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STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY

SUE A. FLEISCHMANN, individually, and on behalf of all others similarly situated,

Plaintiff, vs. EDUCATORS CREDIT UNION, and DOES 1-100,

Defendants.

Case No.: 2018CV000603 Honorable Ellen R. Brostrom Class Action Demand for Jury Trial

NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF PROPOSED

CLASS ACTION SETTLEMENT

MALLERY & ZIMMERMAN K. Scott Wagner, Wisconsin Bar No. 1004668 swagner@mzmilw.com 731 North Jackson Street, Suite 900 Milwaukee, Wisconsin 53202 Telephone: (414) 271-2424 Facsimile: (414) 271-8678 McCUNE WRIGHT AREVALO LLP Richard D. McCune, California Bar No. 132124 rdm@mccunewright.com Emily J. Kirk, Illinois Bar No. 6275282 ejk@mccunewright.com 3281 East Guasti Road, Suite 100 Ontario, California 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 THE KICK LAW FIRM, APC Taras Kick, California Bar No. 143379* Taras@kicklawfirm.com 815 Moraga Drive Los Angeles, California 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 Class Counsel and Attorneys for Plaintiff and Class Representative Sue Fleischmann and the Class

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TO ALL PARTIES AND ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Plaintiff and Class Representative Sue A. Fleischmann

(“Plaintiff”), by and through her attorneys, will appear before the Court, in Room 413 of the

Milwaukee County Courthouse, located at 901 N. 9th Street, the Honorable Ellen R. Brostrom

presiding, on October 3, 2019 at 8:30 a.m., and shall move the Court for an order granting final

approval of a proposed settlement of this action (“Order”). Specifically, Plaintiff will seek the

Court’s Order:

1. Finally approving the Settlement Agreement reached between Plaintiff and

Defendant Educators Credit Union (“ECU”) attached as Exhibit 1 to the Declaration of Taras

Kick in Support of the Unopposed Motion for Preliminary Approval;

2. Approving class counsels’ requested fee of $550,000, or one-third of the value of

the settlement;

3. Approving a Class Representative service award to Plaintiff in the amount of

$10,000; and

4. Approving National Consumer Law Center and Wisconsin Trust Account

Foundation as the joint cy pres recipients, each receiving 50% of the residue.

This motion is based on this Notice of Motion and Motion, the Memorandum of Points

and Authorities, the accompanying Declaration of Taras Kick, the accompanying Declaration of

Richard McCune, the accompanying Declaration of Arthur Olsen, the accompanying Declaration

of Lindsey Marquez of the claims administrator Epiq Class Action & Claims Solutions, Inc., the

accompanying Declaration of Richard DuBois of the National Consumer Law Center, other

documents and papers on file in this action, and such other materials as may be presented before

or at the hearing on this motion, or as this Honorable Court may allow.

DATED: September 13, 2019 Respectfully submitted,

By: Electronically signed by: K. Scott Wagner K. Scott Wagner, Wisconsin Bar No. 1004668

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MALLERY & ZIMMERMAN swagner@mzmilw.com 731 North Jackson Street, Suite 900 Milwaukee, Wisconsin 53202 Telephone: (414) 271-2424 Facsimile: (414) 271-8678 Richard D. McCune, California Bar No. 132124 rdm@mccunewright.com Emily J. Kirk, Illinois State Bar No. 6275282 ejk@mccunewright.com McCUNE WRIGHT AREVALO LLP 3281 East Guasti Road, Suite 100 Ontario, California 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 Taras Kick, California Bar No. 143379 Taras@kicklawfirm.com THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, California 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 Class Counsel and Attorneys for Plaintiff and Class Representative Sue Fleischmann and the Class

STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY

SUE A. FLEISCHMANN, individually, and on behalf of all others similarly situated, Plaintiff, vs. EDUCATORS CREDIT UNION, and DOES 1-100, Defendants.

Case No.: 2018CV000603

Honorable Ellen R. Brostrom

Class Action

Demand for Jury Trial

PLAINTIFF’S BRIEF IN SUPPORT OF MOTION FOR FINAL APPROVAL OF SETTLEMENT

MALLERY & ZIMMERMAN K. Scott Wagner Wisconsin Bar No. 1004668 731 swagner@mzmilw.com North Jackson Street, Suite 900 Milwaukee, Wisconsin 53202 Telephone: (414) 271-2424 McCUNE WRIGHT AREVALO LLP Richard D. McCune, California Bar No. 132124 rdm@mccunewright.com Emily J. Kirk, Illinois Bar No. 6275282 ejk@mccunewright.com 3281 East Guasti Road, Suite 100 Ontario, California 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 THE KICK LAW FIRM, APC Taras Kick, California Bar No. 143379 Taras@kicklawfirm.com 815 Moraga Drive, Los Angeles, California 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088

Class Counsel and Attorneys for Plaintiff and Class Representative Sue Fleischmann and the Class

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TABLE OF CONTENTS

Page

I INTRODUCTION .......................................................................................................... 1

II THE HISTORY OF THIS CASE ................................................................................... 2

III THE TERMS OF THE SETTLEMENT. ........................................................................ 4

IV LEGAL ANALYSIS ....................................................................................................... 6

A. The Settlement Should Be Finally Approved ..................................................... 6

1. The Strengths of Plaintiff’s Case Compared Against the Terms of the Settlement ....................................................................... 7

2. The Expected Complexity, Length, and Expense of the Litigation. ........................................................................................... 10

3. The Amount of Opposition to the Settlement Among Affected Parties.................................................................................. 11

4. The Presence of Collusion in Obtaining Settlement. ......................... 12

5. The Stage of the Proceedings. ............................................................ 13

6. The Amount of Discovery Completed. .............................................. 14

B. The Requested Fee Award and Litigation Costs Should Be Approved ............ 14

C. The Proposed Cy Pres Recipient Should Be Approved .................................... 17

D. The Class Representative’s Service Award Should Be Approved ................... 18

E. The Proposed Settlement Class Should Be Certified ........................................ 18

1. The Requirement of Numerosity Is Satisfied .................................... 19

2. The Requirement of Commonality Is Satisfied ................................. 19

3. The Requirement of Typicality Is Satisfied ....................................... 20

4. The Requirement of Adequate Representation Is Satisfied ............... 21

5. The Proposed Settlement Class Also Meets the Requirements of Section 803.08(2)(c) ............................................... 22

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TABLE OF CONTENTS

Page

a. Common Questions of Law and Fact Predominate ............... 23

b. This Class Action Is the Superior Method of Adjudication........................................................................... 24

V CONCLUSION ............................................................................................................. 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Lockheed Martin Corp., No. 06-cv-701-MJR-DGW, 2015 U.S. Dist. LEXIS 93206 (S.D. Ill. July 17, 2015) ...... 16

ACLU of Ill. v. United States GSA, 235 F. Supp. 2d 816 (N.D. Ill. 2002) ................................................................................ 11

Air Line Stewards and Stewardesses Ass'n, Local 550 v. Tans World Airlines, Inc., 630 F.2d 1164 (7th Cir. 1980) ............................................................................................ 7

Am. Int'l Grp., Inc. v. Ace Ina Holdings, Inc., No. 07 CV 2898, 2012 U.S. Dist. LEXIS 25265 (N.D. Ill. Feb. 28, 2012) ...................... 18

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ........................................................................................ 19, 22, 23, 25

Anderson v. Capital One Bank, 224 F.R.D. 444 (W.D. Wis. 2004) ........................................................................ 19, 20, 22

Antitrust Litig., 148 F.R.D. 297 (N.D. Ga. 1993) ......................................................................................... 9

Armstrong v. Bd. of School Dirs., 616 F.2d 305 (7th Cir. 1980) ........................................................................................ 7, 13

Armstrong v. Bd. of School Dirs., 471 F. Supp. 800 (E.D. Wis. 1979) ................................................................................... 11

Behrens v. Wometco Enters., Inc., 118 F.R.D. 534 (S.D. Fla. 1988) ......................................................................................... 8

Blihovde v. St. Croix Cty., 219 F.R.D. 607 (W.D. Wis. 2003) .................................................................................... 19

Brent v. Midland Funding, LLC, No. 3:11- CV-1332, 2011 WL 3862363 (N.D. Ohio Sept. 1, 2011)................................. 10

Carnegie v. Household Int’l, Inc., 376 F.3d 656. (7th Cir. 2004) ........................................................................................... 24

City of Detroit v. Grinnell Corp., 356 F. Supp. 1380 (S.D.N.Y. 1972) .................................................................................... 8

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983) ............................................................................................ 21

iv

TABLE OF AUTHORITIES (cont.)

