Fried v. The Bank of Castile

Filing 21

PRELIMINARY APPROVAL ORDER. Final Approval Hearing set for 6/5/2013 at 9:00 AM before William M. Skretny, Chief Judge. FURTHER, GRANTING Plaintiff's Motion for Preliminary Approval of Class Action Settlement as specified. Signed by William M. Skretny, Chief Judge U.S.D.C. on 1/31/2013. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
----------------------------------------------------AVROHOM P. FRIED,
on behalf of himself and the class,

Case No.: 12-cv-624S

Plaintiff,
v.

THE BANK OF CASTILE
Defendant.
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PRELIMINARY APPROVAL ORDER
Presently before this Court is the parties’ joint motion for preliminary approval of their Class
Action Settlement Agreement and Release. This Court makes the following findings:

1. Solely for purposes of settlement, the following Settlement Class is certified pursuant to Fed.
R. Civ. P. 23(b)(3): All persons who used the automated teller machine operated by The Bank of
Castile at 408 East Main Street in Batavia, New York between June 15, 2012 at 11 am, and July
17, 2012 at 8 am, and who were charged a $3.00 transaction fee for the use of the automated
teller machine. According to Defendant’s records, there are 170 such people.

2. For settlement purposes only:
(A) The class as defined is sufficiently numerous such that joinder is impracticable.
(B) Common questions of law and fact predominate over any questions affecting only individual
Class Members. Those questions include whether or not the Bank of Castile violated the fee

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notice requirements of the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq., and its
implementing regulation, 12 C.F.R. § 205.1 et seq.
(C) The claims of Plaintiff are typical of the Class Members’ claims.
(D) Plaintiff is an appropriate and adequate representative for the Class, and his attorney, The
Law Offices of Shimshon Wexler, PC, is hereby appointed as Class Counsel.
(E) A class action is the superior method for the fair and efficient adjudication of the claims of
the Class Members.

3. The proposed settlement is fair and reasonable, and this Court grants preliminary approval of
it. In the event that the proposed settlement is not ultimately approved for any reason, Defendant
shall retain its right to contest certification of the Class. Plaintiff will receive $1,000, the
maximum statutory damages allowed. The class will receive $6,500. Plaintiff’s counsel will
receive attorney’s fees and costs of $10,000. If each class member submits a claim form they
will receive approximately $35. Plaintiff’s attorney will be compensated approximately $55 per
class member.

4. The Court approves the proposed forms of notice to the Class, and directs that notice be
implemented in accordance with the Settlement Agreement, i.e., through targeted newspaper
publication notice (covering the area in which the ATM is located), posted notice, and website
notice. This complies with Fed. R. Civ. P. 23(c)(2), which requires “the best notice that is
practicable under the circumstances.” The parties agree, as does this Court, that providing
individual notice to each potential claimant is not feasible here because of the impracticality of
attempting to identify individual ATM users. Under such circumstances, the proposed forms of

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notice satisfy Rule 23. See Siragusa v. Advance Fin. Fed. Credit Union, No. 2:09-cv-328, 2010
WL 3000715 (N.D. Ind. July 9, 2010) (R&R) (recommending proposed final order of settlement
in which notice was posted on a website, published in a local newspaper and posted on the ATM
at issue in the litigation), adopted, 2010 WL 3000703 (N.D. Ind. July 28, 2010); McKinnie v. JP
Morgan Chase Bank, N.A., 678 F. Supp. 2d 806, 813 (E.D. Wis. 2009) (approving adequacy of
notice by newspaper publication and website posting where individual notice, particularly to
non-Chase customers who used Chase ATMs, was not feasible). Class Counsel will file an
affidavit with the Court when notice has been so published and posted.

5. This notice -- through newspaper publication (covering the area in which the ATM is located),
posted on the pertinent ATM, and on the Internet -- is the only notice to the Class Members that
is required.

6. Class Members shall have 90 days after today’s date to send in a Claim Form, opt out, or
object to the proposed Settlement Agreement. Class Notice is to be issued within 14 days of
today’s date.

7. Any Class Member who wants to receive a monetary portion of the Settlement Fund shall file
a Claim Form. The Claim Form is attached to the Stipulation and Settlement Agreement. This
form requires any class member to provide a copy of his or her receipt(s) or, in the alternative, a
copy of his or her bank statement(s) showing use of the ATM during the relevant time period.
The Claim Form will be available for download at a website that will be created by the plaintiffs

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or by contacting Class Counsel. To be timely, a Claim Form must be sent to Shimshon Wexler,
PO Box 250870, New York, NY 10025 and received within 90 days of today’s date.

8. Any Class Member who desires to exclude himself or herself from the Class shall not be
bound by the Settlement Agreement and shall not be entitled to any of its benefits. To be timely,
a request for exclusion must be sent to Shimshon Wexler, PO Box 250870, New York, NY
10025 and received within 90 days of today’s date. To be effective, the request for exclusion
must make clear that exclusion is sought. An example of this would read: “I WANT TO BE
EXCLUDED FROM THE SETTLEMENT CLASS IN FRIED V. THE BANK OF CASTILE. I
UNDERSTAND THAT BY OPTING OUT OF THE SETTLEMENT, I WILL NOT RECEIVE
ANY BENEFITS THAT I WOULD OTHERWISE BE ENTITLED TO IF I PARTICIPATED
IN THE SETTLEMENT CLASS.” The request for exclusion must also contain the excluded
Class Member’s name, address, and signature.

9. Any Class Member who objects to the settlement contemplated by the Settlement Agreement
shall have a right to appear and be heard at the Final Approval Hearing. Class Members who
wish to object should provide a written notice of objection to either Plaintiffs’ Class Counsel, or
Defendant’s counsel. Counsel is responsible for forwarding any received objections to opposing
counsel. Objections must be received within 90 days of today’s date. Class Counsel and
Defendant’s counsel may, but need not, respond to the objections, if any, by means of a
memorandum of law. That memorandum shall be no longer than 10 pages, and must be
submitted no later than 5 business days prior to the Final Approval Hearing.

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10. A Final Approval Hearing on the fairness and reasonableness of the Settlement Agreement
will be held before this Court on June 5, 2013 at 9:00 a.m.

11. Accordingly, Plaintiff’s Motion for Preliminary Approval of Class Action Settlement is
GRANTED, consistent with this Order.

SO ORDERED.
Dated: January 31, 2013
Buffalo, NY
s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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