Elaine Ward-Howie v. Frontwave Credit Union

The lawsuit that is being reviewed is entitled Elaine Ward-Howie v. Frontwave Credit Union. It is in the San Diego County Superior Court for the State of California, Case No. 37-2022-00016328-CU-BC-CTL. San Diego Superior Court Judge Katherine A. Bacal is overseeing this case.

The case is a “class action.” That means the “Class Representative,” Elaine Ward-Howie, is an individual who is acting on behalf of current and former members who were purportedly improperly assessed APPSN Fees between April 29, 2018, and June 30, 2022, and Retry Fees between January 4, 2019, and June 30, 2022. “APPSN Fees” mean Overdraft Fees that Defendant charged and did not refund on signature Point of Sale Debit Card transactions where there was a sufficient available balance at the time the transaction was authorized but an insufficient available balance at the time the transaction was presented to Defendant for payment and posted to the account. “Retry Fees” mean Returned Item Fees and Overdraft Fees that were charged and not refunded during the Retry Fee Class Period for Automated Clearing House (ACH) and check transactions that were resubmitted by a merchant after being returned by Defendant for insufficient funds. The Class Representative has asserted claims for breach of contract, including breach of the covenant of good faith and fair dealing, and violation of California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.). The Amended Complaint in this lawsuit is available here.

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 and applicable law. Defendant therefore denies its practices give rise to claims for damages by the Class Representative or any Settlement Class Members but is settling to avoid expense and distraction resulting from the litigation.

You received the Notice because Defendant’s records indicate you were charged one or more APPSN Fees and/or Retry 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.

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’s 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 Counsel’s 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 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 was to win at trial, there is no assurance 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.

If you received a Notice, Defendant’s records indicate you are a member of the Settlement Class who is entitled to receive a payment or credit to your account and/or forgiveness of Uncollected Relevant Fees.

You have three options: (1) do nothing and you will receive a check payment or account credit and/or forgiveness of Uncollected Relevant Fees according to the terms of this Settlement; (2) exclude yourself from the Settlement; or (3) participate in the Settlement but object to it. Each of these options is described in FAQs below.

There is no deadline to receive the Settlement benefits. If you do nothing, you will get a check payment or account credit and/or forgiveness of Uncollected Relevant Fees.

The deadline for sending a letter to exclude yourself from the Settlement was June 12, 2024.

The deadline to file an objection with the Court was also June 12, 2024.

If you do not like the Settlement and you believe 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, you may want to consider excluding yourself.

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, the Settlement may not be approved and no payments and/or forgiveness of Uncollected Relevant Fees 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, you may still get a payment and/or forgiveness of Uncollected Relevant Fees and will be bound by the Settlement, including the release of claims.

If you want to participate in the Settlement, you don’t have to do anything; you will receive a payment or account credit and/or forgiveness of Uncollected Relevant Fees if the Settlement is approved by the Court.

The Court approved the Settlement at the July 18, 2024 Final Approval Hearing.

Defendant has agreed to create a Settlement Fund of $1,872,814.00, allocated $1,470,159.00 to the APPSN Fee Class and $402,655.00 to the Retry Fee Class. It will also forgive Uncollected Relevant Fees totaling $127,186.00, as defined in the Settlement Agreement.

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 formulas described in the Settlement Agreement.

The Court approved attorneys’ fees of $666,666, equal to 33.33% of the Value of the Settlement, as well as reimbursement of litigation costs incurred in prosecuting the case totaling $11,736.19.

The Court has approved an Incentive Award to the Class Representative in the amount of $5,000 for her work in connection with this case.

The Settlement Administrator estimates its expenses at $97,993.00.

The balance of the Settlement Fund after attorneys’ fees and costs, the Incentive Award, and the Settlement Administrator’s fees, also known as the Net Settlement Fund, has been divided among all Settlement Class Members entitled to Settlement Class Member Payments in accordance with the formulas outlined in the Settlement Agreement. Current Accountholders received a credit to their accounts for the amount they are entitled to receive. Past Accountholders received a check from the Settlement Administrator. Settlement Class Members entitled to forgiveness of Uncollected Relevant Fees received this benefit automatically.

