terminated are set forth in paragraphs 65, 111, and/or 112. In the event of a termination as provided therein, this Agreement shall be considered null and void; all of M&T Bank s obligations under the Settlement shall cease 26

72 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 28 of 60 to be of any force and effect; the amounts in the Settlement Fund shall be returned to M&T Bank in accordance with paragraph 100, below; and the Parties shall return to the status quo ante in the Action as if the Parties had not entered into this Agreement. In addition, in the event of such a termination, all of the Parties respective pre-settlement claims and defenses will be preserved In the event of a termination, the Settlement Fund shall be returned to M&T Bank within seven (7) days of termination, less any money that the Settlement Fund has already paid, or incurred an obligation to pay, for Settlement-related costs and expenses This Settlement shall become effective on the Effective Date unless earlier terminated in accordance with the provisions of paragraph 65, 111, and/or 112. In the event the Settlement is terminated in accordance with the provisions of paragraphs 65, 111, and/or 112, any discussions, offers, or negotiations associated with this Settlement shall not be discoverable or offered into evidence or used in the Action or any other action or proceeding for any purpose, without prejudice to Plaintiff s right to seek discovery and class certification, and M&T Bank s right to oppose class certification. In such event, all Parties to the Action shall stand in the same position as if this Agreement had not been negotiated, made or filed with the Court. XIV. Releases 102. As of the Effective Date, Plaintiff and each Settlement Class Member, each on behalf of himself or herself and on behalf of his or her respective estates, heirs, assigns, beneficiaries and successors, shall automatically be deemed to have fully and irrevocably released and forever discharged M&T Bank of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys fees, losses and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out of, are based upon, or relate to the conduct, omissions, duties or matters during the Class Period that were or could have been alleged in the 27

73 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 29 of 60 Action, including, without limitation, any claims, actions, causes of action, demands, damages, losses, or remedies relating to, based upon, resulting from, or arising out of (a) the calculation, imposition, assessment, or collection of one or more Overdraft Fees on an Account or the amount of one or more Overdraft Fees assessed on an Account during the Class Period, (b) M&T Bank s policies and practices during the Class Period concerning authorizing, assessing, processing, sequencing, or imposing Overdraft Fees, or (c) High to Low posting during the Class Period. The foregoing release includes, by way of example but not limitation, any and all of the following to the extent they involve, result in, or seek recovery or relief for Overdraft Fees or High to Low posting: (1) the authorization, approval, processing, handling, sequencing, or posting of any Debit Card Transaction; (2) any failure or refusal to allow customers to opt out of overdraft protection; (3) any failure to publicize or disclose the ability of the holder of any M&T Bank Account to opt-out of overdrafts or overdraft protection; (4) any failure to notify or to obtain advance approval or affirmative consent from customers when a Debit Card Transaction would or might cause an Account to become overdrawn or further overdrawn or an Overdraft Fee to be assessed; (5) any failure to alert a customer that a Debit Card Transaction would trigger an Overdraft Fee; (6) any failure to provide customers with the opportunity to cancel Debit Card Transactions; (7) any alleged manipulation or reordering of transactions for the purpose of causing, generating, or increasing the number of Overdraft Fees; (8) any imposition of an Overdraft Fee when a different system for authorizing or posting transactions would have resulted in fewer such fees; (9) any failure to provide customers with accurate account balance information; (10) any assessment of allegedly exorbitant or excessive Overdraft Fees or any alleged claim that any Overdraft Fees violate any federal or state laws; (11) any imposition or assessment of a continuous Overdraft Fee, continued Overdraft Fee, an extended Overdraft Fee, 28

74 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 30 of 60 or un-cleared Overdraft Fee or fee otherwise collected for the failure to timely repay a negative balance in an Account incurred in connection with High-to-Low posting; (12) any failure adequately or clearly to disclose, in one or more agreements, posting order, High to Low posting, overdrafts, transactions posted against insufficient funds, Overdraft Fees, or the manner in which Debit Card Transactions are or would be approved, processed, or posted to Accounts; (13) any conduct or statements encouraging the use of Accounts or Debit Cards; (14) any undisclosed overdraft tolerance limit or shadow line ; and (15) any advertisements, marketing materials or other conduct relating to any of the foregoing. For purposes of clarity, this release does not affect any alleged claims related to Overdraft Fees charged by: (a) Partners Trust Bank during the period before the closing of M&T Bank s acquisition of Partners Trust Bank (closing on M&T Bank s acquisition of Partners Trust Bank occurred in or around November 2007); or (b) Provident Bank of Maryland during the period before the closing of M&T Bank s acquisition of Provident Bank of Maryland (closing on M&T Bank s acquisition of Provident Bank of Maryland occurred in or around May 2009) Plaintiff or any Settlement Class Member may hereafter discover facts other than or different from those that he/she knows or believes to be true with respect to the subject matter of the claims released pursuant to the terms of paragraph 102, or the law applicable to such claims may change. Nonetheless, each of those individuals expressly agrees that, as of the Effective Date, he/she shall have automatically and irrevocably waived and fully, finally and forever settled and released any known or unknown, suspected or unsuspected, asserted or unasserted, liquidated or unliquidated, contingent or non-contingent claims with respect to all of the matters described in or subsumed by paragraph 102. Further, each of those individuals agrees and acknowledges that he/she shall be bound by this Agreement, including by the releases contained in paragraph 102, and that all of their claims in the Action shall be dismissed with prejudice and released, whether 29

75 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 31 of 60 or not such claims are concealed or hidden; without regard to subsequent discovery of different or additional facts and subsequent changes in the law; and even if he/she never receives actual notice of the Settlement or never receives a distribution of funds or credits from the Settlement Nothing in this Agreement shall operate or be construed to release any claims or rights M&T Bank has to recover any past, present, or future amounts that may be owed by Plaintiff or by any Settlement Class Member on his/her accounts, loans or any other debts with M&T Bank, pursuant to the terms and conditions of such accounts, loans, or any other debts. XV. Payment of Attorneys Fees, Costs and Service Award A. Class Counsel Fees and Costs 105. M&T Bank agrees not to oppose Class Counsel s request for attorneys fees of up to thirty percent (30%) of the amount of the Settlement Fund, as well as reimbursement of costs and expenses incurred in connection with the Action. Any award of attorneys fees, costs and expenses to Class Counsel shall be payable solely out of the Settlement Fund, and is subject to Court approval. The determination of Class Counsel s request for attorneys fees shall be based on controlling Eleventh Circuit precedent involving the award of fees in common fund class actions and not based on state law. Notwithstanding anything herein, the Court s failure to approve, in whole or in part, any award of attorneys fees, costs and expenses to Class Counsel shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination. In the event the Court declines to approve, in whole or in part, the payment of attorneys fees, costs and expenses to Class Counsel in the amounts sought by Class Counsel, or at all, the remaining provisions of this Agreement shall remain in full force and effect The Parties negotiated and reached this Agreement regarding the terms of paragraph 105 only after reaching agreement on all other material terms of this Settlement. B. Payment of Attorneys Fees and Costs 107. Within three (3) days of the Effective Date, the Escrow Agent shall pay from the Settlement Fund to Settlement Class Counsel all Court-approved attorneys fees, costs and expenses of Class Counsel, including interest accrued thereon, provided, however, that the 30

76 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 32 of 60 Escrow Agent shall not pay any such fees, costs, or expenses from the Settlement Fund to Settlement Class Counsel until such time as Settlement Class Counsel have jointly agreed upon a plan of allocation of fees, costs and expenses among all Class Counsel and any other counsel for whom the Court has approved attorneys fees, costs and expenses. In the event that the award of attorneys fees, costs and expenses of Class Counsel is reduced on appeal, the Escrow Agent shall only pay to Settlement Class Counsel from the Settlement Fund the reduced amount of such award, including interest accrued thereon. Settlement Class Counsel shall furnish to the Escrow Agent any required tax information or forms before the payment is made The payment of attorneys fees, costs and expenses of Class Counsel pursuant to paragraph 107 shall be made through a deposit by the Escrow Agent into an Attorney Client Trust Account jointly controlled by Settlement Class Counsel. After the fees, costs and expenses have been deposited into this account, Settlement Class Counsel shall be solely responsible for distributing each Class Counsel firm s allocated share of such fees, costs and expenses to that firm. C. Class Representative Service Award 109. M&T Bank agrees not to oppose Settlement Class Counsel s request that the Court approve a Service Award of $10, for Plaintiff. Any Service Award is to be paid from the Settlement Fund. Any Service Award shall be paid to Plaintiff in addition to Plaintiff s Settlement Class Member Payments. Notwithstanding anything herein, the Court s failure to approve, in whole or in part, the Service Award sought by Class Counsel shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination. In the event the Court declines to approve, in whole or in part, any Service Award in the amounts set forth above, or at all, the remaining provisions of this Agreement shall remain in full force and effect The Parties negotiated and reached this agreement regarding any Service Award only after reaching agreement on all other material terms of this Settlement. 31

77 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 33 of 60 XVI. Termination of Settlement 111. This Settlement may be terminated by either M&T Bank or Settlement Class Counsel by serving on counsel for the opposing Party and filing with the Court a written notice of termination within fourteen days after any of the following occurrences: a. the Court rejects, materially modifies, materially amends or changes, or declines to preliminarily or finally approve the Settlement; b. an appellate court reverses the Final Approval Order, and the Settlement is not reinstated without material change by the Court on remand; c. any court incorporates into, or deletes or strikes from, or modifies, amends, or changes, the Preliminary Approval Order, Final Approval Order, or the Settlement in a way that M&T Bank or Settlement Class Counsel seeking to terminate the Settlement reasonably considers material; d. the Effective Date does not occur; or e. any other ground for termination provided for elsewhere in this Agreement M&T Bank also shall have the right to terminate the Settlement by serving on Settlement Class Counsel and filing with the Court a notice of termination within fourteen days of its receipt from the Settlement Administrator of the final report specified in paragraph 71 above, if the number of persons in the Settlement Class who timely request exclusion from the Settlement Class equals or exceeds the number or percentage specified in the separate letter agreement executed concurrently with this Settlement by M&T Bank s Counsel and Settlement Class Counsel. The percentage shall be confidential except to the Court, who shall upon request be provided with a copy of the letter agreement for in camera review In the event of a termination of the Settlement, and after payment of any invoices or other fees or expenses mentioned in this Agreement that have been incurred and are due to be paid from the Escrow Account, the balance of the Settlement Fund shall be refunded and remitted 32

78 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 34 of 60 to M&T Bank. M&T Bank shall have no right to seek reimbursement from Plaintiff or Class Counsel for any funds disbursed from the Escrow Account pursuant to paragraph 70, above In the event of a termination of the Settlement, the Parties retain all of their pre- Settlement litigation rights and defenses, including Plaintiff s right to seek class certification and M&T Bank s right to oppose class certification. XVII. Parties Positions on the Action and Settlement 115. The Parties understand and acknowledge that this Agreement constitutes a compromise and settlement of disputed claims. No action taken by the Parties either previously or in connection with the negotiations or proceedings connected with this Agreement shall be deemed or construed to be an admission of the truth or falsity of any claims or defenses heretofore made, or an acknowledgment or admission by any party of any fault, liability or wrongdoing of any kind whatsoever Class Counsel and Plaintiff believe that the claims asserted in the Action have merit, and they have examined and considered the benefits to be obtained under the proposed Settlement set forth in this Agreement, the risks associated with the continued prosecution of this complex, costly and time-consuming litigation, and the likelihood of success on the merits of the Action. Class Counsel have fully investigated the facts and law relevant to the merits of the claims, have conducted extensive formal and informal discovery, and have conducted independent investigation of the challenged practices. Class Counsel and Plaintiff have concluded that the proposed Settlement set forth in this Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class M&T Bank disputes the claims alleged in the Action and does not by this Agreement or otherwise admit any liability or wrongdoing of any kind. M&T Bank has agreed to enter into this Agreement to avoid the further expense, inconvenience and distraction of burdensome and protracted litigation, and to be completely free of any further claims that were asserted or could have been asserted in the Action. 33

79 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 35 of Neither the Settlement, nor any act performed or document executed pursuant to or in furtherance of the Settlement: (a) is or may be deemed to be, or may be used as, an admission of, or evidence of, the validity of any claim made by the Plaintiff or Settlement Class Members, or of any wrongdoing or liability of the Released Parties; or (b) is or may be deemed to be, or may be used as, an admission of, or evidence of, any fault or omission of any of the Released Parties, in the Action or in any proceeding in any court, administrative agency or other tribunal In addition to any other defenses M&T Bank may have at law, in equity, or otherwise, to the extent permitted by law, this Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding that may be instituted, prosecuted or attempted in breach of this Agreement or the Releases contained herein. XVIII. Miscellaneous Provisions 120. Gender and Plurals. As used in this Agreement, the masculine, feminine, or neuter gender, and the singular or plural number, shall each be deemed to include the others whenever the context so indicates Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Releasing Parties and the Released Parties Cooperation of Parties. The Parties to this Agreement agree to cooperate in good faith to prepare and execute all documents, to seek Court approval, defend Court approval and to do all things reasonably necessary to complete and effectuate the Settlement described in this Agreement. This obligation of the Parties to support and complete the Settlement shall remain in full force and effect regardless of events that may occur, or court decisions that may be issued, in MDL 2036 or in any other case in any court Obligation To Meet And Confer. Before filing any motion in the Court raising a dispute arising out of or related to this Agreement, the Parties shall consult with each other and certify to the Court that they have consulted. 34

80 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 36 of Integration. This Agreement (along with the letter agreement referenced in paragraph 112 herein) constitutes a single, integrated written contract expressing the entire agreement of the Parties relative to the subject matter herein. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any Party hereto, except as provided for herein No Conflict Intended. Any inconsistency between the headings used in this Agreement and the text of the paragraphs of this Agreement shall be resolved in favor of the text Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, even though all Parties do not sign the same counterparts. Original signatures are not required. Any signature submitted by facsimile or through of an Adobe PDF shall be deemed an original Jurisdiction and Governing Law. The Court shall retain jurisdiction over the implementation, enforcement and performance of this Agreement which, except as otherwise provided herein, shall be construed in accordance with, and be governed by, the internal laws of the State of Maryland, without regard to choice-of-law principles, except to the extent federal law controls the issue in dispute. The Court shall have exclusive jurisdiction over any suit, action, proceeding or dispute arising out of or relating to this Agreement that cannot be resolved by negotiation and agreement by counsel for the Parties. The Court shall retain jurisdiction with respect to the administration, consummation and enforcement of the Agreement and shall retain jurisdiction for the purpose of enforcing all terms of the Agreement. The Court shall also retain jurisdiction over all questions and/or disputes related to the Notice program and the Settlement Administrator. As part of their respective agreements to render services in connection with this Settlement, the Settlement Administrator shall consent to the jurisdiction of the Court for this purpose. 35

81 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 37 of Notices. All notices to counsel provided for herein shall be sent by and facsimile with a hard copy sent by overnight mail to: As to Plaintiff and the Settlement Class: Robert C. Gilbert rcg@grossmanroth.com GROSSMAN ROTH, P.A Ponce de Léon, Suite 1150 Miami, FL Telephone: (305) Facsimile: (305) As to M&T Bank: James A. Dunbar jadunbar@venable.com VENABLE LLP 210 West Pennsylvania Avenue, Suite 500 Towson, Maryland Telephone: (410) Facsimile: (410) John T. Prisbe jtprisbe@venable.com VENABLE LLP 750 East Pratt Street, Suite 900 Baltimore, MD Telephone: (410) Facsimile: (410) The notice recipients and addresses designated above may be changed by written notice. Upon the request of any of the Parties, the Parties agree to promptly provide each other with copies of objections, requests for exclusion, or other filings received as a result of the Notice Program Modification and Amendment. This Agreement may be amended or modified only by a written instrument signed by the Parties and their respective counsel and approved by the Court No Waiver. The waiver by any party of any breach of this Agreement by another Party shall not be deemed or construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of this Agreement Authority. Plaintiff and M&T Bank represent and warrant that the persons signing this Agreement on their behalf have full power and authority to bind every person, partnership, corporation, or entity included within the definitions of Plaintiff and M&T Bank to all terms of this Agreement. Any person executing this Agreement in a representative capacity 36

82 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 38 of 60 represents and warrants that he or she is fully authorized to do so and to bind the Party on whose behalf he or she signs this Agreement to all of the terms and provisions of this Agreement Agreement Mutually Prepared. Neither M&T Bank nor Plaintiff, nor any of them, shall be considered to be the drafter of this Agreement or any of its provisions for the purpose of any statute, case law or rule of interpretation or construction that would or might cause any provision to be construed against the drafter of this Agreement Independent Investigation and Decision to Settle. The Parties understand and acknowledge that: (a) they have performed an independent investigation of the allegations of fact and law made in connection with the Action; and (b) even if they may hereafter discover facts in addition to, or different from, those that they now know or believe to be true with respect to the subject matter of the Action as reflected in this Agreement, that will not affect or in any respect limit the binding nature of this Agreement. M&T Bank has provided and is providing information that Plaintiff reasonably request to identify persons in the Settlement Class and the Overdraft Fees they incurred. It is the Parties intention to resolve their disputes in connection with the Action pursuant to the terms of this Agreement now and thus, in furtherance of their intentions, the Agreement shall remain in full force and effect notwithstanding the discovery of any additional facts or law, or changes in law, and this Agreement shall not be subject to rescission or modification by reason of any changes or differences in facts or law, subsequently occurring or otherwise Receipt of Advice of Counsel. Each Party acknowledges, agrees and specifically warrants that he, she, or it has fully read this Agreement and the Releases contained in Section XIV above, received independent legal advice with respect to the advisability of entering this Agreement and the Releases, and the legal effects of this Agreement and the Releases, and fully understands the effect of this Agreement and the Releases. 37

83 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 39 of 60 PI,AINTITF Glven M&T BANK By: Its: SETTLtrMENT CLASS COUNSDL Aarpn S. Poclhurst Bruce S, Rogow Robert C, Gilbert E. A, Carlin M&T BANK'S COUNSDL James A, Dunbar John T, Prisbe t99{509,[ I 38

84 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 40 of 60 PLAINTIT'F' Ma:<ine Given M&T BAI\K By: ole.l r.l rf.l Its:,4,, i ;s {r,.lj.rc 'J. P. SETTLEMENT CI.ASS COUNSEL Aaron S. Podhurst Bruce S. Rogow Robert C. Gilbert E. Adam Webb Nicholas A. Carlin M&T BANK'S COUNSEL James A. Dunbar John T. Prisbe /l I 38

85 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 41 of 60 PLAINTIFF Maxine Given M&T BA IK By: Its: SETTLEMENT CLASS COI'NSEL l : : Aaron S. ç ; i i.bruce S, Rogow!, I I ì Robert C. Gilbert i E. Adam lvebb I I i I Nicholas A.Carlin M&T BAIYK'S COT'NSEL James A. Dunbar John T. Prisbe 1',15û9llt I,t ii ti li li ll lr ri ll 'lr it 'l' It li 'lr il lr 38 ii l : lì t; '; li ü ii

86 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 42 of 60 PLAINTIFF' Maxine Given M&T B.{NK By: Its: SETTLEMENT CLASS COUNSEL Aaron S urst Ro C. Gilbert E. Adam Webb Nicholas A. Carlin M&T BÀNK'S COUNSEL James A. Dunbar John T. Prisbe?9S4509/t I 38

87 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 43 of 60 P Mærine Givon M&T B By: Its: BruceS. gow rl, J cs A. Dunbar John T. Pri be lvxtuln 3E rl

88 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 44 of 60 PLAINTIFF' Maxine Given M&T BANK By: Its SETTLEMENT CLASS COIINSEL Aaron S, Podhurst Bruoe S, Rogow Robert C. Gilbert E. Adam Webb Ni'oholas A, Carlin M&T A Prisbe 38 1

89 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 45 of 60 EXHIBIT 1 TO SETTLEMENT AGREEMENT AND RELEASE (Given v. M&T Bank)

90 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 46 of 60 (Postcard Notice) If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A Settlement has been reached in a class action lawsuit claiming that M&T Bank improperly posted Debit Card Transactions from highest to lowest dollar amount to increase the number of overdraft fees charged to Account holders. M&T Bank maintains there was nothing wrong about the posting process used. The Court has not decided which side is right. Who s Included? M&T Bank s records show you are a member of the Settlement Class. The Settlement Class includes anyone who: (1) had a M&T Bank consumer checking account that was accessible with a M&T Bank Debit Card from August 21, 2006 through August 15, 2010; and (2) was charged one or more overdraft fees as a result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. What Are the Settlement Terms? M&T Bank has agreed to establish a Settlement Fund of $4 million. Once the court approves the Settlement, you will automatically receive a payment or Account credit for your pro rata portion of eligible Overdraft Fees paid during the period covered by the Settlement. Your Other Options. If you do not want to be bound by the Settlement, you must exclude yourself by, If you do not exclude yourself, you will release your claims against M&T Bank. You may object to the Settlement by, The Detailed Notice available at the website explains how to exclude yourself or object. The Court will hold a hearing on, 2014, to consider whether to approve the Settlement and a request for attorneys fees up to 30% of the Settlement Fund. You may appear at the hearing, but you don t have to. You may hire your own attorney, at your own expense, to appear or speak for you at the hearing /3

91 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 47 of 60 EXHIBIT 2 TO SETTLEMENT AGREEMENT AND RELEASE (Given v. M&T Bank)

92 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 48 of 60 (Publication Notice) If You Paid Overdraft Fees to M&T Bank You May be Eligible for a Payment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit about the order in which M&T Bank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What s this about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiffs allege resulted in an increased number of overdraft fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who s Included? You are included in the Settlement Class if you: Had one or more M&T Bank consumer checking Accounts that you could access with a Debit Card at any time from August 21, 2006 through August 15, 2010; and Incurred an Overdraft Fee as a result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. What are the Settlement Terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order. How to Get a Payment? If you are included in the Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective, you will receive an automatic payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your Rights May Be Affected. If you do not want to be legally bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by, If you do not exclude yourself, you will release claims that were or could have been made against M&T Bank. If you stay in the Settlement Class, you may object to the Settlement by, The Court has scheduled a hearing on, 2014 to consider whether to approve the Settlement and a request for attorneys fees, costs, and expenses of up to thirty percent (30%) percent of the Settlement Fund. You can appear at the hearing, but you don t have to. You can hire your own

93 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 49 of 60 attorney, at your own expense, to appear or speak for you at the hearing. You can call the toll-free number or visit the website to learn more about how to exclude yourself from or object to the Settlement. For more information: or /3

94 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 50 of 60 EXHIBIT 3 TO SETTLEMENT AGREEMENT AND RELEASE (Given v. M&T Bank)

95 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 51 of 60 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A federal court authorized this notice. This is not a solicitation from a lawyer. A $4 million Settlement has been reached in a class action about the order in which M&T Bank posted Debit Card Transactions to customer Accounts, and the alleged effect the posting order had on the number of overdraft fees charged to Account holders. M&T Bank maintains that there was nothing wrong about the posting process used and that it has not violated any laws. Current and former holders of M&T Bank consumer checking accounts may be eligible for a payment or Account credit from the Settlement Fund. Your legal rights are affected whether you act or don t act. Read this notice carefully. SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT RECEIVE A PAYMENT OR ACCOUNT CREDIT EXCLUDE YOURSELF FROM THE SETTLEMENT OBJECT GO TO A HEARING DO NOTHING If you are entitled under the Settlement to a payment or Account credit, you do not have to do anything to receive it. If the Court approves the Settlement and it becomes final and effective, and you remain in the Settlement Class, you will automatically receive a payment or Account credit. Receive no benefit from the Settlement. This is the only option that allows you to retain your right to bring any other lawsuit against M&T Bank about the claims in this case. Write to the Court if you do not like the Settlement. Ask to speak in Court about the fairness of the Settlement. You will receive any payment or Account credit to which you are entitled, and will give up your right to bring your own lawsuit against M&T Bank about the claims in this case. These rights and options and the deadlines to exercise them are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement. Payments and Account credits will be provided if the Court approves the Settlement and after any appeals are resolved. Please be patient.

96 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 52 of 60 WHAT THIS NOTICE CONTAINS BASIC INFORMATION 1. Why is there a notice? 2. What is this lawsuit about? 3. What is an Overdraft Fee? 4. Why is this a class action? 5. Why is there a Settlement? WHO IS IN THE SETTLEMENT 6. Who is included in the Settlement? THE SETTLEMENT S BENEFITS 7. What does the Settlement provide? 8. How do I receive a payment or Account credit? 9. What am I giving up to stay in the Settlement Class? EXCLUDING YOURSELF FROM THE SETTLEMENT 10. How do I get out of the Settlement? 11. If I don t exclude myself, can I sue M&T Bank for the same thing later? 12. If I exclude myself from the Settlement, can I still receive a payment? THE LAWYERS REPRESENTING YOU 13. Do I have a lawyer in this case? 14. How will the lawyers be paid? OBJECTING TO THE SETTLEMENT 15. How do I tell the Court that I don t like the Settlement? 16. What s the difference between objecting and excluding? THE COURT S FINAL APPROVAL HEARING 17. When and where will the Court decide whether to approve the Settlement? 18. Do I have to come to the hearing? 19. May I speak at the hearing? IF YOU DO NOTHING 20. What happens if I do nothing at all? GETTING MORE INFORMATION 21. How do I get more information? Page Page Page Page Page Page Page Page Page

97 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 53 of Why is there a notice? BASIC INFORMATION A Court authorized this notice because you have a right to know about the proposed Settlement of this class action lawsuit and about all of your options, before the Court decides whether to give final approval to the Settlement. This notice explains the lawsuit, the Settlement and your legal rights. Senior Judge James Lawrence King, of the U.S. District Court for the Southern District of Florida, is overseeing this case. The case is known as In Re: Checking Account Overdraft Litigation, 1:09-MD JLK. The person who sued is called the Plaintiff. The Defendant is M&T Bank. 2. What is this lawsuit about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff argues results in an increased number of Overdraft Fees assessed to customers. The complaint in this Action is posted on this website, and contains all of the allegations and claims asserted against M&T Bank. M&T Bank maintains that there was nothing wrong about the posting process it used and that it has not violated any laws. 3. What is an overdraft fee? An overdraft fee may be assessed when a customer s withdrawals from a bank account exceed the available balance. 4. Why is this a class action? In a class action, one or more people called class representatives (in this case, one M&T Bank customer who was assessed Overdraft Fees) sue on behalf of people who have similar claims. All of the people who have claims similar to the class representatives are members of the Settlement Class, except for those who timely exclude themselves from the class. 5. Why is there a Settlement? The Court has not decided in favor of either Plaintiff or M&T Bank. Instead, both sides agreed to the Settlement. By agreeing to the Settlement, the Parties avoid the costs and uncertainty of a trial, and Settlement Class Members receive the benefits described in this notice. The class representatives and their attorneys think the Settlement is best for everyone who is affected. WHO IS IN THE SETTLEMENT? If you received notice of the Settlement from a postcard addressed to you, then you are in the Settlement Class. But even if you did not receive a postcard with Settlement notice, you may still be in the Settlement Class, as described below. 6. Who is included in the Settlement? You are included in the Settlement Class if you had one or more M&T Bank consumer checking accounts that you could access with a Debit Card and, at any time from August 21, 2006 through August 15, 2010, incurred an overdraft fee as a result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have

98 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 54 of 60 incurred an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period. If this happened to you, you may be in the Settlement Class. If it did not happen to you, you are not a member of the Settlement Class. Further, you are not eligible for a payment under the Settlement if your Account was closed with a negative balance and the amount of the benefits that would otherwise be provided for in the Settlement would be insufficient to make the balance in that Account positive. You may contact the Settlement Administrator if you have any questions as to whether you are in the Settlement Class. 7. What does the Settlement provide? THE SETTLEMENT S BENEFITS M&T Bank has agreed to establish a Settlement Fund of $4 million from which Settlement Class Members may receive payments or Account credits. The amount of such payments or Account credits cannot be determined at this time. However, it will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order practice. M&T Bank will separately pay for Settlement administration and related costs; such amounts will not come out of the $4 million Settlement Fund. However, M&T Bank may be entitled to reimbursement of some or all of the costs it paid if there are residual funds in the Settlement Fund after Settlement Class Members receive their payments or Account credits. 8. How do I receive a payment or Account credit? If you are in the Settlement Class and entitled to receive a cash benefit, you do not need to do anything to receive a payment or Account credit. If the Court approves the Settlement and it becomes final and effective, you will automatically receive a payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. 9. What am I giving up to stay in the Settlement Class? Unless you exclude yourself from the Settlement Class, you cannot sue, continue to sue or be part of any other lawsuit against M&T Bank about the legal issues in this case. It also means that all of the decisions by the Court will bind you. The Release of Claims included in the Settlement Agreement describes the precise legal claims that you give up if you remain in the Settlement. The Settlement Agreement is available at EXCLUDING YOURSELF FROM THE SETTLEMENT If you do not want benefits from the Settlement, and you want to keep the right to sue or continue to sue M&T Bank on your own about the legal issues in this case, then you must take steps to get out of the Settlement. This is called excluding yourself or it is sometimes referred to as optingout of the Settlement Class. 10. How do I get out of the Settlement? To exclude yourself from the Settlement, you must send a letter that includes the following: Your name, address and telephone number; A statement that you want to be excluded from the M&T Bank Settlement in In Re: Checking Account Overdraft Litigation, 1:09-MD JLK; and

99 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 55 of 60 Your signature. You must mail your exclusion request, postmarked no later than, 2014, to: Checking Account Overdraft Litigation Exclusions P.O. Box [ City, State, Zip] 11. If I don t exclude myself, can I sue M&T Bank for the same thing later? No. Unless you exclude yourself, you give up the right to sue M&T Bank for the claims that the Settlement resolves. You must exclude yourself from this Settlement Class in order to try to pursue your own lawsuit. 12. If I exclude myself from the Settlement, can I still receive a payment? No. You will not receive a payment or Account credit if you exclude yourself from the Settlement. 13. Do I have a lawyer in this case? THE LAWYERS REPRESENTING YOU The Court has appointed a number of lawyers to represent you and others in the Settlement Class as Settlement Class Counsel, including: Robert C. Gilbert Grossman Roth, P.A Ponce de Leon Blvd., Ste Miami, FL Settlement Class Counsel will represent you and others in the Settlement Class. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. 14. How will the lawyers be paid? Class Counsel intends to request up to thirty percent (30%) of the money in the Settlement Fund for attorneys fees, plus reimbursement of their expenses incurred in connection with prosecuting this case. The fees and expenses awarded by the Court will be paid out of the Settlement Fund. The Court will determine the amount of fees and expenses to award. Class Counsel will also request that up to $10, be paid from the Settlement Fund to the one class representative for her service to the entire Settlement Class. OBJECTING TO THE SETTLEMENT You can tell the Court that you do not agree with the Settlement or some part of it. 15. How do I tell the Court that I don t like the Settlement? If you are a Settlement Class Member, you can object to any part of the Settlement, the Settlement as a whole, Class Counsel s requests for fees and expenses and/or Class Counsel s

100 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 56 of 60 request for a Service Award for the class representative. To object, you must submit a letter that includes the following: The name of this case, which is In Re: Checking Account Overdraft Litigation, 1:09-MD JLK; Your full name, address and telephone number; An explanation of the basis upon which you claim to be a Settlement Class Member; All grounds for the objection, accompanied by any legal support for the objection known to you or your counsel; 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; The number of times in which 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 or opinions related to or ruling upon the prior objections that were issued by the trial and appellate courts in each listed case; Any and all agreements that relate to the objection or the process of objecting whether written or verbal between you or your counsel and any other person or entity; The identity of all counsel representing you who will appear at the hearing that the Court has scheduled to determine whether to grant final approval to the Settlement and Class Counsel s request for attorneys fees and service awards to Plaintiff (the Final Approval Hearing ); The number of times in which your counsel and/or counsel s law firm 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 counsel or the firm has made such objection and a copy of any orders related to or ruling upon counsel s or the firm s prior objections that were issued by the trial and appellate courts in each listed case; A list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; A statement confirming whether you intend to personally appear and/or testify at the Final Approval Hearing; and Your signature (an attorney s signature is not sufficient). You must submit your objection to all the people listed below, postmarked no later than, 2014:

101 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 57 of 60 Clerk of the Court U.S. District Court for the Southern District of Florida James Lawrence King Federal Checking Account Overdraft Litigation Robert C. Gilbert Grossman Roth, P.A Ponce de Leon Blvd. Suite James A. Dunbar Venable LLP 210 West Pennsylvania Ave. Suite 500 Justice Building P.O. Box 99 Northeast Fourth Street [City, State, Zip] Miami, FL Towson, Maryland Miami, FL What s the difference between objecting and excluding? Objecting is telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you don t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object to the Settlement because it no longer affects you. THE COURT S FINAL APPROVAL HEARING The Court will hold the Final Approval Hearing to decide whether to approve the Settlement and the request for attorneys fees and Service Awards for Plaintiff. You may attend and you may ask to speak, but you don t have to do so. 17. When and where will the Court decide whether to approve the Settlement? The Court will hold a Final Approval Hearing at on, 2014, at the United States District Court for Southern District of Florida, Miami Division, located at James Lawrence King Federal Justice Building, 99 Northeast Fourth Street, Miami, FL The hearing may be moved to a different date or time without additional notice, so it is a good idea to check for updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. The Court will also consider any request by Class Counsel for attorneys fees and expenses and for service awards for Plaintiff. If there are objections, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. 18. Do I have to come to the hearing? No. Class Counsel will answer any questions the Court may have. But, you may come at your own expense. If you send an objection, you don t have to come to Court to talk about it. As long as you submitted your written objection on time, to the proper address and it complies with the requirements set forth above, the Court will consider it. You may also pay your own lawyer to attend, but it s not necessary. 19. May I speak at the hearing?

102 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 58 of 60 You may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your Notice of Intention to Appear must include the following: Your name, address and telephone number; A statement that this is your Notice of Intention to Appear at the Final Approval Hearing for the M&T Bank Settlement in In Re: Checking Account Overdraft Litigation, 1:09-MD JLK; The reasons you want to be heard; Copies of any papers, exhibits, or other evidence or information that is to be presented to the Court at the Final Approval Hearing; and Your signature. You must submit your Notice of Intention to Appear, so that it is postmarked no later than, 2014, to all of the addresses in Question What happens if I do nothing at all? IF YOU DO NOTHING If you do nothing, you will still receive the benefits to which you are entitled. Unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit or be part of any other lawsuit against M&T Bank relating to the issues in this case. 21. How do I get more information? GETTING MORE INFORMATION This Detailed Notice summarizes the proposed Settlement. More details can be found in the Settlement Agreement. You can obtain a copy of the Settlement Agreement at You may also write with questions to Checking Account Overdraft Litigation, P.O. Box, [City, State, Zip], or call the toll-free number, Do not contact M&T Bank or the Court for information /3

103 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 59 of 60 EXHIBIT 4 TO SETTLEMENT AGREEMENT AND RELEASE (Given v. M&T Bank) /2

104 ~I'~ Tti ;; ~~verview of Posting Order ' 'The order in which transactions are' posted and paid from your account is important if there is not enough 60 money in your account to pay all of the transactions that are received for payment. 'Ihe order can affect the number of transactions that overdraw your account or that are returned unpaid and the amount of fees you may have to pay. To help you manage your account, we are providing you with information describing how we process transactions in your account. Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 60 of Transactions can be posted to your account in two different ways - in "real time" or in "batch" at the end of the day. Transactions such as transfers between accounts at M&T and payments to M&T loans made through M&T Web Banking or through one of our Telephone Banking Service Representatives, and certain reversal transactions (e.g., certain reversals of a prior creditor debit posted to your account) are posted to your account in real time during the business day as they are made. Other transactions are posted to your account in a batch process ("batch"} at the end of each business day. 'the order we use for posting these transactions in batch each night is described in the following section, Posting in Batch at the End of the Business Day We begin the batch posting of transactions to your account by posting credits to your account (other than interest, which is credited at the end of batch) and reversals~and adjustments for transacfions from prior business days that have not already posted in real time. Next, we post Debit Items received for payment from your account on a given business day. We post these Debit Items in a particular order within groups based on the type of Debit Item. Within each group, we apply a unique methodology based on the type of Debit Item. For instance, debit card transactions will post based' on when our records indicate the transaction was made, but checks will post based on the check number, if available. When we do not 'have a record of when a transaction happened or we do not have a check serial number, we post those Debit Items by dollar amount in an 1' j ascending order (that is, lowest dollar amount items first) within the group `, noted for that type of Debit Item. The following chart details the types of transactions in each group and the order used for the Debit Items within each group. Group Order; Type of Dehit Item in each group; How order is determined: 1 ~ ATM and Debit Card transactions, Chronologically based on the ineluding purchases date and time that our records indicatethe transaction was initiated or authorized, Branch Transactions performed over the counter at an M&T Branch, including withdrawals Checks Cashed at an M&T hranch Transfers -Includes transfers between MfrTdepositaccountsandpaymentsto MSTioans, including Bankto Bank Transfers initiated throughm&tweb Banking ~ezcludes transfers chat are pasted to your deposit account in real time, such as account transfers andm6tloanpayments initiated through M&T Web banking. Wire Transfers /ftwo vansactionshaue the same date and time, we will postthe smal/er dollar amount transaction first. lfwedonothaueadate/time toruansactions, we wi//post thesetiansactionsinascendrng dollar amount(smallest to /a~gestj afteiwe past transac tionswithdate/limeinfo~nation. 2 M8T Web Bill Pay transactions Ascending by Oallar Amount (smallestto largest) 3 ACN Debits and other miscellaneous debits Ascending by ~ollaramount goes not include checks you wrote that are (smallest to largest) converted into ACH transactions see group 4 for these transactions. 4 All checks (other than chose cashed at Check number order MbT branches) lfchecksa~enotnumbe~ed, Includes checks that are electronically we wil/post these checks in processed as images or through the ascendingdollaramoant ACH network. Checks cashed are in (smallesttola~estjaherwe group 1 above. postn~mbe~edchegfs Fees and Service Charges: Fees can post to your account in several ways, Most fees post at the end of batch processing, but some post immediately after the transaction to which they relate (e.g., fees for Bank to Bank transfers through M&T Web Banking, wire transfers, and overdraft transfers from a linked deposit account post immediately after the transaction to which the fee relates). Most fees post on the same day they are incurred, however, certain fees including NSF and Overdraft fees are posted on the business day after an NSF or an overdraft occurs on an account. ~i~

105 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 1 of 26 EXHIBIT B

106 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 2 of 26 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 1:09-MD JLK IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No THIS DOCUMENT RELATES TO: SECOND TRANCHE ACTION Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank S.D. Fla. Case No.: 1-10-CV JLK D. Md. Case No. 1:09-cv WDQ JOINT DECLARATION OF ROBERT C. GILBERT, E. ADAM WEBB, AND NICHOLAS A. CARLIN IN SUPPORT OF PLAINTIFF S AND CLASS COUNSEL S MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT, AND APPLICATION FOR SERVICE AWARD, ATTORNEYS FEES AND EXPENSES Robert C. Gilbert, E. Adam Webb, and Nicholas A. Carlin declare as follows: 1. We are three of Settlement Class Counsel for Plaintiff and the Settlement Class in connection with the Settlement with Manufacturers and Traders Trust Company a/k/a M&T Bank ( M&T Bank or the Bank ). 1 We submit this declaration in support of Plaintiff s and Class Counsel s Motion for Final Approval of Class Settlement, and Application for Service Award, Attorneys Fees and Expenses. Unless otherwise noted, we have personal knowledge of the facts set forth in this declaration, and could testify competently to them if called upon to do so. 1 All capitalized defined terms have the same meaning as defined in the Settlement Agreement and Release attached to Plaintiff s and Class Counsel s Motion for Final Approval of Class Settlement and Application for Service Award, Attorneys Fees and Expenses.

