Davis-Holden v. Merchant's Legal Services, P.A.
NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT
To: All persons (i) with Illinois addresses (according to defendants' records), (ii) who were sent a letter in the form represented by Exhibit A or Exhibit B, (iii) on or after September 29, 1997, (iv) seeking to collect money owed to a retail clothing establishment, (v) which was not returned by the Postal Service as undeliverable.
PLEASE READ THIS NOTICE CAREFULLY.
THIS IS NOT AN ATTEMPT TO COLLECT MONEY FROM YOU. THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. YOU MAY BENEFIT FROM READING THIS NOTICE.
YOU MAY HAVE PREVIOUSLY RECEIVED A NOTICE SIMILAR TO THIS. THIS IS NOT A DUPLICATE. THIS NOTICE CONTAINS NEW SETTLEMENT TERMS THAT MAY BENEFIT YOU.
Pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure, you are hereby notified that a class action lawsuit is pending in this Court. You may be a member of the class.
WHAT THIS LAWSUIT IS ABOUT
Plaintiffs, Lisa D. Davis-Holden and Marie Barrientos, brought this class action against defendants, Merchant's Legal Services, P.A. ("MLS"), Samuel C. Aurilio ("Aurilio") and NPC Check Services, Inc. ("NPCCS") to recover damages for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. ("FDCPA").
Plaintiffs alleged that Exhibit A conveyed to an unsophisticated consumer that they would need an attorney "immediately" to defend a legal action and that the recipient would be in serious legal trouble and would need to take "immediate" action. Plaintiffs also alleged that Exhibit B conveyed to an unsophisticated consumer that the police would be notified and that a criminal investigation would take place. Plaintiffs alleged that in truth and in fact, no or virtually no criminal prosecutions result from the activities of MLS or NPCCS in Illinois. Although NPCCS did not mail letters in the form of Exhibits A & B, plaintiffs alleged that NPCCS should be liable under an agency theory.
MLS and Aurilio previously settled this lawsuit. As stated above, you may have previously received notice of that settlement. This is NOT a duplicate notice. The plaintiffs and defendant NPCCS have recently negotiated a proposed settlement. This notice outlines the proposed settlement with NPCCS.
On March 14, 2000, Judge Kennelly granted preliminary approval of the Settlement Agreement, subject to a fairness hearing that will take place on June 16, 2000 at 9:30 a.m., in Room 1719 of the United States District Court for the Northern District of Illinois Eastern Division, 219 S. Dearborn, Chicago, Illinois 60604.
You are being sent this notice because you appear to be a member of the class. This notice explains the nature of the lawsuit and terms of the settlement and informs you of your legal rights and obligations.
NO ADMISSION OF LIABILITY
By settling this lawsuit, NPCCS is not admitting that it did anything wrong. NPCCS expressly denies that it did anything wrong.
THE PROPOSED SETTLEMENT
The attorneys for the class believe that this settlement is fair, reasonable, and in the best interests of the class members. The terms of the settlement are:
1. Relief to the Class. NPCCS agrees to pay a total of $3,000 to the class which will be divided evenly among all class members. The money will be distributed to those class members who do not opt-out and whose notice is not returned by the postal service as not forwardable. There are approximately 42 people in the class. If no class members opt-out, each class member will receive approximately $71.42.
2. Relief to Plaintiffs. NPCCS agrees to pay Lisa D. Davis-Holden $500 and Marie Barrientos $500 as statutory damages and for serving as class representatives. NPCCS also agrees to forgive any debts owed by Ms. Davis-Holden and Ms. Barrientos to NPCCS.
3. Release. Each member of the Settlement Class hereby release and forever discharge defendant NPCCS, its past or present parents, affiliates, subsidiaries, successors, and assigns, and its present or former directors, officers, employees and agents of and from all causes of action, suits, claims and demands, including any indemnity claims for payment of attorneys' fees and costs, whatsoever, in law or in equity, known or unknown at this time, which the Settlement Class now has, ever had, or hereafter may have against defendant, or any of them arising out of the sending of the collection letters at issue herein.
4. Attorneys' Fees and Expenses. Subject to court approval, NPCCS will pay $10,000 for attorneys fees and costs. Plaintiffs' counsel will not request additional fees or costs from defendant or the class members and defendant will not oppose or cause to be opposed an application for the total attorney's fees and costs in the amount of $10,000.
OPINION OF CLASS COUNSEL CONCERNING THE VALUE OF THE SETTLEMENT
The claims asserted on behalf of the class against defendant are under the Fair Debt Collection Practices Act ("FDCPA"). The FDCPA requires that certain notices be provided by a debt collector seeking to collect a debt from a consumer.
