Full opinion text
ORDER OF FINAL APPROVAL OF SETTLEMENT, AUTHORIZING SERVICE AWARDS, GRANTING APPLICATION FOR ATTORNEYS’ FEES, AND OVERRULING OBJECTIONS TO SETTLEMENT JAMES LAWRENCE KING, District Judge. On September 16, 2011, Plaintiffs filed their Motion for Final Approval of Settlement, Application for Service Awards, Class Counsel’s Application for Attorneys’ Fees, and Incorporated Memorandum of Law [DE # 1885] (“Motion”), seeking final approval of their Settlement with Bank of America (“BofA”) for $410 million. In support, Plaintiffs filed six affidavits from local and national experts in class action law, as well as several affidavits supplementing the factual record to enable the Court to evaluate the fairness and adequacy of this Settlement. A number of Settlement Class Members filed timely objections to the Settlement (collectively “Objectors”), raising issues related generally to the sufficiency of the evidence supporting the Settlement, the amount of the Settlement, the manner in which the Settlement was negotiated, the methods used to notify Settlement Class Members and the information provided to them in the Notices, the scope of the proposed release to be given by Settlement Class Members to BofA, the cy pres provision of the Settlement, the absence of injunctive relief, and the amount of the fee award sought by Settlement Class Counsel. This matter came before the Court on November 7, 2011, pursuant to the Court’s Preliminary Approval Order dated May 24, 2011, for a hearing on Plaintiffs’ Motion for Final Approval of the Settlement (“Final Approval Hearing”). The Court carefully reviewed all of the filings related to the Settlement, including those discussed above, as well as responses to the Objectors filed by Class Counsel and by BofA respectively. See Plaintiffs’ Response to Objections to Motion for Final Approval of Settlement and Class Counsel’s Application for Service Awards and Attorneys’ Fees [DE # 2030]; Defendant’s Memorandum in Response to Objections Regarding Final Approval of Class Action Settlement [DE # 2029] [“Defendant’s Memorandum”]. The Court also heard a full day of oral argument on the Motion. After full consideration of the presentations of the Parties and the Objectors, the Court concludes that there can be no doubt that this Settlement provides a substantial recovery for the Settlement Class Members, and is an excellent result for the Settlement Class under all of the circumstances and challenges presented by this case. The Court specifically finds that the Settlement is fair, reasonable and adequate, and a more than acceptable compromise of the Settlement Class’ claims. The Settlement complies with Fed.R.Civ.P. 23(e), and thus the Court grants final approval to the Settlement, and will certify the Settlement Class. The Court denies the objections and rejects the arguments of Objectors in all respects, and finds that they are both completely unsupported in the record (no Objector having submitted even a single affidavit to provide facts or expert opinions supporting their positions) and unpersuasive as to the substance of their complaints. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1021 (9th Cir.1998) (affirming final approval of nationwide class action settlement where “[t]he objectors presented no evidence” to support their arguments). Significantly, of the approximately 13 million Settlement Class Members, only 49 timely filed objections— 0.0004 percent. Botzet Supp. Aff. [DE #2030-2] at 3. This extraordinarily “low percentage of objections points to the reasonableness of a proposed settlement and supports its approval.” Lipuma v. American Express Co., 406 F.Supp.2d 1298, 1324 (S.D.Fla.2005). Therefore, as discussed more fully below, the Court grants the Motion in its entirety, approves the Settlement, and awards the fee requested by Settlement Class Counsel and the service awards for the representative Plaintiffs. BACKGROUND The procedural and factual history of this Action is set forth in considerable detail in the Motion, and thus the Court will only briefly summarize the most important aspects of that history here. Further, this Court previously set forth the factual allegations and described the causes of action asserted against BofA (and a host of other defendant banks) in this multidistrict litigation. See In re Checking Account Overdraft Litig., 694 F.Supp.2d 1302 (S.D.Fla.2010). No party or Objector has offered contrary facts. The Court is quite familiar with this history, having presided over this case for the better part of the last two years. In that time, the Court has had the opportunity to observe both Settlement Class Counsel and BofA’s counsel, and the work that both have done. These attorneys, several of whom have practiced before this Court for many years, are extremely skilled advocates, and all of them vigorously litigated this case up to and even after agreeing to the Settlement. The Settlement is quite obviously the result of arms-length negotiations, and the Court so finds. In addition, the evidentiary record is more than adequate for the Court to consider the fairness, reasonableness and adequacy of the Settlement. The fundamental question is whether the district judge has sufficient facts before him to evaluate and intelligently and knowledgeably to 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 clearly had such facts before it in considering the Motion, including the evidence and opinions of Class Counsel and their experts, and the sheer magnitude of the settlement sum, $410 million, making this one of the largest settlements of a consumer case ever. The record is both complete and sufficient, and the Court so finds. 1. Procedural History Plaintiffs alleged a variety of business practices in the operative pleadings, including principally that BofA systemically re-sequenced Settlement Class Members’ debit card transactions for the sole purpose of maximizing its overdraft fee revenue. According to the allegations in the operative complaints, BofA’s practices violated the bank’s contractual and good faith duties owed to its customers; BofA’s acts resulted in unlawful conversion of depositor property; BofA’s contractual provisions and practices were substantively and procedurally unconscionable; and BofA’s conduct violated certain state unfair trade practices statutes, and resulted in its being unjustly enriched. BofA, in turn, hotly contested each of these points, and raised arguments and defenses that went right to the core of Plaintiffs’ case. These arguments and defenses posed a potentially mortal threat to Plaintiffs’ claims. BofA argued that Plaintiffs’ claims were preempted by the National Bank Act (“NBA”) and