Al’s Pals Pet Care, LLC, et al. v. Woodforest National Bank, N.A., et al. Case No. 4:17-CV-3852 (S.D. Tex.)
According to the records of Defendants, you maintained an account with Merchants’ Choice at some point from December 22, 2013, through September 18, 2018.
The Court authorized the Notice, and this accompanying website, because you have a right to know about your rights under a proposed class action Settlement before the Court decides whether to approve the Settlement. If the Court approves the Settlement and after any objections and appeals are resolved, a Settlement Administrator appointed by the Court will make the cash payments that the Settlement allows.
The Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.
Click here to view a copy of the Notice.Back To Top
The case is known as Al’s Pals Pet Care, LLC, et al. v. Woodforest National Bank, N.A., et al., Case No. 4:17-CV-3852, and is pending in the United States District Court for the Southern District of Texas. The eight merchants who sued are called the “Plaintiffs,” and the companies they sued—Merchants’ Choice, Woodforest, and Paysafe—are the “Defendants.”
Plaintiffs contracted with Defendants to process payment card transactions. Plaintiffs claim that Merchants’ Choice and its agents caused merchants to unknowingly enroll in its payment card processing services by misrepresenting facts or omitting material information during their cold-calls to merchants. Plaintiffs also claim that Merchants’ Choice added certain unauthorized charges to their monthly invoices, specifically:
The lawsuit seeks to recover the amount that merchants were overcharged and other relief. Defendants deny that that they acted improperly and assert they have no legal liability. The Court has not yet decided whether Plaintiffs’ claims have merit.Back To Top
In a class action, one or more people or entities called “Class Representatives” sue on behalf of themselves and other people and entities with similar claims. All of these people and entities together are the “Class” or “Class Members.” One court resolves the issues for all Class Members, except for those who exclude themselves from the Class. A class action allows the claims of all class members to be more efficiently resolved than individual lawsuits and provides a remedy for Class Members whose individual damages are not large enough to justify their own lawsuit.Back To Top
The Court has not decided in favor of Plaintiffs or Defendants. Instead, both sides agreed to the Settlement. Settlements avoid the costs and uncertainty of a trial and related appeals, while providing benefits to the settlement class. The Class Representatives and the attorneys for the Settlement Class support the Settlement.Back To Top
You are a member of the Class and affected by the Settlement if:
If you exclude yourself from the Settlement, you are no longer part of the Settlement Class and will no longer be eligible to receive any of the Settlement benefits. This process of excluding yourself is also referred to as “opting out” of the Settlement.Back To Top
Defendants will pay $15,000,000.00 into a Settlement Fund to pay cash benefits to Class Members; the cost of notifying the Class and administering the Settlement; and, subject to the Court’s approval, the fees and expenses of the lawyers who represent the Class and Service Awards to the Class Representatives.
Class Members who maintained one or more payment card processing accounts with or through Defendants as of September 18, 2018, are considered “Current Customers.” If you are a Current Customer, you will automatically receive a payment via a credit on your statement, electronic funds transfer (where feasible), or check.
Class Members who are not Current Customers are considered “Former Customers.” Former Customers are eligible for a payment via check but must file a valid and timely Claim Form to get it.
After all claims of Former Customers have been received, the following amounts will be totaled: payments to be made to Current and Former Customers; the costs of Notice and administration; the amount the Court authorizes for attorneys’ fees and expenses for Class Counsel and Service Awards to the Class Representatives; and any Taxes paid from the Settlement Fund. If this total is less than $15 million but more than $11 million, the amount remaining in the Settlement Fund after all obligations are paid will be returned to Defendants. If the total is less than $11 million, Current Customers and Former Customers who file a valid and timely claim will share an additional payment of the difference between the total and $11 million. This additional payment may be made at the same time as the other cash payments described above.
Defendants will also amend their standard Merchant Payment Card Application – Terms & Conditions, or equivalent document, to reflect the following modifications:
Defendants will also undertake a comprehensive review of their telemarketing practices and, based on the results of this review, will establish a training and retraining program for their independent sales offices/agents. Such training and retraining programs will include, but not be limited to, instruction that independent sales offices/agents should not imply or insinuate to prospective merchants that they are affiliated with the merchant’s current payment processing service provider.Back To Top
Current Customers and Former Customers who file a valid and timely claim will receive a cash payment calculated in the same way. 35% of the “Net Settlement Fund” will be divided equally among all Class Members. The remaining 65% of the Net Settlement Fund will be divided as follows: 40% will be divided based upon a formula using the number of months each Class Member was a customer during the relevant period (capped at 36 months); and 25% percent will be divided based on the dollar volume of transactions processed by Defendants for each Class Member during the relevant period. “Net Settlement Fund” means the amount of the Settlement Fund after deducting costs of Notice and administration and the amount the Court authorizes for attorneys’ fees and expenses of Class Counsel (who are counsel representing the Class), Service Awards to the Class Representatives, and any Taxes paid from the Settlement Fund.
