Tonya Gunter v. United Federal Credit Union

Frequently Asked Questions

  1. What is this lawsuit about?
  2. Why did I receive this Notice of this lawsuit?
  3. Why did the parties settle?
  4. How do I know if I am part of the Settlement?
  5. What options do I have with respect to the Settlement?
  6. What are the critical deadlines?
  7. How do I decide which option to choose?
  8. What has to happen for the Settlement to be approved?
  9. How much is the Settlement?
  10. How much of the settlement fund will be used to pay for attorney fees and costs?
  11. How much of the settlement fund will be used to pay the Named Plaintiff a Service Award?
  12. How much of the settlement fund will be used to pay the Claims Administrator’s expenses?
  13. How much will my payment be?
  14. Do I have to do anything if I want to participate in the Settlement?
  15. When will I receive my payment?
  16. How do I exclude myself from the settlement?
  17. What happens if I opt out of the settlement?
  18. If I exclude myself, can I obtain a payment?
  19. How do I notify the Court that I do not like the settlement?
  20. What is the difference between objecting and requesting exclusion from the settlement?
  21. What happens if I object to the settlement?
  22. When and where will the Court decide whether to approve the settlement?
  23. Do I have to come to the hearing?
  24. May I speak at the hearing?
  25. How do I make a claim if I received a Claim Form?
  26. What happens if I do nothing at all?
  27. Do I have a lawyer in this case?
  28. Do I have to pay the lawyer for accomplishing this result?
  29. Who determines what the attorneys’ fees will be?
  30. How do I get more information?
  1. What is this lawsuit about?

    The lawsuit that is being settled is entitled Tonya Gunter v. United Federal Credit Union, United States District Court for the District of Nevada, Case No. 3:15-cv-00483. The case is a "class action." That means that the "Named Plaintiff," Tonya Gunter, is an individual who is acting on behalf of two groups. The first is all members of UFCU who were charged an Overdraft Fee for any payment transaction from October 3, 2011 to September 30, 2018, and, at the time such fee was imposed, that person had sufficient funds in the ledger balance but not the available balance in his or her account to complete the transaction. The second group is all members of UFCU who were charged Overdraft Fees for ATM and debit card transaction for the first time from August 15, 2010 to September 30, 2018. The persons in these groups are collectively called the "Class Members."

    The Named Plaintiff claims UFCU did not properly opt members into its overdraft program for ATM and debit card payment transactions. Plaintiff also alleges UFCU improperly charged overdraft fees when members had enough money in the ledger balances of their checking accounts, but not in their available balances, to pay for the transaction in question. The Named Plaintiff is seeking a refund of alleged improper Overdraft Fees charged to Class Member accounts. UFCU does not deny it charged Overdraft Fees, but contends it did so properly and in accordance with the terms of its agreements and applicable law. UFCU assessed Overdraft Fees based on the available balance in a member’s account. UFCU maintains that this practice is proper and was disclosed to its members, and therefore denies that its practices give rise to claims for damages by the Named Plaintiff or any Class Member. UFCU also alleges that it properly gave notice and opted members into its overdraft program for ATM and debit card transactions.

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  2. Why did I receive this Notice of this lawsuit?

    You received the Notice because UFCU’s records indicate that you are in one or both of the groups that was alleged to have been charged improper overdraft 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.

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  3. Why did the parties settle?

    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 her 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 UFCU was contractually and otherwise legally obligated not to assess Overdraft Fees when the ledger balance was sufficient to pay for a transaction even though the available balance was not, and whether UFCU properly opted members into its overdraft program for ATM and debit card transactions. There is also uncertainty about whether the Named Plaintiff’s claims are subject to other defenses that might result in Class Members receiving no recovery, or a substantially smaller recovery than that being offered here. 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 UFCU disputes Plaintiff’s claims, it has agreed to settle to avoid the costs, distractions and risks of litigation. Thus, even though UFCU denies that it did anything improper, it believes settlement is in its best interest and in the best interests of all of its members.

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  4. How do I know if I am part of the Settlement?

    If you received the Notice, then UFCU’s records indicate that you are a Class Member who is entitled to receive a payment or credit to your account.

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  5. What options do I have with respect to the Settlement?

    You have four options:

    (1) file a claim with the Claims Administrator on the Claim Form enclosed with the Notice to recover for the Overdraft Fees you were charged for ATM and debit card transactions pertaining to the Claim Form (if you did not receive a Claim Form, then you were not assessed any eligible ATM and debit card fees);

    (2) do nothing and receive a payment according to the terms of this settlement for other Overdraft Fees you have been charged;

    (3) exclude yourself from the settlement ("opt out" of it); or

    (4) participate in the settlement, but object to it.