regulations promulgated thereunder by the Office of the Comptroller of the Currency; that its posting order and related practices were permissible under governing federal law and policy; that its account agreements expressly authorized the very re-sequencing and overdraft practices Plaintiffs challenged; that it fully disclosed its practices to its customers; that BofA had other reasons for instituting its posting order and overdraft practices; that no unconscionability cause of action exists for damages; that no plausible conversion claim existed because Plaintiffs did not own the funds in their deposit accounts; that Plaintiffs could not maintain unjust enrichment claims because of the existence of an express agreement between the bank and its customers; that the consumer protection claims were defective; and that, moreover, the vast majority of the claims brought against it were extinguished based on a prior nationwide settlement of a class-action suit in California state court (Closson). Plaintiffs sought monetary damages, restitution and declaratory relief. See generally Tomes Third Amended Consolidated Class Action Complaint (“TAC”) [DE # 344]; Yourke Amended Class Action Complaint [DE #345]. The Action began on December 1, 2008, when Plaintiff Ralph Tornes filed a complaint against BofA in this Court. See Tornes v. Bank of America, N.A., S.D.Fla. Case No. OS-23323. On April 9, 2009, Plaintiffs Steve Yourke and Kristin Richards filed a complaint against BofA in San Francisco County Superior Court, which was removed to the United States District Court for the Northern District of California. See Yourke v. Bank of America, N.A, N.D.Cal. Case No. 09-cv-02186. These cases were transferred to this Court as part of MDL 2036, by order of the Judicial Panel for Multidistrict Litigation dated June 10, 2009, 626 F.Supp.2d 1333 (U.S.Jud.Pan.Mult.Lit.2009). Following transfer, Class Counsel interviewed over 100 BofA customers and potential plaintiffs to gather information about BofA’s conduct and its impact upon consumers. See Joint Declaration of Robert C. Gilbert and Michael W. Sobol [DE #1885-3], ¶11 (“Joint Decl.”). Class Counsel also expended significant resources researching and developing the legal claims at issue. Id. Soon after the filing of the Yourke and Tomes complaints, BofA, joined by the other First Tranche defendants at the time (Citibank, N.A.; JPMorgan Chase Bank, N.A.; Union Bank, N.A.; U.S. Bank, N.A.; Wachovia Bank, N.A.; and Wells Fargo Bank, N.A.) filed a 96-page Omnibus Motion to Dismiss and/or for Judgment on the Pleadings (the “Omnibus Motion”). [DE # 217]. Among the arguments raised by these banks was that the claims made by Plaintiffs were pre-empted by the NBA and related regulations, and that their deposit agreements disclosed that debits generally would be posted in an order other than the one in which they occurred. See, e.g., Tomes TAC, Ex. A at 18. Plaintiffs filed a 98-page brief in opposition. [DE # 265]. At the banks’ request, this Court stayed discovery in the First Tranche actions pending resolution of the Omnibus Motion. An all-day argument on the Omnibus Motion took place before this Court on February 25, 2010. [DE # 294]. On March 11, 2010, this Court issued its Order Ruling on Omnibus Motion to Dismiss, rejecting most of Defendants’ arguments. [DE #305]. However, this Court did dismiss without prejudice state statutory claims where no named plaintiff resided in the relevant states, state statutory claims with pre-suit notice requirements that were unsatisfied, and state statutory claims where Plaintiffs failed to plead required predicate acts. Id. at 1310-28. On April 12, 2010, Plaintiffs filed amended complaints. [DE #344, 345]. BofA answered these complaints on May 21, 2010, asserting 37 affirmative defenses in each answer, including defenses based on federal preemption under the NBA and certain federal regulations, arbitration, the voluntary payment doctrine and the terms of its customer agreement. [DE #496, 497]. Additionally, BofA asserted that the claims brought in the operative complaints were released, in whole or in part, by virtue of the class action settlement entered into and approved in Closson. [DE # 496 at ¶¶ 262, 263; DE # 497 at ¶¶ 181, 182]. Class Counsel and counsel for BofA engaged in extensive discussions and negotiations regarding a proposed pretrial discovery plan and schedule. On May 13, 2010, after the parties were unable to reach agreement, the Court lifted the stay of discovery and entered a comprehensive Order Establishing a Schedule for the Discovery, Motion Practice, Final Pretrial Conference, and Trial for Selected Cases. [DE #463]. That same day, Plaintiffs served identical written discovery requests on the First Tranche banks, including BofA. After the Parties negotiated and entered into a Stipulated Protective Order relating to the production of documents and information [DE #688], BofA produced over one million pages of documents. Joint Decl. ¶ 19. BofA also asserted extensive objections to Plaintiffs’ discovery requests. Class Counsel engaged in lengthy conferences and meetings with counsel for BofA in an effort to resolve discovery disputes, issues pertaining to Rule 30(b)(6) deposition topics, and other discovery-related issues. Id. On July 16, 2010, Plaintiffs moved to compel discovery from BofA. [DE # 691]. During the Summer and Fall of 2010, Class Counsel prepared objections and responses to BofA’s extensive discovery requests to Plaintiffs, including requests for production of documents and interrogatories, Joint Decl. ¶ 23, and defended against BofA’s motion to compel discovery. [DE # 902, 939, 1016]. Class Counsel also began deposing BofA personnel. 2. The Closson Settlement The proposed settlement in Closson v. Bank of America, San Francisco Sup.Ct., No. CGC-04-436877, posed a significant threat to the legal viability of class members’ claims in these actions. The bar order in Closson was extremely broad, and would have released many, if not most (perhaps as much as 80% of the value) of the claims of the members of the proposed Settlement Class, all in return for a settlement of $35 million. See Joint Decl. ¶¶ 28, 71. As BofA argued in its motion to stay in Tomes: “the nationwide class action settlement in Closson, which has already-been preliminarily approved by the state court, will have the effect of resolving and releasing all or most of the purported claims asserted in this action .... ” [DE # 17 in Tomes, Case No. 08-cv-23323]. Accordingly, Class Counsel undertook significant efforts to object to and, after that settlement was finally approved by the trial court over Class Counsel’s objections, to appeal, the Closson settlement. See Jan L. Petrus, et al. v. Rhonda J. Closson, et al. & Bank of America, N.A., Cal. Ct. of Appeal No. A125963 (and coordinated appeals). 