UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SHANE SWIFT, on Behalf of 

Himself and All Others Similarly 

Situated, 

Plaintiff,

vs.

BANCORPSOUTH BANK,

Defendant.

Case No. 1:10-cv-00090-GRJ

 

ORDER OF FINAL APPROVAL OF CLASS SETTLEMENT, 

AUTHORIZING SERVICE AWARD, AND GRANTING APPLICATION

FOR ATTORNEYS’ FEES AND EXPENSES 

Pending before the Court is Plaintiff’s And Class Counsel’s Corrected 

Motion for Final Approval of Class Settlement, and Application for Service 

Award, Attorneys’ Fees and Expenses, and Incorporated Memorandum of 

Law (the “Motion”), seeking Final Approval of the Settlement Agreement 

and Release (“Agreement” or “Settlement”) with BancorpSouth Bank 

(“BancorpSouth”).1 [ECF No. 94]. Plaintiff and Class Counsel also filed 

declarations supplementing the record to enable the Court to evaluate the 

 1 This Order incorporates the definitions of terms used in the Agreement attached to the 

Motion [ECF No. 94-1].

Case 1:10-cv-00090-GRJ Document 102 Filed 07/15/16 Page 1 of 59
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fairness, reasonableness and adequacy of the Settlement, and the 

applications for Service Award and attorneys’ fees and expenses. [ECF 

Nos. 94-2, 94-3, 94-4, 94-5, 94-6, 100]. 

On July 14, 2016 the Court held a hearing pursuant to the Court’s 

Preliminary Approval Order dated March 8, 2014, the Magistrate Judge 

referral and Notice of Hearing dated June 13, 2016, the Notice, Consent, 

and Reference of a Civil Action to a Magistrate Judge dated June 20, 2016, 

and the Order dated June 20, 2016 referring this matter to the undersigned 

to conduct any and all proceedings in this Action, including entry of final 

judgment pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. [ECF 

Nos. 90, 96, 97, 98, 99]. The Court has reviewed all of the filings pertaining 

to the Settlement, other relevant portions of the record, and heard 

presentations on the Motion. The Motion is unopposed. Without admitting 

wrongdoing or liability for the claims vigorously litigated in the Action, 

BancorpSouth supports approval of the Settlement and does not oppose 

Class Counsel’s application for a Service Award, attorneys’ fees and 

expenses. No timely opposition or objections to the Motion from any 

members of the Settlement Class were filed and no objectors appeared at 

the hearing.

After careful consideration of the Motion and presentations at the 

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hearing, the undersigned finds and concludes that the Settlement provides 

a fair, reasonable and adequate recovery for Settlement Class Members, 

representing approximately fifty-seven percent (57%) of the maximum 

possible recoverable damages based on the creation of a $24,000,000

Settlement Fund, and therefore constitutes a satisfactory compromise of 

Settlement Class Members’ claims. In addition to the Settlement Fund, 

BancorpSouth agreed to pay up to $500,000 for fees and costs incurred in 

connection with the Notice Program and administration of the Settlement, 

further increasing the recovery under the Settlement. As the Court 

expressed at the hearing the Court finds that the Settlement is fair, 

reasonable and adequate, and constitutes an excellent result for the 

Settlement Class under the circumstances and challenges presented by 

the Action. The undersigned specifically finds and concludes that the 

Settlement fully complies with Fed. R. Civ. P. 23(e), and, thus, the Court 

grants Final Approval to the Settlement, finally certifies the Settlement 

Class, awards the requested Service Award to the representative Plaintiff, 

and awards attorneys’ fees and expenses to Class Counsel. Accordingly, 

the undersigned enters this Final Approval Order and the accompanying 

Final Judgment.

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BACKGROUND

 This consumer class action was commenced against BancorpSouth 

in 2010. Class Counsel and BancorpSouth’s counsel vigorously litigated 

the Action for more than five years up to the time of the Settlement. The 

Settlement is clearly the result of arm’s-length negotiations, and the 

undersigned so finds. 

The evidentiary record is more than adequate for the Court to 

consider the fairness, reasonableness and adequacy of the Settlement. A 

fundamental question is whether the Court has sufficient facts before it to 

evaluate and intelligently and knowledgeably approve or disapprove the 

settlement. In re General Tire & Rubber Co. Sec. Litig., 726 F.2d 1075, 

1084 n.6 (6th Cir. 1984) (citing Detroit v. Grinnell, 495 F.2d 448, 463-68 (2d 

Cir. 1974)). In this case, the Court has such facts before it in considering 

the Motion, including the evidence and opinions of Settlement Class 

Counsel and others [ECF Nos. 94-2, 94-3, 94-4, 94-5, 94-6]. 

1. Factual and Procedural Background of the Action.

On May 18, 2010, Plaintiff Shane Swift initiated this litigation against 

BancorpSouth in this Court (“Swift”), alleging improper assessment and 

collection of Overdraft Fees and seeking, inter alia, monetary damages, 

interest, attorneys’ fees, restitution, and equitable relief. Joint Declaration 

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of Bruce S. Rogow, Robert C. Gilbert, and Jeffrey M. Ostrow ¶ 9 (“Joint 

Decl.”) [ECF No. 94-2]. In October 2010, the Judicial Panel on Multidistrict 

Litigation (“JPML”) transferred Swift to the United States District Court for 

the Southern District of Florida, where it joined other actions coordinated 

under the MDL caption In Re: Checking Account Overdraft Litigation, Case 

No. 1:09-md-02036-JLK (“MDL 2036”). 

In December 2010, Plaintiff Swift filed a Second Amended Complaint, 

alleging unfair assessment and collection of Overdraft Fees and seeking 

monetary damages, restitution, interest, attorneys’ fees, and equitable relief 

from BancorpSouth. [S.D. Fla. DE #994]. BancorpSouth filed a Motion to 

Dismiss the Second Amended Complaint [S.D. Fla. ECF No.1068]. 

Following briefing and oral argument, the MDL 2036 Court denied 

BancorpSouth’s motion on March 21, 2011. [S.D. Fla. ECF No.1305], 

reported at In re Checking Account Overdraft Litig., No. 09-2036, 2011 U.S. 

Dist. LEXIS 30965 (S.D. Fla. Mar. 21, 2011).

In April 2011, BancorpSouth filed an Answer and Affirmative 

Defenses, to which Plaintiff responded with a motion to strike a number of 

BancorpSouth’s affirmative defenses as legally insufficient. [S.D. Fla. ECF 

No. 1335, 1390]. Prior to a ruling on that motion, the MDL 2036 Court 

approved the Parties’ stipulation, and BancorpSouth filed an Amended 

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Answer and Affirmative Defenses, denying any and all wrongdoing and 

liability whatsoever and asserting, inter alia, that its actions complied with 

all applicable laws and regulations, and raising various affirmative 

defenses. [S.D. Fla. ECF No. 1693]. Accordingly, the operative pleadings 

in Swift are Plaintiff’s Second Amended Complaint [S.D. Fla. ECF No. 994] 

and BancorpSouth’s Amended Answer and Affirmative Defenses [S.D. Fla. 

ECF No.1693].

Discovery commenced in May 2011. During the course of fact and 

expert discovery, Class Counsel conducted approximately fourteen 

depositions of BancorpSouth fact and expert witnesses, and BancorpSouth 

conducted five depositions of Plaintiff’s fact and expert witnesses. Joint 

Decl. ¶ 16. BancorpSouth also produced approximately 100,000 pages of 

documents, as well as voluminous electronic data files and spreadsheets 

produced in native format. Id. at ¶ 17.

In July 2011, Class Counsel and counsel for BancorpSouth (and 

certain other bank-defendants in MDL 2036) entered into a Stipulated 

Protective Order relating to the production of documents and information. 

[S.D. Fla. ECF No.1774]. Class Counsel and BancorpSouth also entered 

into a Stipulated Discovery Plan for Electronically Stored Information, which 

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the MDL 2036 Court adopted on October 11, 2011. [S.D. Fla. ECF No. 

1968].

In December 2011, Plaintiff filed a Motion for Class Certification. 

[S.D. Fla. ECF No. 2271]. In February 2012, BancorpSouth filed its 

Opposition to Plaintiff’s Motion for Class Certification [S.D. Fla. ECF No.

2446], and Plaintiff filed its Reply in Support of Motion for Class 

Certification in March 2012 [S.D. Fla. ECF No. 2576]. 

On May 4, 2012, the MDL 2036 Court entered an Opinion and Order 

Granting Class Certification. [S.D. Fla. ECF No. 2673]. BancorpSouth filed 

a Petition for Permission to Appeal the Order Granting Class Certification 

Pursuant to Federal Rule of Civil Procedure 23(f). See 11th Cir. Case No. 

12-90024-E. On February 13, 2013, following briefing, the Eleventh Circuit 

Court of Appeals denied the petition. [S.D. Fla. ECF No. 3294]. 

In February 2013, the MDL 2036 Court approved the implementation 

of the class notice plan to the certified class. [S.D. Fla. ECF Nos. 3242, 

3338, 3342]. Pursuant to that Order, notice was mailed to all members of 

the certified class for whom reasonably reliable mailing addresses were 

available; 238 class members timely exercised their right to opt out of the 

certified class. [S.D. Fla. ECF No. 3589]. 

Case 1:10-cv-00090-GRJ Document 102 Filed 07/15/16 Page 7 of 59
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In May 2013, BancorpSouth moved to decertify the class. [S.D. Fla. 

ECF No. 3455]. Following briefing, the MDL 2036 Court denied 

BancorpSouth’s motion to decertify. [S.D. Fla. ECF No. 3540]. 

BancorpSouth filed a second Petition for Permission to Appeal the Order 

Denying the Motion to Decertify Pursuant to Federal Rule of Civil 

Procedure 23(f), which the Eleventh Circuit Court of Appeals denied. See

11th Cir. Case No. 13-90019-E. 

