Bernstein v New Century Notice

TO:     All persons or entities located anywhere in the United States who, on or after April 4, 1997 were sent or received an unsolicited advertising fax from or on behalf of NEW CENTURY MORTGAGE CORPORATION.  Persons or entities which have previously entered into settlement agreements with New Century Mortgage regarding the transmission of unsolicited facsimile ads are excluded from the Settlement Class.  

IF YOU WERE NOT SENT OR DID NOT RECEIVE AN UNSOLICITED FACSIMILE AD FROM OR ON BEHALF OF NEW CENTURY MORTGAGE CORPORATION DURINGTHE PERIOD APRIL 4, 1997 TO THE PRESENT THEN THIS NOTICE DOES NOT APPLY TO YOU AND YOU MAY NOT SUBMIT A CLAIM FORM 

PLEASE READ THIS NOTICE CAREFULLY.

THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU.

YOU MAY BENEFIT FROM READING THIS NOTICE.

 

IF YOU WISH TO RECEIVE A PORTION OF THE CLASS SETTLEMENT

PROCEEDS, YOU MUST RETURN THE FORM AT THE END OF THIS NOTICE.

 

 

WHAT THIS LAWSUIT IS ABOUT

Plaintiff filed this action in the Circuit Court of Cook County, Illinois.  On behalf of a putative class, plaintiff alleged that the defendant violated the Telephone Consumer Protection Act, 47 U.S.C. 227, by sending unsolicited facsimile advertisements.

The defendant denies plaintiffs allegations, and has raised defenses to plaintiffs claims.

Judge McGann granted preliminary approval of the settlement and certified a settlement class of all persons or entities located anywhere in the United States who on or after April 4, 1997 were sent or received an unsolicited advertising facsimile from or on behalf of New Century Mortgage Corporation, excluding persons or entities which have previously entered into settlement agreements with New Century Mortgage regarding the transmission of unsolicited facsimile ads  (the Settlement Class), subject to a fairness hearing which will take place on April 5, 2005 at 11:00 a.m., in Room 2508 of the Circuit Court of Cook County, Illinois, Daley Center, 50 W. Washington, Chicago, Illinois, 60602.

If you were not sent or did not receive an unsolicited facsimile ad from or on behalf of New Century Mortgage Corporation during the period April 4, 1997 to the present (the Class Period), this notice does not apply to you and you need do nothing further.  If you were sent or did receive an unsolicited facsimile ad from New Century Mortgage Corporation during the Class Period, then you should read this Notice carefully.  This notice explains the nature of the lawsuit and the terms of the settlement and informs you of your legal rights and obligations.

NO ADMISSION OF LIABILITY

By settling this lawsuit, defendant is not admitting that it has done anything wrong.  Defendant expressly denies that it has done anything wrong.

THE PROPOSED SETTLEMENT

Plaintiff and defendant have agreed to the settlement described below.  IF YOU WISH TO RECEIVE A PORTION OF THE SETTLEMENT PROCEEDS, YOU MUST RETURN THE PROOF OF CLAIM FORM AT THE END OF THIS NOTICE BY MARCH 21, 2005.  If you do not wish to be part of the settlement, you must opt-out.  If you return your form and the settlement is finally approved, you will be sent a check for your portion of the settlement.

Recovery to Class Members.  Defendant agrees to pay into a Settlement Fund the total sum of $1,950,000.00 (the Settlement Fund).  An incentive award to the named plaintiff, attorney= s fees to Class Counsel in the amount discussed below and  the costs of notice and class administration will be paid from the Settlement Fund, as approved by the Court.  After deduction of attorneys fees and the cost of notice and class administration from the Settlement Fund, each member of the Settlement Class who: (i) does not opt-out; and (ii) RETURNS THE PROOF OF CLAIM FORM AT THE END OF THIS NOTICE INDICATING THAT THEY WANT TO PARTICIPATE IN THE MONETARY BENEFITS OF THE SETTLEMENT BEFORE EXPIRATION OF THE DEADLINE AND FULLY COMPLETES AND SIGNS THE FORM; shall receive a pro-rata share of the Settlement Fund based upon the number of valid claims submitted by class members.  No class member will receive more than $500.00 regardless of the number of facsimiles received by the Settlement Class member.  In the event funds remain in the Settlement Fund after payment of all valid claims, the remainder shall be donated to a charitable organization.

