Abercrombie v. TD Bank, N.A.

BASIC INFORMATION

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1. What is this lawsuit about?

   The lawsuit that is being settled is entitled Abercrombie v. TD Bank, N.A. It is pending in the United States District Court for the Southern District of Florida, Case No.0:21-cv-61376. The case is a “class action.” That means that the “Class Representative,” Jill Abercrombie, is an individual who is acting on behalf of current and former accountholders who were assessed certain Retry OD Fees between June 1, 2015 and April 30, 2021. The Class Representative has asserted claims for breach of the account agreement and breach of the implied covenant of good faith and fair dealing.

   Defendant does not deny it charged the fees the Class Representative is complaining about, but contends it did so properly and in accordance with the terms of its agreements. Defendant therefore denies that its practices give rise to claims for damages by the Class Representative or any Settlement Class Members.

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2. Why did I receive notice of this lawsuit?

   You received notice because Defendant’s records indicate that you were charged one or more Retry OD Fees that are the subject of this action. The Court directed that the Notice be sent to all Settlement Class members because each such member has a right to know about the proposed settlement and the options available to him or her before the Court decides whether to approve the settlement. If you previously received a notice from a separate class action settlement entitled Perks v. T.D. Bank, N.A., No. 1:18-cv-11176-VEC (S.D.N.Y.), the benefits of this settlement are in addition to the benefits provided by Perks.

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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 and her lawyers’ job to identify when a proposed settlement offer is good enough that it justifies recommending settling the case instead of continuing to trial. In a class action, the Class Representative’s lawyers, known as Class Counsel, make this recommendation to the Class Representative. The Class Representative has the duty to act in the best interests of the class as a whole and, in this case, it is her belief, as well as Class Counsels’ opinion, that this settlement is in the best interest of all Settlement Class members.

   There is legal uncertainty about whether a judge or a jury will find that Defendant was contractually and otherwise legally obligated not to assess the fees at issue. And even if it was contractually wrong to assess these fees, there is uncertainty about whether the Class Representative’s claims are subject to other defenses that might result in no or less recovery to Settlement Class Members. Even if the Class Representative were to win at trial, there is no assurance that the Settlement Class Members would be awarded more than the current settlement amount and it may take years of litigation before any payments would be made. By settling, the Settlement Class Members will avoid these and other risks and the delays associated with continued litigation.

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

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WHO IS IN THE SETTLEMENT

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

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

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

   You have three options: (1) do nothing and you will receive a payment or credit according to the terms of this Settlement; (2) exclude yourself from the Settlement (“opt out” of it); or (3) participate in the Settlement but object to it. Each of these options is described in a separate section below.

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6. What are the critical deadlines?

   There is no deadline to receive a payment or credit to your account. If you do nothing, then you will get a payment or credit.

   The deadline for sending a letter to exclude yourself from or opt out of the settlement is July 23, 2022. The deadline to file an objection with the Court is also July 23, 2022.

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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 would receive more money by pursuing your claims on your own (with or without an attorney that you could hire) and you are comfortable with the risk that you might lose your case or get less than you would in this Settlement, then you may want to consider opting out.

   If you believe the Settlement is unreasonable, unfair, or inadequate and the Court should reject the Settlement, you can object to the Settlement terms. The Court will decide if your objection is valid. If the Court agrees, then the Settlement may not be approved and no payments will be made to you or any other member of the Settlement Class. If your objection (and any other objection) is overruled, and the Settlement is approved, then you may still get a payment or credit, and you will be bound by the Settlement.

   If you want to participate in the Settlement, then you don’t have to do anything; you will receive a payment or credit if the Settlement is approved by the Court. If you participate in the Settlement, you will give up your right to bring your own lawsuit about the claims covered by the settlement.

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

   The Court granted Final Approval of this Settlement on December 9, 2022.

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THE SETTLEMENT PAYMENT

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9. How much is the Settlement?

   Defendant has agreed to create a Settlement Fund of $4,245,000.00. As discussed separately below, attorneys’ fees, litigation costs, and the costs paid to a third-party Settlement Administrator to administer the Settlement (including mailing and emailing notice) will be paid out of the Settlement Fund. The Net Settlement Fund will be divided among all Settlement Class Members entitled to Settlement Class Member Payments based on a 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 costs?

    Class Counsel will request the Court to approve attorneys’ fees of not more than one-third of the Settlement Fund, and will request that it be reimbursed for litigation costs incurred in prosecuting the case. The Court will decide the amount of the attorneys’ fees and costs.

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

    If applicable law permits, at the time of final approval, Class Counsel will request that the Class Representative be paid a service award not to exceed $5,000.00 for their work in connection with this case. The Service Award must be approved by the Court.

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12. How much will my payment be?

    The balance of the Settlement Fund after attorneys’ fees and costs, the Settlement Administrator’s fees, and any service award, also known as the Net Settlement Fund, will be divided among all Settlement Class Members entitled to Settlement Class Member Payments in accordance with the formula outlined in the Settlement Agreement. Current accountholders of Defendant will receive a credit to their Accounts for the amount they are entitled to receive. Former accountholders of Defendant shall receive a check from the Settlement Administrator.