In an FDCPA class action, the maximum possible recovery is (i) any actual damages suffered by the class members and (ii) statutory damages, in such amount as the court shall assess, based on the culpability of the defendant's conduct and the amount of harm caused by the defendant. The statutory damages in a class action cannot exceed the smaller of $500,000 or 1% of the defendant's net worth, which must be divided among all the members of the class.
If you filed a separate and independent action, and you were successful, you would be entitled to recover actual damages, if any, plus statutory damages, as the court may allow, up to a maximum of $1,000, plus attorney's fees and costs, which may be significantly more than what you may recover as a class member. If you want to consider filing your own individual claim, you must exclude yourself from this class action, and you should seek the advice of an attorney prior to the expiration of the opt-out period.
Class counsel believes that this settlement is fair and reasonable and that the class members should accept this settlement.
FAIRNESS HEARING
At 9:30 a.m. on June 16, 2000, a hearing will be held on the fairness of the proposed settlement. At the hearing, the Court will hear any objections and arguments concerning the fairness of the proposed settlement. The hearing will take place before Judge Kennelly at the United States District Court for the Northern District of Illinois Eastern Division, 219 S. Dearborn, Room 1719, Chicago, Illinois 60604. YOU ARE NOT OBLIGATED TO ATTEND THIS HEARING UNLESS YOU WISH TO OBJECT TO THE PROPOSED SETTLEMENT.
YOUR OPTIONS
A. To Exclude Yourself from the Class:
You have the right to exclude yourself from both the class action and the settlement by filing a request for exclusion with the Clerk of the District Court for the Northern District of Illinois Eastern Division, 219 S. Dearborn, Chicago, Illinois 60604. The request for exclusion must be received by the Clerk of the Court on or before May 15, 2000, and must refer to 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 listed below in the section entitled "Correct Address" by the same date.
If you exclude yourself from the class, you (a) will not be bound by any judgment or disposition of this case, (b) will retain any claims you may have against NPCCS and (c) will not share in any recovery awarded by the Court.
If you elect to be excluded from the class, you may file an individual action or intervene in this action. If you intend to choose this option, consult with an attorney prior to the expiration of the opt-out period. If you want your own lawyer to represent you in an individual case, the terms of such representation are a matter for you and your lawyer to negotiate.
B. To Object to the Proposed Settlement:
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 District Court for the Northern District of Illinois Eastern Division, 219 S. Dearborn, Chicago, Illinois 60604. The objection must be received by the Clerk of the Court on or before May 15, 2000, and must refer to the name and number of the case. You must also serve copies of your objection on each of the attorneys listed below in the section entitled "Correct Address" by the same date. Any objection must include your name and address and 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 Kennelly on June 16, 2000, at 9:30 a.m. Please note that it is not sufficient to simply state that you object. You must state reasons why the settlement should not be approved.
C. To Remain a Member of the Class:
In order to obtain the benefits of the settlement, you do not need to take any action in order to remain in the class. You will not have to pay any money as a result of staying in the class. However, if you still owe a debt to defendant, you are still obligated to pay that debt.
IMPORTANT: THE COURT REQUIRES THAT ANY REQUESTS FOR EXCLUSION OR OBJECTIONS BE RECEIVED BY THE CLERK BY May 15, 2000. 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 the settlement is not approved, the case will proceed as if no settlement had been attempted. In that event, defendant retains the right to contest whether this case should continue to be maintained as a class action and to contest the merits of the claims being asserted against it in this action. 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. If you wish to see the complete file, you should visit the office of the Clerk of the District Court for the Northern District of Illinois Eastern Division, 219 S. Dearborn, Chicago, Illinois 60604. The Clerk will make the files relating to this lawsuit available to you for inspection and copying at your own expense. You may inspect the entire settlement agreement.
INQUIRIES
Any questions you or your counsel have concerning this notice should be directed to Edelman, Combs & Latturner. Please include the case name and number, your name and your return address on any letters, not just the envelopes.
WHAT YOU SHOULD DO NOW
IN ORDER TO RECEIVE THE BENEFITS TO WHICH YOU ARE ENTITLED UNDER THE SETTLEMENT AGREEMENT OUTLINED ABOVE, YOU DO NOT NEED TO TAKE ANY ACTION. You may also consult with an attorney (at your expense), exclude yourself from the case, or file objections, as described above. You also have the right to file an appearance in the case if you wish.
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 each of the attorneys listed below, stating your past and current addresses.
ATTORNEYS FOR DEFENDANT:
Steven A. Levy
Christine A. Miller
GOLDBERG, KOHN, BELL, BLACK ROSENBLOOM & MORITZ, LTD.
55 East Monroe Street, Suite 3700
Chicago, IL 60603-5802
DO NOT ADDRESS ANY QUESTIONS ABOUT THE CASE TO THE CLERK OF THE COURT OR TO THE JUDGE. They are not permitted to answer your questions.