107 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 3 of After more than five years of litigation and protracted settlement negotiations, Plaintiff, Settlement Class Counsel and M&T Bank entered into a Settlement Agreement and Release ( Settlement or Agreement ) under which M&T Bank will (i) pay Four Million and 00/100 Dollars ($4,000,000) in cash to create a common fund for the benefit of the Settlement Class, (ii) adhere to its current posting method on consumer checking accounts through December 31, 2014, and (iii) pay all fees and costs of providing Class Notice to Settlement Class Members and associated with administration of the Settlement. Under the Settlement, all eligible Settlement Class Members will automatically receive distributions from the Net Settlement Fund in proportion to the actual harm that each of them sustained. 3. The Action involved sharply opposed positions on several fundamental legal and factual issues, including: (i) whether M&T Bank s arbitration provisions in its Account agreements are enforceable; (ii) whether M&T Bank breached its duty of good faith and fair dealing when it engaged in High-to-Low Posting of its customers Debit Card Transactions; (iii) whether M&T Bank s policies and practices involving High-to-Low Posting were unconscionable, constituted conversion and/or resulted in unjust enrichment; and (iv) the appropriate methodology for establishing damages on a class-wide basis and the amount of damages to be recovered. M&T Bank also argued that Plaintiff s claims are subject to binding individual arbitration and that the applicable Account agreements expressly authorized its Highto-Low Posting practices. 4. Plaintiff maintains that the claims asserted in the Action are meritorious; that she would succeed on appeal in reversing M&T Bank s effort to compel individual arbitration; that class certification would be granted; that Plaintiff and the class would establish liability and recover substantial damages if the Action proceeded to trial; and that the final judgment would 2

108 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 4 of 26 be affirmed on appeal. Plaintiff s ultimate success in the litigation required her to prevail, in whole or in part, at all of these junctures. Conversely, M&T Bank s success at any one of these junctures could or would have spelled defeat for Plaintiff and the Settlement Class. Thus, continued litigation posed significant risks and countless uncertainties, as well as the time, expense, and delays associated with trial and appellate proceedings, particularly in the context of complex multi-district litigation. In light of the foregoing, the Settlement represents a successful achievement by providing guaranteed benefits to the Settlement Class in the form of direct cash compensation and other valuable relief. A. Background of the Litigation. 5. Beginning in August 2009, Plaintiff sought declaratory relief, monetary damages and restitution challenging M&T Bank s High-to-Low Posting of Debit Card Transactions. Plaintiff alleged that as a result of M&T Bank s High-to-Low Posting of customers Debit Card Transactions, customers funds were depleted more rapidly than they should have been, and that Plaintiff and Settlement Class Members paid more Overdraft Fees than they should have paid. According to Plaintiff, M&T Bank s practices violated the Bank s contractual and good faith duties to the Settlement Class, were substantively and procedurally unconscionable, and resulted in conversion and unjust enrichment. 6. M&T Bank denied Plaintiff s allegations of wrongdoing. From the outset of the litigation, the Bank asserted that its right to compel individual arbitration precluded Plaintiff and all Settlement Class Members from pursuing the Action individually or as a class action. Additionally, M&T Bank consistently defended its conduct by highlighting language in the relevant Account agreements that it contends expressly advised customers of and permitted the re-sequencing practices at issue. 3

109 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 5 of 26 B. Class Counsel s Investigation. 7. Class Counsel devoted substantial time and expended significant resources researching and developing the legal claims at issue, before and after the litigation began. Class Counsel interviewed M&T Bank customers and potential plaintiffs to gather information about M&T Bank s conduct and its impact upon consumers. This information was essential to Class Counsel s ability to understand the nature of M&T Bank s conduct, the language of the Account agreements at issue, and potential claims for relief and remedies. C. The Course of Proceedings. 8. On August 21, 2009, Plaintiff filed a Class Action Complaint in the United States District Court for the District of Maryland seeking monetary damages, restitution, and other relief from M&T Bank based on its allegedly unfair assessment and collection of Overdraft Fees on Debit Card Transactions. 9. On October 28, 2009, M&T Bank filed a Motion to Compel Arbitration or, in the Alternative, to Dismiss. M&T Bank argued that Plaintiff should be compelled to individually arbitrate her alleged claims or, alternatively, that the Class Action Complaint should be dismissed for failure to state any claim upon which relief can be granted. Plaintiff filed an opposition to this motion on November 16, In February 2010, before the Maryland federal court addressed the pending motion, the Judicial Panel on Multi-District Litigation transferred the Action to MDL No for pretrial proceedings. 11. On April 14, 2010, the Court denied M&T Bank s motion to dismiss for failure to state a claim. 4

110 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 6 of On May 10, 2010, the Court denied M&T Bank s motion to compel arbitration (the First Order ). 13. M&T Bank appealed from the First Order. On April 29, 2011, the Eleventh Circuit vacated the First Order and remanded the matter for reconsideration in light of AT&T Mobility LLC v. Concepcion, 131 S. Ct (2011). In re: Checking Account Overdraft Litig., 425 Fed. Appx. 857 (11th Cir. 2011) (per curiam). 14. On June 2, 2011, M&T Bank filed a renewed motion to compel arbitration. Plaintiff filed an opposition to the renewed motion on July 5, On September 1, 2011, the Court denied M&T Bank s renewed motion (the Second Order ). 16. M&T Bank appealed from the Second Order. On March 21, 2012, the Eleventh Circuit vacated the Second Order. In re: Checking Account Overdraft Litig., 674 F.3d 1252 (11th Cir. 2012) (per curiam). 17. On April 20, 2012, M&T Bank filed a second renewed motion to compel arbitration. 18. On April 25, 2012, Plaintiff filed a motion to defer ruling on M&T Bank s second renewed motion to compel arbitration, and requested leave to conduct arbitration-related discovery. The Court granted Plaintiff s motion on April 26, The Parties thereafter engaged in arbitration-related discovery, including interrogatories, document productions, and a deposition of a M&T Bank designee. 20. In early 2013, as a result of the Action and other factors, M&T Bank changed its posting order applicable to Accounts, such that it generally no longer sequences Debit Card Transactions in highest-to-lowest order based on dollar amount. 5

111 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 7 of On April 8, 2013, after the conclusion of discovery, M&T Bank filed a brief in further support of the second renewed motion to compel arbitration. On the same day, Plaintiff filed a brief in opposition to M&T Bank s second renewed motion. 22. On August 5, 2013, the Court granted M&T Bank s second renewed motion to compel arbitration. 23. On September 3, 2013, Plaintiff filed a notice of appeal to the Eleventh Circuit Court of Appeals. To date, no briefing or argument has occurred in this appeal. D. Settlement Negotiations. 24. Beginning in the Fall of 2013, Settlement Class Counsel and M&T Bank engaged in preliminary settlement discussions. On November 20, 2013, Settlement Class Counsel and M&T Bank participated in a formal mediation before Professor Eric Green. 25. The Parties did not reach an agreement at mediation; however, Settlement Class Counsel and M&T Bank continued negotiations over the next several months facilitated by Professor Green. In connection with the mediation and continued settlement negotiations, M&T Bank provided Professor Green and Settlement Class Counsel with certain information and representations about the amount of its net debit card overdraft revenue during the period August 2006 through August Settlement Class Counsel relied on this information and representations in the settlement negotiations. 26. As a result of their settlement discussions and negotiations, and based on the information and representations provided by M&T Bank regarding the amount of its net debit card overdraft revenue during the period August 2006 through August 2010, Settlement Class Counsel and M&T Bank reached an agreement and executed a Summary Agreement on April 14, 2014, that memorialized, subject to negotiation and execution of the Agreement, and subject to 6

112 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 8 of 26 Preliminary Approval and Final Approval as required by Rule 23 of the Federal Rules of Civil Procedure, and subject to dismissal of the Action with prejudice, the Parties good faith intention to fully, finally, and forever resolve, discharge and release all rights and claims of Plaintiff and the Settlement Class Members in exchange for M&T Bank s agreement to pay the sum of $4,000,000 to create a common fund for the benefit of the Settlement Class, and to separately pay the costs of class notice and settlement administration as specified herein. 27. On April 22, 2014, the Parties filed with the Eleventh Circuit a joint notice of settlement, motion to stay further proceedings pending finalization of settlement, and to relinquish jurisdiction to the Court. 28. On May 15, 2014, the Eleventh Circuit granted the motion and relinquished jurisdiction to the Court for the limited purpose of overseeing and approving this Settlement. 29. At all times throughout the mediation and continued settlement discussions, the negotiations were adversarial, non-collusive and at arm s length. E. Settlement Recovery. 30. The Settlement required M&T Bank to deposit $4,000,000 into an Escrow Account within 14 days of this Court s Preliminary Approval of the Settlement. Agreement 58. M&T Bank timely deposited the $4,000,000 into the Escrow Account, creating the Settlement Fund. The Settlement Fund will be used to pay: (i) all distributions of payments to the Settlement Class; (ii) all attorneys fees, costs and expenses of Class Counsel; (iii) the Service Award to the Plaintiff; (iv) any residual distributions; (v) any Taxes; (vi) any costs of Settlement administration other than those to be paid by M&T Bank; and (vii) additional fees, costs and expenses not specifically enumerated in the Agreement, subject to approval of Settlement Class Counsel and M&T Bank. Id. at 62. In addition to the $4,000,000 Settlement 7

113 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 9 of 26 Fund, M&T Bank is responsible for paying all costs and fees associated with Class Notice and Settlement administration. Id. at All identifiable Settlement Class Members who experienced a Positive Differential Overdraft Fee during the Class Period will receive pro rata distribution from the Net Settlement Fund, provided they do not opt-out of the Settlement. Agreement 88. The Positive Differential Overdraft Fee analysis determines, among other things, which M&T Bank Account holders were assessed additional Overdraft Fees that would not have been assessed if the Bank had used an alternative posting sequence or method for posting Debit Card Transactions other than High-to-Low Posting, and how much in additional Overdraft Fees those Account holders paid. The calculation involves a multi-step process that is described in the Agreement. Id. at Settlement Class Members do not have to submit claims or take any other affirmative step to receive relief under the Settlement. M&T Bank electronic data is sufficient to identify all Settlement Class Members who had Accounts during that applicable Class Period, and to calculate the amount of the distribution, if any, to which each such person is entitled under the Settlement. The amount of eligible Settlement Class Members pro rata distributions will be determined by Settlement Class Counsel and their expert through analysis of M&T Bank s electronic data. Agreement The Net Settlement Fund which will be distributed pro rata among all identifiable Settlement Class Members who experienced a Positive Differential Overdraft Fee is equal to the Settlement Fund, plus interest earned (if any), less Court-awarded attorneys fees and costs, and a Service Award for the Plaintiff. Agreement

114 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 10 of Soon after the Effective Date, M&T Bank and the Settlement Administrator will distribute the Net Settlement Fund to all eligible Settlement Class Members who do not timely opt out of the Settlement and are entitled to a distribution under the Automatic Distribution Process. Agreement Payments to Settlement Class Members who are Current Account Holders will be made by the Bank crediting such Settlement Class Members Accounts, and notifying them of the credits. Agreement 92. M&T Bank will then be entitled to a reimbursement for such credits from the Settlement Fund. Id. Former Account Holders, and Current Account Holders whose Accounts cannot feasibly be automatically credited, will receive payments from the Settlement Fund by checks mailed by the Settlement Administrator. Id. at Any uncashed or returned checks will remain in the Settlement Fund for one year from the date the first distribution check is mailed by the Settlement Administrator, during which time the Settlement Administrator will make reasonable efforts to effectuate delivery of the Settlement Fund Payments. Agreement In addition to the $4,000,000 cash recovery, as additional consideration for the Settlement Class, M&T Bank agreed to maintain through December 31, 2014 its current posting order on every Account, absent the obligation to comply with statutory or other legal authority or through communications with its regulators. Agreement 59. F. Class Release. 38. In exchange for the benefits conferred by the Settlement, all Settlement Class Members who do not opt out will be deemed to have released M&T Bank from claims related to the subject matter of the Action. The detailed release language is found in Section XII of the Agreement. 9

115 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 11 of 26 G. Settlement Notice. 39. Settlement Class Counsel and M&T Bank retained Hilsoft Notifications ( Hilsoft ), a class action notice expert, to serve as the Notice Administrator for the Settlement. The Notice Program was designed to provide the best notice practicable, and was tailored to take advantage of the information M&T Bank had available about Settlement Class Members. Agreement M&T Bank has and will continue to pay all fees and costs of Hilsoft associated with the Notice Program. Agreement The Notice Program was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, the terms of the Settlement, Class Counsel s Fee Application and request for Service Awards for Plaintiff, and their rights to opt-out of the Settlement Class or object to the Settlement. sufficient notice to all persons entitled to notice. The Notices and Notice Program constituted The Notices and Notice Program satisfied all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the constitutional requirement of due process. 41. The Notice Program was comprised of three (3) parts: (1) direct mail postcard notice ( Mailed Notice ) to all identifiable Settlement Class Members; (2) publication notice ( Published Notice ) designed to reach those Settlement Class Members for whom direct mail notice was not possible; and (3) a Long Form notice with more detail than the direct mail or publication notices, that has been and remains available on the Settlement Website and via mail upon request. Agreement, 56, All forms of Notice to the Settlement Class included, among other information: a description of the Settlement; a date by which Settlement Class Members may exclude themselves from or opt out of the Settlement Class; a date by which Settlement Class Members 10

116 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 12 of 26 may object to the Settlement; the date on which the Final Approval Hearing will occur; and the address of the Settlement Website at which Settlement Class Members may access the Agreement and other related documents and information. Agreement, In addition to the information described above, the Long-Form notice also described the procedure Settlement Class Members must use to opt out of the Settlement or to object to the Settlement, and/or to Class Counsel s application for attorneys fees and expenses. All opt-outs must be postmarked before the Opt-Out Deadline, and any objections must be postmarked by the Opt-Out deadline. For an objection to be valid, it must include: the name of the Action; the objector s name, address, and telephone number; an explanation of how the objector is a member of the Settlement Class; the basis for the objection; a description of the number of times the objector or the objector s counsel has objected to a class settlement in the last five years, the names of any such cases, and any relevant orders issued in response to such past objections; the identity of the objector s counsel; any agreements relating to the objection or the process of objecting between the objector or the objector s counsel and any other person or entity; a statement confirming whether the objector will appear at the Final Approval Hearing and a description of counsel or witnesses who will appear on behalf of the objector at the Final Approval Hearing; and the objector s signature. Agreement 75. a. The Mailed Notice Program 44. Settlement Class Counsel and counsel for M&T Bank retained Epiq Class Action and Claim Solutions, Inc., one of the leading settlement administrators in the country, to serve as the Settlement Administrator. The Settlement Administrator administered the Mailed Notice Program. Following its receipt of data files that identified the names and last known addresses of the identifiable Settlement Class Members, the Settlement Administrator ran such addresses 11

117 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 13 of 26 through the National Change of Address Database, and timely mailed postcards to all such Settlement Class Members that contain the Mailed Notice. Agreement The Settlement Administrator performed reasonable address traces for all Initial Mailed Notice postcards that were returned as undeliverable. The Settlement Administrator timely completed the r ing of Mailed Notice postcards to those Settlement Class Members whose new addresses were identified as of that time through address traces. Agreement The Mailed Notice Program was timely completed. Agreement All fees and costs associated with the Mailed Notice Program have been and will be paid by M&T Bank, in addition to the $4,000,000 Settlement Fund. Agreement 82. b. The Published Notice Program 48. The Published Notice Program, for which Hilsoft was responsible, was comprised of advertisements in 13 major newspaper publications covering the major markets in which M&T Bank operated branches during the Class Period. The Published Notice Program was timely completed. Agreement 81. All fees and costs associated with the Published Notice Program have been and will be paid by M&T Bank in addition to the Settlement Fund. Agreement 82. c. The Settlement Website and the Toll-Free Settlement Line 49. The Settlement Administrator timely established and has maintained a Settlement Website as a means for Settlement Class Members to obtain notice of, and information about, the Settlement. Agreement 56. The Settlement Website includes hyperlinks to the Settlement, the Long-Form notice, the Preliminary Approval Order, and such other documents as Settlement Class Counsel and counsel for M&T Bank agreed to post on the Settlement Website. Id. These documents will remain on the Settlement Website at least until Final Approval. Id. 12

118 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 14 of The Settlement Administrator timely established and has maintained an automated toll-free telephone line for Settlement Class Members to call with Settlement-related inquiries, and answer the questions of Settlement Class Members who call with or otherwise communicate such inquiries. Agreement 71(d). H. Service Awards, Attorneys Fees and Costs. 51. Class Counsel will seek and M&T Bank will not oppose a Service Award of $10,000 for the Plaintiff. Agreement 109. If the Court approves it, the Service Award will be paid from the Settlement Fund, and will be in addition to the other relief the named Plaintiff will be entitled to as a Settlement Class Member. Id. This award will compensate the named Plaintiff for her time and effort in the Action, and for the risks she undertook in prosecuting the Action against M&T Bank. 52. M&T Bank will not oppose Class Counsel s request for attorneys fees of up to thirty percent (30%) of the Settlement Fund, plus reimbursement of litigation costs and expenses. Agreement 105. The Parties negotiated and reached agreement regarding attorneys fees and costs only after reaching agreement on all other material terms of this Settlement. Id. at 106. I. Considerations Supporting Settlement. 1. The Settlement is the Product of Good Faith, Informed and Arm s Length Negotiations. 53. Settlement negotiations were informed by the experience of counsel for both sides in the litigation, certification, trial and settlement of nationwide class action cases. In particular, Class Counsel had the benefit of years of experience and a familiarity with the facts of this case as well as with other cases involving similar claims. 54. As detailed above, Class Counsel conducted a thorough investigation and analysis of Plaintiff s claims and M&T Bank s defenses, and engaged in limited arbitration-related 13

119 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 15 of 26 discovery. Counsel s review of that extensive discovery enabled them to gain an understanding of the evidence related to central legal and factual issues in the case as they related to arbitration, and prepared counsel for well-informed settlement negotiations. 55. Class Counsel have a thorough understanding of the practical and legal issues they would still face if they were able to reverse the arbitration issue on appeal based, in large part, on the litigation of similar claims challenging High-to-Low Posting practices in MDL 2036 over the past five years. 56. Class Counsel were also well-positioned to evaluate the strengths and weaknesses of Plaintiff s claims, as well as the appropriate basis upon which to settle them, as a result of the settlements of similar claims reached within and outside of MDL Risks Associated with Trial Favor Settlement. 57. While Class Counsel are confident in the strength of this case on the merits, we are also pragmatic in our awareness that M&T Bank prevailed on the arbitration issue before this Court. Plaintiff and all Settlement Class Members face the prospect of being forced to individually arbitrate their claims unless this Court s arbitration ruling was reversed by the Eleventh Circuit. In addition to the prospect of individual arbitration, Plaintiff faced the risk of dismissal on various theories that would likely have been advanced at future stages of the litigation, including legal challenges to the common law and state statutory claims. The success of Plaintiff s claims in future litigation turns on these and other questions that were certain to arise in the context of motions for summary judgment and at trial. 58. Protracted litigation carries inherent risks and inevitable delay. Under the circumstances, Settlement Class Counsel determined that the Settlement outweighs the risks of continued litigation. 14

120 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 16 of The Settlement Amount Is Reasonable Given the Range of Possible Recovery. 59. In reaching the Settlement, Settlement Class Counsel were forced to consider the very real prospect of M&T Bank s ongoing attempts to compel Plaintiff and all members of the proposed class to individually arbitrate their claims, in addition to all of the other litigation risks created in this complex multidistrict proceeding. 60. If the Eleventh Circuit affirmed the arbitration ruling in favor of M&T Bank, the result would have effectively wiped out 100% of the value of Settlement Class Members claims in the Action. Moreover, the likelihood that more than a handful of Settlement Class Members could or would have successfully pursued individual arbitrations was virtually non-existent. Thus, if this Court s arbitration ruling was affirmed on appeal, it would have effectively spelled the death-knell of Settlement Class Members ability to successfully recover any damages arising from M&T Bank s High-to-Low Posting practices challenged in the Action. 61. Given these risks, the $4,000,000 cash recovery obtained through the Settlement is a positive result. The $4,000,000 cash Settlement Fund represents approximately 5.41% of Plaintiff s and the Settlement Class Members estimated most probable recovery of $73.9 million if this case were to proceed to trial. 62. The recovery achieved by this Settlement must be measured against the fact that any recovery by Plaintiff and Settlement Class Members through continued litigation could only have been achieved if: (i) M&T Bank s effort to enforce mandatory, individual arbitration was reversed on appeal; (ii) Plaintiff succeeded in certifying a nationwide class and the Eleventh Circuit declined to accept M&T Bank s inevitable rule 23(f) petition; (iii) Plaintiff and the certified class established liability at trial; (iv) Plaintiff and the certified class recovered damages at trial under the same or similar posting order adopted in Gutierrez v. Wells Fargo Bank, N.A.; 15

121 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 17 of 26 and (v) the final judgment was affirmed on appeal. The Settlement is an fair and reasonable recovery for the Class in light of M&T Bank s defenses, and the challenging and unpredictable path of litigation Plaintiff would have faced absent the Settlement. 4. The Factual Record Is Sufficiently Developed to Enable Plaintiff and Class Counsel to Make a Reasoned Judgment Concerning This Settlement. 63. Settlement Class Counsel settled the Action with the benefit of limited arbitration discovery, including deposition testimony from M&T Bank regarding arbitration-related issues. Settlement Class Counsel also had the benefit of certain overdraft fee information provided by M&T Bank as part of the Parties mediation and settlement negotiations. Review of the arbitration discovery and overdraft fee information positioned Settlement Class Counsel to evaluate with confidence the strengths and weaknesses of Plaintiff s claims and M&T Bank s defenses on issue of arbitration, as well as the range and amount of potential damages recoverable in the Action. Settlement Class Counsel, with the benefit of their experiences in MDL No and elsewhere, were also well positioned to evaluate with confidence the strengths and weaknesses of Plaintiff s claims and M&T Bank s anticipated defenses on class certification, summary judgment and trial. 5. Plaintiff Would Have Faced Significant Obstacles to Prevailing. 64. Protracted litigation involves risks, delay and expenses; this case is no exception. While Class Counsel believe that Plaintiff has a solid case against M&T Bank, we are mindful that in addition to arbitration, M&T Bank would have advanced significant defenses that we would have been required to overcome in the absence of the Settlement. This Action involved several major litigation risks. 65. Apart from the risks, continued litigation would have involved substantial delay and expense, which further counsels in favor of Final Approval. Had Plaintiff reversed this 16

122 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 18 of 26 Court s order enforcing M&T Bank s arbitration provision on appeal, and thereafter succeeded in obtaining class certification of a multistate class, Plaintiff and the certified class would still have faced summary judgment, a trial on the merits, and a post-judgment appeal. The uncertainties and delays from this process would have been significant. Given the myriad risks attending these claims, as well as the certainty of substantial delay and expense from ongoing litigation, the Settlement cannot be seen as anything except a fair compromise. 6. The Benefits Provided by the Settlement Are Fair, Adequate and Reasonable Compared to the Range of Possible Recovery. 66. This Settlement provides reasonable benefits to the Settlement Class. Settlement Class Counsel s expert s analysis of M&T Bank s transactional data showed that the most probable sum Plaintiff and the Settlement Class could reasonably have anticipated recovering at a trial was $73.9 million. Thus, through the Settlement, Plaintiff and the Settlement Class Members have recovered approximately 5.41% of their damages without further risk or delay. 67. The $4,000,000 cash recovery through this Settlement is a fair and reasonable recovery to the Settlement Class in light of M&T Bank s arbitration and anticipated merits defenses and the challenging, unpredictable path of litigation that Plaintiff would otherwise have continued to face in the trial and appellate courts. 68. If M&T Bank succeeded on appeal in enforcing its arbitration agreement, the result would have effectively wiped out 100% of the value of Plaintiff s and all Settlement Class Members claims in the Action. Moreover, the likelihood that more than a handful of Settlement Class Members could or would have successfully pursued individual arbitrations was virtually non-existent. Thus, if M&T Bank were successful on appeal in enforcing its arbitration agreements, it would have effectively spelled the death knell of Plaintiff s and every 17

123 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 19 of 26 Settlement Class Members ability to successfully recover any damages arising from M&T Bank s practices challenged in the Action. 69. The automatic distribution process for eligible Settlement Class Members further supports Final Approval. Eligible Settlement Class Members will receive the cash benefit automatically, without needing to fill out any claim form or indeed, to take any affirmative steps whatsoever. 7. The Opinions of Class Counsel, the Class Representative, and Absent Class Members Favor Approval of the Settlement. 70. Class Counsel believe this Settlement represents a successful result in the face of extraordinary risks, and represents the best vehicle for Settlement Class Members to receive some of the relief to which they are entitled in a prompt and efficient manner. 71. The recovery achieved by this Settlement must be measured against the fact that any recovery by Plaintiff and Settlement Class Members through continued litigation could only have been achieved if (i) M&T Bank s continued efforts to enforce mandatory, individual arbitration were reversed on appeal; (ii) Plaintiff succeeded in certifying a nationwide class and the Eleventh Circuit declined M&T Bank s interlocutory Rule 23(f) petition; (iii) Plaintiff and the certified class established liability at trial; (iv) Plaintiff and the certified class recovered damages at trial under our theory of the case; and (v) the final judgment was affirmed on appeal. Given the extraordinary obstacles that Plaintiff faced in the litigation, this recovery is a successful achievement by any objective measure. 72. To date, there has been no opposition to the Settlement. As of January 2, 2015, only two (2) Settlement Class Members had requested to be excluded from the Settlement Class. As of the same date, there were no objections to the Settlement. 18

124 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 20 of Based on these and other reasons, we are of the strong opinion that the Settlement is deserving of Final Approval. J. Service Award. 74. Pursuant to the Settlement, we request, and M&T Bank does not oppose, a Service Award of $10,000 for Plaintiff Maxine Given. Agreement 109. If the Court approves it, the Service Award will be paid from the Settlement Fund, and will be in addition to any relief to which the Plaintiff is entitled under the terms of the Settlement. Id. This award will compensate Ms. Given for her time and effort in the Action and the risks she undertook in prosecuting the Action against M&T Bank. 75. Service awards compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Courts, including this Court, have found service awards to be an efficient and productive way to encourage members of a class to become class representatives. 76. The factors for determining a service award include: (1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation. 77. The above factors, as applied to this Action, demonstrate the reasonableness of Service Award to the named Plaintiff. The named Plaintiff provided assistance that enabled Class Counsel to successfully prosecute the Action and reach the Settlement, including (1) submitting to interviews with Class Counsel, (2) locating and forwarding responsive documents and information (i.e., monthly account statements and account agreements), and (3) participating in conferences with Class Counsel. In so doing, Plaintiff was integral to forming the theory of 19

125 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 21 of 26 the case. The named Plaintiff not only devoted time and effort to the litigation, but the end result of her efforts, and those of Class Counsel, conferred a benefit on the Settlement Class. 78. If the Court approves it, the total Service Award will be $10,000. This amount represents % of the Settlement Fund, a ratio that falls well below the range of reasonable service awards. K. Attorneys Fees and Expenses. 79. Pursuant to the Settlement, Class Counsel are entitled to request that the Court award attorneys fees of thirty percent (30%) of the $4,000,000 Settlement Fund, plus reimbursement of litigation costs and expenses. Agreement 105. M&T Bank agreed not to oppose our request for such fees and expenses. Id. We negotiated and reached this agreement regarding attorneys fees and expenses only after reaching agreement on all other material terms of this Settlement. Id. at As indicated in the Court-approved notice disseminated to the Settlement Class, Class Counsel request a fee equal to thirty percent (30%) of the $4,000,000 common fund created through our efforts in creating the Settlement, plus reimbursement of certain litigation costs and expenses. 1. The Claims Against M&T Bank Required Substantial Time and Labor. 81. Prosecuting and settling the claims in the Action demanded considerable time and labor, making this fee request reasonable. Throughout the pendency of the Action, the internal organization of Class Counsel ensured that we were engaged in coordinated, productive work to maximize efficiency and minimize duplication of effort. 82. Class Counsel spent a substantial number of hours investigating the claims of potential plaintiffs against M&T Bank. We interviewed M&T Bank customers and potential 20

126 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 22 of 26 plaintiffs to gather information about M&T Bank s conduct and its effect on consumers. This information was essential to our ability to understand the nature of M&T Bank s conduct, the language of the account agreements at issue, and potential remedies. 83. Class Counsel expended significant resources researching and developing the legal theories and arguments presented in our oppositions to M&T Bank s numerous arbitration motions and motion to dismiss, as well as conducting arbitration related discovery. 84. Settlement negotiations consumed further time and resources. A formal mediation was held in Boston, followed by protracted settlement negotiations with the assistance of the mediator. Preparations for and participation in the mediation and continued settlement negotiations required substantial time and effort. 85. Even after we reached an agreement in principle, several months of additional negotiations and discussions ensured regarding the specific terms of the Agreement. This work consumed a significant amount of time. We also engaged in additional settlement-related investigation, to determine, among other things, the most appropriate method by which to implement the plan for direct allocation of the Net Settlement Fund to Settlement Class Members. 86. All told, our steadfast and coordinated work paid dividends for the Settlement Class. Each of the above-described efforts was essential to achieving the Settlement currently before the Court. Taken together, the time and resources we devoted to prosecuting and settling this Action readily justify the fee we are now seeking. 2. The Issues Involved Were Novel and Difficult, and Required the Exceptional Skill of a Talented Group of Attorneys. 87. The Court has regularly witnessed and commented upon the high quality of our legal work, which has conferred a significant benefit on the Settlement Class in the face of 21

127 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 23 of 26 numerous litigation obstacles. It required the acquisition and analysis of a substantial amount of bank data and the efforts of a highly skilled expert. Moreover, the management of this very large MDL, including the Action against M&T Bank, among other banks, presented challenges that many law firms are simply not able to meet. 88. Indeed, litigation of a case like this requires counsel highly trained in class action law and procedure as well as the specialized issues these cases present. Class Counsel possess these attributes, and their participation on the team added value to the representation of this Settlement Class. 89. The record before the Court shows that the Action involved a wide array of complex and novel challenges. We met every challenge, at every juncture. 90. In assessing the quality of representation by Class Counsel, the Court also should consider the quality of M&T Bank s counsel. M&T Bank was represented by extremely capable and diligent attorneys. They were worthy, highly competent adversaries. 3. Class Counsel Achieved a Successful Result. 91. The Settlement we achieved is successful in light of the hurdles we faced. Instead of facing additional years of costly and uncertain litigation, eligible Settlement Class Members will receive an immediate benefit from the $4,000,000 Settlement Fund. Moreover, the Settlement Fund will not be diminished by the substantial costs associated with the Notice Program and Settlement administration; such costs have been and will continue to be borne separately by M&T Bank. Furthermore, payments to eligible Settlement Class Members will be forthcoming automatically, through direct deposits (for Current Account Holders) or checks (for Past Account Holders). Under the facts and circumstances, the Settlement represents a successful result by any measure. 22

128 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 24 of The Claims Against M&T Bank Entailed Considerable Risk. 92. Prosecuting the Action was risky from the outset. 93. M&T Bank asserted that Plaintiff and every member of the putative class were required to individually arbitrate their claims. This Court ultimately agreed, and enforced M&T Bank s arbitration provision. If M&T Bank were successful on appeal in enforcing arbitration against the Plaintiff and putative class members, this litigation would have ground to a halt and this Settlement would never have been achieved. 94. Even if the arbitration ruling was reversed on appeal, M&T Bank likely would have argued that language in its Account agreement shields it from liability in the Action. The language in such agreements, M&T Bank would have contended, expressly authorized it to engage in the challenged High-to-Low Posting and foreclosed any finding of breach of the covenant of good faith and fair dealing. 95. Each of these risks, by itself, could have impeded Plaintiff s and the putative class s successful prosecution of these claims at trial and on appeal. Together, they clearly demonstrate that Plaintiff s claims against M&T Bank were far from a slam dunk and that, in light of all the circumstances, the Settlement achieves a favorable class-wide result. 5. Class Counsel Assumed Substantial Risk to Pursue the Action on a Pure Contingency Basis. 96. Class Counsel prosecuted the Action entirely on a contingent fee basis. In undertaking to prosecute this complex action on that basis, we assumed a significant risk of nonpayment or underpayment. That risk favors awarding the requested attorneys fees. 97. Public policy concerns especially ensuring the continued availability of experienced and capable counsel to represent classes of injured plaintiffs whose individual claims would defy vindication further justify the requested attorneys fees. 23

129 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 25 of The progress of the Action to date shows the inherent risk we assumed in taking this case on a contingency fee basis. Despite our ongoing effort in litigating the Action for over five years, we remain completely uncompensated for the substantial time and expenses we have invested in this Action. There can be no dispute that the Action entailed substantial risk of nonpayment. 6. The Requested Fee Comports with Customary Fees Awarded in Similar Cases. 99. The fee requested here matches the fees typically awarded in similar cases. As numerous decisions have recognized, a fee award of thirty percent (30%) of a common fund is well within the range of a customary fee. The requested fee also falls within the range of awards in many cases brought in this Circuit and District. 7. Other Factors Support Approving Class Counsel s Fee Request Other factors also support granting our fee request. As noted above, the time and expense demands on us were considerable. Moreover, our fee request is firmly rooted in the economics involved in prosecuting a class action. Without adequate compensation and financial reward, cases such as this simply could not be pursued. 8. Reimbursement of Certain Costs and Expenses Class Counsel also respectfully request reimbursement of $87,625.80, representing limited out-of-pocket costs and expenses we necessarily incurred in connection with the prosecution of the Action and the Settlement. These costs and expenses are comprised of: (1) $76, in fees and expenses for experts, including Arthur Olsen whose services were critical in determining the damages for the Settlement Class, in identifying Settlement Class Members, and in allocating the Settlement Fund; (2) $2, in court reporter fees and transcripts associated with hearings and the arbitration-related deposition conducted in the Action; and (3) 24

130 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 26 of 26 $8, in mediator s fees and expenses for the services rendered by the mediator in connection with the mediation and continued settlement discussions thereafter. These costs and expenses are recorded in the books and records maintained by Plaintiffs Coordinating Counsel, and were reasonably and necessarily incurred in furtherance of our prosecution of the Action and the Settlement We have limited the categories of expenses for which we are seeking reimbursement to those enumerated above. We are not seeking reimbursement for many thousands of dollars in other expenses, including (but not limited to) travel expenses. I declare under penalty of perjury of the laws of Florida and the United States that the foregoing is true and correct, and that this declaration was executed in Coral Gables, Florida on January 7, /s/ Robert C. Gilbert Robert C. Gilbert I declare under penalty of perjury of the laws of Georgia and the United States that the foregoing is true and correct, and that this declaration was executed in Atlanta, Georgia on January 7, /s/ E. Adam Webb E. Adam Webb I declare under penalty of perjury of the laws of California and the United States that the foregoing is true and correct, and that this declaration was executed in San Francisco, California, on January 7, /s/ Nicholas A. Carlin Nicholas A. Carlin 25

131 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 1 of 30 EXHIBIT C

132 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 2 of 30 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank Case No. 1:09-MD JLK DECLARATION OF BRIAN T. FITZPATRICK I. Background and qualifications 1. My name is Brian Fitzpatrick and I am a Professor of Law at Vanderbilt University in Nashville, Tennessee. I joined the Vanderbilt law faculty in 2007, after serving as the John M. Olin Fellow at New York University School of Law in 2005 and I graduated from Harvard Law School in After law school, I served as a law clerk to The Honorable Diarmuid O Scannlain on the United States Court of Appeals for the Ninth Circuit and to The Honorable Antonin Scalia on the United States Supreme Court. I also practiced law for several years in Washington, D.C., at Sidley Austin LLP. My C.V. is attached as Appendix Like my research at New York University before it, my teaching and research at Vanderbilt have focused on class action litigation. I teach the Civil Procedure, Federal Courts, and Complex Litigation courses at Vanderbilt. In addition, I have published a number of articles on class action litigation in such journals as the University of Pennsylvania Law Review, the Journal of Empirical Legal Studies, and the Vanderbilt Law Review. My work has been cited by numerous courts, scholars, and popular media outlets, such as the New York Times, USA Today, and Wall Street Journal. I am also frequently invited to speak at symposia and other events about class action litigation, such as the ABA National Institute on Class Actions in 2011 and the ABA Annual Meeting in Since 2010, I have also served on the Executive Committee of the Litigation Practice Group of the Federalist Society for Law & Public Policy Studies. 1

133 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 3 of In December 2010, I published an article in the Journal of Empirical Legal Studies entitled An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical L. Stud. 811 (2010) (hereinafter Empirical Study ). This article is what I believe to be the most comprehensive examination of federal class action settlements and attorneys fees that has ever been published. Unlike other studies of class actions, which have been confined to securities cases or have been based on samples of cases that were not intended to be representative of the whole (such as settlements approved in published opinions), my study attempted to examine every class action settlement approved by a federal court over a two-year period, See id. at As such, not only is my study an unbiased sample of settlements, but the number of settlements included in my study is several times the number of settlements per year that has been identified in any other empirical study of class action settlements: over this two-year period, I found 688 settlements, including 54 from the Eleventh Circuit alone. See id. at 817. I presented the findings of my study at the Conference on Empirical Legal Studies at the University of Southern California School of Law in 2009, the Meeting of the Midwestern Law and Economics Association at the University of Notre Dame in 2009, and before the faculties of many law schools in 2009 and This study has been relied upon by a number of courts, scholars, and testifying experts. See, e.g., Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 958 (7th Cir. 2013) (relying on article to assess fees); In re Neurontin Marketing and Sales Practices Litigation, 2014 WL , at *3 (D. Mass. Nov. 10, 2014) (same); Tennille v. W. Union Co., 2014 WL , at *4 (D. Colo. Oct. 15, 2014) (same); In re Colgate-Palmolive Co. Erisa Litig., 2014 WL , at *4 (S.D.N.Y. July 8, 2014); In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 991 F.Supp.2d 437, & n.8 (E.D.N.Y. 2014) (same); In re Federal National Mortgage 2

134 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 4 of 30 Association Securities, Derivative, and ERISA Litigation, 4 F.Supp.3d 94, (D.D.C. 2013) (same); In re Vioxx Products Liability Litigation, 2013 WL , at *3-4 (E.D. La. Sep. 18, 2013) (same); In re Black Farmers Discrimination Litigation, 953 F.Supp.2d 82, (D.D.C. 2013) (same); In re Southeastern Milk Antitrust Litigation, 2013 WL , at *2 (E.D. Tenn., May 17, 2013) (same); In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1081 (S.D. Tex. 2012) (same); Pavlik v. FDIC, 2011 WL , at *4 (N.D. Ill. Nov. 1, 2011) (same); In re Black Farmers Discrimination Litig., 856 F. Supp. 2d 1, 40 (D.D.C. 2011) (same); In re AT & T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d 1028, 1033 (N.D. Ill. 2011) (same); In re MetLife Demutualization Litig., 689 F. Supp. 2d 297, 359 (E.D.N.Y. 2010) (same). 4. I have been asked by class counsel to opine on whether the settlement they have asked the court to approve is fair, adequate, and reasonable, and whether the attorneys fees they have requested are reasonable. In order to formulate my opinion, I reviewed a number of documents provided to me by class counsel; I have attached a list of these documents (and noted how I refer to these documents herein) in Appendix 2. As I explain, based on my study of settlements across the country and in the Eleventh Circuit in particular, I believe both the settlement agreement and fee request here are within the range of reason. II. Case background 5. This lawsuit alleges that Manufacturers and Traders Trust Company (hereinafter M&T Bank ) breached the covenant of good faith and fair dealing and other state laws of general application through its practice of sequencing customers debit-card transactions from the largest amount to the smallest amount in order to maximize the number of overdraft fees it 3

135 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 5 of 30 could charge its customers. The lawsuit was filed on August 21, The parties have now moved the court to certify a settlement class and approve a settlement. The court preliminarily did so on October 20, The settlement class includes, with minor exceptions, all holders of M&T Bank consumer accounts who, between August 21, 2006, and August 15, 2010, incurred one or more Overdraft Fees as a result of M&T Bank s High to Low posting. M&T Bank Settlement Agreement 25, 52. Pursuant to the settlement agreement, the settlement class will release M&T Bank from any and all claims pertaining to matters during the class period that were or could have been alleged in these lawsuits, including any claims arising out of the calculation, imposition, assessment, or collection of one or more Overdraft Fees, the amount of one or more Overdraft Fees, M&T Bank s policies and practices... concerning authorizing, assessing, processing, sequencing, or imposing Overdraft Fees, and High to Low posting.... See id. at 102. In exchange, M&T Bank will pay the class $4 million, to be distributed pro rata (after deducting attorneys fees, expenses, and any service award to the named plaintiff), and with no amount reverting to M&T Bank (except, if residual funds remain following distributions to class members, to reimburse it for the costs of settlement notice and administration that M&T Bank is obligated to pay pursuant to the settlement). See id. at 58, 62, 87-91, 98a. All settlement class members will receive their cash distributions automatically, without the need to file claim forms. See id. at In addition to this cash compensation, M&T Bank has agreed to pay all of the costs associated with administering and notifying the class of the settlement, see id. at 63. (Although M&T Bank also agreed to continue certain recent changes it made to its posting order on consumer accounts and this could be considered something of an 4

136 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 6 of 30 additional benefit to the class in the settlement, because its obligation to continue these changes ended at the end of 2014, see id. at 59, I will not consider it further.) 7. Plaintiff and class counsel are now moving for final approval of the settlement and class counsel are moving for an award of fees equal to thirty percent (30%) of the settlement. III. Assessment of the reasonableness of the settlement 8. Under Federal Rule of Civil Procedure 23, class actions can be settled only with the court s approval, Fed. R. Civ. P. 23(e), and only if the settlement is fair, reasonable, and adequate, Fed. R. Civ. P. 23(e)(2). The court is given this responsibility because the interests of class counsel, the class representative, and the defendant can diverge from the interests of absent class members, and the court must ensure that the absent class members are treated fairly before they are bound to the agreement. See, e.g., Brian T. Fitzpatrick, The End of Objector Blackmail?, 62 Vand. L. Rev. 1623, 1630 (2009) (hereinafter Objector Blackmail ). 9. Courts usually examine a number of factors in discharging this duty. In the Eleventh Circuit, courts have been instructed to consider at least six factors: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the anticipated complexity, expense, and duration of litigation; (5) the opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. Faught v. Amer. Home Shield Corp., 668 F.3d 1233, 1240 (11th Cir. 2012); see also Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). Although it is not possible to fully assess the fifth factor yet because the deadline for objections 5