Attorneys Fees. < /b> Plaintiffs counsel will request approval of the Court for attorneys fees and costs of $487,500.00.  Defendant will not oppose or cause to be opposed an application by plaintiffs counsel for attorneys fees and costs of $487,500.00. Plaintiffs counsel will not request additional fees and costs from defendant or the class. 

Relief to Named Plaintiff.  Subject to Court approval, Paul Bernstein, the Class Representative will receive an incentive award of up to $5,000 for his service as class representative and no further compensation.

Costs. Costs associated with the notice and administration of this Agreement will be paid from the Settlement Fund as approved by the Court.

Release: Unless you exclude yourself from the Settlement, you will be part of the class.  By staying in the class, all of the Courts orders will apply to you, and you give New Century Mortage Corporation and its parent and affiliated companies and their predecessors and successors, a release for all claims relating to their sending of unsolicited advertisements by fax.  A release means you cannot sue or be part of any other lawsuit against New Century Mortgage Corporation or its parent or affiliated companies about the claims or issues in this lawsuit ever again.

CLASS COUNSEL=S OPINION OF THE VALUE OF THE SETTLEMENT

In an individual action, a prevailing plaintiff may be able to recover $500 in statutory damages under the TCPA ($1500 if a willful violation is shown). 

Of course if an individual does not prevail, he will receive no payment. There have also been questions raised as to the constitutionality of the TCPA and concerning whether certain states recognize private causes of action under the TCPA.

Under certain state laws prevailing Plaintiffs may recover lesser amounts, as some states have adopted their own statutes.  Those statutes may also contain defenses which do not exist under the TCPA and which defenses may prohibit any recovery whatsoever.

  For these reasons, Class Counsel believes that the settlement is fair and reasonable and that the class members should accept this settlement.

CORRECT ADDRESS

If this notice was forwarded by the Postal Service, or if it was otherwise sent to you at an address which is not current, you should immediately send a letter to claims administrator at the following address stating your past and current addresses plus the case name Bernstein v. New Century Mortgage Corporation, Case No: 02 CH 7745:

First Class, Inc.

626 S. Clark St., 7^th Fl.

Chicago, IL 60605-1711

Attn: New Century Address Corr.

 

If any of the persons to whom this notice is sent have died or are divorced or changed their name, you should send a letter to the same address explaining who you are and why the claim belongs to you and include any supporting documentation.

 

FAIRNESS HEARING

 

A hearing will be held on the fairness of the proposed settlement.  At the hearing, the Court will be available to hear any objections and arguments concerning the fairness of the proposed settlement.  At the hearing, the Court will be available to hear any objections and arguments concerning the fairness of the proposed settlement, including the amount of the award to plaintiffs counsel of costs and attorneys fees.  The hearing will take place on April 5, 2005 at 11:00 a.m. before Judge McGann in Room 2508 of the Richard J. Daley Center, 50 W. Washington, Chicago, Illinois, 60602.  YOU ARE NOT OBLIGATED TO ATTEND THIS HEARING UNLESS YOU PLAN TO OBJECT TO THE SETTLEMENT.

 

YOUR OPTIONS

 

1.         If you were sent or received an unsolicited facsimile ad from or on behalf of New Century Mortgage Corporation during the Class Period and if you wish to receive a portion of the settlement proceeds, you must fully complete, sign and return the proof of claim form at the end of this notice indicating that you wish to participate in the settlement.  The proof of claim form must be post-marked or received by First Class, Inc., 626 S. Clark St. 7^th Fl., Chicago, IL 60605-1711 on or before March 21, 2005.  You will be represented by the attorneys for plaintiff without additional charge.  Or, if you prefer, you may enter your own appearance or ask the Court to allow you to participate in the settlement through your own attorney.  If you wish to participate on your own or through your own attorney, an appearance must be filed with the Court by March 21, 2005.  If you participate through your own attorney, it will be at your expense.  Any party who returns a claim form or otherwise does not exclude his or herself from the settlement, as described below, will be bound by the settlement agreement and release of claims against the defendant, as approved by the Court.