Following class certification, the MDL 2036 Court directed the Parties 

to file all pretrial motions by certain deadlines. [S.D. Fla. ECF Nos. 2834, 

2891]. Pursuant to the operative Scheduling Order, the Parties filed a 

number of pretrial motions that were decided by the MDL 2036 Court 

following briefing and, in some instances, oral argument, including: 

Plaintiff’s Motion for Partial Summary Judgment was granted in part and 

denied in part [S.D. Fla. ECF Nos. 2997, 3035, 3116, 3655, 3682]; 

Plaintiff’s Motion in Limine to preclude BancorpSouth from offering certain

evidence at trial was granted [S.D. Fla. ECF Nos. 2996, 3258]; Plaintiff’s 

Motion to Strike two of BancorpSouth’s designated expert witnesses was 

denied [S.D. Fla. ECF Nos. 3014, 3229]; BancorpSouth’s Motion for 

Summary Judgment was denied in its entirety [S.D. Fla. ECF Nos. 2999, 

Case 1:10-cv-00090-GRJ Document 102 Filed 07/15/16 Page 8 of 59
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3682]; and BancorpSouth’s Motion to Strike two of Plaintiff’s designated 

expert witnesses was denied [S.D. Fla. ECF Nos. 3014, 3229]. 

Upon the conclusion of three years of extensive pretrial proceedings, 

the MDL 2036 Court entered a Suggestion of Remand. [S.D. Fla. ECF Nos. 

3683, 3707]. Thereafter, in December 2013, the JPML remanded the 

Action to this Court. [ECF Nos. 25, 26]. 

Following remand, BancorpSouth filed a Renewed Motion to Transfer 

Venue to the Eastern District of Arkansas, pursuant to 28 U.S.C. § 1404(a). 

[ECF Nos. 29, 33]. On June 4, 2014, following briefing and oral argument, 

this Court denied BancorpSouth’s Renewed Motion to Transfer Venue. 

[ECF No. 48]. 

On June 5, 2014, this Court entered an Order for Pre-Trial 

Conference and Setting Trial, which directed the Parties to file a series of 

memoranda and a Joint Pretrial Stipulation in advance of a Pretrial 

Conference scheduled for September 11, 2014. [ECF No. 49]. As required 

by that Order, the Parties filed a series of memoranda addressing various 

pretrial issues. [ECF Nos. 54, 55, 56, 57, 60, 61]. The Parties also filed a 

Joint Pretrial Stipulation, along with their respective witnesses and exhibit 

lists, proposed jury instructions and verdict forms, and proposed findings of 

fact and conclusions of law. [ECF Nos. 63, 64, 65, 66]. On September 11, 

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2014, this Court conducted a Pretrial Conference, during which it heard 

argument regarding various issues addressed in the Parties’ memoranda. 

[ECF No. 69]. 

On August 27, 2015, this Court entered an order denying 

BancorpSouth’s request for reconsideration of certain pretrial rulings 

decided by the MDL 2036 Court prior to remand. [ECF No. 77]. That order 

also directed the Parties to engage in another round of mediation prior to 

October 30, 2015. Id.

2. Settlement Negotiations and Proceedings.

In 2012, the Parties participated in their first mediation conference 

under the auspices of Professor Eric Green of Resolutions, LLC. The first 

mediation ended in an impasse, and the Parties continued their active 

litigation for three more years. Joint Decl. ¶ 31.

Pursuant to the Court’s August 2015 Order [ECF No. 77], on October 

28, 2015, Parties participated in their second mediation conference under 

the auspices of Jonathan B. Marks of MarksADR, LLC. Joint Decl. ¶ 32. 

Although an agreement to settle was not reached during that mediation 

conference, the Parties agreed that Mr. Marks would continue his 

mediation efforts thereafter. Throughout November and early December

2015, Mr. Marks conducted a series of mediation communications with both 

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sides in an effort to assist the Parties in reaching an agreement in principle. 

Id.

On December 4, 2015, as a result of the continued mediation efforts 

by Mr. Marks, the Parties reached an agreement in principle to resolve the 

Action. Joint Decl. ¶ 33. On January 5, 2016, following further negotiations 

and discussions, the Parties executed a Summary Agreement that 

memorialized their binding and enforceable agreement to settle the Action. 

Id. Further discussions and negotiations over the detailed terms and 

conditions to be included in the comprehensive Settlement Agreement and 

Release and related documents took place in January and February 2016. 

The Parties ultimately resolved all remaining issues and completed the 

detailed process of drafting the Settlement Agreement and Release and 

related documents, which was executed in February 2016. Id. 

On February 24, 2016, Plaintiff and Class Counsel filed their 

Unopposed Motion for Preliminary Approval of Class Settlement and for 

Certification of Settlement Class. [ECF No. 89]. On March 8, 2016, this 

Court entered the Order Preliminarily Approving Settlement and Certifying 

Settlement Class. [ECF No. 90]. The Preliminary Approval authorized and 

directed Notice to the Settlement Class, and established a series of 

deadlines preceding the Final Approval Hearing. Joint Decl. ¶ 34. 

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On May 12, 2016, Plaintiff and Class Counsel filed the Motion. [ECF 

No. 94]. Plaintiff and Class Counsel also filed declarations supplementing 

the record to enable the Court to evaluate the fairness, reasonableness 

and adequacy of the Settlement, the application for a Service Award, and 

the application for attorneys’ fees and expenses. [ECF Nos. 94-2, 94-3, 

94-4, 94-5, 94-6]. 

On June 23, 2016, Plaintiff and Class Counsel filed a Supplemental 

Declaration of Cameron R. Azari, the Notice Administrator, attesting that a 

total of 19 Settlement Class Members timely and properly excluded 

themselves from the Settlement (in addition to the 238 who previously 

excluded themselves from the certified class and were not included in the 

Settlement Class), and confirming that no timely objections to the 

Settlement were received. [ECF No. 100]. 

3. Summary of the Settlement Terms.

The terms of the Settlement are set forth in the Agreement. [ECF No. 

94-1]. A summary of the material terms of the settlement includes the 

following.

A. The Settlement Class.

The Settlement Class is an opt-out class under Rule 23(b)(3) of the 

Federal Rule of Civil Procedure. The Settlement Class is defined as:

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All Account Holders of a BancorpSouth Account who, during the 

Class Period applicable to the state in which the Account was 

opened, incurred one or more Overdraft Fees as a result of 

BancorpSouth’s High-to-Low Posting.2 Excluded from the Class 

are all current BancorpSouth officers and directors, and the judge 

presiding over this Action.

Agreement ¶ 64.3

B. Monetary Relief for the Benefit of the Class.

The Settlement required BancorpSouth to deposit $24,000,000.00

into the Escrow Account following entry of the Preliminary Approval Order. 

Agreement ¶ 87. The Bank deposited that sum, creating the Settlement 

Fund. Joint Decl. ¶ 35. 

The Settlement Fund will be used to: (i) pay all Automatic 

Distributions of payments to the Settlement Class; (ii) pay all Court-ordered 

awards of attorneys’ fees, costs and expenses of Class Counsel; (iii) pay 

 2 The Settlement Class consists solely of the 190,953 identifiable current and former 

BancorpSouth Account Holders identified based on the analysis set forth in the Expert 

Report of Arthur Olsen dated November 8, 2012, as supplemented by the Supplemental 

Expert Report of Arthur Olsen dated August 28, 2014, excluding the 238 class members 

who previously exercised their right to opt out of the certified class. [S.D. Fla. ECF No. 

3589].

3 “Class Period” means: (a) for Settlement Class Members who opened accounts in 

Louisiana, the period from May 18, 2003 through August 13, 2010; (b) for Settlement 

Class Members who opened accounts in Alabama or Tennessee, the period from May 

18, 2004 through August 13, 2010; (c) for Settlement Class Members who opened 

accounts in Arkansas, the period from May 18, 2005 through August 13, 2010; (d) for 

Settlement Class Members who opened accounts in Florida or Texas, the period from 

May 18, 2006 through August 13, 2010; and (e) for Settlement Class Members who 

opened accounts in Mississippi or Missouri, the period from May 18, 2007 through August 

13, 2010. Agreement ¶ 32.

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the Court-ordered Service Award to the Plaintiff; (iv) distribute any residual 

funds as set forth in paragraph 104 of the Agreement; (v) pay all Taxes 

pursuant to paragraph 89 of the Agreement; (vi) pay any costs of the Notice 

Administrator and Settlement Administration exceeding the $500,000 to be 

paid by BancorpSouth pursuant to paragraph 67 of the Agreement; and (vii) 

pay any additional fees, costs and expenses not specifically enumerated in 

paragraph 90 of the Agreement, subject to approval of Settlement Class 

Counsel and BancorpSouth. Agreement ¶ 90. In addition to the 

Settlement Fund, BancorpSouth deposited $500,000 into the Escrow 

Account to pay for costs and fees of the Settlement Administrator and 

Notice Administrator incurred in connection with the administration of the 

Notice Program and Settlement administration, for which it is responsible 

under the Settlement. Id. at ¶ 67.

All identifiable Settlement Class Members who experienced a 

Differential Overdraft Fee will receive pro rata distributions from the Net 

Settlement Fund, provided they did not opt-out of the Settlement.4 

 4 The Net Settlement Fund is equal to the Settlement Fund, plus interest earned (if any), 

less the amount of Court-awarded attorneys’ fees and costs to Class Counsel, the amount 

of Court-awarded Service Award to the Plaintiff, a reservation of a reasonable amount of 

funds for prospective costs of Settlement administration that are not BancorpSouth’s 

responsibility pursuant to paragraph 67 of the Agreement, and any other costs and/or 

expenses incurred in connection with the Settlement that are not specifically enumerated 

in paragraph 67 that are provided for in the Agreement and are approved by Settlement 

Class Counsel and BancorpSouth. Agreement ¶ 96.

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Agreement Section XII. The Differential Overdraft Fee analysis 

determined, among other things, which BancorpSouth Account holders 

were assessed additional Overdraft Fees that would not have been 

assessed if the Bank had used a chronological posting sequence or 

method for posting Debit Card Transactions instead of High-to-Low 

Posting, and how much in additional Overdraft Fees those Account holders 

paid as a result. The calculation involved a multi-step process that is 

described in detail in the Agreement. Id. at ¶ 93.

