Checchia v. Bank of America, N.A. Settlement

BASIC INFORMATION

1. What is this lawsuit about?

   The lawsuit that is being settled is entitled Steven Checchia v. Bank of America, N.A., Civil Action No. 2:21-cv-3585 (“Action ”). The person who sued is called the “Class Representative” or “Plaintiff.” The Defendant is “BANA.” The case is a “class action.” That means that a Class Representative is acting on behalf of the Settlement Class. The transactions at issue occurred between May 19, 2017, and February 16, 2023 (“Class Period”).

   The Settlement Class consists of all Accountholders of a BANA consumer checking and/or savings accounts who, during the Class Period, paid and were not refunded a NSF Fee and/or OD Fee in connection with (a) an ACH entry on their Account that was submitted by the merchant or the merchant’s bank with a “REDEP CHECK” indicator; or (b) a physical check (not an ACH transaction) that was re-presented for payment after having initially been returned for non-sufficient funds and charged an NSF Fee within the preceding 28 calendar days.

   BANA denies all wrongdoing and liability and denies that Plaintiff’s claims entitle the Plaintiff or the Settlement Class members to any relief and denies that anyone was harmed by the conduct that the Plaintiff alleges.

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2. Why did I receive a Notice of this lawsuit?

   You received a Class Notice because BANA’s records indicate that you are in the Settlement Class that was alleged to have been charged one or more of the fees at issue. The Court directed that the Class Notice be sent to all Settlement Class members because each Settlement Class member has a right to know about the proposed Settlement and the options available to him or her before the Court decides whether to approve the Settlement.

   To view a copy of the Notice, click here.

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3. Why did the parties settle?

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

   There is legal uncertainty about whether a judge or a jury will find that BANA breached its agreements with customers or otherwise acted improperly by assessing the OD Fees and NSF Fees that are the subject of this Action. There is also uncertainty about whether the Class Representative’s claims are subject to other defenses that might result in no or less recovery to Settlement Class members. Even if the Class Representative was to win at trial, there is no assurance that the Settlement Class members would be awarded more than the current Settlement Amount, and it may take years of litigation before any payments would be made. By settling, the Settlement Class members will avoid these, and other risks, and the delays associated with continued litigation.

   While BANA disputes Plaintiff’s claims, it has agreed to settle to avoid the costs, distractions, and risks of litigation. Thus, even though BANA denies that it did anything improper, it believes the Settlement is in its best interest and in the best interests of both Parties and the Settlement Class.

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WHO IS IN THE SETTLEMENT

4. How do I know if I am part of the Settlement?

   If you received the Class Notice, then BANA’s records indicate that you are a Settlement Class member who is entitled to receive a payment. If you did not receive a Notice and are not sure if you are part of the Settlement, you may contact the Settlement Administrator at 1-888-771-2047 (Toll-Free).

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YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

5. What options do I have with respect to the Settlement?

   You have three options:

   1. Do nothing and you will receive a Settlement Class Member Payment according to the terms of this Settlement, but you give up your rights to sue BANA separately about the same legal claims in this lawsuit;
   2. Opt-out of the Settlement and you will not receive a Settlement Class Member Payment; or
   3. Participate in the Settlement but object to it.

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

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6. What are the critical deadlines?

   If you do nothing, you will receive a Settlement Class Member Payment.

   The deadline for sending a letter to opt-out or exclude yourself from the Settlement is June 24, 2023.

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

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7. How do I decide which option to choose?

   If you do not like the Settlement and you believe that you could receive more money by pursuing your claims on your own (with or without an attorney that you could hire) and you are comfortable with the risk that you might lose your case or get less than you would in this Settlement, then you may want to consider opting-out.

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8. What must happen for the Settlement to be approved?

   The Court must decide that the Settlement is fair, reasonable, and adequate before it will approve it. The Court already has decided to provide Preliminary Approval of the Settlement, which is why you may have received a Class Notice. The Court will make a final decision regarding the Settlement at a Final Fairness Hearing, which is currently scheduled for July 24, 2023.