137 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 7 of 30 to the settlement has not yet passed, 1 as I explain below, all of the other factors clearly counsel in favor of approving the settlement. 10. Consider first the factors (1) the likelihood of success at trial, (2) the range of possible recovery, and (3) the range of possible recovery at which a settlement is fair, adequate, and reasonable. These factors together ask the court to assess whether the settlement is a fair value in light of the risks presented by the litigation. That is, these factors ask the court to compare the relief called for in the settlement with the relief the class might have recovered had the case gone forward, discounted by the risks of no or reduced recovery. According to class counsel s expert, the $4 million cash component of the settlement constitutes approximately 5.41% of the wrongful overdraft fees the settlement class members were charged. See M&T Bank Joint Declaration 61. In light of the risks and expense of class action litigation, this level of recovery can be considered successful. See, e.g., In re Cendant Corp. Litig., 264 F.3d 201, 241 & n.22 (3d Cir. 2001) (citing securities class action settlements with recoveries between 1.6% and 14% of damages). Indeed, as I explain below, I believe the recovery here is fair value in light of the current posture and substantial future risks presented by the litigation. 11. First, the account agreements between M&T Bank and the class members, including the plaintiff, contain an arbitration clause that includes a provision prohibiting them from suing M&T Bank on a class-wide basis. Following the United States Supreme Court s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct (2011), the court here ruled that these clauses are enforceable and dismissed the plaintiff s case. If not reversed on appeal, this ruling means each member of the proposed class here would be compelled to proceed 1 It is important to note that, even if there is opposition to the settlement from class members, not all opposition is created equal. Although some class members file objections because they sincerely believe there is something amiss in the settlement, many others do so only to try to delay final resolution of the case and to use that delay to extract side payments from class counsel. This phenomenon is known as objector blackmail, and courts are wise to stand guard against it. See generally Fitzpatrick, Objector Blackmail, supra. 6

138 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 8 of 30 individually against M&T Bank in arbitration, something few would do because the small individual recoveries at issue would make doing so cost prohibitive. In other words, the arbitration clause here effectively insulates M&T Bank from most, if not all, liability for the overdraft fee practices challenged in this suit. Although plaintiff appealed this court s ruling, it is far from clear the appeal would have succeeded. The arbitration clause alone but certainly when combined with the other uncertainties outlined below with regard to the merits paints an extremely challenging picture for the class had this lawsuit gone forward. 12. Second, it was not at all clear that the plaintiff would have won her case on the merits. Most of the other banks in this MDL have contended that federal banking laws preempt the plaintiffs claims, and M&T Bank probably would have done so as well if the Eleventh Circuit reversed this court s arbitration ruling. Although this court has thus far rejected preemption arguments in this MDL, it is not clear the Eleventh Circuit would come out the same way. Indeed, only two years ago, the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a class action judgment in a similar overdraft fee case brought against Wells Fargo Bank, on the ground that California s Unfair Competition Law was preempted by the National Bank Act. See Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712 (9th Cir. 2012). Although there are grounds on which Gutierrez might be distinguished from the case at hand (and, of course, it is not controlling in the Eleventh Circuit), there is little doubt that M&T Bank would have raised Gutierrez in support of any preemption defense. In addition, the other banks in this MDL have asserted a number of defenses under state law, and, again, it is certain that M&T Bank would have done so as well if the Eleventh Circuit reversed this court s arbitration ruling. Although the court here has thus far rejected these state law defenses in this 7

139 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 9 of 30 MDL, other courts have not, and, again, it is not at all clear how the Eleventh Circuit would ultimately rule on these issues. 13. Third, the percentage recovery in this settlement is appropriate when compared to other settlements in this MDL that have already been approved by the court, especially those where banks asserted arbitration as a threshold defense. In Table 1, I set forth each of these settlements, the sum of the cash and any valued policy changes called for in the settlement as a percentage of the class s damages (using chronological ordering as the baseline), whether the defendant had invoked arbitration with a class action waiver, 2 the approximate number of states comprising the plaintiff classes in each case, 3 and any other obvious considerations relevant to the risk and recovery in these suits. As this table shows, most of the settlements to date in this MDL recovered between 40% and 65% of the damages estimated by class counsel s expert, with the variation largely dependent on how likely the prospects for class certification appeared (including the prospects of surviving an appeal under Fed. R. Civ. P. 23(f) to review class certification). The exceptions have been the Bank of America settlement, the Chase settlement, the M&I settlement, the Compass settlement, the U.S. Bank settlement, and the settlement here. In my opinion, other factors justify the lower percentage recoveries in these settlements. As I alluded to in the table, the low-end percentage recovered against Bank of America was impressive because class counsel estimated that approximately 80% of the value of the claims there had already been settled and released in state court in California; although class counsel 2 This factor is important because, as I explained above, the Supreme Court recently held that class action waivers imbedded in arbitration agreements are enforceable over state unconscionability laws, and the presence of such a waiver is one of the most significant risk factors in the lawsuits in this MDL. See AT&T Mobility LLC v. Concepcion, 131 S.Ct (2011). 3 These numbers were provided to me by class counsel. This factor is important because the lawsuits in this MDL are based on state law claims and the laws of the states vary to some extent. This is a risk factor because the greater the number of states comprising the class, the greater the risk posed by the predominance requirement under Fed. R. Civ. P. 23(b)(3). 8

140 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 10 of 30 were challenging that settlement, they had been rebuffed by the trial court and there was substantial doubt they would have had any more success on appeal. With regard to the settlements with Chase, M&I, Compass, U.S. Bank, and in this case, the lower percentage recoveries were well justified, in my opinion, by the fact that the defendant banks invoked arbitration clauses with class action waivers in these cases; as I explained above, these waivers create great risks that account holders might not recover anything at all. Although the percentage recovery in this case is lower than in all the other arbitration cases, this is the first settlement in this MDL against a bank that successfully invoked arbitration; this court rebuffed the arbitration efforts by the other banks. As a result, the class in this case faced unprecedented risk, and I believe the risk-recovery tradeoff here is therefore well in line with the other settlements approved by the court. 9

141 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 11 of 30 Table 1: Settlements in In re: Checking Account Overdraft Litigation, MDL No Defendant Final Recovery Arbitration No. of Other factors approval as % of damages invoked? states M&T Bank 4 Pending 5% Yes 10 Bank of America 5 11/22/ % No 50 Prior settlement Bank of OK 6 9/13/12 46% No 9 Union 7 10/4/12 63% No 3 Certified, 23(f) denied Bank of the West 8 12/18/12 52% No 19 Chase 9 12/19/12 21% Yes 25 Citizens 10 3/12/13 42% No 13 TD 11 3/18/13 42% No 14 Certified, 23(f) pending Associated 12 8/2/13 50+% No 4 Commerce 13 8/2/13 57% No 6 Great Western 14 8/2/13 50+% No 7 M & I 15 8/2/13 25+% Yes 10 Harris 16 8/5/13 65+% No 10 PNC 17 8/5/13 45+% No 14 Certified, recon. pending Compass 18 8/7/13 16% Yes 7 U.S. Bank 19 1/6/14 13% Yes 24 4 See M&T Bank Joint Declaration See Bank of America Joint Declaration 24-30, See Bank of Oklahoma Joint Declaration See Union Bank Joint Declaration 15, See Bank of the West Joint Declaration See Chase Joint Declaration 29. The $110 million cash portion of the settlement constituted 14% of the class s estimated damages; the valuation of the defendant s changed practices constituted the remainder. 10 See Citizens Financial Joint Declaration See TD Bank Joint Declaration 25-27, See Associated Bank Joint Declaration 50. The percentage number listed in the table is based solely on the cash portion of the settlement; the total percentage recovery is unknown because the changed practices the bank agreed to as part of the settlement were not valued. 13 See Commerce Bank Joint Declaration 21, 45. The $18.3 million cash portion of the settlement constituted 45% of the class s estimated damages; the valuation of the defendant s changed practices constituted the remainder. 14 See Great Western Joint Declaration 50. The percentage number listed in the table is based solely on the cash portion of the settlement; the total percentage recovery is unknown because the changed practices the bank agreed to as part of the settlement were not valued. 15 See M&I Joint Declaration 9, 39. The percentage number listed in the table is based solely on the cash portion of the settlement; the total percentage recovery is unknown because the changed practices the bank agreed to as part of the settlement were not valued. 16 See Harris Bank Joint Declaration 38. The percentage number listed in the table is based solely on the cash portion of the settlement; the total percentage recovery is unknown because the changed practices the bank agreed to as part of the settlement were not valued. 17 See PNC Joint Declaration 62. The percentage number listed in the table is based solely on the cash portion of the settlement; the total percentage recovery is unknown because the changed practices the bank agreed to as part of the settlement were not valued. 18 See Compass Joint Declaration

142 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 12 of 30 Susquehanna 20 4/1/14 40% No 4 Comerica 21 6/10/14 35% No 5 Certified, 23(f) denied, abbr. contractual limit. pd. 14. Consider next the factor (4) the anticipated complexity, expense, and duration of litigation. This factor asks the court to assess whether the risk-recovery trade-off identified by the above factors might be further justified by the savings in time and expense that the settlement brings. At the time of settlement, the parties were in the midst of an appeal before the Eleventh Circuit over the arbitration issues I discussed above. If the plaintiff ultimately gained reversal of this court s ruling on the arbitration issues and this case ended up staying in court, the parties would then have to engage in merits discovery, litigate class certification (which would have led to another interlocutory appeal, as was the case with other cases in this MDL where a class was certified before settlement, see Table 1), litigate summary judgment and pretrial motions, prepare for trial, complete trial and all that goes with it, litigate post-trial motions, and then litigate any appeals on the merits. All of this would have probably consumed millions of dollars of class counsel s time and delay any payments to class members for several years. As such, this factor further supports the settlement in this case. 15. Consider next the factor (6) the stage of proceedings at which the settlement was achieved. This factor asks the court to satisfy itself that class counsel have dug far enough into the case to know what the case is worth and to enable the court to assess what the case is worth using the factors discussed above; it is largely a procedural consideration rather than a substantive one. Here, the case has transpired well over five years, most of which has been consumed by litigation over arbitration (including three appeals to the Eleventh Circuit). 19 See U.S. Bank Joint Declaration See Susquehanna Joint Declaration See Comerica Joint Declaration

143 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 13 of 30 Although this case was settled before significant merits discovery and before class certification, it has had the benefit of decisions by the court here and others in related litigation. The lawsuits in this MDL are at a mature stage; they have not been rushed to settlement for a quick fee award. 16. Consider finally one other factor that I believe should be examined in order to complete a thorough assessment of the fairness of this settlement: all settlement class members here will automatically receive their share of the settlement; they will not have to submit claim forms. See M&T Bank Settlement Agreement This feature of the settlement is very unusual in my experience (although, it is common in this MDL), and it is another reason to look favorably on the settlement. 17. For all these reasons, I believe this settlement is fair, adequate and reasonable. IV. Assessment of the reasonableness of the request for attorneys fees 18. This is a so-called common fund settlement, where the efforts by attorneys for the plaintiff have created a common fund for the benefit of class members, but, because this is a class action and there is no fee-shifting statute applicable, the attorneys can be compensated only from the fund they have created. At one time, courts that awarded fees in common fund class actions did so using the familiar lodestar approach. See Brian T. Fitzpatrick, Do Class Action Lawyers Make Too Little, 158 U. Pa. L. Rev. 2043, 2051 (2010) (hereinafter Class Action Lawyers ). Under this approach, courts awarded class counsel a fee equal to the number of hours they worked on the case (to the extent the hours were reasonable), multiplied by a reasonable hourly rate as well as by a discretionary multiplier that courts often based on the risk of non-recovery and other factors. See id. Over time, however, the lodestar approach fell out of favor in common fund class actions because it was difficult to calculate the lodestar (courts had 12

144 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 14 of 30 to review voluminous time records and the like) and the method did not align the interests of class counsel with the interests of the class (because class counsel s recovery did not depend on how much the class recovered). See id. at ; Camden I Condominium Ass n v. Dukle, 946 F.2d 768, (11th Cir. 1991). According to my empirical study, the lodestar method is now used to award fees in only a small percentage of class action cases. See Fitzpatrick, Empirical Study, supra, at 832 (finding the lodestar method used in only 12% of settlements). 19. Reflecting this trend, the Eleventh Circuit held in 1991 that courts should no longer use the lodestar method in common fund cases, and, instead, should use what is known as the percentage-of-the-fund method. See Camden I, 946 F.2d at 774 ( Henceforth in this circuit, attorneys fees awarded from a common fund shall be based upon a reasonable percentage of the fund.... ). Under this approach, courts select a percentage that they believe is fair to class counsel, multiply the settlement amount by that percentage, and then award class counsel the resulting product. The percentage-of-the-fund approach has the advantages of being easy to calculate (because courts need not review voluminous time records and the like) and of aligning the interests of class counsel with the interests of the class (because the more the class recovers, the more class counsel recovers). See Fitzpatrick, Class Action Lawyers, supra, at Courts usually examine a number of factors when deciding what percentage to award class counsel under the percentage-of-the-fund approach. See Fitzpatrick, Empirical Study, supra, at 832. In the Eleventh Circuit, courts use 25% as the bench mark percentage fee award and then adjust it upward or downward in accordance with the individual circumstances of each case. Camden I, 946 F.2d at 775. Although [t]he factors which will impact upon the appropriate percentage... in any particular case will undoubtedly vary, the Eleventh Circuit has identified sixteen factors that it has said may be appropriate[] or 13

145 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 15 of 30 pertinent to consider. Camden I, 946 F.2d at 775. These factors include [1] the time required to reach a settlement, [2] whether there are any substantial objections..., [3] any non-monetary benefits conferred upon the class..., and [4] the economics involved in prosecuting a class action, id., as well as the twelve factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, (5th Cir. 1974): [5] the time and labor required; [6] the novelty and difficulty of the questions involved; [7] the skill requisite to perform the legal service properly; [8] the preclusion of other employment by the attorney due to acceptance of the case; [9] the customary fee; [10] whether the fee is fixed or contingent; [11] time limitations imposed by the client or the circumstances; [12] the amount involved and the results obtained; [13] the experience, reputation, and ability of the attorneys; [14] the undesirability of the case; [15] the nature and length of the professional relationship with the client; [and] [16] awards in similar cases. Camden I, 946 F.2d at 772 n In this case, class counsel are seeking an award of fees equal to thirty percent (30%) of the $4 million cash settlement fund. In my opinion, the award requested here is within the range of reason because nearly all of the factors listed by the Eleventh Circuit in Camden I suggest that this percentage should exceed the 25% benchmark. 22. Consider first the factors that go to the fee awards in other cases: [9] the customary fee and [16] awards in similar cases. According to my empirical study, there were 35 class action cases in 2006 and 2007 in which district courts in the Eleventh Circuit used the percentage-of-the-fund method to award attorneys fees. See Fitzpatrick, Empirical Study, supra, at 836. The average fee awarded in these cases was 28.1% and the median fee awarded was 30%. 22 See id. These numbers are in line with the award requested here. Moreover, the 22 In their nationwide study of class action fees, Ted Eisenberg and Geoff Miller found mean and median fee awards in the Eleventh Circuit somewhat lower than those found in my study: 21% and 22%, respectively. See Theodore 14

146 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 16 of 30 award requested here is the same percentage this court has awarded in all of the other settlements approved to date in this MDL. See, e.g., In re Checking Account Overdraft Litigation, 830 F. Supp. 2d 1330, (S.D. Fla. 2011) (30%); Case v. Bank of Oklahoma, N.A., No. 1:11-cv JLK (S.D. Fla., Sep. 13, 2012) (same); Larsen et al. v. Union Bank, N.A., No. 1:09-cv JLK (S.D. Fla., Oct. 4, 2012) (same); Dee v. Bank of the West, N.A., No. l:10-cv JLK (S.D. Fla., Dec. 18, 2012) (same); Lopez v. JPMorgan Chase Bank, N.A., No. l:09-cv JLK (S.D. Fla., Dec. 19, 2012) (same); Duval v. Citizens Financial Group, Inc., No. 1:10- cv jlk (S.D. Fla., Mar. 12, 2013) (same); Mosser v. TD Bank, N.A., No. 10-cv JLK (S.D. Fla., Mar. 18, 2013) (same); Wolfgeher v. Commerce Bank, N.A., No. 1:10-cv JLK (S.D. Fla., Aug. 2, 2013) (same); Casayuran, et al. v. PNC Bank, N.A., No. 10-cv JLK (S.D. Fla., Aug. 5, 2013) (same); Anderson v. Compass Bank, No. 1:11-cv JLK (S.D. Fla., Aug. 7, 2013) (same). Indeed, there are many other decisions in class action cases from this district where the court awarded fees at or above the 30% requested here. See, e.g., Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006) (awarding fees of 31.33% on settlement of $1.06 billion). Finally, even when compared to fee awards outside the Eleventh Circuit, the fee requested in this case is within the range of other awards. According to my empirical study, the most common percentages awarded by federal courts nationwide using the percentage-of-the-fund method were 25%, 30%, and 33%, with nearly two-thirds of awards Eisenberg & Geoffrey P. Miller, Attorneys Fees and Expenses in Class Action Settlements: , 7 J. Empirical L. Stud. 248, 260 (2010). It should be noted, however, that their study was based on settlements dating back to 1993, and, as such, their data are older than mine. Moreover, their study examined only a fraction of the settlements over this period, and the fraction examined was not designed to be representative of the whole. See id. at 253 ( [O]ur data include only opinions that were published in some readily available form. Obviously, therefore, we have not included the full universe of cases.... [P]ublished opinions are not necessarily representative of the universe of all cases. ). Indeed, one of the reasons their study may have found lower numbers than mine is because it oversampled larger cases (where the fee percentages awarded are often smaller than in other cases). See Fitzpatrick, Empirical Study, supra, at 829 (discussing the unrepresentative sampling in the Eisenberg-Miller studies). 15

147 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 17 of 30 between 25% and 35%, and with a mean award of 25.4% and a median award of 25%. See Fitzpatrick, Empirical Study, at , 838. As such, these factors support the fee request here. 23. Consider next some of the factors that go to the results obtained by class counsel in light of the risks class counsel faced: [4] the economics involved in prosecuting a class action, [6] the novelty and difficulty of the questions involved, [10] whether the fee is fixed or contingent, [12] the amount involved and the results obtained, and [14] the undesirability of the case. All of these factors support exceeding the benchmark here. The novelty and difficulty of the issues involved created significant risks for class counsel; indeed, I believe these risks made this case less desirable than most class actions. As I explained above, class counsel faced serious questions whether the plaintiff and the class would be effectively foreclosed from recovering anything at all in light of M&T Bank s arbitration clause, let alone questions whether their claims would fail in light of any federal preemption and state law defenses. Moreover, despite these risks, this case, like virtually all consumer class actions, was undertaken on a contingency basis. That is, class counsel devoted a significant amount of time in this case over the past five years without receiving any compensation. Given their work and the results achieved, it is time that they be compensated appropriately. As such, these factors, too, weigh in favor of their fee request. 24. Consider finally the other Camden factors. Two of these factors are inapplicable here (at least as of yet) [2] whether there are any substantial objections and [3] any nonmonetary benefits conferred upon the class but the other remaining factors look favorably on the fee award requested here. Two of these factors go to the time it took to litigate and settle these lawsuits: [1] the time required to reach a settlement and [5] the time and labor required. These factors support the award requested here because, not only have these lawsuits 16

148 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 18 of 30 transpired for five years, but, as I noted above, this is a mature litigation, and the settlement values of the cases in this MDL have become fairly well established. The other factors go to the skills of class counsel and their relationship with the plaintiffs: [7] the skill requisite to perform the legal service properly, [8] the preclusion of other employment by the attorney due to acceptance of the case, [11] time limitations imposed by the client or the circumstances, [13] the experience, reputation, and ability of the attorneys, and [15] the nature and length of the professional relationship with the client. Although I was not privy to the attorney-client relationships here, I can say that class counsel count among their number some of the most experienced and highly regarded lawyers in the United States. These are not mere benchmark lawyers. Indeed, had class counsel not been so talented, I doubt the class would have recovered the compensation that is provided in this settlement. 25. For all these reasons, I believe the fee award requested here is within the range of reason. 26. My compensation in this matter is $595 per hour plus expenses. Nashville, TN January 7, 2015 Brian T. Fitzpatrick 17

149 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 19 of 30 Appendix 1

150 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 20 of 30 BRIAN T. FITZPATRICK Vanderbilt University Law School st Avenue South Nashville, TN (615) ACADEMIC APPOINTMENTS VANDERBILT UNIVERSITY LAW SCHOOL, Professor, August 2012 to present! Associate Professor, ; Assistant Professor, ! Classes: Civil Procedure, Federal Courts, Complex Litigation! Hall-Hartman Outstanding Professor Award, ! Vanderbilt s Association of American Law Schools Teacher of the Year, 2009 EDUCATION HARVARD LAW SCHOOL, J.D., magna cum laude, 2000! Fay Diploma (for graduating first in the class)! Sears Prize, 1999 (for highest grades in the second year)! Harvard Law Review, Articles Committee, ; Editor, ! Harvard Journal of Law & Public Policy, Senior Editor, ; Editor, ! Research Assistant, David Shapiro, 1999; Steven Shavell, 1999 UNIVERSITY OF NOTRE DAME, B.S., Chemical Engineering, summa cum laude, 1997! First runner-up to Valedictorian (GPA: 3.97/4.0)! Steiner Prize, 1997 (for overall achievement in the College of Engineering) CLERKSHIPS HON. ANTONIN SCALIA, Supreme Court of the United States, HON. DIARMUID O SCANNLAIN, U.S. Court of Appeals for the Ninth Circuit, EXPERIENCE NEW YORK UNIVERSITY SCHOOL OF LAW, Feb to June 2007 John M. Olin Fellow HON. JOHN CORNYN, United States Senate, July 2005 to Jan Special Counsel for Supreme Court Nominations SIDLEY AUSTIN LLP, Washington, DC, 2002 to 2005 Litigation Associate

151 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 21 of 30 ACADEMIC ARTICLES The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 VA. L. REV. 839 (2012) Twombly and Iqbal Reconsidered, 87 NOTRE DAME L. REV (2012) An Empirical Study of Class Action Settlements and their Fee Awards, 7 J. EMPIRICAL L. STUD. 811 (2010) (selected for the 2009 Conference on Empirical Legal Studies) Do Class Action Lawyers Make Too Little?, 158 U. PA. L. REV (2010) Originalism and Summary Judgment, 71 OHIO ST. L.J. 919 (2010) The End of Objector Blackmail?, 62 VAND. L. REV (2009) (selected for the 2009 Stanford- Yale Junior Faculty Forum) The Politics of Merit Selection, 74 MISSOURI L. REV. 675 (2009) Errors, Omissions, and the Tennessee Plan, 39 U. MEMPHIS L. REV. 85 (2008) Election by Appointment: The Tennessee Plan Reconsidered, 75 TENN. L. REV. 473 (2008) Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 MICH. J. RACE & LAW 277 (2007) BOOK CHAPTERS Civil Procedure in the Roberts Court in BUSINESS AND THE ROBERTS COURT (Jonathan Adler, ed., Oxford University Press, forthcoming 2014) ACADEMIC PRESENTATIONS Is the Future of Affirmative Action Race Neutral?, Conference on A Nation of Widening Opportunities: The Civil Rights Act at 50, University of Michigan Law School (Oct. 11, 2013) The Mass Tort Bankruptcy: A Pre-History, The Public Life of the Private Law: A Conference in Honor of Richard A. Nagareda, Vanderbilt Law School (Sep. 28, 2013) (panelist) Rights & Obligations in Alternative Litigation Financing and Fee Awards in Securities Class Actions, Conference on the Economics of Aggregate Litigation, Institute for Law & Economic Policy, Naples, Florida (Apr. 12, 2013) (panelist) The End of Class Actions?, Symposium on Class Action Reform, University of Michigan Law School (Mar. 16, 2013)

152 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 22 of 30 Toward a More Lawyer-Centric Class Action?, Symposium on Lawyering for Groups, Stein Center for Law & Ethics, Fordham Law School (Nov. 30, 2012) The Problem: AT & T as It Is Unfolding, Conference on AT & T Mobility v. Concepcion, Cardozo Law School (Apr. 26, 2012) (panelist) Standing under the Statements and Accounts Clause, Conference on Representation without Accountability, Corporate Law Center, Fordham Law School (Jan. 23, 2012) The End of Class Actions?, Washington University Law School (Dec. 9, 2011) Book Preview Roundtable: Accelerating Democracy: Matching Social Governance to Technological Change, Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law (Sep , 2011) (participant) Is Summary Judgment Unconstitutional? Some Thoughts About Originalism, Stanford Law School (Mar. 3, 2011) The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, Northwestern Law School (Feb. 25, 2011) The New Politics of Iowa Judicial Retention Elections: Examining the 2010 Campaign and Vote, University of Iowa Law School (Feb. 3, 2011) (panelist) The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, Washington University Law School (Oct. 1, 2010) Twombly and Iqbal Reconsidered, Symposium on Business Law and Regulation in the Roberts Court, Case Western Reserve Law School (Sep. 17, 2010) Do Class Action Lawyers Make Too Little?, Institute for Law & Economic Policy, Providenciales, Turks & Caicos (Apr. 23, 2010) Originalism and Summary Judgment, Georgetown Law School (Apr. 5, 2010) Theorizing Fee Awards in Class Action Litigation, Washington University Law School (Dec. 11, 2009) An Empirical Study of Class Action Settlements and their Fee Awards, 2009 Conference on Empirical Legal Studies, University of Southern California Law School (Nov. 20, 2009) Originalism and Summary Judgment, Symposium on Originalism and the Jury, Ohio State Law School (Nov. 17, 2009) An Empirical Study of Class Action Settlements and their Fee Awards, 2009 Meeting of the Midwestern Law and Economics Association, University of Notre Dame Law School (Oct. 10, 2009)

153 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 23 of 30 The End of Objector Blackmail?, Stanford-Yale Junior Faculty Forum, Stanford Law School (May 29, 2009) An Empirical Study of Class Action Settlements and their Fee Awards, University of Minnesota School of Law (Mar. 12, 2009) The Politics of Merit Selection, Symposium on State Judicial Selection and Retention Systems, University of Missouri Law School (Feb. 27, 2009) The End of Objector Blackmail?, Searle Center Research Symposium on the Empirical Studies of Civil Liability, Northwestern University School of Law (Oct. 9, 2008) Alternatives To Affirmative Action After The Michigan Civil Rights Initiative, University of Michigan School of Law (Apr. 3, 2007) (panelist) OTHER PUBLICATIONS Public Needs Voice in Judicial Process, THE TENNESSEAN (June 28, 2013) Did the Supreme Court Just Kill the Class Action?, THE QUARTERLY JOURNAL (April 2012) Let General Assembly Confirm Judicial Selections, CHATTANOOGA TIMES FREE PRESS (Feb. 19, 2012) Tennessee Plan Needs Revisions, THE TENNESSEAN (Feb. 3, 2012) How Does Your State Select Its Judges?, INSIDE ALEC 9 (March 2011) (with Stephen Ware) On the Merits of Merit Selection, THE ADVOCATE 67 (Winter 2010) Supreme Court Case Could End Class Action Suits, SAN FRANCISCO CHRONICLE (Nov. 7, 2010) Kagan is an Intellect Capable of Serving Court, THE TENNESSEAN (Jun. 13, 2010) Confirmation Kabuki Does No Justice, POLITICO (July 20, 2009) Selection by Governor may be Best Judicial Option, THE TENNESSEAN (Apr. 27, 2009) Verdict on Tennessee Plan May Require a Jury, THE MEMPHIS COMMERCIAL APPEAL (Apr. 16, 2008) Tennessee s Plan to Appoint Judges Takes Power Away from the Public, THE TENNESSEAN (Mar. 14, 2008) Process of Picking Judges Broken, CHATTANOOGA TIMES FREE PRESS (Feb. 27, 2008)

154 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 24 of 30 Disorder in the Court, LOS ANGELES TIMES (Jul. 11, 2007) Scalia s Mistake, NATIONAL LAW JOURNAL (Apr. 24, 2006) GM Backs Its Bottom Line, DETROIT FREE PRESS (Mar. 19, 2003) Good for GM, Bad for Racial Fairness, LOS ANGELES TIMES (Mar. 18, 2003) 10 Percent Fraud, WASHINGTON TIMES (Nov. 15, 2002) OTHER PRESENTATIONS Judicial Selection in Historical and National Perspective, Committee on the Judiciary, Kansas Senate (Jan. 16, 2013) The Practice that Never Sleeps: What s Happened to, and What s Next for, Class Actions, ABA Annual Meeting, Chicago, IL (Aug. 3, 2012) (panelist) Life as a Supreme Court Law Clerk and Views on the Health Care Debate, Exchange Club of Nashville (Apr. 3, 2012) The Tennessee Judicial Selection Process Shaping Our Future, Tennessee Bar Association Leadership Law Retreat, Dickson, TN (Feb. 3, 2012) (panelist) Reexamining the Class Action Practice, ABA National Institute on Class Actions, New York, NY (Oct. 14, 2011) (panelist) Judicial Selection in Kansas, Committee on the Judiciary, Kansas House of Representatives (Feb. 16, 2011) Judicial Selection and the Tennessee Constitution, Civil Practice and Procedure Subcommittee, Tennessee House of Representatives (Mar. 24, 2009) What Would Happen if the Judicial Selection and Evaluation Commissions Sunset?, Civil Practice and Procedure Subcommittee, Tennessee House of Representatives (Feb. 24, 2009) Judicial Selection in Tennessee, Chattanooga Bar Association, Chattanooga, TN (Feb. 27, 2008) (panelist) Ethical Implications of Tennessee s Judicial Selection Process, Tennessee Bar Association, Nashville, TN (Dec. 12, 2007)

155 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 25 of 30 Appendix 2

156 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 26 of 30 Documents Reviewed: Omnibus Motion to Dismiss and/or For Judgment On the Pleadings and Incorporated Memorandum of Law in In Re: Checking Account Overdraft Litigation, No. 1:09-MD JLK (S.D.Fla.) (document 217, entered 12/22/09) Plaintiffs Memorandum in Opposition to Defendants Omnibus Motion to Dismiss and/or For Judgments on the Pleadings in In Re: Checking Account Overdraft Litigation (document 265, entered 2/5/10) Order Ruling on Omnibus Motion to Dismiss in In Re: Checking Account Overdraft Litigation (document 305, entered 3/11/10) ( Omnibus Motion to Dismiss Order ) Motion to Clarify Court s March 11, 2010 Order Ruling on Omnibus Motion to Dismiss and/or For Judgment on the Pleadings and Incorporated Memorandum of Law in In Re: Checking Account Overdraft Litigation (document 325, entered 4/5/10) Omnibus Order Denying Defendants Motions for Reconsideration in In Re: Checking Account Overdraft Litigation (document 1725, entered 7/13/11) ( Omnibus Order Denying Reconsideration ) Order Granting Defendant s Second Renewed Motion to Compel Arbitration and Dismiss Litigation in Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank (document 3582, entered 8/6/13) Plaintiff s and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class and Incorporated Memorandum of Law in Given, including the Settlement Agreement and Release attached as Exhibit A thereto ( M&T Bank Settlement Agreement ) (document 3992, entered 10/17/14)

157 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 27 of 30 Joint Declaration of Robert C. Gilbert, E. Adam Webb, and Nicholas A. Carlin in Support of Plaintiff s and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in Given (document , entered 10/17/14) Joint Declaration of Robert C. Gilbert, E. Adam Webb, and Nicholas A. Carlin in Support of Plaintiff s and Class Counsel s Motion for Final Approval of Class Settlement, and Application for Service Award, Attorneys Fees and Expenses in Given ( M&T Bank Joint Declaration ) (filed herewith) Joint Declaration of Robert C. Gilbert and Michael W. Sobol in Support of Plaintiffs Motion for Final Approval of Settlement, Application for Service Awards, and Class Counsel s Application for Attorney s Fees in Tornes, et al., v. Bank of America and related cases ( Bank of America Joint Declaration ) (document , entered 9/16/11) Joint Declaration of Robert C. Gilbert, Michael W. Sobol, Jeffrey M. Ostrow, and Elaine Ryan in Support of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement and Certification of Settlement Class in Dee v. Bank of the West and related cases ( Bank of the West Joint Declaration ) (document , entered 7/11/12) Joint Declaration of Robert C. Gilbert, Hassan Zavareei, Jeffrey M. Ostrow, and Burton Finkelstein in Terry Case v. Bank of Oklahoma ( Bank of Oklahoma Joint Declaration ) (document , entered 7/16/12) Joint Declaration of Robert C. Gilbert and Jeffrey M. Ostrow in Support of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement and for Certification

158 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 28 of 30 of Settlement Class in Harris v. Associated Bank, N.A. ( Associated Bank Joint Declaration ) (document , entered 7/24/12) Joint Declaration of Robert C. Gilbert and Michael W. Sobol in Support of Plaintiffs Motion for Final Approval of Settlement, Application for Service Awards, and Class Counsel s Application for Attorney s Fees and Expenses in Larsen v. Union Bank, N.A. ( Union Bank Joint Declaration ) (document , entered 7/30/12) Joint Declaration of Robert C. Gilbert and Jeffrey M. Ostrow in Support of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement and For Certification of Settlement Class in Wolfgeher v. Commerce Bank, N.A. ( Commerce Bank Joint Declaration ) (document , entered 8/14/12) Joint Declaration of Robert C. Gilbert and Jeffrey M. Ostrow in Support of Plaintiff s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in McKinley v. Great Western Bank ( Great Western Joint Declaration ) (document , entered 8/27/12) Joint Declaration of Aaron S. Podhurst, Robert C. Gilbert, and Ted Trief in Support of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement and For Certification of Settlement Class in Duval v. Citizens Financial Group, Inc. and related cases ( Citizens Financial Joint Declaration ) (document , entered 9/18/12) Joint Declaration of Robert C. Gilbert and Peter Prieto in Support of Plaintiffs and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and Certification of Settlement Class in Mosser v. TD Bank, N.A. and related cases ( TD Bank Joint Declaration ) (document , entered 9/18/12)

159 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 29 of 30 Joint Declaration of Robert C. Gilbert and Jeffrey M. Ostrow in Support of Plaintiffs and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in Blahut v. Harris Bank, N.A. ( Harris Bank Joint Declaration ) (document , entered 10/1/12) Joint Declaration of Robert C. Gilbert and Jeffrey M. Ostrow in Support of Plaintiffs and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in Eno v. M&I Marshall & Ilsley Bank ( M&I Joint Declaration ) (document , entered 10/1/12) Joint Declaration of Aaron S. Podhurst, Bruce S. Rogow, Robert C. Gilbert, Russell Budd, and Richard Golomb in Support of Plaintiffs and Class Counsel s Motion for Final Approval of Settlement, and Application for Service Awards, Attorneys Fees and Expenses in Luquetta v. JPMorgan Chase Bank, N.A., and related cases ( Chase Joint Declaration ) (document , entered 10/15/12) Joint Declaration of Aaron S. Podhurst, Robert C. Gilbert and E. Adam Webb in Support of Plaintiffs and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in Casayuran, et al. v. PNC Bank, N.A., and related cases ( PNC Joint Declaration ) (document , entered 1/3/13) Joint Declaration of Robert C. Gilbert, G. Franklin Lemond, Jr., and Lawrence D. Goodman in Support of Plaintiff s and Class Counsel s Motion for Final Approval of Class Settlement and Application for Service Award, Attorneys Fees and Expenses in Anderson v. Compass Bank ( Compass Joint Declaration ) (document , entered 5/16/13)

160 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 30 of 30 Joint Declaration of Aaron S. Podhurst, Bruce S. Rogow, and Robert C. Gilbert in Support of Plaintiffs and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in Waters, et al. v. U.S. Bank, N.A., and related cases ( U.S. Bank Joint Declaration ) (document , entered 7/24/13) Joint Declaration of Robert C. Gilbert and Jeffrey M. Ostrow in Support of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement and for Certification of Settlement Class in Mello v. Susquehanna Bank ( Susquehanna Joint Declaration ) (document , entered 11/7/13) Joint Declaration of Robert C. Gilbert, Russell W. Budd and Joseph G. Sauder in Support of Plaintiffs and Class Counsel s Unopposed Motion for Preliminary Approval of Class Settlement and Certification of Settlement Class in Simmons v. Comerica ( Comerica Joint Declaration ) (document , entered 11/14/13)

161 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 1 of 71 EXHIBIT D

162 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 2 of 71 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE No. 1:09-MD JLK IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No THIS DOCUMENT RELATES TO: SECOND TRANCHE ACTION Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank S.D. Fla. Case No.: 1-10-CV JLK D.Md. Case No. 1:09-cv WDQ AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM I, CAMERON R. AZARI, ESQ., hereby declare as follows: 1. My name is Cameron R. Azari, Esq. I have personal knowledge of the matters set forth herein, and I believe them to be true and correct. 2. I am the Director of Legal Notice for Hilsoft Notifications; a firm that specializes in designing, developing, analyzing and implementing large-scale, un-biased, legal notification plans. Hilsoft is a business unit of Epiq Systems Class Action and Claims Solutions ( ECA ). 3. Hilsoft has been involved with some of the most complex and significant notices and notice programs in recent history. We have been recognized by courts for our testimony as to which method of notification is appropriate for a given case, and we have provided testimony on AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM

163 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 3 of 71 numerous occasions on whether a certain method of notice represents the best notice practicable under the circumstances. Hilsoft s CV is included as Attachment 1. For example: a. In re: Checking Account Overdraft Litigation (Comerica Bank), MDL No. 2036, S.D. Fla. (overdraft litigation settlement; individual notification reached 1 approximately 93% of settlement class members; granted final approval); b. In re: Checking Account Overdraft Litigation (Susquehanna Bank), MDL No. 2036, S.D. Fla. (overdraft litigation settlement; individual notification reached approximately 88% of settlement class members; granted final approval); c. In re: Checking Account Overdraft Litigation (M&I Bank), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 97.5% of settlement class members; granted final approval); d. In re: Checking Account Overdraft Litigation (Compass Bank, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 88.7% of settlement class members; granted final approval); e. In re: Checking Account Overdraft Litigation (Associated, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 95% of settlement class members; granted final approval); f. In re: Checking Account Overdraft Litigation (Harris Bank, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 97% of settlement class members; granted final approval); g. In re: Checking Account Overdraft Litigation (Commerce, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 99% of settlement class members; granted final approval); h. In re: Checking Account Overdraft Litigation (TD Bank, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 90.5% of settlement class members; granted final approval); 1 Reach is defined as the percentage of a class exposed to a notice, net of any duplication among people who may have been exposed more than once. Notice exposure is defined as the opportunity to view a notice. The average frequency of notice exposure is the average number of times that those reached by a notice would be exposed to a notice. AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 2

164 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 4 of 71 i. In re: Checking Account Overdraft Litigation (RBS Citizens Bank, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 86% of settlement class members; granted final approval); j. In re: Checking Account Overdraft Litigation (Bank of Oklahoma, N.A.), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 89% of settlement class members; granted final approval); k. In re: Checking Account Overdraft Litigation (IBERIABANK), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification reached approximately 97%; granted final approval); l. Schulte v. Fifth Third Bank, No. 09-CV-06655, N.D. Ill. (overdraft litigation settlement; individual notification reached approximately 89.7% of the class; granted final approval); m. Trombley v. National City Bank, No. 1:10-CV-00232, D.D.C. (overdraft litigation settlement; individual notification reached approximately 93.3% of the class; granted final approval); n. Mathena v. Webster Bank, N.A., No. 3:10-cv-01448, D. Conn. (overdraft litigation settlement; individual notification reached approximately 97.6% of the class; granted final approval); o. In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL No E.D. Ny. ($6.05 billion settlement reached by Visa and MasterCard. The extensive notice program involved over 19.8 million direct mail notices, insertions in over 1,500 newspapers, consumer magazines, national business publications, trade & specialty publications and language & ethnic targeted publications, as well as a case website in eight languages and banner notices, which generated more than 770 million adult impressions; granted final approval ); and p. In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, MDL 2179 E.D. La. (dual landmark settlement notice programs to separate Economic and Property Damages and Medical Benefits settlement classes. Notice effort included over 7,900 television spots, over 5,200 radio spots and over 5,400 print insertions and reached over 95% of Gulf Coast residents; granted final approval). AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 3

165 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 5 of In the case resolved by this settlement, Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank; S.D. Fla. Case No.: 1-10-CV JLK and D.Md. Case No. 1:09- cv wdq, my colleagues and I were asked to design the Notices (or Notice ) and a Notice Program (or Notice Plan ) to inform Settlement Class Members about their rights under the proposed class action settlement. 5. On October 20, 2014, the Court appointed ECA as the Settlement Administrator. The Court also approved the Notice Program and the proposed forms of Notice. With the Court s approval, and according to the Order Preliminarily Approving Class Settlement and Certifying Settlement Class (the Order ), Hilsoft began implementing each element of the Notice Plan. 6. This affidavit will detail the successful implementation of the Notice Program and document the completion of all of the notice activities. The report will also discuss the administration activity to date, with updated administration statistics to be provided by the parties in advance of the March 4, 2015, Final Approval Hearing. The facts in this report are based on information provided to me by colleagues from Hilsoft Notifications and ECA. SUMMARY OF CONCLUSIONS 7. The Notice Program we designed and implemented achieved each of the planned objectives: a. Names and direct contact information for virtually all members of the Settlement Class were identified from M&T Bank s records. 2 Individual Notice was sent to virtually all members of the Settlement Class. 2 M&T Bank was able to match Class member names and addresses with all but 15 accounts included in the Settlement Class. AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 4