Eligible Settlement Class Members do not have to submit claims or 

take any other affirmative step to receive relief under the Settlement. The 

amount of their Differential Overdraft Fees was determined by Class 

Counsel’s expert through a detailed analysis of BancorpSouth’s electronic 

data. Agreement Section XI. As soon as practicable after Final Approval, 

but no later than 60 days from the Effective Date (Agreement ¶ 95), the 

Settlement Administrator will calculate and distribute the Net Settlement 

Fund, on a pro rata basis, to all Settlement Class Members who had a 

Differential Overdraft Fee and did not timely opt-out of the previously 

certified class or the Settlement. Agreement Section XII.

Payments to Settlement Class Members who are Current Account 

Holders will be made by crediting their Accounts, and notifying them of the 

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credit. Agreement ¶ 100. BancorpSouth will be entitled to a 

reimbursement for such credits from the Net Settlement Fund. Id. at ¶ 101. 

Past Account Holders (and any Current Account Holders whose Accounts 

cannot feasibly be automatically credited) will receive their payments by 

checks mailed by the Settlement Administrator. Id. at ¶ 102.

Any uncashed or returned checks will remain in the Settlement Fund 

for one year from the date the first distribution check is mailed, during 

which time the Settlement Administrator will make reasonable efforts to 

effectuate delivery of the Settlement Fund Payments. Agreement ¶ 103. 

Any residual funds remaining in the Settlement Fund one year after the first 

Settlement Fund Payments are mailed will be distributed pursuant to 

Section XIII of the Agreement. Id. at ¶ 104. 

C. Class Release.

In exchange for the benefits conferred by the Settlement, all 

Settlement Class Members who have not opted-out (and Releasing Parties 

as defined in the Settlement Agreement) will be deemed to have released 

BancorpSouth from claims related to the subject matter of the Action. The 

detailed release language is found in Section XIV of the Agreement. 

Agreement ¶¶ 105-107. This Order does not modify the scope of Section 

XIV of the Settlement.

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DISCUSSION

Federal courts have long recognized a strong policy and presumption 

in favor of class action settlements. The Rule 23(e) analysis should be 

“informed by the strong judicial policy favoring settlement as well as by the 

realization that compromise is the essence of settlement.” Bennett v. 

Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). In evaluating a 

proposed class action settlement, the Court “will not substitute its business 

judgment for that of the parties; ‘the only question . . . is whether the 

settlement, taken as a whole, is so unfair on its face as to preclude judicial 

approval.’” Rankin v. Rots, 2006 WL 1876538, at *3 (E.D. Mich. June 27,

2006) (quoting Zerkle v. Cleveland-Cliffs Iron Co., 52 F.R.D. 151, 159 

(S.D.N.Y. 1971)). “Settlement agreements are highly favored in the law 

and will be upheld whenever possible because they are a means of 

amicably resolving doubts and uncertainties and preventing lawsuits.” In re 

Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1105 (5th Cir. 1977). 

As explained below, the undersigned finds and concludes that the 

Settlement here is more than sufficient under Rule 23(e). It includes a 

Settlement Fund of $24,000,000, plus BancorpSouth’s payment of 

$500,000 of the fees and costs of the Notice Program and Settlement 

administration. Agreement ¶¶ 66, 67, 87. All Settlement Class Members 

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who experienced a Differential Overdraft Fee and did not timely opt-out will 

automatically receive their pro rata share of the Net Settlement Fund as a 

matter of course, without needing to take any action, based on an analysis 

of BancorpSouth’s data by Class Counsel’s expert. Id. at ¶ 95. 

1. The Court’s Exercise of Jurisdiction Is Proper.

In addition to having personal jurisdiction over the Plaintiff and the 

certified class, who are parties to the Action, the Court has personal 

jurisdiction over all members of the Settlement Class because they 

received the requisite notice and due process. See Phillips Petroleum Co. 

v. Shutts, 472 U.S. 797, 811-12 (1985) (citing Mullane v. Cent. Hanover 

Bank & Trust Co., 339 U.S. 306, 314-15 (1950)); see also In re Prudential 

Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 306 (3d Cir. 1998). 

The Court has subject matter jurisdiction over the Action pursuant to 28 

U.S.C. §§ 1332(d)(2) and (6).

a. The Best Notice Practicable Was Provided to the 

Settlement Class.

Pursuant to the Agreement (Section VIII) and the Preliminary 

Approval Order [ECF No. 90], Notice of the Settlement was provided to 

apprise the Settlement Class of the pendency of the Action, the terms of 

the Settlement, Class Counsel’s application for an award of attorneys’ fees 

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and expenses, and request for Service Award, and their rights to opt-out of 

or object to the Settlement. Specifically, Notice of the Settlement in the 

forms approved by the Court was mailed to 190,541 members of the 

Settlement Class. See Declaration of Cameron Azari ¶¶ 14-28 (“Azari 

Decl.”) [ECF No. 94-4]. Notice of the Settlement was also published in 

sixteen (16) of the highest daily circulation newspapers and/or newspapers 

that were more likely to be read by Settlement Class Members in the 

geographic markets where BancorpSouth maintained branches during the 

Class Period. Id. at ¶¶ 21-25. In addition, a special Settlement Website 

and toll-free telephone number were established to enable Settlement 

Class Members to obtain detailed information about the Action and the 

Settlement. Id. at ¶¶ 26-28. 

b. The Notice Was Reasonably Calculated to Inform 

Settlement Class Members of Their Rights.

The Court-approved Notice5 satisfied due process requirements 

because it described “the substantive claims . . . [and] contained 

information reasonably necessary to make a decision to remain a class 

member and be bound by the final judgment.” In re Nissan Motor Corp. 

Antitrust Litig., 552 F.2d at 1104-05. The Notice, among other things, 

 5

 See Preliminary Approval Order at ¶ 12. [ECF No. 90].

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defined the Settlement Class; described the release provided to 

BancorpSouth under the Settlement, as well as the amount, manner of 

allocating, and proposed distribution of the Settlement proceeds; and 

informed Settlement Class Members of their right to opt-out or object, the 

procedures for doing so, and the time and place of the Final Approval 

Hearing. Azari Decl. ¶¶ 8-39 and Attachments 2-5. Further, the Notice 

stated that Class Counsel intended to apply for attorneys’ fees of up to 

thirty-five percent (35%) of the $24,000,000 Settlement Fund. In addition to 

disclosing these material terms, the Notice informed Settlement Class 

Members that a class judgment would bind them unless they timely 

excluded themselves, and advised them where they could get more 

information – for example, at the Settlement Website that posts a copy of 

the fully executed Agreement, as well as other important court documents 

such as the Motion.

The Motion and attachments contain Settlement Class Counsel’s 

considered opinion that the $24,000,000 Settlement Fund represents 

approximately fifty-seven percent (57%) of $42,295,560.69, which, 

according to an analysis of BancorpSouth’s data by Class Counsel’s 

expert, represents the maximum damages that Plaintiff and the Settlement 

Class could recover at trial. Joint Decl. ¶¶ 50-63, 68. The undersigned 

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finds that the disclosure of this percentage was sufficient to put Settlement 

Class Members on notice of their potential recovery based on their 

personal history with BancorpSouth and to allow them to make an informed 

decision about whether to accept the Settlement, object to the Settlement, 

or exclude themselves from the Settlement.

Based on the foregoing, the undersigned finds that the Settlement 

Class Members were provided with the best practicable notice; the notice 

was “reasonably calculated, under [the] circumstances, to apprise 

interested parties of the pendency of the action and afford them an 

opportunity to present their objections.” Shutts, 472 U.S. at 812 (quoting 

Mullane, 339 U.S. at 314-15). This Settlement with BancorpSouth was 

widely publicized, and any Settlement Class Member who wished to 

express comments or objections had ample opportunity and means to do 

so. Azari Decl. ¶¶ 8-10, 30-39.

2. The Settlement Is Fair, Adequate and Reasonable, And Final 

Approval Is Warranted Under Rule 23.

In determining whether to approve the Settlement, the Court 

considers whether it is “fair, adequate, reasonable, and not the product of 

collusion.” Leverso v. SouthTrust Bank of Al., N.A., 18 F.3d 1527, 1530 

(11th Cir. 1994); see also Bennett, 737 F.2d at 986. A settlement is fair, 

reasonable and adequate when “the interests of the class as a whole are 

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better served if the litigation is resolved by the settlement rather than 

pursued.” In re Lorazepam & Clorazepate Antitrust Litig., MDL No. 1290, 

2003 WL 22037741, at *2 (D.D.C. June 16, 2003) (quoting Manual for 

Complex Litigation (Third) § 30.42 (1995)). The Court is “not called upon to 

determine whether the settlement reached by the parties is the best 

possible deal, nor whether class members will receive as much from a 

settlement as they might have recovered from victory at trial.” In re Mexico 

Money Transfer Litig., 164 F. Supp. 2d 1002, 1014 (N.D. Ill. 2000) (citations 

omitted). 

The Eleventh Circuit has identified six factors to be considered in 

analyzing the fairness, reasonableness and adequacy of a class action 

settlement under Rule 23(e):

(1) the existence of fraud or collusion behind the settlement;

(2) the complexity, expense, and likely duration of the litigation;

(3) the stage of the proceedings and the amount of discovery 

completed;

(4) the probability of the plaintiffs’ success on the merits;

(5) the range of possible recovery; and

(6) the opinions of the class counsel, class representatives, and the 

substance and amount of opposition to the settlement.

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Leverso, 18 F.3d at 1530 n.6; Bennett, 737 F.2d at 986. 

a. There Was No Fraud or Collusion.

The undersigned readily finds that there was no fraud or collusion 

behind this Settlement. See, e.g., Saccoccio v. JPMorgan Chase Bank, 

N.A., 297 F.R.D. 683, 692 (S.D. Fla. 2014) (citing Ass’n for Disabled Ams., 

Inc. v. Amoco Oil Co., 211 F.R.D. 457, 470 (S.D. Fla. 2002); In re Sunbeam 

Sec. Litig., 176 F. Supp. 2d 1323, 1329 n.3 (S.D. Fla. 2001); Ingram v. 

Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001) (court had “no doubt 

that this case has been adversarial, featuring a high level of contention 

between the parties”); In re Motorsports Merchandise Antitrust Litig., 112 F. 

Supp. 2d 1329, 1338 (N.D. Ga. 2000) (“This was not a quick settlement, 

and there is no suggestion of collusion.”); Warren v. City of Tampa, 693 F. 

Supp. 1051, 1055 (M.D. Fla. 1988) (record showed no evidence of 

collusion, but to the contrary showed “that the parties conducted discovery 

and negotiated the terms of settlement for an extended period of time”), 

aff’d, 893 F.2d 347 (11th Cir. 1989).

The record demonstrates that the Settlement was negotiated at arm’s 

length, and there is no suggestion of fraud or collusion. The Parties 

vigorously litigated the Action for approximately five years. The first 

mediation conference, held in 2012 shortly after the MDL 2036 Court 

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granted class certification, ended in an impasse. Following that impasse, 

the Parties resumed active litigation for several more years. In August 

2015, this Court ordered the Parties to mediate again prior to setting a firm 

trial date. The second mediation conference, overseen by an experienced 

mediator, did not produce immediate results. Instead, the mediator’s 

shuttle diplomacy continued for two months until the Parties reached an 

agreement in principle to resolve the Action. The mediator’s protracted 

involvement in the settlement negotiation process weighs heavily in favor of 

approval. See, e.g., In re WorldCom, Inc. ERISA Litig., No. 02 Civ. 4816, 

2004 WL 2338151, at *6 (S.D.N.Y. Oct. 18, 2004) (fact that ‘[a] respected 

and dedicated judicial officer presided over the lengthy discussions from 

which this settlement emerged” belied any suggestion of collusion). 

b. The Settlement Will Avert Additional Years of Highly 

Complex Litigation.

This case involves approximately 190,000 Settlement Class 

Members. Azari Decl. ¶¶ 14-17 [DE # 94-4]; Declaration of Arthur Olsen ¶ 

36 (“Olsen Decl.”) [N.D. Fla. DE # 94-5]. The claims and defenses are 

complex. Joint Decl. ¶¶ 58-64; Declaration of Professor Brian T. Fitzpatrick 

¶ 18 (“Fitzpatrick Decl.”) [ECF No. 94-3]. Litigating them has been difficult 

and time consuming. Id. Although this litigation has been pending for over 

five years, recovery by any means other than settlement would require 

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additional years of litigation in this Court and appellate courts. See United 

States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 856 (2d Cir. 1998) 

(noting that “a principal function of a trial judge is to foster an atmosphere 

of open discussion among the parties’ attorneys and representatives so 

that litigation may be settled promptly and fairly so as to avoid the 

uncertainty, expense and delay inherent in a trial.”); In re Domestic Air 

Transp. Antitrust Litig., 148 F.R.D. 297 at 317, 325-26 & n.32 (N.D. Ga. 

1993) (“adjudication of the claims of two million claimants could last half a 

millennium”).

The undersigned finds that the Settlement provides immediate and 

substantial benefits to approximately 190,000 Settlement Class Members, 

all of whom are current or former BancorpSouth customers. Joint Decl. ¶¶ 

63-64; see In re Shell Oil Refinery, 155 F.R.D. 552, 560 (E.D. La. 1993) 

(“The Court should consider the vagaries of litigation and compare the 

significance of immediate recovery by way of the compromise to the mere 

possibility of relief in the future, after protracted and expensive litigation.”) 

(quoting Oppenlander v. Standard Oil Co., 64 F.R.D. 597, 624 (D. Colo. 

1974)); see also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 

1992) (noting that complex litigation “can occupy a court’s docket for years 

on end, depleting the resources of the parties and taxpayers while 

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rendering meaningful relief increasingly elusive”); In re Oil Spill by Oil Rig 

Deepwater Horizon in Gulf of Mex., on April 20, 2010, 910 F. Supp. 2d 891, 

932 (E.D. La. 2012) aff’d 2014 WL 103836 (5th Cir. 2014) (“Even assuming 

litigation could obtain the results that this Settlement provides, years of 

litigation would stand between the class and any such recovery. Hence, 

this . . . factor weighs strongly in favor of granting final approval to the 

Settlement Agreement.”). Particularly because the “demand for time on the 

existing judicial system must be evaluated in determining the 

reasonableness of the settlement,” Ressler v. Jacobson, 822 F. Supp. 

1551, 1554 (M.D. Fla. 1992) (citation omitted), there can be no reasonable 

doubt as to the adequacy of this Settlement. 

The undersigned finds that the amount of the recovery is extremely 

reasonable in light of the risks faced by Plaintiff and the certified class. 

Joint Decl. ¶¶ 58-67; Fitzpatrick Decl. ¶¶ 13-15. The Settlement Fund of 

$24,000,000 represents approximately fifty-seven percent (57%) of the 

maximum possible damages that Settlement Class Counsel believe could 

have been recovered if the Action were successful in all respects. Joint 

Decl. ¶ 68. The undersigned finds that recovery of approximately fiftyseven percent (57%) of the maximum possible damages Plaintiff and the 

certified class may have recovered at trial constitutes an extremely fair 

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settlement. The combined risks here were real – and potentially 

catastrophic for the Settlement Class. Fitzpatrick Decl. ¶¶ 13-15.

c. The Factual Record is Sufficiently Developed to Enable 

Settlement Class Counsel to Make a Reasoned 

Judgment Concerning the Settlement.

The Court considers “the degree of case development that class 

counsel have accomplished prior to settlement” to ensure that “counsel had 

an adequate appreciation of the merits of the case before negotiating.” In re 

General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 

768, 813 (3d Cir. 1995). At the same time, “[t]he law is clear that early 

settlements are to be encouraged, and accordingly, only some reasonable 

amount of discovery should be required to make these determinations.” 

Ressler, 822 F. Supp. at 1555.

Following the completion of discovery and the Court’s rulings on 

pretrial motions, Settlement Class Counsel negotiated the Settlement with 

the benefit of significant litigation before the MDL 2036 Court, the Eleventh 

Circuit and, ultimately, this Court, including a complete damage analysis by 

Class Counsel’s expert based on customer data produced by 

BancorpSouth. Joint Decl. ¶¶ 65, 68; Olsen Decl. ¶¶ 21-33. The 

undersigned finds that Settlement Class Counsel’s analysis and 

understanding of the remaining legal obstacles, as well as the damage 

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analysis, positioned them to evaluate with confidence the strengths and 

weaknesses of Plaintiff’s and the certified class’ claims and 

BancorpSouth’s defenses through the conclusion of the litigation, as well as 

the range and amount of damages that were potentially recoverable if the 

Action successfully proceeded to judgment on a class-wide basis. Joint 

Decl. ¶ 65; Fitzpatrick Decl. ¶¶ 12-14. “Information obtained from other 

cases may be used to assist in evaluating the merits of a proposed 

settlement of a different case.” Lipuma, 406 F. Supp. 2d at 1325.

d. Plaintiff and the Certified Class Still Faced Significant 

Obstacles to Obtaining Relief.

The Court also considers “the likelihood and extent of any recovery 

from the defendants absent . . . settlement.” In re Domestic Air Transp., 

148 F.R.D. at 314; see also Ressler, 822 F. Supp. at 1555 (“A Court is to 

consider the likelihood of the plaintiff’s success on the merits of his claims 

against the amount and form of relief offered in the settlement before 

judging the fairness of the compromise.”). According to Professor 

Fitzpatrick: “[I]t was not at all clear that the class here would have won its 

case on the merits.” Fitzpatrick Decl. ¶ 13. BancorpSouth’s defenses that 

the relevant Account agreements expressly authorized it to engage in Highto-Low Posting, that there was nothing wrong with the High-to-Low Posting 

process it used and that it complied, at all times, with applicable laws and

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regulations and the terms of the Account agreements with its customers 

presented serious legal issues that made ultimate success far from certain. 

Id. at ¶¶ 13-14.

In negotiating the Settlement, Settlement Class Counsel were mindful 

that BancorpSouth advanced significant defenses that would have been 

required to overcome at trial and on appeal. Joint Decl. ¶¶ 66-67; 

Fitzpatrick Decl. ¶¶ 13-14. This Action involved several major litigation 

risks. Id. As the MDL 2036 Court recognized in granting final approval to 

the settlement of overdraft claims against Bank of America: “The combined 

risks here were real and potentially catastrophic . . . [B]ut for the 

Settlement, Plaintiffs and the class faced a multitude of potentially serious, 

substantive defenses, any one of which could have precluded or drastically 

reduced the prospects of recovery.” In re Checking Account Overdraft 

Litig., 830 F. Supp. 2d 1330, 1347-48 (S.D. Fla. 2011). 

Apart from the risks, the undersigned finds that continued litigation 

would have involved further delay and expense, which further counsels in 

favor of Final Approval. Joint Decl. ¶¶ 59, 67; Fitzpatrick Decl. ¶ 15. The 

uncertainties and delays from this process would have been significant. Id. 

Given the myriad risks attendant to these claims, as well as the 

certainty of further delay and expense from continued litigation, the 

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undersigned finds that the Settlement cannot be viewed as anything except 

an extremely fair compromise. See, e.g., Haynes v. Shoney's, No. 89-

30093-RV, 1993 U.S. Dist. LEXIS 749, at *16-17 (N.D. Fla. Jan. 25, 1993)

(“The risks for all parties should this case go to trial would be substantial. 

.... It is possible that trial on the merits would result in ... no relief for the 

class members. ... Based on ... the factual and legal obstacles facing both 

sides should this matter continue to trial, I am convinced that the settlement

... is a fair and reasonable compromise.”); Bennett v. Behring Corp., 96 

F.R.D. 343, 349-50 (S.D. Fla. 1982), aff’d, 737 F.2d 982 (11th Cir. 1984) 

(plaintiffs faced a “myriad of factual and legal problems” creating “great 

uncertainty as to the fact and amount of damage,” making it “unwise [for 

plaintiffs] to risk the substantial benefits which the settlement confers . . . to 

the vagaries of a trial”).

e. The Benefits Provided by the Settlement Are Fair, 

Adequate and Reasonable When Compared to the 

Range of Possible Recovery.

