In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation

A court authorized a notice because you have a right to know about a settlement of this class action lawsuit, and about all your options. The notice explains the lawsuit, the Settlement, and your legal rights.

Judge Bruce H. Hendricks, of the U.S. District Court for the District of South Carolina, is overseeing this case. The case is known as In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation, Case No. 6:15-mn-02613-BHH. The people who sued are called the “Plaintiffs.” The Defendant is TD Bank.

The lawsuit claims that TD Bank and Carolina First (including Mercantile Bank) assessed Overdraft Fees in a manner inconsistent with customer account agreements and state laws. It also claims that TD Bank’s overdraft practices violated a federal regulation known as Regulation E and the National Bank Act’s usury limitations. The Complaint in this Action is posted here. TD Bank denies liability and maintains that the challenged overdraft practices complied with customer agreements and applicable laws. The Court has not decided which side is right.

In a class action, one or more people, called class representatives (in this case, 25 TD Bank and/or Carolina First Customers who were assessed Overdraft Fees), sue on behalf of themselves and other people who have similar claims. All of the people who have claims similar to the class representatives are members of one or more of the Settlement Classes, except for those who exclude themselves from the Settlement.

The Court has not decided in favor of either the Plaintiffs or TD Bank. Instead, both sides agreed to the Settlement. By agreeing to the Settlement, the parties avoid the costs and uncertainty of a trial, and members of the Settlement Classes receive the benefits described in this website. The Class Representatives and their attorneys think the settlement is best for everyone who is affected.

By Order dated June 26, 2019, the Court directed that the Settlement Administrator send Notice of the Settlement to the Settlement Classes. In September 2019, the Settlement Administrator mailed or emailed Notice to the holders of more than five million TD Bank and Carolina First accounts that fell within the definition of the six Settlement Classes. On January 9, 2020, the Court granted final approval of the Settlement, finding that its terms were fair, reasonable and adequate. The Court also awarded attorneys’ fees and costs to Plaintiffs’ counsel, and Service Awards to the named Plaintiffs. Settlement Payments to Settlement Class Members who made timely claims were issued in April 2020.

After payments were issued to Settlement Class Members, TD Bank and Settlement Class Counsel discovered that the holders of roughly 70,000 accounts which fall within the definitions of the Settlement Classes, representing approximately 1.5% percent of the Settlement Classes, were inadvertently omitted from the initial Notice program (the aforementioned “Omitted Class Members”). TD Bank and Settlement Class Counsel brought this error to the Court’s attention, and the Court ordered that Notice be provided to Omitted Class Members so that Omitted Class Members could participate in, opt out of, or object to the Settlement.

The settlement classes (“Settlement Classes”) include the following:

• All holders of a TD Bank Personal Account, who, from August 16, 2010, to and including April 22, 2016, incurred one or more Overdraft Fees as a result of TD Bank’s practice of assessing Overdraft Fees based on the Account’s Available Balance rather than its Ledger Balance (“TD Available Balance Consumer Class”); and
• All holders of a Carolina First Bank/Mercantile Bank Account, who, from December 1, 2007, to and including June 20, 2011, incurred one or more Overdraft Fees as a result of Carolina First Bank’s and/or Mercantile Bank’s practices of (1) High-to-Low Posting or (2) assessing Overdraft Fees based on the Account’s Available Balance rather than its Ledger Balance (“South Financial Class”); and
• All holders of a TD Bank Personal Account who were assessed one or more Overdraft Fees for an ATM or One-Time Debit Card Transaction from August 16, 2010, to and including June 26, 2019 (“Regulation E Class”); and
• All holders of a TD Bank Personal or Business Account who, from March 8, 2013, to and including June 26, 2019, incurred one or more Sustained Overdraft Fees (“Usury Class”); and
• All holders of a TD Bank Personal Account who, from December 5, 2011, to and including June 26, 2019, incurred one or more Overdraft Fees on Uber or Lyft ride-sharing transactions while not enrolled in TD Debit Card Advance (“Uber/Lyft Class”); and
• All holders of a TD Bank Business Account who, from August 16, 2010, to and including June 26, 2019, incurred one or more Overdraft Fees as a result of TD Bank’s practice of assessing Overdraft Fees based on the Account’s Available Balance rather than its Ledger Balance (“TD Available Balance Business Class”).

You can be a member of more than one of the Settlement Classes. If none of these scenarios happened to you, you are not a member of any of the Settlement Classes. A notice was sent to all identified Settlement Class Members by email or postcard. If you received an email or postcard notice, it indicated which of the Settlement Classes TD Bank’s records indicated you are a member of.

You may also contact the Settlement Administrator if you have any questions as to whether you are a member of one or more of the Settlement Classes. The Settlement Agreement also sets forth some exclusions from the Settlement Class definitions. You can obtain a copy of the Settlement Agreement here.

The Settlement specifies that TD Bank provide seventy million dollars ($70,000,000.00) to settle the Action (the “Settlement Amount”). The $70,000,000.00 Settlement Amount consists of (1) forty-three million dollars ($43,000,000.00) in monetary compensation (“Settlement Payment Amount”) and (2) twenty-seven million dollars ($27,000,000.00) of reductions of amounts owed to TD Bank by Settlement Class Members whose Accounts were closed with negative balances (“Overdraft Forgiveness Amount”). After paying certain other costs and Court-approved amounts, the Settlement Payment Amount was distributed among members of the Settlement Classes who were assessed one or more Overdraft Fees or Sustained Overdraft Fees in connection with their TD Bank and/or Carolina First Accounts for the Class Periods identified in Question 5, above.

Each Settlement Class Member’s portion of the Settlement Payment Amount depended upon the calculations determined by the allocation formulas set forth in the Settlement Agreement. For those eligible, payment amounts varied depending on the Class or Classes to which a Settlement Class Member belongs and the number of Overdraft Fees or Sustained Overdraft Fees assessed to the Settlement Class Member’s Account(s), and was subject to increase or decrease depending on the total number of claims submitted. Settlement Class Members who currently hold TD Bank Accounts received their portions of the Settlement Payment Amount by credits to their Accounts. Settlement Class Members who no longer hold TD Bank Accounts received their portions of the Settlement Payment Amount by check.

The distribution from the Overdraft Forgiveness Amount was provided to Members of three of the six Settlement Classes: TD Available Balance Consumer Class, Usury Class, and TD Available Balance Business Class. Members of those Settlement Classes whose Accounts were closed with $75.00 or more owed to TD Bank may be entitled to a credit from the Overdraft Forgiveness Amount in a manner that would reduce the amount owed to TD Bank to $74.99 or less. The reduction in such Members’ outstanding balances to $74.99 or less will result in the reporting associated with their closed Accounts being removed from the ChexSystems national reporting database, which will allow such Members greater freedom in opening bank accounts at other financial institutions.

Benefits to Omitted Class Members: Settlement Payments to Omitted Class Members (those who were inadvertently omitted from the initial Notice Program due to the previously described data processing error) have been provided as checks enclosed with the mailed Notice sent to Omitted Class Members. Settlement Payments to Omitted Class Members are at the same levels and amounts as Settlement Payments made to similarly situated Settlement Class Members who received the initial Notice and made timely claims. Settlement Payments to all Regulation E Class Members were limited by a statutory cap on damages that the Court found applies to class actions asserting claims under Regulation E. Members of the TD Available Balance Business Class who were inadvertently omitted from the initial Notice Program, and whose accounts were closed with $75.00 or more owed to TD Bank, are also eligible for a credit that would reduce the amount owed to TD Bank to $74.99 (“Overdraft Forgiveness”).

Settlement Class Members who have not excluded themselves from the Settlement pursuant to the procedures in Question 9, below, will be releasing TD Bank from all the Released Claims described and identified in Section XIV of the Settlement Agreement and will also be bound by all the decisions of the Court. This means you will no longer be able to sue TD Bank regarding any of the claims described in the Settlement Agreement.

Section XIV of the Settlement Agreement describes, by way of examples, the legal claims that you will give up if you remain in the Settlement. The Settlement Agreement is available here. The Settlement Agreement provides more detail regarding the Releases and describes the Released Claims with specific descriptions in necessary, accurate legal terminology, so read it carefully. You can talk to the law firms representing the Settlement Classes listed in the section below entitled “The Lawyers Representing You” for free, or you can, at your own expense, talk to your own lawyer if you have any questions about the Released Claims or what they mean.

If you are an Omitted Class Member (a Settlement Class Member who was inadvertently omitted from the initial Notice Program), you can exclude yourself from the Settlement by following the steps described below.

If you wish to exclude yourself from the Settlement, do not cash the check enclosed with your mailed Notice. If you cash the check, you will no longer be able to sue TD Bank regarding any of the claims described in the Settlement Agreement.

To exclude yourself from the Settlement, you must send a dated letter that includes the following:

• Your name, address, email address, and telephone number;
• The identity of your counsel, if you are represented;
• A statement that you want to be excluded from the TD Bank Overdraft Class Action Settlement in In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation, Case No. 6:15-mn-02613-BHH and that you understand you will not receive any money or Overdraft Forgiveness Amount from the Settlement; and
• Your signature or authorized representative’s signature and the date on which the request was signed.

You must mail your exclusion request, postmarked no later than August 16, 2021, to the following address:

TD Bank Overdraft Litigation
Exclusions
P.O. Box 6006
Portland, OR 97228-6006

No. Unless you exclude yourself, you give up the right to sue TD Bank for the claims that the Settlement resolves. If you wish to pursue your own lawsuit, you must exclude yourself from the Settlement.

No. You will not receive a payment, account credit, and/or Overdraft Forgiveness Amount if you exclude yourself from the Settlement. If you wish to exclude yourself from the Settlement, do not cash the check enclosed with your mailed Notice.

