Frequently Asked Questions
- What is the Notice about?
- What is the Lawsuit about?
- What are the benefits of the proposed settlement?
- How do I receive a settlement payment?
- Why is there a proposed settlement?
- What is a class action lawsuit?
- Who is in the class?
- When and where is the final approval hearing?
- How can a Settlement Class Member be excluded from the Lawsuit and the settlement?
- How can a Settlement Class Member object to the settlement?
- What is the effect of final settlement approval?
- Who are the lawyers for Plaintiffs and class members?
- Where can I get more information about the Lawsuit?
- What is the Notice about?
The Notice is being sent to notify you of a class action lawsuit regarding the recording of certain appointment-setting calls to California individuals or businesses. On March 15, 2022, the Court preliminarily approved a settlement of the Lawsuit. The purpose of the Notice is to inform you of the Lawsuit and the proposed settlement. In addition, the Notice will advise you of what to do if you or your business wants to remain a part of the Lawsuit, what to do if you or your business wants to exclude itself from the Lawsuit, and how joining or not joining the Lawsuit may affect you or your business’s legal rights. This settlement is in addition to a previous settlement involving different defendants, referred to as the Wells Fargo Defendants. If you or your business previously received a notice relating to the prior settlement with the Wells Fargo Defendants, you are still eligible to participate in this settlement and receive an additional settlement payment, but you need to submit a claim in this settlement to do so.
Top - What is the Lawsuit about?
On December 9, 2016, a class action lawsuit was filed in the United States District Court for the Northern District of Illinois, Eastern Division, now entitled Sat Narayan d/b/a Express Hauling, et al. v. Fifth Third Bank, et al., Case No. 1:16-cv-11223 (the “Lawsuit”). The Lawsuit alleged that independent sales organizations named International Payment Services, LLC (“IPS”) and Ironwood Financial, LLC (“Ironwood”), recorded certain calls to California businesses without disclosing the fact that the call was being recorded in violation of Sections 632 and 632.7 of the California Invasion of Privacy Act (“CIPA”). The Lawsuit further alleged that the purpose of these calls was to set in-person sales appointments with the businesses to sell credit card processing equipment and services on behalf of Fifth Third Bank, N.A. (“Fifth Third”), Vantiv, Inc. (“Vantiv”), and National Processing Company (“NPC”) (collectively, “the Fifth Third/Vantiv Defendants”), all of whom are named as defendants in the Lawsuit. The Fifth Third/Vantiv Defendants did not themselves make the calls and deny any wrongdoing or liability in connection with the Lawsuit.
Top - What are the benefits of the proposed settlement?
Under the proposed settlement, the Fifth Third/Vantiv Defendants will make a payment of $50,000,000 to create a fund on behalf of the Settlement Class Members (the “Settlement Fund”). Settlement Class Members who do not exclude themselves from the Lawsuit are eligible for a cash payment from the Settlement Fund for each call that is covered under the class definition set forth below (an “Eligible Call” as defined in the Settlement Agreement). Settlement Class Members who received multiple Eligible Calls are entitled to a cash payment for each Eligible Call. The cash payment could be as high as $5,000 per call depending on how many claims are submitted. It is not possible at this time, however, to know the exact amount of each payment. It is estimated, however, that individual settlement payments could be in the hundreds of dollars each.
Top - How do I receive a settlement payment?
In order to receive the cash payment described in the Notice, you must complete and sign a Claim Form and mail it to the Settlement Administrator, or you can submit a claim online on this settlement website, by the DUE DATE of May 30, 2022. A pre-paid, self-addressed envelope is provided with the Notice that you can use to mail in the Claim Form.
Regardless of whether you mail the Claim Form or submit a claim online, you must do so by the DUE DATE of May 30, 2022 to be eligible to receive a payment. Settlement payments will be issued only if the proposed settlement is granted final approval by the Court. If your settlement payment equals or exceeds $600, you may be required to submit a completed IRS Form W-9 at a later date.
Top - Why is there a proposed settlement?