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THE SETTLEMENT PAYMENT

9. How much is the Settlement?

   BANA has agreed to create a Settlement Fund of $8,000,000.00 (“Settlement Fund” or “Settlement Amount”). As discussed separately below, Attorneys’ Fees and Costs, a Service Award to the Class Representative, and Settlement Administration Costs will be paid out of this amount. The remainder is the Net Settlement Amount/Fund. Subject to Court approval, the Net Settlement Amount/Fund will be divided among all Settlement Class members on a pro rata basis pursuant to the formula described in the Settlement Agreement.

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10. How much of the Settlement Fund will be used to pay for attorney fees and cost?

    Class Counsel will request that the Court award up to 33.33% of the Settlement Amount as Attorneys’ Fees, plus reimbursement of litigation costs incurred in prosecuting the Action. The Court will decide the amount of the Attorneys’ Fees based on a number of factors, including the risk associated with bringing the case, the amount of time spent on the case, the amount of costs incurred to prosecute the case, the quality of the work, and the outcome of the case.

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11. How much of the Settlement Fund will be used to pay the Class Representative a Service Award?

    Class Counsel, on behalf of the Class Representative, will request a Service Award of $5,000.00 for the Class Representative. The Service Award must be approved by the Court.

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12. Do I have to do anything if I want to participate in the Settlement?

    No. Any amount you are entitled to under the terms of the Settlement will be distributed to you, unless you choose to opt-out of the Settlement. Opting-out from the Settlement means you choose not to participate in the Settlement. You will keep your individual claims against BANA, but you will not receive a Settlement Class Member Payment. In that case, if you choose to seek recovery against BANA, then you will have to file a separate lawsuit or claim.

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13. When will I receive my payment?

    The Court will hold a Final Fairness Hearing on July 24, 2023, to consider whether the Settlement should be approved. If there are no objections and the Court approves the Settlement, then Settlement Class Member Payments should be made within approximately 30 to 60 days after the Settlement’s Effective Date. The Effective Date means the next business day after the entry of the Final Approval Order and Final Judgement and Order of Dismissal provided there are no objections to the approval of the Settlement Agreement. If there are objections, then the Effective Date shall mean the next business day following the last date on which a notice of appeal directed to the entry of the Final Approval Order and Final Judgment and Order of Dismissal could have been timely filed but with no notice of appeal having been filed; or, should a notice of appeal be filed, it shall mean the next business day after the Final Approval Order and Final Judgment and Order of Dismissal is affirmed, all appeals are dismissed, and no further appeals are permitted.

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OPTING‑OUT OF THE SETTLEMENT

14. How do I opt-out from the Settlement?

    If you do not want to receive a Settlement Class Member Payment, or if you want to keep any right you may have to sue BANA for the claims alleged in this lawsuit, then you must opt-out of the Settlement.

    To opt-out, you must send a letter to the Settlement Administrator that you want to opt-out from the Settlement. Your letter can simply say, “I hereby elect to opt-out from the Settlement in the Steven Checchia v. Bank of America, N.A. class action.” Be sure to include your name, your address, and your signature. Your exclusion or optout request must be postmarked by July 24, 2023, and sent to the following address:

    Checchia v. Bank of America, N.A. Settlement
    Opt-Out Requests: Bank of America Check Fee Class Action
    P.O. Box 2696
    Portland, OR 97208-2696
    

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15. What happens if I opt-out of the Settlement?

    If you opt-out of the Settlement, you will preserve and not give up any of your rights to sue BANA for the claims alleged in this case. However, you will not be entitled to receive a Settlement Class Member Payment from this Settlement.

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16. If I opt-out of the Settlement, can I obtain a Settlement Class Member Payment?

    No. If you opt-out you will not be entitled to a Settlement Class Member Payment.