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  6. What are the critical deadlines?

    The deadline for sending a Claim Form to the Claims Administrator is postmarked by April 1, 2019. If you do nothing, you may nonetheless receive settlement funds by credit to your account if you are still a member of UFCU when the settlement is paid or via check mailed to your residence of record if you are not a member of UFCU when the settlement is paid at the close of the claims period, but only if you were assessed Overdraft Fees while you had sufficient funds in your account to cover the transaction.

    The deadline for sending a letter to exclude yourself from or opt out of the settlement is postmarked by April 1, 2019.

    The deadline to file an objection with the Court is also April 20, 2019.

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  7. How do I decide which option to choose?

    If you do not like the settlement and 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.

    If you want to participate in the settlement, and the Claim Form enclosed with the Notice indicates you were assessed Overdraft Fees for ATM withdrawals or one-time (non-recurring) debit card signature payments, then you should fill out the Claim Form and return it. See FAQ 25. If you did not receive a Claim Form with the Notice, then UFCU’s records indicate you were not assessed the type of Overdraft Fees for ATM withdrawals or debit card payments that are reimbursable under the claims portion of the settlement. In that case, you need not do anything and you will still receive a payment for other Overdraft Fees assessed when you had a sufficient ledger balance in your account, if you do not opt out.

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  8. What has to happen for the Settlement to be approved?

    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, which is why you received the Notice. The Court will make a final decision regarding the settlement at a "Fairness Hearing" or "Final Approval Hearing," which is currently scheduled for June 3, 2019 at 10:00 AM.

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  9. How much is the Settlement?

    UFCU has agreed to create a Settlement Fund of $1,750,000. As discussed separately below, attorneys’ fees, litigation costs, a Service Award to the Named Plaintiff, and the costs paid to a third-party Claims 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 based on the amount of Eligible Overdraft Fees they paid, and if eligible to make a claim, whether they make a claim.

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  10. How much of the settlement fund will be used to pay for attorney fees and costs?

    Class Counsel will request that the Court award up to $833,000 of the settlement fund as attorneys’ fees. Class Counsel will also request reimbursement of not more than $86,500 in 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.

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  11. How much of the settlement fund will be used to pay the Named Plaintiff a Service Award?

    Class Counsel on behalf of the Named Plaintiff will request that the Court award her $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.

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  12. How much of the settlement fund will be used to pay the Claims Administrator’s expenses?

    The Claims Administrator has estimated its total costs at $62,622 and agreed to cap them at $70,000.

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  13. How much will my payment be?

    If you have received a Claim Form and are qualified to make a claim, you may do so for up to ten of the ATM and debit card overdraft fees listed on the Claim Form, which will be paid from a portion of the Net Settlement Fund on a pro rata basis, less deduction for fees and costs. The remaining funds from the Net Settlement Fund will be disbursed to Class Members who were assessed Overdraft Fees for payments made when they had a positive ledger balance in their checking accounts, on a pro rata basis.

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  14. Do I have to do anything if I want to participate in the Settlement?

    If you received a Claim Form with the Notice and it indicates you had qualifying Overdraft Fees from ATM and debit card transactions within the requisite period, then you should fill out the Claim Form and send it to the Administrator as provided in FAQ 25. If you received the Notice but there is no Claim Form attached, then you will still be entitled to receive a payment without having to make a claim for Overdraft Fees assessed when you had enough money in your account to pay the transaction that resulted in the fee, if you do not opt out. If you are qualified to make a claim, you may receive a greater payment if you do so.

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  15. When will I receive my payment?

    The Court will hold a Fairness Hearing (explained in FAQs 22-24) on June 3, 2019 at 10:00 AM to consider whether the settlement should be approved. If the Court approves the settlement, then the Claims Administrator should begin processing and paying claims within about 10 days. 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.

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  16. How do I exclude myself from the settlement?

    If you do not want to receive a payment, or if you want to keep any right you may have to sue UFCU 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 Claims Administrator indicating that you want to be excluded. Your letter can simply say "I hereby elect to be excluded from the settlement in the Tonya Gunter v. United Federal Credit Union class action." Be sure to include your name, last four digits of your member number, address, telephone number, and email address. Your exclusion or opt out request must be postmarked by April 1, 2019, and sent to:

    Gunter v. United Federal Credit Union Claims Administrator

    P.O. Box 404000

    Louisville, KY 40233-4000

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  17. What happens if I opt out of the settlement?