3. Settlement Negotiations and Terms Settlement Class Counsel and counsel for BofA first began preliminary settlement discussions in this Action in mid-October 2010. Joint Deck ¶ 31. The full history of these negotiations, including three separate mediation sessions, and the specific terms of the Settlement, are set out in Class Counsel’s Joint Declaration and in the Motion, as well as in the Settlement itself, and need not be repeated in detail here. What is clear from that history is that success was never assured on Class Counsel’s appeal in Closson; the parties negotiated in good faith and at arms-length; and but for the efforts of the parties and Professor Eric Green, this Settlement would never have been achieved and the Court and the parties would still be expending tremendous resources on these cases. On May 13, 2011, Plaintiffs filed their Motion for Preliminary Approval of the Settlement. [DE # 1471]. On May 24, 2011, this Court entered the Order Granting Preliminary Approval [DE # 1520], finding that the Settlement Class met the requirements of Fed.R.Civ.P. 23, that the Settlement was “the result of informed, good-faith, arms’-length negotiation between the parties and their capable and experienced counsel” and was “not the result of collusion,” that the Settlement is “within the range of reasonableness” and that it should be preliminarily approved. [DE # 1520 at 2]. The Court’s conclusions in this regard have not changed. If anything, these conclusions are strengthened by the extensive record evidence and expert opinions offered by Plaintiffs in support of the Motion. Pursuant to the Preliminary Approval Order, notice of the Settlement was mailed to over 13 million Settlement Class Members. See Deck of Joel Botzet [DE # 1885-4] at 4. In addition, notice of the Settlement was published in a number of national consumer magazines. See Deck of Katherine Kinsella [DE # 1885-5] at 5-7. A special Settlement website was also established. See id. at 7-8. As discussed below, the Court finds that the Notice Program proposed by Plaintiffs was effectively executed, and that it was more than adequate to put the Settlement Class Members on notice of the terms of the Settlement, the procedures for objecting to and opting out of the Settlement, and the rights that the Settlement Class Members will be giving up by remaining part of the Settlement. Indeed, based upon the evidence, it appears that about 96% of the identifiable Settlement Class Members received “direct mail” notice of the Settlement. Id. at 3. Of particular note, Settlement Class Members do not have to submit claims or take any other affirmative step to receive relief under the Settlement. Joint Decl. 140. Instead, within 30 days of the Effective Date of the Settlement (Agreement ¶ 22), BofA and the Settlement Administrator will distribute the Net Settlement Fund to all identifiable Settlement Class Members who do not opt out of the Settlement and who are entitled to-a distribution under the formula provided in the Settlement (Agreement ¶ 79). At the same time, the distribution will be made to the Court-approved recipients of the Cy Pres Distribution Amount on behalf of those Settlement Class Members who could not be identified. Agreement ¶¶ 83, 91. More particularly, all identifiable Settlement Class Members who experienced a “Positive Differential Overdraft Fee” will receive a pro rata distribution of the Net Settlement Fund, minus the Cy Pres Distribution Amount. Agreement ¶¶ 79, 83-85. The Positive Differential Overdraft Fee analysis determines, among other things, which BofA Account holders were assessed additional overdraft fees that would not have been assessed if the Bank had used a posting sequence or method that ordered Debit Card Transactions (Agreement ¶ 20) from lowest-to-highest dollar amount, rather than from highest-to-lowest dollar amount, and how much in additional overdraft fees those Account holders paid. The calculation involves a complex, multi-step process described in the Agreement. Agreement ¶79. All $410 million of the Settlement will be distributed or spent in support of the Settlement. None of the $410 million will revert back to BofA (unless the Settlement terminates in the circumstances defined in the Agreement). 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 settlements as well as the realization that compromise is the essence of settlement.” In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 238 (5th Cir. Unit B 1982); see also Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir.1996). 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 W.L 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). 1. The Court Has Personal Jurisdiction Over the Settlement Class Because the Class Received Adequate Notice and an Opportunity to Be Heard. This Court has personal jurisdiction over all of the Settlement Class Members because they received the requisite notice and due process required by the United States Supreme Court. The Court finds that the Settlement Class Members have received “the best practicable” notice which was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” and the Court so holds. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950)); see also In re Prudential Ins. Co. of Am. Sales Practice 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), 1407 and, in the case of a removed Action, § 1441(a). a. The Best Notice Practicable Was Provided to the Class. Notice of the Settlement was mailed to over 13 million Settlement Class Members. See Decl. of Joel Botzet [DE # 1885-4] at 4. In addition, notice of the Settlement was published in a number of popular national consumer magazines of wide circulation, including People, Sports Illustrated, and TV Guide, and notice was distributed through the Internet on sites including Facebook, Yahoo, and the Microsoft Media Network. See Decl. of Katherine Kinsella [DE # 1885-5] at 5-7. A special Settlement website and automated toll-free number were also established which enabled Settlement Class Members’ to obtain additional information about the Settlement. See id. at 7-8. b. The Notice Was Reasonably Calculated to Inform Settlement Class Members of Their Rights. The Court finds that the Notice approved previously was fully and properly effectuated and was sufficient to satisfy the requirements of due process because it described “the substantive claims ... [and] contained information reasonably necessary to [allow Settlement Class Members 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 1088, 1104-05 (5th Cir.1977). The Notice, among other things, defined the Settlement Class, described the release as well as the amount and method and manner of proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their rights to opt-out or object, the procedures for doing so, and the time and place of the Final Approval Hearing. The Notice also informed Settlement Class Members that a class judgment would bind them unless they opted out, and told them where they could obtain more information, such as access to a full copy of the Agreement. The Notice additionally informed Settlement Class Members that up to 14% of the Net Settlement Fund would be paid into a cy pres fund on behalf of those Settlement Class Members who could not be identified. Further, the Notice described in summary form the fact that Class Counsel would be seeking attorneys’ fees of up to 30 percent of the Settlement. Settlement Class Members were provided with the best practicable notice “reasonably calculated, under [the] circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314, 70 S.Ct. 652. The content of the Notice fully complied with the requirements of Rule 23. Several Objectors nonetheless contend the Notice was insufficient. The Court rejects these contentions. The statistics provided by Plaintiffs are telling: • 13,280,225 Notices were mailed; • 268,775 Settlement Class Members called the Settlement hotline on or before October 15, 2011, meaning they had a question about the Settlement and sought further information about it; • there were approximately 281,413 unique visitors to the Settlement website as of October 15, 2011; • 102,304 Settlement Class Members went so far as to contact the Settlement Administrator to request a mailed copy of the Long-form Notice; and • the Notice prominently included the names and telephone numbers of Settlement Class Counsel, who fielded hundreds of phone calls and emails from Settlement Class Members seeking additional information. The Settlement was widely known and appreciated, and any Settlement Class Member who wished to express comments or objections had ample opportunity and means to do so. There were only 352 timely exclusion requests (0.0027%), and only 49 timely objections (0.0004%). Supp. Botzet Decl. [DE # 2030-2] at 3. The near “unanimous approval of the proposed settlements by the class members is entitled to nearly dispositive weight in this court’s evaluation of the proposed settlements.” In re Art Materials Antitrust Litig., 100 F.R.D. 367, 372 (N.D.Ohio 1983); see also Lipuma, 406 F.Supp.2d at 1324. Here, the “small number of objectors from a plaintiff class of many thousands is strong evidence of a settlement’s fairness and reasonableness.” Assn, for Disabled Americans. v. Amoco Oil Co., 211 F.R.D. 457, 467 (S.D.Fla.2002); accord Mangone v. First USA Bank, 206 F.R.D. 222, 227 (S.D.Ill.2001) (“In evaluating the fairness of a class action settlement, such overwhelming support by class members is strong circumstantial evidence supporting the fairness of the Settlement.”); Austin v. Penn. Dept. of Corrections, 876 F.Supp. 1437, 1458 (ED.Pa.1995) (“Because class members are presumed to know what is in their best interest, the reaction of the class to the Settlement Agreement is an important factor for the court to consider.”). Contrary to what certain Objectors suggest, the law does not require that notice be given of the amount an individual class member will recover, either as a lump sum or as a range or percentage of potential recovery. A class action settlement notice “need not be so detailed that an individual class member can calculate the amount of his or her actual recovery under the settlement.” In re WorldCom, Inc., 347 B.R. 123, 140 (Bankr.S.D.N.Y.2006) (citation, quotation marks, and alteration omitted); see Mangone, 206 F.R.D. at 231-34 (overruling objection that class settlement notice did not state “the value of damages, the merits of the claims, ... the maximum potential recovery for the Class, and the methodology for determining and calculating damages”; holding that “none of the items complained of are required by the notice requirements set out in F.R.C.P. 23 or due process.”). Likewise, disclosure in the Notice of all the risks of continuing the litigation and corresponding percentages would have required describing a series of possible eventualities that depend on legal assumptions and guesswork, and this easily could have led to a garbled or misleading Notice, contrary to the purpose of Rule 23(e)(1). There was simply no meaningful way to disclose all these details briefly, to non-lawyers, without provoking confusion. Nor was there any requirement to make such an extensive disclosure in the Notice. “Class members are not expected to rely upon the notices as a complete source of settlement information.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 122 (8th Cir.). Here, the Notice was adequate because it informed the Settlement Class Members of the principal Settlement terms, including that BofA was paying to create the $410 million Settlement Fund, and because it explained that the amount of the distributions to Settlement Class Members will be “based on the number of people in the Settlement Class and the amount of additional overdraft fees each Settlement Class Member paid as a result of Bank of America’s posting order.” [DE # 1471-2 at 36]. The Agreement sets forth the exact formula by which the Net Settlement Fund is to be allocated among Settlement Class Members, and that formula was referenced in the Notice and readily available in full on the Settlement Website. The Notice also explained the rights of Settlement Class Members under the Settlement, and where they could find more information, including a website containing links to the Settlement Agreement, operative complaints, Motion for Final Approval, and many other documents relevant to the Settlement and the litigation posture of the Action. [DE #1471, Ex. A, ¶¶79, 102, 106; DE # 1471-2 at 46]. Class Counsel also included in the Motion their considered opinions that the Settlement represents a range of recovery of 45 percent to 9 percent of Settlement Class Members’ claimed losses. Joint Decl. ¶ 68. The disclosure of this range was sufficient to put Settlement Class Members on notice of their potential recovery based on their personal history with BofA, and to allow them to make an informed decision about whether to accept the Settlement, object to it or opt out of it. 2. The Settlement Is Fair, Adequate and Reasonable. 