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OBJECTING TO THE SETTLEMENT

17. How do I notify the Court that I do not like the Settlement?

    You can object to the Settlement or any part of it that you do not like IF you do not opt-out, from the Settlement. (Settlement Class members who opt-out from the Settlement have no right to object to how other Settlement Class members are treated.) To object, you must do so by filing with the Court a notice of your intention to object. Your objection must include the following:

    • a statement of your intention to object to the Settlement in the Steven Checchia v. Bank of America, N.A. class action;
    • the objector’s full name, address, telephone number, and email address (if any);
    • information identifying the objector as a Settlement Class member, including evidence that the objector is a member of the Settlement Class;
    • a written statement of all grounds for the objection, accompanied by any legal support for the objection the objector believes applicable;
    • the identity of all counsel representing or assisting the objector, if any;
    • the identity of all counsel representing the objector who will appear at the Final Fairness Hearing, if any;
    • a list of all Persons who will be called to testify at the Final Fairness Hearing in support of the objection, if any;
    • a statement confirming whether the objector intends to personally appear and/or testify at the Final Fairness Hearing;
    • the objector’s signature and the signature of the objector’s duly authorized attorney or other duly authorized representative (along with documentation setting forth such representation), if any;
    • a list, by case name, court, and docket number, of all other cases in which the objector (directly or through counsel) has filed an objection to any proposed class action settlement within the last 3 years;
    • a list, by case name, court, and docket number, of all other cases in which the objector’s counsel (on behalf of any Person) has filed an objection to any proposed class action settlement within the last 3 years; and
    • a list, by case name, court, and docket number, of all other cases in which the objector has been a named plaintiff in any class action or served as a lead plaintiff or class representative; and
    • the objector’s signature (an attorney’s signature is not sufficient).

    If your objection is made by or through an attorney, the objection must also include:

    • the identity and number of the Settlement Class members represented by objector’s counsel;
    • the number of such represented Settlement Class members who have opted-out of the Settlement Class; and
    • the number of such represented Settlement Class members who have remained in the Settlement Class and have not objected.

    The objection must also include the dates when the objector is available for deposition, which dates may be no later than 5 days before the Final Fairness Hearing.

    Be advised that if you object to the Settlement and retain an attorney for purposes of objecting, you are solely responsible for paying that attorney’s fees and costs. If the attorney intends to seek attorneys’ fees and expenses from anyone other than the objector(s) he or she represents, the attorney shall also file with the Court and serve upon Class Counsel and BANA’s Counsel, not later than 15 days before the Final Fairness Hearing or as the Court may otherwise direct, a document containing the following: (i) the amount of fees sought by the attorney for representing the objector and the factual and legal justification for the fees being sought; (ii) a statement regarding whether the fees being sought were calculated on the basis of a lodestar, contingency, or other method; (iii) the number of hours already spent by the attorney and an estimate of the hours to be spent in the future; and (iv) the attorney’s hourly rate.

    If you fail to comply with the provisions herein, you will waive and forfeit any and all rights to appear and/or object separately and will be bound by the terms of the Settlement Agreement and the orders and judgments of the Court.

    To be timely, written notice of an objection must be filed or received by the Settlement Administrator and/or Court by June 24, 2023, and served at the same time to Class Counsel and Defendant’s counsel to the following addresses:

    Court	Settlement Administrator
    United States Courthouse Eastern District of Pennsylvania 601 Market Street Philadelphia, PA 19106	Checchia v. Bank of America Settlement Administrator P.O. Box 2696 Portland, OR 97208-2696
    Class Counsel	BANA's Counsel
    Jeff Ostrow Jonathan Streisfeld KOPELOWITZ OSTROW P.A. 1 West Las Olas Blvd. Suite 500 Fort Lauderdale, FL 33301 Jeffrey Kaliel KALIELGOLD PLLC 1100 15th Street N.W. 4th Floor Washington, D.C. 20005 Kenneth J. Grunfeld GOLOMB SPIRT GRUNFELD 1835 Market Street Suite 2900 Philadelphia, PA 19103	Brian A. Kahn MCGUIREWOODS LLP 201 North Tryon Street Suite 3000 Charlotte, NC 28202

    
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18. What is the difference between objecting and opting-out of the Settlement?