Page(s)

Erica P. John Fund, Inc. v. Halliburton Co., 131 S.Ct. 2179 (2011) ....................................................................................................... 24

Flanagan v. Allstate Ins. Co., 242 F.R.D. 421 (N.D. Ill. 2007) ........................................................................................ 24

Florin v. Nationsbank, N.A., 34 F.3d 560 (7th Cir. 1994) .............................................................................................. 15

Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) ............................................................................................ 15

Gaspar v. Linvatec Corp., 167 F.R.D. 51 (N.D. Ill. 1996) .................................................................................... 20, 21

Gastineau v. Wright, 592 F.3d 747 (7th Cir. 2010) ............................................................................................ 17

GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074 (7th Cir. 1997) ............................................................................................ 7

Great Neck Capital Appreciation Inc. Partnership, L.P. v. PricewaterhouseCoopers, LLP, 212 F.R.D. 400 (W.D. Wis. 2002) .................................................................................... 12

Gutierrez v. Wells Fargo Bank, N.A., 730 F. Supp. 2d 1080 (N.D. Cal. 2010) .............................................................................. 8

Hinman v. M and M Rental Center, Inc., 545 F. Supp. 2d 802 (N.D. Ill. 2008) ................................................................................ 25

In re Copper Antitrust Litig.), 196 F.R.D. 348 (W.D. Wis. 2000) ............................................... 19

In Re Lawnmower Engine Horsepower Mktg. & Sales Practices Litig., 733 F. Supp. 2d 997 (E.D. Wis. 2010) ........................................................................ 10, 13

In re Linerboard Antitrust Litig., No. 98-5055, 2004 WL 1221350 (E.D. Pa. Jun. 2, 2004)................................................. 17

In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002 (N.D. Ill. 2000) ........................................................................ 13, 14

In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006).............................................................................................. 23

In re Newbridge Networks Sec. Litig., Case No. CIV. 94-1678-LFO, 1998 WL 765724 (D.D.C. Oct. 23, 1998) .......................... 9

v

TABLE OF AUTHORITIES (cont.)

Page(s)

In re Ravisent Techs., Inc. Sec. Litig., Case No. Civ.A.00-CV-1014, 2005 WL 906361 (E.D. Pa. Apr. 18, 2005)........................ 9

In re Synthroid Mktg. Litig., 264 F.3d 712 (7th Cir. 2001) ............................................................................................ 15

In re Toys R US FACTA Litig., 295 F.R.D. 438 (C.D. Cal. 2014) ........................................................................................ 9

Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) .............................................................................................. 7

Johnson v. Meriter Health Servs. Employee Ret. Plan, No. 10-CV-426-WMC, 2015 WL 13546111 (W.D. Wis. Jan. 5, 2015) ........................... 16

Kasten v. Saint-Gobain Performance Plastics Corp., 556 F. Supp. 2d 941 (W.D. Wis. 2008) ............................................................................ 24

Lazy Oil Co. v. Witco, 95 F. Supp. 2d 290 (W.D. Pa. 1997) ............................................................................. 9, 11

Loy v. Bunderson, 107 Wis. 2d 400, 320 N.W.2d 175 (1982) .......................................................................... 7

Marcial v. Coronet Ins. Co., 880 F.2d 954 (7th Cir. 1989) ............................................................................................ 19

Markham v. White, 171 F.R.D. 217 (N.D. Ill. 1997) ........................................................................................ 20

Martel v. Valderamma, 2015 U.S. Dist. LEXIS 49830 (C.D. Cal. 2015) ................................................................. 9

Martin v. Caterpillar, Inc., Case No. 07-CV-1009, 2010 WL 3210448 (C.D. Ill. August 12, 2010) ........................ 7, 8

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) ............................................................................................ 23

Milstein v. Huck, 600 F. Supp. 254 (E.D.N.Y. 1984) ................................................................................... 11

Nelson v. IPALCO Enters., Case No. IPO2-477CHK, 2003 WL 23101792 (S.D. Ind. Sept. 30, 2003) ...................... 21

vi

TABLE OF AUTHORITIES (cont.)

Page(s)

Patrykus v. Gomilla, 121 F.R.D. 357 (N.D. Ill. 1988) ........................................................................................ 21

Pitts v. Trust of Knueppel, 282 Wis. 2d 550, 698 N.W.2d 761 (2005) .......................................................................... 7

Riordan v. Smith Barney, 113 F.R.D. 60 (N.D. Ill. 1986) .......................................................................................... 22

Rozema v. Marshfield Clinic, 174 F.R.D. 425 (W.D. Wis. 1997) .................................................................................... 19

Schulte v. Fifth Third Bank, No. 09-cv-6655, 2010 U.S. Dist. LEXIS 144810 (N.D. Ill. Sep. 10, 2010) ..................... 12

Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011) .................................................................................. 9

Schulte v. Frazin, 176 Wis. 2d 622, 500 N.W.2d 305 (1993) .......................................................................... 7

Sutton v. Bernard, 504 F.3d 688 (7th Cir. 2007) ............................................................................................ 15

Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) .............................................................................................. 8

Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016) ....................................................................................................... 24

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ...................................................................................................... 20

Warnell v. Ford Motor Co., 189 F.R.D. 383 (N.D. Ill. 1999) ........................................................................................ 20

Westcott v. FedEx Ground Package Sys. (In re FedEx Ground Package Sys.), No. 3:05-MD-527 RLM (MDL 1700), 2017 U.S. Dist. LEXIS 64936 (N.D. Ind. Apr. 28, 2017).................................................................................................. 18

Williams v. Rohm & Haas Pension Plan, No. 04-0078-SEB, 2010 WL 4723725 (S.D. Ind. Nov. 12, 2010) ................................... 17

Statutes

Wis. Stat. § 803.08 ................................................................................................................. passim

vii

TABLE OF AUTHORITIES (cont.)

Page(s)

Rules

Fed. R. Civ. P. 23 ............................................................................................................................ 6

Other Authorities

1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 3.13 (3d ed. 1992) ............. 21

2 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 4:24 (3d ed. 1992) ............. 23

4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11.41 (3d ed. 1992) ........... 12

4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11.50 (4th ed. 2002) .......... 10

7AA Wright & Miller, Federal Practice & Procedure § 1778 (3d ed. 2011) ................................ 23

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I INTRODUCTION

This is a class action alleging that Defendant Educators Credit Union (“ECU” or

“Defendant”) charged overdraft fees based on an “artificial available balance” in customer

accounts (i.e., a subset of the actual account balance from which money has been deducted by

placing holds on pending transactions which have not yet posted and deposits) rather than on the

“balance” (i.e., the money actually in the account), allegedly in violation of the terms of its

contract governing the overdraft program. ECU throughout the litigation has denied Plaintiff’s

contentions that its actions violated the terms of its contract with members.

At a mediation with the Hon. Richard J. Sankovitz (Ret.), on February 26, 2019, the

parties reached a proposed settlement of this matter, subject to this Court’s review and approval.

Under the proposed settlement agreement, ECU will pay $1,650,000, with no reversion of any

residue to ECU. (Exhibit 1 to the Declaration of Taras Kick in Support of Motion for

Preliminary Approval (“Kick Decl. ISO MPA”), at ¶ 1(s), (hereafter “Settlement Agreement”).)

Additionally, per the Settlement Agreement, Defendant will pay for all costs of notice and claims

associated with this proposed settlement. (Settlement Agreement ¶ 5(g).) This Court granted

preliminary approval of the proposed settlement in an Order dated July 10, 2019, finding

preliminarily that the class as defined in the proposed settlement agreement meets all of the

requirements for certification of a settlement class under Wis. Stat. § 803.08, (Preliminary

Approval Order [“Order”] ¶¶ 2, 7), that the proposed settlement falls within the range of

reasonableness for potential final approval, and that the proposed settlement is the product of

arm’s length negotiations by experienced counsel. (Id. ¶¶ 5, 8.)

This Court ordered that notice of the proposed settlement be served on class members.

(Id. ¶¶4, 9-11.) Plaintiff can now report that the notice program ordered by this Court has been

resoundingly successful, and Plaintiff therefore now presents the matter for final approval.