If you stay in the Settlement Class, all the decisions by the Court will bind you, and you give Defendant a “release.” A release means you cannot sue, continue to sue, or be part of any other lawsuit against Defendant about the legal issues in this case. As of the Effective Date, you shall automatically be deemed to have fully and irrevocably released and forever discharged Defendant from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys’ fees, losses and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, based on contract, tort or any other theory, that arise from or relate to Defendant’s assessment of APPSN Fees or Retry Fees, and claims that were asserted or could possibly have been asserted in the Action relating to Defendant’s assessment of APPSN Fees or Retry Fees. More information about the release may be found in the Settlement Agreement.

No. If you received a Notice, you may be entitled to receive a check payment or credit for Relevant Fees and/or forgiveness of Uncollected Relevant Fees without having to make a claim, unless you choose to exclude yourself from the Settlement.

Credits to Current Accountholders were issued on October 11, 2024 and check payments to Past Accountholders were issued on October 21, 2024. Subject to Court approval, any Residual Funds from uncashed checks remaining after the first distribution shall be distributed on a pro rata basis to Settlement Class Members who either cashed their checks or received Account credits, to the extent feasible and practical in light of the costs of administering such subsequent payments, unless the amounts involved are too small to make individual distributions economically feasible or other specific reasons exist that would make such further distributions impossible or unfair. Should such a second distribution be made, the participating Settlement Class Members will be sent a check by the Settlement Administrator. Any second distribution checks shall be valid for 90 days.

Also subject to Court approval, in the event the costs of preparing, transmitting, and administering such subsequent payments to Settlement Class Members do not make individual distributions economically feasible or practical, or other specific reasons exist that would make such further distributions impossible or unfair, or if such a second distribution is made and Residual Funds still remain, the Residual Funds shall be distributed to a cy pres recipient approved by the Court. The Parties agree to propose Frontwave Foundation or Armed Services YMCA (Camp Pendleton, 29 Palms and San Diego) as the cy pres recipient.

The deadline to exclude yourself from the lawsuit was June 12, 2024, and has now passed. It is too late to request exclusion from the Settlement.

If you exclude yourself from 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 check payment or credit and/or forgiveness of Uncollected Relevant Fees from the Settlement.

The deadline to object to the Settlement was June 12, 2024, and has now passed. It is too late to object to the Settlement.

Objecting is telling the Court 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 exclude yourself from the Settlement. If you object to the Settlement and do not exclude yourself, you are entitled to a check payment or credit for Relevant Fees and/or forgiveness of Uncollected Relevant Fees if the Settlement is approved, but you will release claims you might have against Defendant.

Excluding yourself is telling the Court you do not want to be part of the Settlement and do not want to receive a check payment or credit for Relevant Fees and/or forgiveness of Uncollected Relevant Fees, or you 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 member of the Settlement Class, then there may be no Settlement. However, an objection to Class Counsel’s requested attorneys’ fees and costs or to the requested Incentive Award amount may result in approval of the Settlement but the award of a lower attorneys’ fee and cost amount or lower Incentive Award. If you object, but the Court overrules your objection and any other objection(s), you will be part of the Settlement. If the Court approves the Settlement, the objector will participate in the Settlement. If the Court does not approve the Settlement, there is no Settlement.

The Court approved the Settlement on July 18, 2024.

The Court ordered that the lawyers and their law firms referred to in the Notice as “Class Counsel” will represent you and the other Settlement Class Members. However, you may retain a lawyer to represent you at your own expense.

No. Class Counsel will be paid directly from the Settlement Fund for the legal services provided to accomplish the Settlement for Settlement Class Members’ benefit. Class Counsel’s award of attorneys’ fees and costs is deducted from the Settlement Fund, reducing that amount in calculating the Net Settlement Fund from which Settlement Class Members will be paid.

The Court approved the amount of attorneys’ fees at the Final Approval Hearing.

The Notice only summarizes the proposed Settlement. More details are contained in the Settlement Agreement or by contacting the Settlement Administrator (details below) and requesting a copy.

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 at the following address:

Elaine Ward-Howie v. Frontwave Credit Union
Attn: Settlement Administrator
P.O. Box 2774
Portland, OR 97208-2774

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

Class Counsel
KALIEL GOLD PLLC Sophia Goren Gold 950 Gilman Street, Suite 200 Berkeley, California 94710  sgold@kalielgold.com	KALIEL GOLD PLLC Jeffrey D. Kaliel 1100 15th Street NW 4th Floor Washington, D.C. 20005  jkaliel@kalielgold.com	KOPELOWITZ OSTROW P.A. Jeff Ostrow 1 West Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301  ostrow@kolawyers.com

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