    Objecting is telling the Court that you do not believe the Settlement is fair, reasonable, and adequate for the Settlement Class, and asking the Court to reject it. You can object only if you do not opt-out of the Settlement. If you object to the Settlement and do not opt-out, then you are entitled to a Settlement Class Member Payment if the Settlement is approved, but you will release claims you might have against BANA. Opting out, is telling the Court that you do not want to be part of the Settlement, and do not want to receive a Settlement Class Member Payment or release claims you might have against BANA for the claims alleged in this lawsuit.

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19. What happens if I object to the Settlement?

    If the Court sustains your objection, or the objection of any other Settlement Class member, then there may be no Settlement. If you object, but the Court overrules your objection and any other objection(s), then you will be part of the Settlement.

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THE COURT’S FAIRNESS HEARING

20. When and where will the Court decide whether to approve the Settlement?

    The Court will hold a Final Fairness Hearing on July 24, 2023. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court may also decide how much to award Class Counsel for Attorneys’ Fees and Costs and how much the Class Representative should get as a Service Award for acting as the Class Representative.

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21. Do I have to come to the hearing?

    No. Class Counsel will answer any questions the Court may have. You or your lawyer may appear at the hearing at your own expense if you desire to do so, but you do not have to. If you have submitted an objection, then you may want to attend.

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22. May I speak at the hearing?

    If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must separately file a “Notice of Intent to Appear” with the Court no later than June 24, 2023, and in that notice you must:

    • state how much time the Settlement Class member anticipates needing to present the objection;
    • Identify, by name, address, and telephone number all witnesses the Settlement Class member proposes to have testify;
    • summarize in detail the anticipated testimony of all such witnesses;
    • identify all exhibits the Settlement Class member intends to offer in support of the objection; and
    • attach complete copies of all such exhibits.

    You must also deliver a copy of the Notice of Intent to Appear with the above listed items to Class Counsel and BANA’s counsel at the addresses listed in FAQ 17.

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IF YOU DO NOTHING

23. What happens if I do nothing at all?

    If you do nothing at all, and if the Settlement is approved, then you may receive a Settlement Class Member Payment that represents your share of the Net Settlement Fund. You will be considered a part of the Settlement Class, and you will give up claims against BANA for the conduct identified in the Settlement. You will not give up any other claims you might have against BANA that are not released in this Settlement.

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THE LAWYERS REPRESENTING YOU

24. Do I have a lawyer in this case?

    The Court ordered that the lawyers and their law firms referred to on this website as "Class Counsel" will represent you and the other Settlement Class members. You may hire your own attorney, at your own expense if you desire to do so, but you do not have to.

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25. Do I have to pay the lawyer for accomplishing this result?

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

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26. Who determines what the attorneys’ fees will be?

    The Court will be asked to approve the amount of attorneys’ fees at the Final Fairness Hearing. Class Counsel will file an application for Attorneys’ Fees and Costs and will specify the amount being sought as discussed above. You may review a copy of the fee and cost application in the Documents page of this website when available.

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GETTING MORE INFORMATION

27. How do I get more information?

    This website and the Notice only summarize the proposed Settlement. More details are contained in the Settlement Agreement, which can be viewed here or at the Office of the Clerk of the Eastern District of Pennsylvania, which is located at 601 Market Street, Philadelphia, PA 19106, by asking for the court file containing the Motion for Preliminary Approval of Class Settlement.

    For additional information about the Settlement and/or to obtain copies of the Settlement Agreement, the pleadings in this case, or to change your address for purposes of receiving a Settlement Class Member Payment, you should visit the Documents page of this website or contact the Settlement Administrator as follows:

    Checchia v. Bank of America
    Settlement Administrator
    P.O. Box 2696
    Portland, OR 97208-2696

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

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