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Specifically[A1], as evidenced by the contemporaneously filed declaration of Lindsey Marquez of

the court-appointed claims administrator, Epiq Class Action & Claims Solutions, Inc. (“Epiq”),

Epiq mailed or emailed notice of this proposed class action settlement to the 31,396 unique class

members, and had a successful deliverable rate of 99.7%. (Declaration of Lindsey Marquez of

Epiq, (“Epiq Decl.”) ¶¶ 17-18.) To date, only one class member has elected to opt out of the

proposed settlement being presented to this Court for final approval, meaning more than 99.99%

of the class members have elected to remain in the proposed settlement. (Id. ¶21.) Further, as of

the date of this filing, there have been no objections to the settlement whatsoever. (Id. ¶22.)1

In sum, the proposed settlement of this class action is a very good result for class

members, and class members’ reaction to it to date has been overwhelmingly favorable.

II THE HISTORY OF THIS CASE

As evidenced by the following history, this has been a hard-fought case by both sides.

The complaint in this case was filed on January 22, 2018, alleging that ECU had breached its

contract with its customers by charging overdraft fees for transactions which, to be completed,

required less money than was already in the customers’ actual balance. (Declaration of Taras

Kick In Support of Motion For Final Approval (“Kick Decl.”) ¶12.) Causes of action were pled

for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust

enrichment/restitution, and money had and received. Defendant filed an Answer on February 15,

2018. (Kick Decl., ¶12.)

On May 10, 2018, Plaintiff served the First Set of Requests for Production, comprised of

66 requested categories of documents; the First Set of Interrogatories, comprised of 24

1 The deadline to opt out and to object expires on September 28, 2019. (See Attachment 1 (Class Notice, pp. 3-4) to Epiq Decl.) Class Counsel will provide a final tally of opt-out requests and objections to this Court in advance of the final approval hearing.

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interrogatories; and, the First Set of Requests for Admission, comprised of 24 requests for

admission. (Kick Dec. ¶ 12.) Defendant provided responses to this discovery, and served its

own set of Requests for Production comprised of 7 categories of documents. (Kick Dec. ¶ 12.)

On June 27, 2018, Plaintiff provided written responses to Defendant’s Requests for Production,

and provided production of documents on August 15, 2018. (Id.)

On July 26, 2018, Defendant filed a motion for summary judgment. (Kick Dec. ¶ 12.)

On August 23, 2018, Plaintiff took three depositions: the deposition of ECU’s Vice

President of Risk Management, Angela Langdon; the deposition of ECU’s Member Solutions

Representative, Isidro Maldonado; and the deposition of ECU’s Vice President of Information

Systems, Joseph Brazgel. (Kick Dec. ¶ 12.)

Plaintiff then filed an opposition to Defendant’s motion for summary judgment on

September 9, 2018. (Kick Dec. ¶ 12.) Defendant filed a reply in support of its motion on

September 11, 2018. (Id.) The Court heard the matter on a full vigorously contested oral

argument on September 27, 2018. (Kick Dec. ¶ 12.) At the conclusion of the hearing, the Court

stated it would take the matter under submission. On October 11, 2018, Plaintiff filed a letter

request with the Court for both sides to be permitted to file concurrent supplemental five-page

briefs. The Court granted this request on October 31, 2018. (Id.) Plaintiff and Defendant each

filed supplemental briefs on the motion for summary judgment on November 2, 2018. Next, on

November 8, 2018, Defendant filed a motion to strike certain portions of the exhibits Plaintiff

filed in support of its five-page brief. (Id.)

On December 17, 2018, the parties again appeared before the Court for oral argument on

the motion for summary judgment, and the Court issued an Order denying in part and granting in

part the motion for summary judgment. (Kick Dec. ¶ 12.) Not long after the Court’s Order, the

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parties agreed to participate in a mediation with the Hon. Richard J. Sankovitz (Ret.). (Kick Dec.

¶ 13.)

In advance of the mediation, Plaintiff’s database expert, Arthur Olsen, performed an

analysis of the class data. (See Declaration of Arthur Olsen In Support of Preliminary Approval

(“Olsen Decl. ISO Prelim. Appr.”) ¶ 6.) The class data analyzed by Mr. Olsen contained detailed

information regarding all overdraft fees assessed by ECU on debit card, check, and ACH

transactions between January 25, 2012, and December 31, 2018, including, among other things,

account numbers, the date of each overdraft fee, the amount of each overdraft fee, information

allowing the determination of the type of transaction which caused each overdraft fee, (either

debit card, check, or ACH), and both the available and ledger balance at the time when each

transaction posted to the account. (Id.)

After the analysis had been completed by Mr. Olsen, the agreed mediation before the

Hon. Richard J. Sankovitz (Ret.) took place on February 26, 2019. (Kick Decl. ¶ 13.)

Negotiations were at all times at arm’s length and adverse. (Kick Decl. ¶ 13.) After a very

thorough day of negotiations presided over by Judge Sankovitz, the parties agreed to a settlement

as proposed by Judge Sankovitz. (Id.)

It is this settlement to which the Court granted Preliminary Approval on July 10, 2019.

III THE TERMS OF THE SETTLEMENT.

The class is defined as “any member of Defendant who, between January 25, 2012 and

June 30, 2019, was assessed an overdraft fee on a transaction when that transaction resulted in a

positive ledger balance.” (Court Order of July 12, 2019, Docket 166.) The class ends on that

date, inter alia, because as of that date Defendant implemented new improved disclosures

effective as of July 1, 2019. (Settlement Agreement ¶ 2.) This Court signed a Supplementary

Order on July 12, 2019, reflecting this June 30, 2019, class period end date. (Docket 166.)

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Pursuant to the terms of the Settlement, Defendants will pay $1,650,000 into a settlement

fund, which will be set up by third-party administrator Epiq, and used to pay class members

directly. (Settlement Agreement ¶ 1(s).) The settlement fund will also be used to pay for

attorneys’ fees, litigation costs, and a service award to the class representative, all as approved

by this Court. (Settlement Agreement ¶ 8.) The costs of claims and notice administration also

will be paid by Defendant. (Settlement Agreement ¶ 5(g).) The claims administrator Epiq

provided Defendant with a contracted bid of approximately $35,000 for its notice and

administration services, and has also agreed to pay $8,700 of database expert Arthur Olsen’s

work in preparing the class identification for the administrator. (Kick Decl., ¶ 15.) This means a

total monetary value of this settlement of $1,693,700 (not including attempting to quantify the

monetary value for the improved disclosures arising as a result of this lawsuit).

A consumer-friendly aspect of this settlement is that class members will not need to make

any claims to receive a payment. (Settlement Agreement, ¶¶ 8 (a), 8 (d)(iv).) Class members who

remain ECU members at the time of the distribution will receive a credit to their checking

accounts in the amount of their payments. (Settlement Agreement ¶ 8(d)(iv)(d)(1).) Class

Members who are not members of Defendant at the time of the distribution of the Net Settlement

Fund shall be sent a check by the claims administrator to the address to which the class notice

was sent, discussed infra, or at such other address as designated by the Class Member.

(Settlement Agreement ¶ 8(d)(iv)(d)(2).) The Class Member shall have one-hundred eighty (180)

days to negotiate the check, after which the payment will re-collect in the residue to be

distributed to a cy pres recipient, discussed infra. (Id.) Payment to the class members will be

according to an individualized formula which takes into account the total allegedly improper

overdraft charge per class member. Specifically, the formula multiplies the net settlement fund

by the eligible overdraft charge per class member to arrive at the individual payment for each

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class member. (Settlement Agreement, ¶ 8(d)(iv).) As a result, each member will receive an

award in direct proportion to the size of his or her claim.

Under no circumstances will any of the money from this settlement revert to ECU.

(Settlement Agreement, ¶ 8(e).) Rather, if there is any residue which remains in the Net

Settlement Fund after distribution to class members, the Settlement provides for a cy pres

distribution of such residue of 50% to the National Consumer Law Center, a 501(c)(3) non-profit

organization actively involved in protecting consumer rights such as those in this case (if

approved by this Court), and 50% to the Wisconsin Trust Account Foundation (if approved by

the this Court). (Settlement Agreement, ¶ 11.)

