A settlement has been reached in this class action lawsuit against Defendant Senco Brands, Inc. (“SBI”), about fax advertisements sent by SBI on and after September 5, 2010. The Court presiding over the lawsuit has preliminarily approved the settlement and certified the Settlement Class, defined as:
All subscribers of facsimile telephone numbers to which SBI transmitted, on or after September 5, 2010, one or more facsimiles, as recorded in Senco024902 attached as Exhibit 1 to thie Class Action Settlement Agreement (the “Faxes”).
If you are a class member – a “subscriber” of a fax telephone number to which SBI sent Faxes during the “Class Period” – you are entitled to receive a payment from the settlement. The fax telephone numbers to which SBI sent Faxes are shown in SBI’s records (Senco024902), which can be viewed on the Court Documents page. Only the subscribers of these fax telephone numbers are eligible to be paid, regardless of who else used the same fax telephone number. Before any money is paid, the court will have a hearing to decide whether to give final approval of the settlement.Top
Plaintiff Craftwood Lumber Company (“Plaintiff”) sued Senco Brands, Inc. (“SBI”) alleging that SBI violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 ( “TCPA”), by sending unsolicited facsimile advertisements and facsimile advertisements that do not comply with the TCPA’s opt-out notice requirements. The TCPA permits a person to whom such advertisements are sent to bring legal action against the sender and recover either actual damages or statutory damages of $500 per violation. The TCPA also permits a court to increase the statutory damages up to a maximum of $1,500 per violation if it is established that the defendant willfully and/or knowingly violated the TCPA. SBI denies that it violated the TCPA and will defend the lawsuit if the proposed settlement is not approved.
The Court has not decided who is right. SBI has agreed to settle this action to avoid the costs and uncertainties of litigation. Plaintiff has agreed to settle because it believes that the settlement is in the best interests of the Settlement Class and provides substantial benefits to class members without the risk of continued litigation.Top
The Court has appointed C. Darryl Cordero of Payne & Fears LLP as lead Settlement Class Counsel, and Frank F. Owen of Frank Owen & Associates, P.C., and Charles R. Watkins of Guin, Stokes & Evans LLP, as Settlement Class Counsel. You are free to retain your own attorney at your expense to represent you should you wish to do so.Top
After extensive negotiations, including mediation before an impartial mediator, the parties have reached a proposed settlement of the lawsuit. Under the settlement, Defendant Senco Brands, Inc. (“SBI”) will pay $3 million to the Settlement Class. The costs of class notice and settlement administration expenses, attorneys’ fees and litigation-related costs, and any incentive award awarded to Plaintiff for its service in the case will be deducted from this $3 million fund to determine the amount to be paid class members. Settlement Class Counsel will ask the court to award their attorneys’ fees in an amount up to one-third of the $3 million fund, and Plaintiff will ask the court to award an amount up to $35,430 for its service as class representative. The court will decide the amount of the attorneys’ fees and costs and whether Plaintiff should receive an incentive award (and in what amount) at the “Final Approval Hearing”. Settlement Class Counsel and Plaintiff have prosecuted the case for more than two years without compensation.
The net settlement payment (the “Members’ Payment Amount”) will be distributed to Settlement Class members. Each Settlement Class member will be awarded one share (“Share”) for each Fax transmission sent to the class member as determined from SBI’s records. Each Share entitles a class member to be paid the dollar sum achieved by dividing the Members’ Payment Amount by the total number of Shares awarded all class members. You do not need to submit proof that you received Faxes in order to receive payment.
Each class member who may receive payment of $600 or more will be asked to complete an Internal Revenue Service Form W-9. A class member that fails to timely provide a completed Form W-9 will have his or her payment subject to withholding as required by the then-existing rules and regulations of the IRS.
Each class member (except a class member who has obtained proper and timely exclusion from the Settlement Class; see below) will release SBI and all of its past and present officers, directors, members, servants, shareholders, sureties, insurers, attorneys, employees, and entities, successors, or predecessors, including Senco Products, Inc., and all such persons’ or entities’ successors or predecessors in interest, assigns and legal representatives, from all claims arising out of or related to the allegations in the lawsuit, including claims based on violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, and regulations of the Federal Communications Commission under that act (the “Released Claims”).Top
Notice of settlement was sent to all known class members based on Defendant Senco Brands, Inc.’s (“SBI”) records. If you are a class member and received a notice and Class Member Information Form, and if the court approves the settlement, you will be mailed a settlement check based on the information contained in SBI’s records, including names and addresses, associated fax telephone numbers, and the number of transmissions of Faxes you received. It is possible, however, that you received a Fax from SBI during the Class Period but did not receive a notice from the Settlement Administrator regarding this settlement. If so, you are entitled to submit proof to the Settlement Administrator that you were the subscriber of a fax telephone number to which SBI sent one or more Faxes. To participate in the settlement, you must mail or fax any such proof, together with a signed and completed Class Member Information Form providing, among other things, your name, your current address, telephone number and email address, and your fax telephone number(s) during the Class Period, to the Settlement Administrator so that it is received no later than June 6, 2017 to the following address or fax number:
Senco Brands Settlement Administrator
P.O. Box 43034
Providence, RI 02940-3034
(310) 776-8385 (fax)
Option # 1 - Do Nothing: If you received a notice and Class Member Information Form from the Settlement Administrator and elect to do nothing, and if the court approves the settlement, you will be a member of the Settlement Class and will receive payment for Faxes sent to your facsimile telephone number, as reflected in Defendant Senco Brands, Inc.’s records (subject to withholding as required by the then-existing rules and regulations of the Internal Revenue Service). You will also be bound by all determinations or judgments in the lawsuit and release the Released Claims described later in this notice.