The Court has not decided in favor of either side in the Lawsuit. Plaintiffs and Settlement Class Counsel believe the claims have merit. The Fifth Third/Vantiv Defendants do not believe the claims have merit. The Fifth Third/Vantiv Defendants are settling to avoid the expense, inconvenience, and inherent risk of litigation. Plaintiffs and Settlement Class Counsel believe that the proposed settlement is in the best interest of Settlement Class Members because it provides appropriate recovery and other relief now while avoiding the risk, expense, and delay of pursuing the case through trial and any appeals, including the possibility of no recovery for Settlement Class Members whatsoever.
Top - What is a class action lawsuit?
A class action lawsuit is a legal action in which one or more people represent a large group, or class, of people. The purpose of a class action lawsuit is to resolve at one time similar legal claims of the members of the group.
Top - Who is in the class?
On March 15, 2022, the Court certified the Lawsuit as a class action for settlement purposes and defined the class as follows:
All call recipients that received a telephone call to a California telephone number from an employee, agent, or other representative of, or from a call center operated by, International Payment Services, LLC or Ironwood Financial, LLC, or one of their affiliates, between May 8, 2014 and July 29, 2016, who appeared on a lead list maintained by International Payment Services, LLC or Ironwood Financial, LLC, while the call recipient was physically present in California.
Any call recipient meeting the definition of this class shall be referred to herein as a “Settlement Class Member” and, collectively, as the “Settlement Class” or “Settlement Class Members.”
Top - When and where is the final approval hearing?
The final approval hearing has been set for August 4, 2022 at 9:30 a.m before the Honorable Rebecca R. Pallmeyer in Courtroom 2541 of the Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, IL 60604. The final approval hearing may be conducted remotely via teleconference. Please check this settlement website for information on whether the final approval hearing will be conducted remotely via teleconference and, if so, how to participate.
The Court will hear any comments from the parties or objections concerning the fairness of the proposed settlement at the final approval hearing, including the amount requested for attorneys’ fees and costs or the requested incentive awards.
You do not need to attend the final approval hearing to remain a Settlement Class Member or to obtain any benefits under the proposed settlement. You or your attorney may attend the hearing, at your or your business’s own expense. You or your business do not need to attend this hearing to have a properly filed and served written objection considered by the Court.
Top - How can a Settlement Class Member be excluded from the Lawsuit and the settlement?
Any Settlement Class Member has the right to be excluded from the Lawsuit by written request. If you wish to be excluded from the case, you must mail a written request to the Settlement Administrator at the address set forth below stating that you or your business wants to be excluded from the Settlement Class. All exclusion requests must include: (i) the name and case number of the Lawsuit: Sat Narayan d/b/a Express Hauling, et al. v. Fifth Third Bank, et al., Case No. 1:16-cv-11223; (ii) the full name, address, telephone number, and email address of the Settlement Class Member electing exclusion; (iii) a statement that the Settlement Class Member elects to be excluded from the Lawsuit and elects not to participate in the settlement; (iv) the full name, title, business address, business telephone number, and business email address of the person submitting the written election for the Settlement Class Member; and (v) a representation that the person submitting the written election has the authority to do so on behalf of the Settlement Class Member. A Settlement Class Member’s exclusion request must be postmarked no later than the DUE DATE of May 23, 2022 and sent to the following address: Sat Narayan, et al. v. Fifth Third Bank, et al. Settlement Administrator, P.O. Box 43541, Providence, RI 02940-3541.
If you properly and timely elect to be excluded from the case, you or your business will not have any rights as a Settlement Class Member pursuant to the proposed settlement, will not be eligible to receive any monetary payment under the proposed settlement, will not be bound by any further orders or the judgment entered in the Lawsuit, and will remain able to pursue any claims alleged in the Lawsuit against the Fifth Third/Vantiv Defendants on your own and at your own expense and with your own counsel. If you proceed on an individual basis after electing to be excluded from the Lawsuit you may receive more, or less, of a benefit than you would otherwise receive under this proposed settlement or no benefit at all. If you or your business does not elect to be excluded from the case, you will be deemed to have consented to the Court’s jurisdiction and to have released the claims at issue against the Fifth Third/Vantiv Defendants as explained below, and will otherwise be bound by the proposed settlement.
If you previously excluded yourself or your business from the prior settlement with the Wells Fargo Defendants, you still must submit a written exclusion request to exclude yourself from this settlement with the Fifth Third/Vantiv Defendants.