In determining whether a settlement is fair given the potential range 

of recovery, the Court should be guided by “the fact that a proposed 

settlement amounts to only a fraction of the potential recovery does not 

mean the settlement is unfair or inadequate.” Behrens v. Wometco Enters., 

Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988), aff’d, 899 F.2d 21 (11th Cir. 

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1990). Indeed, “[a] settlement can be satisfying even if it amounts to a 

hundredth or even a thousandth of a single percent of the potential 

recovery.” Id. “[T]he court must remember that "compromise is the 

essence of settlement. A just result is often no more than an arbitrary point 

between competing notions of reasonableness.” Raines v. Florida, 987 F. 

Supp. 1416, 1418 (N.D. Fla. 1997) (citing Bennett, 737 F.2d at 986) 

(internal annotations omitted). This is because fairness of a settlement 

must be evaluated in light of “the likelihood of success on the merits, the 

complexity, expense, and duration of litigation, the judgment and 

experience of trial counsel, and objections raised to the settlement.” Id. 

Courts regularly find settlements to be fair and adequate based, in part, on 

the risks and delays associated with further litigation. See, e.g., Torres v. 

Bank of Am. (In re Checking Account Overdraft Litig.), 830 F. Supp. 2d 

1330, 1346 (S.D. Fla. 2011) (recovery of between 9% and 45% was 

“exemplary result”); Great Neck Capital Appreciation Investment P’ship, 

L.P. v. PriceWaterHouseCoopers, L.L.P., 212 F.R.D. 400, 409-10 (E.D. 

Wis. 2002) (“The mere possibility that the class might receive more if the 

case were fully litigated is not a good reason for disapproving the 

settlement.”). 

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The undersigned finds that Settlement Class Counsel were wellpositioned to evaluate the strengths and weaknesses of Plaintiff’s and the 

certified class’s claims, as well as the appropriate basis upon which to 

settle them, as a result of their litigation and settlement of similar claims 

reached within and outside of MDL 2036. Joint Decl. ¶¶ 54-56. Settlement 

Class Counsel also gained further insight into the practical and legal issues 

they would have continued to face litigating these claims against 

BancorpSouth based, in part, on similar claims challenging Wells Fargo’s 

high-to-low posting practices prosecuted in Gutierrez v. Wells Fargo Bank, 

N.A., 730 F. Supp. 2d 1080 (N.D. Cal. 2010). Joint Decl. ¶ 57. Following a 

non-jury trial in Gutierrez, the United States Court of Appeals for the Ninth 

Circuit affirmed in part and reversed in part the judgment rendered in favor 

of the certified class of California customers in that case, vacated the $203 

million restitution award, and remanded the case for further proceedings. 

Gutierrez v Wells Fargo Bank, N.A., 704 F.3d 712 (9th Cir. 2012). On 

remand, the district court reinstated the judgment in favor of the class 

based on provisions of the California consumer fraud statute – a claim not 

available here since BancorpSouth did not operate branches in California. 

Gutierrez v. Wells Fargo Bank, 944 F. Supp. 2d 819 (N.D. Cal. 2013). In 

2014, in an unpublished opinion, the Ninth Circuit affirmed the reinstated 

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judgment. Gutierrez v. Wells Fargo Bank, 589 Fed. Appx. 824 (9th Cir. 

Cal. 2014). The United States Supreme Court recently denied review. 

Wells Fargo Bank, N.A. v. Gutierrez, 136 S. Ct. 1512 (2016).

Class Counsel’s damage expert’s analysis of BancorpSouth’s 

available transactional data showed that the maximum amount of damages 

that Plaintiff and the certified class could reasonably have anticipated 

recovering at trial was $42,295,560.69 under the litigation class periods for 

the eight (8) states where BancorpSouth operated branches during the 

applicable class periods. Olsen Decl. ¶ 33. Through this Settlement, 

Plaintiff and the Settlement Class Members achieved a recovery of 

approximately fifty-seven percent (57%) of the maximum possible 

damages, without further risks or delays. Joint Decl. ¶¶ 50-63, 68. When 

one considers the up to $500,000 in Notice Administration and Settlement 

Administration costs that BancorpSouth is required to pay pursuant to the 

Settlement, the actual recovery is fifty-eight percent (58%) of the maximum 

possible damages. Joint Decl. ¶¶ 62, 68; Fitzpatrick Decl. ¶ 12. 

The undersigned finds that this Settlement provides an extremely fair 

and reasonable recovery to the Settlement Class in light of BancorpSouth’s 

defenses, as well as the challenging, unpredictable path of litigation that 

Plaintiff and the certified class would otherwise have continued to face in 

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this Court and appellate courts. Joint Decl. ¶ 63; Fitzpatrick Decl. ¶¶ 13-14. 

The Automatic Distribution process further supports Final Approval. Joint 

Decl. ¶ 70. Eligible Settlement Class Members will receive their cash 

benefits automatically, without needing to fill out any claim forms or take 

any affirmative steps whatsoever. Id.; Fitzpatrick Decl. ¶ 17.

The undersigned further finds that the $24,000,000 cash recovery is 

fair and reasonable given the obstacles confronted and the complexity of 

the Action, and the significant barriers that stood between the presettlement status of the Action and final judgment, including rulings at trial 

and in an inevitable post-judgment plenary appeal. Joint Decl. ¶¶ 63, 69; 

Fitzpatrick Decl. ¶¶ 12-14. Taking these risks into account, the Settlement 

“is not only fair, adequate and reasonable, but, frankly very impressive as 

well.” Fitzpatrick Decl. ¶ 19. BancorpSouth’s agreement to pay up to 

$500,000 of the fees, costs and expenses of the Notice Administrator and 

Settlement Administrator further enhances the recovery. Joint Decl. ¶ 68; 

Fitzpatrick Decl. ¶ 8. Given the extraordinary obstacles that Plaintiff and 

the certified class still confronted in the litigation, the undersigned finds that 

this recovery is an excellent achievement by any objective measure, and 

provides Settlement Class Members with far more than a small fraction of 

what they might recover if successful at trial and following appeal.

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f. The Opinions of Settlement Class Counsel, Class 

Representative, and Absent Settlement Class 

Members Strongly Favor Approval of the Settlement.

The Court gives “great weight to the recommendations of counsel for 

the parties, given their considerable experience in this type of litigation.” 

Warren, 693 F. Supp. at 1060; see also Mashburn, 684 F. Supp. at 669 (“If 

plaintiffs’ counsel did not believe these factors all pointed substantially in 

favor of this settlement as presently structured, this Court is certain that 

they would not have signed their names to the settlement agreement.”); In 

re Domestic Air Transp., 148 F.R.D. at 312-13 (“In determining whether to 

approve a proposed settlement, the Court is entitled to rely upon the 

judgment of the parties’ experienced counsel. The trial judge, absent fraud, 

collusion, or the like, should be hesitant to substitute its own judgment for 

that of counsel.” (internal annotations omitted)). 

Settlement Class Counsel have expressed the view that this 

Settlement is deserving of Final Approval, and the undersigned agrees. 

Joint Decl. ¶¶ 71-74. Furthermore, the undersigned finds it notworthy that, 

of the more than 190,000 Settlement Class Members, only 19 requests for 

exclusion from the Settlement were timely submitted, and no objections 

were timely filed. Lipuma v. American Express Co., 406 F. Supp. 2d 1298, 

1324 (S.D. Fla. 2005) (finding that a low percentage of objections “points to 

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the reasonableness of a proposed settlement and supports its approval”). 

3. The Settlement Class.

The MDL 2036 Court previously found the requirements of Rule 23(a) 

and 23(b)(3) satisfied in this Action [S.D. Fla. ECF Nos. 2673, 3540], and in 

a number of similar actions in MDL 2036 on contested motions for class 

certification [see, e.g., S.D. Fla. ECF No.1763 (Union Bank); S.D. Fla. ECF 

No. 2615 (TD Bank); S.D. Fla. ECF No. 2697 (PNC Bank); and S.D. Fla. 

ECF No. 2847 (Capital One)]; and in the context of settlement [see, e.g., 

S.D. Fla. ECF Nos. 1520, 2150 (Bank of America); S.D. Fla. ECF Nos.

2712, 3134 (JPMorgan Chase Bank); S.D. Fla. ECF Nos. 2959, 3331 

(Citizens Financial); and S.D. Fla. ECF No. 3559 (U.S. Bank)]. With 

respect to the Settlement Class, the undersigned agrees with the MDL 

2036 Court’s findings that: (a) the class members are so numerous that 

joinder of them is impracticable; (b) there are questions of law and fact 

common to the class that predominate over any individual questions; (c) 

the claims of the representative Plaintiff are typical of the claims of the 

class; (d) the representative Plaintiff and Class Counsel fairly and 

adequately represent and protect the interests of class members; and (e) a 

class action is superior to other available methods for the fair and efficient 

adjudication of the present controversy. 

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The 257 individuals listed on Exhibit A attached to the Final Judgment 

to be entered in the Action timely and otherwise properly excluded 

themselves from the certified class and the Settlement Class.6 The 

undersigned therefore finds that they are not part of the Settlement Class, 

are not bound by the terms of the Settlement generally or the release 

contained therein specifically, and will not receive any distribution from the 

Settlement Fund. 

4. The Application for Service Award to the Class 

Representative Is Approved.

Service awards “‘compensate named plaintiffs for the services they 

provided and the risks they incurred during the course of the class action 

litigation.’” Torres v. Bank of Am. (In re Checking Account Overdraft Litig.), 

830 F. Supp. 2d 1330, 1357 (S.D. Fla. 2011) (citing Allapattah Services, 

Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006)). 

“‘[T]here is ample precedent for awarding incentive compensation to class 

representatives at the conclusion of a successful class action.’” Id. Courts 

have consistently found service awards to be an efficient and productive 

way to encourage members of a class to become class representatives. 