Finally, as stated, ECU agreed as of July 1, 2019, to better explain the manner in which it

discloses to its members how it determines whether an overdraft fee will be charged, and to keep

this new language in place for not less than three years. (Settlement Agreement, ¶ 2.)

IV LEGAL ANALYSIS

A. The Settlement Should Be Finally Approved

On December 21, 2017, the Wisconsin Supreme Court entered an order amending

Wisconsin’s state class action statute, Wisconsin Statute section 803.08, to align it with Rule 23

of the Federal Rules of Civil Procedure. New section 803.08 went into effect on July 1, 2018,

and is taken verbatim from Rule 23. As such, much of the authority here cites to federal law.

In Wisconsin, as a matter of public policy, settlement is a strongly favored method of

resolving disputes because, “Wisconsin has a ‘long-standing policy in favor of settlements.’”

Schulte v. Frazin, 176 Wis. 2d 622, 634, 500 N.W.2d 305, 310 (1993) (citation omitted); see also

Pitts v. Trust of Knueppel, 282 Wis. 2d 550, 575, 698 N.W.2d 761, 773 (2005) (same).

Therefore, settlement of cases is to be encouraged. Loy v. Bunderson, 107 Wis. 2d 400, 425, 320

N.W.2d 175 (1982).

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In determining whether to grant final approval over a class action settlement, the proper

frame of analysis is whether the settlement is “lawful, fair, reasonable, and adequate.” Air Line

Stewards and Stewardesses Ass'n, Local 550 v. Tans World Airlines, Inc., 630 F.2d 1164, 1166-

67 (7th Cir. 1980); see also Armstrong v. Bd. of Sch. Dirs., 616 F.2d 305, 313 (7th Cir. 1980),

overruled on other grounds by Felzen v. Cal. Pub. Employees’ Ret. Sys., 134 F.3d 873 (7th Cir.

1998). While judges must assess the settlement agreement in its entirety with respect to these

factors, see, e.g., id. at 315 (citations omitted); Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996)

(citations omitted), the analysis is “limited” in one respect: “[j]udges should not substitute their

judgment as to optimal settlement terms for the judgment of the litigants and their counsel” and

need not undertake the full investigation of the claims that would be necessary if the case were

being tried before them.” Armstrong, 616 F.2d at 314-15. Instead, the Court’s “inquiry is limited

to the consideration of whether the proposed settlement is lawful, fair, reasonable, and

adequate.” Isby, 75 F.3d at 1196.

In determining whether the settlement is “lawful, fair, reasonable, and adequate,” the

Seventh Circuit has directed district courts to address the following six factors: (1) the strengths

of the plaintiff’s case compared against the terms of the settlement; (2) the expected complexity,

length, and expense of the litigation; (3) the amount of opposition to the settlement among

affected parties; (4) the presence of collusion in obtaining settlement; (5) the stage of the

proceedings; and (6) the amount of discovery completed. GE Capital Corp. v. Lease Resolution

Corp., 128 F.3d 1074, 1082 (7th Cir. 1997); see also Martin v. Caterpillar, Inc., Case No. 07-

CV-1009, 2010 WL 3210448 at *2 (C.D. Ill. August 12, 2010).

1. The Strengths of Plaintiff’s Case Compared Against the Terms of the Settlement

“Generally, the first factor, the strength of Plaintiffs’ case measured against the terms of

the settlement, is the most important factor.” Martin v. Caterpillar, Inc., Case No. 07-CV-1009,

2010 WL 3210448 at *3; see also Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646,

653 (7th Cir. 2006) (“The ‘most important factor relevant to the fairness of a class action

8

settlement’ is the first one listed: ‘the strength of plaintiff's case on the merits balanced against

the amount offered in the settlement.’”).

Here, Plaintiff’s database expert, Arthur Olsen, has determined that class damages total,

$3,418,200. (Declaration of Arthur Olsen in Support of Motion for Final Approval (“Olsen

Decl.”), filed concurrently with this motion, at ¶ 9.)2 This means that if only the monetary value

of the settlement of $1,693,000 is considered (meaning no dollar value is allocated to the

improved disclosures), the recovery for class members presented in the proposed settlement

amounts to 49.54% of ECU’s damages exposure, a very good result for class members. This does

not consider the additional value from the improved description of when overdraft fees will be

charged.

Further, this settlement in substance and structure is more favorable than many class

action settlements. The relief is in cash, not coupons. There will be no claim form submission

process for class members to receive their money. And, as stated, none of the settlement funds

will revert to ECU.

Courts have determined, of course, that “[a] settlement can be satisfying even if it

amounts to a hundredth or even - a thousandth of a single percent of the potential recovery.”

Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988), aff’d 899 F.2d 21 (11th

Cir. 1990); City of Detroit v. Grinnell Corp., 356 F. Supp. 1380, 1386 (S.D.N.Y. 1972) (a

recovery of 3.2% to 3.7% of the amount sought is "well within the ball park"), aff'd in part, rev'd

on other grounds, 495 F.2d 448 (2d Cir. 1974); Martel v. Valderamma, 2015 U.S. Dist. LEXIS

49830 at * 17 (C.D. Cal. 2015) (approving a settlement of $75,000 when potential damages were

$1.2 million, or about 6%); In re Toys R US FACTA Litig., 295 F.R.D. 438, 453 (C.D. Cal. 2014)

2 Mr. Olsen calculates offset for refunded overdraft fees in his declaration two different ways. One, he uses the 30 day refund method which was affirmed by the Ninth Circuit in the district court case of Gutierrez v. Wells Fargo Bank, N.A., 730 F. Supp. 2d 1080 (N.D. Cal. 2010), and yields the damages number of $3,418,200. Two, he uses this particular financial institution’s historic 8.7% refund rate which leads to damages of $3,729,943.

9

(approving settlement with vouchers (not cash) potentially worth a maximum of three percent

(3%) if all possible claims were actually made).

In the Seventh Circuit, courts have held similarly. Specifically, in Schulte v. Fifth Third

Bank, 805 F. Supp. 2d 560, 583-84 (N.D. Ill. 2011), in a scholarly opinion surveying cases on

this issue, the court explained as follows in approving the proposed settlement:

As an initial matter, without taking into account the $1.08 million that Defendant has paid to effectuate the settlement, and without taking into account the real value of the prospective change in Defendant's business practices, the $9.5 million settlement fund still represents approximately 10% of the $96.5 million that is the class's maximum potential recovery. Numerous courts have approved settlements with recoveries around (or below) this percentage. See, e.g. Lazy Oil Co. v. Witco, 95 F. Supp. 2d 290, 339 (W.D. Pa. 1997) (approving settlement amounting to 5.35% of damages for the entire class period, and 25.5% of damages within the limitations period); Erie Forge and Steel, Inc. v. Cyprus Minerals Co., Civil No. 94-404 (W.D. Pa. Dec. 23, 1996) (approving settlement of $3.6 million where plaintiffs' expert estimated damages at $33 million); In re Domestic Air Tranp. Antitrust Litig., 148 F.R.D. 297, 325 (N.D. Ga. 1993) (12.7% to 15.3%); In re Newbridge Networks Sec. Litig., 1998 U.S. Dist. LEXIS 23238, 1998 WL 765724, at *2 (D.D.C. Oct. 23, 1998) (approving settlement and concluding that while "[c]ourts have not identified a precise numerical range within which a settlement must fall in order to be deemed reasonable; [] an agreement that secures roughly six to twelve percent of a potential trial recovery, while preventing further expenditures and delays and eliminating the risk that no recovery at all will be won, seems to be within the targeted range of reasonableness"); In re Ravisent Techs., Inc. Sec. Litig., 2005 U.S. Dist. LEXIS 6680, 2005 WL 906361, at *9 (E.D. Pa. Apr. 18, 2005) (approving settlement, which amounted to 12.2% of damages, and citing study by Columbia University Law School, which determined that "since 1995, class action settlements have typically recovered between 5.5% and 6.2% of the class members' estimated losses.") (internal citations omitted).

(Emphasis added.)

Another informative opinion from the Seventh Circuit is In Re Lawnmower Engine

Horsepower Mktg. & Sales Practices Litig., 733 F. Supp. 2d 997, 1008 (E.D. Wis. 2010), where,

in approving the settlement, the court noted as follows:

Adding the $65 million in cash and the $45.7 million in warranties, the value of the settlement can be estimated as $110.7 million. As noted, class counsel believes that if the class prevailed at trial it

10

could recover damages in the range of $816 million to $2.5 billion.

