Gaylor v. Comala Credit Union

Filing 53

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/6/12. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DANIELLE MARIE GAYLOR,
individually and on behalf
of all others similarly
situated,
Plaintiff,
v.
COMALA CREDIT UNION,
Defendant.

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CIVIL ACTION NO.
2:10cv725-MHT
(WO)

OPINION
Plaintiff Danielle Marie Gaylor, on behalf of herself
and all others similarly situated, filed this lawsuit
against

defendant

Comala

Credit

Union

asserting

violations of the Electronic Funds Transfer Act (“EFTA”),
15 U.S.C. § 1693 et seq.

The parties settled this case,

and this court preliminarily approved the settlement and
the proposed class on November 17, 2011.

The parties now

move for final approval of the class-action settlement.
For the reasons that follow, the joint motions will be
granted.

The parties have agreed that a plaintiff class,
defined as follows, is due to be certified:
“All
consumers
who
initiated
an
electronic funds transfer at the Comala
ATMs located at 418 Madison Avenue,
Montgomery, AL 36104, 105 North Memorial
Drive, Prattville, AL 36067, 300 Jensen
Road, Prattville, AL 36067, and 3380
Eastdale Circle, Montgomery, AL 36117
and who were assessed a fee for such
electronic funds transfer on or after
August 26, 2009 (one year prior to the
filing of the Complaint) and continuing
through September 9, 2010 (the date
Comala posted an external fee notice).”
The parties agree that this class of persons satisfies
the requirements of numerosity, commonality, typicality,
and adequacy of representation required by Federal Rule
of Civil Procedure 23(a).

There is also no dispute that

certification is proper under Rule 23(b)(3), because
common issues of law and fact predominate among the
proposed class members.
After an independent review, the court approves of
the certification of this plaintiff-settlement class.
The court finds that plaintiff Gaylor is an adequate

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representative of the plaintiff-settlement class and that
all requirements of subparts (a) & (b)(3) of Rule 23 are
satisfied.

The court expressly finds for purposes of

settlement that the class is so numerous that joinder of
all members is impracticable; that there are questions of
law and fact common to the class; that the claims of the
representative plaintiff are typical of the claims of the
class; that the representative plaintiff has fairly and
adequately

protected

the

interests

of

the

plaintiff-settlement class and will continue to do so;
that, on the assumption that the allegations of the
complaint are true, the questions of law or fact common
to

the

members

of

the

class

predominate

over

any

questions affecting only individual members; and that a
class action is superior to other available methods for
the fair and efficient adjudication of this controversy.
The court further finds that maintenance of this action
as a class action pursuant to Rule 23(b)(3) is superior
to any other means of adjudicating the claims raised.

3

Pursuant
established
$ 42,869.73.

to
a

the

settlement

settlement

fund

agreement,
in

the

Comala

amount

of

Each class member was eligible to receive

a pro-rata distribution from the settlement fund up to
$ 100.00, with named plaintiff Gaylor to receive an
incentive payment in the amount of $ 2,500.00.
was

provided

to

the

class

by

way

of

the

Notice

internet,

newspaper publication, and postings on Comala’s ATMs.
No objections were made to the settlement nor did any
class member opt out of the settlement.
claims were filed.

Additionally, no

The settlement agreement provides

that any unclaimed funds are to be donated to the Public
Safety Insurance Fund.

Attorney’s fees were awarded, but

not from the settlement fund.

Gaylor v. Comala Credit

Union, 2012 WL 1987183 (M.D. Ala. 2012) (Thompson, J.).
A fairness hearing was held before this court on
April 4, 2012, to determine whether this court should
approve as fair, adequate, and reasonable a settlement of
the claims asserted in this action against Comala, upon

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the terms and conditions of the settlement agreement
preliminarily approved on November 17, 2011.

Due notice

of the settlement hearing has been given in a manner
approved by the court.

Additionally, the court has

determined that the notice provided to the class was the
best practicable notice under the circumstances and fully
complies with all requirements of due process and Rule
23.

The

attorneys

respective
of

record

parties
and

the

have
court

appeared
has

by

their

received

and

considered arguments and evidence in connection with the
proposed compromise and settlement of said claims.

No

objections to the settlement were made at the hearing.
The court has reviewed and considered the proposed
settlement agreement and all other matters of record in
this action and concludes that the settlement is fair,
reasonable, and adequate.

There does not appear to be

any collusion between the parties or any sacrifice of the
plaintiff Gaylor’s interests by her counsel for the sake
of collecting attorney’s fees.

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***
To be clear: the court was initially troubled that no
class member other than the named plaintiff came forward
to receive a settlement payment.
raises

the

specter

attorney’s fees.

that

this

Of course, this fact

suit

was

motivated

by

The court nonetheless recognizes that

Congress has seen fit to award attorney’s fees in EFTA
litigation to encourage private attorneys general to
bring suit.

Viewed from this perspective, plaintiffs’

attorneys’ financial self-interest incentivizes banks to
provide proper notice on ATMs.

In a passage worthy of

Adam Smith, the Supreme Court has endorsed this rationale
in the analogous context of contingent-fee arrangements
in class actions:
“The use of the class-action procedure
for litigation of individual claims may
offer substantial advantages for named
plaintiffs; it may motivate them to
bring cases that for economic reasons
might not be brought otherwise. Plainly
there has been a growth of litigation
stimulated by contingent-fee agreements
and an enlargement of the role this type
of fee arrangement has played in
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vindicating the rights of individuals
who otherwise might not consider it
worth the candle to embark on litigation
in which the optimum result might be
more than consumed by the cost. The
prospect of such fee arrangements offers
advantages for litigation by named
plaintiffs in class actions as well as
for their attorneys.
For better or
worse, the financial incentive that
class actions offer to the legal
profession is a natural outgrowth of the
increasing reliance on the ‘private
attorney general’ for the vindication of
legal rights; obviously this development
has been facilitated by Rule 23.
“The aggregation of individual claims in
the context of a classwide suit is an
evolutionary response to the existence
of injuries unremedied by the regulatory
action of government. Where it is not
economically feasible to obtain relief
within the traditional framework of a
multiplicity of small individual suits
for damages, aggrieved persons may be
without any effective redress unless
they may employ the class-action device.
That there is a potential for misuse of
the class action mechanism is obvious.
Its benefits to class members are often
nominal and symbolic, with persons other
than class members becoming the chief
beneficiaries. But the remedy for abuses
does not lie in denying the relief
sought here, but with re-examination of
Rule 23 as to untoward consequences.”

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Deposit Guaranty National Bank v. Roper, 445 U.S. 326,
338-39

(1980)

(footnotes

omitted).

Keeping

in

mind

Congress’s considered Smithian judgment that attorney’s
fees function as a deterrent to EFTA violations, the
court will approve the settlement agreement in full.
An appropriate judgment will be entered.
DONE, this the 6th day of June, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE