Soto et al. v. Banco Popular de Puerto Rico

The lawsuits that are being settled are named Soto et al. v. Banco Popular de Puerto Rico, and Orama Caraballo et al. v. Banco Popular de Puerto Rico. They are pending in the United States District Court for the District of Puerto Rico, Case Nos. 3:20-cv-01057 and 3:22-cv-01107. The cases are “class actions.” That means that the “Class Representatives” are individuals who are acting on behalf of current and former customers who were assessed certain Class Fees between February 1, 2016 and April 1, 2022. The Class Representatives have asserted a claim for breach of BPPR’s consumer checking account agreement based on overdraft and insufficient funds fees charged in connection with retried ACH payments and checks.

Defendant does not deny it charged fees of the type that the Class Representatives are complaining about, but contends it did so properly and in accordance with the terms of its agreements and applicable law. Defendant therefore denies that its practices give rise to claims for damages by the Class Representatives or any Settlement Class Members.

You received a notice because Defendant’s records indicate that you were charged one or more Class Fees that are the subject of these Actions. The Court directed that this notice be sent to all Settlement Class Members because each such member has a right to know about the proposed settlement and the options available to him or her before the Court decides whether to approve the Settlement.

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Class Representatives’ and their lawyers’ job to identify when a proposed settlement offer is good enough that it justifies recommending settling the case instead of continuing to trial. In a class action, the Class Representatives’ lawyers, known as Class Counsel, make this recommendation to the Class Representatives. The Class Representatives have the duty to act in the best interests of the class as a whole and, in this case, it is their belief, as well as Class Counsels’ opinion, that this Settlement is in the best interest of all Settlement Class Members.

There is legal uncertainty about whether a judge or a jury will find that Defendant was contractually and otherwise legally obligated not to assess the fees at issue. And even if it was contractually wrong to assess these fees, there is uncertainty about whether the Class Representatives’ claims are subject to other defenses that might result in no or less recovery to Settlement Class Members. Even if the Class Representatives were to win at trial, there is no assurance that the Settlement Class Members would be awarded more than the current settlement amount and it may take years of litigation before any payments would be made. By settling, the Settlement Class Members will avoid these and other risks and the delays associated with continued litigation.

While Defendant disputes the allegations in the lawsuit and denies any liability or wrongdoing, it enters into the Settlement solely to avoid the expense, inconvenience, and distraction of further proceedings in the litigation.

If you received a notice, then Defendant’s records indicate that you are a member of the Settlement Class who is entitled to receive a payment or credit to your Account.

You have three options: (1) do nothing and you will receive a payment according to the terms of this Settlement; (2) exclude yourself from the settlement (“opt-out” of it); or (3) participate in the Settlement but object to it. Each of these options is described in a separate section below.

There is no deadline to receive a payment. If you do nothing, then you will get a payment if the Settlement is finally approved.

The deadline for sending a letter to exclude yourself from or opt-out of the settlement is February 12, 2023.

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. The Court will decide if your objection is valid. If the Court agrees, then the Settlement may not be approved, and no payments will be made to you or any other member of the Class at this time. If your objection (and any other objection) is overruled, and the Settlement is approved, then you may still get a payment, and will be bound by the Settlement.

If you want to participate in the Settlement, then you do not have to do anything; you will receive a payment if the Settlement is approved by the Court and becomes final.

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 a notice. The Court will make a final decision regarding the Settlement at or after a “Fairness Hearing” or “Final Approval Hearing,” which is currently scheduled for March 14, 2023.

Defendant has agreed to create a Settlement Fund of $5,500,000.00. As discussed separately below, Attorneys’ Fees and Costs, and the costs paid to a third-party Settlement Administrator to administer the Settlement (including mailing and emailing notice) will be paid out of the Settlement Fund. The Net Settlement Fund will be divided among all Settlement Class Members entitled to Settlement Class Member Payments based on formulas described in the Settlement Agreement.

Class Counsel will request the Court to approve Attorneys’ Fees of not more than 33% of the Settlement Fund, and will request that it be reimbursed for litigation costs incurred in prosecuting the case. The Court will decide the amount of the Attorneys’ Fees and Costs based on a number of factors, including the risk associated with bringing the case on a contingency basis, the amount of time spent on the case, the amount of costs incurred to prosecute the case, the quality of the work, and the outcome of the case.

Class Counsel will request that the Class Representatives be paid a Service Award in the amount of $10,000.00 each for their work in connection with this case. The Service Awards must be approved by the Court.