The Court has appointed lawyers to represent you and others in the Settlement class as “class counsel”, including:

Class Counsel have been awarded thirty percent (30%) of the Settlement Amount for attorneys’ fees, plus reimbursement of their expenses incurred in connection with prosecuting this case. The fees and expenses awarded by the Court were paid out of the Settlement Fund, as that term is defined in the Settlement Agreement. The Court also approved Service Awards of $10,000.00 for each class representative, or $7,500.00 per class representative for married couples in which both spouses are named Plaintiffs. All Service Awards were paid from the Settlement Fund.

If you are an Omitted Class Member (a Settlement Class Member who was inadvertently omitted from the initial Notice Program), you can object to the Settlement.

To object, you must submit a letter that includes the following:

• The name of this case, which is In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation, Case No. 6:15-mn-02613-BHH;
• Your full name, address, email address, and telephone number;
• An explanation of the basis upon which you claim to be an Omitted Class Member;
• Each objection you are raising, along with the specific legal and factual grounds for the objection, accompanied by any legal support for the objection known to you or your counsel;
• The number of times in which you have objected to a class action settlement within the five years preceding the date that you file the objection, the caption of each case in which you have made such objection, and a copy of any orders related to or ruling upon your prior such objections that were issued by the trial and appellate courts in each listed case;
• A statement whether the objection applies only to you, to a specific subset of the class, or to the entire class;
• The identity of all counsel who represent you, 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 your counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that you file the objection, the caption of each case in which the counsel or the firm has made such objection, and a copy of any orders related to or ruling upon counsel’s or the firm’s prior such objections that were issued by the trial and appellate courts in each listed case;
• Any and all agreements that relate to the objection or the process of objecting between you or your counsel and any other person or entity;
• Your signature (an attorney’s signature is not sufficient). Any objection submitted on behalf of a business entity must identify the title of the authorized individual signing the objection.

You must submit your objection to the following addresses, postmarked no later than August 16, 2021.

Objecting is telling the Court that you do not like something about the Settlement. You could have objected to the Settlement only if you did not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you don’t want to be part of the Settlement. If you excluded yourself from the Settlement, you have no basis to have objected to the Settlement because it no longer affects you.

If you do nothing, you will give up your right to bring your own lawsuit against TD Bank about the claims in this case. Unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against TD Bank relating to the legal issues in this case.

This Supplemental Long-Form Notice summarizes the Settlement Agreement and the rights of Omitted Class Members. More details can be found in the Settlement Agreement. You can obtain a copy of the Settlement Agreement here. You may also write with questions to TD Bank Overdraft Litigation, P.O. Box 6006, Portland, OR 97228-6006, or call the toll-free number, 1-877-588-5722. Do not contact TD Bank or the Court for information.

Settlement Checks were issued pursuant to the terms of the class action Settlement In re: TD Bank, N.A. Debit Card Overdraft Fee Litigation, Case No. 6:15-mn-02613-BHH. You either

1. submitted a claim for a Settlement award, and the Settlement Administrator has determined it was timely and valid, or
2. were automatically entitled to an award Pursuant to the terms of the Settlement Agreement.

The amount printed on the check is the full amount to which you are entitled based upon the terms of the Settlement.

Please negotiate the check promptly. Checks indicate when they expire, and are not negotiable after this date.

All reissue requests must be sent in writing to the Settlement Administrator at the address listed below.

TD Bank Debit Card Overdraft Settlement Administrator
P.O. Box 6006
Portland, OR 97228-6006

If the name of the Class Member on the check should be changed, please send in documentation, as applicable, according to the following checklist:

Name Change – If your name has changed, please provide documentation showing this to be the case, which can include documents such as a marriage certificate or court papers indicative of a name change.

Name Removal – In order to have a name removed from a check reissue, either have both parties on the check sign a letter and return the check, or return the check with documentation that shows that one party is unable to negotiate the check (e.g., death certificate).

Deceased Class Member – If the Class Member indicated on the check is deceased, please submit acceptable documentation showing that you are the beneficiary of his or her Estate. Acceptable documentation may be a death certificate, together with the pertinent portion of the Will, or Court Order/Letters Testamentary naming you as Personal Representative, Administrator, Executor, or Executrix.

Incapacitated Class Member – If the claimant cannot act on his or her own behalf, acceptable documentation is a Power of Attorney, or guardianship or custodial paperwork.

Closed Business – If you are the legal representative of a business which is no longer active, please include a letter with instructions for the name that should be included on the replacement check, as well as any documentation that you may have proving you are authorized to act on behalf of the business. Documentation may include Articles of Incorporation, Articles of Organization, Articles of Dissolution, or any other similar legal documentation that explicitly states the individual is an acting party for the business.

For reasons of security, a check reissue cannot take place until either the original check is received back by us, a mailing has been returned to us as undeliverable, or until the original stale date of the check has passed or expired.

Because one of these events must occur before we can act on your request, it is not possible for us to provide an estimated date for the reissue to take place. We thank you for your patience.