1. What is this lawsuit about?
2. Why did the Parties settle?
3. How do I know if I am part of the Settlement?
4. What options do I have with respect to the Settlement?
5. What are the critical deadlines?
6. How do I decide which option to choose?
7. What has to happen for the Settlement to be approved?
8. How much is the Settlement?
9. How much of the Settlement fund will be used to pay for attorney fees and costs?
10. How much of the Settlement fund will be used to pay Service Awards to each of the Named Plaintiffs?
11. How much of the Settlement fund will be used to pay the Settlement Administrator’s expenses?
12. How much will my payment be?
13. Do I have to do anything if I want to participate in the Settlement?
14. When will I receive my payment?
15. How do I exclude myself from the Settlement?
16. What happens if I opt out of the Settlement?
17. If I exclude myself, can I obtain a payment?
18. How do I notify the Court that I do not like the Settlement?
19. What is the difference between objecting and requesting exclusion from the Settlement?
20. What happens if I object to the Settlement?
21. When and where will the Court decide whether to approve the Settlement?
22. Do I have to come to the hearing?
23. May I speak at the hearing?
24. What happens if I do nothing at all?
25. Do I have a lawyer in this case?
26. Do I have to pay the lawyer for accomplishing this result?
27. Who determines what the attorneys’ fees will be?
28. How do I get more information about the Settlement?
The lawsuit that is being settled is entitled Livingston, et al. v. Trustco Bank, which has been consolidated with two other cases: Lamoureux v. Trustco Bank and Jenkins v. Trustco Bank.The case is a “class action.” That means that the “Named Plaintiffs,” Deborah Livingston, Robert Lamoureux, Dena Scroggins, and Tammy Jenkins, are individuals who are acting on behalf of a group that includes all Trustco Bank account holders who have or have had accounts with Trustco Bank who from September 2, 2014 to December 10, 2023 were charged a second or third NSF Fee, or an Overdraft Fee, on an ACH transaction or check that had already triggered an NSF Fee (a “Retry NSF Fee”); or were charged an Overdraft Fee on a point of sale Debit Card Transaction, 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 Trustco Bank for payment and posted to the account (an “APPSN Fee”).
The Named Plaintiffs claim they were improperly charged Retry NSF Fees and APPSN Fees, and that Defendant was not permitted to assess such fees under the terms of its contracts with account holders. Defendant denies that its fee practices give rise to claims for damages by the Named Plaintiffs or any Class Member. Defendant specifically maintains that it properly and lawfully assessed all fees in accordance with the terms of its agreements, disclosures, and applicable law.
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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’ 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, these 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 interest of all Class Members for at least the following reasons:
There is legal uncertainty about whether the Court (or eventually a trial court judge or a jury) will find that Defendant breached its agreements with account holders or otherwise acted improperly by assessing the NSF Fees and Overdraft Fees that are the subject of this case. There also is uncertainty about whether the Named Plaintiffs’ claims are subject to other defenses that might result in no recovery 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, the Class Members will avoid these and other risks and the delays associated with continued litigation.
Although Defendant disputes Named Plaintiffs’ claims, it has agreed to settle to avoid the costs, distractions and risks of further litigation. Thus, even though Defendant denies that it did anything improper, it believes settlement is in its best interest.
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If you received a notice of this Settlement in the mail or via email, then Defendant’s records indicate that you are a Class Member who is entitled to receive a payment.
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You have three options: (1) do nothing and receive a payment according to the terms of the Settlement and release your claims arising out of Trustco’s assessment of the at-issue fees; (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.
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If you do nothing, you will receive a portion of the Settlement Fund based on the number of at-issue fees you incurred. Trustco Bank account holders whose accounts are currently open will receive settlement funds via a direct credit to the account. If your account is closed, you will receive settlement funds via check mailed to your residence of record.
The deadline for sending a letter to exclude yourself from or opt out of the Settlement is October 21, 2024.
The deadline to file an objection with the Court is November 12, 2024.
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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 will not be approved and no payments will be made to you or any other Class Member. If your objection (and any other objection) is overruled, and the Settlement is approved, then you will still get a payment.
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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 authorized this website. The Court will make a final decision regarding the Settlement at a “Fairness Hearing” or “Final Approval Hearing,” which is currently scheduled for November 26, 2024.
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Defendant has agreed to create a Settlement Fund of $2,750,000. As discussed separately below, attorneys’ fees, litigation costs not to exceed $45,000, service awards to each of the Named Plaintiffs, and the costs of notice and administration of the Settlement will be paid out of this amount. The balance of the Settlement Fund will be divided among all Class Members proportionally.
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Class Counsel will request that the Court award up to one-third (33-1/3%) of the Settlement Fund as attorneys’ fees plus reimbursement of litigation costs incurred in prosecuting the case. Class Counsel will request litigation costs in an amount not to exceed $45,000. The Court will decide the amount of the attorneys’ fees based on a number of factors, including the risk associated with bringing the case, 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.
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Class Counsel on behalf of the Named Plaintiffs will request that the Court award each of them up to $10,000 for their roles in securing this Settlement on behalf of the class. The Court will decide if these Service Awards are appropriate and if so, the amount of the awards.
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The Settlement Administrator has agreed to cap its expenses at $45,000.
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The balance of the Settlement Fund will be divided among all Class Members in proportion to the number of allegedly improper NSF Fees and/or Overdraft Fees they incurred. Trustco Bank account holders whose accounts are currently open will receive settlement funds via a direct credit to the account. If your account is closed, you will receive settlement funds via check mailed to your residence of record.
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No. Any amount you are entitled to under the terms of the Settlement will be distributed to you unless you choose to exclude yourself from the Settlement, or “opt out.” Excluding yourself from the Settlement means you choose not to participate in the Settlement. You will keep your individual claims against Defendant, but you will not receive a payment. In that case, if you choose to seek recovery against Defendant, then you will have to file a separate lawsuit or claim.
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The Court will hold a Fairness Hearing (explained below in Questions 21-23) on November 26, 2024, to consider whether the Settlement should be approved. If there are no objections and the Court approves the Settlement, then the Settlement Administrator should begin paying claims within approximately forty days of the Court’s approval. 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.
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If you do not want to receive a payment, or if you want to keep any right you may have to sue Defendant for the claims alleged in this lawsuit, then you must exclude yourself, or “opt out.”
To opt out, you must send a letter to the Settlement Administrator that you want to be excluded. Your letter can simply say “I hereby elect to be excluded from the Settlement in the Livingston, et al. v. Trustco Bank class action.” Be sure to include your name, the last four digits of your Trustco Bank account number (current or former) or Social Security Number, address, telephone number, and email address. Your exclusion or opt out request must be postmarked by October 21, 2024, and sent to:
Livingston, et al. v. Trustco Bank Settlement
c/o Simpluris
PO Box 25226
Santa Ana, CA 97299
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If you opt out of the Settlement, you will preserve and not give up any of your rights to bring claims against Defendant for the claims alleged in this case. However, you will not be entitled to receive a payment from this Settlement.
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No. If you exclude yourself, you will not be entitled to a payment from this Settlement.
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You can object to the Settlement or any part of it that you do not like if you do not exclude yourself, or opt out, from the Settlement. (Class Members who exclude themselves from the Settlement have no right to object to how other Class Members are treated.) To object, you must send a written document to the Settlement Administrator, the Court, Class Counsel, and Defendant’s counsel, at the addresses below. Your objection must include the following:
Class Counsel and/or Defendant’s Counsel will file any objections and responsive pleadings at least seven days before the Final Approval Hearing Date. Be advised that if you object to the Settlement and retain an attorney for purposes of objecting, you are solely responsible for paying that attorneys’ fees and costs. If you fail to comply with the provisions herein, you will waive and forfeit any and all rights to appear and/or object separately, and will be bound by the terms of this Agreement and the orders and judgments of the Court.
All objections must be post-marked no later than November 12, 2024, and must be mailed to the below-identified recipients as follows:
SETTLEMENT ADMINISTRATOR | UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK | CLASS COUNSEL | DEFENDANT’S COUNSEL |
Livingston, et al. v. Trustco Bank | Attn: Clerk | Taras Kick | John Bailey |
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Objecting is telling the Court that you do not believe the Settlement is fair, reasonable, and adequate for the class, and asking the Court to reject it. You can object only if you do not opt out of the Settlement. If you object to the Settlement and do not opt out, then you are entitled to a payment if the Settlement is approved, but you will release claims you might have against Defendant. Excluding yourself or opting out is telling the Court that you do not want to be part of the Settlement, and do not want to receive a payment or release claims you might have against Defendant for the claims alleged in this lawsuit.
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If the Court sustains your objection, or the objection of any other Class Member, 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.
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The Court will hold a Final Approval or Fairness Hearing on November 26, 2024, at 10:00 a.m. at the James M. Hanley Federal Building & U.S. Courthouse, 100 S. Clinton St., Syracuse, NY 13261. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court may also decide how much to award Class Counsel for attorneys’ fees and expenses and how much the Named Plaintiffs should get as “Service Awards” for acting as the class representatives.
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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.
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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 18, above, the statement, “I hereby give notice that I intend to appear at the Final Approval Hearing.”
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If you do nothing at all, and if the Settlement is approved, then you may receive a payment that represents your share of the Settlement Fund. You will be considered a part of the class, and you will give up claims against Defendant for the conduct identified in the Settlement. You will not give up any other claims you might have against Defendant that are not released in this Settlement.
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The Court ordered that the lawyers and their law firms referred to in this website as “Class Counsel” will represent you and the other Class Members.
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No. Class Counsel will be paid directly from the Settlement Fund.
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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. You may review a physical copy of the fee application in the Important Documents section of this website.
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For additional information about the Settlement and/or to obtain copies of the Settlement agreement, the pleadings in this case or to change your address for purposes of receiving a payment, you should contact the Settlement Administrator as follows:
Livingston, et al. v. Trustco Bank Settlement
c/o Simpluris
PO Box 25226
Santa Ana, CA 97299
PLEASE DO NOT CONTACT THE COURT OR ANY REPRESENTATIVE OF TRUSTCO BANK CONCERNING THE NOTICE OR THE SETTLEMENT.
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