You can find out more detail about the formula by reading the Settlement Agreement and Exhibit 1 attached to it here. In addition, as described in FAQ 7, Current Customers and Former Customers who file a timely and valid claim may receive an additional amount depending on the number of Former Customers who file claims.
The approximate average amount of payments that will be made to each Class Member is between $65 and $70. Your payment may be less or greater than this average amount depending on the formulas described above and in the answer to FAQ 7. The actual amount of each Class Member’s payment will not be calculated until all the necessary information is available.Back To Top
Current Customers will automatically receive a payment in the form of a credit on their statement or via electronic funds transfer. If for some reason that is not possible, a check will be mailed. It is not necessary for Current Customers to file a claim.
Former Customers must validly complete and submit a simple Claim Form to qualify for a payment via check. The Claim Form asks Former Customers to attest that they are in the Class and to provide their current contact information. You can fill out the Claim Form online here. Alternatively, you can download a Claim Form here or have one mailed to you by calling the Settlement Administrator at 1-877-877-2385, and then complete and return the Claim Form to the Settlement Administrator by mail at P.O. Box 5110, Portland, OR 97208-5110. Former Customers must submit their claim online or mail it no later than March 4, 2019. Late claims will not be accepted.Back To Top
The Court will hold a hearing on January 30, 2019, to decide whether to approve the Settlement. If the Court approves the Settlement, there may be appeals, which could take more than a year to resolve. Cash payments to Class Members will be made after the Settlement is finally approved and any appeals or other required proceedings have been completed. You may visit this website for updates on the progress of the Settlement. Please be patient.Back To Top
Unless you exclude yourself from the Settlement, you cannot sue Defendants or be part of any other lawsuit against Defendants about the issues this Settlement resolves. You will also be bound by all of the Court’s decisions and the release contained in the Settlement. The specific claims you will be giving up against Defendants are described in Section XII of the Settlement Agreement. Read it carefully.
If you have any questions, you can talk to the lawyers representing the Class, who are called “Class Counsel.” Their names are listed in FAQ 15. You will not be charged to talk to Class Counsel. Or, you can, of course, talk to your own lawyer at your own expense if you have questions about what this means.
If you want to keep your rights to sue (or continue to sue) Defendants based on the claims this Settlement resolves, you must take steps to exclude yourself from the Settlement Class (see FAQs 12, 13, and 14).Back To Top
To exclude yourself from the Settlement, or “opt out,” you must send a letter by U.S. Mail that includes the following:
You must mail your letter, postmarked no later than January 2, 2019, to the following address:
Merchants’ Choice Settlement Administrator
P.O. Box 5110
Portland, OR 97208-5110
If you ask to be excluded, you will not get any benefits under this Settlement, and you cannot object to the Settlement. You will not be legally bound by anything that happens in the lawsuit. You may be able to sue (or continue to sue) Defendants in the future. You cannot both exclude yourself from the Settlement and object to the Settlement. If you seek to exclude yourself and object, you will be deemed to have excluded yourself.Back To Top
No. Unless you exclude yourself from the Settlement, you give up any right to sue Defendants for the claims that this Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that case immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, the exclusion deadline is January 2, 2019.Back To Top
No. If you are a Current Customer and exclude yourself, you will not receive a payment. If you are a Former Customer and exclude yourself, do not send in a Claim Form asking for a payment.Back To Top
Yes. The Court appointed to represent you and other members of the Settlement Class the following lawyers: Adam Webb and Matt Klase of Webb, Klase & Lemond, LLC, in Atlanta, Georgia; and Andrew Meade, John Neese, and Leann Pinkerton of Meade & Neese, LLP, in Houston, Texas. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.Back To Top
You will not be asked to pay any of the lawyers’ fees or expenses. The lawyers representing the Class, who have not yet received any payment for their time or the expenses they have incurred, intend to ask the Court to pay them up to one third of the Settlement Fund to compensate them for their time and the financial risk that they took when they agreed to represent the Plaintiffs on a contingent basis and agreed that they would get paid only if the lawsuit obtained a recovery. In addition, the lawyers intend to ask the Court to reimburse them for all of the expenses they have incurred, up to $75,000.00. The Court will determine the amount the lawyers will receive at the Final Approval Hearing on January 30, 2019. Defendants have agreed not to object to this request provided the Court authorizes fees of no more than one third of the Settlement Fund and expenses of no more than $75,000.00.Back To Top
The Settlement Class is represented by the eight merchants who brought the case:
In addition to the benefits the Class Representatives will receive as members of the Settlement Class, Class Counsel intend to ask the Court to pay Service Awards of up to $10,000.00 to each of the eight merchants to compensate them for the efforts and risk they took on behalf of the Class. Among those risks was the possibility they might have to pay Defendants’ attorneys’ fees and expenses as Defendants’ contracts purportedly required. Defendants have agreed not to oppose the request. The Service Awards approved by the Court will be paid from the Settlement Fund.
