Schertzer v. Bank of America, N.A., 3:19-cv-00264

Plaintiffs represent Bank of America (BofA) checking account holders nationwide who incurred more than one out-of-network (OON) balance inquiry fee at FCTI, Inc.-owned ATMs in 7-Eleven stores between May 1, 2018, and November 16, 2021.
The Court previously certified the class under Rule 23.
Defendant BofA moved for reconsideration, arguing errors regarding the effect of prior settlements and class member adequacy.
The earlier-accepted Weiss settlement in state court (against FCTI, not BofA) is a focus regarding alleged overlap and double recovery.
Plaintiffs' adequacy to represent the class and scope of overlapping or duplicative claims against BofA and FCTI are at issue.
The Court grants in part (redefining the class) and denies in part (upholds much of prior certification), now excluding those who recovered through the Weiss settlement from the class.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Effect of FCTI Settlement	Plaintiff’s settlement with FCTI did not moot claim or affect her adequacy; did not recover the claimed OON fee.	Settlement with FCTI made Plaintiff inadequate as she failed to recoup damages.	Plaintiff’s adequacy not affected by unaccepted or non-monetary settlement.
Overlap/Duplication with Weiss	Weiss settlement was for different remedies, defendants, and did not bar BofA claims.	Weiss provided full recovery for same injury; class is duplicative.	Class redefined to exclude those compensated via Weiss.
Failure to Mitigate/Notice	No duty to claim in Weiss as notice did not adequately advise forfeiting BofA claims.	All class members had notice and duty to claim; must show why they didn’t.	Adequacy of notice and mitigation defense is a common, class-wide fact issue; not a bar to class treatment.
Superiority and Adequacy	This action needed for uncompensated members; Weiss did not release BofA.	Action is unnecessary/duplicative and imposes extra cost.	Weiss expressly preserved claims against BofA; class action remains superior.

Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (unaccepted settlement offers do not moot class claims)
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (affirmative defenses and predominance in class actions)
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (modification of class definition post-certification)
Blackie v. Barrack, 524 F.2d 891 (individualized damages do not defeat class certification)
Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087 (damage calculations alone don't preclude class certification)