Brill v. Ezee Manufacturing, Inc.

IN THE CIRCUIT COURT OF COOK COUNT, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

JAMES BRILL,  Plaintiff,

v.

EZEE MANUFACTURING, INC.,

and JOHN DOES 1-10, Defendants.

NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT

PLEASE READ THIS NOTICE CAREFULLY.

THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. IT IS A NOTICE OF A SETTLEMENT BEING SENT TO YOU BY COURT ORDER.

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

BY APRIL 15, 2005.

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 ("TCPA"), and state law by sending unsolicited facsimile advertisements. Defendant denies plaintiff’s allegations, and has raised defenses to plaintiff’s claims. Defendant also claims that the TCPA is unconstitutional. Judge McGann disagreed, as have other trial and appellate courts in various places, but there is no case from the Illinois Appellate or Supreme Courts or the U. S. Supreme Court addressing that issue.

Judge McGann granted preliminary approval of the settlement, subject to a fairness hearing which will take place on May 31, 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.

The Court ordered that you be sent this notice because you appear to be a member of the class as defined above. This notice explains the nature of the lawsuit and the terms of the settlement and informs you of your legal rights and obligations.

IN ORDER TO OBTAIN MONETARY BENEFITS OF THIS SETTLEMENT, YOU MUST FILL OUT AND RETURN THE PROOF OF CLAIM FORM AT THE END OF THIS NOTICE BY April 15, 2005.

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 APRIL 15, 2005. If you do not wish to be bound by 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 $46,800 (the "Settlement Fund"). Prior to distribution of the Settlement Fund to the class, an incentive award of $2,000.00 to the named plaintiff, the costs of notice and class administration and attorney’s fees to Class Counsel in the amount discussed below will also be paid from the Settlement Fund. After deduction of the items described above, Defendant shall pay from the Settlement Fund to each class member 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; 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 one payment, which will not exceed $500.00, regardless of the number of faxes received. In the event funds remain in the Settlement Fund after payment of all valid claims, the remainder shall be donated to a charitable organization.

Attorney’s Fees. Plaintiff’s counsel will request approval of the Court for attorneys’ fees and costs of $11,700 (25%). Defendant will not oppose or cause to be opposed an application by plaintiffs’ counsel for attorneys’ fees and costs of $11,700. Plaintiff’s counsel will not request additional fees and costs from defendants or the class.

Release. Unless you exclude yourself from the Settlement, you will be part of the class. By staying in the class, all of the Court’s orders will apply to you, and you give the Defendant a "release." A release means you cannot sue or be part of any other lawsuit against Defendant about the claims in this lawsuit ever again.

CLASS COUNSEL’S OPINION OF THE VALUE OF THE SETTLEMENT: In an individual action, a prevailing plaintiff may 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 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 NAME: 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 Class Counsel 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 attorney’s fees. The hearing will take place on May 31, 2005 at 11:00a.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 wish to receive a portion of the settlement proceeds, you must complete 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 at Edelman, Combs, Latturner & Goodwin LLC, 120 S. LaSalle St., 18^th Floor, Chicago, IL 60603 on or before April 15, 2005. You will be represented by the attorneys for plaintiffs 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 April 15, 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 defendants, 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 before April 15, 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 plaintiffs and for the defendants, at the following addresses by the same date.

(888) 592-6124

Email: edcombs@aol.com

www.edcombs.com

(Attorneys for the plaintiffs and the class)

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 April 15, 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 plaintiffs and for the defendants 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 May 31, 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 APRIL 15, 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 April 15, 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 April 15, 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 defendants’ attorneys; they are not in a position to give you any advice about this settlement.

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PROOF OF CLAIM

BRILL v. EZEE MANUFACTURING, INC., CASE NO: 03 CH 1096 (Circuit Court of Cook County, Illinois)IMPORTANT: THIS CLAIM FORM MUST BE POSTMARKED OR RECEIVED ON OR BEFORE APRIL 15, 2005, AND MAILED TO THE FOLLOWING ADDRESS:

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

120 S. LaSalle Street, 18th Floor

Chicago, Illinois 60603

Please print the following information:

NAME: ________________________________

ADDRESS: ________________________________

CITY/STATE: ________________________________

ZIP CODE: ________________________________

I certify that I received a facsimile ad from Ezee Manufacturing during the Class Period

(YOUR SIGNATURE)