Lipsett v. Popular Bank

The Plaintiff filed this lawsuit against the Defendant alleging a breach of contract when the Defendant assessed overdraft fees on what are sometimes called “Authorize Positive, Settle Negative Transactions” (“APSN Transactions”). This is where a bank assesses an overdraft fee on a transaction that overdraws the account when it clears, although the transaction was previously authorized against sufficient available funds. The Defendant acknowledges that it assessed overdraft fees on these types of transactions in some instances but maintains that the account agreement permitted it to do so and denies any liability. The Court has not decided who is right.

In a class action lawsuit, one or more persons called plaintiffs sue on behalf of other persons that have similar legal claims. The people are a “class” or “settlement class members.” In this lawsuit, the person who sued is called the “Plaintiff.” The company and people they are suing, Popular Bank, is called the “Defendant.” One court resolves the issues for everyone in the class, except for those people who choose to exclude themselves (opt out) from the class.

The Court has not decided in favor of the Plaintiff or the Defendant. Instead, both sides agreed to a Settlement to avoid the cost and risk of a trial. The Plaintiff and Class Counsel believe the Settlement is best for the Settlement Class and represents a fair, reasonable, and adequate resolution of the lawsuit.

The Defendant denies the legal claims in the lawsuit; denies all allegations of wrongdoing, fault, liability or damage to the Plaintiff and the Settlement Class; and denies they acted improperly or wrongfully in any way. The Defendant nevertheless recognizes the expense and time that would be required to defend the lawsuit through trial and has taken this into account in agreeing to the Settlement.

The Settlement Class includes all Accountholders of Popular Bank consumer checking accounts who during the Class Period (May 13, 2016, to July 26, 2024) were assessed, and not refunded, an overdraft fee in connection with: (1) a debit card or other ATM transaction on their account on or before April 15, 2020 (regardless of whether the authorization was against positive funds); and/or (2) a debit card or other ATM transaction that was authorized against positive funds on or after April 16, 2020. If you were a member of the settlement class in the Valle v. Popular Community Bank, Index No. 653936/2012 (N.Y. Sup. Ct.) lawsuit, then overdraft fees which you were assessed on or before August 6, 2018, are not included in these two categories of overdraft fees.

The formal definition of the Settlement Class is as follows.

You are excluded from being a Settlement Class Member if you are (a) the Defendant, its parents, subsidiaries, affiliates, officers, and directors; (b) all Settlement Class members who make a timely election to opt out; and (c) all judges assigned to this litigation and their immediate family members.

If you are still not sure whether you are a Settlement Class Member, you may call 1-877-701-2656.

A $1,500,000 Settlement Fund will be established and will be used to pay for: (1) Settlement Administration Costs; (2) the Service Award to the Class Representative; and (3) the attorneys’ Fee and Cost Award. The amount remaining after these items are paid, if any, is the “Net Settlement Fund.” The Net Settlement Fund will then be used to make automatic Settlement Class Member Payments (an account credit or payment by check) to all Settlement Class Members who do not request exclusion from the Settlement Class.

Payments to each Settlement Class Member will be distributed on a pro rata (equal) basis and calculated as follows:

(Net Settlement Fund divided by the Total Dollar Amount of Class Fees of Settlement Class Members) x (Total Dollar Amount of Class Fees [meaning overdraft fees covered by the Settlement that were assessed to your Account and not refunded] you as an individual Settlement Class Member were charged and paid in connection with the transactions at issue) = Settlement Class Member Payment.

No. If the Settlement is approved, a cash payment will be made automatically to you as a Settlement Class Member, unless you request exclusion from the Settlement Class. Current Accountholders with Popular Bank at the time cash payments are made will be automatically credited the cash payment with a deposit to their account. Past Accountholders will automatically be sent a check for their cash payment. You do not need to file a claim to receive a cash payment.