    If you opt out of the settlement, you will preserve and not give up any of your rights to sue UFCU for the claims alleged in this case. However, you will not be entitled to receive a payment from this settlement.

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  18. If I exclude myself, can I obtain a payment?

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

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  19. How do I notify the Court that I do not like the settlement?

    You can object to the settlement or any part of it that you do not like IF you do not exclude yourself or opt out of 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 Claims Administrator at the address below. Your objection should say that you are a Class Member, that you object to the settlement, and the factual and legal reasons why you object, and whether you intend to appear at the hearing. In your objection, you must include your name, address, telephone number, email address (if applicable) and your signature.

    All objections must be postmarked no later than April 20, 2019 and must be mailed to the Court as follows:

    United States District Court for the District of Nevada

    400 S. Virginia Street

    Reno, Nevada 89501

    And to the Claims Administrator as follows:

    Gunter v. United Federal Credit Union Claims Administrator

    P.O. Box 404000

    Louisville, KY 40233-4000

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  20. What is the difference between objecting and requesting exclusion from the settlement?

    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 UFCU. 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 UFCU for the claims alleged in this lawsuit.

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  21. What happens if I object to the settlement?

    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.

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  22. When and where will the Court decide whether to approve the settlement?

    The Court will hold a Final Approval or Fairness Hearing at 10:00 AM on June 3, 2019 in courtroom 5 of the United States District Court for the District of Nevada, located at 400 S. Virginia Street, Reno, Nevada 89501. At this hearing, the Court will consider whether the settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. The Court may also decide how much to award Class Counsel for attorneys’ fees and expenses, and how much the Named Plaintiff should get as a "Service Award" for acting as the class representative.

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  23. Do I have to come to the hearing?

    No. Class Counsel will answer any questions the Court may have. You may attend if you desire to do so. If you have submitted an objection, then you may want to attend.

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  24. May I speak at the hearing?

    If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must include with your objection, described in FAQ 19, the statement, "I hereby give notice that I intend to appear at the Final Approval Hearing."

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  25. How do I make a claim if I received a Claim Form?

    If you received a Claim Form, then you should use it to make a claim. It should be filled out and sent to the Claims Administrator:

    UNIQUE CLAIM NUMBER TO BE PRE-PRINTED

    Your Name

    Your Address (not a post office box)

    Your Telephone Number

    Your email address

    Attn. Claims Administrator:

    I am making a claim for ___ overdraft fees related to Regulation E Overdraft Fees for my account ending in the last three digits of ___. I certify that I believe this number is compensable under the Gunter v. United Federal Credit Union settlement.

    Date: __________________                                                                                                             [Signature]

    All claims must be postmarked no later than April 1, 2019, and must be mailed as follows:

    Gunter v. United Federal Credit Union Claims Admnistrator

    PO Box 404000

    Louisville, KY 40233-4000

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  26. What happens if I do nothing at all?

    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, Claims 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 UFCU for the conduct alleged in this lawsuit. You will not give up any other claims you might have against UFCU that are not part of this lawsuit.

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  27. Do I have a lawyer in this case?

    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.

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  28. Do I have to pay the lawyer for accomplishing this result?

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

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  29. Who determines what the attorneys’ fees will be?

    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 the fee application on this website or view a physical copy at the Office of the Clerk of the United States District Court for the District of Nevada, which is located at 400 S. Virginia Street, Reno, Nevada 89501.

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  30. How do I get more information?

    The Notice only summarizes the proposed settlement. More details are contained in the Settlement Agreement, which can be viewed/obtained here or at the Office of the Clerk of the United States District Court for the District of Nevada, which is located at 400 S. Virginia Street, Reno, Nevada 89501, by asking for the court file containing the Motion For Preliminary approval of Class Settlement and all supporting declarations (the settlement agreement is attached to a declaration filed in support of the motion).

    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 Claims Administrator as follows:

    Gunter v. United Federal Credit Union Claims Admnistrator

    PO Box 404000

    Louisville, KY 40233-4000

    Telephone: 1-866-464-4564

    You can also contact the Class Counsel as follows:

    Richard D. McCune                                                                            

    McCune Wright Arevalo LLP                                                                 

    3281 E. Guasti Road, Ste.100                                                                

    Ontario, CA 91761                                                                                  

    Telephone: (909) 557-1250      

    rdm@mccunewright.com     


    Taras Kick

    The Kick Law Firm, APC

    815 Moraga Drive

    Los Angeles, CA 90049

    Telephone: (310) 395-2988

    Taras@kicklawfirm.com

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

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