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 v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). A settlement is fair, reasonable and adequate when “the interests of the class as a whole are 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. Leverso, 18 F.3d at 1530 n. 6; see also Bennett, 737 F.2d at 986. a. There Was No Fraud or Collusion. As discussed above, the Court readily concludes that there was no fraud or collusion leading to this Settlement. See, e.g., In re Sunbeam Sec. Litig., 176 F.Supp.2d 1323, 1329 n. 3 (S.D.Fla.2001); Ingram v. Cocar-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) (“[t]his 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). None of the Objectors seriously contended otherwise. b. The Settlement Will Avert Years of Highly Complex and Expensive Litigation. This case involves millions of Settlement Class Members and alleged wrongful overdraft fees in the billions of dollars. The claims and defenses are complex; litigating them has been difficult and time consuming. Although this litigation has been pending for more than two years, recovery by any means other than settlement would require additional years of litigation in this Court and the 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. at 317, 325-26 & n. 32 (“adjudication of the claims of two million claimants could last half a millennium”). In contrast, the Settlement provides immediate and substantial benefits to millions of BofA customers. 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.”) (alterations in original) (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 rendering meaningful relief increasingly elusive”). Especially 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. Several Objectors complain that $410 million is not enough to adequately compensate the Settlement Class. The Court disagrees. By all accounts, the $410 million paid into escrow by BofA represents between 45 percent and 9 percent of the total potential damages. [DE # 1885 at 27]. This range of recovery derives from the broad spectrum of risks present in the Action. The 9 percent figure at the bottom end of this range, which is based on BofA’s maximum possible liability, assumes that a fact-finder would have calculated damages by comparing the total overdraft fees BofA assessed using its high-to-low posting order with the total overdraft fees it would have assessed using the inverse method, i.e., posting debits from lowest-to-highest dollar amount. Objectors’ assumption that such relief was the inevitable result of this litigation, and their subsequent use of that figure as a basis to criticize the exemplary result here, is unfounded. Objectors neglect to consider that a fact-finder might not have used a low-to-high comparator to calculate damages but, instead, might have calculated damages by comparing the fees actually assessed with the fees that would have been assessed under a chronological posting order, as another court did following the trial of an action involving similar legal claims against another bank. See Gutierrez v. Wells Fargo Bank, N.A., 730 F.Supp.2d 1080, 1138-39 (N.D.Cal.2010) (rejecting a damage calculation based upon a low-to-high posting order, and instead calculating damages based on the finding that chronological posting of debits “would have tracked the ordinary and reasonable expectations of depositors.”). The use of such a chronological comparison, as opposed to a low-to-high comparison, significantly reduces BofA’s total potential liability and, in turn, significantly increases the percentage of recovery for the Settlement Class that the $410 million settlement sum represents. Moreover, standing alone, nine percent or higher constitutes a fair settlement even absent the risks associated with prosecuting these claims. See Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D.Fla.1988) (King, C.J.) (“A settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery.”); Newbridge Networks Sec. Litig., 1998 WL 765724, *2 (D.D.C. Oct. 23, 1998) (“an agreement that secures roughly six to twelve percent of a potential recovery ... seems to be within the targeted range of reasonableness”); In re Rite Aid Corp. Sec. Litig., 146 F.Supp.2d 706, 715 (E.D.Pa.2001) (noting that since 1995, class action settlements have typically “recovered between 5.5% and 6.2% of the class members’ estimated losses”); In re Linerboard Antitrust Litig., 296 F.Supp.2d 568, 581 (E.D.Pa.2003). Plaintiffs properly note that Objectors’ argument regarding the sufficiency of the Settlement amount suffers from hindsight bias and an unduly sanguine view of Plaintiffs’ litigation risks—risks that these Objectors never faced because they arrived on the scene after the Settlement was reached. A settlement fairness analysis must consider such risks at the time the settlement was reached, not after settlement. See, e.g., In re CIGNA Corp., 2007 WL 2071898, at *3 (E.D.Pa. July 13, 2007). The combined risks here were real and potentially catastrophic for the Class. As Professor Miller stated: “This is among the riskiest class action cases I have encountered in more than twenty years of involvement in the field of class action and complex litigation.” Decl. of Prof. Geoffrey Miller [DE #1885 at Ex. H], ¶ 22. A brief review of the risks Plaintiffs confronted confirms Professor Miller’s observation. First, whether Plaintiffs’ claims are preempted by the NBA and related regulations remains an open question. Despite this Court’s rulings that such preemption does not apply here, see Luquetta v. JPMorgan Chase Bank, N.A. (In re Checking Account Overdraft Litig.), 797 F.Supp.2d 1312 (S.D.Fla.2011), no federal appeals court has yet reached the NBA preemption issue in this specific context.. The preemption defense “was a ‘light switch’ which, if successfully turned ‘on’ by BOA, would have led to dismissal of the entire case, which was predicated entirely on state law.” Expert Report of Prof. Charles Silver [DE # 1885-12], at 15; cf. Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 248 (S.D.Ohio 1991) (rejecting the argument “that the Class should get more” because of the “very real potential that the Class could come away from a long expensive trial with nothing.”). Second, high-to-low posting of debit card transactions is “by no means clearly unlawful.” Decl. of Prof. Samuel Issacharoff in Support of Settlement [DE # 1885-7], ¶ 17. The account agreements disclose that BofA may process debits out of order and/or in high-to-low order, and the Uniform Commercial Code expressly permits the reordering of checks. See UCC § 4-303(b) & emt. 7. Third, while Objectors treat class certification as a foregone conclusion, it is anything but that. This Court had not certified any class in MDL 2036 when this Settlement was reached, nor had it done so before the Settlement Agreement was signed. BofA would undoubtedly have opposed class certification on multiple grounds, including manageability, as stated by BofA in its Response to Objections. [DE # 2029 at 20-26]. Had BofA defeated class certification, the value of this case would have decreased to near zero. Fourth, the Class faced a large roadblock to recovery in the Closson settlement. Its release purported to subsume all BofA customers who incurred overdrafts between 2001 and 2007, as well as large numbers of BofA customers who incurred overdrafts after 2007. Yet Settlement Class Counsel “successfully navigated around the Closson Settlement and obtained an outstanding settlement for the class.” , Decl. of Roberto Martinez [DE #1885-8], ¶ 32. Indeed, “not only did class counsel here manage to persuade Bank of America that this previous settlement might not withstand appeal, but they managed to persuade Bank of America to resettle the dispute for nearly ten times what it had been willing to pay only three years ago.” Decl. of Prof. Brian T. Fitzpatrick [DE # 1885-11], ¶ 14. This speaks to both the merits of the Settlement and the skill of Settlement Class Counsel in obtaining it. Fifth, Objectors downplay the risk that BofA would have joined other First Tranche Banks in seeking arbitration based on the Supreme Court’s recent decision in AT & T Mobility LLC v. Concep cion, — U.S. —, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). [E.g., DE #1384]. Objector Hastings relies on BofA’s public statement of August 13, 2009, after Tomes and Yourke were filed, that it “will no longer enforce mandatory arbitration in new banking disputes with individual customers.” [DE # 1916 at 16 (emphases added) ]. In addition to being non-binding and a potentially reversible policy of the bank, this announcement, by its literal terms, did not extend to class action suits or disputes already on file at the time. Moreover, in its Answer, BofA raised arbitration as a defense, purporting to reserve the right to enforce the arbitration provision in the governing (not the current) BofA account agreement. See BofA Answer in Tomes [DE # 496], ¶ 268; cf. Chavez v. Bank of Am., N.A, 2011 WL 4712204 (N.D.Cal. Oct. 7, 2011) (enforcing arbitration provision in BofA consumer contract against two plaintiffs). Had BofA attempted to enforce, and succeeded in enforcing, its arbitration provision, the value of this case would have been significantly reduced. Finally, Class Counsel confronted not merely a single large bank, but “the combined forces of a substantial portion of the entire American banking industry, and with them a large contingent of some of the largest and most sophisticated law firms in the country.” Decl. of Prof. Geoffrey Miller [DE # 1885-9], ¶ 49. The record of proceedings here, like the record in Bennett v. Behring Corp., 737 F.2d 982, 988 (11th Cir.1984), demonstrates “great patience and diligence” on the part of “counsel and the court in resolving a massive and difficult case.” It is easy enough for Objectors to claim in hindsight that Settlement Class Counsel could or should have obtained more. It is quite another thing to accomplish that result in the face of all these risks. “Successful outcomes often make risks seem less risky in hindsight than they were at the time,” and, even though “inherent in compromise is a yielding of absolutes and an abandoning of highest hopes,” final settlement approval orders “almost always override the wishes of some class members for a bigger slice of the pie.” In re Abrams & Abrams, P.A., 605 F.3d 238, 248 (4th Cir.2010); Cotton, 559 F.2d at 1330 (citation omitted); Curtiss-Wright Corp. v. Helfand, 687 F.2d 171, 175 (7th Cir.1982). The point is that, but 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. c. The Factual Record is Sufficiently Developed to Enable Plaintiffs and Class Counsel to Make a Reasoned Judgment Concerning the Settlement. Courts also consider “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. According to Class Counsel’s uncontested statement of facts, significant investigation and discovery occurred in this case prior to the Settlement. Joint Decl. ¶ 60. That was sufficient to give Settlement Class Counsel insight into the strengths and weaknesses of their claims against BofA. Id. That is, Class Counsel developed ample information and performed extensive analyses from which “to determine the probability of their success on the merits, the possible range of recovery, and the likely expense and duration of the litigation.” Mashbum v. Nat’l Healthcare, Inc., 684 F.Supp. 660, 669 (M.D.Ala. 1988); Joint Decl. ¶ 60. Certain Objectors imply, without any support in the record whatsoever, that Settlement Class Counsel entered into the Settlement without knowing BofA’s total liability exposure. [E.g., DE # 1916]. The Court rejects this unsupported claim. Settlement Class Counsel participated in three days of mediation, overseen by nationally recognized mediator Professor Eric Green, with several damages and exposure estimates in hand based on information provided by BofA. Before entering mediation and reaching the Settlement, Settlement Class Counsel also reviewed and analyzed a substantial number of BofA internal documents that showed BofA’s own calculations of how much extra revenue the debit re-sequencing generated. Moreover, as part of the ongoing settlement process, Plaintiffs’ expert Art Olsen, using BofA’s own customer account transactional data that was reasonably available in electronic form, performed the detailed work necessary to determine the exact amount of each identifiable Settlement Class Member’s damages resulting from high-to-low debit re-sequencing and the proposed plan of allocation, based upon the low-to-high formula provided in the Agreement. See Joint Decl. ¶ 36; Agreement ¶¶ 77-79. The Court is satisfied that Settlement Class Counsel were more than sufficiently prepared to negotiate and enter into the Settlement. In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 237 (5th Cir. Unit B 1982) (“It is enough if representation of the class during the negotiations was adequate and that the settlement itself is fair.”) (citations, quotation marks, and alterations omitted). d. Plaintiffs Would Have Faced Significant Obstacles to Obtaining Relief. The Court must also consider “the likelihood and extent of any recovery from the defendants absent ... settlement.” In re Domestic Air Transp., 148 F.R.D. 297, 314 (N.D.Ga.1993); see also Ressler, 822 F.Supp. at 1555 (“A Court is to consider the likelihood of the plaintiffs 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.”). Plaintiffs correctly note that they faced several major risks in this