Clark v. HBT Settlement

The lawsuit that is being settled is entitled Clark v. Hills Bank and Trust Company, No. LACV080753 (Johnson County, Iowa). The case is a "class action." That means that the "Named Plaintiff," Elisalynn Clark, is an individual who is acting on behalf of two groups. The first group, the Overdraft Class, is all customers of Defendant who were charged an overdraft fee on a debit card transaction from January 2012 and October 9, 2020, and, at the time the transaction was authorized, had a positive balance. The second group, the NSF Fee Class, is all customers of Defendant who were charged more than one non-sufficient funds ("NSF") fee on their accounts for a transaction from January 2012 and October 9, 2021, that was initially rejected for insufficient funds and later resubmitted to Defendant for payment. The persons in these groups are collectively called the "Class Members."

The Named Plaintiff claims she was improperly charged overdraft and NSF fees. Defendant does not deny that it assessed the overdraft and NSF fees, but denies that its practices give rise to claims for damages by the Named Plaintiff or any Class Member. Defendant contends that all fees were assessed in accordance with the terms of its agreements and applicable law.

You received a Notice because Defendant's records indicate that you are in one or both of the groups that was alleged to have been charged improper overdraft fee(s) or NSF fee(s). The Court directed that the Notice be sent to all Class Members because each 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.

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Named Plaintiff'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 Named Plaintiff. The Named Plaintiff has the duty to act in the best interests of the class as a whole and, in this case, it is their belief, as well as Class Counsel's opinion, that this Settlement is in the best interest of all Class Members for at least the following reasons:

There is legal uncertainty about whether a judge or a jury will find that Defendant breached its agreements with customers or otherwise acted improperly by assessing the overdraft and NSF fees that are the subject of this case. There is also uncertainty about whether the Named Plaintiff's claims are subject to other defenses that might result in no or less recovery to Class Members. Even if the Named Plaintiff were to win at trial, there is no assurance that the 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 Class Members will avoid these and other risks and the delays associated with continued litigation.

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

If you received a mailed or emailed Notice, then Defendant's records indicate that you are a Class Member who is entitled to receive a payment or credit to your account.

You have three options:

1. Do nothing and receive a payment 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.

If you do nothing, you will receive Settlement Funds by credit to your account if you are still a customer of Defendant when the Settlement is paid or via check mailed to your residence of record if you are not a customer of Defendant when the Settlement is paid at the close of the claims period.

The deadline for sending a letter to exclude yourself from or opt out of the Settlement is October 19, 2021.

The deadline to file an objection with the Court is also October 19, 2021.

If you do not like the Settlement, 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.

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 will not be approved and no payments will be made to you or any other Class Member. If your objection (and any other objection) is overruled and the Settlement is approved, then you will still get a payment.

The Court has to 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. The Court will make a final decision regarding the Settlement at a "Fairness Hearing" or "Final Approval Hearing," which is currently scheduled for January 21, 2022, at 1:30 p.m.

Defendant has agreed to create a Settlement Fund of $740,000.00. As discussed separately below, attorneys' fees, litigation costs, a service award to the Named Plaintiff, and costs over and above the $30,000 paid by Defendant to a third-party Settlement Administrator to administer the Settlement (including mailing and emailing the Notice) will be paid out of this amount. The balance of the Settlement Fund will be divided among all Class Members proportionally. Additionally, as a result of this lawsuit, Defendant has implemented changes to its disclosures that clarify Defendant's overdraft and NSF fee practices.

Class Counsel will request that the Court award up to one-third (33-1/3%) of the value of the Settlement as attorneys' fees plus reimbursement litigation costs incurred in prosecuting the case. 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.

Class Counsel, on behalf of the Named Plaintiff, will request that the Court award her up to $10,000 for her role in securing this Settlement on behalf of the class. The Court will decide if a service award is appropriate and, if so, the amount of the award.

The balance of the Settlement Fund will be divided among all Class Members proportionally. Current customers of Defendant will receive a credit to their accounts for the amount they are entitled to receive. Former customers of Defendant shall receive a check from the Settlement Administrator.

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

The Court will hold a Fairness Hearing (explained in FAQ 21-24) on January 21, 2022, at 1:30 p.m. to consider whether the Settlement should be approved. If there are no objections and the Court approves the Settlement, then the Settlement Administrator should begin paying claims within approximately forty days of the Court's approval. However, if someone objects to the Settlement, and the objection is sustained, then there is no Settlement. Even if all objections are overruled and the Court approves the Settlement, an objector could appeal, and it might take months or even years to have the appeal resolved, which would delay any payment.

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 Clark v. Hills Bank and Trust Company class action." Be sure to include your name, the last four digits of your account number (current or former) or Social Security Number, address, telephone number, and email address. Your exclusion or opt out request must be postmarked by October 19, 2021, and sent to:

Clark v. HBT Settlement Administrator
P.O. Box 4339
Portland, OR 97208-4339

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 from this Settlement.

No. If you exclude yourself, you will not be entitled to a payment.

You can object to the Settlement or any part of it that you do not like only IF you do not exclude yourself, or opt out, from the Settlement. (Class Members who exclude themselves from the Settlement have no right to object to how other Class Members are treated). To object, you must send a written document to the Settlement Administrator at the address below. Your objection must include the following:

• A statement of your intention to object to the Settlement in the Clark v. Hills Bank and Trust Company class action;
• Your name, address, telephone number, the last four digits of your account number (current or former) or Social Security Number, and the contact information for any attorney you have retained in connection with this case;
• A statement of the factual and legal basis for each objection and any exhibits you wish the Court to consider in connection with the objection;
• A statement as to whether you intend to appear at the Fairness Hearing, either in person or through an attorney, and, if through an attorney, identifying the attorney by name, address, and telephone number; and
• Your signature.

Class Counsel will file any objections and responsive pleadings at least seven days before the 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 you fail to comply with the previsions herein, you will waive and forfeit any and all rights to appear and/or object separately, and will be bound by the terms of this agreement and the orders and judgments of the Court.

All objections must be postmarked no later than October 19, 2021, and mailed to the Settlement Administrator as follows:

Clark v. HBT Settlement Administrator
P.O. Box 4339
Portland, OR 97208-4339

Objecting is telling the Court that you do not believe the Settlement is fair, reasonable, and adequate for the 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 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 or release claims you might have against Defendant for the claims alleged in this lawsuit.

If the Court sustains your objection, or the objection of any other Class Member, 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.

This Settlement was approved by the Court on January 21, 2022. You can view the Final Approval Order here.

If you do nothing at all, and if the Settlement is approved, then you may receive a payment that represents your share of the Settlement Fund net of attorneys' fees, Settlement Administrator expenses, and the Named Plaintiff's service award. You will be considered a part of the class, and you will give up claims against Defendant for the conduct identified in the Settlement. You will not give up any other claims you might have against Defendant that are not released in this Settlement.

The Court ordered that the lawyers and their law firms referred to in the Notice as "Class Counsel" will represent you and the other Class Members.

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

The Court will be asked to approve the amount of attorneys' fees at the Fairness Hearing. Class Counsel will file an application for fees and costs and will specify the amount being sought as discussed above. You may review a physical copy of the fee application above using the Important Documents link or by clicking here.

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