The Law Firms of Scott+Scott LLP and Whalen and Tusa, P.C. Announce That a Settlement has Been Reached With Capital One, N.A.

NEW YORK, Aug. 4, 2010 (GLOBE NEWSWIRE) -- The Law Firms of Scott+Scott LLP and Whalen and Tusa, P.C. announce that a settlement has been reached with Capital One, N.A. and the Court has approved the following notice:

The Settlement is in the action Gunther v. Capital One, N.A., 09-cv-2966, pending in the United States District Court for the Eastern District of New York before the Honorable Arthur D. Spatt.

IF YOU HAVE OR HAD A CHECKING, SAVINGS OR OTHER DEPOSIT ACCOUNT AT CAPITAL ONE BANK, NORTH FORK BANK OR SUPERIOR SAVINGS OF NEW ENGLAND, N.A. ANYTIME BETWEEN JANUARY 1, 2007 AND NOVEMBER 20, 2009, PLEASE READ THIS NOTICE CAREFULLY, AS IT DESCRIBES A SETTLEMENT THAT MAY AFFECT YOUR RIGHTS.

Plaintiff in the above action has brought a class action lawsuit on behalf of himself and others with deposit accounts (including checking and savings accounts) at Capital One Bank, North Fork Bank or Superior Savings of New England, N.A. ("CONA/NFB/SSNE") since January 1, 2007, alleging that those banks charged Undeliverable Mail Fees in the amount of $15.00 in New York, New Jersey and Connecticut, where such mail was deliverable and received. Capital One Bank acquired North Fork Bank and Superior Savings of New England, N.A. prior to January 1, 2007 and stopped charging Undeliverable Mail Fees in November, 2009.

On July 2, 2010, the parties agreed to a settlement (the "Settlement") to resolve this lawsuit. The terms of the Settlement are contained in a Settlement Agreement, which is available for review at www.CapOneMailFeeSettlement.com.

The parties have agreed to the certification of this case as a class action for the purposes of settlement. By this Settlement, Capital One Bank has agreed to pay an amount equal to 82% of Undeliverable Mail Fees assessed during the Class Period by CONA/NFB/SSNE up to a maximum payment of $2,687,789.44 million to Settlement Class Members who do not opt out and who timely complete a valid Proof of Claim form and certify the number of Undeliverable Mail Fees assessed for statements or mail that were not "undeliverable" but were received. Capital One Bank has also agreed to pay all costs of this Settlement, reasonable attorneys' fees and costs to Class Counsel, and an incentive award to the Plaintiff. Class Counsel will request no more than $750,000.00 in total fees and costs. The final amount of attorneys' fees and Plaintiff's incentive award will be determined by the Court. All Settlement Class Members who do not request exclusion from this Settlement will forever release all claims against Capital One Bank for Undeliverable Mail Fees assessed by CONA/NFB/SSNE from January 1, 2007 to November 20, 2009 (the "Class Period").

The parties have agreed to a Settlement Class defined as follows: "All depositors of North Fork Bank, Superior Savings of New England, N.A. or Capital One Bank in the states of New Jersey, New York and Connecticut who were charged an Undeliverable Mail Fee by any of those entities during the Class Period, which Undeliverable Mail Fee(s) has/have not been refunded and who have not timely requested exclusion from this Settlement" (the "Settlement Class").

To get a payment under the Settlement, a Settlement Class Member must make a claim to the Settlement Administrator in either of the following ways: 1) complete and mail the "Proof of Claim" form included with the Notice to the Settlement Administrator at: Gunther v Capital One, N.A. c/o Rust Consulting, Inc. P.O. Box 2367, Fairbault, MN 55021-9067; or 2) complete and electronically submit a Proof of Claim form to the Settlement Administrator's website: www.CapOneMailFeeSettlement.com. Please complete only one Proof of Claim form for each account. TO BE VALID, ALL CLAIMS MUST BE POSTMARKED OR SUBMITTED NO LATER THAN SEPTEMBER 28, 2010.

If you are a member of the Settlement Class, you may request exclusion by sending a letter requesting to be "excluded" from this settlement to the Settlement Administrator. If you exclude yourself, your claims against Capital One Bank will not be released, and you will not be eligible to a refund of any Undeliverable Mail Fees under the Settlement. TO BE VALID, ALL EXCLUSION REQUESTS MUST BE POSTMARKED NO LATER THAN AUGUST 30, 2010 and mailed to the Settlement Administrator at: Gunther v. Capital One, N.A., c/o Rust Consulting, Inc., P.O. Box 2367, Fairbault, MN 55021-9067.

If you are a member of the Settlement Class and do not request exclusion, you or your attorney on your behalf may object to the Settlement. Such objection must be in writing and must provide evidence of your membership in the Settlement Class. The procedures for submitting a written objection are identified below. A written and signed objection (and any support for it) must be filed with the Court and served on all of the following attorneys with a postmark no later than August 30, 2010:

 

Any objection regarding or related to the Settlement Agreement shall contain a caption or title that identifies it as "Objection to Class Settlement in Gunther v. Capital One, N.A., d/b/a Capital One Bank, EDNY Civil Action No. 09-cv-2966" and shall also contain information sufficient to identify the objecting Settlement Class Member and their CONA/NFB/SSNE bank account number, as well as a clear and concise statement of the Settlement Class Member's objection, the facts supporting the objection, and the legal grounds on which the objection is based. If an objecting party chooses to appear at the hearing, then a notice of intention to appear, either in person or through an attorney, must be filed with the Court and list the name, address and telephone number of the attorney, if any, who will appear.

If you do nothing, you will not receive any payment. If the Court approves the Settlement, you will no longer have the ability to sue with respect to Undeliverable Mail Fees during the Class Period, and your claims during the Class Period will be released and dismissed.

The law firms Whalen & Tusa, P.C. and Scott+Scott LLP (collectively "Class Counsel") represent Plaintiff and have been preliminarily certified by the Court as counsel for the Settlement Class. Settlement Class Members have the right to hire their own lawyers, at their own expense, although there is no obligation to do so, and Class Counsel will represent all members of the Settlement Class in this Lawsuit who do not object or retain their own lawyer.

In addition to payments made to the Settlement Class, Capital One Bank has agreed to pay attorneys' fees and costs to Class Counsel up to $750,000.00, subject to approval by the Court.

The Honorable Arthur D. Spatt, a District Judge in the United States District Court for the Eastern District of New York (the "Court"), will hold a hearing (the "Fairness Hearing") at the federal courthouse located at 100 Federal Plaza, Central Islip, NY 11722-9014 on September 28, 2010 at 9:00 am to decide whether to approve the Settlement, and to determine the amount of attorneys' fees and costs and Plaintiff's incentive award. You or your lawyer may appear at the Fairness Hearing but do not have to do so.

Settlement Class Members can ask questions, complete a Proof of Claim form and review documents concerning this case at www.CapOneMailFeeSettlement.com., by calling the Settlement Administrator toll-free at (888) 952-9086, or by writing the "Settlement Administrator" at Gunther v Capital One, N.A. c/o Rust Consulting, Inc. P.O. Box 2367, Fairbault, MN 55021-9067 or email the Settlement Administrator at info@CapOneMailFeeSettlement.com.

PLEASE DO NOT CONTACT THE COURT OR CLERK'S OFFICE REGARDING RELEASE.