166 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 6 of 71 b. The individual Notice reached approximately 97% of the Settlement Class. c. Not reflected in this reach calculation is the publication of a Summary Publication Notice in mainstream newspapers to reach those for whom the Individual Notice was ultimately undeliverable, giving them an opportunity to decide whether to object or opt-out. d. Each person reached had an opportunity to view a Notice, with an adequate amount of time prior to the Final Approval Hearing to make appropriate decisions such as whether to object or opt-out. e. The Notices were designed to be noticeable, clear, simple, substantive, and informative. No significant or required information was missing. f. The program was consistent with other notice programs we have designed and implemented for similar settlements that have received final approval. g. The Notice Plan was developed with the active participation of both Settlement Class Counsel and counsel for M&T Bank. 8. In my view, the Notice Plan provided reasonable notice of the commencement of the class action in this case in such manner as the court directed, and satisfied due process, including its desire to actually inform requirement This affidavit will detail the notice activities undertaken and explain how and why the settlement Notice Plan was comprehensive, well suited to the Settlement Class and more than adequate to satisfy state rules and due process obligations. 3 But when notice is a person s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected... Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 5

167 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 7 of 71 NOTICE PLAN IMPLEMENTATION 10. The Order defines the Settlement Class as consisting of All M&T Bank customers in the United States who had one or more Accounts and who, during the Class Period, incurred one or more Overdraft Fees as a result of M&T Bank's High to Low posting. Excluded from the Class are all current M&T Bank employees, officers and directors, and the judge presiding over this Action. 11. I have reviewed the Order and Settlement Agreement and I fully understand the defined terms used in the definition of the Settlement Class and subsequent defined terms. Account means any consumer checking, demand deposit, money market or savings account maintained by M&T Bank in the United States that may be accessed by a Debit Card. Account does not include Health Savings Accounts. Overdraft Fee means any fee incurred by a holder of an Account resulting from an item or other debit transaction posting against insufficient funds, including extended overdraft fees. Fees charged to transfer balances from other accounts are excluded. Debit Card means a card or other access device issued or provided by M&T Bank, including a debit card, check card or automated teller machine ( ATM ) card, as well as any card number, card data or other card information associated with any such card that can be used to access and debit funds from an Account to conduct Point of Sale, ATM or other electronic fund transfer transactions. Individual Notice 12. M&T Bank was able to identify names and direct contact information for virtually the entire Settlement Class. 13. On November 26, 2014, ECA received from M&T Bank one data file containing information relating to Settlement Class Members Accounts. The file contained 511,874 AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 6

168 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 8 of 71 records for 192,908 open accounts and 318,966 closed accounts. ECA identified all account holders with multiple Accounts. Subsequently, on December 15, 2014, ECA received updates for 14 accounts. 14. ECA confirms that prior to the initial mailing of the Summary Postcard Notice; postal mailing addresses were checked against the National Change of Address ( NCOA ) database maintained by the United States Postal Service ( USPS ), which contains records of all reported permanent moves for the past four years. Any addresses that were returned by NCOA as invalid were updated through a third-party address search service prior to mailing. In addition, the addresses were certified via the Coding Accuracy Support System ( CASS ) to ensure the quality of the zip code, and verified through the Delivery Point Validation ( DPV ) to verify the accuracy of the addresses. This address updating process is standard for the industry and for the majority of promotional mailings that occur today. 15. On December 19, 2014, ECA sent 497,902 Summary Postcard Notices by USPS First Class Mail to potential Settlement Class Members. Each notice was a two image 4.25 x 5.5 Summary Postcard Notice. 16. In total, ECA received information for 511,874 eligible accounts and mailed postcard notices to 497,902 unique account holders. A copy of the Summary Postcard Notice is included as Attachment The return address on the Summary Postcard Notice is a post office box maintained by ECA. As of January 2, 2015, ECA has r ed 1,529 Summary Postcard Notices primarily for addresses that were corrected through the USPS. Additionally, an extra search for different addresses using a third-party lookup service ( ALLFIND, maintained by LexisNexis) for undeliverable Summary Postcard Notices is ongoing and will be continued AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 7

169 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 9 of 71 through the Fairness Hearing. As of January 2, 2015, 13,472 mailings remain un-delivered. The Summary Postcard Notices are estimated to have reached approximately 97% of the Settlement Class. 18. Settlement Class Members may download a copy of the Long Form Notice at the settlement website or request one via the toll-free number. 19. A copy of the Long Form Notice is included as Attachment 3. Publication Notice 20. According to the Federal Deposit Insurance Corporation, M&T Bank (FDIC Certificate Number 588) had 739 offices with reported deposits in 10 states as of June 30, To guide the media selection, M&T Bank s branch offices were analyzed by county and DMA. DMA or Designated Market Area is a term used by Nielsen, a global media research company, to identify an exclusive geographic area of counties in which the home market television stations hold a dominance of total hours viewed. There are 210 DMA s in the US The selected newspaper in each DMA was either the highest circulation daily newspaper published in the DMA and/or a newspaper that was more likely to be read by members of the Settlement Class based on the geographic distribution of M&T Bank s branches in the DMA. These 13 DMA s included 717 M&T Bank branch offices or 97.29% of total branches with reported deposits. 22. An approximate quarter-page Summary Publication Notice (approximately 3 col x 10.5 ) appeared once in a weekday edition in the major daily newspaper in 13 selected media markets covering the media markets with the highest number of M&T Bank s branch offices. The 13 total newspapers have a combined daily circulation of approximately 1.7 million. 4 FDIC Summary of Deposits as of June 30, 2013, FDIC Certificate Number Nielsen Media Research, Glossary of Media Terms, AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 8

170 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 10 of 71 Positioning was sought in the main news section of each newspaper to enhance readership. The newspaper insertion dates and positioning are indicated below: DMA Branch Office Coverage M&T Bank s Offices Newspaper City/State Issue Date Page Position Albany- Albany 14 Albany Times Union Schenectady-Troy 12/23/14 A4 Baltimore 114 Baltimore Sun Baltimore 12/23/14 3 Binghamton 18 Binghamton Press & Sun- Bulletin Binghamton 12/23/14 5C Buffalo 80 Buffalo News Buffalo 12/23/14 A9 Lancaster 80 Intelligencer Journal/Lancaster New Era Harrisburg-Lncstr- Leb-York 12/23/14 A6 Johnstown 22 Johnstown Tribune-Democrat Johnstown-Altoona 12/23/14 A5 New York 66 New York Times New York, NY 12/23/14 A23 Philadelphia 74 Philadelphia Inquirer Philadelphia 12/23/14 A3 Rochester 34 Rochester Democrat & Chronicle Rochester, NY 12/23/14 4A Salisbury 22 Salisbury Daily Times Salisbury 12/23/14 A6 Scranton 52 Scranton Times-Tribune Wilkes Barre- Scranton 12/23/14 A4 Syracuse 43 Syracuse Post-Standard Syracuse 12/23/14 B2 Washington, DC 98 Washington Post Washington, DC 12/23/14 A13 TOTAL A copy of the Summary Publication Notice is included as Attachment Copies of the tear sheets for each insertion in each publication are included as Attachment 5. Case Website 25. The case website, went live on December 19, The website address was displayed prominently in all notice documents. By visiting this website, members of the Settlement Class can view additional information about the settlement, including: the Complaint, Preliminary Approval Order, Settlement Agreement, Long Form Notice and a list of Frequently Asked Questions. AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 9

171 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 11 of As of January 2, 2015, there have been 8,204 website visitor sessions, with 13,950 page views. Toll Free Number 27. On December 19, 2014, the toll free number ( ), set up and hosted by ECA, became operational. By calling this number, members of the Settlement Class can listen to answers to frequently asked questions and request a copy of the Long Form Notice be mailed to them. This automated system is available 24 hours per day, 7 days per week. As of January 2, 2015, the toll free number has handled 3,370 calls representing 8,113 minutes of use. Exclusions and Objections 28. As of January 2, 2015, ECA has received two requests for exclusion from the Settlement Class. As of January 2, 2015, I am aware of no objections to the Settlement. After the January 28, 2015 exclusion request and objection deadline passes, ECA will prepare a complete report of all timely exclusion requests and objections received prior to the March 4, 2015 Final Approval Hearing. PERFORMANCE AND DESIGN OF NOTICE PROGRAM 29. Objectives were met. The primary objective of this settlement notice effort was to effectively reach the greatest practicable number of Settlement Class members with a noticeable Notice of the settlement, and provide them with every reasonable opportunity to understand that their legal rights were affected, including the right to be heard, to object or to exclude themselves, if they so choose. These efforts were successful. 30. The Notice reached Settlement Class Members effectively. Our calculations indicate that the Summary Postcard Notice reached approximately 97% of the Settlement Class. In my experience, this reach percentage exceeds that achieved in many other court-approved AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 10

172 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 12 of 71 settlement notice programs. I can confidently state that the Settlement Class was adequately reached. 31. Plenty of time and opportunity to react to Notices. The initial mailing of notices was completed on December 19, 2014, which allows an adequate amount of time for members of the Settlement Class to see the Notice and respond accordingly before the January 28, 2015 exclusion and objection deadlines. With approximately 40 days from the completion of the initial Notice mailing until the exclusion and objection deadlines, members of the Settlement Class were allotted adequate time to act on their rights. 32. Notices were designed to increase noticeability and comprehension. Because mailing recipients are accustomed to receiving junk mail, which they may be inclined to discard unread, the program called for steps to bring the Notice to the attention of the Settlement Class. Once people noticed the Notices, it was critical that they could understand them. As such, the Notices, as produced, were clearly worded with simple, plain language text to encourage readership and comprehension. The design of the Notices followed the principles embodied in the Federal Judicial Center s illustrative model notices posted at The Summary Postcard Notice featured a prominent headline ( If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. ) in bold text. The headline alerts recipients that the Notice is an important document authorized by a court and that the content may affect them, thereby supplying reasons to read the Notice. 34. We drafted a Long Form Notice that provided more information to the Settlement Class. The Long Form Notice began with a summary page providing a concise overview of the important information and Settlement Class members key options. It contained a prominent AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 11

173 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 13 of 71 focus on the options that Settlement Class members have, using a straightforward table design, and included details about the Settlement, such as who is affected, and their rights. A table of contents, categorized into logical sections, helped to organize the information, while a question and answer format made it easy to find answers to common questions by breaking the information into simple headings and brief paragraphs. CONCLUSIONS 35. The notice effort reached approximately 97% of the Settlement Class through the individual Summary Postcard Notice efforts alone. Many courts have accepted and understood, based on evidence we provided, that a 75 or 80 percent reach is more than adequate under the circumstances of analogous cases. Here we were able to exceed that. This reach indicates that the mailed notice effort was highly successful in providing direct notice to the Settlement Class. 36. In preparing the Notices, we employed communication methods that are well established in our field, and eschewed the idea of producing old-fashioned, case-captioned, lengthy, legalistic notice documents. 37. We have provided evidence that the notice effort sufficiently reached the vast majority of the Settlement Class, and we have prepared notice documents that adequately informed them of the class action, properly described their rights, and clearly conformed to the high standards for modern notice programs. In designing our notice programs, we truly desire to adequately inform the class, and my colleagues and I designed and implemented a program that effectively accomplished this. 38. In my expert opinion, the Notice Program comported with Federal Rule of Civil Procedure 23, and also the guidance for effective notice articulated in the FJC s Manual for Complex Litigation, 4 th Edition. AFFIDAVIT OF CAMERON R. AZARI, ESQ., ON IMPLEMENTATION AND ADEQUACY OF SETTLEMENT NOTICE PROGRAM 12

174 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 14 of 71

175 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 15 of 71 Attachment 1

176 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 16 of 71 Hilsoft Notifications is a leading provider of legal notice services for large-scale class action and bankruptcy matters. We specialize in providing quality, expert notice plan development designing notice programs that satisfy due process requirements and withstand judicial scrutiny. For more than 18 years, Hilsoft Notifications notice plans have been approved and upheld by courts. Hilsoft Notifications has been retained by defendants and/or plaintiffs on more than 300 cases, including 30 MDL cases, with notices appearing in more than 53 languages and in almost every country, territory and dependency in the world. Case examples include: Landmark $6.05 billion settlement reached by Visa and MasterCard. The intensive notice program involved over 19.8 million direct mail notices to class members together with insertions in over 1,500 newspapers, consumer magazines, national business publications, trade & specialty publications, and language & ethnic targeted publications. Hilsoft also implemented an extensive online notice campaign with banner notices, which generated more than 770 million adult impressions, a case website in eight languages, and acquisition of sponsored search listings to facilitate locating the website. In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL No (E.D.N.Y.). BP s $7.8 billion settlement of claims related to the Deepwater Horizon oil spill emerged from possibly the most complex class action in U.S. history. Hilsoft Notifications drafted and opined on all forms of notice. The 2012 notice program designed by Hilsoft reached at least 95% Gulf Coast region adults via television, radio, newspapers, consumer publications, trade journals, digital media and individual notice. In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, MDL No (E.D. La.). Overdraft fee class actions have been brought against nearly every major U.S. commercial bank. For related settlements, Hilsoft Notifications has developed programs that integrate individual notice and paid media efforts. PNC, Citizens, TD Bank, Fifth Third, Harris Bank and M&I are among the nearly 20 banks that have retained Hilsoft. In re: Checking Account Overdraft Litigation, MDL No (S.D. Fla.). Possibly the largest data breach in U.S. history with approximately 130 million credit and debit card numbers stolen. In re Heartland Data Security Breach Litigation, MDL No (S.D. Tex.). Largest and most complex class action in Canadian history. Designed and implemented groundbreaking notice to disparate, remote aboriginal people in the multi-billion dollar settlement. In re Residential Schools Class Action Litigation, 00-CV CPA (Ont. Super. Ct.). Extensive point of sale notice program of a settlement providing payments up to $100,000 related to Chinese drywall 100 million notices distributed to Lowe s purchasers during a six-week period. Vereen v. Lowe s Home Centers, SU10-CV-2267B (Ga. Super. Ct.). Largest discretionary class action notice campaign involving virtually every adult in the U.S. for the settlement. In re Trans Union Corp. Privacy Litigation, MDL No (N.D. Ill.). Most complex national data theft class action settlement involving millions of class members. Lockwood v. Certegy Check Services, Inc., 8:07-cv-1434-T-23TGW (M.D. Fla.). PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA T INFO@HILSOFT.COM

177 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 17 of 71 Largest combined U.S. and Canadian retail consumer security breach notice program. In re TJX Companies, Inc., Customer Data Security Breach Litigation, MDL No (D. Mass.). Most comprehensive notice ever in a securities class action for the $1.1 billion settlement of In re Royal Ahold Securities and ERISA Litigation, MDL No (D. Md.). Most complex worldwide notice program in history. Designed and implemented all U.S. and international media notice with 500+ publications in 40 countries and 27 languages for $1.25 billion settlement. In re Holocaust Victims Assets, Swiss Banks, No. CV (E.D.N.Y.). Largest U.S. claim program to date. Designed and implemented a notice campaign for the $10 billion program. Tobacco Farmer Transition Program, (U.S. Dept. of Ag.). Multi-national claims bar date notice to asbestos personal injury claimants. Opposing notice expert s reach methodology challenge rejected by court. In re Babcock & Wilcox Co, No (E.D. La.). LEGAL NOTICING EXPERTS Cameron Azari, Esq., Director of Legal Notice Cameron Azari, Esq. has more than 14 years of experience in the design and implementation of legal notification and claims administration programs. He is a nationally recognized expert in the creation of class action notification campaigns in compliance with Fed R. Civ. P. 23(c)(2) (d)(2) and (e) and similar state class action statutes. Cameron has been responsible for hundreds of legal notice and advertising programs. During his career, he has been involved in an array of high profile class action matters, including In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MasterCard & Visa), In re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, Heartland Payment Systems, In re: Checking Account Overdraft Litigation, Lowe s Home Centers, Department of Veterans Affairs (VA), and In re Residential Schools Class Action Litigation. He is an active author and speaker on a broad range of legal notice and class action topics ranging from amendments to FRCP Rule 23 to noticing, response rates and optimizing settlement effectiveness. Cameron is an active member of the Oregon State Bar. He received his B.S. from Willamette University and his J.D. from Northwestern School of Law at Lewis and Clark College. Cameron can be reached at caza@legalnotice.com. Lauran Schultz, Executive Director Lauran Schultz is responsible for overall management of Hilsoft Notifications. He consults extensively with clients on notice adequacy and innovative legal notice programs. Lauran has more than 20 years of experience as a professional in the marketing and advertising field, specializing in legal notice and class action administration for the past seven years. High profile actions he has been involved in include companies such as: BP, Bank of America, Fifth Third Bank, Symantec Corporation, Lowe s Home Centers, First Health, Apple, TJX, CNA and Carrier Corporation. Prior to joining Epiq Systems in 2005, Lauran was a Senior Vice President of Marketing at National City Bank in Cleveland, Ohio. Lauran s education includes advanced study in political science at the University of Wisconsin-Madison along with a Ford Foundation fellowship from the Social Science Research Council and American Council of Learned Societies. Lauran can be reached at lschultz@hilsoft.com. ARTICLES AND PRESENTATIONS Cameron Azari Speaker, Pitfalls of Class Action Notice and Claims Administration. PLI's Class Action Litigation 2014 Conference, New York, NY, July 9, Cameron Azari Co-Author, What You Need to Know About Frequency Capping In Online Class Action Notice Programs. Class Action Litigation Report, June Cameron Azari Speaker, Class Settlement Update Legal Notice and Court Expectations. PLI's 19th Annual Consumer Financial Services Institute Conference, New York, NY, April 7-8, 2014 and Chicago, IL, April 28-29, PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

178 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 18 of 71 Cameron Azari Speaker, Legal Notice in Consumer Finance Settlements - Recent Developments. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January 29-30, Cameron Azari Speaker, Legal Notice in Building Products Cases. HarrisMartin s Construction Product Litigation Conference, Miami, FL, October 25, Cameron Azari Co-Author, Class Action Legal Noticing: Plain Language Revisited. Law360, April Cameron Azari Speaker, Legal Notice in Consumer Finance Settlements Getting your Settlement Approved. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January 31-February 1, Cameron Azari Speaker, Perspectives from Class Action Claims Administrators: Notices and Response Rates. CLE International s 8 th Annual Class Actions Conference, Los Angeles, CA, May 17-18, Cameron Azari Speaker, Class Action Litigation Trends: A Look into New Cases, Theories of Liability & Updates on the Cases to Watch. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January 26-27, Lauran Schultz Speaker, Legal Notice Best Practices: Building a Workable Settlement Structure. CLE International s 7 th Annual Class Action Conference, San Francisco, CA, May Cameron Azari Speaker, Data Breaches Involving Consumer Financial Information: Litigation Exposures and Settlement Considerations. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January Cameron Azari Speaker, Notice in Consumer Class Actions: Adequacy, Efficiency and Best Practices. CLE International s 5 th Annual Class Action Conference: Prosecuting and Defending Complex Litigation, San Francisco, CA, Lauran Schultz Speaker, Efficiency and Adequacy Considerations in Class Action Media Notice Programs. Chicago Bar Association, Chicago, IL, Cameron Azari Author, Clearing the Five Hurdles of - Delivery of Class Action Legal Notices. Thomson Reuters Class Action Litigation Reporter, June Cameron Azari Speaker, Planning for a Smooth Settlement. ACI: Class Action Defense Complex Settlement Administration for the Class Action Litigator, Phoenix, AZ, Cameron Azari Speaker, Noticing and Response Rates in Class Action Settlements Class Action Bar Gathering, Vancouver, British Columbia, Cameron Azari Speaker, Structuring a Litigation Settlement. CLE International s 3rd Annual Conference on Class Actions, Los Angeles, CA, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Skadden Arps Slate Meagher & Flom, LLP, New York, NY, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Bridgeport Continuing Legal Education, Class Action and the UCL, San Diego, CA, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Stoel Rives litigation group, Portland, OR / Seattle, WA / Boise, ID / Salt Lake City, UT, PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

179 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 19 of 71 Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Stroock & Stroock & Lavan litigation group, Los Angeles, CA, Cameron Azari Author, Twice the Notice or No Settlement. Current Developments Issue II, August Cameron Azari Speaker, A Scientific Approach to Legal Notice Communication Weil Gotshal litigation group, New York, NY, JUDICIAL COMMENTS Judge John Gleeson, In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, (December 13, 2013) No. 1:05-cv (E.D.NY.): The Class Administrator notified class members of the terms of the proposed settlement through a mailed notice and publication campaign that included more than 20 million mailings and publication in more than 400 publications. The notice here meets the requirements of due process and notice standards The objectors complaints provide no reason to conclude that the purposes and requirements of a notice to a class were not met here. Judge Lance M. Africk, Evans, et al v. TIN, Inc., et al, (July 7, 2013) No. 2:11-cv (E.D. La.): The Court finds that the dissemination of the Class Notice as described in Notice Agent Lauran Schultz s Declaration: (a) constituted the best practicable notice to Class Members under the circumstances; (b) constituted notice that was reasonably calculated, under the circumstances ; (c) constituted notice that was reasonable, due, adequate, and sufficient; and (d) constituted notice that fully satisfied all applicable legal requirements, including Rules 23(c)(2)(B) and (e)(1) of the Federal Rules of Civil Procedure, the United States Constitution (including Due Process Clause), the Rules of this Court, and any other applicable law, as well as complied with the Federal Judicial Center s illustrative class action notices. Judge James B. Zagel, Saltzman v. Pella Corporation, (May 24, 2013) No. 06-cv-4481 (N.D. Ill.): The Class Notice and Notice Plan implemented for the Settlement Class Members were performed in a reasonable manner, constituted the best notice practicable under the circumstances, constituted due and sufficient notice of the Lawsuit and the Settlement, and fully satisfied the requirements of due process and Fed. R. Civ. P. 23. Judge Edward M. Chen, Marolda v. Symantec Corporation, (April 5, 2013) No. 08-cv (N.D. Cal.): Approximately 3.9 million notices were delivered by to class members, but only a very small percentage objected or opted out... The Court... concludes that notice of settlement to the class was adequate and satisfied all requirements of Federal Rule of Civil Procedure 23(e) and due process. Class members received direct notice by , and additional notice was given by publication in numerous widely circulated publications as well as in numerous targeted publications. These were the best practicable means of informing class members of their rights and of the settlement s terms. Judge Ann D. Montgomery, In Re: Zurn Pex Plumbing Products Liability Litigation, (February 27, 2013) No. 0:08cv01958 (D. Minn.): The parties retained Hilsoft Notifications ("Hilsoft"), an experienced class-notice consultant, to design and carry out the notice plan. The form and content of the notices provided to the class were direct, understandable, and consistent with the "plain language" principles advanced by the Federal Judicial Center. The notice plan's multi-faceted approach to providing notice to settlement class members whose identity is not known to the settling parties constitutes "the best notice [*26] that is practicable under the circumstances" consistent with Rule 23(c)(2)(B). PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

180 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 20 of 71 Magistrate Judge Stewart, Gessele et al. v. Jack in the Box, Inc., (January 28, 2013) No. 3:10-cv-960 (D. Or.): Moreover, plaintiffs have submitted [a] declaration from Cameron Azari (docket #129), a nationally recognized notice expert, who attests that fashioning an effective joint notice is not unworkable or unduly confusing. Azari also provides a detailed analysis of how he would approach fashioning an effective notice in this case. Judge Carl J. Barbier, In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 (Medical Benefits Settlement), (January 11, 2013) MDL No (E.D. La.): Through August 9, 2012, 366,242 individual notices had been sent to potential [Medical Benefits] Settlement Class Members by postal mail and 56,136 individual notices had been ed. Only 10,700 mailings or 3.3% were known to be undeliverable. (Azari Decl. 8, 9.) Notice was also provided through an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, highly-trafficked websites, and Sunday local newspapers (via newspaper supplements). Notice was also provided in non-measured trade, business and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The combined measurable paid print, television, radio, and Internet effort reached an estimated 95% of adults aged 18+ in the Gulf Coast region an average of 10.3 times each, and an estimated 83% of all adults in the United States aged 18+ an average of 4 times each. (Id. 8, 10.) All notice documents were designed to be clear, substantive, and informative. (Id. 5.) The Court received no objections to the scope or content of the [Medical Benefits] Notice Program. (Azari Supp. Decl. 12.) The Court finds that the Notice and Notice Plan as implemented satisfied the best notice practicable standard of Rule 23(c) and, in accordance with Rule 23(e)(1), provided notice in a reasonable manner to Class Members who would be bound by the Settlement, including individual notice to all Class Members who could be identified through reasonable effort. Likewise, the Notice and Notice Plan satisfied the requirements of Due Process. The Court also finds the Notice and Notice Plan satisfied the requirements of CAFA. Judge Carl J. Barbier, In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 (Economic and Property Damages Settlement), (December 21, 2012) MDL No (E.D. La.): The Court finds that the Class Notice and Class Notice Plan satisfied and continue to satisfy the applicable requirements of Federal Rule of Civil Procedure 23(c)(2)(b) and 23(e), the Class Action Fairness Act (28 U.S.C et seq.), and the Due Process Clause of the United States Constitution (U.S. Const., amend. V), constituting the best notice that is practicable under the circumstances of this litigation. The notice program surpassed the requirements of Due Process, Rule 23, and CAFA. Based on the factual elements of the Notice Program as detailed below, the Notice Program surpassed all of the requirements of Due Process, Rule 23, and CAFA. The Notice Program, as duly implemented, surpasses other notice programs that Hilsoft Notifications has designed and executed with court approval. The Notice Program included notification to known or potential Class Members via postal mail and ; an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, and Sunday local newspapers. Notice placements also appeared in non-measured trade, business, and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The Notice Program met the objective of reaching the greatest possible number of class members and providing them with every reasonable opportunity to understand their legal rights. See Azari Decl. 8, 15, 68. The Notice Program was substantially completed on July 15, 2012, allowing class members adequate time to make decisions before the opt-out and objections deadlines. The media notice effort alone reached an estimated 95% of adults in the Gulf region an average of 10.3 times each, and an estimated 83% of all adults in the United States an average of 4 times each. These figures do not include notice efforts that cannot be measured, such as advertisements in trade publications and sponsored search engine listings. The Notice Program fairly and adequately covered and notified the class without excluding any demographic group or geographic area, and it exceeded the reach percentage achieved in most other court-approved notice programs. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

181 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 21 of 71 Judge Alonzo Harris, Opelousas General Hospital Authority, A Public Trust, D/B/A Opelousas General Health System and Arklamiss Surgery Center, L.L.C. v. FairPay Solutions, Inc., (August 17, 2012) No. 12-C-1599 (27 th Jud. D. Ct. La.): Notice given to Class Members and all other interested parties pursuant to this Court s order of April 18, 2012, was reasonably calculated to apprise interested parties of the pendency of the action, the certification of the Class as Defined for settlement purposes only, the terms of the Settlement Agreement, Class Members rights to be represented by private counsel, at their own costs, and Class Members rights to appear in Court to have their objections heard, and to afford persons or entities within the Class Definition an opportunity to exclude themselves from the Class. Such notice complied with all requirements of the federal and state constitutions, including the Due Process Clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Class as Defined. Judge James Lawrence King, In re: Checking Account Overdraft Litigation (IBERIABANK), (April 26, 2012) MDL No (S.D. Fla): The Court finds that the Notice previously approved was fully and properly effectuated and was sufficient to satisfy the requirements of due process because it described the substantive claims... [and] contained information reasonably necessary to [allow Settlement Class Members to] make a decision to remain a class member and be bound by the final judgment.'' In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, (5th Cir. 1977). The Notice, among other things, defined the Settlement Class, described the release as well as the amount and method and manner of proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their rights to opt-out or object, the procedures for doing so, and the time and place of the Final Approval Hearing. The Notice also informed Settlement Class Members that a class judgment would bind them unless they opted out, and told them where they could obtain more information, such as access to a full copy of the Agreement. Further, the Notice described in summary form the fact that Class Counsel would be seeking attorneys' fees of up to 30 percent of the Settlement. Settlement Class Members were provided with the best practicable notice reasonably calculated, under [the] circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections.'' Mullane, 339 U.S. at 314. The content of the Notice fully complied with the requirements of Rule 23. Judge Bobby Peters, Vereen v. Lowe s Home Centers, (April 13, 2012) SU10-CV-2267B (Ga. Super. Ct.): The Court finds that the Notice and the Notice Plan was fulfilled, in accordance with the terms of the Settlement Agreement, the Amendment, and this Court s Preliminary Approval Order and that this Notice and Notice Plan constituted the best practicable notice to Class Members under the circumstances of this action, constituted due and sufficient Notice of the proposed Settlement to all persons entitled to participate in the proposed Settlement, and was in full compliance with Ga. Code Ann and the constitutional requirements of due process. Extensive notice was provided to the class, including point of sale notification, publication notice and notice by first-class mail for certain potential Class Members. The affidavit of the notice expert conclusively supports this Court s finding that the notice program was adequate, appropriate, and comported with Georgia Code Ann (b)(2), the Due Process Clause of the Constitution, and the guidance for effective notice articulate in the FJC s Manual for Complex Litigation, 4 th. Judge Lee Rosenthal, In re: Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, (March 2, 2012) MDL No (S.D. Tex.): The notice that has been given clearly complies with Rule 23(e)(1) s reasonableness requirement Hilsoft Notifications analyzed the notice plan after its implementation and conservatively estimated that notice reached 81.4 percent of the class members. (Docket Entry No. 106, 32). Both the summary notice and the detailed notice provided the information reasonably necessary for the presumptive class members to determine whether to object to the proposed settlement. See Katrina Canal Breaches, 628 F.3d at 197. Both the summary notice and the detailed notice were written in easy-to-understand plain English. In re Black Farmers Discrimination Litig., F. Supp. 2d, 2011 WL , at *23 (D.D.C. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

182 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 22 of ); accord AGGREGATE LITIGATION 3.04(c).15 The notice provided satisf[ies] the broad reasonableness standards imposed by due process and Rule 23. Katrina Canal Breaches, 628 F.3d at 197 (internal quotation marks omitted). Judge John D. Bates, Trombley v. National City Bank, (December 1, 2011) 1:10-CV (D.D.C.) The form, content, and method of dissemination of Notice given to the Settlement Class were in full compliance with the Court s January 11, 2011 Order, the requirements of Fed. R. Civ. P. 23(e), and due process. The notice was adequate and reasonable, and constituted the best notice practicable under the circumstances. In addition, adequate notice of the proceedings and an opportunity to participate in the final fairness hearing were provided to the Settlement Class. Judge Robert M. Dow, Jr., Schulte v. Fifth Third Bank, (July 29, 2011) No. 1:09-cv-6655 (N.D. Ill.): The Court has reviewed the content of all of the various notices, as well as the manner in which Notice was disseminated, and concludes that the Notice given to the Class fully complied with Federal Rule of Civil Procedure 23, as it was the best notice practicable, satisfied all constitutional due process concerns, and provided the Court with jurisdiction over the absent Class Members. Judge Ellis J. Daigle, Williams v. Hammerman & Gainer Inc., (June 30, 2011) No. 11-C-3187-B (27th Jud. D. Ct. La.): Notices given to Settlement Class members and all other interested parties throughout this proceeding with respect to the certification of the Settlement Class, the proposed settlement, and all related procedures and hearings including, without limitation, the notice to putative Settlement Class members and others more fully described in this Court s order of 30 th day of March 2011 were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination, to apprise interested parties and members of the Settlement Class of the pendency of the action, the certification of the Settlement Class, the Settlement Agreement and its contents, Settlement Class members right to be represented by private counsel, at their own cost, and Settlement Class members right to appear in Court to have their objections heard, and to afford Settlement Class members an opportunity to exclude themselves from the Settlement Class. Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedures, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class. Judge Stefan R. Underhill, Mathena v. Webster Bank, N.A., (March 24, 2011) No. 3:10-cv-1448 (D. Conn.): The form, content, and method of dissemination of Notice given to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process. Judge Ted Stewart, Miller v. Basic Research, LLC, (September 2, 2010) No. 2:07-cv-871 (D. Utah): Plaintiffs state that they have hired a firm specializing in designing and implementing large scale, unbiased, legal notification plans. Plaintiffs represent to the Court that such notice will include: 1) individual notice by electronic mail and/or first-class mail sent to all reasonably identifiable Class members; 2) nationwide paid media notice through a combination of print publications, including newspapers, consumer magazines, newspaper supplements and the Internet; 3) a neutral, Courtapproved, informational press release; 4) a neutral, Court-approved Internet website; and 5) a toll-free telephone number. Similar mixed media plans have been approved by other district courts post class certification. The Court finds this plan is sufficient to meet the notice requirement. Judge Sara Loi, Pavlov v. Continental Casualty Co., (October 7, 2009) No. 5:07cv2580 (N.D. Ohio): As previously set forth in this Memorandum Opinion, the elaborate notice program contained in the Settlement Agreement provides for notice through a variety of means, including direct mail to each class member, notice to the United States Attorney General and each State, a toll free number, and a website PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

183 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 23 of 71 designed to provide information about the settlement and instructions on submitting claims. With a 99.9% effective rate, the Court finds that the notice program constituted the best notice that is practicable under the circumstances, Fed. R. Civ. P. 23(c)(2)(B), and clearly satisfies the requirements of Rule 23(c)(2)(B). Judge James Robertson, In re: Department of Veterans Affairs (VA) Data Theft Litigation, (September 23, 2009) MDL No (D.D.C.): The Notice Plan, as implemented, satisfied the requirements of due process and was the best notice practicable under the circumstances. The Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the action, the terms of the Settlement, and their right to appear, object to or exclude themselves from the Settlement. Further, the notice was reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notice. Judge Lisa F. Chrystal, Little v. Kia Motors America, Inc., (August 27, 2009) No. UNN-L (N.J. Super. Ct.): The Court finds that the manner and content of the notices for direct mailing and for publication notice, as specified in the Notice Plan (Exhibit 2 to the Affidavit of Lauran R. Schultz), provides the best practicable notice of judgment to members of the Plaintiff Class. Judge Barbara Crowder, Dolen v. ABN AMRO Bank N.V., (March 23, 2009) No. 01-L-454, 01-L-493 (3rd Jud. Cir. Ill.): The Court finds that the Notice Plan is the best notice practicable under the circumstances and provides the Eligible Members of the Settlement Class sufficient information to make informed and meaningful decisions regarding their options in this Litigation and the effect of the Settlement on their rights. The Notice Plan further satisfies the requirements of due process and 735 ILCS 5/ That Notice Plan is approved and accepted. This Court further finds that the Notice of Settlement and Claim Form comply with 735 ILCS 5/2-803 and are appropriate as part of the Notice Plan and the Settlement, and thus they are hereby approved and adopted. This Court further finds that no other notice other than that identified in the Notice Plan is reasonably necessary in this Litigation. Judge Robert W. Gettleman, In re Trans Union Corp., (September 17, 2008) MDL No (N.D. Ill.): The Court finds that the dissemination of the Class Notice under the terms and in the format provided for in its Preliminary Approval Order constitutes the best notice practicable under the circumstances, is due and sufficient notice for all purposes to all persons entitled to such notice, and fully satisfies the requirements of the Federal Rules of Civil Procedure, the requirements of due process under the Constitution of the United States, and any other applicable law Accordingly, all objections are hereby OVERRULED. Judge Steven D. Merryday, Lockwood v. Certegy Check Services, Inc., (September 3, 2008) No. 8:07-cv T-23TGW (M.D. Fla.): The form, content, and method of dissemination of the notice given to the Settlement Class were adequate and reasonable and constituted the best notice practicable in the circumstances. The notice as given provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions of the Settlement Agreement, and these proceedings to all persons entitled to such notice, and the notice satisfied the requirements of Rule 23, Federal Rules of Civil Procedure, and due process. Judge William G. Young, In re TJX Companies, (September 2, 2008) MDL No (D. Mass.): The form, content, and method of dissemination of notice provided to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all Persons entitled to such notice, and said Notice fully satisfied the requirements of Fed. R. Civ. P. 23 and due process. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

184 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 24 of 71 Judge Philip S. Gutierrez, Shaffer v. Continental Casualty Co., (June 11, 2008) SACV PSG (PJWx) (C.D. Cal.): was reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice; and met all applicable requirements of the Federal Rules of Civil Procedure, the Class Action Fairness Act, the United States Constitution (including the Due Process Clauses), the Rules of the Court, and any other applicable law. Judge Robert L. Wyatt, Gunderson v. AIG Claim Services, Inc., (May 29, 2008) No (14th Jud. D. Ct. La.): Notices given to Settlement Class members were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class. Judge Mary Anne Mason, Palace v. DaimlerChrysler Corp., (May 29, 2008) No. 01-CH (Ill. Cir. Ct.): The form, content, and method of dissemination of the notice given to the Illinois class and to the Illinois Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The notice, as given, provided valid, due, and sufficient notice of the proposed Settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings, to all Persons entitled to such notice, and said notice fully satisfied the requirements of due process and complied with 735 ILCS 5/2-803 and 5/ Judge David De Alba, Ford Explorer Cases, (May 29, 2008) JCCP Nos & 4270 (Cal. Super. Ct.): [T]he Court is satisfied that the notice plan, design, implementation, costs, reach, were all reasonable, and has no reservations about the notice to those in this state and those in other states as well, including Texas, Connecticut, and Illinois; that the plan that was approved submitted and approved, comports with the fundamentals of due process as described in the case law that was offered by counsel. Judge Kirk D. Johnson, Webb v. Liberty Mutual Ins. Co., (March 3, 2008) No. CV (Ark. Cir. Ct.): The Court finds that there was minimal opposition to the settlement. After undertaking an extensive notice campaign to Class members of approximately 10,707 persons, mailed notice reached 92.5% of potential Class members. Judge Carol Crafton Anthony, Johnson v. Progressive Casualty Ins. Co., (December 6, 2007) No. CV (Ark. Cir. Ct.): Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice reached a large majority of the Class members. The Court finds that such notice constitutes the best notice practicable The forms of Notice and Notice Plan satisfy all of the requirements of Arkansas law and due process. Judge Kirk D. Johnson, Sweeten v. American Empire Insurance Co., (August 20, 2007) No. CV (Ark. Cir. Ct.): The Court does find that all notices required by the Court to be given to class members was done within the time allowed and the manner best calculated to give notice and apprise all the interested parties of the litigation. It was done through individual notice, first class mail, through internet website and the toll-free telephone call center The Court does find that these methods were the best possible methods to advise the class members of the pendency of the action and opportunity to present their objections and finds that these notices do comply with all the provisions of Rule 23 and the Arkansas and United States Constitutions. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

185 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 25 of 71 Judge Robert Wyatt, Gunderson v. F.A. Richard & Associates, Inc., (July 19, 2007) No D (14th Jud. D. Ct. La.): Okay. Let me sign this one. This is the final Order and Judgment regarding the fairness, reasonableness and adequacy. And I am satisfied in all respects regarding the presentation that s been made to the Court this morning in the Class memberships, the representation, the notice, and all other aspects and I m signing that Order at this time. Congratulations, gentlemen. Judge Lewis A. Kaplan, In re Parmalat Securities Litigation, (July 19, 2007) MDL No LAK (S.D.N.Y.): The Court finds that the distribution of the Notice, the publication of the Publication Notice, and the notice methodology met all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution, (including the Due Process clause), the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 78u-4, et seq.) (the PSLRA ), the Rules of the Court, and any other applicable law. Judge Joe Griffin, Beasley v. The Reliable Life Insurance Co., (March 29, 2007) No. CV (Ark. Cir. Ct.): [T]he Court has, pursuant to the testimony regarding the notification requirements, that were specified and adopted by this Court, has been satisfied and that they meet the requirements of due process. They are fair, reasonable, and adequate. I think the method of notification certainly meets the requirements of due process So the Court finds that the notification that was used for making the potential class members aware of this litigation and the method of filing their claims, if they chose to do so, all those are clear and concise and meet the plain language requirements and those are completely satisfied as far as this Court is concerned in this matter. Judge Lewis A. Kaplan, In re Parmalat Securities Litigation, (March 1, 2007) MDL No LAK (S.D.N.Y.): The court approves, as to form and content, the Notice and the Publication Notice, attached hereto as Exhibits 1 and 2, respectively, and finds that the mailing and distribution of the Notice and the publication of the Publication Notice in the manner and the form set forth in Paragraph 6 of this Order meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Securities Exchange Act of 1934, as emended by Section 21D(a)(7) of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. 78u- 4(a)(7), and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons and entities entitled thereto. Judge Anna J. Brown, Reynolds v. The Hartford Financial Services Group, Inc., (February 27, 2007) No. CV BR (D. Or): [T]he court finds that the Notice Program fairly, fully, accurately, and adequately advised members of the Settlement Class and each Settlement Subclass of all relevant and material information concerning the proposed settlement of this action, their rights under Rule 23 of the Federal Rules of Civil Procedure, and related matters, and afforded the Settlement Class with adequate time and an opportunity to file objections to the Settlement or request exclusion from the Settlement Class. The court finds that the Notice Program constituted the best notice practicable under the circumstances and fully satisfied the requirements of Rule 23 and due process. Judge Kirk D. Johnson, Zarebski v. Hartford Insurance Company of the Midwest, (February 13, 2007) No. CV (Ark. Cir. Ct.): Based on the Court s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Class Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminary Approval Order, was the best notice practicable under the circumstances to all members of the Settlement Class. Accordingly, the Class Notice and Claim Form as disseminated are finally approved as fair, reasonable, and adequate notice under the circumstances. The Court finds and concludes that due and adequate notice of the pendency of this Action, the Stipulation, and the Final Settlement Hearing has been provided to members of the Settlement Class, and the Court further finds and concludes that the notice campaign described in the Preliminary Approval Order and completed by the parties complied fully with the requirements of Arkansas Rule of Civil Procedure 23 and the requirements of due process under the Arkansas and United States Constitutions. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