Although Plaintiff believes liability in this case is strong, ECU believes its legal and

factual defenses are equally strong. (Kick Decl. ¶ 18.) To continue with the case also would be

very expensive for both sides if this settlement were not to be approved. (Id.) Plaintiff would be

forced to file a contested motion for class certification, whose outcome would be uncertain. (Id.)

Whichever party lost that motion may appeal, leading to further expense and delay, as well as a

real risk of loss for the Plaintiff class. (Id. ¶ 18.) Finally, even if Plaintiff prevailed on any

appeal, the Plaintiff class would face a risk of loss at trial. (Id.) Counsel for ECU has argued, and

would continue to argue, that the contract language does not support Plaintiff’s interpretation,

and that ECU may assess fees based on the available balance under that language. (Id.) Indeed,

further litigation exposes the Plaintiff class to significant risks, which beyond forestalling a

$1,650,000 recovery, could result in no recovery, at all.

In sum, including based on comparison of percentages for which other class actions are

settled, the settlement proposed in this matter is a very favorable one for the class members.

2. The Expected Complexity, Length, and Expense of the Litigation.

“Most class actions are inherently complex and settlement avoids the costs, delays and

multitude of other problems associated with them.” Brent v. Midland Funding, LLC, No. 3:11-

CV-1332, 2011 WL 3862363 at *16 (N.D. Ohio Sept. 1, 2011). Thus, “[i]n most situations,

unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy

and expensive litigation with uncertain results.” Id. (quoting 4 Alba Conte & Herbert B.

Newberg, Newberg on Class Actions § 11.50 (4th ed. 2002)). For this reason, courts have

consistently found that “[t]he expense and possible duration of the litigation [should] be

considered in evaluating the reasonableness of [a] settlement.” Milstein v. Huck, 600 F. Supp.

254, 267 (E.D.N.Y. 1984); see also Lazy Oil Co. v. Witco Corp., 95 F. Supp. 2d 290, 340 (W.D.

Pa. 1997) (“[I]t has been held proper to take the bird in the hand instead of a prospective flock in

the bush.”) (citations omitted).

11

Continued litigation would be complex, lengthy, and expensive. (Kick Decl. ¶ 18.) With

regard to expected duration, as noted, an otherwise strong case could last for a very substantial

time if the proposed settlement were not approved and be extremely expensive to both sides.

(Id.) Plaintiff believes the likelihood for certification is strong, but there is always some risk in

getting consumer class actions certified, even the ones which have the strongest merits for

certification. (Id.) If this settlement is not approved, Plaintiff would file a contested motion for

class certification, whose outcome would be uncertain, and that would be subject to appeal. (Id.)

After an expensive trial, regardless of which party prevailed, there likely would be appellate

practice, further delaying the receipt of actual funds by the class members. (Id.) The proposed

settlement obviates these risks and this delay.

3. The Amount of Opposition to the Settlement Among Affected Parties

As noted above, the notice program in this case has been overwhelmingly successful,

with a better than 99.7% reach, and to date only a single class member has requested exclusion

from the settlement—meaning that more than 99.99% of the class members have not requested

exclusion. (Epiq Decl. ¶¶ 18, 20.) Further, to date, not a single objection to any aspect of the

proposed settlement has been filed. (Epiq Decl. ¶ 21.) These are factors for this Court’s

consideration: “In light of the fact that no objectors came forward to challenge the settlement,

and because we believe that the settlement is otherwise fair and reasonable, we hold that these

factors present no bar to approval of the settlement.” ACLU of Ill. v. United States GSA, 235 F.

Supp. 2d 816, 819 (N.D. Ill. 2002); see also, Armstrong v. Bd. of School Dirs., 471 F. Supp. 800,

812 (E.D. Wis. 1979) (approving class settlement where a "small percentage of the class

members" opposed), affirmed, 616 F .2d 305 (7th Cir. 1980).)3

3 It is inarguable that the proposed form of notice and notice program here fully complied with due process and Wis. Stat. § 803.08. The class members received direct individual notice, which is the gold standard. Further, there was no claims requirement whatsoever. And,as required by Wis. Stat. § 803.08(4)(b), the contents of the notice sent to class members stated: 1. The nature of the action; 2. The definition of the class certified; 3. The class claims, issues, or defenses; 4. That a class member may enter an appearance through an attorney if the member so desires;

12

Further, Class Counsel believe this is a fair settlement for the class members, and it

should be approved. (Kick Decl. ¶¶ 13, 18; Declaration of Richard McCune (“McCune Decl.”)

¶ 23.) Class Counsel are experienced in class actions against financial institutions pertaining to

the issue in this case, that being alleged improper overdraft fees. (Kick Decl. ¶¶ 2-4; McCune

Decl. ¶¶ 2-6.)

Accordingly, with only one opt out to date, and no objections to date, the class members’

reaction to the proposed settlement has been overwhelmingly favorable.

4. The Presence of Collusion in Obtaining Settlement.

Courts have held that there is typically an initial presumption that a proposed settlement

is fair and reasonable when it is the result of arm’s-length negotiations. Great Neck Capital

Appreciation Inc. Partnership, L.P. v. PricewaterhouseCoopers, LLP, 212 F.R.D. 400, 410

(W.D. Wis. 2002); see also Newberg on Class Actions §11.41 at 11-88 (3d ed. 1992). The

parties’ settlement negotiations were, at all times, conducted arm’s length and adversarial. (Kick

Decl. ¶ 13.) There was no collusion, and there is no hint of evidence of collusion, in negotiating

the settlement. The settlement was reached through arm’s length negotiations by experienced

counsel. (Kick Decl. ¶¶ 2-6, 13.) “The decisions indicate that the courts respect the integrity of

counsel and presume the absence of fraud or collusion in negotiating the settlement, unless

evidence to the contrary is offered.” Schulte v. Fifth Third Bank, No. 09-cv-6655, 2010 U.S.

Dist. LEXIS 144810 at *15-16 n.5 (N.D. Ill. Sep. 10, 2010) (quoting William B. Rubenstein,

Alba Conte and Herbert B. Newberg, 4 Newberg on Class Actions § 11:51 (4th ed. 2002)

(collecting cases)).

Further, Class Counsel here are experienced in litigating and settling consumer class

actions and other complex matters, and have a particular expertise in class actions involving

overdraft fees. (McCune Decl. ¶¶ 2-6; Kick Decl. ¶¶ 2-4.) They have investigated the factual and

5. That the court will exclude from the class any member who requests exclusion; 6. The time and manner for requesting exclusion; and, 7. The binding effect of a class judgment on members under sub. (5).

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legal issues raised in this action, and are in favor of the settlement. (McCune Decl. ¶¶ 10, 22;

Kick Decl. ¶¶ 13, 18.) Significant weight should be attributed to the belief of experienced

counsel that settlement is in the best interests of those aflected by the settlement. In re

Lawnmower Engine Horsepower Mktg. & Sales PracÍices Litig.,733 F. Supp. 2d at 1007 (placing

"significant weight" on the opinion of counsel that settlement was fair and reasonable in light of

further litigation)

Here, the presumption that the proposed settlement is fair and reasonable is further

supported not only because all such negotiations were indeed at arm’s length, but also because

the proposed settlement is the result of the proceedings before the Honorable Judge Sankovitz

(Ret.), who sat as a Circuit Court judge in Milwaukee County for over 20 years. (Kick Decl.

¶ 13; see In re Lawnmower, supra., at 1006-07 (finding involvement and opinion of rnediator

weighed in favor of settlement approval).

Accordingly, not only is there lack of evidence of collusion, but the proposed settlement

is the result of negotiations mediated by a highly regarded former Circuit Court judge. As such,

this factor also weighs in favor of approval.

5. The Stage of the Proceedings.

“The stage of the proceedings at which settlement is reached is important because it

indicates how fully the district court and counsel are able to evaluate the merits of plaintiffs’

claims.” Armstrong, 616 F.2d at 325; In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002,

1021–22 (N.D. Ill. 2000) (before settlement took place, plaintiff was able to weigh the case’s

strengths and weaknesses and “had ample opportunity to reach an informed judgment concerning

the merits of the proposed settlements”).