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

    No. If you received a Notice, then you may be entitled to receive a credit or payment for a Retry OD Fee without having to make a claim.

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14. When will I receive my payment?

    The Court granted Final Approval on December 9, 2022. Settlement payments to eligible class members is expected to occur by April 2023.

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EXCLUDING YOURSELF FROM THE SETTLEMENT

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15. How do I exclude myself from the Settlement?

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

    To opt out, you must send a letter to the Settlement Administrator that you want to be excluded. Your letter can simply say “I hereby elect to be excluded from the settlement in the Abercrombie v. TD Bank, N.A. class action.” Be sure to include your name, the last four digits of your account number(s) or former account number(s), address, telephone number, and email address. Your exclusion or opt out request must be postmarked by July 23, 2022, and sent to:

    Abercrombie v. TD Bank, N.A.
    Settlement Administrator
    PO Box 4720
    Portland, OR 97208-4720

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16. 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 Defendant for the claims alleged in this case. However, you will not be entitled to receive a payment or credit from the settlement.

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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 exclude yourself, or opt-out, from the Settlement. (Settlement Class members who exclude themselves from the Settlement have no right to object to how other Settlement Class members are treated.) To object, you must send a written document by mail or private courier (e.g., FedEx) to the Clerk of Court, Settlement Administrator, Class Counsel, and Defendant’s Counsel at the addresses below. Your objection must include the following information:

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

    All objections must be postmarked no later than July 23, 2022, and must be sent to all of the following addresses:

    
    

    Clerk of Court	Settlement Administrator	Class Counsel	Defendant's Counsel
    Clerk of the United States District Court for the Southern District of Florida 400 North Miami Avenue Room 8N09 Miami, FL 33128	Abercrombie v. TD Bank, N.A. Settlement Administrator PO Box 4720 Portland, OR 97208-4720	Lynn A. Toops Cohen & Malad, LLP 1 Indiana Square Suite 1400 Indianapolis, IN 46204 Jeffrey D. Kaliel KALIEL GOLD PLLC 1875 Connecticut Ave NW 10th Floor Washington, DC 20009 202-350-4783 jkaliel@kalielpllc.com Jeff Ostrow Jonathan M. Streisfeld KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard Suite 500 Fort Lauderdale, Florida 33301 954-525-4100 954-525-4300 ostrow@kolawyers.com streisfeld@kolawyers.com	Lucus A. Ritchie, Esq. Pierce Atwood LLP Merrill’s Warf 254 Commercial Street Portland, ME 04101

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

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18. What happens if I object to the Settlement?

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

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19. When and where did the Court approve the Settlement?

    The United States District Court for the Southern District of Florida approved this Settlement on December 9, 2022.

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20. Do I have to come to the hearing?

    No. Class Counsel will answer any questions the Court may have. You may attend if you desire to do so. If you have submitted a timely and valid objection, the Court will consider it whether or not you attend.

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21. May I speak at the hearing?

    If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing.

    To do so, you must include with your objection, described in Question 17 above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

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22. 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.

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23. 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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24. Who determines what the attorneys’ fees will be?

    The Court will be asked to approve the amount of attorneys’ fees at the Fairness Hearing. Class Counsel will file an application for attorneys’ fees and costs and will specify the amount being sought as discussed above. You may review a copy of the fee application here once it is filed with the Court.

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GETTING MORE INFORMATION

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25. Where can I get more information?

    This Website summarizes the proposed Settlement. More details are contained in the Settlement Agreement, which can be viewed/obtained here or at the Office of the Clerk of the United States District Court for the Southern District of Florida, which is located at 400 North Miami Avenue, Miami, FL 33128, by asking for the Court file containing the Motion For Preliminary Approval of Class Settlement (the settlement agreement is attached to the motion).

    For additional information about the settlement and/or to obtain copies of the Settlement Agreement, or to change your address for purposes of receiving a payment, you should contact the Settlement Administrator as follows:

    
    

    Abercrombie v. TD Bank, N.A. Settlement Administrator
    PO Box 4720
    Portland, OR 97208-4720

    
    

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

    COHEN & MALAD, LLP
    Lynn A. Toops, Esq.
    1 Indiana Square
    Suite 1400
    Indianapolis, IN 46204
    317-636-6481

    
    

    Jeffrey D. Kaliel
    KALIEL GOLD PLLC
    1875 Connecticut Ave NW
    10th Floor
    Washington, DC 20009
    202-350-4783
    jkaliel@kalielpllc.com
    

    
    

    Jeff Ostrow
    Jonathan M. Streisfeld
    KOPELOWITZ OSTROW P.A.
    One West Las Olas Boulevard
    Suite 500
    Fort Lauderdale, Florida 33301
    954-525-4100
    954-525-4300
    ostrow@kolawyers.com
    streisfeld@kolawyers.com

    
    

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

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