For a jointly held Account of one or more Current Accountholders, payment will be deposited into an account of the primary Accountholder, whether or not such account is jointly held. For a jointly held Account of a Past Accountholder, payment will be made by sending a check that will be payable to the primary Accountholder named on the Account and mailed to the last known address for the primary Accountholder.

The Court will hold a Final Approval Hearing on January 7, 2025 (which is subject to change), to decide whether to finally approve the Settlement. Even if the Court finally approves the Settlement, there may be appeals. The appeal process can take time, perhaps more than a year. You will not receive a cash payment until any appeals are resolved. Please be patient and check this website for updates.

Unless you exclude yourself (“opt out”) from being a Settlement Class Member by timely submitting a request for exclusion, you will remain a Settlement Class Member. This means as a Settlement Class Member you cannot sue, continue to sue or be part of any other lawsuit against the Released Parties about the legal issues in this lawsuit. It also means the Court’s orders and any judgments will apply to you and legally bind you and that you will release the legal claims detailed in the Settlement Agreement. The Release is provided in the Settlement Agreement in Section 13 in necessary legal terminology. The Settlement Agreement is available here.

Yes, the Court has appointed lawyers Jeffrey Kaliel of KalielGold PLLC and Michael R. Reese of Reese LLP to represent you and the other Settlement Class Members. The lawyers are called Class Counsel. They are experienced in handling class action lawsuits. 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, but you do not need to.

Class Counsel will request an Attorneys’ Fee of one-third of the Settlement Fund and separately seek reimbursement of costs and expenses. In addition, Class Counsel will request the Court approve a Service Award for the Class Representative (Frankie Lipsett) up to $10,000 for their efforts in pursuing this lawsuit. If awarded by the Court, the attorneys’ Fee and Cost Award and the Service Award will be paid from the Settlement Fund. The Court may award less than these amounts for the attorneys’ Fee and Cost Award and Service Award.

To exclude yourself from the Settlement, you must mail a written request for exclusion, which includes the following:

• your name and current mailing address;
• your bank account number(s) or sufficient information to identify your bank account(s);
• your physical signature; and
• a clear statement that you want to be excluded from the Settlement Class, such as “I hereby request to be excluded from the Settlement Class in Lipsett v. Banco Popular North America.”

The exclusion request must be mailed to the Settlement Administrator at the following address, and postmarked by December 9, 2024:

Popular Bank Fee Class Action
Opt-Out Requests
P.O. Box 2798
Portland, OR 97208-2798

If an Account has more than one Accountholder, and one Accountholder opts out, then all Accountholders on that Account are considered to have opted-out and will not receive a cash payment.

You cannot opt out (exclude yourself) by telephone or email.

“Mass” or “class” requests for exclusion filed by third parties on behalf of a “mass” or “class” of Settlement Class Members or multiple Settlement Class Members where an opt out has not been signed by each and every individual Settlement Class Member will not be allowed.

If you choose to exclude yourself from the Settlement, you are telling the Court that you do not want to be a Settlement Class Member and you will not be bound by the Settlement or any judgment in this lawsuit.

You can only get a cash payment if you remain a Settlement Class Member. If you remain a Settlement Class Member, you will be bound by the Settlement or any judgment in this lawsuit.

If you choose to exclude yourself from the Settlement, you are not giving up the right to sue the Released Parties for the legal claims this Settlement resolves and releases. You must exclude yourself as a Settlement Class Member to start or continue with your own lawsuit about the legal claims involved in this Settlement.

Any Settlement Class Member who does not submit a request for exclusion from the Class may object to the Settlement.

Your objection must contain the following:

• our full name, current address, telephone number, and email address (if any);
• information identifying you as a Settlement Class Member, including evidence that you are a Settlement Class Member;
• written statement of the specific legal and factual bases for the objection, accompanied by any legal support for the objection you believe is applicable;
• the identity of any lawyer representing or assisting you as an objector, if any, and a statement indicating whether they will appear at the Final Approval Hearing;
• a statement indicating whether you intend to appear and/or testify at the Final Approval Hearing;
• a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection (if any);
• your signature as the objector and the signature of your duly authorized lawyer or other duly authorized representative, along with documentation of the representation (if any);
• a list, by case name, court, and docket number, of any cases in which you directly or through a lawyer have filed an objection to any proposed class action settlement within the last three years; and
• a list, by case name, court, and docket number, of all other cases you have been a named plaintiff or served as a class representative in any class action.