The Court will determine the amount of the Service Awards at the Final Approval Hearing on January 30, 2019.Back To Top
If you are a Settlement Class Member, you can object to the Settlement if you do not think it is fair, reasonable, or adequate. You can give reasons why you think the Court should not approve it. The Court will consider your views. If you object to the Settlement and seek to exclude yourself, you will be deemed to have excluded yourself, and your objection will not be considered.
To object, you must do so in writing and serve the objection on the Court, Class Counsel, and the lawyers for Defendants at the addresses set forth below. Your objection must include the following:
If you hire a lawyer to represent you in preparing a written objection or appearing at the Final Approval Hearing, your lawyer must provide additional information as specified in the Preliminary Approval Order.
File your objection electronically with the Court or mail the objection to these places, postmarked no later than January 2, 2019:
|Court||Settlement Class Counsel||Defense Counsel|
|David J. Bradley
Clerk of the Court
USDC, Southern District of Texas
P.O. Box 61010
Houston, TX 77208
|E. Adam Webb
Matthew C. Klase
WEBB, KLASE & LEMOND, LLC
1900 The Exchange, S.E.
Atlanta, GA 30339
Andrew K. Meade
D. John Neese, Jr.
MEADE & NEESE LLP
2118 Smith Street
Houston, TX 77002
PAUL HASTINGS LLP
875 15th Street, N.W.
Washington, D.C. 20005
William K. Whitner
PAUL HASTINGS LLP
1170 Peachtree Street, N.E.
Atlanta, GA 30309
Objecting is simply telling the Court that you don’t like something about the Settlement. You can object to the benefits provided by the Settlement or other terms of the Settlement only if you stay in the Settlement Class. Excluding yourself, or “opting out,” is telling the Court that you don’t want to be included in the Settlement. If you exclude yourself, you have no basis to object to the Settlement because the Settlement no longer affects you.Back To Top
The Court will hold a final approval hearing on January 30, 2019, at 9:00 a.m. in Courtroom 11A before the Honorable Kenneth Hoyt, United States District Court for the Southern District of Texas, 515 Rusk Avenue, Houston, Texas 77002. This hearing date and time may be moved. Please refer to this website, for notice of any changes.
At the Final Approval Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate; how much Class Counsel will receive for fees and expenses; whether to approve Service Awards to the Class Representatives; and any other appropriate matters. If there are objections, the Court also will consider them. The Court will listen to people at the hearing who file in advance a timely notice of their intention to appear (see FAQ 18). At or after the Final Approval Hearing, the Court will decide whether to approve the Settlement. There is no deadline by which the Court must make its decision.Back To Top
No. Class Counsel will answer questions the Court may have. You are welcome, however, to come at your own expense. If you submit a written objection, you do not have to come to court to talk about it. As long as you submitted your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary. If you or your own lawyer want to speak at the hearing, you must file a Notice of Intention to Appear and provide the other information required by the Preliminary Approval Order.Back To Top
If you are a Settlement Class Member and do nothing, you will remain a part of the Settlement Class and will not be able to sue Defendants about the claims being resolved through the Settlement. If you are a Current Customer, you will automatically receive the cash payment to which you are entitled. If you are a Former Customer, you will receive nothing unless you file a claim.Back To Top
This website summarizes the Settlement. More details are available in the Settlement Agreement itself. You can get a copy of the Settlement Agreement here. You may also get more information from the Settlement Administrator by writing to Merchants’ Choice Settlement Administrator, P.O. Box 5110, Portland, OR 97208-5110, or calling toll-free at 1-877-877-2385. The status updates of the Settlement will be posted on this website.
Please do not contact the Court with questions about the Settlement.Back To Top