Top - How can a Settlement Class Member object to the settlement?
If you do not exclude yourself from the Lawsuit, you can comment in opposition to the settlement, including the amount requested for attorneys’ fees and costs or the requested incentive awards, which is known as an objection, and your business has the right to appear before the Court to express its opposition. Your written objection must be submitted in writing and filed with the Clerk of Court by the DUE DATE of May 23, 2022. The address for the Clerk of the Court is: Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, IL 60604. You must also send copies of your written objection to the attorneys for the parties at the following addresses:
Settlement Class Counsel:
Myron M. Cherry
Jacie C. Zolna
Benjamin R. Swetland
Myron M. Cherry & Associates, LLC
30 North LaSalle Street, Suite 2300
Chicago, IL 60602Counsel for the Fifth Third/Vantiv Defendants:
John Touhy
Baker & Hostetler LLP
One North Wacker Drive, Suite 4500
Chicago, IL 60606Paul Karlsgodt
Baker & Hostetler LLP
1801 California Street, Suite 4400
Denver, CO 80202To be valid and considered by the Court, any such written objection must include the following information: (i) the name and case number of the Lawsuit: Sat Narayan d/b/a Express Hauling, et al. v. Fifth Third Bank, et al., Case No. 1:16-cv-11223; (ii) the Settlement Class Member’s name, address, telephone number, and email address; (iii) the full name, title, business address, business telephone number, and business email address of the person submitting the objection for the Settlement Class Member; (iv) a representation that the person submitting the objection has the authority to do so on behalf of the Settlement Class Member; (v) a statement of each objection and the relief that the Settlement Class Member is requesting; and (vi) a statement of whether the Settlement Class Member intends to appear at the final approval hearing. Settlement Class Members may retain counsel to object to the settlement and/or appear at the final approval hearing. If a Settlement Class Member is not a sole proprietorship or is otherwise a separate business entity, it may be required to make its objection or appear at the final approval hearing through an attorney. If a Settlement Class Member makes an objection or appears at the final approval hearing through an attorney, the Settlement Class Member will be responsible for his or her personal attorney’s fees and costs. Any Settlement Class Member who fails to file a timely objection shall have waived any right to object to this Agreement and shall not be permitted to object at the final approval hearing and shall be foreclosed from seeking any review of this settlement by appeal or other means.
Top - What is the effect of final settlement approval?
If the Court approves the proposed settlement after the final approval hearing, it will enter a judgment dismissing the Lawsuit with prejudice and releasing all claims as described in this paragraph. If you do not elect to be excluded from the case, the proposed settlement will be your sole mechanism for obtaining any relief. All Settlement Class Members who do not timely elect to opt out of the proposed settlement, and each of their respective agents, administrators, employees, representatives, successors, assigns, trustees, joint venturers, partners, legatees, heirs, personal representatives, predecessors, and attorneys jointly and severally release and forever discharge the Fifth Third/Vantiv Defendants and each of their respective former, present, and future direct and indirect parents, affiliates, subsidiaries, successors, predecessors, creditors, assigns, and assignees and all of their respective former, present, and future officers, directors, shareholders, managers, indemnitees, employees (whether acting in such capacity or individually), agents (alleged, apparent, or actual) other than those described in Paragraph 21.b. of the Settlement Agreement, joint venturers, representatives, attorneys, accountants, auditors, independent contractors, successors, trusts, trustees, partners, owners, associates, principals, advisors, divisions, subdivisions, departments, insurers, reinsurers, members, brokers, consultants, wholesalers, resellers, distributors, retailers, and vendors and all persons acting by, through, under, or in concert with them, or any of them, from any and all manner of actions, causes of action, claims, demands, rights, suits, obligations, debts, contracts, agreements, promises, liabilities, damages, charges, penalties, losses, costs, expenses, and attorneys’ fees, of any nature whatsoever, known or unknown, in law or equity, fixed or contingent, which they have or may have arising out of, relating to, or otherwise in connection with the subject matter of the Second Amended Complaint and the recording of calls as alleged in the Lawsuit, including but not limited to claims based on calls that are covered under the class definition set forth above (“Eligible Calls”) or claims for violation of CIPA, including but not limited to Section 632 and Section 632.7, or any other federal, state, or local statute, regulation, or common law relating to the recording of telephone calls at any time prior to the Final Settlement Date (as defined in the Settlement Agreement). Unless otherwise requested by the Fifth Third/Vantiv Defendants, this release does not apply to or limit any action, whether pursued through the Lawsuit or any other claim or proceeding, by any Plaintiffs or Settlement Class Members against Ironwood, John Lewis, Dewitt Lovelace, IPS, Brian Bentley, Adam Bentley, or Andrew Bentley.