Option # 2 – Submit a Class Member Information Form: A “Class Member Information Form” was sent to all known class members and also is available for download here. You can use it to provide your name, current address, telephone number and email address and fax telephone number(s) during the Class Period. You will receive payment for Faxes as determined by the Settlement Administrator from SBI’s records (subject to withholding as required by the then existing rules and regulations of the IRS if your Form W-9 is not timely and properly provided), and you will be bound by all determinations or judgments in the lawsuit and release the Released Claims. IF YOU RECEIVED A FAX FROM SBI BUT DID NOT RECEIVE A NOTICE FROM THE SETTLEMENT ADMINISTRATOR REGARDING THIS SETTLEMENT, UNLESS YOU SEND A CLASS MEMBER INFORMATION FORM TO THE SETTLEMENT ADMINISTRATOR YOU WILL NOT RECEIVE ANY MONEY RECOVERY UNDER THIS SETTLEMENT.
Option # 3 - Exclude Yourself: You may exclude yourself from the Settlement Class. If you choose this option, please follow the directions below and be sure that your request for exclusion is received by the Settlement Administrator no later than March 17, 2017. Do not request exclusion if you wish to participate in the settlement and receive payment under the settlement.If you timely and validly ask to be excluded from the class, you will (a) not be entitled to any payment; (b) not be bound by any determinations or judgments entered in the lawsuit; and (c) not release any claims against SBI.
Option # 4 - Object to the Settlement: If you do not exclude yourself from the Settlement Class, you have the right to object to any aspect of the settlement, including the relief provided to class members, the requested attorneys’ fees and expenses, and/or the requested incentive award. If you object, you must file and serve objections by following the directions below no later than May 2, 2017. Even if you object to the settlement, you will still be a class member and entitled to a payment from the settlement, and subject to the Releases herein.Top
To exclude yourself from the settlement, you must make a signed written request for exclusion that includes your name and current address, current telephone number and facsimile telephone number(s) on and after September 5, 2010. Requests for exclusion must be received by the Settlement Administrator no later than March 17, 2017. Your exclusion request must be mailed or faxed to:
Senco Brands Settlement Administrator
P.O. Box 43034 Providence
(310) 776-8385 (fax)
You have the right to object to the proposed settlement, the attorneys’ fees and expenses requested by Settlement Class Counsel, and the incentive or service award requested by Plaintiff. To be valid and considered by the Court, any objections must be submitted in writing, filed with the Clerk of the Court – DO NOT MAIL OR ATTEMPT TO FILE DOCUMENTS WITH THE JUDGE; THEY MUST BE FILED WITH THE CLERK OF THE COURT – and served by mail and/or e-mail on Plaintiff’s counsel by no later than May 2, 2017. Your objection must include the following:
Only persons who file and serve a Notice of Intention to Appear, or his or her attorney identified in the Notice of Intention to Appear, may make an appearance or speak at the Final Approval Hearing.
In the event that any class member objects to the settlement, Plaintiff and SBI shall have an opportunity to respond to such objections.
ANY SETTLEMENT CLASS MEMBER WHO DOES NOT OBJECT IN THE WAY DESCRIBED ABOVE WILL BE DEEMED TO HAVE WAIVED SUCH OBJECTIONS AND SHALL NOT HAVE ANY RIGHT TO OBJECT TO THE FAIRNESS OR ADEQUACY OF THE SETTLEMENT, ANY AWARD OF ATTORNEYS’ FEES/COSTS, OR ANY AWARD OF INCENTIVE PAYMENT.
An original and one copy of all objections, including any Notice to Appear and all other papers required to be submitted, shall be timely filed with the Clerk of the Court at the following address:
Clerk of the U.S. District Court
219 S. Dearborn, 20th Floor
Chicago, IL 60604
Copies of all documents filed with the Clerk of the Court must also be sent to Plaintiff’s counsel at the following address:
Scott O. Luskin
Payne & Fears LLP
1100 Glendon Avenue, Suite 1250
Los Angeles, CA 90024
The Court has scheduled a Final Approval Hearing for June 6, 2017, at 9:45 A.M., in Courtroom 1725 in the Everett McKinley Dirksen United States Courthouse, 219 S. Dearborn, Chicago, IL 60604, for the purpose of deciding whether to grant final approval to the Settlement Agreement and to determine the amount of attorneys’ fees and expenses to be paid to Settlement Class Counsel and any incentive award to be paid to Plaintiff. You do not need to attend the Final Approval Hearing to receive a settlement payment. The date and time of the Final Approval Hearing may be continued by the Court without further notice.Top
The notice is intended only as a summary of the lawsuit and proposed settlement. It is not a complete statement of the lawsuit or the proposed settlement. If there is any conflict between the notice and the Class Action Settlement Agreement, the Class Action Settlement Agreement governs. To obtain additional information regarding this settlement you may:
DO NOT CONTACT THE COURT, SENCO OR SENCO’S ATTORNEYS FOR INFORMATION.Top