This case advanced significantly past the complaint filing stage. Substantial discovery

was performed because, aside from conducting informal discovery, prior to filing her Complaint,

Plaintiff procured written discovery responses and document production from ECU and took

depositions of ECU’s 30(b)(6) witnesses to oppose ECU’s motion for summary judgment. (Kick

Decl. ¶ 12.) Indeed, this case has undergone the rigors of a hotly contested, and a fully briefed,

14

summary judgment motion, complete with oral argument, supplemental briefing, and a second

round of oral argument, which could have ended this case. (Id.) Plaintiff, therefore, has had

ample opportunity to examine ECU’s arguments, craft her own, and weigh the strengths and

weaknesses of her case, ultimately reaching an informed judgment.

6. The Amount of Discovery Completed.

As stated, also contributing to Plaintiff’s judgment of the merits of her case is the

meaningful amount of discovery which has taken place during the pendency of this action. As

noted above, Plaintiff has responded to written discovery and produced documents, in addition to

taking the deposition of ECU’s three Persons Most Knowledgeable on overdraft issues and

collecting ECU’s written responses to discovery and document production. (Kick Decl. ¶ 12.)

Further, Plaintiff’s expert has personally analyzed ECU’s database and fully ascertained the class

and class damages by analyzing 31,432 accounts covering over six and a half years of account

data. (Olsen Decl. ¶ 4-7.)

The facts of this case have been fully explored and uncovered.

B. The Requested Fee Award and Litigation Costs Should Be Approved

The notice ordered by this Court which went out to all class members stated specifically

that Class Counsel would apply for an attorneys’ fee award of one-third (33-1/3%) of the

monetary component of the proposed settlement, meaning $550,000, plus reimbursement of

reasonable litigation costs.4 (Settlement Agreement Notice to Class Members ¶ 10.) This was

also stated in the Settlement Agreement itself at ¶8(d)(i). As stated, no class member has

objected and only one class member has opted out. (Epiq Decl. ¶¶ 18, 20, 21.)

Class Counsel are applying for the fee award in this matter under the “percentage-of-the-

recovery” method. The Seventh Circuit has repeatedly affirmed the use of the percentage-of-the-

4 Additionally, the firms of McCune Wright Arevalo and The Kick Law Firm, APC, the two proposed lead counsel, have agreed to share equally in the attorneys’ fees, and this was disclosed to and approved by the proposed class representative Ms. Fleischmann. Further, lead co-counsel intend to pay ten percent of the fee to local counsel Scott Wagner of Mallery & Zimmerman. (Kick Decl. ¶ 15.)

15

recovery method to calculate attorneys’ fees in common fund cases such as this one, holding that

“both the lodestar approach and the percentage approach may be appropriate in determining

attorney’s fee awards, depending on the circumstances,” and that “in common fund cases, the

decision whether to use a percentage method or a lodestar method remains in the discretion of

the district court.” Florin v. Nationsbank, N.A., 34 F.3d 560, 566 (7th Cir. 1994). The Seventh

Circuit has also recognized that “there are advantages to utilizing the percentage method in

common fund cases because of its relative simplicity of administration.” Id.

Further, “In deciding fee levels in common fund cases, [the Seventh Circuit] has

consistently directed district courts to ‘do their best to award counsel the market price for legal

services, in light of the risk of nonpayment and the normal rate of compensation in the market at

the time.’” Sutton v. Bernard, 504 F.3d 688, 692 (7th Cir. 2007) (quoting In re Synthroid Mktg.

Litig., 264 F.3d 712, 718 (7th Cir. 2001)).

Under a percentage of benefit analysis, one-third of the monetary payment component of

$1,650,000, the attorneys’ fees sought here is well within the range of approval. Gaskill v.

Gordon, 160 F.3d 361, at 362 (7th Cir. 1998) (“most suits for damages in this country are

handled on the plaintiff’s side on a contingent-fee basis . . . [t]he typical contingent fee is

between 33 and 40 percent”); Sjoblum v. Charter Communs, No. 07-cv- 451, dkt. #394 (W.D.

Wis. Jan. 26, 2009, Crabb, J.).5 Further, the one-third fee being sought is a fee that has been

approved by federal and state courts across the country in consumer class actions related to

overdraft fees similar to this one. (Kick Decl. ¶ 4.)

Additionally, pursuant to Paragraph 2 of the Settlement Agreement, there also was a

substantial improvement in the disclosures and description regarding the manner in which

overdrafts are charged by Defendant. These changes, which ECU has agreed to keep in effect for

three years, will provide consumers more clarity and understandability that will hopefully allow

better informed choices. This added nonmonetary benefit and value would effectively increase

5 There was an additional approximately $43,700 of payment by Defendant related to the notice administration program. Class Counsel are not seeking a fee on that $43,700.

16

the value of the settlement beyond just the $1,693,700 is paying. According to the American

Law Institute, “a percentage-of-the-fund approach should be the method utilized in most

common-fund cases, with the percentage being based on both the monetary and nonmonetary

value of the judgment or settlement.” Principles of the Law of Aggregate Litigation, The

American Law Institute, Mar 1, 2010 § 3.13 (emphasis added). Therefore, the amount being

sought here is in reality even less than one-third if one were to quantify the value of the change

in disclosures and add it to the $1,650,000 on which the one-third fee request is being made.

Although this Court is not required to perform a lodestar cross-check on the fee request,

if the Court wished to perform one, a lodestar cross-check also very strongly supports the

requested fee. Class Counsel’s and local counsel’s combined lodestar to date is $378,545. (Kick

Decl. ¶ 8; McCune Decl. ¶ 18.) The requested fee award of $550,000 accordingly requires a

multiplier of just 1.45x, which is well below what the Seventh Circuit recognizes as its average

lodestar multiplier: “Between 1993 and 2008, the mean multiplier in class actions in the Seventh

Circuit was 1.85.” Abbott v. Lockheed Martin Corp., No. 06-cv-701-MJR-DGW, 2015 U.S. Dist.

LEXIS 93206 at *12 (S.D. Ill. July 17, 2015). Further, courts within the Seventh Circuit have

stated that even a multiplier of five or more is “within the bounds of reason.” See, e.g., Johnson

v. Meriter Health Servs. Employee Ret. Plan, No. 10-CV-426-WMC, 2015 WL 13546111 at *6

(W.D. Wis. Jan. 5, 2015) (citing Williams v. Rohm & Haas Pension Plan, No. 04-0078-SEB,

2010 WL 4723725 (S.D. Ind. Nov. 12, 2010), aff’d, 658 F.3d 629 (7th Cir. 2011)) (noting that

the court in Williams awarded fees of $43.5 million, requiring a 5.85 multiplier). More generally,

it has been held multipliers for lodestars in class actions tend to range between 4 and 5. See In re

Linerboard Antitrust Litig., No. 98-5055, 2004 WL 1221350 at *14 (E.D. Pa. Jun. 2, 2004) (from

2001 to 2003, the average multiplier approved in common fund cases was 4.35).

Here the multiplier could easily be justified to be much larger than the 1.45x requested,

and is warranted, inter alia, due to “the complexity of the legal issues involved, the degree of

success obtained, and the public interest advanced by the litigation.” Gastineau v. Wright, 592

F.3d 747, 748 (7th Cir. 2010). As to the complexity of legal issues, this case involved the

17

analysis of a complex consumer banking contract, the intricate details of ECU’s business

practices juxtaposed and analyzed against common banking industry standards, and electronic

data analysis of 31,432 accounts covering over six and a half years of account data of actual class

members impacted by ECU’s practices. As to the degree of success obtained, this case was very

successful, resulting in a total settlement value of about half of Plaintiff’s calculation of ECU’s

exposure, as well as an improvement in the financial institution’s explanation of its overdraft

policy. Regarding the public interest, this case addressed an important issue, the assessment of

alleged excessive and improper overdraft fees, which has been the subject of the scrutiny of the

Consumer Financial Protection Bureau, and several private consumer advocacy groups, and

involves an important change in disclosures.

With regard to costs, as detailed in the accompanying declarations of Richard McCune

and Taras Kick, Class Counsel and local counsel together have reasonable costs of $54,273.22,

and these are detailed in the concurrently filed Class Counsel declarations. (McCune Decl. ¶ 19;

Kick Decl. ¶ 17.) This is a little bit below the estimated cap of $55,000 provided to this Court in

the Motion for Preliminary Approval. These costs were necessary to the prosecution of this

litigation and to the benefit of the class members.