186 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 26 of 71 Judge Richard J. Holwell, In re Vivendi Universal, S.A. Securities Litigation, 2007 WL , at *34 (S.D.N.Y.): In response to defendants manageability concerns, plaintiffs have filed a comprehensive affidavit outlining the effectiveness of its proposed method of providing notice in foreign countries. According to this the Court is satisfied that plaintiffs intend to provide individual notice to those class members whose names and addresses are ascertainable, and that plaintiffs proposed form of publication notice, while complex, will prove both manageable and the best means practicable of providing notice. Judge Samuel Conti, Ciabattari v. Toyota Motor Sales, U.S.A., Inc., (November 17, 2006) No. C SC (N.D. Cal.): After reviewing the evidence and arguments presented by the parties the Court finds as follows The class members were given the best notice practicable under the circumstances, and that such notice meets the requirements of the Due Process Clause of the U.S. Constitution, and all applicable statutes and rules of court. Judge Ivan L.R. Lemelle, In re High Sulfur Content Gasoline Prods. Liability Litigation, (November 8, 2006) MDL No (E.D. La.): This Court approved a carefully-worded Notice Plan, which was developed with the assistance of a nationally-recognized notice expert, Hilsoft Notifications The Notice Plan for this Class Settlement was consistent with the best practices developed for modern-style plain English class notices; the Court and Settling Parties invested substantial effort to ensure notice to persons displaced by the Hurricanes of 2005; and as this Court has already determined, the Notice Plan met the requirements of Rule 23 and constitutional due process. Judge Catherine C. Blake, In re Royal Ahold Securities and ERISA Litigation, (November 2, 2006) MDL No (D. Md.): The global aspect of the case raised additional practical and legal complexities, as did the parallel criminal proceedings in another district. The settlement obtained is among the largest cash settlements ever in a securities class action case and represents an estimated 40% recovery of possible provable damages. The notice process appears to have been very successful not only in reaching but also in eliciting claims from a substantial percentage of those eligible for recovery. Judge Elaine E. Bucklo, Carnegie v. Household International, (August 28, 2006) No. 98 C 2178 (N.D. Ill.): [T]he Notice was disseminated pursuant to a plan consisting of first class mail and publication developed by Plaintiff s notice consultant, Hilsoft Notification[s] who the Court recognized as experts in the design of notice plans in class actions. The Notice by first-class mail and publication was provided in an adequate and sufficient manner; constitutes the best notice practicable under the circumstances; and satisfies all requirements of Rule 23(e) and due process. Judge Joe E. Griffin, Beasley v. Hartford Insurance Company of the Midwest, (June 13, 2006) No. CV (Ark. Cir. Ct.): Based on the Court s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Individual Notice and the Publication Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminarily Approval Order, was the best notice practicable under the circumstances and the requirements of due process under the Arkansas and United States Constitutions. Judge Norma L. Shapiro, First State Orthopedics et al. v. Concentra, Inc., et al., (May 1, 2006) No. 2:05-CV NS (E.D. Pa.): The Court finds that dissemination of the Mailed Notice, Published Notice and Full Notice in the manner set forth here and in the Settlement Agreement meets the requirements of due process and Pennsylvania law. The Court further finds that the notice is reasonable, and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice, is the best practicable notice; and is reasonably calculated, under the circumstances, to apprise members of the Settlement Class of the pendency of the Lawsuit and of their right to object or to exclude themselves from the proposed settlement. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

187 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 27 of 71 Judge Thomas M. Hart, Froeber v. Liberty Mutual Fire Ins. Co., (April 19, 2006) No. 00C15234 (Or. Cir. Ct.): The court has found and now reaffirms that dissemination and publication of the Class Notice in accordance with the terms of the Third Amended Order constitutes the best notice practicable under the circumstances. Judge Catherine C. Blake, In re Royal Ahold Securities and ERISA Litigation, (January 6, 2006) MDL No (D. Md.): I think it s remarkable, as I indicated briefly before, given the breadth and scope of the proposed Class, the global nature of the Class, frankly, that again, at least on a preliminary basis, and I will be getting a final report on this, that the Notice Plan that has been proposed seems very well, very well suited, both in terms of its plain language and in terms of its international reach, to do what I hope will be a very thorough and broad-ranging job of reaching as many of the shareholders, whether individual or institutional, as possibly can be done to participate in what I also preliminarily believe to be a fair, adequate and reasonable settlement. Judge Catherine C. Blake, In re Royal Ahold Securities & ERISA Litigation, 437 F.Supp.2d 467, 472 (D. Md. 2006): The court hereby finds that the Notice and Notice Plan described herein and in the Order dated January 9, 2006 provided Class Members with the best notice practicable under the circumstances. The Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the Settlement and Plan of Allocation, to all persons entitled to such notice, and the Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process. Judge Robert H. Wyatt, Jr., Gray v. New Hampshire Indemnity Co., Inc., (December 19, 2005) No. CV (Ark. Cir. Ct.): Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The Notice contained the essential elements necessary to satisfy due process, including the Settlement Class definition, the identities of the Parties and of their counsel, a summary of the terms of the proposed settlement, Class Counsel s intent to apply for fees, information regarding the manner in which objections could be submitted, and requests for exclusions could be filed. The Notice properly informed Class members of the formula for the distribution of benefits under the settlement Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice was also effected by publication in many newspapers and magazines throughout the nation, reaching a large majority of the Class members multiple times. The Court finds that such notice constitutes the best notice practicable. Judge Michael J. O Malley, Defrates v. Hollywood Entm t Corp., (June 24, 2005) No. 02 L 707 (Ill. Cir. Ct.): [T]his Court hereby finds that the notice program described in the Preliminary Approval Order and completed by HEC complied fully with the requirements of due process, the Federal Rules of Civil Procedure and all other applicable laws. Judge Wilford D. Carter, Thibodeaux v. Conoco Phillips Co., (May 26, 2005) No F (14 th J.D. Ct. La.): Notice given to Class Members were reasonably calculated under all the circumstances and have been sufficient, both as to the form and content Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due process and sufficient notice to all potential members of the Class as Defined. Judge Michael Canaday, Morrow v. Conoco Inc., (May 25, 2005) No G (14 th J.D. Ct. La.): The objections, if any, made to due process, constitutionality, procedures, and compliance with law, including, but not limited to, the adequacy of notice and the fairness of the proposed Settlement Agreement, lack merit and are hereby overruled. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

188 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 28 of 71 Judge John R. Padova, Nichols v. SmithKline Beecham Corp., (April 22, 2005) No (E.D. Pa.): Pursuant to the Order dated October 18, 2004, End-Payor Plaintiffs employed Hilsoft Notifications to design and oversee Notice to the End-Payor Class. Hilsoft Notifications has extensive experience in class action notice situations relating to prescription drugs and cases in which unknown class members need to receive notice After reviewing the individual mailed Notice, the publication Notices, the PSAs and the informational release, the Court concludes that the substance of the Notice provided to members of the End-Payor Class in this case was adequate to satisfy the concerns of due process and the Federal Rules. Judge Douglas L. Combs, Morris v. Liberty Mutual Fire Ins. Co., (February 22, 2005) No. CJ (D. Okla.): I am very impressed that the notice was able to reach be delivered to 97 ½ percent members of the class. That, to me, is admirable. And I m also at the time that this was initially entered, I was concerned about the ability of notice to be understood by a common, nonlawyer person, when we talk about legalese in a court setting. In this particular notice, not only the summary notice but even the long form of the notice were easily understandable, for somebody who could read the English language, to tell them whether or not they had the opportunity to file a claim. Judge Joseph R. Goodwin, In re Serzone Products Liability Litigation, 231 F.R.D. 221, 231 (S.D. W. Va. 2005): The Notice Plan was drafted by Hilsoft Notifications, a Pennsylvania firm specializing in designing, developing, analyzing and implementing large-scale, unbiased legal notification plans. Hilsoft has disseminated class action notices in more than 150 cases, and it designed the model notices currently displayed on the Federal Judicial Center s website as a template for others to follow To enhance consumer exposure, Hilsoft studied the demographics and readership of publications among adults who used a prescription drug for depression in the last twelve months. Consequently, Hilsoft chose to utilize media particularly targeting women due to their greater incidence of depression and heavy usage of the medication. Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice Litigation, (November 24, 2004) MDL No (D. Mass.): After review of the proposed Notice Plan designed by Hilsoft Notifications is hereby found to be the best practicable notice under the circumstances and, when completed, shall constitute due and sufficient notice of the Settlement and the Fairness Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Rule 23 the Federal Rules of Civil Procedure and due process. Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice Litigation, (November 23, 2004) MDL No (D. Mass.): I actually find the [notice] plan as proposed to be comprehensive and extremely sophisticated and very likely be as comprehensive as any plan of its kind could be in reaching those most directly affected. Judge James S. Moody, Jr., Mantzouris v. Scarritt Motor Group Inc., (August 10, 2004) No. 8:03 CV T-30 MSS (M.D. Fla.): Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the members of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement, it is hereby determined that all members of the Class, except for Ms. Gwendolyn Thompson, who was the sole person opting out of the Settlement Agreement, are bound by this Order and Final Judgment entered herein. Judge Robert E. Payne, Fisher v. Virginia Electric & Power Co., (July 1, 2004) No. 3:02CV431 (E.D. Va.): The record here shows that the class members have been fully and fairly notified of the existence of the class action, of the issues in it, of the approaches taken by each side in it in such a way as to inform meaningfully those whose rights are affected and to thereby enable them to exercise their rights PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

189 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 29 of 71 intelligently The success rate in notifying the class is, I believe, at least in my experience, I share Ms. Kauffman s experience, it is as great as I have ever seen in practicing or serving in this job So I don t believe we could have had any more effective notice. Judge John Kraetzer, Baiz v. Mountain View Cemetery, (April 14, 2004) No (Cal. Super. Ct.): The notice program was timely completed, complied with California Government Code section 6064, and provided the best practicable notice to all members of the Settlement Class under the circumstances. The Court finds that the notice program provided class members with adequate instructions and a variety of means to obtain information pertaining to their rights and obligations under the settlement so that a full opportunity has been afforded to class members and all other persons wishing to be heard The Court has determined that the Notice given to potential members of the Settlement Class fully and accurately informed potential Members of the Settlement Class of all material elements of the proposed settlement and constituted valid, due, and sufficient notice to all potential members of the Settlement Class, and that it constituted the best practicable notice under the circumstances. Hospitality Mgmt. Assoc., Inc. v. Shell Oil Co., 356 S.C. 644, 663, 591 S.E.2d 611, 621 (Sup. Ct. S.C. 2004): Clearly, the Cox court designed and utilized various procedural safeguards to guarantee sufficient notice under the circumstances. Pursuant to a limited scope of review, we need go no further in deciding the Cox court's findings that notice met due process are entitled to deference. Judge Joseph R. Goodwin, In re Serzone Prods. Liability Litigation, 2004 U.S. Dist. LEXIS 28297, at *10 (S.D. W. Va.): The Court has considered the Notice Plan and proposed forms of Notice and Summary Notice submitted with the Memorandum for Preliminary Approval and finds that the forms and manner of notice proposed by Plaintiffs and approved herein meet the requirements of due process and Fed.R.Civ.P. 23(c) and (e), are the best notice practicable under the circumstances, constitute sufficient notice to all persons entitled to notice, and satisfy the Constitutional requirements of notice. Judge James D. Arnold, Cotten v. Ferman Mgmt. Servs. Corp., (November 26, 2003) No (Fla. Cir. Ct.): Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the member of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement Judge Judith K. Fitzgerald, In re Pittsburgh Corning Corp., (November 26, 2003) No JKF (Bankr. W.D. Pa.): The procedures and form of notice for notifying the holders of Asbestos PI Trust Claims, as described in the Motion, adequately protect the interests of the holders of Asbestos PI Trust Claims in a manner consistent with the principles of due process, and satisfy the applicable requirements of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. Judge Carter Holly, Richison v. American Cemwood Corp., (November 18, 2003) No (Cal. Super. Ct.): As to the forms of Notice, the Court finds and concludes that they fully apprised the Class members of the pendency of the litigation, the terms of the Phase 2 Settlement, and Class members rights and options Not a single Class member out of an estimated 30,000 objected to the terms of the Phase 2 Settlement Agreement, notwithstanding a comprehensive national Notice campaign, via direct mail and publication Notice The notice was reasonable and the best notice practicable under the circumstances, was due, adequate, and sufficient notice to all Class members, and complied fully with the laws of the State of California, the Code of Civil Procedure, due process, and California Rules of Court 1859 and PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

190 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 30 of 71 Judge Thomas A. Higgins, In re Columbia/HCA Healthcare Corp., (June 13, 2003) MDL No (M.D. Tenn.): Notice of the settlement has been given in an adequate and sufficient manner. The notice provided by mailing the settlement notice to certain class members and publishing notice in the manner described in the settlement was the best practicable notice, complying in all respects with the requirements of due process. Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., 216 F.R.D. 55, 68 (S.D.N.Y. 2003): In view of the extensive notice campaign waged by the defendant, the extremely small number of class members objecting or requesting exclusion from the settlement is a clear sign of strong support for the settlement The notice provides, in language easily understandable to a lay person, the essential terms of the settlement, including the claims asserted who would be covered by the settlement [T]he notice campaign that defendant agreed to undertake was extensive I am satisfied, having reviewed the contents of the notice package, and the extensive steps taken to disseminate notice of the settlement, that the class notice complies with the requirements of Rule 23 (c)(2) and 23(e). In summary, I have reviewed all of the objections, and none persuade me to conclude that the proposed settlement is unfair, inadequate or unreasonable. Judge Edgar E. Bayley, Dimitrios v. CVS, Inc., (November 27, 2002) No ; Walker v. Rite Aid Corp., No ; and Myers v. Rite Aid Corp., No (Pa. Ct. C.P.): The Court specifically finds that: fair and adequate notice has been given to the class, which comports with due process of law. Judge Dewey C. Whitenton, Ervin v. Movie Gallery, Inc., (November 22, 2002) No (Tenn. Ch.): The content of the class notice also satisfied all due process standards and state law requirements The content of the notice was more than adequate to enable class members to make an informed and intelligent choice about remaining in the class or opting out of the class. Judge James R. Williamson, Kline v. The Progressive Corp., (November 14, 2002) No. 01-L-6 (Ill. Cir. Ct.): Notice to the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The notice contained the essential elements necessary to satisfy due process Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (September 13, 2002) No. L (N.J. Super. Ct.): Here, the comprehensive bilingual, English and Spanish, court-approved Notice Plan provided by the terms of the settlement meets due process requirements. The Notice Plan used a variety of methods to reach potential class members. For example, short form notices for print media were placed throughout the United States and in major national consumer publications which include the most widely read publications among Cooper Tire owner demographic groups. Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., (September 3, 2002) No. 00 Civ HB (S.D.N.Y.): The Court further finds that the Class Notice and Publication Notice provided in the Settlement Agreement are written in plain English and are readily understandable by Class Members. In sum, the Court finds that the proposed notice texts and methodology are reasonable, that they constitute due, adequate and sufficient notice to all persons entitled to be provided with notice, and that they meet the requirements of the Federal Rules of Civil Procedure (including Fed. R. Civ. P. 23(c)(2) and (e)), the United States Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable law. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

191 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 31 of 71 Judge Milton Gunn Shuffield, Scott v. Blockbuster Inc., (January 22, 2002) No. D (Tex. Jud. Dist. Ct.) Ultimately withstood challenge to Court of Appeals of Texas. Peters v. Blockbuster 65 S.W.3d 295, 307 (Tex. App.-Beaumont, 2001): In order to maximize the efficiency of the notice, a professional concern, Hilsoft Notifications, was retained. This Court concludes that the notice campaign was the best practicable, reasonably calculated, under all the circumstances, to apprise interested parties of the settlement and afford them an opportunity to present their objections The notice campaign was highly successful and effective, and it more than satisfied the due process and state law requirements for class notice. Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (October 30, 2001) No. MID-L MT (N.J. Super. Ct.): The parties have crafted a notice program which satisfies due process requirements without reliance on an unreasonably burdensome direct notification process The form of the notice is reasonably calculated to apprise class members of their rights. The notice program is specifically designed to reach a substantial percentage of the putative settlement class members. Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (October 29, 2001) No. L MT (N.J. Super. Ct.): I saw the various bar graphs for the different publications and the different media dissemination, and I think that was actually the clearest bar graph I ve ever seen in my life it was very clear of the time periods that you were doing as to each publication and which media you were doing over what market time, so I think that was very clear. Judge Stuart R. Pollak, Microsoft I-V Cases, (April 1, 2001) J.C.C.P. No. CJC (Cal. Super. Ct.): [C]oncerning dissemination of class notice; and I have reviewed the materials that have been submitted on that subject and basically I m satisfied. I think it s amazing if you re really getting 80 percent coverage. That s very reassuring. And the papers that you submitted responded to a couple things that had been mentioned before and I am satisfied with all that. Judge Stuart R. Pollak, Microsoft I-V Cases, (March 30, 2001) J.C.C.P. No (Cal. Super. Ct.): Plaintiffs and Defendant Microsoft Corporation have submitted a joint statement in support of their request that the Court approve the plan for dissemination of class action notice and proposed forms of notice, and amend the class definition. The Court finds that the forms of notice to Class members attached hereto as Exhibits A and B fairly and adequately inform the Class members of their rights concerning this litigation. The Court further finds that the methods for dissemination of notice are the fairest and best practicable under the circumstances, and comport with due process requirements. LEGAL NOTICE CASES Hilsoft Notifications has served as a notice expert for planning, implementation and/or analysis in the following partial listing of cases: Andrews v. MCI (900 Number Litigation) S.D. Ga., CV Harper v. MCI (900 Number Litigation) S.D. Ga., CV In re Bausch & Lomb Contact Lens Litigation N.D. Ala., 94-C-1144-WW In re Ford Motor Co. Vehicle Paint Litigation E.D. La., MDL No Castano v. Am. Tobacco E.D. La., CV PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

192 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 32 of 71 Cox v. Shell Oil (Polybutylene Pipe Litigation) Tenn. Ch., 18,844 In re Amino Acid Lysine Antitrust Litigation N.D. Ill., MDL No In re Dow Corning Corp. (Breast Implant Bankruptcy) Kunhel v. CNA Ins. Companies In re Factor Concentrate Blood Prods. Litigation (Hemophiliac HIV) In re Ford Ignition Switch Prods. Liability Litigation Jordan v. A.A. Friedman (Non-Filing Ins. Litigation) Kalhammer v. First USA (Credit Card Litigation) E.D. Mich., AJS N.J. Super. Ct., ATL-C N.D. Ill., MDL No. 986 D. N.J., 96-CV-3125 M.D. Ga., COL Cal. Cir. Ct., C CAL Navarro-Rice v. First USA (Credit Card Litigation) Or. Cir. Ct., Spitzfaden v. Dow Corning (Breast Implant Litigation) La. D. Ct., Robinson v. Marine Midland (Finance Charge Litigation) N.D. Ill., 95 C 5635 McCurdy v. Norwest Fin. Alabama Johnson v. Norwest Fin. Alabama Ala. Cir. Ct., CV Ala. Cir. Ct., CV-93-PT-962-S In re Residential Doors Antitrust Litigation E.D. Pa., MDL No Barnes v. Am. Tobacco Co. Inc. E.D. Pa., Small v. Lorillard Tobacco Co. Inc. N.Y. Super. Ct., /96 Naef v. Masonite Corp (Hardboard Siding Litigation) Ala. Cir. Ct., CV In re Synthroid Mktg. Litigation N.D. Ill., MDL No Raysick v. Quaker State Slick 50 Inc. D. Tex., Castillo v. Mike Tyson (Tyson v. Holyfield Bout) N.Y. Super. Ct., /97 Avery v. State Farm Auto. Ins. (Non-OEM Auto Parts Litigation) Walls v. The Am. Tobacco Co. Inc. Tempest v. Rainforest Café (Securities Litigation) Stewart v. Avon Prods. (Securities Litigation) Ill. Cir. Ct., 97-L-114 N.D. Okla., 97-CV-218-H D. Minn., 98-CV-608 E.D. Pa., 98-CV-4135 Goldenberg v. Marriott PLC Corp (Securities Litigation) D. Md., PJM Delay v. Hurd Millwork (Building Products Litigation) Wash. Super. Ct., Gutterman v. Am. Airlines (Frequent Flyer Litigation) Ill. Cir. Ct., 95CH982 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

193 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 33 of 71 Hoeffner v. The Estate of Alan Kenneth Vieira (Un-scattered Cremated Remains Litigation) Cal. Super. Ct., 97-AS In re Graphite Electrodes Antitrust Litigation E.D. Pa., MDL No In re Silicone Gel Breast Implant Prods. Liability Litigation, Altrichter v. INAMED N.D. Ala., MDL No. 926 St. John v. Am. Home Prods. Corp. (Fen/Phen Litigation) Wash. Super. Ct., Crane v. Hackett Assocs. (Securities Litigation) E.D. Pa., In re Holocaust Victims Assets Litigation (Swiss Banks Litigation) McCall v. John Hancock (Settlement Death Benefits) Williams v. Weyerhaeuser Co. (Hardboard Siding Litigation) Kapustin v. YBM Magnex Int l Inc. (Securities Litigation) Leff v. YBM Magnex Int l Inc. (Securities Litigation) In re PRK/LASIK Consumer Litigation Hill v. Galaxy Cablevision E.D.N.Y., CV N.M. Cir. Ct., CV Cal. Super. Ct., CV E.D. Pa., 98-CV-6599 E.D. Pa., 95-CV-89 Cal. Super. Ct., CV N.D. Miss., 1:98CV51-D-D Scott v. Am. Tobacco Co. Inc. La. D. Ct., Jacobs v. Winthrop Financial Associates (Securities Litigation) Int l Comm n on Holocaust Era Ins. Claims Worldwide Outreach Program Bownes v. First USA Bank (Credit Card Litigation) D. Mass., 99-CV Former Secretary of State Lawrence Eagleburger Commission Ala. Cir. Ct., CV PR Whetman v. IKON (ERISA Litigation) E.D. Pa., Mangone v. First USA Bank (Credit Card Litigation) In re Babcock and Wilcox Co. (Asbestos Related Bankruptcy) Barbanti v. W.R. Grace and Co. (Zonolite / Asbestos Litigation) Ill. Cir. Ct., 99AR672a E.D. La., Wash. Super. Ct., Brown v. Am. Tobacco Cal. Super. Ct., J.C.C.P. 4042, Wilson v. Servier Canada Inc. (Canadian Fen/Phen Litigation) In re Texaco Inc. (Bankruptcy) Ont. Super. Ct., 98-CV S.D.N.Y. 87 B 20142, 87 B 20143, 87 B Olinde v. Texaco (Bankruptcy, Oil Lease Litigation) M.D. La., Gustafson v. Bridgestone/Firestone, Inc. (Recall Related Litigation) S.D. Ill., DRH PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

194 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 34 of 71 In re Bridgestone/Firestone Tires Prods. Liability Litigation S.D. Ind., MDL No Gaynoe v. First Union Corp. (Credit Card Litigation) Carson v. Daimler Chrysler Corp. (Fuel O-Rings Litigation) N.C. Super. Ct., 97-CVS W.D. Tenn., TU A Providian Credit Card Cases Cal. Super. Ct., J.C.C.P Fields v. Great Spring Waters of Am., Inc. (Bottled Water Litigation) Sanders v. Great Spring Waters of Am., Inc. (Bottled Water Litigation) Sims v. Allstate Ins. Co. (Diminished Auto Value Litigation) Peterson v. State Farm Mutual Auto. Ins. Co. (Diminished Auto Value Litigation) Microsoft I-V Cases (Antitrust Litigation Mirroring Justice Dept.) Westman v. Rogers Family Funeral Home, Inc. (Remains Handling Litigation) Rogers v. Clark Equipment Co. Cal. Super. Ct., Cal. Super. Ct., Ill. Cir. Ct., 99-L-393A Ill. Cir. Ct., 99-L-394A Cal. Super. Ct., J.C.C.P Cal. Super. Ct., C Ill. Cir. Ct., 97-L-20 Garrett v. Hurley State Bank (Credit Card Litigation) Miss. Cir. Ct., Ragoonanan v. Imperial Tobacco Ltd. (Firesafe Cigarette Litigation) Dietschi v. Am. Home Prods. Corp. (PPA Litigation) Ont. Super. Ct., 00-CV CP W.D. Wash., C L Dimitrios v. CVS, Inc. (PA Act 6 Litigation) Pa. C.P., Jones v. Hewlett-Packard Co. (Inkjet Cartridge Litigation) Cal. Super. Ct., In re Tobacco Cases II (California Tobacco Litigation) Cal. Super. Ct., J.C.C.P Scott v. Blockbuster, Inc. (Extended Viewing Fees Litigation) 136 th Tex. Jud. Dist., D Anesthesia Care Assocs. v. Blue Cross of Cal. Cal. Super. Ct., Ting v. AT&T (Mandatory Arbitration Litigation) In re W.R. Grace & Co. (Asbestos Related Bankruptcy) Talalai v. Cooper Tire & Rubber Co. (Tire Layer Adhesion Litigation) Kent v. Daimler Chrysler Corp. (Jeep Grand Cherokee Parkto-Reverse Litigation) Int l Org. of Migration German Forced Labour Compensation Programme Madsen v. Prudential Federal Savings & Loan (Homeowner s Loan Account Litigation) N.D. Cal., C BZ Bankr. D. Del., JJF N.J. Super. Ct.,, MID-L MT N.D. Cal., C JCS Geneva, Switzerland 3 rd Jud. Dist. Ct. Utah, C PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

195 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 35 of 71 Bryant v. Wyndham Int l., Inc. (Energy Surcharge Litigation) Cal. Super. Ct., GIC , GIC In re USG Corp. (Asbestos Related Bankruptcy) Thompson v. Metropolitan Life Ins. Co. (Race Related Sales Practices Litigation) Ervin v. Movie Gallery Inc. (Extended Viewing Fees) Peters v. First Union Direct Bank (Credit Card Litigation) National Socialist Era Compensation Fund Bankr. D. Del., RJN S.D.N.Y., 00-CIV-5071 HB Tenn. Ch., CV M.D. Fla., 8:01-CV-958-T-26 TBM Republic of Austria In re Baycol Litigation D. Minn., MDL No Claims Conference Jewish Slave Labour Outreach Program Wells v. Chevy Chase Bank (Credit Card Litigation) German Government Initiative Md. Cir. Ct., C Walker v. Rite Aid of PA, Inc. (PA Act 6 Litigation) C.P. Pa., Myers v. Rite Aid of PA, Inc. (PA Act 6 Litigation) C.P. Pa., In re PA Diet Drugs Litigation C.P. Pa., Harp v. Qwest Communications (Mandatory Arbitration Lit.) Or. Circ. Ct., Tuck v. Whirlpool Corp. & Sears, Roebuck & Co. (Microwave Recall Litigation) Allison v. AT&T Corp. (Mandatory Arbitration Litigation) Kline v. The Progressive Corp. Baker v. Jewel Food Stores, Inc. & Dominick s Finer Foods, Inc. (Milk Price Fixing) In re Columbia/HCA Healthcare Corp. (Billing Practices Litigation) Ind. Cir. Ct., 49C CP st Jud. D.C. N.M., D-0101-CV Ill. Cir. Ct., 01-L-6 Ill. Cir. Ct., 00-L-9664 M.D. Tenn., MDL No Foultz v. Erie Ins. Exchange (Auto Parts Litigation) C.P. Pa., Soders v. General Motors Corp. (Marketing Initiative Litigation) C.P. Pa., CI Nature Guard Cement Roofing Shingles Cases Cal. Super. Ct., J.C.C.P Curtis v. Hollywood Entm t Corp. (Additional Rental Charges) Defrates v. Hollywood Entm t Corp. Pease v. Jasper Wyman & Son, Merrill Blueberry Farms Inc., Allen s Blueberry Freezer Inc. & Cherryfield Foods Inc. West v. G&H Seed Co. (Crawfish Farmers Litigation) Linn v. Roto-Rooter Inc. (Miscellaneous Supplies Charge) Wash. Super. Ct., SEA Ill. Cir. Ct., 02L707 Me. Super. Ct., CV th Jud. D. Ct. La., 99-C-4984-A C.P. Ohio, CV PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

196 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 36 of 71 McManus v. Fleetwood Enter., Inc. (RV Brake Litigation) D. Ct. Tex., SA-99-CA-464-FB Baiz v. Mountain View Cemetery (Burial Practices) Cal. Super. Ct., Stetser v. TAP Pharm. Prods, Inc. & Abbott Laboratories (Lupron Price Litigation) Richison v. Am. Cemwood Corp. (Roofing Durability Settlement) N.C. Super. Ct., 01-CVS-5268 Cal. Super. Ct., Cotten v. Ferman Mgmt. Servs. Corp. 13 th Jud. Cir. Fla., In re Pittsburgh Corning Corp. (Asbestos Related Bankruptcy) Bankr. W.D. Pa., JKF Mostajo v. Coast Nat l Ins. Co. Cal. Super. Ct., 00 CC Friedman v. Microsoft Corp. (Antitrust Litigation) Ariz. Super. Ct., CV Multinational Outreach - East Germany Property Claims Davis v. Am. Home Prods. Corp. (Norplant Contraceptive Litigation) Walker v. Tap Pharmaceutical Prods., Inc. (Lupron Price Litigation) Claims Conference D. La., N.J. Super. Ct., CV CPM-L Munsey v. Cox Communications (Late Fee Litigation) Civ. D. La., Sec. 9, Gordon v. Microsoft Corp. (Antitrust Litigation) 4 th Jud. D. Ct. Minn., Clark v. Tap Pharmaceutical Prods., Inc. 5 th Dist. App. Ct. Ill., Fisher v. Virginia Electric & Power Co. Mantzouris v. Scarritt Motor Group, Inc. Johnson v. Ethicon, Inc. (Product Liability Litigation) E.D. Va., 3:02-CV-431 M.D. Fla., 8:03-CV-0015-T-30-MSS W. Va. Cir. Ct., 01-C-1530, 1531, 1533, 01-C-2491 to 2500 Schlink v. Edina Realty Title 4 th Jud. D. Ct. Minn., Tawney v. Columbia Natural Res. (Oil & Gas Lease Litigation) White v. Washington Mutual, Inc. (Pre-Payment Penalty Litigation) Acacia Media Techs. Corp. v. Cybernet Ventures Inc, (Patent Infringement Litigation) W. Va. Cir. Ct., 03-C-10E 4 th Jud. D. Ct. Minn., CT C.D. Cal., SACV GLT (Anx) Bardessono v. Ford Motor Co. (15 Passenger Vans) Wash. Super. Ct., Gardner v. Stimson Lumber Co. (Forestex Siding Litigation) Poor v. Sprint Corp. (Fiber Optic Cable Litigation) Thibodeau v. Comcast Corp. Wash. Super. Ct., SEA Ill. Cir. Ct., 99-L-421 E.D. Pa., 04-CV-1777 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

197 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 37 of 71 Cazenave v. Sheriff Charles C. Foti (Strip Search Litigation) National Assoc. of Police Orgs., Inc. v. Second Chance Body Armor, Inc. (Bullet Proof Vest Litigation) E.D. La., 00-CV-1246 Mich. Cir. Ct., NP Nichols v. SmithKline Beecham Corp. (Paxil) E.D. Pa., Yacout v. Federal Pacific Electric Co. (Circuit Breaker) N.J. Super. Ct., MID-L Lewis v. Bayer AG (Baycol) 1 st Jud. Dist. Ct. Pa., In re Educ. Testing Serv. PLT 7-12 Test Scoring Litigation E.D. La., MDL No Stefanyshyn v. Consol. Indus. Corp. (Heat Exchanger) Barnett v. Wal-Mart Stores, Inc. Ind. Super. Ct., 79 D CT-59 Wash. Super. Ct., SEA In re Serzone Prods. Liability Litigation S.D. W. Va., MDL No Ford Explorer Cases Cal. Super. Ct., J.C.C.P & 4270 In re Solutia Inc. (Bankruptcy) S.D.N.Y., PCB In re Lupron Marketing & Sales Practices Litigation D. Mass., MDL No Morris v. Liberty Mutual Fire Ins. Co. Bowling, et al. v. Pfizer Inc. (Bjork-Shiley Convexo-Concave Heart Valve) D. Okla., CJ S.D. Ohio, C Thibodeaux v. Conoco Philips Co. D. La., Morrow v. Conoco Inc. D. La., Tobacco Farmer Transition Program Perry v. Mastercard Int l Inc. U.S. Dept. of Agric. Ariz. Super. Ct., CV Brown v. Credit Suisse First Boston Corp. C.D. La., In re Unum Provident Corp. D. Tenn., 1:03-CV-1000 In re Ephedra Prods. Liability Litigation D.N.Y., MDL No Chesnut v. Progressive Casualty Ins. Co. Ohio C.P., Froeber v. Liberty Mutual Fire Ins. Co. Luikart v. Wyeth Am. Home Prods. (Hormone Replacement) Or. Cir. Ct., 00C15234 W. Va. Cir. Ct., 04-C-127 Salkin v. MasterCard Int l Inc. (Pennsylvania) Pa. C.P., 2648 Rolnik v. AT&T Wireless Servs., Inc. N.J. Super. Ct., L Singleton v. Hornell Brewing Co. Inc. (Arizona Ice Tea) Cal. Super. Ct., BC PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

198 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 38 of 71 Becherer v. Qwest Commc ns Int l, Inc. Ill. Cir. Ct., 02-L140 Clearview Imaging v. Progressive Consumers Ins. Co. Fla. Cir. Ct., Mehl v. Canadian Pacific Railway, Ltd D.N.D., A Murray v. IndyMac Bank. F.S.B N.D. Ill., 04 C 7669 Gray v. New Hampshire Indemnity Co., Inc. Ark. Cir. Ct., CV George v. Ford Motor Co. M.D. Tenn., 3: Allen v. Monsanto Co. W. Va. Cir. Ct., Carter v. Monsanto Co. Carnegie v. Household Int l, Inc. W. Va. Cir. Ct., 00-C-300 N. D. Ill., 98-C-2178 Daniel v. AON Corp. Ill. Cir. Ct., 99 CH In re Royal Ahold Securities and ERISA Litigation D. Md., MDL No In re Pharmaceutical Industry Average Wholesale Price Litigation D. Mass., MDL No Meckstroth v. Toyota Motor Sales, U.S.A., Inc. 24 th Jud. D. Ct. La., Walton v. Ford Motor Co. Cal. Super. Ct., SCVSS Hill v. State Farm Mutual Auto Ins. Co. Cal. Super. Ct., BC First State Orthopaedics et al. v. Concentra, Inc., et al. E.D. Pa. 2:05-CV AB Sauro v. Murphy Oil USA, Inc. E.D. La., In re High Sulfur Content Gasoline Prods. Liability Litigation E.D. La., MDL No Homeless Shelter Compensation Program Rosenberg v. Academy Collection Service, Inc. City of New York E.D. Pa., 04-CV-5585 Chapman v. Butler & Hosch, P.A. 2 nd Jud. Cir. Fla., In re Vivendi Universal, S.A. Securities Litigation Desportes v. American General Assurance Co. S.D.N.Y., 02-CIV-5571 RJH Ga. Super. Ct., SU-04-CV-3637 In re: Propulsid Products Liability Litigation E.D. La., MDL No Baxter v. The Attorney General of Canada (In re Residential Schools Class Action Litigation) McNall v. Mastercard Int l, Inc. (Currency Conversion Fees) Ont. Super. Ct., 00-CV CPA 13 th Tenn. Jud. Dist. Ct., CT Lee v. Allstate Ill. Cir. Ct., 03 LK 127 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

199 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 39 of 71 Turner v. Murphy Oil USA, Inc. Carter v. North Central Life Ins. Co. Harper v. Equifax Beasley v. Hartford Insurance Co. of the Midwest Springer v. Biomedical Tissue Services, LTD (Human Tissue Litigation) Spence v. Microsoft Corp. (Antitrust Litigation) Pennington v. The Coca Cola Co. (Diet Coke) Sunderman v. Regeneration Technologies, Inc. (Human Tissue Litigation) Splater v. Thermal Ease Hydronic Systems, Inc. Peyroux v. The United States of America (New Orleans Levee Breech) Chambers v. DaimlerChrysler Corp. (Neon Head Gaskets) Ciabattari v. Toyota Motor Sales, U.S.A., Inc. (Sienna Run Flat Tires) In re Bridgestone Securities Litigation E.D. La., 2:05-CV EEF-JCW Ga. Super. Ct., SU-2006-CV E.D. Pa., 2:04-CV TON Ark. Cir. Ct., CV Ind. Cir. Ct., 1:06-CV SEB-VSS Wis. Cir. Ct., 00-CV Mo. Cir. Ct., 04-CV S.D. Ohio, 1:06-CV-075-MHW Wash. Super. Ct., SEA E.D. La., N.C. Super. Ct., 01:CVS-1555 N.D. Cal., C BZ M.D. Tenn., 3:01-CV-0017 In re Mutual Funds Investment Litigation (Market Timing) D. Md., MDL No Accounting Outsourcing v. Verizon Wireless Hensley v. Computer Sciences Corp. Peek v. Microsoft Corporation Reynolds v. The Hartford Financial Services Group, Inc. Schwab v. Philip Morris USA, Inc. Zarebski v. Hartford Insurance Co. of the Midwest In re Parmalat Securities Litigation Beasley v. The Reliable Life Insurance Co. M.D. La., 03-CV-161 Ark. Cir. Ct., CV Ark. Cir. Ct., CV D. Or., CV BR E.D.N.Y., CV Ark. Cir. Ct., CV S.D.N.Y., MDL No (LAK) Ark. Cir. Ct., CV Sweeten v. American Empire Insurance Company Ark. Cir. Ct., Govt. Employees Hospital Assoc. v. Serono Int., S.A. Gunderson v. Focus Healthcare Management, Inc. Gunderson v. F.A. Richard & Associates, Inc., et al. Perez v. Manor Care of Carrollwood D. Mass., 06-CA PBS 14 th Jud. D. Ct. La., D 14 th Jud. D. Ct. La., D 13 th Jud. Cir. Fla., E PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

200 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 40 of 71 Pope v. Manor Care of Carrollwood West v. Carfax, Inc. Hunsucker v. American Standard Ins. Co. of Wisconsin In re Conagra Peanut Butter Products Liability Litigation The People of the State of CA v. Universal Life Resources (Cal DOI v. CIGNA) Burgess v. Farmers Insurance Co., Inc. Grays Harbor v. Carrier Corporation Perrine v. E.I. Du Pont De Nemours & Co. In re Alstom SA Securities Litigation Brookshire Bros. v. Chiquita (Antitrust) Hoorman v. SmithKline Beecham 13 th Jud. Cir. Fla., B Ohio C.P., 04-CV-1898 (ADL) Ark. Cir. Ct., CV N.D. Ga., MDL No (TWT) Cal. Super. Ct., GIC D. Okla., CJ W.D. Wash., RBL W. Va. Cir. Ct., 04-C S.D.N.Y., 03-CV-6595 VM S.D. Fla., 05-CIV Ill. Cir. Ct., 04-L-715 Santos v. Government of Guam (Earned Income Tax Credit) D. Guam, Johnson v. Progressive Bond v. American Family Insurance Co. In re SCOR Holding (Switzerland) AG Litigation (Securities) Ark. Cir. Ct., CV D. Ariz., CV PXH-DGC S.D.N.Y., 04-cv-7897 Shoukry v. Fisher-Price, Inc. (Toy Safety) In re: Guidant Corp. Plantable Defibrillators Prod s Liab. Litigation S.D.N.Y., 07-cv-7182 D. Minn., MDL No Clark v. Pfizer, Inc (Neurontin) C.P. Pa., Angel v. U.S. Tire Recovery (Tire Fire) W. Va. Cir. Ct., 06-C-855 In re TJX Companies Retail Security Breach Litigation D. Mass., MDL No Webb v. Liberty Mutual Insurance Co. Shaffer v. Continental Casualty Co. (Long Term Care Ins.) Palace v. DaimlerChrysler (Defective Neon Head Gaskets) Lockwood v. Certegy Check Services, Inc. (Stolen Financial Data) Sherrill v. Progressive Northwestern Ins. Co. Gunderson v. F.A. Richard & Assocs., Inc. (AIG) Jones v. Dominion Resources Services, Inc. Ark. Cir. Ct., CV C.D. Cal., SACV PSG Ill. Cir. Ct., 01-CH M.D. Fla., 8:07-cv-1434-T-23TGW 18 th D. Ct. Mont., DV th Jud. D. Ct. La., D S.D. W. Va., 2:06-cv PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