No. If you received a notice, then you may be entitled to receive a payment for a Class Fee without having to make a claim, unless you choose to exclude yourself from the settlement, or “Opt-Out.”

The Court will hold a Final Approval Hearing on March 14, 2023, at 4:00 P.M. to consider whether the Settlement should be approved. If the Court approves the Settlement, then payments should be made or credits should be issued approximately 90 days later. Checks must be cashed within 90 days from the date on the payment notice. However, if someone objects to the Settlement, and the objection is sustained, then there is no Settlement. Even if all objections are overruled and the Court approves the Settlement, an objector could appeal, and it might take months or even years to have the appeal resolved, which would delay any payment.

If you do not want to receive a payment or if you want to keep any right you may have to sue Defendant for the claims alleged in this lawsuit, then you must exclude yourself, or “opt-out.”

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 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. (Settlement Class Members who exclude themselves from the Settlement have no right to object to how other Settlement Class Members are treated.) To object, you must send a written document by mail or private courier (e.g., Federal Express) to the Clerk of Court, Settlement Administrator, Class Counsel, and Defendant’s Counsel at the addresses below. Your objection must include the following information:

• the name of the Action or other information to confirm Objector is a Class Member;
  
• the objector’s full name, address, email address (if any), and telephone number;
  
• all grounds for the objection, accompanied by any legal support for the objection known to the objector or objector’s counsel;
  
• the number of times the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders related to or ruling upon the objector’s prior objections that were issued by the trial and appellate courts in each listed case;
  
• the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application;
• the number of times in which the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that of the filed objection, the caption of each case in which counsel or the firm has made such objection and a copy of any orders related to or ruling upon counsel’s or the counsel’s law firm’s prior objections that were issued by the trial and appellate courts in each listed case in which the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the preceding five years;
  
• any and all agreements that relate to the objection or the process of objecting—whether written or oral—between objector or objector’s counsel and any other Person or entity;
  
• the identity of all counsel (if any) representing the objector who will appear at the Final Approval Hearing;
  
• a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;
  
• a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and
  
• the objector’s signature (an attorney’s signature is not sufficient).
  
• If the objection is made by or through an attorney, the written objection must also include: (a) the identity and number of the Settlement Class Members represented by objector’s counsel; the identity and number of such represented Settlement Class members who have opted out of the Settlement Class; and (c) the identity and number of such represented Settlement Class Members who have remained in the Settlement Class and have not objected. If the attorney intends to seek fees and expenses from anyone other than the objectors he or she represents, the attorney shall also file with the Court and serve upon Class Counsel and BPPR’s Counsel, not later than 15 days before the Final Fairness Hearing or as the Court may otherwise direct, a document containing the following: (i) the amount of fees sought by the attorney for representing the objector and the factual and legal justification for the fees being sought; (ii) a statement regarding whether the fees being sought were calculated on the basis of a lodestar, contingency, or other method, (iii) the number of hours already spent by the attorney and an estimate of the hours to be spent in the future; and (iv) the attorney's hourly rate
  

All objections must be post-marked no later than February 12, 2023, and must be mailed to the Settlement Administrator as follows:

Soto v. BPPR

c/o Kroll Settlement Administration

PO Box 225391

New York, NY 10150-5391

Objecting is telling the Court that you do not believe the Settlement is fair, reasonable, and adequate for the Settlement Class, and asking the Court to reject it. You can object only if you do not opt-out of the Settlement. If you object to the Settlement and do not opt-out, then you are entitled to a payment for a Class Fee 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 under the Settlement or release claims you might have against Defendant for the claims alleged in this lawsuit.

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

The Court will hold a Final Approval or Fairness Hearing at 4:00 P.M. on March 14, 2023, in Courtroom Four on the third floor of the United States District Court for the District of Puerto Rico, which is located at Jose V. Toledo U.S. Courthouse, 300 Recinto Sur St., San Juan, Puerto Rico 00901. 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 Costs and the amount of the Service Awards to the Class Representatives. The hearing will occur virtually. Login information: https://www.zoomgov.com/j/1608954532?pwd=YUhpMmxjblBlMUUvellDRDFtNzBRUT09, Meeting ID: 160 895 4532, Passcode: 207061

No. Class Counsel will answer any questions the Court may have. You may attend if you desire to do so.

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 Question 17, above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”

The Court ordered that the lawyers and their law firms referred to in this notice as “Class Counsel” will represent you and the other Settlement Class Members.

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