 

2.         You have the right to exclude yourself from both the class action and the settlement by filing a written request for exclusion with the Clerk of the Circuit Court of Cook County, Illinois, Daley Center, 50 W. Washington, Chicago, Illinois, 60602.  The request for exclusion must be received by the Clerk of the Court on or March 21, 2005, and must list  your name, address, and the name and number of the case.  You must also serve copies of the request for exclusion on each of the attorneys for the plaintiff and for the defendant, at the following addresses by the same date.

 

Daniel A. Edelman

EDELMAN, COMBS, LATTURNER

& GOODWIN, LLC

120 South LaSalle Street, 18^TH fl.

Chicago, Illinois 60603

312-739-4200

Fax: (312) 419-0379

www.edcombs.com

(Attorneys for the plaintiff and the class)

 

Bart T. Murphy, Esq.

Wildman, Harrold, Allen & Dixon LLP

2300 Cabot Drive, Ste. 455                       

Lisle, IL 60532-3639           

(Attorney for defendant New Century Mortgage Corporation)

 

3.         If you object to the settlement, and wish to submit an objection rather than simply exclude yourself from the class action, you must submit your objection in writing to the Clerk of the Circuit Court of Cook County, Illinois, Daley Center, 50 W. Washington, Chicago, Illinois, 60602.  The objection must be received by the Clerk of the Court on or before March 21, 2005. , and must refer to the name and number of the case.  You must also serve copies of your objection on each of the attorneys for the plaintiff and for the defendant listed above by the same date.  Any objection must include your name and address, the name and number of the case, and a statement of the reasons why you believe that the Court should find that the proposed settlement is not in the best interests of the class.  If you do file an objection and wish it to be considered, you must also appear at the hearing before Judge McGann on April 5, 2005 at 11:00 a.m.  YOU ARE NOT REQUIRED TO ATTEND THIS HEARING UNLESS YOU PLAN TO OBJECT TO THE SETTLEMENT.  Please note that it is not sufficient to simply state that you object.  You must state reasons why the settlement should not be approved.

 

IMPORTANT: THE COURT REQUIRES THAT ANY REQUESTS FOR EXCLUSION OR OBJECTIONS BE RECEIVED BY THE CLERK BY MARCH 21, 2005.  IF YOU MAIL A REQUEST FOR EXCLUSION OR OBJECTION, YOU BEAR THE RISK OF THE REQUEST FOR EXCLUSION OR OBJECTION NOT BEING RECEIVED BY THE CLERK BY THE DEADLINE.

 

If you choose to exclude yourself from the class action and settlement you will not receive payment under this agreement.  If you remain in the class action but do not return a proof of claim form by March 21, 2005, you will be bound by the settlement agreement and release but will not receive payment under this agreement.   Only those class members who complete and return a valid proof of claim form post-marked on or before March 21, 2005 will receive payment under this agreement.

 

If the settlement is not approved, the case will proceed as if no settlement had been attempted.  There can be no assurance that if the settlement is not approved, the class will recover more than is provided in the settlement, or indeed, anything.

 

This description of the case is general and does not cover all of the issues and proceedings thus far.  In order to see the complete file, including a copy of the settlement agreement, you should visit the office of the Clerk of the Circuit Court of Cook County, Illinois, Daley Center, 50 W. Washington, Chicago, Illinois, 60602.  The Clerk will make the files relating to this lawsuit available to you for inspection and copying at your own expense.

 

 

INQUIRIES

 

Any questions you or your attorney has concerning this notice should be directed to Edelman, Combs, Latturner & Goodwin, LLC at the address listed above.  Please include the case name and number, your name and your current return address on any letters, not just the envelopes.  Please do not contact the Court Clerk or the defendant=s attorneys; they are not in a position to give you any advice about this settlement.

 

Dated: January 13, 2005

By Order of the Court

THE HONORABLE JUDGE PATRICK McGANN

 

CIRCUIT COURT OF COOK COUNTY, ILLINOIS CHANCERY DIVISION