"The Plaintiffs' Executive Committee has itself formally objected to two separate settlements of overlapping claims-one with Fifth Third Bank, for 10% of class members' estimated damages, and another with National City Bank, for between 10% and 26% of class members' estimated damages — as grossly insufficient," the brief states. "Yet Class Counsel ask this Court to approve a lesser settlement, for a mere 9% of class members' damages, as "fair, reasonable and adequate."
There are arguments for why the Bank of America settlement made sense, not least of which is that a rival class action suit in California threatened to settle the claims of 80% of the class members for a much smaller amount.
But Himmelstein argues that his former colleagues have tried to hide from consumers that average recovery would be "less than the amount of a single overdraft charge," as he puts it.
"Instead of being told that they will receive a refund of less than one illegitimate overdraft charge for every ten they paid, class members were told — falsely — that the amount of their anticipated refund "cannot be determined at this time," he wrote.
Podhurst told American Banker that the plaintiffs' executive committee would respond to Himmelstein's brief in court.
A lot is at stake for the attorneys themselves. The Bank of America settlement alone is expected to yield as much as $120 million in fees, roughly standard given the size of the deal.