Ironwood filed for bankruptcy and, as a result, was dismissed from the Lawsuit without prejudice. To avoid the bankruptcy proceeding from potentially interfering with the prosecution of the Lawsuit, Plaintiffs also moved for the dismissal of Ironwood’s officers, John Lewis and Dewitt Lovelace, without prejudice. The settlement allows the Fifth Third/Vantiv Defendants to elect to extend the release set forth above to Ironwood, John Lewis, and Dewitt Lovelace so long as that election is made before an order granting final approval of the settlement. Settlement Class Members who do not opt out of the Settlement will be bound by the release in the Final Approval Order, which may also include a release of claims against these parties if the Fifth Third/Vantiv Defendants elect to include them.
If the proposed settlement is not approved, the Lawsuit will proceed as if no settlement had been reached. There can be no assurance that if the settlement is not approved and the Lawsuit resumes that Settlement Class Members will recover more than what is provided for under the proposed settlement or will recover anything at all.
Top - Who are the lawyers for Plaintiffs and class members?
The following lawyers (“Settlement Class Counsel”) are serving as counsel for the Settlement Class:
Myron M. Cherry
mcherry@cherry-law.com
Jacie C. Zolna
jzolna@cherry-law.com
Benjamin R. Swetland
bswetland@cherry-law.com
Myron M. Cherry & Associates, LLC
30 North LaSalle Street, Suite 2300
Chicago, IL 60602
(312) 372-2100 (telephone)
(312) 853-0279 (facsimile)From the beginning of the case to the present, Settlement Class Counsel has not received any payment for their services, nor have they been reimbursed for any out-of-pocket costs they have incurred, in prosecuting the Lawsuit against the Fifth Third/Vantiv Defendants or in obtaining this proposed settlement. Settlement Class Counsel will apply to the Court for an award of attorneys’ fees in the amount of no more than one-third (33.33%) of the Settlement Fund, after deducting incentive awards and settlement administration costs, as well as an additional amount for reimbursement of actual costs, which Settlement Class Counsel currently estimates will be between $340,000-$360,000. If the Court approves Settlement Class Counsel’s petition for fees and costs, it will be paid from the Settlement Fund. Settlement Class Members will not have to pay anything toward the fees or costs of Settlement Class Counsel. You do not need to hire your own lawyer because Settlement Class Counsel is working on your behalf and will seek final approval of the settlement on behalf of the Settlement Class Members. You may hire a lawyer to represent you in this case if you wish, but it will be at your own expense.
Settlement Class Counsel may also petition the Court for incentive awards in the amount of $5,000 to each of the three Settlement Class representatives who helped the Settlement Class Counsel on behalf of the whole Settlement Class.
Top - Where can I get more information about the Lawsuit?
The Class Notice provides only a summary of the Lawsuit. You can view the Settlement Agreement and obtain more information about the settlement on this website. In order to see the complete case file, including the Settlement Agreement and all other pleadings and papers filed in the Lawsuit, you may also examine the court file at the office of the Clerk of the Court in the Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, IL 60604.
PLEASE DO NOT CONTACT THE COURT (INCLUDING THE CLERK OF THE COURT OR THE JUDGE) OR DEFENDANTS WITH QUESTIONS ABOUT THE SETTLEMENT OR THE LAWSUIT. PLEASE ADDRESS ANY FURTHER CONTACT TO THE SETTLEMENT ADMINISTRATOR AT:
Sat Narayan, et al. v. Fifth Third Bank, et al. Settlement Administrator
Top
P.O. Box 43541
Providence, RI 02940-3541
1-855-905-1494
admin@CallSettlement.com