Lowe v. NBT Bank, N.A.

The lawsuit that is being settled is entitled Lowe et al. v. NBT Bank, N.A. It is pending in the United States District Court for the Northern District of New York, Case No. 3:19-CV-1400. The case is a “class action.” That means that the “Class Representatives,” Christopher Lowe, Colin Wood, Marietta Propsersi, Regina Bozic, and B Squeaky Clean LLC, are individuals who are acting on behalf of current and former customers who were assessed certain Relevant Fees between December 4, 2013 and November 30, 2021. The Class Representatives have asserted a claim for breach of the Account agreement and violation of consumer protection laws.

NBT Bank does not deny it charged the fees 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 notice because Defendant’s records indicate that you were charged one or more Relevant Fees that are the subject of this action. The Court directed that the Notice be sent to all Settlement Class Members because each such member has a right to know about the proposed Settlement and the options available to him or her before the Court decides whether to approve the Settlement.

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Class 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 NBT Bank 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 one or both of the Settlement Classes 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 or forgiveness of Uncollected Fees.

The August 30, 2022 Opt-out and Objection deadline has passed. We are no longer accepting Opt-out or Objection submissions.

If you do not like the Settlement and you believe that you could receive more money by pursuing your claims on your own (with or without an attorney that you could hire) and you are comfortable with the risk that you might lose your case or get less than you would in this Settlement, then you may want to consider opting out.

If you believe the Settlement is unreasonable, unfair, or inadequate and the Court should reject the Settlement, you can object to the Settlement terms. The Court will decide if your objection is valid. If the Court agrees, then the Settlement may not be approved and no payments will be made to you or any other member of the Classes. If your objection (and any other objection) is overruled, and the Settlement is approved, then you may still get a payment and/or forgiveness of Uncollected Fees and will be bound by the Settlement.

If you want to participate in the Settlement, then you don’t have to do anything; you will receive a payment if the Settlement is approved by the Court.

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 a “Fairness Hearing” or “Final Approval Hearing,” which is currently scheduled for September 29, 2022.

NBT Bank has agreed to create a Settlement Fund of $4,250,000.00. It will also forgive Uncollected Fees totaling approximately $1,497,792.00, as defined in the Settlement Agreement.

As discussed separately below, attorneys’ fees, litigation costs, and the costs paid to a third-party Settlement Administrator to administer the Settlement (including mailing and emailing notice) will be paid out of the Settlement Fund. The Net Settlement Fund will be divided among all Settlement Class Members entitled to Settlement Class Member Payments based on formulas described in the Settlement Agreement.

Class Counsel will request the Court to approve attorneys’ fees of not more than 33.33% of the Value of the Settlement 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 $5,000.00 each for their work in connection with this case. The Service Awards must be approved by the Court.

The balance of the Settlement Fund after attorneys’ fees and costs, the Service Award and the Settlement Administrator’s fees, also known as the Net Settlement Fund, will be divided among all Settlement Class Members entitled to Settlement Class Member Payments in accordance with the formulas outlined in the Settlement Agreement. Current customers of Defendant will receive a credit to their Accounts for the amount they are entitled to receive. Former customers of Defendant shall receive a check from the Settlement Administrator. Settlement Class Members entitled to forgiveness of Uncollected Fees shall receive this benefit automatically.

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

The Court will hold a Final Approval Hearing on September 29, 2022, at 11:00 a.m. (Eastern) 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. 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.

The August 30, 2022 Opt-out deadline has passed. We are no longer accepting Opt-out submissions.

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.

The August 30, 2022 Objection deadline has passed. We are no longer accepting Objection submissions.

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 Relevant Fee and/or forgiveness of Uncollected Fees 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 for a Relevant Fee or forgiveness of Uncollected Fees, 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 Classes, 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 on September 29, 2022, at 11:00 a.m. (Eastern), at the United States District Court for the Northern District of New York, James T. Foley U.S. Courthouse, which is located at 445 Broadway, Courtroom 5, Albany, New York 12207. 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 litigation costs and the amount of the Service Awards to the Class Representatives. The hearing may be virtual, in which case the instructions to participate shall be posted on the website.

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.

If you have objected, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must include with your objection, described in FAQ 18, 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 the notice as “Class Counsel” will represent you and the other Settlement Class Members.

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

The Court will be asked to approve the amount of attorneys’ fees at the Fairness Hearing. Class Counsel will file an application for attorneys’ fees and costs and will specify the amount being sought as discussed above. You may review a physical copy of the fee application at the website established by the Settlement Administrator, or by requesting the court record online from the United States District Court for the Northern District of New York at https://eservices.archives.gov/orderonline.

The deadline for requesting Settlement Class Member payment check reissues has passed.