litigation, including those relating to (1) the Closson settlement release, (2) federal preemption, (3) the BofA account agreement, and (4) arbitration, as discussed above. Absent this Settlement, this litigation would have continued for some additional years, at tremendous expense to the parties. Given the myriad risks attending these claims, the Settlement is a fair compromise. See, e.g., Bennett v. Behring Corp., 96 F.R.D. 343, 349-50 (S.D.Fla.1982) (plaintiffs faced a “myriad of factual and legal problems” that led to “great uncertainty as to the fact and amount of damage,” which made it “unwise [for plaintiffs] to risk the substantial benefits which the settlement confers ... to the vagaries of a trial”), aff'd, 737 F.2d 982 (11th Cir.1984); Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 248 (S.D.Ohio 1991) (citing the “very real potential that the [c]lass could come away from a long expensive trial with nothing,” the court rejected the argument “that the Class should get more”). 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 in light of the potential range of recovery, the Court is guided by the “important maxim[ ]” that “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, 118 F.R.D. at 542. This is because a settlement must be evaluated “in light of the attendant risks with litigation.” Thompson v. Metropolitan Life Ins. Co., 216 F.R.D. 55, 64 (S.D.N.Y.2003); see Bennett, 737 F.2d at 986 (“[Compromise is the essence of settlement.”); Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir.1998) (“[T]he very essence of a settlement is ... a yielding of absolutes and an abandoning of highest hopes.”) (internal quotation omitted). Thus, courts regularly find settlements to be fair where “[plaintiffs have not received the optimal relief.” Warren, 693 F.Supp. at 1059; see, e.g., Great Neck Capital Appreciation Investment P’ship, L.P. v. PricewaterhouseCoopers, L.L.P., 212 F.R.D. 400, 409-410 (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”). The Settlement provides substantial value to the Settlement Class, and is well within the range of reasonableness. Under the Settlement, Plaintiffs and the Settlement Class have recovered $410 million, which represents between 45 percent and 9 percent of their anticipated total recovery, depending on how the Closson appeal was resolved as well as the future course of this litigation. See Joint Decl. [DE # 1885-3] at ¶ 68; Decl. of Prof. Samuel Issacharoff [DE # 1885-7] at 9 (“The assessment of the value to the class here must include the harm avoided if the Closson settlement had been affirmed on appeal, thereby foreclosing most of the class claims.”); Decl. of Roberto Martinez [DE # 1885-8] at 10 (noting that settlement representing a portion of alleged loss “is not only reasonable and adequate, but outstanding ... ”). Objectors assert that the Settlement shortchanges the Settlement Class, but they offer no facts to support their argument; they offer merely the bravado that the claims are worth more. However, the Court finds this Settlement to be “fair, reasonable and adequate.” As the experts have attested, this is one of the largest settlements in a consumer class action; even if the risks of the Closson release and other defenses were put aside, a 9 percent settlement (the absolute lowest percentage anyone has attempted to ascribe to this Settlement) is still within the range of reasonableness. See e.g. Behrens, 118 F.R.D. at 542 (“A settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery.”); New-bridge, 1998 WL 765724, *2 (“an agreement that secures roughly six to twelve percent of a potential recovery ... seems to be within the targeted range of reasonableness”); In re Rite Aid, 146 F.Supp.2d at 715 (noting that since 1995, class action settlements have typically “recovered between 5.5% and 6.2% of the class members’ estimated losses”). Moreover, in light of the “damage” formula being used to effectuate this Settlement and the Closson and other defenses at play in these cases, the Court believes that this Settlement is actually providing a far greater percentage recovery. The absence of a claims-made process further supports the conclusion that the Settlement is reasonable. See Decl. of Prof. Samuel Issacharoff [DE # 1885-7] at 14 (noting the significant benefit of the proposed direct distribution to Settlement Class Members “is designed to optimize the class recovery.”); Decl. of Prof. Geoffrey Miller [DE # 1885-9] at 7 (“The automatic nature of the individual payments is an important benefit ... ”). Settlement Class Members will receive the benefit automatically, without needing to fill out any claim form or indeed to take any action whatsoever. In contrast, the Closson settlement required potential settlement class members to submit claims forms themselves in order to receive benefits. f. The Opinions of Settlement Class Counsel, Class Representatives, and Absent Settlement Class Members Strongly Favor Approval of the Settlemént. 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 Mashbum, 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. ‘[T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.’” (citations omitted)). Settlement Class Counsel have made clear that they believe that this Settlement is extraordinary and deserving of Final Approval. Joint Decl. at 23. g. Other Issues Raised by Objectors Regarding the Fairness of the Settlement. i. The Release is Proper. The Court rejects the contention of certain Objectors that the release in the Settlement is improper. The release permissibly protects BofA from follow-on claims, but not from new claims arising after the cutoff date in the Agreement or from claims unrelated to the subject matter of these cases. By its own terms, the release is tailored to claims that relate to or arise out of conduct that is the subject matter of the complaints. [DE # 1471, Ex. A, ¶ 98]. The release withstands scrutiny because this litigation concerned all of the released issues, and BofA is providing extremely valuable consideration in exchange for the release. See, e.g., In re Managed Care Litig., 2010 WL 6532985, at *11 (S.D.Fla. Aug. 15, 2010) (holding similar release language-precluding “any and all causes of action ... that are, were or could have been asserted ... by reason of, arising out of, or in any way related to any of the facts, acts, events, transactions, [or] occurrences”—“only applies to claims that relate to the course of conduct” at issue in the underlying settled multidistrict litigation). ii. Injunctive Relief is Unnecessary. The Court also rejects the complaints of those Objectors who lament the absence of injunctive relief. Contrary to their misstatements, it