 6 The 257 individuals identified on Exhibit A to the Final Judgment consist of (i) 19

individuals who timely excluded themselves from the Settlement Class, and (ii) 238 

individuals who previously excluded themselves from the certified class [S.D. Fla. ECF 

No. 3589] and who, pursuant to the Settlement and Preliminary Approval Order, were not 

deemed part of the Settlement Class [Agreement ¶ 64; ECF No. 90].

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See, e.g., Ingram, 200 F.R.D. at 694 (awarding class representatives 

$300,000 each, explaining that “the magnitude of the relief the Class 

Representatives obtained on behalf of the class warrants a substantial 

incentive award.”); Spicer v. Chi. Bd. Options Exchange, Inc., 844 F. Supp. 

1226, 1267-68 (N.D. Ill. 1993) (collecting cases approving service awards 

ranging from $5,000 to $100,000, and awarding $10,000 to each named 

plaintiff). The factors for determining a service award include: (1) the 

actions the class representatives took to protect the interests of the class; 

(2) the degree to which the class benefited from those actions; and (3) the 

amount of time and effort the class representatives expended in pursuing 

the litigation. See, e.g., Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 

1998). 

Based on the record, the undersigned finds that Plaintiff/class 

representative Shane Swift expended substantial time and effort in 

representing the Settlement Class, and deserves to be compensated for 

such time and effort. Joint Decl. ¶ 78. Therefore, the Court approves the 

requested Service Award of $10,000 for Plaintiff Shane Swift, to be paid 

from the Settlement Fund.

5. Class Counsel’s Application for Attorneys’ Fees Is Granted.

Class Counsel request attorneys’ fee equal to thirty-five percent 

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(35%) of the $24,000,000 Settlement Fund created through their efforts in 

litigating this case and reaching the Settlement. In analyzing Class 

Counsel’s fee request the Court must consider the factors utilized in

Camden I Condo. Ass’n. v. Dunkle, 946 F.2d 768 (11th Cir. 1991). As 

discussed below, after considering the Camden I factors, the undersigned 

finds and concludes that Class Counsel’s application is well justified and, 

accordingly, the Court will award Class Counsel attorneys’ fees equal to 

thirty-five percent (35%) of the $24,000,000 Settlement Fund.

a. The Law Awards Class Counsel Fees from the 

Common Fund Created Through Their Efforts.

It is well established that when a representative party recovers a 

common fund for the benefit of a class, counsel is entitled to attorneys’ fees 

based upon the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S. 472, 

478 (1980); Camden I, 946 F.2d at 774. The common benefit doctrine 

stems from the premise that those who receive the benefit of a lawsuit 

without contributing to its costs are “unjustly enriched” at the expense of the 

successful litigant. Van Gemert, 444 U.S. at 478. As a result, the Supreme 

Court, the Eleventh Circuit, and courts in this Circuit have all recognized 

that “[a] litigant or a lawyer who recovers a common fund for the benefit of 

persons other than himself or his client is entitled to a reasonable attorney’s 

fee from the fund as whole.” Sunbeam, 176 F. Supp. 2d at 1333 (citing 

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Van Gemert, 444 U.S. at 478); see also Camden I, 946 F.2d at 771 

(“Attorneys in a class action in which a common fund is created are entitled 

to compensation for their services from the common fund, but the amount 

is subject to court approval.”).

In the Eleventh Circuit, class counsel are awarded a percentage of 

the total fund generated through a class action settlement. Waters v. Int’l 

Precious Metals Corp., 190 F. 3d 1291, 1295-96 (11th Cir. 1999) (affirming 

fee award of 33-1/3% of total amount made available to class, and 

determining that fees may be determined based on total fund, not just 

actual payout to class). As the Eleventh Circuit held, “the percentage of the 

fund approach [as opposed to the lodestar approach] is the better reasoned 

in a common fund case. Henceforth in this circuit, attorneys’ fees awarded 

from a common fund shall be based upon a reasonable percentage of the 

fund established for the benefit of the class.” Camden I, 946 F.2d at 774.

This Court has discretion in determining the appropriate fee 

percentage awarded to counsel. “There is no hard and fast rule mandating 

a certain percentage of a common fund which may be awarded as a fee 

because the amount of any fee must be determined upon the facts of each 

case.” In re Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I, 946 

F.2d at 774). For example, in Waters, the Eleventh Circuit affirmed a 33-

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1/3% fee award where the District Court first determined that the 

benchmark should be 30% and then adjusted the fee award higher based 

on the circumstances of the case. Waters, 190 F. 3d at 1295-96. 

Based on the findings below, the undersigned finds and concludes 

that Class Counsel should be awarded attorneys’ fees equal to thirty-five 

percent (35%) of the $24,000,000 Settlement Fund secured through their 

efforts. The undersigned finds that Class Counsel undertook an incredibly 

risky and undesirable case and, through their diligence, perseverance, and 

skill, achieved an outstanding result for the settlement class. Fitzpatrick 

Decl. ¶¶ 23-25; Declaration of John A. DeVault, III (“DeVault Decl.”) ¶ 30 

[N.D. Fla. DE # 94-6]. They are to be commended and should be 

compensated accordingly. The undersigned is of the view that this kind of 

initiative and skill must be adequately compensated to insure that counsel 

of this caliber is willing to undertake these kinds of risky but important 

cases in the future. See Muehler v. Land O’Lakes, Inc., 617 F. Supp. 1370, 

1375-76 (D. Minn. 1985).

b. As Applied Here, the Camden I Factors Demonstrate 

the Requested Fee Is Reasonable and Justified.

The Eleventh Circuit’s factors for evaluating the reasonable 

percentage to award class-action counsel are:

(1) the time and labor required;

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(2) the novelty and difficulty of the questions involved;

(3) the skill requisite to perform the legal service properly;

(4) the preclusion of other employment by the attorney due to 

acceptance of the case;

(5) the customary fee;

(6) whether the fee is fixed or contingent;

(7) time limitations imposed by the client or the circumstances;

(8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the attorneys;

(10) the “undesirability” of the case;

(11) the nature and the length of the professional relationship with the 

client; and

(12) awards in similar cases.

Camden I, 946 F.2d at 772 n.3 (citing factors originally set forth in Johnson 

v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

These twelve factors are guidelines; they are not exclusive. “Other 

pertinent factors are the time required to reach a settlement, whether there 

are any substantial objections by class members or other parties to the 

settlement terms or the fees requested by counsel, any non-monetary 

benefits conferred upon the class by the settlement, and the economics 

involved in prosecuting a class action.” Sunbeam, 176 F. Supp. 2d at 1333 

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(quoting Camden I, 946 F.2d at 775). In addition, the Eleventh Circuit has 

“encouraged the lower courts to consider additional factors unique to the 

particular case.” Camden I, 946 F.2d at 775.

i. The Claims Against BancorpSouth Required 

Substantial Time and Labor.

In Camden I, the Eleventh Circuit made clear that percentage of the 

fund is the exclusive method for awarding fees in common fund class 

actions.7 Camden I, 946 F.2d at 774. Even before Camden I, courts in this 

Circuit recognized that “a percentage of the gross recovery is the only 

sensible method of awarding fees in common fund cases.” Mashburn, 684 

F. Supp. at 690. 

In view of the prevailing law in this Circuit, the history of this litigation 

and the excellent results obtained through this Settlement, it is 

unnecessary to consider or discuss Class Counsel’s lodestar. In Camden 

I, the Eleventh Circuit criticized lodestar and the inefficiencies that it 

creates. 946 F.2d at 773-75. In so doing, the Court concluded that “the 

percentage of the fund approach is the better reasoned [approach] in 

common fund cases” particularly because “in common fund cases in which 

 7 Eleventh Circuit attorneys’ fee law governs this request. See Allapattah, 454 F. Supp. 

2d at 1200 (“The district court presiding over a diversity-based class action pursuant to 

Fed. R. Civ. P. 23 has equitable power to apply federal common law in determining fee 

awards irrespective of state law.”).

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the measure of the recovery is the best determinant of the reasonableness 

and quality of the time expended.” Id. at 773-74; see also Alba Conte, 

Attorney Fee Awards § 2.7, at 91 fn. 41 (“The Eleventh . . . Circuit[] 

repudiated the use of the lodestar method in common-fund cases”). Under 

Camden I, courts in this Circuit regularly award fees based on a percentage 

of the recovery, without discussing lodestar at all. See, e.g., Torres, 830 F. 

Supp. 2d at 1358 (“when a representative party has conferred a substantial 

benefit upon a class, counsel is entitled to an allowance of attorneys’ fees 

based upon the benefit obtained”); Harris v. Associated Bank, N.A. (In re 

Checking Account Overdraft Litig.), No. 09-MD-02036-JLK, 2013 U.S. Dist. 

LEXIS 190560, at *35 (S.D. Fla. Aug. 2, 2013) (same); Mosser v. TD Bank, 

N.A. (In re Checking Account Overdraft Litig.), No. 09-MD-02036-JLK, 2013 

U.S. Dist. LEXIS 187627, at *92 (S.D. Fla. March 18, 2013) (same); David 

v. American Suzuki Motor Corp., 2010 WL 1628362 (S.D. Fla. Apr. 15, 

2010); Stahl v. MasTec, Inc., 2008 WL 2267469 (M.D. Fla. May 20, 2008). 

“[A] common fund is itself the measure of success and represents the 

benchmark on which a reasonable fee will be awarded. . . . In this context, 

the monetary results achieved predominate over all other criteria.” 

Camden I, 946 F.2d at 774 (citations and alterations omitted). 

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Based on a review of the extensive record in this Action, as well as 

the declarations submitted in support of the Motion [ECF Nos. 94-2, 94-3, 

94-6], the undersigned finds that prosecuting and settling these claims 

demanded considerable time and labor. Joint Decl. ¶ 82; Fitzpatrick Decl. 

¶ 26; DeVault Decl. ¶ 19. Throughout the pendency of the Action, Class 

Counsel ensured that they were engaged in organized, coordinated, and 

productive work to maximize efficiency and minimize duplication of effort. 

