Morris v. First Interstate Bank

The lawsuits that are being settled are entitled Morris v. First Interstate Bank (Yellowstone County), Case No. DV 20-528, and Miller v. First Interstate Bank (United States District Court), Case No. CV-21-45-BLG-SPW-TJC. The cases are “class actions.” That means that the Named Plaintiffs, Brandy Morris, Brenda Gray, Stacy Miller, and A Few Good Cleaners, are acting on behalf of current and former customers who were assessed allegedly improper overdraft and returned item fees between December 30, 2011, and April 7, 2021 (depending on your state of residence). APPSN Fees means overdraft fees that were charged and not refunded on signature Point of Sale debit card transactions where there was a sufficient available balance at the time the transaction was authorized but an insufficient available balance at the time the transaction was presented to Defendant for payment and posted to a customer’s account. Retry Fees means overdraft and/or returned item fees that were charged and not refunded for Automated Clearing House (ACH) and check transactions that were resubmitted by a merchant after being returned by Defendant for insufficient funds. The Named Plaintiffs have asserted claims for breach of the First Interstate Bank account agreement and related claims.

Defendant does not deny it charged the fees the Named Plaintiffs 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 Named Plaintiffs or any Class Members.

You received an Email Notice or Postcard Notice because Defendant’s records indicate that you were charged one or more APPSN Fee or Retry Fee. The Court directed that a Notice be sent to all Class Members because each Class Member has a right to know about the proposed settlement and the options available to him or her before the Court decides whether to approve the settlement.

In any lawsuit, there are risks and potential benefits that come with a trial versus settling at an earlier stage. It is the Named Plaintiffs’ 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 Named Plaintiffs’ lawyers, known as Class Counsel, make this recommendation to the Named Plaintiffs. The Named Plaintiffs 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 Counsel’s opinion, that this settlement is in the best interests of all Class Members.

In Class Counsel’s opinion, there is legal uncertainty about whether a judge or a jury will find that Defendant was contractually and otherwise legally obligated not to assess APPSN Fees or Retry Fees. Even if it were contractually wrong to assess these fees, there is uncertainty about whether the Named Plaintiffs’ claims are subject to other defenses that might result in no or less recovery to Class Members. Even if the Named Plaintiffs were to win at trial, there is no assurance that the Class Members would be awarded more than the current settlement amount, and it may take years of litigation before any payments would be made. By settling, and based on Class Counsel’s experience, settling will allow Class Members to 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 an Email Notice or Postcard Notice, then Defendant’s records indicate that you are a Class Member who may be entitled to receive a payment or credit to your account and/or forgiveness of Uncollected Fees.

You have three options:

1. exclude yourself from the settlement (“opt out” of it);
2. do nothing and participate in the settlement; or
3. object to the settlement.

Each of these options is described in a separate section below.

There is no deadline to receive settlement benefits. If you do nothing and the settlement is approved, then you may receive a payment or credit to your account and/or receive forgiveness of Uncollected Fees after approval.

The deadline for sending a letter to exclude yourself, from or opt out of, the settlement is April 19, 2022.

The deadline for sending a letter to the Settlement Administrator to object to the settlement is also April 19, 2022.

The deadline to file an objection with the Court is also April 19, 2022.

If you do not wish to participate in the settlement and, do not wish to be sent payment from the settlement and/or forgiveness of Uncollected Fees, and you do not wish to be bound by the release, then you should opt out. Likewise, if 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, then you can object to the settlement terms. The Court will consider timely objections. The Court will decide whether to approve the settlement and the award of attorneys’ fees, litigation costs, a Service Award, and administrative costs. If the Court decides not to approve the settlement, then the settlement will be void and no payments will be issued pursuant to its terms. If the Court approves the settlement, whether or not it grants the requests for attorneys’ fees, litigation costs, a Service Award, or administrative costs in full, then you may still be sent a payment and/or have your Uncollected Fees forgiven, and you will be bound by the settlement, including the release of claims.

If you want to participate in the settlement, then you don’t have to do anything; you may be sent a payment and/or receive forgiveness of Uncollected Fees 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 June 27, 2022. The hearing may be virtual, in which case the instructions to participate shall be posted on this website.

Defendant has agreed to create a Settlement Fund of $2,331,000.00 for the Class. Defendant will also forgive Uncollected Fees totaling $17,090.00.

As discussed separately below, attorneys’ fees of up to one-third (33 1/3 %) of the Value of the Settlement, litigation costs, the Service Award of $10,000.00 for each Named Plaintiff, and the costs paid to a third-party Settlement Administrator to administer the settlement (including sending the Postcard Notices and Email Notices) will be paid out of the Settlement Fund. Once the requested disbursements are approved from the Settlement Fund, the Net Settlement Fund will be divided among all Class Members as follows and based on formulas described in the Settlement Agreement.

Class Counsel will request an attorney fee be awarded by the Court of not more than one-third (33 1/3%) of the Value of the Settlement and will request that it be reimbursed for litigation costs incurred in prosecuting the case. Class Counsel will file the motion to make this request with the Court no later than April 4, 2022. 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.

You can access this motion here once it is posted.

Class Counsel will request that the Named Plaintiffs be paid a Service Award in the amount of $10,000.00 each for their work in connection with this case. The Service Award must be approved by the Court. Class Counsel will file the application for this request with the Court no later than April 4, 2022.

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 Class Members.

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

The Court will hold a Fairness Hearing on June 27, 2022, at 9:00 a.m. to consider whether the settlement should be approved. If the settlement is approved by the Court and you are eligible for a payment, you may receive either a check or a credit to your account approximately forty-five (45) days after this hearing. However, if there is an appeal, payments may be delayed.

Current customers of Defendant will receive a credit to their accounts for the amount they are entitled to receive.

Former customers of Defendant will be sent a check from the Settlement Administrator. The check will be sent to the address used to provide Postcard Notice of the settlement, or at such other address as designated by the Class Member. Checks must be cashed within 180 days.

Class Members entitled to forgiveness of Uncollected Fees shall receive this benefit automatically.

If you do not wish to not participate in the settlement, be bound by the release, and you do not want to receive a payment and/or forgiveness of Uncollected Fees, or if you want to keep any right you may have to sue Defendant for the claims alleged in this lawsuit, then you must exclude yourself, or “opt out.”

To opt out, you must send a letter to the Settlement Administrator that you want to be excluded. Your letter can simply say “I hereby elect to be excluded from the settlement in the Morris v. First Interstate Bank and Miller v. First Interstate Bank class actions. Be sure to include your name, the last four digits of your account number(s) or former account number(s), address, telephone number, and email address. Your exclusion or opt out request must be postmarked by April 19, 2022, and sent to the following address:

Morris and Miller v. First Interstate Bank
Attn: Settlement Administrator
P.O. Box 5075
Portland, OR 97208-5075

By choosing not to opt out of the Settlement Agreement, you will remain a Class Member and, as such, will be bound to a release. That means you will release any claims you may have against Defendant that arise out of and/or relate to the facts and claims alleged in the Complaint filed in the two class action cases. Put differently, participating in the settlement means that you will not be able to sue the Defendant in the future for such claims.

Additional details regarding the scope of the release can be found in Section 14 of the Settlement Agreement.

If you opt out of the settlement, you will preserve and not give up any of your rights to sue Defendant for the claims released in this case if the settlement is approved. However, you will not be entitled to receive a payment from this settlement for paid APPSN Fees, paid Retry Fees, and/or forgiveness of Uncollected Fees.

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

You can object to the settlement or any part of it that you do not like IF you do not exclude yourself, or opt out, from the settlement. (Class Members who exclude themselves from the settlement have no right to object to how other Class Members are treated.) To object, you must send a written document by mail or private courier (e.g., Federal Express) to the Settlement Administrator and Class Counsel at the addresses below. Your objection must include the following:

• The names of the cases, Morris v. First Interstate Bank (Yellowstone County), Case No. DV 20-528, and Miller v. First Interstate Bank (United States District Court), Case No. CV-21-45-BLG-SPW-TJC
• The objector’s name, address, telephone number, the last four digits of his or her member number or former member number, and the contact information for any attorney retained by the objector in connection with the objection or otherwise in connection with this case who may be entitled to compensation for any reason related to the objection
• A statement of the factual and legal basis for each objection and any exhibits the objector wishes the Court to consider in connection with the objection
• A statement as to whether the objector intends to appear at the Final Approval Hearing, either in person or through counsel, and, if through counsel, identifying the counsel by name, address, and telephone number
• A list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; and
• The objector’s signature or the signature of the objector’s legally authorized representative

All objections must be postmarked no later than April 19, 2022, and must be mailed to the Settlement Administrator and Class Counsel as follows:

Settlement Administrator	Class Counsel
Morris and Miller v. First Interstate Bank Attn: Settlement Administrator P.O. Box 5075 Portland, OR 97208-5075	A. Clifford Edwards Triel D. Culver A. Christopher Edwards John W. Edwards EDWARDS & CULVER 1648 Poly Drive, Suite 206 Billings, Montana 59102 Telephone: 1-406-256-8155 Facsimile: 1-406-256-8159  triel@edwardslawfirm.org  chris@edwardslawfirm.org  john.edwards@edwardslawfirm.org	Jeffrey Kaliel Sophia Gold KALIEL GOLD PLLC 1100 15th Street NW, 4th Floor Washington, DC 20005 Telephone: 1-202-320-4783  jkaliel@kalielpllc.com  sgold@kalielgold.com
	Taras Kick THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Telephone: 1-310-395-2988 Facsimile: 1-310-395-2088  taras@kicklawfirm.com	David K. W. Wilson, Jr. Robert Farris-Olsen MORRISON SHERWOOD WILSON & DEOLA, PLLP 401 North Last Chance Gulch P.O. Box 557 Helena, MT 59624 Telephone: 1-406-442-3261 Facsimile: 1-406-443-7294  kwilson@mswdlaw.com  rfolsen@mswdlaw.com

Objecting is telling the Court that you do not believe the settlement is fair, reasonable, and adequate for the class and asking the Court to reject it. You can object only if you do not opt out of the settlement. If you object to the settlement and do not opt out, then you are entitled to a payment for paid APPSN Fees, paid Retry Fees, and/or forgiveness of Uncollected Fees if the settlement is approved, but you will be bound by the release of claims you might have against Defendant if the settlement is approved.

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 paid APPSN Fees, paid Retry Fees, and/or forgiveness of Uncollected Fees or release claims you might have against Defendant for the claims alleged in this lawsuit.

The Court will consider the objection. If the Court sustains your objection, or the objection of any other Class Member, then there may be no settlement; provided, however, that an objection to Class Counsel’s requested attorneys’ fees and costs or to the requested Service Award amount, may result in approval of the settlement but the award of a lower attorneys’ fee and cost amount or lower Service Award. If you object but the Court overrules your objection and any other objection(s), then you will be part of the settlement. If the Court approves the settlement, then the objector will participate in the settlement. If the Court does not approve the settlement, then there is no settlement.

The Court will hold a Final Approval or Fairness Hearing on June 27, 2022, at 9:00 a.m. 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 Award to each of the Named Plaintiffs.

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. The hearing may be virtual, in which case the instructions to participate shall be posted on this website.

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 all the information described in FAQ 20 and a statement showing that you intend to appear at the Final Approval Hearing. A statement substantively similar to “I intend to appear at the Final Approval Hearing” will be sufficient. The Court will consider your objection even if you do not appear. The hearing may be virtual, in which case the instructions to participate shall be posted on this website.

The Court ordered that the lawyers and their law firms referred to above as “Class Counsel” will represent you and the other Class Members. However, you may retain a lawyer to represent you at your own expense.

No. Class Counsel will request payment directly from the Settlement Fund for the legal services provided to accomplish the settlement for Class Members’ benefit. Class Counsels’ award of attorneys’ fees and costs is deducted from the Settlement Fund, reducing that amount in calculating the Net Settlement Fund that Class Members will be sent.

The Court will be asked to approve the amount of attorneys’ fees at the Fairness Hearing. Class Counsel will file an application for fees and costs and will specify the amount being sought as discussed above not later than April 4, 2022. You can access this application here once it is posted.

This website only summarizes the proposed settlement. More details are contained in the settlement agreement, which can be viewed/obtained here. For additional information about the settlement and/or to obtain copies of the settlement agreement, or to change your address for purposes of receiving a payment, you should contact the Settlement Administrator as follows:

Morris and Miller v. First Interstate Bank
Attn: Settlement Administrator
P.O. Box 5075
Portland, OR 97208-5075

For more information, you also can contact Class Counsel as follows:

Class Counsel
A. Clifford Edwards Triel D. Culver A. Christopher Edwards John W. Edwards EDWARDS & CULVER 1648 Poly Drive, Suite 206 Billings, Montana 59102 Telephone: 1-406-256-8155 Facsimile: 1-406-256-8159  triel@edwardslawfirm.org  chris@edwardslawfirm.org  john.edwards@edwardslawfirm.org	Jeffrey Kaliel Sophia Gold KALIEL GOLD PLLC 1100 15th Street NW, 4th Floor Washington, DC 20005 Telephone: 1-202-320-4783  jkaliel@kalielpllc.com  sgold@kalielgold.com
Taras Kick THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Telephone: 1-310-395-2988 Facsimile: 1-310-395-2088  taras@kicklawfirm.com	David K. W. Wilson, Jr. Robert Farris-Olsen MORRISON SHERWOOD WILSON & DEOLA, PLLP 401 North Last Chance Gulch P.O. Box 557 Helena, MT 59624 Telephone: 1-406-442-3261 Facsimile: 1-406-443-7294  kwilson@mswdlaw.com  rfolsen@mswdlaw.com

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