201 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 41 of 71 Gunderson v. F.A. Richard & Assocs., Inc. (Wal-Mart) 14 th Jud. D. Ct. La., D In re Trans Union Corp. Privacy Litigation N.D. Ill., MDL No. 350 Gudo v. The Administrator of the Tulane Ed. Fund La. D. Ct., 2007-C-1959 Guidry v. American Public Life Insurance Co. 14 th Jud. D. Ct. La., McGee v. Continental Tire North America Sims v. Rosedale Cemetery Co. D.N.J., 2:06-CV (GEB) W. Va. Cir. Ct., 03-C-506 Gunderson v. F.A. Richard & Assocs., Inc. (Amerisafe) 14 th Jud. D. Ct. La., In Re Katrina Canal Breaches Consolidated Litigation E.D. La., In re Department of Veterans Affairs (VA) Data Theft Litigation Dolen v. ABN AMRO Bank N.V. (Callable CD s) Pavlov v. CNA (Long Term Care Insurance) Steele v. Pergo( Flooring Products) Opelousas Trust Authority v. Summit Consulting Little v. Kia Motors America, Inc. (Braking Systems) Boone v. City of Philadelphia (Prisoner Strip Search) In Re Countrywide Customer Data Breach Litigation Miller v. Basic Research (Weight-loss Supplement) D.D.C., MDL No Ill. Cir. Ct., 01-L-454 and 01-L-493 N.D. Ohio, 5:07cv2580 D. Or., 07-CV BR 27 th Jud. D. Ct. La., 07-C-3737-B N.J. Super. Ct., UNN-L E.D. Pa., 05-CV-1851 W.D. Ky., MDL No.1998 D. Utah, 2:07-cv TS Gunderson v. F.A. Richard & Assocs., Inc. (Cambridge) 14 th Jud. D. Ct. La., Weiner v. Snapple Beverage Corporation Holk v. Snapple Beverage Corporation Coyle v. Hornell Brewing Co. (Arizona Iced Tea) S.D.N.Y., No. 07-CV D.N.J., No 3:07-CV MJC-JJH D.N.J., No. 08-CV-2797-JBS-JS In Re: Heartland Data Security Breach Litigation S.D. Tex., MDL No Satterfield v. Simon & Schuster, Inc. (Text Messaging) Schulte v. Fifth Third Bank (Overdraft Fees) Trombley v. National City Bank (Overdraft Fees) Vereen v. Lowe s Home Centers (Defective Drywall) Mathena v. Webster Bank, N.A. (Overdraft Fees) Delandro v. County of Allegheny (Prisoner Strip Search) N.D. Cal., No. 06-CV-2893 CW N.D. Ill., No. 1:09-CV D.D.C., No. 1:10-CV Ga. Super. Ct., SU10-CV-2267B D. Conn, No. 3:10-cv W.D. Pa., No. 2:06-cv PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

202 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 42 of 71 Gunderson v. F.A. Richard & Assocs., Inc. (First Health) 14 th Jud. D. Ct. La., Williams v. Hammerman & Gainer, Inc. (Hammerman) Williams v. Hammerman & Gainer, Inc. (Risk Management) Williams v. Hammerman & Gainer, Inc. (SIF Consultants) Gwiazdowski v. County of Chester (Prisoner Strip Search) Williams v. S.I.F. Consultants (CorVel Corporation) 27 th Jud. D. Ct. La., No. 11-C-3187-B 27 th Jud. D. Ct. La., No. 11-C-3187-B 27 th Jud. D. Ct. La., No. 11-C-3187-B E.D. Pa., No. 2:08cv th Jud. D. Ct. La., No. 09-C-5244-C Sachar v. Iberiabank Corporation (Overdraft Fees) S.D. Fla., MDL No LaCour v. Whitney Bank (Overdraft Fees) Lawson v. BancorpSouth (Overdraft Fees) M.D. Fla., No. 8:11cv1896 W.D. Ark., No. 1:12cv1016 McKinley v. Great Western Bank (Overdraft Fees) S.D. Fla., MDL No Wolfgeher v. Commerce Bank (Overdraft Fees) S.D. Fla., MDL No Harris v. Associated Bank (Overdraft Fees) S.D. Fla., MDL No Case v. Bank of Oklahoma (Overdraft Fees) S.D. Fla., MDL No Nelson v. Rabobank, N.A. (Overdraft Fees) Cal. Super. Ct., No. RIC Fontaine v. Attorney General of Canada (Stirland Lake and Cristal Lake Residential Schools) Opelousas General Hospital Authority v. FairPay Solutions Marolda v. Symantec Corporation (Software Upgrades) In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 Economic and Property Damages Settlement In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 Medical Benefits Settlement Vodanovich v. Boh Brothers Construction (Hurricane Katrina Levee Breaches) Gessele et al. v. Jack in the Box, Inc. Ont. Super. Ct., 00-CV CP 27 th Jud. D. Ct. La., 12-C-1599-C N.D. Cal., No. 3:08-cv E.D. La., MDL No E.D. La., MDL No E.D. La., 05-cv-4191 D. Or., No. 3:10-cv-960 Duval v. Citizens Financial Group, Inc. (Overdraft Fees) S.D. Fla., MDL No Mosser v. TD Bank, N.A. (Overdraft Fees) S.D. Fla., MDL No In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Mastercard & Visa) Saltzman v. Pella Corporation (Building Products) E.D.N.Y., MDL No N.D. Ill., No. 06-cv-4481 In Re: Zurn Pex Plumbing, Products Liability Litigation D. Minn., MDL No PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

203 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 43 of 71 Blahut v. Harris, N.A. (Overdraft Fees) S.D. Fla., MDL No Eno v. M & I Marshall & Ilsley Bank (Overdraft Fees) S.D. Fla., MDL No Casayuran v. PNC Bank (Overdraft Fees) S.D. Fla., MDL No Anderson v. Compass Bank (Overdraft Fees) S.D. Fla., MDL No Evans, et al. v. TIN, Inc. (Environmental) Opelousas General Hospital Authority v. Qmedtrix Systems, Inc. Williams v. SIF Consultants of Louisiana, Inc. et al. Miner v. Philip Morris Companies, Inc. et al. Fontaine v. Attorney General of Canada (Mistassini Hostels Residential Schools) Glube et al. v. Pella Corporation et al. (Building Products) Yarger v. ING Bank Price v. BP Products North America National Trucking Financial Reclamation Services, LLC et al. v. Pilot Corporation et al. Johnson v. Community Bank, N.A. et al. (Overdraft Fees) Rose v. Bank of America Corporation, et al. (TCPA) McGann, et al., v. Schnuck Markets, Inc. (Data Breach) E.D. La., No. 2:11-cv th Jud. D. Ct. La., No. 12-C-1599-C 27 th Jud. D. Ct. La., No. 09-C-5244-C Ark. Cir. Ct., No. 60CV Qué. Super. Ct., No & No (Hull) Ont. Super. Ct., No. CV CP D. Del., No LPS N.D. Ill, No. 12-cv E.D. Ark., No. 4:13-cv JMM M.D. Pa., No. 3:12-cv RDM N.D. Cal., No. 11-cv EJD Mo. Cir. Ct., No CC00800 Simmons v. Comerica Bank, N.A. (Overdraft Fees) S.D. Fla., MDL No George Raymond Williams, M.D., Orthopedic Surgery, a Professional Medical, LLC, et al. v. Bestcomp, Inc., et al. Simpson v. Citizens Bank (Overdraft Fees) In re: Plasma-Derivative Protein Therapies Antitrust Litigation In re: Dow Corning Corporation (Breast Implants) 27 th Jud. D. Ct. La., No. 09-C-5242-B E.D. Mich, No. 2:12-cv N.D. Ill, No. 09-CV-7666 E.D. Mich., No. 00-X-0005 Mello et al v. Susquehanna Bank (Overdraft Fees) S.D. Fla., MDL No Crystle Wong v. Alacer Corp. (Emergen-C) In re American Express Anti-Steering Rules Antitrust Litigation (II) (Italian Colors Restaurant) Cal. Super. Ct., No. CGC E.D.N.Y., No. 11-MD-2221 Costello v. NBT Bank (Overdraft Fees) Sup. Ct. Del Cnty., N.Y., No Hilsoft-cv-132 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

204 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 44 of 71 Attachment 2

205 d jlk Document Entered on FLSD Docket 01/07/ * * ADFFATFADTADDFTTFFFFTFAFDFDFFAADDDDTFDATFFDFTTDAATFDFDDAAAFTDDFDT

206 d jlk Document Entered on FLSD Docket 01/07/

207 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 47 of 71 Attachment 3

208 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 48 of 71 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A federal court authorized this notice. This is not a solicitation from a lawyer. A $4 million Settlement has been reached in a class action about the order in which M&T Bank posted Debit Card Transactions to customer Accounts, and the alleged effect the posting order had on the number of overdraft fees charged to Account holders. M&T Bank maintains that there was nothing wrong about the posting process used and that it has not violated any laws. Current and former holders of M&T Bank consumer checking accounts may be eligible for a payment or Account credit from the Settlement Fund. Your legal rights are affected whether you act or don t act. Read this notice carefully. SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT Receive A Payment Or Account Credit Exclude Yourself From The Settlement Object Go to a Hearing Do Nothing If you are entitled under the Settlement to a payment or Account credit, you do not have to do anything to receive it. If the Court approves the Settlement and it becomes final and effective, and you remain in the Settlement Class, you will automatically receive a payment or Account credit. Receive no benefit from the Settlement. This is the only option that allows you to retain your right to bring any other lawsuit against M&T Bank about the claims in this case. Write to the Court if you do not like the Settlement. Ask to speak in Court about the fairness of the Settlement. You will receive any payment or Account credit to which you are entitled, and will give up your right to bring your own lawsuit against M&T Bank about the claims in this case. These rights and options and the deadlines to exercise them are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement. Payments and Account credits will be provided if the Court approves the Settlement and after any appeals are resolved. Please be patient. Questions? Call or visit

209 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 49 of 71 WHAT THIS NOTICE CONTAINS BASIC INFORMATION... PAGE 3 1. Why is there a notice? 2. What is this lawsuit about? 3. What is an Overdraft fee? 4. Why is this a class action? 5. Why is there a Settlement? WHO IS IN THE SETTLEMENT... PAGE 3 6. Who is included in the Settlement? THE SETTLEMENT S BENEFITS... PAGE 4 7. What does the Settlement provide? 8. How do I receive a payment or Account credit? 9. What am I giving up to stay in the Settlement Class? EXCLUDING YOURSELF FROM THE SETTLEMENT... PAGE How do I get out of the Settlement? 11. If I do not exclude myself, can I sue M&T Bank for the same thing later? 12. If I exclude myself from the Settlement, can I still receive a payment? THE LAWYERS REPRESENTING YOU... PAGE Do I have a lawyer in this case? 14. How will the lawyers be paid? OBJECTING TO THE SETTLEMENT... PAGE How do I tell the Court that I don t like the Settlement? 16. What s the difference between objecting and excluding? THE COURT S FINAL APPROVAL HEARING... PAGE When and where will the Court decide whether to approve the Settlement? 18. Do I have to come to the hearing? 19. May I speak at the hearing? IF YOU DO NOTHING... PAGE What happens if I do nothing at all? GETTING MORE INFORMATION... PAGE How do I get more information? Questions? Call or visit 2

210 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 50 of Why is there a notice? BASIC INFORMATION A Court authorized this notice because you have a right to know about the proposed Settlement of this class action lawsuit and about all of your options, before the Court decides whether to give final approval to the Settlement. This notice explains the lawsuit, the Settlement and your legal rights. Senior Judge James Lawrence King, of the U.S. District Court for the Southern District of Florida, is overseeing this case. The case is known as In Re: Checking Account Overdraft Litigation, 1:09-MD JLK. The person who sued is called the Plaintiff. The Defendant is M&T Bank. 2. What is this lawsuit about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff argues results in an increased number of Overdraft Fees assessed to customers. The complaint in this Action is posted on this website, and contains all of the allegations and claims asserted against M&T Bank. M&T Bank maintains that there was nothing wrong about the posting process it used and that it has not violated any laws. 3. What is an Overdraft fee? An overdraft fee may be assessed when a customer s withdrawals from a bank account exceed the available balance. 4. Why is this a class action? In a class action, one or more people called class representatives (in this case, one M&T Bank customer who was assessed Overdraft Fees) sue on behalf of people who have similar claims. All of the people who have claims similar to the class representatives are members of the Settlement Class, except for those who timely exclude themselves from the class. 5. Why is there a Settlement? The Court has not decided in favor of either Plaintiff or M&T Bank. Instead, both sides agreed to the Settlement. By agreeing to the Settlement, the Parties avoid the costs and uncertainty of a trial, and Settlement Class Members receive the benefits described in this notice. The class representatives and their attorneys think the Settlement is best for everyone who is affected. WHO IS IN THE SETTLEMENT? If you received notice of the Settlement from a postcard addressed to you, then you are in the Settlement Class. But even if you did not receive a postcard with Settlement notice, you may still be in the Settlement Class, as described below. Questions? Call or visit 3

211 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 51 of Who is included in the Settlement? You are included in the Settlement Class if you had one or more M&T Bank consumer checking accounts that you could access with a Debit Card and, at any time from August 21, 2006 through August 15, 2010, incurred an overdraft fee as a result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period. If this happened to you, you may be in the Settlement Class. If it did not happen to you, you are not a member of the Settlement Class. Further, you are not eligible for a payment under the Settlement if your Account was closed with a negative balance and the amount of the benefits that would otherwise be provided for in the Settlement would be insufficient to make the balance in that Account positive. You may contact the Settlement Administrator if you have any questions as to whether you are in the Settlement Class. 7. What does the Settlement provide? THE SETTLEMENT S BENEFITS M&T Bank has agreed to establish a Settlement Fund of $4 million from which Settlement Class Members may receive payments or Account credits. The amount of such payments or Account credits cannot be determined at this time. However, it will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order practice. M&T Bank will separately pay for Settlement administration and related costs; such amounts will not come out of the $4 million Settlement Fund. However, M&T Bank may be entitled to reimbursement of some or all of the costs it paid if there are residual funds in the Settlement Fund after Settlement Class Members receive their payments or Account credits. 8. How do I receive a payment or Account credit? If you are in the Settlement Class and entitled to receive a cash benefit, you do not need to do anything to receive a payment or Account credit. If the Court approves the Settlement and it becomes final and effective, you will automatically receive a payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. 9. What am I giving up to stay in the Settlement Class? Unless you exclude yourself from the Settlement Class, you cannot sue, continue to sue or be part of any other lawsuit against M&T Bank about the legal issues in this case. It also means that all of the decisions by the Court will bind you. The Release of Claims included in the Settlement Agreement describes the precise legal claims that you give up if you remain in the Settlement. The Settlement Agreement is available at Questions? Call or visit 4

212 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 52 of 71 EXCLUDING YOURSELF FROM THE SETTLEMENT If you do not want benefits from the Settlement, and you want to keep the right to sue or continue to sue M&T Bank on your own about the legal issues in this case, then you must take steps to get out of the Settlement. This is called excluding yourself or it is sometimes referred to as opting-out of the Settlement Class. 10. How do I get out of the Settlement? To exclude yourself from the Settlement, you must send a letter that includes the following: Your name, address and telephone number; A statement that you want to be excluded from the M&T Bank Settlement in In Re: Checking Account Overdraft Litigation, 1:09-MD JLK; and Your signature. You must mail your exclusion request, postmarked no later than January 28, 2015, to: Checking Account Overdraft Litigation Exclusions P.O. Box 3207 Portland, OR If I do not exclude myself, can I sue M&T Bank for the same thing later? No. Unless you exclude yourself, you give up the right to sue M&T Bank for the claims that the Settlement resolves. You must exclude yourself from this Settlement Class in order to try to pursue your own lawsuit. 12. If I exclude myself from the Settlement, can I still receive a payment? No. You will not receive a payment or Account credit if you exclude yourself from the Settlement. 13. Do I have a lawyer in this case? THE LAWYERS REPRESENTING YOU The Court has appointed a number of lawyers to represent you and others in the Settlement Class as Settlement Class Counsel, including: Robert C. Gilbert Grossman Roth, P.A Ponce de Leon Blvd., Suite 1150 Miami, FL Settlement Class Counsel will represent you and others in the Settlement Class. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. Questions? Call or visit 5

213 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 53 of How will the lawyers be paid? Class Counsel intends to request up to 30% of the money in the Settlement Fund for attorneys fees, plus reimbursement of their expenses incurred in connection with prosecuting this case. The fees and expenses awarded by the Court will be paid out of the Settlement Fund. The Court will determine the amount of fees and expenses to award. Class Counsel will also request that up to $10, be paid from the Settlement Fund to the one class representative for her service to the entire Settlement Class. OBJECTING TO THE SETTLEMENT You can tell the Court that you do not agree with the Settlement or some part of it. 15. How do I tell the Court that I don t like the Settlement? If you are a Settlement Class Member, you can object to any part of the Settlement, the Settlement as a whole, Class Counsel s requests for fees and expenses and/or Class Counsel s request for a Service Award for the class representative. To object, you must submit a letter that includes the following: The name of this case, which is In Re: Checking Account Overdraft Litigation, 1:09-MD JLK; Your full name, address and telephone number; An explanation of the basis upon which you claim to be a Settlement Class Member; All grounds for the objection, accompanied by any legal support for the objection known to you or your counsel; 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; The number of times in which 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 or opinions related to or ruling upon the prior objections that were issued by the trial and appellate courts in each listed case; Any and all agreements that relate to the objection or the process of objecting whether written or verbal between you or your counsel and any other person or entity; The identity of all counsel representing you who will appear at the hearing that the Court has scheduled to determine whether to grant final approval to the Settlement and Class Counsel s request for attorneys fees and service awards to Plaintiff (the Final Approval Hearing ); The number of times in which your counsel and/or counsel s law firm 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 counsel or the firm has made such objection and a copy of any orders related to or ruling upon counsel s or the firm s prior objections that were issued by the trial and appellate courts in each listed case; A list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; Questions? Call or visit 6

214 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 54 of 71 A statement confirming whether you intend to personally appear and/or testify at the Final Approval Hearing; and Your signature (an attorney s signature is not sufficient). You must submit your objection to all the people listed below, postmarked no later than January 28, 2015: Clerk of the Court U.S. District Court for the Southern District of Florida James Lawrence King Federal Justice Building 99 Northeast Fourth Street Miami, FL Robert C. Gilbert Grossman Roth P.A Ponce de Leon Blvd., Suite 1150 Miami, FL What s the difference between objecting and excluding? Checking Account Overdraft Litigation P.O. Box 3207 Portland, OR James A Dunbar Venable LLP 210 West Pennsylvania Ave., Suite 500 Towson, MD Objecting is telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you don t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object to the Settlement because it no longer affects you. THE COURT S FINAL APPROVAL HEARING The Court will hold the Final Approval Hearing to decide whether to approve the Settlement and the request for attorneys fees and Service Awards for Plaintiff. You may attend and you may ask to speak, but you don t have to do so. 17. When and where will the Court decide whether to approve the Settlement? The Court will hold a Final Approval Hearing at 10:30 a.m. on March 4, 2015, at the United States District Court for Southern District of Florida, Miami Division, located at James Lawrence King Federal Justice Building, 99 Northeast Fourth Street, Miami, FL The hearing may be moved to a different date or time without additional notice, so it is a good idea to check for updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. The Court will also consider any request by Class Counsel for attorneys fees and expenses and for service awards for Plaintiff. If there are objections, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. 18. Do I have to come to the hearing? No. Class Counsel will answer any questions the Court may have. But, you may come at your own expense. If you send an objection, you don t have to come to Court to talk about it. As long as you submitted your written objection on time, to the proper address and it complies with the Questions? Call or visit 7

215 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 55 of 71 requirements set forth above, the Court will consider it. You may also pay your own lawyer to attend, but it s not necessary. o come to the hearing? 19. May I speak at the hearing? You may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your Notice of Intention to Appear must include the following: Your name, address and telephone number; A statement that this is your Notice of Intention to Appear at the Final Approval Hearing for the M&T Bank Settlement in In Re: Checking Account Overdraft Litigation, 1:09-MD JLK; The reasons you want to be heard; Copies of any papers, exhibits, or other evidence or information that is to be presented to the Court at the Final Approval Hearing; and Your signature. You must submit your Notice of Intention to Appear, so that it is postmarked no later than January 28, 2015, to all of the addresses in Question What happens if I do nothing at all? IF YOU DO NOTHING If you do nothing, you will still receive the benefits to which you are entitled. Unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit or be part of any other lawsuit against M&T Bank relating to the issues in this case. 21. How do I get more information? GETTING MORE INFORMATION This Detailed Notice summarizes the proposed Settlement. More details can be found in the Settlement Agreement. You can obtain a copy of the Settlement Agreement at You may also write with questions to Checking Account Overdraft Litigation, P.O. Box 3207, Portland, OR , or call the toll-free number, Do not contact M&T Bank or the Court for information. Questions? Call or visit 8

216 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 56 of 71 Attachment 4

217 LEGAL NOTICE JLK Document Entered on FLSD Docket 01/07/2015 If You Paid Overdraft 71Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit about the order in which M&T Bank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What s this about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who s included? You are included in the Settlement Class if you: Had one or more M&T Bank consumer checking Accounts that you could access with a Debit Card at any time from August 21, 2006 through August 15, 2010; and Incurred an Overdraft Fee as a result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period and they must have been caused by the practice. What are the Settlement terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order. How do I get a payment? If you are included in the Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective, you will receive an automatic payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. If you do not want to be legally bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by January 28, If you do not exclude yourself, you will release claims that were or could have been made against M&T Bank. If you stay in the Settlement Class, you may object to the Settlement by January 28, The Court has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, and expenses of up to 30% of the Settlement Fund. You can appear at the hearing, but you don t have to. You can hire your own attorney, at your own expense, to appear or speak for you at the hearing. You can call the toll-free number or visit the website to learn more about how to exclude yourself from or object to the Settlement

218 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 58 of 71 Attachment 5

219 VEGET BLES MOS More Airline Miles! Pope Francis turns Christmas greeting into dressing-down To the Catholic Church s seven deadly sins, Pope Francis has added the 15 ailments of the Curia. Francis issued a blistering indictment of the Vatican bureaucracy Monday, accusing the cardinals, bishops and priests who servehimofusingtheir Vatican careers to grab power and wealth, of living hypocritical double lives and forgetting that they re supposed to be joyful men of God. Francis turned the traditional, genteel exchange of Christmas greetings into a public dressingdownofthecuria,the central administration of theholyseewhichgoverns the 1.2 billion-strong Thanks Again Rewards Program Earn airline frequent lier miles or hotel rewardseach timeyou park,shop and dine at Albany International Airport. Enrollment is free, secure and convenient. Register your creditor debitcard at or by texting FlyALB to Upon enrolling, you will receive 100airlinemilesor200hotel pointsasabonus. Associated Press Pope Francis turned the exchange of holiday greetings with cardinals and bishops of the Vatican Curia in the Clementine hall at the Vatican on Monday into a blistering critique. Catholic Church. He made clearthathisplansfora radical reform of the structures of church power must be accompanied byanevenmoreradical spiritual reform of the men involved. Ticking off 15 ailments ofthecuria onebyone, Francis urged the prelates sitting stone-faced before him in the marbled Sala Clementina to use the Christmas season to repent and atone and make the church a healthier, holier place in Vatican watchers said they had never heard such a powerful, violent speech from a pope and suggested thatitwasinformedbythe results of a secret investigation ordered up by EmeritusPopeBenedictXVIin the aftermath of the 2012 leaks of his papers. Benedicttaskedthree trustedcardinalstoprobe deep into the Vatican s backstabbing culture to rootoutwhatwouldhave prompted a papal butler to stealincriminatingdocumentsandleakthemtoa journalist. Their report isknownonlytothetwo popes. Francishadsome zingers: How the terrorism of gossip can kill the reputation of our colleagues and brothers in cold blood. How cliques can enslave their members andbecomeacancerthat threatens the harmony of the body and eventually kill it off by friendly fire. How some suffer from spiritualalzheimer s, forgetting what drew them tothepriesthoodinthe first place. TheCuriaiscalledon to always improve itself and grow in communion, holiness and knowledge to fulfill its mission, Francis said. Butevenit,asany human body, can suffer from ailments, dysfunctions, illnesses. Francis, who is the first Latin American pope andneverworkedinthe Italian-dominatedCuria beforehewaselected,has not shied from complaining about the gossiping, careerismandbureaucratic power intrigues that afflict the Holy See. Butayearintohis reform agenda, Francis seemed even more emboldened to make clear to the prelates themselves that superficial displays ofchangearen twhatheis looking for. albany, new york TImes union JUSTBOOK DON TCOOK! Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 59 of CatholiC ChurCh71 Join us for the best authentic ndian food in town! DISHOFTHEMONTH: PopeassailsVaticanculture Chicken Tikka Masala Over 35IndianDishes to choose from 244 Washington Ave., Albany vorsoindi t lb ny.com ind us on f cebook Now Open Tuesday to Sunday Work on your swing all winter long! Burden Lake Country Club s Indoors Golf Simulators 162 Totem Road, Averill Park, NY (518) A4 Tuesday, december 23, 2014 CHILIP NEER Associated Press Vatican City Thisisaspeechwithout historic precedent, church historian Alberto Melloni, a contributor to Italian daily Corriere della Sera, said in a telephone interview. If the pope uses this tone, it s because he knows it s necessary. Melloni noted that until Francis was elected, the Vatican bureaucracy largelyansweredtonoone.st. JohnPaulIIwastoobusy traveling the world, and latertoosick,topayattention to administrative details, and Benedict left the minutiae of running a government to his deputy, later determined to have been part of the problem. The Rev. Robert Wister, a church historian at Seton Hall University, said Francis was essentially asking the Curia to undergo an examination of conscience, asking them toreflectonhowtheyhad sinned before God. Perhaps he believes that only a severe rebuke can help turn things around, he said. The cardinals were not amused. Few smiled as Francis spoke, and at the end they offered only tepid applause to a speech that was so carefully prepared it had footnotes and biblicalreferences.francis greetedeach one, but there was little Christmas cheer intheroom. Itisadifficulttimefor the Curia. Francis and his nine key cardinal advisers aredrawingupplansto revamp the whole bureaucratic structure,merging officestomakethemmore efficient and responsive. Francis has said though that while this structural reform is moving ahead, what is taking much longer is the spiritual reform of the people involved. LEGAL NOT CE If You Paid Overdraft Fees to M&T Ba k, You May Be Eligible for a Payme t from a Class Actio Settleme t. A $4 millio Settleme t has bee reached i a class actio lawsuit about the order i which M&T Ba k posted Debit Card Tra sactio s to customer Accou ts. Curre t a d formercustomers maybei cluded. What s this about? ThelawsuitclaimsthatM&TBa k posted Debit Card Tra sactio s i the order of highest to lowest dollar amou t, which Plai tiff alleges resulted i a i creased umber of OverdraftFeesassessedtocustomers. M&T Ba k mai tai s there is othi g wro g about the posti g process used. Who s i cluded? You are i cluded i the Settleme t Classif you: Had o e or more M&T Ba k co sumer checki g Accou ts that you could access with a Debit Card at a y time from August 21, 2006 throughaugust15,2010;a d I curred a Overdraft Fee as a result of M&T Ba k s practice of posti gdebitcardtra sactio sfrom highest to lowest dollar amou t. I order to have i curred a Overdraft Fee as a result of this practice, you musthavehadtwoormoreoverdraft Fees assessed o o e or more days duri gthattimeperioda dtheymust havebee caused by thepractice. What are the Settleme t terms? M&T Ba k has agreed to establish a Settleme t Fu d of $4 millio that will provide payme ts or Accou t credits to eligible members of the Settleme t Class. The amou t a y i dividual member of the Settleme t Class will receive ca ot be determi ed at this time. Payme ts will be based o the umber of Settleme t Class Members a d the amou t of Additio al Overdraft Fees each Settleme t Class Member paid as a result of M&T Ba k s posti gorder. How do I get a payme t? If you are i cluded i the Settleme t Class a d e titled to a payme t or Accou t credit, o ce the Court approves the Settleme t a d it becomes fi al a d effective, you will receive a automatic payme t or Accou t credit for your pro ra a portio ofeligibleoverdraftfeesyou paid duri g the time period covered by thesettleme t. Your rights may be affected. If you do ot wa t to be legally bou d by the Settleme t, you must ask (i writi g) to be excluded from the Settleme t Class by January 28, If you do ot exclude yourself, you will release claims that were or could have bee made agai st M&T Ba k. If you stay i the Settleme t Class, you may object to the Settleme t by January 28, The Court has scheduled a heari g o Marc 4, 2015 to co sider whether to approve the Settleme t a d a request for attor eys fees, costs, a d expe ses of up to 30% of the Settleme t Fu d. You ca appear at the heari g, but you do t have to. You ca hire your ow attor ey, at your ow expe se, to appear or speak for you at the heari g.you ca call the toll-free umber or visit the website to lear more about how to exclude yourself from or object to thesettleme t. t.com St. Peter s Health Partners Med cal Assoc ates Welcomes Yul a K rkpatr ck, ANP-BC Advanced Nurse Pract t oner St. Peter s Health Partners Medical Associates(SPHPMA) is pleased to welcome Yulia Kirkpatrick to Saratoga Cardiology Associates in Saratoga Springs, New York. Kirkpatrick is an advanced nurse practitioner with board certification in adult medicine. She received her adult nurse practitioner certification from Sage Graduate School in Troy, NewYork,whereshehadalso New Pat ents Welcome SARATOGA CARDIOLOGY ASSOCIATES 6 Care Lane Saratoga Spr ngs, NY (518) earned her master s degree in nursing. SPHPMA,withmorethan35 physicians and advanced practitionersinmorethan7 locations, is ailiated with St. Peter s Health Partners the region s largest and most comprehensive not-for-profit network of high quality, advanced medical care, primary care, rehabilitation and senior services. Medi alasso iates sphp.com

220 MARYLAND Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 60 of 71 TUESDAY, DECEMBER 23, 2014 NEWS THE BALTIMORE SUN 125,000useI-95expresstolllanesinfirstweek MdTA saystheearlydata is not surprising, as drivers getusedtonewoption By Kevin Rector The Baltimore Sun Nearly 125,000 drivers used the new Interstate 95 express lanes north of Baltimore during the first week of toll collections, according to the Maryland Transportation Authority. That s fewer than half of the more than 270,000 drivers who used the lanes the week before, when they were free so the public could try them out. Bruce Gartner, the MdTA s executive secretary, said the numbers were not surprising. He also said he was pleased with the usage and general response to the new lanes,butwasnotusingtheearlynumbers to make any long-term predictions. People have to get used to factoring [tolls] into their monthly commuting habits and their budgets, he said. The early data will be used in benchmarking for the future, he said. The MdTA opened the lanes for a week offreeusefromdec.6todec.12.tollswent into effect Dec.13. The lanes were built as part of a larger $1.1 billion project to reconstruct the corridor, which about 177,000 vehicles use each day. Duringtheweekoffreeuse,270,052trips were made on the new lanes, split about equally between northbound and southbound traffic. The number of users who had E-ZPass was not tracked. During the first week of tolling, from Dec. 13 to Dec.19,124,733 trips were made, also almost equally split between northbound and southbound traffic. Of those trips, 11,495 or about 9.2 percent were made by drivers without 3 E-ZPass devices, who will receive notices of video tolls due in the mail charging them about1 1 2timestheE-ZPassrates. Gartner said the price increase for drivers without E-ZPass was designed to pay for the additional administrative costs associated with mailing the fees, not to make more money. Cheryl Sparks, an MdTA spokeswoman, said the agency doesn t yet have revenue numbersforthefirstweekoftollingoni-95, which can t be estimated simply based on volume and rates because rates vary by vehicle size. krector@baltsun.com twitter.com/rectorsun CHRISTMAS CLOSINGS This schedule will be in effect Thursday. Government offices Closed in Anne Arundel and Baltimore counties and Baltimore City. Closed Thursday-Friday in Carroll and Harford counties and Annapolis; and Dec. 25-Jan. 2 in Howard County. Courts Closed Thursday-Friday in all jurisdictions. Public schools Closed for winter break. Libraries Closed in Baltimore City. Closed Wednesday-Thursday in Anne Arundel, Baltimore, Carroll, Frederick and Howard counties. Closed Wednesday-Friday in Harford. Trash No pickup in Anne Arundel, Baltimore and Howard counties, and in Baltimore City and Annapolis. Check with contractor in Carroll, Frederick and Harford counties. Parking meters Free in all jurisdictions. Transit MTA buses: Holiday schedule Charm City Circulator: Closed Subway (Metro): Holiday schedule Light rail: Holiday schedule MTA commuter buses: No service MARC: No service Mobility: Holiday MTA Certification office: Closed Wednesday-Thursday MTA Transit Store: Closed Wednesday-Thursday Mondawmin Customer Service Center Booth: Closed Wednesday-Thursday Regional Transportation Agency: No service Transit closed Thursday in Baltimore, Carroll and Harford counties, and in Annapolis. Services Banks, S&Ls: Closed Federal offices: Closed Federal courts: Closed Post office: No regular delivery State offices: Closed Wednesday-Thursday MVA offices: Closed Wednesday-Thursday VEIP stations: Closed Wednesday-Thursday Attractions American Visionary Art Museum: Closed B&O Railroad Museum: Closed Wednesday-Thursday Baltimore Museum of Art: Closed Baltimore Museum of Industry: Closed Fort McHenry: Closed Maryland Science Center: Closed Maryland Zoo in Baltimore: Closed National Aquarium: Closed Port Discovery: Closed Wednesday-Thursday Lewis Museum: Closed Wednesday-Thursday Walters Art Museum: Closed Wednesday-Thursday ONLINE BALTIMORE DINER Check out some of the most notable restaurants to open in CORRECTIONS RAVENS Get player grades, see pictures and more from the Ravens loss to the Texans. NEW YEAR S EVE Find the top Baltimore-area events for greeting The Baltimore Sun is committed to providing fair and accurate coverage. 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Circulation/customer service or customersatisfaction@baltsun.com Sunstore Advertising Classified Main number News Sports Features Photography Maryland Voices Periodicals postage paid at Baltimore, MD(USPS ). Postmaster: Send address changes to The Baltimore Sun, P.O. Box 17162, Baltimore MD PERCENT OF OUR NEWSPRINT CONTAINS RECYCLED PAPER SINK, SWIMS or S CALLJES! ATION PROBLEM ACKED BRICKS? UNEVEN FLOORS? CR FREEInspections&Estimates! FREEInspectons&Estimates! E Call Foundation&Structural Repair Crawlspace Moisture Control BasementWaterprooing Systems Professional EngineersonStaff Lifetime Warranties Financing Available Since1993 $ 500 MC EN T? MOLD FUNGUS? UND TERMITES$ ROBLEMS? RICKS? UN KED Off! * MUSTYSME RS STI WS S?NA B UNG ES S,B *Anyjob over $3,000. Good only whendb presen tedattimeoffree inspection. Not FLO tobe combined with any other offer. KING? B WS? NASTYCRAWLS S E SBUGS RODENTS? F ES S,B ss OBLEMS? sewaltz, PE& Stella Waltz, CRACKED Owners B FLO TYSMELLS? STICKING? BO WS? NASTY LEGAL NOTICE If You Paid Overdraft Fees to M&T Bank, YouMay Be Eligible for apayment from a Class Action Settlement. A $4 million Settlement has been reached in a class actionlawsuit abouttheorderinwhichm&tbank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What sthis about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who sincluded? You are included in the Settlement Class if you: HadoneormoreM&TBank consumer checking Accounts that you could access with a Debit Card atanytimefromaugust21,2006 through August 15, 2010; and IncurredanOverdraft Feeasa result of M&T Bank spracticeof posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred anoverdraftfeeasaresultofthis practice,youmusthavehadtwoor more Overdraft Fees assessed on one ormoredaysduringthattimeperiod and they must have been caused by the practice. What arethe Settlement terms? M&T Bank has agreed to establish a SettlementFund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as aresult of M&T Bank s posting order. How do Iget apayment? If you areincluded in the Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective,you will receive an automatic payment or Account credit for your prorata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. Ifyoudonotwanttobelegally bound by the Settlement, you must ask (in writing) to be excluded from thesettlement Class by January 28, 2015.Ifyou do not exclude yourself, you will release claims that were or could have been made against M&T Bank. If you stay in the Settlement Class, you may object to the Settlement by January 28, 2015.TheCourt has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, andexpensesofupto30%ofthe Settlement Fund. Youcanappear at the hearing, butyoudon t have to. You can hire your own attorney, atyourownexpense,toappearor speakforyouatthehearing.you can call the toll-free number or visit thewebsitetolearnmoreabouthow to exclude yourself from or object to the Settlement