C. The Proposed Cy Pres Recipient Should Be Approved

The National Consumer Law Center (“NCLC”), a 501(c)(3) non-profit organization

actively involved in protecting consumer rights such as those in this case, is proposed to be the

recipient of 50 percent of the cy pres funds in this case (subject tot his Court’s approval), with

the other 50 percent of the funds going to the Wisconsin Trust Account Foundation.

The Declaration of the Executive Director of the National Consumer Law Center,

Richard DuBois, is filed concurrently with this motion for the Court’s review. As can be seen,

the NCLC is and has been a a staunch advocate for advancing awareness of laws impacting

consumers, and engages in advocacy to advance consumer rights, including consumers in the

continuously evolving financial institution industry. (DuBois Decl. ¶¶ 3-10.) Further, numerous

courts have approved NCLC as a worthy recipient of over 500 cy pres and class action settlement

18

awards which NCLC has used to continue its mission to promote consumer protections and equal

access to justice for consumers in need of effective legal representation. (Id. ¶ 11.)6

D. The Class Representative’s Service Award Should Be Approved

The proposed class representative’s service award of $10,000 is well within the range of

reasonableness and also should be approved. Westcott v. FedEx Ground Package Sys. (In re

FedEx Ground Package Sys.), No. 3:05-MD-527 RLM (MDL 1700), 2017 U.S. Dist. LEXIS

64936 at *24 (N.D. Ind. Apr. 28, 2017) (“The request for $15,000 service awards for the class

representative is just, fair and reasonable.”); Am. Int'l Grp., Inc. v. Ace Ina Holdings, Inc., No. 07

CV 2898, 2012 U.S. Dist. LEXIS 25265 at *59 (N.D. Ill. Feb. 28, 2012) (holding “the $25,000

figure is a reasonable one.”). The class representative, Ms. Fleischmann, was very helpful for the

case of the absent class members, and provided counsel assistance whenever requested. (Kick

Decl. ¶ 14.) She performed informal discovery, responded to formal discovery, inquired as to

status and developments, and always made herself available for any purpose in the case

requested. (Id.)

E. The Proposed Settlement Class Should Be Certified

Class certification is proper if the proposed class, the proposed class representative, and

the proposed class counsel satisfy the numerosity, commonality, typicality, and adequacy of

representation requirements of Wis. Stat. § 803.08(1). In addition to meeting the requirements of

section 803.08(1), a plaintiff seeking class certification must also meet at least one of the three

provisions of section 803.08(2). When a plaintiff seeks class certification under section

803.08(2)(c), the representative must demonstrate that common questions of law or fact

predominate over individual issues and that a class action is superior to other methods of

adjudicating the claims. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615-16 (1997).

6 Neither Plaintiff, nor Plaintiff’s counsel’s has any control over how NCLC spends its money, nor sits on any board which in any way controls or directs its matters. (Kick Decl. ¶ 16.)

19

Because Plaintiff meets all of the section 803.08(1) and 803.08(2) prerequisites, certification of

the proposed Class is proper.7

1. The Requirement of Numerosity Is Satisfied

The first section 803.08(1) prerequisite of class certification is numerosity, which

requires “the class is so numerous that joinder of all members is impractical.” Wisc. Stat. § 803.08(1)(a). The exact number of class members need not be known, so long as the class is

readily ascertainable. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). “Meeting

this requirement takes only a good faith non-speculative estimate of the size of the proposed

class.” Anderson v. Capital One Bank, 224 F.R.D. 444, 450 (W.D. Wis. 2004). In this case, the

actual number has been determined precisely to be 31,432. (Olsen Decl. ¶ 7.) Numerosity is

satisfied.

2. The Requirement of Commonality Is Satisfied

The second requirement for certification requires that “questions of law or fact common

to the class” exist. Wis. Stat. § 803.08(1)(b). Commonality is demonstrated when the claims of

all class members “depend upon a common contention . . . that is capable of classwide

resolution.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). This requires that the

determination of the common question “will resolve an issue that is central to the validity of each

7 In addition to the section 803.08 requirements, some federal courts in the Seventh Circuit have announced two additional implied prerequisites for class certification, both of which are met here. The first of which, standing, requires that “the named class representatives must have standing, that is, they must be members of the class they propose to represent.” Blihovde v. St. Croix Cty., 219 F.R.D. 607, 614 (W.D. Wis. 2003) (citing Rozema v. Marshfield Clinic, 174 F.R.D. 425, 432 (W.D. Wis. 1997). Here, Plaintiff has standing; she was assessed overdraft fees during the class period when her account contained enough money to pay for the transaction at issue. The second prerequisite is that “the definition of the proposed class must be ‘precise, objective and presently ascertainable.’” Blihovde v. St. Croix Cty., 219 F.R.D. at 614 (quoting Loeb Indus. v. Sumitomo Corp.(In re Copper Antitrust Litig.), 196 F.R.D. 348, 353 (W.D. Wis. 2000)). Here, the class definition covers precisely those members of ECU who were assessed objectionable overdraft fees during the class period; accordingly, the class is ascertainable, and more than meets the standard in the Seventh Circuit. Moreover, the class members have actually been ascertained by Plaintiff’s database expert. (Olsen Decl. ¶ 7.)

20

one of the claims in one stroke.” Id. “Some factual variation in the details of individual claims

does not defeat a finding of commonality.” Anderson v. Capital One Bank, 224 F.R.D. at 450.

“Even a single common question will do.” Dukes, 131 S. Ct. at 2556. In other words,

commonality exists where a question of law linking class members is substantially related to

resolution of the litigation even where the individuals may not be identically situated. Warnell v.

Ford Motor Co., 189 F.R.D. 383, 390 (N.D. Ill. 1999); see also Markham v. White, 171 F.R.D.

217, 222 (N.D. Ill. 1997); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996) (“[T]he

commonality requirement has been characterized as a ‘low hurdle’ [that is] easily surmounted.”).

Here, not only do there exist common questions of law or fact, the common questions

predominate over any individual ones. The theory underlying the class claims involves a uniform

overdraft fee practice and uniform contractual terms. First, it is undisputed that Defendant used a

uniform method to determine whether to assess an overdraft fee on a transaction. Second, all

class members assert claims under breach of contract/breach of the covenant of good faith and

fair dealing arising from the same form contract claiming that the terms of the Account

Agreement meant the balance, ie, all the money in the account, should have been used to

determine the assessment of overdraft fees, rather than some lesser amount. Determination of

this issue, regardless of whether Plaintiff is right or wrong, would resolve the allegations for the

whole Class. As such, the commonality requirement is satisfied.

3. The Requirement of Typicality Is Satisfied

Section 803.08(1) next requires that the class representative’s claims be typical of those

of the class members. Wisc. Stat. § 803.08(1)(c). The test for typicality is not demanding; it

“focuses on the class representatives and whether their pursuit of their own claims will work for

the benefit of the entire class.” Nelson v. IPALCO Enters., Case No. IPO2-477CHK, 2003 WL

23101792 at *4 (S.D. Ind. Sept. 30, 2003); see also 1 Newberg on Class Actions § 3.13, at 3-76

(3d ed. 1992). “A plaintiff’s claim is typical if it arises from the same event or practice or course

of conduct that gives rise to the claims of other class members and his or her claims are based on

the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.

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1983) (quoting H. Newberg, Class Actions § 1115(b) at 185 (1977)). “The typicality

requirement may be satisfied even if there are factual distinctions between the claims of the

named plaintiffs and those of other class members. Thus, similarity of legal theory may control

even in the face of differences of fact.” Id.

In other words, “[a] representative’s claims are typical of the class if they ‘have the same

essential characteristics as the claims of the other class members.’” Gaspar v. Linvatec Corp.,

167 F.R.D. 51, 57 (N.D. Ill. 1996) (quoting Patrykus v. Gomilla, 121 F.R.D. 357, 362 (N.D. Ill.

1988) (“The similarity of legal theory may control even where there are factual differences

between the claims of the named representatives.”)). “Typical does not mean identical, and the

typicality requirement is liberally construed.” Id. Further, issues of “[i]ndividual damages will

not defeat a named Plaintiff’s typicality.” Alexander v. Q.T.S. Corp., 1999 U.S. Dist. LEXIS

11842, at *21 (N.D. Ill. 1999).