is no longer possible for BofA to continue the same overdraft practices. As counsel for BofA notes, “[t]hese objectors overlook the fact that, during the pendency of this litigation, banks were required by federal law to eliminate practices of which Plaintiffs complain.” See Defendant’s Memorandum at 4. Regulation E, which took effect on August 15, 2010, prohibits banks from assessing overdraft fees on non-recurring debit transactions unless consumers affirmatively consent to this practice. See 12 C.F.R. § 205.17. That is, BofA “has been required to obtain a customer’s affirmative consent prior to imposing any fee or charge for overdraft services associated with one-time (non-recurring) debit card transactions” since July 2010. Defendant’s Memorandum at 4. Therefore, injunctive relief is unnecessary. iii. Subclasses Are Unnecessary. A few Objectors argue for the establishment of subclasses based on certain Settlement Class Members’ participation in the settlement in Closson. The proposed plan of allocation approved by this Court treats all Settlement Class Members equally. All Settlement Class Members were harmed by the same BofA practices and in the same manner, and all were subject to the same overriding (and existential) risks of federal preemption, arbitration, defenses grounded in BofA’s account agreements, and other defenses. No material intra-class conflict exists that requires the establishment of subclasses. See In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d at 237. “There are no conflicts in the representation of class members who all were subject to the exact same procedures by Bank of America. The relief afforded to class members is precisely proportionate to the charges they suffered as a result of the contested overdraft policy.” Decl. of Prof. Samuel Issacharoff [DE # 1885-7], ¶ 40. Moreover, at the time the Settlement was negotiated, the parties did not yet know whether Closson would be affirmed or overturned on appeal. See In re Corrugated Container Antitrust Litig., 643 F.2d 195, 208 (5th Cir.1981) (analysis of a potential intra-class conflict looks to “whether ... interests conflicted at the point of settlement negotiation”). The uncertainty and risk presented by Closson falls well short of the material variations in class member rights and interests that required subclasses in the cases cited by Objectors at the time of settlement. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242 (2d Cir.2011). A variant on this objection notes that some number of BofA account holders who may belong to both settlement classes will receive a double recovery. [DE # 1945]. This is not a basis for creating subclasses here. First, any overlapping recovery is minimal and negligible in the context of this Settlement. Class members in Closson filed only 110,000 total claims, and that limited group stands to receive approximately $8 million, less than two percent of the amount secured by this Settlement. See Decl. of Prof. Samuel Issacharoff [DE # 1885-7], ¶ 27. Second, even if a minimal degree of overlapping recovery exists here, it would be structurally justified because the two settlements may separately compensate individuals for distinct alleged violations. Plaintiffs argued that in Closson, BofA settled claims based on allegations of false advertising, and agreed to pay account holders who had incurred even a single overdraft charge. Here, BofA is settling claims based on allegations of breach of the implied covenant of good faith and fair dealing and unfair business practices (i.e., the practice of reordering debits), and has agreed to pay account holders who incurred two or more overdrafts on a single day as a result of the reordering. Some Objectors contend that Settlement Class Members from the post-Closson period had stronger claims, unaffected by the Closson release, and should be in a separate subclass. As counsel for both BofA and Plaintiffs pointed out at the Final Approval Hearing, Objectors overlook that Account holders in the later part of this Settlement class period might actually be seen as having weaker claims, to the extent they could be portrayed as being on notice of the relevant BofA practices from the filing of overdraft fee cases and the increasing media coverage of alleged bank overdraft fee abuses. Such Settlement Class Members might well be considered less, rather than more, entitled to recover, even though their claims may not fit within the Closson release. See BofA Answer in Tomes [DE #496], ¶¶ 247-52 (asserting defenses of voluntary payment, voluntary conduct, estoppel, consent, ratification, and disclosure). At a minimum, the Settlement Fund could not be allocated between hypothetical settlement subgroups (assuming they could even be identified) except on the basis of unwarranted and speculative assumptions going to the merits of the parties’ claims and defenses. The subclass argument also has no logical stopping-point. Minor or speculative distinctions do not rise to the level of a material intra-class conflict. The Settlement correctly treats all Account holders the same, as BofA subjected all its consumer accounts to the same Debit Re-sequencing and all Settlement Class Members confronted several major litigation risks, each of which could have eliminated the claims of each and every Settlement Class Member in their entirety. 3. The Proposed Settlement Class Is Certified. This Court previously found the requirements of Rule 23(a) and 23(b)(3) satisfied in this case. See In re Checking Account Overdraft Litig., 275 F.R.D. 654, 659 (S.D.Fla.2011) (analyzing Rule 23 class certification factors in granting preliminary approval) [DE # 1520], The Court finds that: (a) the Settlement Class Members are so numerous that joinder of all Settlement Class Members is impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over individual questions; (c) the claims of the representative Plaintiffs are typical of the claims of the Settlement Class; (d) the representative Plaintiffs and Settlement Class Counsel fairly and adequately represent and protect the interests of the Settlement Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the instant controversy. Accordingly, the proposed Settlement Class is certified. 4. The Cy Pres Program Is Reasonable. The Settlement provides for a cy pres program for (i) funds due Settlement Class Members who cannot reasonably be identified because certain of BofA’s older transaction data is not in a form that is reasonably manipulable or searchable, Agreement ¶¶ 82, 91; and (ii) any funds that remain after distribution of Settlement Class Member payouts as a result of, for example, checks that are not cashed or returned as