Joint Decl. ¶ 82. Class Counsel devoted substantial time to investigating 

the claims of potential plaintiffs against BancorpSouth. Id. at ¶ 83. Class 

Counsel interviewed numerous BancorpSouth customers and potential 

plaintiffs to gather information about BancorpSouth’s conduct, at the time 

the lawsuit was filed and in the past, to determine the effect that its conduct 

had on consumers. Id. This information was essential to Class Counsel’s 

ability to understand the nature of BancorpSouth’s conduct, the language of 

the Account agreements at issue, and potential remedies. Id. Class 

Counsel also expended significant resources researching and developing 

the legal claims at issue. Id. at ¶ 84. 

Class Counsel expended significant resources researching and 

developing the legal theories and arguments presented in the pleadings 

and motions, and in opposition to BancorpSouth’s motions, before the MDL 

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2036 Court, the Eleventh Circuit and, ultimately following remand, before 

this Court. Joint Decl. ¶ 84. Substantial time and resources were also 

dedicated to conducting discovery. Id. at ¶ 85. Class Counsel took 

approximately fourteen depositions of BancorpSouth’s fact and expert 

witnesses, and devoted substantial time to reviewing over 100,000 pages 

of documents and voluminous electronic data produced by BancorpSouth. 

Id. Class Counsel also served and responded to written discovery. Id.

Settlement negotiations consumed further time and resources. Joint 

Decl. ¶ 86. The initial mediation session held in 2012 required substantial 

preparation. In October 2015, at this Court’s direction, Settlement Class 

Counsel and BancorpSouth participated in a second mediation conference 

that also required substantial preparation. Substantial time and effort was 

devoted to the continued settlement negotiations following the second 

mediation session that ultimately resulted in the Parties’ agreement. 

Finally, significant time was devoted to the drafting of the Agreement and 

the Settlement approval process. All of this work consumed a substantial 

amount of time. As Settlement Class Counsel also pointed out during the 

July 14, 2016 hearing, their work does not end upon the granting of Final 

Approval. Additional work will be required of Settlement Class Counsel 

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over the next year in connection with the post-approval implementation of 

the Settlement. 

The undersigned finds that Class Counsel’s coordinated work 

ultimately paid dividends for the Settlement Class. Each of the abovedescribed efforts was essential to achieving the Settlement before the 

Court. Joint Decl. ¶ 87. The time and resources Class Counsel devoted to 

prosecuting and settling this Action justify the fee that they now request. 

As Professor Fitzpatrick notes, this particular case was litigated longer than 

any other settlement reached to date in MDL 2036 (more than 6 years), 

well beyond the average time to resolve a consumer class action. 

Fitzpatrick Decl. ¶ 26. The Parties completed everything but the trial itself; 

all pretrial discovery and motion practice was completed. Id. “For all these 

reasons, ... the 35% fee award requested here is well within the range of 

reason.” See Fitzpatrick Decl. ¶ 32. This is the same conclusion 

expressed by John DeVault, a past President of The Florida Bar who is well 

known to this Court. See DeVault Decl. ¶ 19. 

ii. The Issues Involved Were Novel and Difficult 

and Required the Skill of Highly Talented 

Attorneys.

The undersigned finds that Class Counsel accomplished outstanding 

results for the Settlement Class in the face of substantial risks. Fitzpatrick 

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Decl. ¶ 23; see Walco, 975 F. Supp. at 1472 (explaining that “[g]iven the 

quality of defense counsel from prominent national law firms, the Court is 

not confident that attorneys of lesser aptitude could have achieved similar 

results”); see also Camden I, 946 F.2d at 772 n.3 (in assessing the quality 

of representation by class counsel, Court also should consider the quality 

of their opposing counsel.); Johnson, 488 F.2d at 718; Ressler, 149 F.R.D. 

at 654. 

Class Counsel’s skills and abilities played a direct result in the 

outcome achieved through this Settlement. “[P]rosecution and 

management of a complex national class action requires unique legal skills 

and abilities.” Edmonds v. U.S., 658 F. Supp. 1126, 1137 (D.S.C. 1987). 

“Without doubt, they had the skill needed to perform the services required 

in this complex class action . . . This talented team of lawyers 

accomplished outstanding results for the settlement class in the face of 

substantial risks. Had they not had the requisite skill to perform the 

necessary services, it is highly doubtful the class could have achieved the 

results obtained in this case. In short, these are not mere “benchmark” 

lawyers.”” See Fitzpatrick Decl. ¶ 25. The fact that this level of legal talent 

was available to the Settlement Class is another compelling reason in 

support of the fee request. The Settlement Class received the benefit of 

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impressive legal services provided by Class Counsel throughout the 

litigation and, ultimately, in achieving the Settlement in this Action. Under 

the facts of this Action, the undersigned finds that Class Counsel’s efforts 

support approval of the requested fee. 

iii. The Claims Against BancorpSouth Entailed 

Considerable Risk.

The undersigned finds that the Settlement is particularly noteworthy 

given the combined litigation risks. Joint Decl. ¶¶ 93-94; Fitzpatrick Decl. ¶ 

27; DeVault Decl. ¶ 20-21. BancorpSouth raised substantial defenses. 

Success under these circumstances represents a genuine milestone. 

“A court’s consideration of this factor recognizes that counsel should 

be rewarded for taking on a case from which other law firms shrunk. Such 

aversion could be due to any number of things, including social opprobrium 

surrounding the parties, thorny factual circumstances, or the possible 

financial outcome of a case. All of this and more is enveloped by the term 

‘undesirable.’” In re Sunbeam, 176 F. Supp. 2d at 1336. In addition, “[t]he 

point at which plaintiffs settle with defendants . . . is simply not relevant to 

determining the risks incurred by their counsel in agreeing to represent 

them.” Skelton v. General Motor Corp., 860 F.2d 250, 258 (7th Cir. 1988), 

cert. denied, 493 U.S. 810 (1989). “Undesirability” and relevant risks must 

be evaluated from the standpoint of plaintiffs’ counsel as of the time they 

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commenced the suit, not retroactively, with the benefit of hindsight. Lindy 

Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 

F.2d 102, 112 (3d Cir. 1976); Walco, 975 F. Supp. at 1473.

The undersigned finds that prosecuting the Action was risky from the 

outset. Joint Decl. ¶ 93; Fitzpatrick Decl. ¶ 13. “Although Judge King [of 

the MDL 2036 Court] rejected [BancorpSouth’s state law] defenses as a 

matter of law, other courts have [accepted such defenses], and it is not at 

all clear how an appellate court would ultimately rule on these issues. 

Moreover, it is not at all clear how a jury would have seen these defenses 

as a matter of fact had this case proceeded to trial.” See Fitzpatrick Decl. ¶ 

13. While the undersigned expresses no opinion on the ultimate merits of 

these arguments, the critical point for present purposes is that, heading into 

this case, Class Counsel confronted these issues without any assurances 

as to how the Court would rule. Class Counsel nonetheless accepted the 

case and the risks that accompanied it. Given the positive societal benefits 

to be gained from attorneys’ willingness to undertake this kind of difficult 

and risky, yet important, work, such decisions must be properly 

incentivized. Therefore, the undersigned finds and concludes that the 

proper incentive here is a thirty-five percent (35%) fee based on the 

$24,000,000 Settlement Fund. 

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iv. Class Counsel Assumed Substantial Risk to 

Pursue the Action on a Pure Contingency Basis, 

and Were Precluded From Other Employment as 

a Result.

The undersigned finds that Class Counsel assumed a significant risk 

of nonpayment or underpayment in undertaking to prosecute this complex 

case entirely on a contingent fee basis. Joint Decl. ¶ 95; Fitzpatrick Decl. ¶ 

27; DeVault Decl. ¶ 24. Numerous cases recognize such a risk as an 

important factor in determining a fee award. “A contingency fee 

arrangement often justifies an increase in the award of attorney’s fees.” In 

re Sunbeam, 176 F. Supp. 2d at 1335 (quoting Behrens, 118 F.R.D. at 548, 

aff’d, 899 F.2d 21 (11th Cir. 1990)); see also In re Continental Ill. Sec. 

Litig., 962 F.2d 566 (7th Cir. 1992) (holding that when a common fund case 

has been prosecuted on a contingent basis, plaintiffs’ counsel must be 

compensated adequately for the risk of non-payment); Ressler, 149 F.R.D. 

at 656; Walters v. Atlanta, 652 F. Supp. 755, 759 (N.D. Ga. 1985), 

modified, 803 F.2d 1135 (11th Cir. 1986); York v. Alabama State Bd. of 

Education, 631 F. Supp. 78, 86 (M.D. Ala. 1986). 

Public policy concerns – in particular, ensuring the continued 

availability of experienced and capable counsel to represent classes of 

injured plaintiffs holding small individual claims – support the requested fee 

here:

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Generally, the contingency retainment must be promoted to 

assure representation when a person could not otherwise afford 

the services of a lawyer. . . . A contingency fee arrangement 

often justifies an increase in the award of attorney’s fees. This 

rule helps assure that the contingency fee arrangement 

endures. If this “bonus” methodology did not exist, very few 

lawyers could take on the representation of a class client given 

the investment of substantial time, effort, and money, especially 

in light of the risks of recovering nothing.

Behrens, 118 F.R.D. at 548. 

The risks undertaken by Class Counsel have already been 

discussed. It is uncontroverted that the time spent by Class Counsel on the 

Action was time that could not be spent on other matters. Joint Decl. ¶ 97. 

Consequently, this factor supports the requested fee.

v. Class Counsel Achieved an Excellent Result.

The undersigned finds that this Settlement represents an excellent 

result. Fitzpatrick Decl. ¶ 27; DeVault Decl. ¶¶ 21, 26. The common fund 

created by this Settlement is $24,000,000, representing approximately 57% 

of the maximum possible damages that may have been recovered at trial, 

assuming Plaintiff and the certified class were successful in establishing 

liability at trial, the jury awarded the full amount of damages based on 

Class Counsel’s expert’s methodology, and the judgment was ultimately 

affirmed on appeal. Rather than facing more years of uncertain litigation, 

all Settlement Class Members will receive an immediate cash benefit. Joint 

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Decl. ¶ 92. The Settlement Fund will not be reduced by the substantial 

fees and costs of Notice or Settlement administration; up to $500,000 of 

such fees and expenses have been and will be borne by BancorpSouth. 

