Frequently Asked Questions
- What is this lawsuit about?
- How do I know if I am part of the settlement?
- What options do I have with respect to the settlement?
- What are the critical deadlines?
- How much is the Settlement?
- How much will my payment be?
- Do I have to do anything if I want to participate in the settlement?
- How do I make a claim if I received a Claim Form?
- When will I receive my payment?
- How will I be sent my payment?
- How do I exclude myself from the settlement?
- What happens if I exclude myself from the settlement?
- If I exclude myself, can I obtain a payment?
- How do I notify the Court if I do not like the settlement?
- What is the difference between objecting and requesting exclusion from the settlement?
- When and where will the Court decide whether to approve the settlement?
- Do I have to come to the hearing?
- May I speak at the hearing?
- Do I have a lawyer in this case?
- What is this lawsuit about?
The lawsuits that are being settled are entitled Danielle Wellington v. Empower Federal Credit Union, in the United States District Court for the Northern District of New York, Case No. 5:20-cv-01367, and Dianna Conley v. Empower Federal Credit Union, in the United States District Court for the Northern District of New York, Case No. 5:20-cv-00566. The cases are each a “class action.” That means that the “Named Plaintiffs,” Danielle Wellington and Dianna Conley, are individuals who are acting on behalf of a group. The group is made up of all members of Empower (the “Defendant”) who had a checking account with Empower and were assessed an Overdraft Fee on any type of payment transaction from April 27, 2015 through September 24, 2021, against their checking account if, at the time such fee was assessed, the member had sufficient money in his or her ledger balance to cover the transaction that resulted in the fee. The persons in this group are collectively called the “Class Members.”
The Named Plaintiffs claim Defendant improperly charged overdraft fees in checking accounts when members had enough money in the balance to cover the transaction if holds placed on pending transactions or deposits were not deducted from the balance, i.e., the ledger balance. Defendant 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. Defendant contends it assessed overdraft fees based on the available balance in a member’s account. Defendant 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 Plaintiffs or any Class Member.
Top - How do I know if I am part of the settlement?
An email notice or postcard notice are planned to be sent out in April 2023. If you received either of these notices, then Defendant’s records indicate that you are a Class Member.
Top - 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 attached to the Notice, if applicable, to recover for the Overdraft Fees you were charged for ATM and debit card transactions, and certain overdraft fees (if you did not receive a Claim Form, then you were not assessed any eligible fees); (2) do nothing and you will receive a payment according to the terms of this settlement for overdraft fees you may have been charged on your checking account when your ledger balance was sufficient but your available balance was not sufficient to pay the transaction that resulted in the fee; (3) exclude yourself from the settlement (“opt out” of it); or (4) participate in the settlement but object to it. Each of these options is described in further detail in the Frequent Asked Questions.
Top - What are the critical deadlines?
The deadline for sending a Claim Form to the Claims Administrator is May 8, 2023.
If you do nothing, you will receive Settlement Funds by credit to your account if you are still a member of Defendant credit union when the settlement is paid, or via check mailed to your residence of record if you are not a member of Defendant credit union 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 May 8, 2023.
The deadline to file an objection with the Court is also May 27, 2023.
Top - How much is the Settlement?
Defendant has agreed to create a Settlement Fund of $2,000,000. In addition, Empower has agreed to change certain overdraft practices and disclosures, and has agreed to forgive eligible overdraft fees assessed on Class Members whose accounts were closed and uncollected with a negative balance from April 27, 2015 through September 24, 2021. Together these constitute the Value of the Settlement.
Top - How much will my payment be?
The balance of the Settlement Fund, which is the amount of the Settlement Fund after Attorneys’ Fees and Costs as well as the Service Award to the Named Plaintiffs and Claims Administrator fees are paid, will be divided among all Class Members on a pro rata basis according to an allocation in the Settlement Agreement to members who incurred an overdraft fee on checking accounts which was assessed while the ledger balance was sufficient to pay for the transaction.
Top - Do I have to do anything if I want to participate in the settlement?
The notice you receive will detail if you need to submit a claim form to receive payment. 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.” This 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.
Top - 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, signed, and sent to the Claims Administrator. You may elect to return the claim form via mail or electronically via submitting through the website using the login ID and PIN code found on your claim form.
All claims must be submitted or postmarked no later than May 8, 2023, and, if returning via mail, must be mailed to as follows:
Wellington/Conley v. Empower Federal Credit Union Claims Administrator PO Box 301132
Los Angeles, CA 90030-1132
Top - When will I receive my payment?
The Court will hold a Fairness Hearing to consider whether the settlement should be approved. If the Court approves the settlement, then the Claims Administrator should begin paying claims within approximately 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.
Top - How will I be sent my payment?
If you are still an active member of Defendant than your payment will be credited to your account, or a separate open account should the original account be closed. If you are not an active member, then your payment will be sent via check to the address on file.
Top - 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 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 Claims Administrator indicating that you want to be excluded. Your letter can simply state “I hereby elect to be excluded from the settlement in the Wellington/Conley v. Empower 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 May 8, 2023, and sent to:
Wellington/Conley v. Empower Federal Credit Union Claims Administrator
PO Box 301132
Los Angeles, CA 90030-1132
Top - What happens if I exclude myself from the settlement?
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.
Top - If I exclude myself, can I obtain a payment?
No. If you exclude yourself, you will not be entitled to a payment.
Top - How do I notify the Court if 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 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 Claims Administrator at the address below. Your objection should state 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 May 27, 2023, and must be mailed to the Court as follows:
United States District Court for the Northern District of New York James T. Foley Courthouse 445 Broadway Albany, NY 12207
And to the Claims Administrator as follows:
Wellington/Conley v. Empower Federal Credit Union Claims Administrator PO Box 301132
Los Angeles, CA 90030-1132
Top - 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 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.
Top - When and where will the Court decide whether to approve the settlement?
The Court will hold a Final Approval or Fairness Hearing on June 26, 2023, at 1 PM, in the United States District Court for the Northern District of New York, located at Alexander Pirnie Federal Building & U.S. Courthouse, 10 Broad St., Utica, NY 13501. 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 Plaintiffs should get as a “Service Award” for acting as the class representatives.
Top - 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.
Top - 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 the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”
Top - Do I have a lawyer in this case?
Yes. The Court has ordered that the Richard D. McCune and Elaine S. Kusel of McCune, Write Arevalo LLP and Joseph I. Marchese of Bursor and Fisher, P.A. will represent the Class Members in this matter. You do not have to pay the lawyers as they will be paid directly from the Settlement Fund.
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