If your objection is made by or through a lawyer, the written objection must also include:

• the identity and number of Settlement Class Members represented by the lawyer;
• the identity and number of such represented Settlement Class Members who have opted out of the Settlement Class; and
• the identity and number of such represented Settlement Class Members who remained in the Settlement Class and have not objected.
• if the lawyer intends to seek fees and expenses from anyone other than the objector they represent, the lawyer must also file with the Court and serve upon Class Counsel and Popular Bank’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 lawyer 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 lawyer’s hourly rate.

If you or your lawyer fail to make an objection in the manner specified in this section you will have waived any objections and will be prevented from making any objection to the Settlement (whether by appeal, or otherwise).

Your written objection must be filed with the Court by December 9, 2024, with copies to Class Counsel and Defendant’s Counsel at the following addresses:

Any objection to the Settlement must be in writing. If you file a timely written objection, you may, but are not required to, appear at the Final Approval Hearing, either in person or through your own lawyer. If you appear through your own lawyer, you are responsible for hiring and paying your lawyer.

Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you remain a Settlement Class Member (meaning you do not exclude yourself). Excluding yourself is telling the Court that you do not want to be a Settlement Class Member. If you exclude yourself, you cannot object because the Settlement no longer affects you.

The Court will hold the Final Approval Hearing at 9:30 am on January 7, 2025, at the United States District Court, Southern District of New York, 40 Foley Square, New York, NY 10007. If you or your lawyer would like to speak at the hearing, you must file an objection and a Notice of Intent to Appear at the Final Fairness Hearing by December 9, 2024.

Note: The date and time of the Final Approval Hearing are subject to change without further notice to the Settlement Class. The Court may also decide to hold the hearing electronically or by telephone. You should check this website regularly to confirm the date and time of the Final Approval Hearing have not changed.

At the hearing, the Court will consider whether the Settlement is final, fair, reasonable, and adequate. If there are objections that were filed with the Court by the deadline, the Court will consider them. If you submit a timely objection and Notice of Intent to Appear, and you would like to speak at the hearing, the Court will also listen to you or your lawyer speak at the hearing, if you so request.

If the Court approves the Settlement, cash payments will be provided after any appeals are resolved. Please be patient. This website will be updated to provide Settlement Class Members with updated information.

You may attend the Final Approval Hearing, but you are not required to do so. If you submit an objection and a Notice of Intent to Appear, you may (but are not required to) speak at the Final Approval Hearing. You may also pay your own lawyer to attend or discuss your objection, but that is not necessary.

Yes, as long as you do not exclude yourself, and you submit an objection and a Notice of Intent to Appear, you or your lawyer can (but do not have to) participate and speak in this lawsuit and Settlement. This is called making an appearance. You also may have your own lawyer speak for you at the hearing, but you will have to pay for the lawyer yourself.

If you or your lawyer would like to speak at the hearing, you must deliver to Class Counsel and Defendant’s Counsel and have file with the Court, a Notice of Intent to Appear by December 9, 2024.

The Notice of Intent to Appear must:

• state how much time you or your lawyer need to present your objection;
• identify by name, address, and telephone number, all witnesses you propose to have testify (if any);
• summarize in detail the testimony of all witnesses (if any);
• identify all exhibits you or your lawyer intend to offer in support of your objection; and
• attach complete copies of all exhibits.

If you are a Settlement Class Member and you do nothing, you will automatically receive a cash payment if the Court finally approves the Settlement. You will give up your rights as explained in the “Excluding Yourself from the Settlement” section of the Notice, including your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Released Parties about the legal claims that are released by the Settlement Agreement. You will be bound by the Settlement and any judgments.