Id. Moreover, payments to Settlement Class Members will be forthcoming 

automatically, through direct deposit for current Account Holders and 

checks for former Account Holders. Id.

vi. The Requested Fee Comports with Fees Awarded 

in Similar Cases.

The undersigned finds that the percentage fee sought here is within 

the range of fees typically awarded in similar cases. Joint Decl. ¶ 98; 

Fitzpatrick Decl. ¶¶ 23-25; DeVault Decl. ¶ 23 (“[T]he request of thirty-five 

percent (35%) being made by Class Counsel is within the range of 

customary fees for similar work in our community.”). Numerous decisions 

within and outside of the Eleventh Circuit have found that a 35% fee is 

within the range of reasonableness under the Camden I factors. Fitzpatrick 

Decl. ¶ 23-25. Similarly, numerous district courts have awarded attorneys’ 

fees in excess of thirty percent. See Allapattah Servs., Inc. v. Exxon Corp., 

454 F. Supp. 2d 1185, 1210 (S.D. Fla. 2006) (emphasis added) (awarding 

fees equaling 311⁄3% of mega fund); In re Lease Oil Antitrust Litig., 186 

F.R.D. 403 (S.D. Tex. 1999) (35.1%)); see also Gaskill v. Gordon, 942 F. 

Supp. 382, 387-88 (N.D. Ill. 1996), aff’d, 160 F.3d 361 (7th Cir. 1998) 

Case 1:10-cv-00090-GRJ Document 102 Filed 07/15/16 Page 53 of 59
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(finding that 33% is the norm, and awarding 38% of settlement fund); In re 

Combustion, Inc., 968 F. Supp. 1116 (W.D. La. 1997) (36%); In re Crazy 

Eddie Sec. Litig., 824 F. Supp. 320, 326 (E.D.N.Y. 1993) (33.8 %); In re 

Ampicillin Antitrust Litig., 526 F. Supp. 494, 498 (D.D.C. 1981) (45%); 

Beech Cinema, Inc. v. Twentieth-Century Fox Film Corp., 480 F. Supp. 

1195, 1199 (S.D.N.Y. 1979), aff’d, 622 F.2d 1106 (2d Cir. 1980) 

(approximately 53%); Zinman v. Avemco Corp., 1978 WL 5686 (E.D. Pa. 

Jan. 18, 1978) (Higginbotham, J.) (50%). 

The undersigned finds that a fee equal to thirty-five percent (35%) of 

the $24,000,000 Settlement Fund is appropriate here and comports with 

fee awards in similar cases. Fitzpatrick Decl. ¶¶ 23-25; DeVault Decl. ¶ 23. 

Professor Fitzpatrick distilled several major empirical studies of attorneys’ 

fees, including his own, awarded in connection with class action 

settlements. Fitzpatrick Decl. ¶ 23. He concluded that the empirical data 

from those studies supports the reasonableness of a 35% fee award in this 

case. Fitzpatrick Decl. ¶¶ 23-25; see also Devault Decl. ¶ 23.

Class Counsel’s fee request also falls within the range of awards in 

other cases within this Circuit, including settlements of related cases 

approved by the MDL 2036 Court. Fitzpatrick Decl. ¶¶ 23-25; DeVault 

Decl. ¶¶ 9, 23, 29 (“Based on my experience as a long-time practitioner in 

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Florida, I believe Class Counsel’s fee request of thirty-five percent (35%) of 

the twenty-four million dollar ($24,000,000) common fund in this case is 

consistent with other fee awards in MDL No. 2036 and in other cases in 

Florida.”); see also, e.g., Waters, 190 F.3d 1291 (11th Cir. 1999) (affirming 

fee award of 331⁄3% on settlement of $40 million even though most of the 

fund ultimately reverted to the defendant); Gutter v. E.I. Dupont De 

Nemours & Co., 95-2152-CIV-Gold (S.D. Fla. May 30, 2003) (331⁄3% of 

$77.5 million settlement); Sands Point Partners, LP v. Pediatrix Med. 

Group, Inc., 2002 U.S. Dist. LEXIS 25721 (S.D. Fla. 2002) (30% of $12 

million settlement); In re CHS Elecs., Inc. Sec. Litig., 99-8186-CIV-Gold 

(S.D. Fla. 2002) (30% on settlement of over $11 million); Ehrenreich v. 

Sensormatic Elecs. Corp., 95-6637-CIV-Zloch (S.D. Fla. 1998) (30% on 

settlement of over $44 million); Tapken v. Brown, 90-0691-CIV-Marcus 

(S.D. Fla. 1995) (33% of $10 million settlement).8

 8 See also In re Friedman’s, Inc. Sec. Litig., 2009 WL 1456698 (N.D. Ga. May 22, 2009) 

(30%); Francisco v. Numismatic Guar. Corp. of Am., 2008 WL 649124 (S.D. Fla. 2008) 

(30%); Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334 (S.D. Fla. 2007) (30%); 

In re BellSouth Corp. Sec. Litig., Civil Action No. 1:02-cv-2142-WSD (N.D. Ga. Apr. 9, 

2007) (30%); In re Cryolife, Inc. Sec. Litig., Civil Action No. 1:02-cv-1868-BBM (N.D. Ga. 

Nov. 9, 2005) (30%); In re Profit Recovery Group Int’l, Inc. Sec. Litig., Civil Action No. 

1:00-cv-1416-CC (N.D. Ga. May 26, 2005) (331⁄3% plus interest and expenses); In re 

Clarus Corp. Sec. Litig., Civil Action No. 1:00-CV-2841-CAP (N.D. Ga. Jan. 6, 2005) 

(331⁄3%); In re Pediatric Servs. of Am., Inc. Sec. Litig., Civil Action No. 1:99-CV-0670-RLV 

(N.D. Ga. Mar. 15, 2002) (331⁄3%); Ressler v. Jacobson, 149 F.R.D. 651 (M.D. Fla. 1992) 

(30%).

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Based on the foregoing, the undersigned finds that the risks of this 

litigation, considered against the excellent result, support and justify a 

thirty-five percent (35%) fee. 

vii. The Remaining Camden I Factors Also Favor 

Approval of Class Counsel’s Fee Request.

The undersigned finds that the remaining Camden I factors further 

support Class Counsel’s fee request. Fitzpatrick Decl. ¶ 28; DeVault Decl. 

¶ 21. The burdens of this litigation and the relatively size of most of the 

firms representing Plaintiff and the certified class lend support to the fee 

awarded. This fee is firmly rooted in “the economics involved in 

prosecuting a class action.” In re Sunbeam, 176 F. Supp. 2d at 1333. The 

undersigned is convinced that proper incentives must be maintained to 

insure that attorneys of this caliber are available to take on cases of 

significant public importance like this one. The factual record in this case 

further supports Class Counsel’s requested fee.

6. Class Counsel’s Application for Reimbursement of 

Litigation Costs and Expenses Is Approved. 

Finally, the undersigned finds that Class Counsel’s request for 

reimbursement of $338,605.49, representing certain out-of-pocket costs 

and expenses Class Counsel incurred during the prosecution and 

settlement of the Action against BancorpSouth is reasonable and justified. 

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Joint Decl. ¶ 100. These costs and expenses consist of: (1) $289,320.22 in 

fees and expenses incurred for three experts, including Arthur Olsen, 

whose services were critical in identifying members of the certified class 

and in determining their damages, and in reconfirming the identification of 

Settlement Class Members and the amount of their damages for purposes 

of the Settlement; (2) $30,361.17 in court reporter fees and transcripts 

associated with depositions and hearings in the Action; and (3) $18,924.10 

in mediators’ fees and expenses incurred for the services rendered by the 

two mediators, Professor Eric Green and Mr. Jonathan Marks. Id. These 

costs and expenses, advanced by Class Counsel for the benefit of the 

Settlement Class, were necessarily incurred in furtherance of the litigation 

of the Action and the Settlement. Joint Decl. ¶ 100; see Mills v. Electric 

Auto-Lite Co., 396 U.S. 375, 391-92 (1970). Therefore, the Court approves 

Class Counsel’s request for reimbursement of costs and expenses in the 

amount of $338,605.49, which shall be made from the Settlement Fund 

following disbursement of attorneys’ fees.

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CONCLUSION

For the foregoing reasons, the Court: (1) grants Final Approval to the 

Settlement; (2) appoints Plaintiff Shane Swift as Class Representative for 

this Settlement; (3) appoints as Class Counsel and Settlement Class 

Counsel the law firms and attorneys listed in paragraphs 31 and 59 of the 

Agreement, respectively; (4) awards a Service Award to Plaintiff Shane 

Swift in the amount of $10,000; (5) awards Class Counsel attorneys’ fees 

equal to thirty-five percent (35%) of the $24,000,000 Settlement Fund, plus 

reimbursement of litigation costs and expenses in the amount of 

$338,605.49; (6) directs Settlement Class Counsel, Plaintiff, and 

BancorpSouth to implement and consummate the Settlement pursuant to 

its terms and conditions; (7) retains continuing jurisdiction over Plaintiff, the 

Settlement Class, and BancorpSouth to implement, administer, 

consummate and enforce the Settlement and this Final Approval Order; (8) 

bars and enjoins all Releasing Parties from asserting any of the Released 

Claims and bars and enjoins all Releasing Parties from pursuing any 

Released Claims against BancorpSouth (as provided in paragraphs 30 and 

105 of the Agreement) at any time, including during any appeal from the 

Final Approval Order, and retains jurisdiction over the enforcement of these 

injunctions; and (9) will separately enter Final Judgment dismissing the 

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Action with prejudice. 

DONE AND ORDERED at Gainesville, Florida, this 15th day of July, 

2016.

/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

 

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