221 T UESDAY, DECEMBER 23, 2014 PRESS & SUN-BULLETIN 5C Orange Continued from Page 1C Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 61 of 71 S PORTS It s been difficult. We won t find out until we get to the tough games. We haven t played good when we had to. That s something we ll have to get better at. We ve had a lot of tough games. Ron Patterson had a career-high 13 points and Michael Gbinije 11 for the Orange, and the doubledouble for Christmas was his third of the season. It was very important, Christmas said. We had to put that loss behind us. Damon Sherman- Newsome led Colgate (3-9) with 13 points and Austin Tillotson had 11. Syracuse assumed a commanding lead at the start with a 16-0 run, utilizing a press that helped force Colgate to commit six turnovers. After Sherman-Newsome hit a 3-pointer from the left wing to pull Colgate within 6-5 less than four minutes in, Christmas started the Syracuse surge with a pair of free throws and Cooney converted a lay-in after missing a 3. Christmas followed with a reverse layup and then fed Tyler Roberson for a slam dunk to extend the lead to A dunk by Roberson, a layup by Patterson and Cooney s 3-pointer curling off a screen boosted the margin to Every time the Raiders worked the ball around for an open shot, they failed to capitalize. Colgate was 5 for 24 (20.8 percent) from the floor in the first half, hitting just 1 of 13 from long range. Pat Moore, a native of nearby LEGAL NOTICE If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit about the order in which M&T Bank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What s this about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who s included? You are included in the Settlement Class if you: consumer checking Accounts that you could access with a Debit Card at any time from August 21, 2006 through August 15, 2010; and result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period and they must have been caused by the practice. What are the Settlement terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be USA TODAY SPORTS Syracuse forward B.J. Johnson drives against Colgate guard Jordan Robinson during the Orange s win Monday. Whitesboro coming off a back injury, missed all four 3s he attempted and Sherman-Newsome was 1 for 6 from beyond the arc. Colgate shot 19 of 55 (34.5 percent) for the game, 3 of 23 (13 percent) on 3-pointers. We couldn t make anything, Colgate coach Matt Langel said. Even our best shooters were getting them (open looks) and they couldn t make them. That adds up real quick, and it can snowball. Two free throws by Sherman-Newsome stopped the Syracuse run and his layup with 10:11 made it 24-9, giving him all nine of Colgate s points. Luke Roh s layup with 3:41 left and a turnaround jumper in the lane by Ethan Jacobs 34 seconds later accounted for the Raiders other baskets in the period. When Cooney hit a jumper in the lane with 2:47 left, he had 14 points, one more than Colgate, which went into the locker room trailing Syracuse was 17 of 34 (50 percent) and forced 10 turnovers. The Orange finished 28 of 60 and 10 of 20 on 3- pointers, with Cooney hitting 4 of 9. If we win, I feel good at the end of the day, Cooney said. If we don t win, it doesn t matter how I play. It was a tough way to lose (to Villanova), but if we went in and got totally blown out, coming out here tonight would have been tough because we might think we re not that good. determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order. How do I get a payment? Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective, you will receive an automatic payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by January 28, 2015 exclude yourself, you will release claims that were or could have you stay in the Settlement Class, you may object to the Settlement by January 28, The Court has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, and expenses of up to 30% of the Settlement Fund. You can appear at the hearing, but you don t have to. You can hire your own attorney, at your own expense, to appear or speak for you at the hearing. 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222 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 62 of 71 The Buffalo News/Tuesday, December 23, 2014 National and State News A9 DeBlasiocallsforanendtorhetoric By Tina Susman andmichaelmuskal LOS ANGELES TIMES NewYorkTimes NewYorkMayorBilldeBlasioandPoliceCommissionerWilliamBrattonareshownat anewsconferenceatonepoliceplazainnewyorkcitymonday. DeBlasiocalledforan end to the demonstrations and the rhetoric surrounding the Police Department. NEWYORK MayorBillde Blasio, trying to staunch the bitter fallout from the weekend slayings of two policemen and salvage support from officers, called Monday for protesters who have alleged police brutality to halt their marches andforangryrhetorictoend. De Blasio made his commentsinaspeechtothepolice Athletic League, a nonprofit group, reaching out to officers whose union leaders have accusedhimofsidingwithdemonstrators who began almost daily marches in New York lastjulyafterthedeathoferic Garner during an altercation with police. Garner was an unarmed black man, and protesters have contended that he was representative of a policing style that is overly aggressive when dealing with minorities. Ismaaiyl Brinsley, a black man who shot dead the two New York policemen Saturday, invoked Garner s name in online anti-police messages posted before the killings. Union leaders have said Brinsley s act was perpetrated in part by de Blasio s decisiontoallowmarcherstotake to the streets in huge numbers.thewarofwordspeaked when Patrick Lynch, the president of the Patrolmen s Benevolent Association, said Saturday night that de Blasio had blood on his hands. I think it s important that regardless of people s viewpoints that everyone step back, de Blasio said after visitingthehomesoftheslainofficers, Wenjian Liu and Rafael Ramos. I think it s a time for everyone to put aside political debates, put aside protests, put aside all of the things that we willtalkaboutinallduetime. Describing the shooting, de Blasio said: It was an attack on every single New Yorker, andwehavetoseeitassuch. As he spoke, Garner s daughter, Emerald Garner, visited the growing memorial to Liu and Ramos outside the Brooklyn pizza shop where they were gunned down as theysatintheirpatrolcar.the Garner family has denounced the officers slayings, and Emerald Garner repeated the family s plea for calm as she stood near the memorial. We have to be peaceful, she said, urging activists who choose to keep demonstrating todosoinanon-violentmanner. There are ways you can do things without letting tragedies happen, said Garner, 23. We are not anti-police. The memorial to the slain officers has grown dramatically since Sunday and reflected the city s diversity. A Muslim prayer mat lay beside small Christmas trees, wreaths and scores of candles and bouquets. There was a large menorah, red white and blue bunting, an American flag and handwritten signs expressing support for police. A steady stream of people stopped by to kneel in prayer ortojustlookatthememorial and leave offerings. There salotofpain.it sso hardtomakesenseofit how one deeply troubled, violent individualcoulddothistothese good families, de Blasio said. It is unclear whether protest organizers or union officials will heed the calls to rein in their activities. On Sunday night, demonstrators who have taken part in past marches alleging police abuse were among those participating ina peacefulgathering in Harlem. None of the angry chants orbittersignsseeninpastprotests was evident, and many marchers said they attended to show their sympathy for the families of the slain policemen. Earlier Monday, Gov. Andrew M. Cuomo joined calls for a halt to angry rhetoric in thewake oftheweekendslayings of two policemen by a gunman whose actions have threatened to derail progress toward mending relations among police, politicians and activists demanding law enforcement reforms. Ithink it s time for a societal deep breath, Cuomo told WNYC radio. He did not specifically urge a halt to activists demonstrations alleging police brutality, but his message indicated that protests should beputonholdatleastthrough theendoftheweek,asshould provocative statements from leadersonallsidesoftheissue. Let s bring a moment of peace and calm, Cuomo said. Let s go to the funerals, let s joinwiththefamiliesingrieving, let s go through the holy week. Brinsley had posted anticop statements online before the shootings. But he had a long criminal history, had been treated for mental health issues, and had shot and wounded his ex-girlfriend outside Baltimore hours before comingtonewyork toattack the police. Officials say his true motivations are unclear, and most leaders in New York have described him as a thug and a madman rather than a killer with a political agenda. Whatever fueled Brinsley s rage,hisrampagehasledtoa polarization that Cuomo and other leaders, including Police Commissioner William Bratton,sayistearingatthefabric of the nation s largest city. It s starting to shape up along partisan lines, which is unfortunate, Bratton told NBC s Today on Monday. This is something that should be bringing us all together. He compared the tensions in New York to the 1970s in Boston,whenhewasapoliceman there during that city s racially tense period of courtordered busing to desegregate public schools. Who would ve ever thought deja vu all over again,thatwe dbebackwhere we were 40-some-odd years ago, Bratton said. Cuomo said the anger being expressed now was reminiscent of the rage that arose during some of New York City s most volatile moments, including the race riots in Crown Heights, Brooklyn, in 1991 and racially charged unrestthatoccurredinthehoward Beach neighborhood of Queens in Just as the city overcame those events, Cuomo said it can get through the current crisisifallsidestakea cooling offperiod. When people stop yelling, then they can start hearing, he said. AROUNDTHE STATE NEW YORK CITY Congressman to plead guiltyintaxfraud NEWYORK (Bloomberg News) Rep. Michael Grimm, a New York Republican re-elected this year, is set to plead guilty to federal charges inacaseoverallegationshe paid workers at his Manhattan restaurant off the books to evade taxes, a person familiar with the matter said. Grimm, who represents a district that includes StatenIslandandpartsof Brooklyn,willenteraplea Tuesday in Brooklyn federal court, according to court records. He is expected to plead guilty to aiding and assistinginthefilingofafalse tax return, according to the person familiar with the case whoaskednottobenamed because the information isn t public. The congressman was chargedinaprilina20-count indictment for purportedly underreporting workers wages at Healthalicious, a restaurant on Manhattan s Upper East side. Grimm kept two sets of books and concealed the under-the-table payments to the workers, many of whom were employed illegally, from payroll processing companies, prosecutors said. WATERTOWN Drive-by shooting nets man12yearsinprison WATERTOWN Acity man has been sentenced in GettyImages Rep. Michael Grimm, R-N.Y., shown here in April, allegedlykepttwosetsof books for his restaurant. Jefferson County Court to 12 yearsinstateprisonafterhe triedtokillathreemilebay maninadrive-byshootingin June Austen L.Scudera, 21, also was ordered on Friday to undergo an additional five years of supervision after pleading guiltyoct. 24 to second-degree attempted murder. Headmittedthatheshot agunataparkedvehicleon June 24, 2013, striking Robert C.HuntIII,whowasinthe vehicle s driver s seat. Hunt suffered unspecified serious wounds. LeviM. Smith, 18, of Watertown also has been charged with first-degree attempted murder in connection with the incident. - Watertown Daily Times Prosecutorwillnotcharge ex-officerwhokilledblack ByMonicaDavey NEW YORK TIMES NewYorkTimes ChristopherManneywas firedfromthe policeforce aftertheshooting. MILWAUKEE A former Milwaukee police officer will not face charges in the fatal shootingofablackmanheencountered in a park earlier this year, a prosecutor announced Monday. In recent demonstrations there, protesters asserted that the shooting was another example of needless force against black men by police officers. John T. Chisholm, the Milwaukee Countydistrict attorney, said the officer, Christopher Manney, who is white, wasjustifiedonapril30when he shot at Dontre Hamilton, who, the prosecutor said, had grabbed the officer s baton and wasswingingitathim.theofficer fired numerous times, killing Hamilton. The use of deadly force against Dontre Hamilton was notachoicepomanneymade voluntarily, but was instead a defensive action forced upon him by Dontre Hamilton s deadlyattackwithapolicebaton, Chisholm wrote in a 25- page report released Monday and quoting an independent use of force expert who reviewed the case for the prosecutor. For months, supporters in Milwaukee had called for charges against Manney, who was fired from the city police force after the shooting. Anger over the case gained momentum in Milwaukee after the mounting protests that followed the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in New York City. Officials in Wisconsin have said the state s National Guard have been alerted to the possibility of larger protests after more than 70 people were arrested during a weekend demonstration that blocked an Interstate highway. In the April shooting, Chisholm said the officer appeared to have fired 13 or 14 shotsinaboutthreeorfourseconds, a point that many demonstrators decried as unnecessary. Chisholm had turned to Emanuel Kapelsohn, of the Peregrine Corp., who he described as a leading national expert in use of force reviews. According to Kapelsohn s findings, The wound locations and wound paths through the deceased s body are consistent with shots fired at an attacker who is first advancing toward the officer, then turning and falling. While, as can be expected, the many witnesses to this event give varying accounts of what they saw and heard, several witnesses with the best, closest views of what occurred have stated that PO Manney stopped firing when Hamilton fell to the ground, and Manney did not continue firing after that point

223 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 63 of 71 STATE A6 TUESDAY, DECEMBER 23, 2014 LNP LANCASTER, PA SNIPER VICTIM Wounded trooper home for holidays LAURA MCCRYSTAL THE PHILADELPHIA INQUIRER The trooper wounded in the September shootings at the Blooming Grove state police barracks has returned home for the holidays. Trooper Alex Douglass left a rehabilitation center in New York to spend Christmas with his family in Lackawanna County, said Lt. Chris Paris, commander of the Blooming Grove station. His spirits are up, Paris said in an interview Monday. But Douglass still has a long road to recovery and will return to New York after the holidays for surgery and further treatment. The trooper was shot in a Sept. 12 ambush outside the state police barracks. Cpl. Bryon Dickson was killed in the attack, which led to a 48-day manhunt for accused shooter Eric Frein. Thank you all so much for your love, well wishes, and support! Douglass wrote in a message posted on Facebook by his brother. Frein was arrested Oct. 30 after weeks on the run in the woods of Pike and Monroe counties. His preliminary hearing is Jan. 5. Put your Feet up for the Holidays! COURT CHALLENGE Lawsuit claims Medicaid overhaul hurts enrollees MARC LEVY ASSOCIATED PRESS HARRISBURG Gov. Tom Corbett s plan to overhaul Pennsylvania s Medicaid program is being mishandled and, in less than 10 days, could create serious medical problems for people who are cut of from crucial health care beneits, lawyers for the poor argued Monday in a court challenge. The lawsuit, iled in federal court in Philadelphia, seeks to halt the diversion of Medicaid enrollees into new plans with limits designed for healthier adult Medicaid enrollees. The iling comes ahead of the Jan. 1 efective date for the Corbett administration s plan to restructure beneits in the health care program that currently serves 1.1 million adults. Including the expansion of Medicaid s guidelines under the 2010 federal law, Corbett s plan creates three beneit levels to replace the 14 currently in efect. Each Medicaid enrollee would be sorted into a beneit level based on their relative health and income. But Community Legal Services of Philadelphia and the National Health Law Program said reductions in beneits designed for working-age, ablebodied adults are being imposed without adequate notice or clear standards, and they asked a federal judge to stop the plan from taking efect until these concerns are addressed. The complaint was iled on behalf of two Philadelphia residents. Melissa Mendez, 33, is applying for Medicaid coverage. She was told she would be assigned to a plan that does not include dental beneits, even though she has three broken teeth in need of repair after a fall in October that also fractured her jaw. The other plaintif, Aminata Diao, 37, has a history of mental illness, sufers from depression and asthma and is recovering from an injured back. She was assigned to a plan that does not meet her needs even though she seems to qualify for a broader beneits package, Community Legal Services said. This is a system that nobody really understands how it works, the standards have not been made public, people got notices they didn t understand, or didn t get notices at all in some cases, and in the process people are going to lose beneits that they really need on January 1, said People are going to lose benefits that they really need on Jan. 1. Kristen Dama Community Legal Services lawyer Kristen Dama, a lawyer for Community Legal Services. The system violates the Social Security Act and constitutional guarantees of due process, the lawsuit said. In a statement Monday, the Corbett administration said it disagrees with the lawsuit s allegations and that it would work to avoid confusion or disruption of service. Hassocks and Ottomans Assorted Shapes, Sizes and Colors. Prices starting at $ 79 The Seating Specialists and More! Lancaster Road, Manheim (On Rt 72 one mile south of Manheim) Mon, Thurs 9am-9pm; Tues, Wed, Fri, Sat 9am- 5pm ADVERTISEMENT LEGAL NOTICE If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit about the order in which M&T Bank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What s this about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who s included? You are included in the Settlement Class if you: consumer checking Accounts that you could access with a Debit Card at any time from August 21, 2006 through August 15, 2010; and result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period and they must have been caused by the practice. What are the Settlement terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order. How do I get a payment? Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective, you will receive an automatic payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by January 28, 2015 exclude yourself, you will release claims that were or could have been stay in the Settlement Class, you may object to the Settlement by January 28, The Court has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, and expenses of up to 30% of the Settlement Fund. You can appear at the hearing, but you don t have to. You can hire your own attorney, at your own expense, to appear or speak for you at the hearing. You can call the toll-free number or visit the website to learn more about how to exclude yourself from or object to the Settlement ATTORNEY GENERAL Rep. again pushing Kane s ouster ANGELA COULOUMBIS THE PHILADELPHIA INQUIRER HARRISBURG State Rep. Daryl Metcalfe again is calling for the impeachment of Pennsylvania Attorney General Kathleen Kane. Metcalfe, a conservative Republican from Butler County, said Monday that he is circulating a resolution calling for Kane s impeachment because he questions her ability to perform the duties of her oice. ADVERTISEMENT She has displayed a blatant disregard and disrespect for the law, Metcalfe said in a statement. A spokeswoman for Kane said she would have no comment. It is the second time Metcalfe has pushed for Kane s impeachment. Earlier this year, the House State Government Committee, which Metcalfe chairs, held a hearing on a similar resolution. At the time, Democrats on the committee walked out, saying the proceeding was politically motivated and circumvented the normal process for impeachment hearings, which are rare in the Capitol. 25% OFF Some exclusions apply. Happy Holidays! Large Selection of Yellow Gold Classic Estate Jewelry 1818 Columbia Ave. Lancaster, PA See clear in the new year! EYECARE WITH AN EXPERT FOCUS Thomas F. Krulewski MD, PHD Consultant to FDA panel on Hi-tech Intraocular Implants Listed LCM Best Eye Physicians Honors Graduate Harvard College Stylish eco-friendly clothing. 50% Off all Christmas Decorations both locations starting December 26 December Firehouse / 10-6 Brighton December both locations 810 Plaza Blvd, Suite 103, Lancaster (across from Park City) eyephysiciansoflancaster.com (717) M-F She has displayed a blatant disregard and disrespect for the law. Daryl Metcalfe SEARCH Missing student s keys found in river AUBREY WHELAN THE PHILADELPHIA INQUIRER Divers searching the Schuylkill River for any NEW Patients Welcome FESTOON AT THE FIREHOUSE 202 N. Duke St., Lancaster / Mon-Thurs 10-5; Fri & Sat 9-5; Sun 12-4 THE SHOPPES AT BRIGHTON 1183 Erbs Quarry Rd., Lititz / Tues-Fri 10-6; Sat 10-5; Sun 12-5 In calling for the resolution Monday, Metcalfe cited a number of examples of what he said demonstrates that Kane, the first woman and first Democrat elected to the office, is not carrying out her office s duties. Among them: her decision to secretly shut down a long-running sting investigation, begun by her Republican predecessors, that captured ive Philadelphia Democrats on tape accepting cash, money orders and, in one case, a $2,000 Tifany bracelet. Kane has said she believes it was poorly run and tainted by racial targeting. Metcalfe also said Kane has refused to defend several Pennsylvania laws, including a recently passed law that expands the ability of the National Rile Association or gun owners to successfully sue municipalities over their irearms ordinances. trace of a missing West Chester University student found the 21-year-old s keys in the water near the riverbank Sunday, the student s uncle said. Shane Montgomery has been missing since the early morning hours of Thanksgiving Day. The Roxborough resident had been out with friends at Kildare s Irish Pub on Main Street in Manayunk and disappeared after leaving the bar. Two weeks ago, police recovered video of Montgomery on a bridge crossing the Manayunk canal that leads to a parking lot. On Sunday, his keys were found in the river just south of that lot, said Kevin Verbrugghe, Montgomery s uncle. Verbrugghe said he d enlisted the help of a group of volunteer divers from New Jersey, the Garden State Underwater Unit, who were in the water for four hours on Sunday. Montgomery s family members and Philadelphia police were on hand for the day s search eforts. For all your flooring needs... WOOD CARPET VINYL CERAMIC 3858 Columbia Ave., Mountville Tues. 12-8; Thurs. 12-4:30; Mon. & Fri. 5-8; Sat. 9-1 or call for appt.

224 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 64 of 71 BUSINESS A5 THE TRIBUNE-DEMOCRAT Tuesday, December 23, 2014 Today Money&Markets NAME Acquisition update? Eye on the economy Walgreen s latest financial results could provide insight into its expectations for takeover target Alliance Boots. The drug store chain, due to report fiscal first-quarter earnings today, is buying the European health and beauty retailer in a deal that shareholders are scheduled to vote on later this month. Investors also will be listening for an update on how Walgreen is managing the impact of lower prescription reimbursements and rising prices for generic drugs. Economists anticipate that the U.S. economy grew 4 percent in the third quarter. The U.S. economy has been gaining strength this year after a dismal start due to severe winter weather. It grew at an annualized pace of 4.6 percent in the April-June quarter after falling 2.1 percent in the first three months of the year. The Commerce Department reports its latest estimate of growth for the July-September period today. Homebuilding pickup? GDP seasonally adjusted annualized percent change 4.6 est % Q2 Q3 Q Q1 Q2 Q The Commerce Department reports its latest data on sales of new homes today. Sales edged up to a seasonally adjusted annual rate of 458,000 in October, led by a big jump in activity in the Midwest. That gain offset declines in the South and West. Economists predict that sales of new homes grew modestly in November versus the previous month. Market Summary New home sales seasonally adjusted annual rate 480 thousand est. 460 A S O N INDEX LAST CHG. %CHG. Dow Industrials 17, Dow Transportation 9, Dow Utilities NYSE Composite 10, Amex Market Value 2, Nasdaq Composite 4, S&P 500 2, Wilshire , Russell , J J METALS CLOSE PVS. %CHG %YTD 2014 Gold (oz) Source: FactSet Source: FactSet Silver (oz) Platinum (oz) LAST CHG. %YTD BcoSantSA CrownHold FirstEngy ishr2k McCorm Penney Transocn Salesforce Copper (lb) BkofAm CubistPh Fiserv ishrest McDnlds PennaRE SandRdge TriContl A-B-C Sapient Trinity s Palladium (oz) BkNYMel CypSemi FlrtyPfdOp ImunoGn Medtrnic PepBoy ABB Ltd AFLAC AK Steel AT&T Inc AbbottLab AbbVie AberFitc Achillion AMD Aetna Agilent AirProd AlcatelLuc Alcoa Alibaba n AlliantEgy AlliantTch Allstate AllyFin n AlpAlerMLP Altria Amazon Ambev AMovilL AmAirlines AmApparel AEP AmExp AmIntlGrp ARltCapP lf AmTower Ameriprise AmrSvFin AmeriBrgn Amgen Anadarko AnglogldA Annaly Ansys Apache Apple Inc s ApldMatl AquaAm ArcelorMit ArchCoal AriadP Ashland AuRico g AvisBudg Avon BB&T Cp BP PLC BP Pru BakrHu BallardPw BcoBrad pf B ipvixst BarrickG 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GenElec GenMotors GenesWyo Genworth Gibraltar GileadSci GlaxoSKln GoldFLtd Goldcrp g GoldStr g Goodyear Google A GoPro n GtPlainEn Groupon GlfCUDp n HSBC pfb HalconRes Hallibrtn HanJS HarleyD HarmonyG HeclaM HelixEn Hershey HerzfldCrb HewlettP HomeDp Honda HonwllIntl HospPT HostHotls HuntBncsh IAMGld g II-VI ishgold ishbrazil ishjapan ishsilver ishchinalc ishemkts is Eafe ishibxhyb G-H-I Insteel IntegrysE Intel InterDig IBM IntlGame IntPap ish UK ishcorem Isis ItauUnibH Ivanhoe rs J-K-L JD.com n JDS Uniph JPMorgCh JetBlue JohnJn KaiserAlu Kellogg Kennamtl KeyEngy 2.03 Keycorp KimbClk KindMorg Kinross g 2.66 Kroger LamarAdv Landstar LVSands LbtyASE 5.99 LbtyASG 5.21 LibtyIntA LillyEli LinnEngy LockhdM Lowes M-N-0 MGM Rsts MagellPet MagHRes Manulife g MarathnO MVJrGold MktVGold MV OilSvc MktVRus MarIntA MarriotVac MStewrt Mattel MatthInt McClatchy Merck MetLife MicronT Microsoft MobileTele Mondelez MoneyGrm MorgStan Mylan NQ Mobile NVR Nabors NasdOMX NatFuGas NatGrid NatResPtrs NY Times NewmtM NextEraEn NiSource NikeB NobleCorp NobleEngy NokiaCp NorflkSo NoestUt NorthropG NwstBcsh NovaGld g NuanceCm NustarEn NuvPI Nvidia OasisPet OcciPet OcwenFn OfficeDpt Olin ONEOK OpkoHlth Oracle OrbitalSci P-Q-R PG&E Cp PNC PPG PPL Corp PTC Inc ParkDrl 3.16 Patterson PeabdyE 7.92 PnnNGm PennVa 6.33 PennWst g PepcoHold PepsiCo PerkElm PetrbrsA Petrobras PtroqstE Pfizer PhilipMor PhilipsNV PimcMu PitnyBw PwShs QQQ Praxair PrecDrill PriceTR PUVixST rs PrUltCrude ProctGam ProgsvCp PrudentFin Prud UK PPrIT QEP Res Qualcom Questar QksilvRes RF MicD RPM RadioShk RJamesFn Raytheon RedHat RegncyEn RegionsFn RepubSvc ReynAmer RioTinto RiteAid RiverbedT RockwlAut RockColl RoyDShllB RoyDShllA Ryder S-T-U S&T Bcp SpdrDJIA SpdrGold S&P500ETF SpdrLehHY SpdrLe1-3bll SpdrOGEx Safeway StJude Schlmbrg SciGames Scotts SeadrillLtd SearsHldgs Sherwin SiderurNac SilvWhtn g SimonProp SiriusXM Smucker SnapOn SouFun s SouthnCo SwstAirl SwstnEngy Sparton SpectraEn Spectranet SpectPh SpiritRltC Sprint SP HlthC SP CnSt SP Consum SP Engy SPDR Fncl SP Inds SP Tech SP Util StanBlkDk Staples Starbucks Starz A Steris StrGlob Suncor g SunEdison SunTrst Supvalu SusqBnc SwisHelv TECO TalismE g Target TASER TerraNitro TetraTech TexInst M Co TimeWarn TollBros Torchmrk s Toyota TractSupp Tuppwre stCFoxA Twitter Tyson UnionPac s Unisys UBWV UtdContl UPS B US Bancrp US NGas US OilFd USSteel UtdTech WGL Hold WPX Engy WalMart Walgrn WalterEn 1.34 WREIT WsteMInc WeathfIntl WeinRlt WellsFargo54.97 Wendys Co 8.75 Wesco Intl WetSeal h.08 Whrlpl WhitingPet WmsCos WmsSon Windstrm 8.83 Winnbgo XcelEngy Xerox Yahoo Yamana g 3.82 YumBrnds Zimmer Zynga NYSE Most Active NAME VOL (00s) LAST CHG S&P500ETF BkofAm MktVGold RiteAid ishemkts Petrobras ishjapan GenElec V-W-X-Y-Z SP Engy VF Corp s Sprint Vale SA Vale SA pf Advanced ,829 ValeroE VangEmg Declined ,341 VangFTSE Unchanged VerizonCm Total issues ,253 ViacomA New Highs ViacomB New Lows Vodafone Volume ,282,588, Nasdaq Most Active NAME GileadSci Apple Inc s Achillion PwShs QQQ Facebook Cisco Intel DryShips Microsoft Yahoo VOL (00s) LAST CHG Advanced ,678 Declined ,064 Unchanged Total issues ,887 New Highs New Lows Volume ,660,453,902 It s down to the wire for online shopping THE ASSOCIATED PRESS ATLANTA As the holiday shopping season winds down, FedEx, UPS and online retailers are using the last few days to try to avoid the problems that occurred last year when severe winter weather and a surge in late orders from shoppers caused delivery delays. UPS spent $500 million this year upgrading its systems and processes and increased the number of seasonal workers it hired by 11 percent. The company, which pegged Monday as its busiest day of the year, expects to deliver more than 34 million packages on its busiest day ever. By midday Monday, UPS spokesman Andy McGowan said he expected packages to be delivered as planned. All UPS air and ground operations are operating smoothly, he said. FedEx predicted its busiest day would be a week earlier, on Dec. 15, when it expected to move 22.6 million packages. It added 50,000 seasonal workers to help with demand this year and invested in a new software system called Radar for FedEx Express that helps supervisors anticipate fluctuations in package arrivals hours before an airplane carrying cargo lands. The fallout from last year was a lot of disappointed customers. They don t care about the weather if they don t get their package on time, said Jeff Wise, managing director of Southeast district operations in Atlanta. But we ve had 11 1/2 months to figure it out and make sure service levels stay high this year. Package carriers also say they have been working closely with e-commerce retailers to help Close-out Designer Frames regular price $150 - $ $ 95 Eye Exams Repairs / Soldering Glasses & Contact Lenses Medical & Surgical Eye Exams Services Provided by Repairs / Soldering Ophthalmic Assoc. Glasses & Contact Lenses Medical & Surgical ServicesJoel Provided by Bezek, MD Ophthalmic Assoc. Eric Batiste, OD Evan Lowry, OD Joel Bezek, MD Eric Batiste, OD Evan Lowry, OD Johnstown Somerset Open Christmas Eve 9:00 a.m. 5:30 p.m. Closed Christmas Day Check Out Our Website: Conveniently Located at the Intersection of Rts. 219 & 56 OPEN 7 DAYS A WEEK 9am-11pm avoid problems. We are working with the biggest e-commerce shippers in an ongoing collaboration to understand capacity limitations and their needs, said Sean Healy, VP of Global Planning and Engineering for FedEx Express. We re much more effective in planning with our e-commerce customers than we ve ever been. That s key because retailers have been pushing shipping deadlines later and later and extending free shipping offers. This year, Amazon extended its free-shipping deadline by one day to Dec. 19. Wal-Mart, Barnes & Noble and other retailers also said Dec. 19 was the cutoff to getting orders delivered by Christmas. Still, retailers don t want to overpromise on shipping offers. They can t afford a repeat of last year when UPS and FedEx failed to deliver some packages by Christmas due to a combination of poor weather and overloaded systems, causing angry customers. Neither of the top two deliverers said how many packages were delayed, but noted it was a small share of overall holiday shipments.

225 THE NEW YORK TIMES NEW YORK TUESDAY, DECEMBER 23, 2014 N A23 NEW YORK AMBUSH With Attack, Wounds From Violent, Angry Era In the City Are Reopened By BENJAMIN MUELLER and NINA BERNSTEIN For some members of the New York Police Department, the ambush killing of two officers over the weekend roused memories of a far darker chapter in the department s past, the 1970s, when violence on the streets and anger at the police erupted into the deliberate murder of some officers. There were other similarities public protests roiling the city and the nation; the police blaming politicians for fomenting antipolice sentiment; and city leaders scrambling to defuse a dangerous divide between law enforcers and the communities they serve. The drug dealing and rampant crime that characterized that era have faded, but the shooting of Officers Wenjian Liu and Rafael Ramos on Saturday shifted the Police Department into the kind of defensive pose more reminiscent of decades past. Then, as now, officers were being told to take precautions against the risk of targeted attacks, even though the threat from the Brooklyn gunman, Ismaaiyl Brinsley, appeared to stem at least in part from a history of mental illness and recent expressions of despair. Forty-six police officers were killed in the line of duty in the 1970s, and 41 more in the 1980s. Before Saturday, the last time an officer was killed in the line of duty was in Some of the assassinations of Officers Rocco Laurie, top, and Gregory Foster, above, were killed in January police officers in the early 1970s were stoked by a militant strain of the black liberation movement, including the explosive killing of Officers Rocco Laurie and Gregory Foster in Officer Foster, 22, of the Bronx, and Officer Laurie, 23, of Staten Island, who had fought together as Marines in Vietnam, were shot dead after walking out of a diner in the East Village just before 11 p.m. on Jan. 27, They had asked to be placed on patrol in the East Village because it was riddled with crime. Killings of police officers have dwindled, and the city has sought to rub out the stain of drugs and violent crime, but people in the law enforcement community say the fatal shootings on Saturday ripped open old wounds. The drive to Bellevue Hospital, the chaos, and the sea of uniforms in and out, Officer Laurie s wife, Adelaide Laurie, recalled. Please don t let it be that we are retrogressing to that horrible time in the 70s, Ms. Laurie said in an interview on Sunday. She added: It s the same idea. No one trusted the police; they were called pigs. I m just kind of reliving that tragedy all over again. For many police officers who grew up in the aftermath of these killings or had relatives who were on the police force at the time the link to that harrowing past is both sentimental and real. Officer Ramos, killed on Saturday, once served as a school safety agent at Rocco Laurie School on Staten Island. The Black Liberation Army also took responsibility for the fatal shooting of Officers Joseph A. Al Baker contributed reporting. Piagentini and Waverly M. Jones by two assailants outside the Colonial Park Houses in Harlem in In 1975, three members of the Black Liberation Army were convicted of murder in the case. Police Commissioner William J. Bratton, speaking on the NBC Today show on Monday, said the killing of the two officers on Saturday reminded him of the department s unease in the 1970s. My first 10 years were around this type of tension, Mr. Bratton said. Who would ve ever thought, déjà vu all over again, that we d be back where we were 40 some-odd years ago? Mr. Brinsley s Instagram posting shortly before his death, in which he vowed to put wings on pigs, recalled a frequent refrain of the Black Panther Party, Off the pigs, in the late 1960s, a time when anti-establishment sentiment spilled into violence against the police. The latest killings, in contrast, stood out against a backdrop of historically low crime rates. But then, as now, a sharpening sense of political polarization and anger among police officers toward the mayor threatened to turn even an isolated police killing into a flash point. The Patrolmen s Benevolent Association in recent days circulated a letter allowing officers to request that the mayor not attend their funerals in the event of a line-of-duty death, recalling the animosity toward Mayor John V. Lindsay after police killings in Ms. Laurie said she made it known then that she wanted Mayor Lindsay to stay away from the funeral. He attended anyway, prompting scattered boos and calls from mourners that he should go home. The police had the same feeling that he wasn t helping them, that he was against them, Ms. Laurie said. Mayor Lindsay had been on uneasy terms with the police after seeking to strengthen the Civilian Complaint Review Board. That gulf widened after another officer, Phillip Cardillo, was fatally shot inside a mosque in Harlem after being lured there by a 911 call. The mayor was accused of allowing political aspirations and his alliances with some black leaders to cloud the city s handling of the case. He went on vacation instead of attending the funeral. Vincent E. Henry, a former police officer who retired in 2002 as a Police Academy commander, said the fatal ambush on Saturday, coming in the midst of protests against police brutality that Mayor Bill de Blasio has declined to condemn, had similarly endangered the current mayor s political standing among officers. This is de Blasio s Cardillo moment, Mr. Henry said. This is his Cardillo moment. The volatile politics also recall the 1978 killings of two officers in Bedford-Stuyvesant, Norman Cerullo and Christie Masone, in what the police initially described as an ambush by two ex-convicts involved in the Attica prison uprising. One of the assailants was killed in the shootout. A second man, Cleveland Davis, wounded and arrested blocks away after crashing his car, was charged with murdering both officers, but eventually acquitted. At the officers funerals, Mayor Edward I. Koch called for the passage of a bill reinstating the death penalty as a deterrent to police killings, a measure supported by the patrolmen s union and opposed by the governor at the time, Hugh L. Carey. The political heat intensified when it emerged that Governor Carey had pardoned Mr. Davis in 1976 for charges related to the killing of a fellow Attica inmate, as part of an effort to close the books on Attica and to forestall charges against the police and guards for their actions at Attica. Other bursts of violence were initially seen as politically driven, but proved not to be. In 1973, after a young man carrying a.22-caliber revolver wounded several officers inside a precinct house in Manhattan before being killed in a fusillade of police bullets, the police indicated that the shooting had political motives. But detectives later described it as the work of a very, very sick man. The police killings in the 1970s created a siege mentality among officers, Mr. Henry said. Officers began arriving at the station house four hours before work and leaving four hours after their tour in order to trail marked patrol cars with their personal cars, shotguns in hand, providing an additional layer of cover. Mr. Henry said police officers also began carrying private shotguns during that era. BRIAN HARKIN FOR THE NEW YORK TIMES Tranquilina Alvillar at her apartment on Bedford Avenue in Williamsburg, Brooklyn, on Monday. She was ordered out in A Tenant Who Sued Returns to Her Old Apartment By JULIE SATOW Tranquilina Alvillar stepped out of the truck and onto the curb at Bedford Avenue in Williamsburg just after 9 a.m. on Monday, carrying a Bible and wearing two scarves. I was so nervous this morning trying to get dressed, I didn t know what I was doing, she said in halting English as she unwrapped one gray woolen scarf from around her neck. I m feeling very worried. After more than three years, Ms. Alvillar, 50, was about to return to the second-floor apartment at 193 Bedford Avenue, between North Sixth and North Seventh Streets, where she had lived for 25 years, since coming to the United States from Mexico. Her story is a common one in gentrified Williamsburg, although the resolution is unusual. In February 2011, Reno Capital L.L.C. bought 193 Bedford for $4.5 million and began gut-renovating the five-story tenement building. Ms. Alvillar, who paid $700 a month for a rent-stabilized apartment, said the landlord took her out for coffee and offered her $40,000 to move out. She said she declined, and they continued renovating around her until her living conditions grew so dire that, in August 2011, an inspector from the city s Department of Buildings ordered her to vacate the premises. Holiday Thursday Christmas NEW YORK GOVERNMENT OFFICES Closed. POST OFFICES Priority Express Mail only; self-service kiosks at the main New York City post office on Eighth Avenue at 32nd Street will be open. BANKS Option to close. PARKING Alternate-side parking regulations will be suspended in the city. SANITATION No pickups, street cleaning or recycling. SCHOOLS Closed through Jan. 2. FINANCIAL MARKETS Stock and bond markets will be closed. TRANSPORTATION The Long Island Rail Road will have extra eastbound trains on Wednesday. On Thursday, city subways and buses will operate on a Sunday schedule. The Metro-North Railroad will operate on a holiday schedule. Long Island Rail Road trains will operate on a holiday schedule. Metro-North will have extra train service on Friday. NEW JERSEY GOVERNMENT OFFICES Closed. POST OFFICES Express Mail only. BANKS Option to close. SCHOOLS Closed. TRANSPORTATION New Jersey Transit trains will operate on a weekend/holiday schedule. Holiday bus schedules will vary by route. PATH trains will use a Saturday schedule. CONNECTICUT GOVERNMENT OFFICES Closed. POST OFFICES Express Mail only. BANKS Option to close. SCHOOLS Closed. After Ms. Alvillar left, the landlord completed the renovation and, in 2012, began renting out the apartments, including Ms. Alvillar s, to market-rate tenants. Meanwhile, Ms. Alvillar, who has been living with a nephew in Coney Island, Brooklyn, brought a suit in Housing Court, saying she was illegally locked out of her apartment. In June, a decision was rendered that tenants rights advocates said set an important precedent. Judge Jean T. Schneider, in a striking move, ordered that the market-rate tenant who was living in Ms. Avillar s apartment be evicted and that Ms. Avillar could move back in. After the landlord appealed, Judge Schneider s decision was upheld earlier this month by an appellate court and the eviction was scheduled for Friday, although by the time a city marshal arrived, the tenant was gone. Calls to lawyers for the tenant and to Carnegie Management Inc., which manages the building I never thought I would come back here, a woman says. for the landlord, were not returned on Monday. I never thought I would come back here, said Ms. Alvillar, slowly surveying the small studio apartment, which had been renting for close to $2,900 a month. Her belongings, including several shopping bags stuffed with clothes and a folded army cot on which she sleeps, were at her feet. On the windowsill were her Bible and a book, Jesus Te Llamo, as well as a vase of colorful flowers, a gift from the lawyers and community organizers who had helped guide her through the case. The apartment is not quite as she remembered. As part of the renovation, the landlord reconfigured apartments, and her home is now much smaller than it once was. There is a dishwasher, a stainless steel refrigerator and exposed brick walls. With so much newness, it is all a bit overwhelming. Ms. Avillar is particularly concerned about harassment from the landlord, and a locksmith was on his way to install a second lock on her apartment door, for which the landlord would not have a key. Stay positive; you have nothing to fear, Shekar Krishnan, a director at Brooklyn Legal Services Corporation A, a nonprofit legal organization, told her. You won the case and deserve to be here. With Christmas just days away, Ms. Alvillar has no plans to celebrate, and will instead be working, cleaning empty office buildings. It has been a very big struggle since I came to this country; I have worked nonstop, she said, wiping tears from her face. I have felt depressed and all alone. I don t feel better yet, but I hope that soon I will.

226 PHILLY.COM C >STAFF REPORTS POLITICS TUESDAY, DEC. 23, 2014 THE PHILADELPHIA INQUIRER A3 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 66 of 71 Schwartz looksback The Montco Democrat says she is proud of her decade in Congress. By Jonathan Tamari INQUIRER WASHINGTON BUREAU WASHINGTON Onher final day of voting after a decade in Congress, llyson Y. Schwartz reflected. The Montgomery County Demorat sat in the Rayburn Room, just ff the House floor, and discussed er proud moments, her future lans, and the divisions that have ome to define Congress. Schwartz, 66, spoke at the end of long congressional career that folowed astint in the state Senate nd concluded after an unsuccess- XIT NTERVIEW astofthree ful run for governor of Pennsylvania this year. Buzzers rang to sigal the coming votes, some of he last for her and U.S. Reps. im Gerlach (R., Pa.) and Jon Ruyan (R., N.J.), who are also leavng Congress. Their terms end Jan. 3, but heir last votes were Dec. 11. Below are some of Schwartz s omments. Interviews with Runan and Gerlach appeared Sunay and Monday. uestion: What are you most ooking forward to after Conress? nswer: I m proud of the work ve done and it will take me a ittle time to wind down from 10 ears here [and] 14 in the state enate. What I m most looking forward o is being able to continue to ork on many of the issues I are about, particularly in the rea of health and human servics, both in Philadelphia and, aybe, nationally. : You have a fellowship at enn. Will that be full-time? : That s part-time. There are ome other things in the offing hat are in that realm. : What are you proudest of? : My first bill, which was for eterans [it offered incentives to mployers to hire veterans]. To e able to do that was very What Iwill miss is being engaged in such avariety of issues and ways to impactthose issues, saysu.s. Rep. Allyson Y. Schwartz (D., Pa.) who added she has no plans to run forofficeagain. STEVENM. FALK /File Photograph meaningful. And then being involved in the health-care laws was certainly very important, because I could bring my experience as a state senator working on health policy. We got greater access to primary care, we got children with preexisting conditions, and adults are no longer excluded from health insurance, and we have millions of Americans benefiting. So, to be here during those debates, be very much a part of those debates, and being able to find away to move that forward, has been very important. Q: You don t have regrets about the Affordable Care Act, as some Democrats have expressed? A: This is avery major piece of legislation. We need to look at what works best and what doesn t, and to make sure that it is working well, that s our first priority and then to continue to build on it. Idothink it is amajor step forward for us in this country, getting accessible affordable health coverage. Q: Is there anything you ll miss? A: Being a member of Congress, you re able to get things done for your district. The main streets in Ambler and Lansdale look different today because of local leadership, civic leadership, but also because Iwas to be able tobedirectly helpful, so Iknow that I ve actually gotten things done. What Iwill miss is being engaged in such avariety of issues and ways to impact those issues and working with colleagues from all over the country who do bring different perspectives, not just Republicans and Democrats, but regionally. Q: Do you think you will ever run for office again? A: It s not my plan to run for office again. Q: Has Congress changed a lot in your time here? A: It s become increasingly difficult,particularly,tohave the public debate on serious issues that are not heavily rhetoric on one side or the other. (The interview had a brief pause while Schwartz left for a procedural vote.) Q: What has caused that partisan divide? A: Several things, but primarily these are districts that are more Republican, more Democratic, there are fewer swing districts. And it s also because there is I ll be partisan here, I guess the Republicans are more, I believe, really very right-wing Republicans, and you see it in the Republican conference. They are a force within that conference and move the debate much further to the right. Q: What about outside groups? Have they gained more influence? A: I m not sure Iwould say that. In the campaign it s adifferent question. I do think that there are the issues of money and independent expenditures and interest groups that can plunk in millions of dollars in the race. That does have some influence on who gets elected. But I think here, interest groups come visit us and that s our choice who we see and talk to and listen to and how we weigh the decisions. Q: What can be done to make Congress more productive? A: We shall see. The Republicans have pledged to be less partisan and to end gridlock. What I hope it means is that they will actually attempt to pass legislation that could become law. Becausesimply passinglegislation that is a statement, a political statement, vs. something that can become law, does not actually advance that ability to find the common ground to get something done. Q: Do you think people are turned off by Congress and declining to seek public office? A: A lot of voters are discouraged by Congress and just elected officials generally because of some of the sharpness of the tone and the feeling that things don t get done. I headed recruitment [in 2012]. We [Democrats] were coming off [the losses] of I said, It s going to be hard to recruit people to run. And it turns out it wasn t, and that s because there are good people of all political persuasions, good people who come from a wide range of backgrounds, who are willing to step forward because they believe in this country. And that s really quite wonderful. Q: Do you have any advice to new members? A: There are lots of ways to be a member of Congress. Some people pay more attention to the districts. Some people become more expert in some areas and some become generalists. Some want smaller committees, some people want the important committees. You need to think about who you are and who you want to be. What are your guiding principles: politically, ideologically, for the district? How will you first represent your district? And then, how will you participate in the major debates of the day and contribute and think about not only your own district but the nation? That would be my advice. And learn from your colleagues, there are alot of very good people. It s been an honor to serve. Questions and answers have been edited for space. +jtamari@phillynews.com "@JonathanTamari > To read interviews with all three representatives, go to FREECellPhone! FREE monthly service with minutes/ texts included! Must qualify for the Lifeline Program: SNAP Medicaid Section 8 Housing Low Income, etc. No Contract. No Credit Check for applications and store locations We also offer great pre-paid rates with unlimited minutes! Mustbeeligibletoqualify:ThisisaLifelineserviceprovidedbyBlueJay Wireless, LLC which is an eligible telecommunications carrier. Lifeline is a government assistance program. Service is non-transferable. Only one Lifeline discount may be received per household. Only eligible consumers may enroll in the program. Consumers who willfully make a false statement inordertoobtainthelifelinebenefitcanbepunishedbyfineorimprisonment or can be barred from the program. Customers must present proper documentation confirming eligibility for the Lifeline program through participation in Federal Public Housing Assistance(FPHA) or Section 8, Supplemental Nutrition Assistance Program(SNAP)(Food Stamps), Low-Income Heat and Energy Assistance Program(LIHEAP), household income at or below 135% of the Federal Poverty Guidelines, Medicaid, National School Lunch Program s free lunch program(nslp), Supplemental Security Income(SSI), Temporary Assistance for Needy Families(TANF). Proof of eligibility includes an eligible program card, statement of benefits or proof of income. LEGAL NOTICE If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for apayment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit abouttheorderinwhichm&tbank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What sthis about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who sincluded? You are included in the Settlement Class if you: HadoneormoreM&TBank consumer checking Accounts that you could access with a Debit Card atanytimefromaugust21,2006 through August 15, 2010; and IncurredanOverdraftFeeasa result of M&T Bank spractice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred anoverdraftfeeasaresultofthis practice,youmusthavehadtwoor more Overdraft Fees assessed on oneormoredaysduringthattime period and they must have been caused by the practice. What arethe Settlement terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paidasaresultofm&tbank s posting order. How do Iget apayment? If you are included in the Settlement Class and entitled to a payment oraccount credit, once the Court approves the Settlement and it becomes final and effective,you will receive an automatic payment or Account credit for your prorata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. Ifyoudonotwanttobelegally bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by January 28, 2015.If you do not exclude yourself, you will release claims that were or could have beenmadeagainstm&tbank.if you stay in the Settlement Class, you may object to the Settlement by January 28, 2015.The Court has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, andexpensesofupto30%ofthe Settlement Fund. Youcan appear at the hearing, but you don t have to. You can hire your own attorney, atyourownexpense,toappearor speakforyouatthehearing.you can call the toll-free number or visit the website to learn more about how to exclude yourself from or object to the Settlement