In this case, Plaintiff’s claims are not only typical of those of the other putative class

members, they are virtually indistinguishable. There is no dispute that Plaintiff was subject to the

same Account Agreement as all other class members and that she was assessed overdraft fees in

a manner identical to that of all other class members. Plaintiff also alleges the same legal theories

as the rest of the class of breach of contract/breach of the covenant of good faith and fair dealing.

Typicality is satisfied.

4. The Requirement of Adequate Representation Is Satisfied

The final section 803.08(1) prerequisite requires that the proposed class representative

has and will continue to “fairly and adequately protect the interests of the class.” Wisc. Stat. § 803.08(1)(d). “A finding of adequacy of representation involves a two-pronged inquiry. First,

the named representatives must have a sufficient interest in the outcome to ensure vigorous

advocacy while having no interest antagonistic to the interests of the class. Second, counsel for

the named plaintiffs must be competent.” Riordan v. Smith Barney, 113 F.R.D. 60, 64 (N.D. Ill.

1986); see also Anderson v. Capital One Bank, 224 F.R.D. at 451 (same).

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As with the typicality requirement, this element requires that the interests of the named

plaintiffs are aligned with the unnamed class members to ensure that the class representative has

an incentive to pursue and protect the claims of the absent class members. See Amchem, 521 U.S.

at 626 n. 20 (“The adequacy-of-representation requirement ‘tends to merge’ with the

commonality and typicality criteria of Rule 23(a), which ‘serve as guideposts for determining

whether . . . maintenance of a class action is economical and whether the named plaintiff's claim

and the class claims are so interrelated that the interests of the class members will be fairly and

adequately protected in their absence.’”).

Proposed Class Counsel, Richard McCune of McCune Wright Arevalo, LLP, and Taras

Kick of The Kick Law Firm, APC, both have significant class action, litigation, and trial

experience, are competent, and have been competent in representing the Class. Both law firms

representing the putative class have extensive experience in consumer class actions, and in

particular, expertise in overdraft fee litigation. (McCune Decl. at ¶¶ 2-6; Kick Decl. at ¶¶ 2-4.)

The interests of Plaintiff Sue Fleischmann are not antagonistic to those of the other Class

members; her interests are wholly aligned because she was charged overdraft fees when her

account had a positive ledger balance. Further, she understands that she is pursuing this case on

behalf of all class members similarly situated and understands she has a duty to protect the

absent Class members. (Declaration of Sue Fleischmann In Support of Motion for Preliminary

Approval (“Fleischmann Decl.”) at ¶ 2; Kick Decl. ¶ 14.) She has actively participated in the

litigation by frequently conferring with Class Ccounsel about the case and its status, assisting

Class Counsel by gathering documents and other information, and being prepared and willing to

testify at trial on behalf of the class if necessary. (Fleischmann Decl. ¶ 3; Kick Decl. ¶ 14.)

5. The Proposed Settlement Class Also Meets the Requirements of Section 803.08(2)(c)

Once the prerequisites of section 803.08(1) have been met, a plaintiff must also

demonstrate that she satisfies one of the three requirements of section 803.08(2). Messner v.

Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). To certify a class under the

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third of these requirements, 803.08(2)(c), the plaintiff must show that (1) the common questions

of law and fact predominate over questions affecting only individuals; and (2) the class action

mechanism is superior to other available methods for adjudicating the controversy.

a. Common Questions of Law and Fact Predominate

The predominance requirement questions whether the proposed class is “sufficiently

cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. “There is no

mathematical or mechanical test for evaluating predominance.” Messner, 669 F.3d at 814 (7th

Cir. 2012) (citing 7AA Wright & Miller, Federal Practice & Procedure § 1778 (3d ed. 2011)).

“Rule 23(b)(3)’s predominance requirement is satisfied when ‘common questions represent a

significant aspect of [a] case and . . . can be resolved for all members of [a] class in a single

adjudication.’” Id. (quoting Wright & Miller, supra, § 1778). “Or, to put it another way,

common questions can predominate if a ‘common nucleus of operative facts and issues’

underlies the claims brought by the proposed class.” Id. (quoting In re Nassau County Strip

Search Cases, 461 F.3d 219, 228 (2d Cir. 2006)). “Individual questions need not be absent;” in

fact, “the text of Rule 23(b)(3) itself contemplates that such individual questions will be present.

The rule requires only that those questions not predominate over the common questions affecting

the class as a whole.” Id. “Judicial economy factors and advantages over other methods for

handling the litigation as a practical matter underlie the predominance and superiority

requirements for class actions certified under Rule 23(b)(3).” Rubinstein, et al., 2 Newberg on

Class Actions § 4:24. Analysis of the predominance requirement “begins, of course, with the

elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 131

S.Ct. 2179, 2184 (2011).

As the Supreme Court most recently confirmed: “When one or more of the central issues

in the action are common to the class and can be said to predominate, the action may be

considered proper under Rule 23(b)(3) even though other important matters will have to be tried

separately, such as damages or some affirmative defenses peculiar to some individual class

members.” Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016).

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It is not reasonably disputable that the contract claim is subject to common proof, and

thus it would be more efficient to decide this common issue via the class action mechanism. As

ECU does not dispute its practice of charging fees while the actual balance contains enough

money to pay for the transaction, the predominating issue is whether the contract permitted ECU

to do this. In short, the only task the trier of fact needs to perform in adjudicating the breach of

contract claim is to determine the meaning of the contractual language.

Further, courts in Wisconsin recognize the appropriateness of granting class certification

on a breach of contract claim. Kasten v. Saint-Gobain Performance Plastics Corp., 556 F. Supp.

2d 941, 961 (W.D. Wis. 2008); Flanagan v. Allstate Ins. Co., 242 F.R.D. 421, 433 (N.D. Ill.

2007) (“[W]e find that plaintiffs have met all the requirements of Rule 23(a) and 23(b)(3) and we

certify the . . . class for the breach of contract claim.”).

b. This Class Action Is the Superior Method of Adjudication

Wis. Stat § 803.08(2)(c) also requires that a certifying court find that “a class action is

superior to other available methods for fairly and efficiently adjudicating the controversy. “The

Seventh Circuit has noted that class actions are superior particularly for “negative value” suits,

i.e., suits where the possible recovery is less than the cost of bringing the suit. As Judge Posner

has stated, “[t]he realistic alternative to a class action is not 17 million individual suits, but zero

individual suits, as only a lunatic or a fanatic sues for $30.” Carnegie v. Household Int’l, Inc.,

376 F.3d 656, 661. (7th Cir. 2004); see also Hinman v. M and M Rental Center, Inc., 545 F.

Supp. 2d 802, 807 (N.D. Ill. 2008) (“[R]esolution of the issues on a classwide basis, rather than

in thousands of individual lawsuits (which in fact may never be brought because of their

relatively small individual value), would be an efficient use of both judicial and party

resources.”). As the Supreme Court stressed in Amchem, 521 U.S. at 617:

“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the

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relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.”

The desirability of concentrating the litigation in the present forum is illustrated by the

fact that the amount of an individual damage instance is a $30 overdraft fee. A large number of

class members therefore have suffered damages in an amount that could not justify or sustain

individual lawsuits, and the only real choice is thus between a class action and no action.

Superiority is met. Accordingly, all factors weigh in favor of class certification.

V CONCLUSION

Plaintiff respectfully requests that the Court grant final approval of the settlement, the

request for attorney’s fees and costs, the request for approval of class administrator expenses,

and the request for a service award to the class representative, in their entirety. Dated this 13th day of September 2019. Respectfully submitted,

MALLERY & ZIMMERMAN

Electroncially signed by: K. Scott Wagner K. Scott Wagner Wisconsin Bar No. 1004668 731 swagner@mzmilw.com North Jackson Street, Suite 900 Milwaukee, Wisconsin 53202 Telephone: (414) 271-2424 McCUNE WRIGHT AREVALO LLP Richard D. McCune, California Bar No. 132124 rdm@mccunewright.com Emily J. Kirk, Illinois Bar No. 6275282 ejk@mccunewright.com 3281 East Guasti Road, Suite 100 Ontario, California 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 THE KICK LAW FIRM, APC Taras Kick, California Bar No. 143379 Taras@kicklawfirm.com 815 Moraga Drive Los Angeles, California 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 Class Counsel and Attorneys for Plaintiff and Class Representative Sue Fleischmann and the Class