227 Page 4A Tuesday, December 23, 2014 DemocratandChronicle.com ROCNews Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 67 of 71 Webster nurse resurfaces after aiding Liberians A different kind of sleigh PATTI SINGER STAFF WRITER Lucille Frisicano had a Rip Van Winkle moment Monday morning. Out and about for the first time since returning to her Webster home Dec. 6 from Liberia and agreeing to a quarantine, Frisicano was shocked to see gas cost less than $3 a gallon. I couldn t believe that, she said. As unexpected as it was to see such low gas prices, Frisicano s first surprise came after she got up early Monday for a day of what she called goofing off. Seems she wasn t the only one in hibernation. My car wouldn t start, she said. I had to take my husband s. In November, the retired nurse joined a humanitarian mission to help Liberians stricken by Ebola. Upon returning home, she agreed to a quarantine for 21 days since she last saw a patient, which was Nov. 30. Her seclusion and monitoring by the state Department of Health ended Monday. She will continue to take her temperature until Friday, which will be 21days since she left Liberia. Ebola symptoms typically show up within 21 days of an exposure. I feel good, I m healthy, all is well, she said by phone Monday. I ve had no symptoms. Frisicano gave credit to her decades of experience and the extensive training in putting on and taking off the personal protective equipment that health care workers wore when treating patients. You need to protect yourself, just because of the contact with each other, she said. Frisicano had been reading about other health care workers returning to Liberia, but said that wouldn t be an option for her. She said she planned this week to check in with the American Red Cross, where she volunteers and has been deployed for domestic emergencies. But part of her was back in the Liberian community of Bong county. When she left, her team was caring for 3- month-old Josephine. The baby came to the unit with her mother, Korto, who had symptoms of Ebola. Korto had breastfed Josephine before getting the results of her blood test, and the baby later also tested positive. Frisicano had been wondering how the infant was doing, and Monday she learned the baby had recovered and was sent home with her mother. A Christmas gift like no other, Frisicano said. PSINGER@DemocratandChronicle.com Twitter.com/PattiSingerRoc Lucille Frisicano SHAWN DOWD/@SDOWDPHOTO/ STAFF PHOTOGRAPHER Motorcycle Santa (also known as Mike Dube of Rochester) performs what he calls a John Wayne, or a side-car wheelie, as he leaves the Boys and Girls Club on Genesee Street on Monday. Santa stopped to hand out gift bags to children there. See a photo gallery of Motorcycle Santa s visit to the Boys and Girls Club of Rochester. Democratandchronicle.com SHAWN DOWD/@SDOWDPHOTO/ STAFF PHOTOGRAPHER Motorcycle Santa hands a gift bag to Dei Jion Snowden, 14, Monday. This is the 10th year Dube has handed out toys in the Rochester region. We ll hand out 4,000 gifts year, he said.! "# " $ $% $ % Convicted Rochester doctor will be prevented from practicing in N.Y. PATTI SINGER STAFF WRITER A Rochester doctor who was convicted of unlawful distribution of controlled substances cannot practice medicine at least until the state Department of Health holds a hearing to determine any sanctions. The action against Dr. John E. Maye, who according to federal court documents worked from his home to provide phone and Internet consultations with customers seeking controlled substances, took effect Dec. 17. Until a determination at the hearing, Maye cannot practice in New York or any jurisdiction where that practice is based on a valid New York medical license. Two messages left Monday morning for Maye were not immediately returned. The drug charges stemmed from an investigation several years ago by the U.S. Drug Enforcement Administration and the Food and Drug Administration. Maye was convicted in June in federal court in Buffalo of a total of 33 counts of unlawful distribution and dispensation by a physician of controlled substances. In 1997, Maye was sentenced to 18 months in prison for arson after Norweigan Elkhound: Goldendoodle: Female Norweigan Elkhound Mix English Cream Shots & Puppies for Sale at $495! For deworming 3 Yr guar. PD638 more info, call $ or visit If the drug charges are sustained, actions can include revoking or suspending Dr. John E. Maye s license, assessing a fine, or other sanctions according to public health law. he pleaded guilty to helping others burn down the Maye Medical Building in Norwich, Chenango County, where he had an ob/gyn practice. After that, the state health department sought to revoke his license, but the Board for Professional Medical Conduct suspended it for three years. According to court documents related to the drug charges, Maye told the state Office of Professional Medical Conduct in March 2004 that he would be resuming the practice of medicine as a telemedicine consultant to provide medical consultations by telephone and online to customers seeking to obtain medications over the Internet. Maye told the board he would establish bona fide physician-patient relationships with his customers, as required by state licensor. Court documents said Maye worked from his residence. He consulted with people on the phone and over the Internet for prescriptions to be filled by associated online pharmacies. Customers placed orders with online pharmacies and completed questionnaires, which were then referred to Maye for authorization. Documents said Maye worked with an assistant, spoke to customers, reviewed customer files, and approved or denied prescription requests, all by telephone and online. Maye transmitted approved prescriptions to online pharmacies, which then processed and delivered the orders. A committee of the board has scheduled a hearing at 10:30 a.m. Feb. 19 at state health department offices to review evidence relating to the drug charges. The hearing will proceed whether or not Maye attends, and he is allowed to produce witnesses and evidence on his behalf. If the charges are sustained, actions can include revoking or suspending Maye s license, assessing a fine, or other sanctions according to public health law. PSINGER@DemocratandChronicle.com Twitter.com/PattiSingerRoc Try the Classifieds once and you ll be sold! In print: CALL ONLINE: DemocratandChronicle.com

228 A6 Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 68 of 71 DELMARVANOW.COM TH E DAI LY TIM ES TUESDAY, DECEM BER 23, 2014 FA R M A N D B U S I N E S S Best Buy aims to woo in-store Md. customers KELSEY SUTTON CAPITAL NEWS SERVICE Brick-and-mortar electronics stores such as Best Buy are struggling to attract in-store customers, even though consumer confidence is at a seven-year high and the holiday spending season is in full gear. A recent national survey showed consumers in an upbeat mood. Consumer confidence in 2014 rose 18.2 percent from the same time period in 2013, and it increased 2.2 percent from October, according to the University of Michigan-Thomson Reuters November 2014 Survey of Consumers. But retail electronics giants like Best Buy which has 36 stores in Maryland are struggling to adapt to changing consumer purchasing habits, which involve more people comparing prices and buying electronics online. Like other retailers and as reflected in this quarter s performance, we continued to see a shift in consumer behavior: Consumers are increasingly researching and buying online, Best Buy said in a September Securities and Exchange Commission filing. As a result, traffic to our retail stores continued to decline. Terry Carman, 62, of Laurel, Maryland, comes to Best Buy in College Park to compare electronics at the store before looking for the best deal online. Word on the street from my kids is that you get better deals online than in the store, he said, while browsing high-definition televisions and other electronics as gifts for his children. It s still easier for me to come into the store and compare things in person. Best Buy has attempted to attract customers to the store with services like Geek Squad, in-store tech support and home installation assistance, and price matching, which guarantees Best Buy will match the price of identical appliances from the company s major competitors, including online sellers. The company says it s working. Our in-store conversion and online traffic continued to increase during the past year, Best Buy s Sept. 10 filing said. Price matching is a strategy that brought Andy Yu, from Silver Spring, Maryland, back through the business s doors. I feel comfortable buying in-store because they price match, and I know that I can get a good deal, Yu said. Across the retail sector, online sales are skyrocketing, further threatening brick-and-mortar companies such as Best Buy. E-commerce sales have steadily risen since 2005, and comprised more than 6 percent of the total retail market in the third quarter of 2014, according to Census Bureau data. Ecommerce sales in the third quarter of 2014 were $78.1 billion, a 16.2 percent increase from the same time period in 2013, according to Census data. This trend was evident on Cyber Monday, the Monday after Thanksgiving, when online sales across the country and in all sectors rose 8.5 percent compared to the same day last year, according to an IBM report. Smartphone and tablet sales accounted for more than 40 percent of Cyber Monday purchases, according to the report. Year-round, computers and consumer electronic sales is the largest product category in e-commerce, making up more than 21percent of total online sales, according to a report from emarketer. While in-store sales are dwindling, Best Buy s online sales in the third quarter grew 21.6 percent compared to the same time period last year, the company said in its most recent Securities and Exchange Commission filing. Best Buy said its thirdquarter revenue ending Nov. 1 was $9.4 billion, up $53 million from the same quarter last year. Best Buy brought in $27.31 bil- lion in revenue during the first nine months of 2014, $629 million less than the $27.94 billion it earned in the same period last year. Management blamed internet-based businesses and digital tools that allow for customers to compare prices for its drop in revenue. Best Buy depends heavily on net earnings from the fourth quarter, which includes the majority of the holiday shopping season, according to its SEC filings. The University of Michigan Survey of Consumers reported that consumers expressed favorable views toward the purchase of large household durable goods, which include home appliances and consumer electronics, the type of goods sold at Best Buy. Improved personal finances and favorable views about the job market fuel the sentiment, according to the survey, leading economists to believe total consumer expenditures will increase by 2.9 percent in Yu said he is making more money than in prior years at his job as a government subcontractor in information technology. That means he is spending more, even looking to buy a house in the coming year. But he comes to Best Buy only when he s sure he can get the best deal after checking online. The weekend after Thanksgiving, Yu bought an ipad for his mother but he made that purchase at Target, where he received a $140 gift card in exchange for the tablet, he said. That decision came after researching the best ipad deals on his computer, he said. Best Buy pointed to highly competitive tablet promotions as a cause for this year s drop in profits. There are still some Maryland shoppers who prefer to shop in stores. MacArthur Agatep of Upper Marlboro rarely shops online. I ve had bad experiences purchasing electronics online, where they were identified as new but were sold used, Agatep said. I d rather come into the store, where what you see is what you get. ery declined 6.50 cents to $ a bushel; Mar corn was up 1.25 cents to a bushel; Mar oats fell.75 cent to $ a bushel; while Mar soybeans were 7.25 cents higher at $ bushel. Beef was higher and pork was lower. Feb live cattle was up 0.72 cent to $ a pound; Mar feeder cattle was 1 cent higher at $ a pound; while Feb lean hogs fell 1.65 cents to $.8025 a pound. E-commerce still rising IN BRIEF Grain mixed, livestock mostly higher (AP) Grain futures were mixed Monday on the Chicago Board of Trade. Wheat for Mar deliv- JUSTIN ODENDHAL PHOTO A Best Buy employee speaks to customers about what deals are available as Doorbusters during early Black Friday sales at Best Buy in Salisbury.

229 LOCAL A4 THE TIMES-TRIBUNE TUESDAY, DECEMBER 23, more mall stores to close Abercrombie, Hollister will close Saturday, leaving Steamtown with even fewer tenants. BY MICHAEL IORFINO STAFF WRITER Abercrombie & Fitch and Hollister Co. plan to close their stores in the Mall at Steamtown on Saturday, joining the growing list of tenants who have fled the beleaguered downtown shopping center this year. Managers at each store confirmed the closing date, but declined to identify themselves, saying they are not allowed to talk to the press. Mall at Steamtown General Manager Clarence Banks declined to discuss the matter, saying he has not received anything official in writing from either tenant. The closures cap a year of struggles for the foreclosed mall, which is under new ownership after Steamtown Mall Partners defaulted on a $37.1 million mortgage payment in July Anchor store Bon-Ton, a York-based department store, left in January. In March, the Cinnabon/Carvel stand near center court closed, as well as As Seen on TV, a second-floor tenant. Express, an apparel and accessories retailer and an original tenant of the mall, closed in August. At least eight spaces throughout the mall remain empty, with storefront gates blocking access to the darkened former stores. The planned closures come at a time when teen retailers are facing a dip in sales, fueled by a change in teen shopping patterns. Abercrombie, which has several brands including Hollister, posted an 11.5 percent quarterly sales drop and reduced its annual profit forecast, according to the Associated Press. Contact the writer: on Twitter TIMES-TRIBUNE FILE Abercrombie & Fitch, seen here in the Mall at Steamtown in March, is set to close Saturday. Man arrested for pizza shop thefts BY JOSEPH KOHUT STAFF WRITER Scranton police caught a city man fleeing a pizza restaurant that he admitted burglarizing early Monday. After he was caught, Anthony Shawn Way admitted burglarizing another pizza shop not long before, according to arrest paperwork. Police charged Mr. Way, 21, 837 Monroe Ave., with burglary, criminal trespass, criminal mischief, theft and resisting arrest. Patrolman Chad Dougherty responded to Nearra s Pizzeria, 1439 Capouse Ave., after an alarm sounded at 3:44 a.m. The restaurant s door was open, and broken glass littered its frame. A witness, Mark Zimmerman, said he heard a loud bang and saw a dark figure carrying a heavy object run west on Marion Street. (Mr. Zimmerman) concluded we just (missed) the suspect by 30 seconds, Patrolman Dougherty wrote in an arrest affidavit. Acash register with about $100 in it was missing, restaurant owner Neil Fiorillo told police. Police started to canvass the area, but another burglary call came over the radio. Patrolman Daniel Schaufler was on his way to assist Patrolman Dougherty but ended up responding to Antonio s Pizza & Restaurant, 930 Capouse Ave. First, he saw a damaged front door. Then, a man running away carrying a cash register. Patrolman Schaufler chased him and captured him in a parking lot near Scranton Prep. Mr. Way gave police a statement later Monday morning admitting to both burglaries, police said. He was arraigned on $20,000 bail. A preliminary hearing is set for Monday. Contact the writer: on Twitter Surprise her! Give her exactly what she wants. A Gift From N.B.Levy s Says It All Quality Service Prices You Can t Resist GEM SPECIALISTS SINCE 1880 Jewelers LEGAL NOTICE MARRIAGE LICENSES Joe Arcadio Cruz-Rivera and Tiffany Marie Gonzalez, both of Dickson City. Walter Peters and Latasha Shree Whitehead, both of Scranton. PROPERTY TRANSACTIONS Richard Chopko, Lordstown, Ohio; Janice and Mark Cochran, Granger, Ind.; Gerald and Maria Chopko, Jermyn; and George and Tamara Chopko, Bear, Del., to Patrick and Marie Scott, Jermyn; a property at 119 Cemetery St., Jermyn, for $147,000. Stephen E. Midura, executor of the estate of Barbara T. Midura, Dickson City, to Sharon Mary Golden and August Stark III, Dunmore, as joint tenants with rights of survivorship; two parcels at 630 Carnation Drive, Clarks Summit, for $215,000. SRMOF II Trust and U.S. Bank National Association, per attorney-in-fact Selene Finance LP, Houston, Texas, to If YouPaid Overdraft Fees to M&T Bank, YouMay Be Eligible for apayment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit abouttheorderinwhichm&tbank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What sthis about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who sincluded? You are included in the Settlement Class if you: HadoneormoreM&TBank consumer checking Accounts that you could access with a Debit Card atanytimefromaugust21,2006 through August 15, 2010; and IncurredanOverdraftFeeasa result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred anoverdraftfeeasaresultofthis practice,youmusthavehadtwoor more Overdraft Fees assessed on oneormoredaysduringthattime period and they must have been caused by the practice. What arethe Settlement terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class CERTIFIED GEMOLOGIST APPRAISER 120 Wyoming Ave.,(next to Wells Fargo) DowntownScranton Mon -Thurs 10-8.Fri&Sat 10-5.Sun 12-4 Please call for extended Holiday Hours. will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as aresult of M&T Bank s posting order. How do Iget apayment? If you are included in the Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective,you will receive an automatic payment or Account credit for your prorata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. Ifyoudonotwanttobelegally bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by January 28, 2015.If you do not exclude yourself, you will release claims that were or could have beenmadeagainstm&tbank.if you stay in the Settlement Class, you may object to the Settlement by January 28, 2015.The Court has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, andexpensesofupto30%ofthe Settlement Fund. You can appear at the hearing, but you don t have to. You can hire your own attorney, atyourownexpense,toappearor speakforyouatthehearing.you can call the toll-free number or visit the website to learn more about how to exclude yourself from or object to the Settlement LACKAWANNA COUNTY COURT NOTES Michael Osif, Scott Twp.; a property at 218 S. Valley Ave., Olyphant, for $45,000. BGC Homeconcepts LLC, Olyphant, to Amy L. Sekol, Throop; a property at 227 S. Valley Ave., Olyphant, for $82,000. Fredie A. Moser, Vandling, to Thomas J. Osborne, Forest City; a property at 204 Fifth St., Vandling, for $130,000. Joseph Kim and Renee Vogt, Lafayette Hill, to John R. Favilla and Marina T. Vogel, Philadelphia, as joint tenants with rights of survivorship; a property at Big Bass Lake, Clifton Twp., for $341,000. John Pambianco, attorneyin-fact for Ceil Bei, Blakely, to Edward and Kathleen Grzebin, Lackawanna County; a property at 713 Erie St., Blakely, for $124,900. Michael J. and Colleen Rice, Scranton, to Diane Messina, Scranton; a property at 302 Luzerne St., Scranton, for $108,000. Lynn D. Tallo, administratrix of the estate of Craig D. Bowen, Old Forge, to Kevin Gilbride, Madison Twp.; a property at 127 Harrison St., Taylor, for $42,500. Peter Amato, through attorney-in-fact Stephen Joseph Szydlowski, Clarks Summit, to Boston Land Co. Inc., South Abington Twp.; two parcels in South Abington Twp. for $428,000. Eugene Curran, executor of the estate of Mary Gowka, aka Mary Louise Gowka, Madison Twp., to Louis G. and Lynda M. DePalma, Taylor; a property at 1219 S. Main Ave., Taylor, for $45,000. Domenica and Stanley Matuszewski, Old Forge, to 106 Shoemaker St. LLC, Scranton; a property at 402 Mortimer St., Dunmore, for $45,000. George J. Towers, Benton Twp., to Richard G. Parsons, Jacksonville, Fla.; three parcels in Benton Twp. for $170,000. Joseph P. Srebro and Joyce Danielewicz, co-administrators of the estate of Helen E. Srebro, aka Helen Eleanor Srebro; Joseph P. and Felicita Srebro; Joyce and James Danielewicz; and Janet Helen and Edward F. Gable, all of Pennsylvania, to Felicita Srebro, Dickson City; a property at 601 Pancoast St., Dickson City, for $56,000. Jackson Street Baptist Church of Scranton, Scranton, to Michael and Diane R. Lench, Scranton; a property in Taylor for $138,000. DIVORCE DECREES Kristi Evans v. Daniel Evans Elaine Brown v. Tracie L. Brown Kevin Ross v. Lynn Ross Gary Kaschak v. Stephanie Holmes-Kaschak Amber Ann Aston v. Richard Joseph Aston Jonathan Wishbow v. Suzanne Wishbow Gerald Healey v. Laura Healey FEDERAL TAX LIENS James Sovaiko, 807 Center St., Throop; $55, Michael J. Ducas, 550 Clay Ave., Scranton; $8,426. Andrew and Elizabeth Taylor, P.O. Box 497, Waverly; $56, STATE TAX LIENS Mike Bevilacqua Sheet Metal Inc., 916 Capouse Ave., Scranton; $2, West Side Kozy Comfort Assisted Living Inc., S. Main Ave., Scranton; $13, Summa & Iezzi Inc., 38 Line St., Keystone Industrial Park, Dunmore; $37, Scartelli Construction Services Inc., 364 N. Main St., Taylor; $16, Patrick R. McCarthy, trading as McCarthy Brothers, 506 Main St., Childs; $1, Murphy Genello & Murphy PC, 233 Penn Ave., Scranton; $2, Minelli s Kozy Comfort Living Inc., 1640 N. Main Ave., Scranton; $1, Butler Excavating Inc., 9 Baldassari Drive, Dunmore; $3, Made in the Shade Inc., 310 Main Ave., Clarks Summit; $2, Looking Good All Over Inc., 4691 Birney Ave., Moosic; $ American Homecare Supply Co., 4113 Birney Ave., Moosic; $15, CGA Benefits Inc., 50 VotedBest 414 LACKAWANNA AVE. OLYPHANT PA Gold and Silver Buyer, Rare Coin Dealer -Highest possible prices paid for gold jewelry- Pegula Lane, Scott Twp.; $ Drummond Communications Inc., Suite 2A, Ritz Building, Scranton; $2, ME Enterprises Services Inc., 325 Bridge St., Old Forge; $44, Chimney Man Inc., 601 Route 6, Mayfield; $5, Tri K Inc., trading as the Avenue Diner, 238 Hoover St., Old Forge; $15, Munley s Catering Inc., 104 Ruthland Ave., Carbondale; $ HT of Scranton Inc., 120 Green Ridge St., Scranton; $16, Robert A. Caramanno, trading as Caramanno s Deli, 1105 S. Main Ave., Scranton; $ Burstnet Technologies Inc., 1205 O Neill Hwy., Dunmore; $28, Carl Reynolds Auto & Equipment Sales, 1166 Lackawanna Trail, Clarks Summit; $3, Moosic Dental Group Inc., 502 Church St., Moosic; $3, American Home Nursing Inc., 652 Main St., Taylor; $9, First Class Gymnastics Inc., 1258 Mid Valley Drive, Jessup; $6, Mark Philip Oakley, trading as Mark Oakley Construction, 621 Maple St., Old Forge; $2, Joseph Cirba, trading as Cirba Landscaping, 7 Arnold Drive, Blakely; $1, Northeast Painting Inc., 1014 Ridge Ave., Scranton; $1, McCracken Trucking Inc., 580 Milwaukee Ave., Old Forge; $11, Revolutionary Nurses LLC, 1619 Main St., Olyphant; $33, Calvin Taylor Corp., 101 Pittston Ave., Fl. 2, Scranton; $50, Laurie Rosengrant, trading as Automated Payroll Services, 1444 E. Lackwanna Ave., Suite 107, Olyphant; $1, William J. Cruser, trading as BC Carpet, 306 Erie St., Dunmore; $1, NEPA Electrical Associates, trading as Mr. Electric, 1128 Meade St., Dunmore; $1, Plush Hair Designs LLC, 1456 E. Lackawanna St., Olyphant; $1, Keystone Veal LLC, 120 Monahan Ave., Dunmore; $4,240. Deadline Construction LLC, 1202 Rear Vine St., Scranton; $ BENCH WARRANTS The following warrants have been issued by Judge James Gibbons for failure to appear for child support contempt hearings: Jason Kresge, 102 Belman St., Throop; $8, John Madsen, 223 E. Mountain Road, Scranton; $8,085. Javon Mason, 1511 Prospect Ave., Scranton; $586. Milton Matias Marrero, 1708 Stafford Ave., Scranton; $3, Edmundo Mendoza, 1531 Gardner Ave., Scranton; $4, Erin R. Moran, 334 Main St., Forest City; $ Bernie Mullen, 306 Chestnut St., Apt. C, Blakely; $1, Luis Ortiz, 603 Smith St., Scranton; $ Charlene Peck, 610 Rosen Court, Scranton; $ Lee Smith Jr., 18 Ninth Ave., Carbondale; $1, Anyone that has any information on the above is asked to call the child support hotline at , ext

230 Lowery Bros. On Historic Automobile Row See Our Entire Inventory Online 2015 JEEP GRAND CHEROKEE LAREDO 4X4 #13187, automatic, touch screen radio, U-connect hands free phone, keyless enter-n-go. MSRP $34,190. /MO. LEASE FOR $ mos CHRYSLER TOWN & COUNTRY TOURING #13263, Leather, heated seats, heated steering wheel, DVD, power doors, power liftgate, touch screen radio. MSRP $32,590. /MO. LEASE FOR $ mos JEEP WRANGLER UNLIMITED SPORT 4 DOOR 4X4 #13227, 24S package, power windows & locks, automatic, 3-piece removable hard top. MSRP $33,475. /MO. LEASE FOR $ mos CHRYSLER 300 AWD #12940, 6cyl, dual-pane panoramic sunroof, leather, heated seats, 8.4-inch touch screen radio, u-connect hands free phone, rear camera, remote start. MSRP $38,685. /MO. LEASE FOR $ mos. 1-year CD THE POST STANDARD National Syracuse National Syracuse National New car Credit average: average: average: average: average: 0.27 % 0.62 % loans 4.01 % 2.36 % Card 13.23% CD & Deposit Guide ADVERTISEMENT Yields Available to Syracuse Area Residents Best Loan Rates Savings and Loan Rates U.S. RATES BEST BASIC CREDIT CARD DEALS These were the highest yields available among U.S. banks These were the best standard credit card deals available among surveyed by Bankrate.com as of Tuesday: U.S. banks surveyed by Bankrate.com as of Tuesday: Min. to Yield Annual Annual Grace MMA/Savings account Phone earn int. (APY) For people who carry balances % rate fee period GE Capital Bank $ Amalgamated Bank of Chicago V B My Savings Direct Citizens Trust Bank V 0 25 B EverBank Heartland Bank V 0 25 B Barclays Westfield Bank, FSB V 0 25 B igobanking.com year CD For people who pay off balances My e-banc by BAC Florida Bank $ CIT Bank GE Capital Bank Synchrony Bank California First National Bank year CD Barclays $ GE Capital Bank Nationwide Bank Synchrony Bank EverBank Deposit Trend SYRACUSE RATES NATIONAL YIELD These were the lowest loan rates available among Syracuse-area National average is based on 100 largest institutions in the top institutions surveyed by Bankrate.com as of Friday: 10 U.S. markets. Home equity loan Phone Rate Countryside Federal Credit Union AmeriCU Credit Union New car Visions Federal Credit Union Countryside Federal Credit Union Used car * All lease examples are for 10,000 miles/year with $1,999 down * plus tax, dmv, and fi rst payment due on delivery. All rebates applied, must qualify for Chrysler lease loyalty or conquest lease cash. Prior sales excluded. Offers expire Lowery Bros. Infiniti of Syracuse On Historic Automobile Row See Our Entire Inventory Online 2015 Infiniti Q40 Sedan, AWD #4873. Premium package, leather, heated seats, moonroof. MSRP $37,455. Lease $ For 299 /mo. 39 mos Infiniti Q60 Coupe, AWD #4797. Automatic, premium package, navigation, moonroof, leather, heated seats. MSRP $49,380. Lease $ For 329 /mo. 39 mos Infiniti QX60, AWD #4745. Luxury 7 passenger seating, leather heated seats, premium package, moonroof. MSRP $45,945. Lease $ For 439 /mo. 39 mos Infiniti Q50 Hybrid AWD #4678. Premium package, navigation. MSRP $48,795. Lease For 647 W. Genesee Street lowerybros.com Empower Federal Credit Union Visions Federal Credit Union Infiniti Q50 Sedan, AWD #4747. Premium package, automatic, 328 horsepower, Bluetooth hands free phone, touch screen radio with twin display system, moonroof, MSRP $42,455. Lease $ For 349 /mo. 39 mos Infiniti QX50, AWD #4818. Premium package, navigation, leather, heated seats, moonroof. MSRP $43,850. Lease $ For 459 /mo. 39 mos Infiniti QX70, AWD #4828. Premium package, navigation, around view monitor. MSRP $52,595. Int Chking Money 3 mo 6 mo 12 mo 18 mo 24 mo 36 mo 60 mo Acct Mkt Acct CD CD CD CD CD CD CD Institution/Phone Address/Internet Min Min Min Min Min Min Min Min Min AmeriCU Credit Union 6303 Thompson Road ,500 2,500 1,000 1,000 1,000 1,000 1, Specials: Check out AmeriCU s Honest Card - Visa Platinum! Countryside Federal Credit Union 5720 Commons Park Dr NA NA ,000 5,000 NA NA Specials: Looking for certificate investments, contact us today! Empower Federal Credit Union 515 Erie Blvd West NA NA 2, Specials: Call for special rates. Geddes Federal Savings and Loan Association 2208 West Genessee St NA ,000 NA Specials: Call for special rates. Solvay Bank 1537 Milton Avenue Specials: Call for special rates. Synchrony Bank NA NA 30 2,000 2,000 2,000 2,000 2,000 2,000 2,000 Specials: Synchrony Bank was Formerly GE Capital Retail Bank. Member FDIC. Use Code: BRCD The Summit Federal Credit Union 1400 Erie Blvd. E. NA NA 1, Specials: Call for special rates. Ukrainian Federal Credit Union 211 Tompkins Street NA NA NA ,000 2,500 NA NA NA 500 Specials: Certificate Special: 2.00% APY 5 years, 0.60% APY 9 months, $500 min. Visions Federal Credit Union 500 Erie Blvd. West ,000 5, Specials: Are you looking for ways to relieve financial pressure? Take a look at our loan solutions! INSTITUTIONS, TO PARTICIPATE IN THIS FEATURE CALL Legend: Rates effective as of 12/19/14 and may change without notice. All institutions are FDIC or NCUA insured. Rates may change after the account is opened. N/A means rates are not available or not offered at press time. Yields represent annual percentage yield (APY) paid by participating institutions. Fees may reduce the earnings on the account. A penalty may be imposed for early withdrawal. Banks, Thrifts and credit unions pay to advertise in this guide which is compiled by Bankrate.com, a publication of Bankrate, Inc To appear in this table, call To report any inaccuracies, call Citizens Trust Bank V 0 25 B Heartland Bank V 0 25 B Westfield Bank, FSB V 0 25 B First Command Bank V 0 25 B For more information visit Rates are for standard credit cards, and information applies to purchases only. Cash advances frequently are charged interest from the date of transaction. Additional fees may be charged such as for exceeding a credit line, making an ATM transaction, or if a check is returned. B=Billing, T=Transaction, P=Posting, V=Variable rate, F=Fixed. Home equity loan: fixed rate, 5-year term, secured loan based on $30,000 at 80% LTV; New car: $22,000 fixed rate, 48-month term, 10% down payment; Used car (3 years old): $10,000 fixed rate, 36-month term, 20% down payment. Credit Unions have membership requirements. Lease For $ Sep 1-Oct 8-Oct /mo. 39 mos. * All leases are for 10,000 miles/year with $1,999 down plus tax, dmv, bank fee and first payment due on delivery. Security deposit waived. Several of each offer in stock to choose from. Prior sales excluded. Offers expire Oct Source: Bankrate.com Year CD National Trend 22-Oct 29-Oct 5-Nov 12-Nov 19-Nov 26-Nov 26-Nov 3-Dec 10-Dec 17-Dec PAGE B-2 ThE POST-STANDARD Tuesday, december 23, 2014 FOR THE RECORD Judgments These judgments of $5,000 or more have been iled and docketed at the Onondaga county clerk s oice. debtors are listed irst, then creditors and the award: Dec. 8 Badger, Avas, 300 burt st., syracuse, by credit acceptance corp., southield, mich., $5,032. Ball, Daniel, 120 cottington drive, Liverpool, by crouse Health Hospital Inc., syracuse, $6,985. Barnum, Steven, 114 charlotte st., syracuse, by credit acceptance corp., southield, mich., $5,904. Baron, Daniel, 310 montrose ave., Westvale, by credit acceptance corp., southield, mich., $8,192. Baxter, Juanita, and Dugger, Antonio, 1102½ butternut st., syracuse, and 409 seneca drive, syracuse, by credit acceptance corp., southield, mich., $6,961. Blakeman, Toni K., 2367 W. Genesee road, apt. 8, baldwinsville, by suny upstate medical university, syracuse, $11,147. Booker, Carlissa P., 111 W. calthrop ave., syracuse, by suny upstate medical university, syracuse, $18,847. Chavous, Jamel, 139 maple Terrace, syracuse, by crouse Health Hospital Inc., syracuse, $8,100. Chiles, James W. Jr., 410 rockwell road, Nedrow, by suny upstate medical university, syracuse, $10,520. Cohen, Patricia M., 2729 sweet road, Jamesville, by suny upstate medical university, syracuse, $5,487. Connors, Lawrence, 218 Idlewild blvd., baldwinsville, by sefcu, albany, $10,728. Cooper, Jessica A., 140 Iron Oak circle, Liverpool, by suny upstate medical university, syracuse, $5,310. Cotton, Akeem, 3711 midland ave., syracuse, by crouse Health Hospital Inc., syracuse, $5,245. Curcie, Lisa M., 6813 ebury court, Liverpool, by st. Joseph s Hospital Health center, syracuse, $5,691. Davidson, Alexander, 6188 ridgecrest drive, North syracuse, by suny upstate medical university, syracuse, 13210, $11,664. Dee, Antoinette, 207 W. LaFayette ave., syracuse, by Howard L. Veater, Walworth, $5,039. BUSINESS Case 1:09-md JLK Document Entered on FLSD Docket 01/07/2015 Page 70 of 71 $ /mo. Lease 379 $ 39 mos. For 519 YOUR CHOICE 2015 JEEP PATRIOT LATITUDE 4X4 #13168, MSRP $25,290) OR 2015 JEEP COMPASS LATITUDE 4X4 #13321, MSRP $25,790 Automatic, heated seats, LEASE /MO. remote start, alloy wheels. /mo. 39 mos. FOR $ JEEP CHEROKEE LATITUDE 4X4 #13284, 9 speed auto, touch screen radio, rear park camera, Bluetooth hands free phone. MSRP $27,590. /MO. LEASE FOR $ mos. 39 mos. THE ALL NEW 2015 CHRYSLER 200 LIMITED #13030, u-connect hands free phone, touch screen radio, 36mpg highway. MSRP $24,310. /MO. LEASE FOR $ mos JEEP GRAND CHEROKEE LIMITED #13023, leather, heated seats, navigation, moonroof, 8.4 touch screen radio, u-connect hands free phone. MSRP $41,580. /MO. LEASE FOR $ mos Infiniti QX60 Hybrid AWD #4638. Premium package, Navigation, Leather, Heated seats, luxury 7 passenger seating, moonroof. MSRP $53, W. Genesee Street lowerybros.com Dollerson, Lameaka, 214 scoville ave., syracuse, by Onondaga county department of social services, syracuse, $9,991. Dugger, Gwendolyn, 409 seneca drive, syracuse, by credit acceptance corp., southield, mich., $5,451. Dwyer, Jefrey, 217 Pulaski st.. apt. 2, syracuse, by suny upstate medical university, syracuse, $7,003. Evans, Eric R., and Evans, Robert H., 309 Garield ave., Liverpool, by board of managers of Village Green of syracuse condominium IV, syracuse, $9,519. Green, Rogelio, 947 Pond st., apt. 201, syracuse, by credit acceptance corp., southield, mich., $8,317. Holbdy Lawrence, Ashley, and Lawrence, David, 113 Kirk Park drive, syracuse, by credit acceptance corp., southield, mich., $8,924. Huddleston, Ladavia, 106 smith Lane, apt. 12, syracuse, by credit acceptance corp., southield, mich., $7,138. Hurry, David F. Jr., 114 mccool ave., apt. 2, east syracuse, by suny upstate medical university, syracuse, $18,372. Jasmins, Jose H., 5009 s. salina st., syracuse, by community General Hospital Inc., syracuse, $8,825. Jia, Chang, 710 s. beech st., syracuse, by crouse Health Hospital Inc., syracuse, $31,095. Jones, Rena, 7 Oakdale court, syracuse, by credit acceptance corp., southield, mich., $6,282. Junious, James, and Junious, Rachael, 431 Hawley ave., apt. 1, syracuse, by credit acceptance corp., southield, mich., $9,362. Kelly, Dominick D., 801 Woods road, solvay, by suny upstate medical university, syracuse, $36,225. Lane, Michael, and Campbell, Melinda, 215 Lakeview ave., apt. 2, syracuse, by credit acceptance corp., southield, mich., $6,487. Lazo, Juan, and Phillips, Sherry, 426 shonnard st., second loor, syracuse, by credit acceptance corp., southield, mich., $9,280. Lenhardt, Sandee, 336 N. beech st., apt. 3, syracuse, by crouse Health Hospital Inc., $9,087. Ly Gunn, Alice G., 204 allen st., east syracuse, by bishop Ludden Jr.-sr. High school, syracuse, $6,601. Matthews, Justin, 806 carbon LEGAL NOTICE st., apt. 1r, syracuse, by credit acceptance corp., southield, mich., $8,297. McClellan, Arlene, and Mc- Clellan, Edgar, 925 seventh North st., apt. e74, Liverpool, by crouse Health Hospital Inc., syracuse, $7,313. Mitchell, Crystal M., also known as Cooley, Crystal, also known as Murphy, Crystal, 8661 Hunters Key circle, Tampa, Fla., by suny upstate medical university, syracuse, $13,350. Morris, Eugena, 900 Highland st., apt. 2, syracuse, by suny upstate medical university, syracuse, $7,479. Pawloski, Bryan, 130 ridgewood drive, syracuse, by cach LLc, denver, colo., $8,035. Podrug, Amela, 561 N. salina st., syracuse, by credit acceptance corp., southield, mich., $12,400. Pomatto, Michael, 349 s. collingwood ave., syracuse, by credit acceptance corp., southield, mich., $13,692. Rhodes, Cherese, 457 midland ave., apt. 8, syracuse, by credit acceptance corp., southield, mich., $5,914. Tartt, Patricia, 161 ballantyne road, apt. 75, syracuse, by credit acceptance corp., southield, mich., $14,409. Tyrrell, Laura, 4332 Heritage drive., apt. b10, Liverpool, by crouse Health Hospital Inc., syracuse, $7,693. Wiley, Bradley, 4946 crestwood Lane, syracuse, by credit acceptance corp., southield, mich., $8,249. Wilson, Cynthia, 301 Pond st., apt. 2, syracuse, by crouse Health Hospital Inc., syracuse, $18,317. Wynn, Demetria, 312 shirley drive, apt. 2, syracuse, by credit acceptance corp., southield, mich., $7,242. Dec. 9 Clark, Dynel, also known as Clark, Darnell, 204 rockland ave., syracuse, by credit acceptance corp., southield, mich., $6,575. Dessein, Patrick, 122 ruskin ave., syracuse, by countryside Federal credit union, east syracuse, $15,172. Eccobello Enterprises LLC, doing business as Anthony s Pasta Bar, 126 e. Geneseee st., syracuse, by smith Packing co. Inc., utica, $5,866. Goodwin, Frank, slab city For the record, PAGe B-3 If You Paid Overdraft Fees to M&T Bank, You May Be Eligible for a Payment from a Class Action Settlement. A $4 million Settlement has been reached in a class action lawsuit about the order in which M&T Bank posted Debit Card Transactions to customer Accounts. Current and former customers may be included. What s this about? The lawsuit claims that M&T Bank posted Debit Card Transactions in the order of highest to lowest dollar amount, which Plaintiff alleges resulted in an increased number of Overdraft Fees assessed to customers. M&T Bank maintains there is nothing wrong about the posting process used. Who s included? You are included in the Settlement Class if you: Had one or more M&T Bank consumer checking Accounts that you could access with a Debit Card at any time from August 21, 2006 through August 15, 2010; and Incurred an Overdraft Fee as a result of M&T Bank s practice of posting Debit Card Transactions from highest to lowest dollar amount. In order to have incurred an Overdraft Fee as a result of this practice, you must have had two or more Overdraft Fees assessed on one or more days during that time period and they must have been caused by the practice. What are the Settlement terms? M&T Bank has agreed to establish a Settlement Fund of $4 million that will provide payments or Account credits to eligible members of the Settlement Class. The amount any individual member of the Settlement Class will receive cannot be determined at this time. Payments will be based on the number of Settlement Class Members and the amount of Additional Overdraft Fees each Settlement Class Member paid as a result of M&T Bank s posting order. How do I get a payment? If you are included in the Settlement Class and entitled to a payment or Account credit, once the Court approves the Settlement and it becomes final and effective, you will receive an automatic payment or Account credit for your pro rata portion of eligible Overdraft Fees you paid during the time period covered by the Settlement. Your rights may be affected. If you do not want to be legally bound by the Settlement, you must ask (in writing) to be excluded from the Settlement Class by January 28, If you do not exclude yourself, you will release claims that were or could have been made against M&T Bank. If you stay in the Settlement Class, you may object to the Settlement by January 28, The Court has scheduled a hearing on March 4, 2015 to consider whether to approve the Settlement and a request for attorneys fees, costs, and expenses of up to 30% of the Settlement Fund. You can appear at the hearing, but you don t have to. You can hire your own attorney, at your own expense, to appear or speak for you at the hearing. You can call the toll-free number or visit the website to learn more about how to exclude yourself from or object to the Settlement