The purpose of this Notice is to let you know that a proposed settlement has been reached in the class action lawsuit entitled Michael Kaiser-Nyman v. First Choice Payment Solutions G.P. d/b/a Sekure Merchant Solutions, Civil Action No. 1:17-cv-05472 in the United States District Court for the Northern District of Illinois. You have legal rights and options that you may act on before the Court decides whether to approve the proposed settlement. Because your rights will be affected by this settlement, it is extremely important that you read this Notice carefully. This Notice summarizes the settlement and your rights under it.Top
In a class action, one or more people, called class representatives, sue on behalf of people who have similar claims. All of these people are a class, or class members. One court resolves the issues for all class members, except those who exclude themselves from the class.
Here, the class representative alleges that from July 26, 2013 through February 1, 2018 Defendant violated the Telephone Consumer Protection Act (“TCPA”) by making calls to cellular telephones through the use of an automatic telephone dialing system or an artificial or prerecorded voice. The class representative alleges that Defendant did not have the recipients’ permission to make these calls.
The Court has certified a class for settlement purposes only (the “Settlement Class”). U.S. District Court Judge Thomas M. Durkin (the “Court”) is in charge of this class action.
Defendant denies that it did anything wrong, and denies that this case would be certified as a class action in litigation.Top
The Court did not decide in favor of the Plaintiff or Defendant. Instead, both sides agreed to a settlement. That way, they avoid the cost of a trial, and the people affected will get compensation. The class representatives and their attorneys think the settlement is best for the Settlement Class.Top
You are in the “Settlement Class” if, from July 26, 2013 through February 1, 2018, Defendant called you on a cellular telephone using an automatic telephone dialing system or prerecorded voice.
If you have additional questions about whether you are part of the Settlement Class, you may call 1-844-593-1077.Top
Defendant has agreed to pay six million two hundred and fifty thousand dollars ($6,250,000) to be divided among all Settlement Class Members who send in a valid Claim Form after any fees, costs, service awards, and settlement administration expenses have been deducted.
Defendant has also agreed that they will take remedial steps in an effort to comply with the TCPA’s requirements regarding making telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service.Top
Your share of the settlement will depend on the number of Claim Forms that Settlement Class Members submit. Class Counsel estimate you will receive approximately $30 per claim, but this is only an estimate.Top
To qualify for payment, you must submit a Claim Form by November 30, 2018. There are multiple ways to submit a Claim Form. To have a paper Claim Form mailed to you, please call 1-844-593-1077. If you received a postcard, read the instructions on the postcard carefully, fill out the form, sign it, and mail it postmarked no later than November 30, 2018. You may also submit a Claim Form online through this settlement website or create a Claim Form to print out and mail in to the Settlement Administrator. Claim Forms submitted by mail must be postmarked by November 30, 2018 and mailed to:
First Choice Telemarketing Settlement Administrator
P.O. Box 404083
Louisville, KY 40233-4083Top
The Court will hold a hearing on December 20, 2018 to decide whether to approve the settlement. If the settlement is approved, appeals may still follow. It is always uncertain whether these appeals can be resolved, and resolving them can take more than a year. Please be patient.Top
Unless you exclude yourself, you are staying in the Settlement Class and you will be a Settlement Class Member. That means you can’t sue, continue to sue, or be part of any other lawsuit against Defendant regarding the TCPA claims that are subject to the settlement. If the settlement is approved and becomes final and not subject to appeal, then you and all Class Members release all “Released Claims” against all “Released Parties.” It also means that all of the Court’s orders will apply to you and legally bind you.
The Settlement Agreement describes the claims you are releasing (the “Released Claims”) and against whom you are releasing claims (“Released Parties”) in detail, so read it carefully. To summarize, the release includes, but is not limited to, telemarketing-related claims that arise out of the improper use of an “automatic telephone dialing system” and/or an “artificial or prerecorded voice” to make telephone calls to cellular phones by Defendant.Top
To exclude yourself from the settlement, you must send a letter saying that you want to be excluded from the Michael Kaiser-Nyman v. First Choice Payment Solutions G.P. d/b/a Sekure Merchant Solutions settlement. You must sign the letter and include a statement that you wish to be excluded from this action. Please be sure to include your name, address and telephone number and signature. You must mail your exclusion request postmarked no later than November 30, 2018 to the following address:
First Choice Telemarketing Settlement Administrator
P.O. Box 404083
Louisville, KY 40233-4083
You cannot exclude yourself on the phone or by fax or email. If you ask to be excluded, you will not get any payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Defendant in the future.Top
Unless you exclude yourself, you give up any right to sue Defendant for the claims that this settlement resolves. If you already have a lawsuit that may relate to the claims being released as part of this class settlement, you should speak to your lawyer in that case immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit. Remember, the exclusion deadline is November 30, 2018.Top
No. If you exclude yourself, do not submit a Claim Form to ask for a payment.Top
The Court has appointed Burke Law Offices, Broderick & Paronich, P.C., and The Law Office of Matthew P. McCue to represent you and other Settlement Class Members. These lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.Top
Class Counsel will ask the Court to approve payment of up to two million eighty-three thousand three hundred and thirty-three dollars ($2,083,333) to them for attorneys’ fees. This amounts to 33 1/3% of the total fund. Class Counsel will also seek recovery of their actual expenses spent on the litigation of $19,250. These payments would pay Class Counsel for investigating the facts, litigating the case, and negotiating the settlement. Class Counsel also will request a service award of $15,000 for the named Plaintiff to compensate him for his time and effort. The Court may award less than these amounts.Top
If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you can object to the settlement if you don’t like any part of it. You may give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to Michael Kaiser-Nyman v. First Choice Payment Solutions G.P. d/b/a Sekure Merchant Solutions. You must make your objection in writing and file it with the Court. The written objection must (1) contain information sufficient to allow the parties to confirm that you are a member of the Settlement Class, including your full name, address, telephone number, and signature; (2) include a statement of your specific objections, as well as any witness testimony and documents that you would like the Court to consider; and (3) include the name and contact information of any attorney you intend to have assert your objections before the Court. You must file the objection with the Court no later than November 30, 2018:
Michael Kaiser-Nyman v. First Choice Payment Solutions G.P. d/b/a Sekure Merchant Solutions
Case No. 1:17-cv-05472
Clerk of the Court
U.S. District Court for the Northern District of Illinois
219 S Dearborn St.
Chicago, IL 60604Top
Objecting simply means telling the Court that you don’t like something about the settlement. You can object only if you stay in the Settlement Class. Excluding yourself from the Settlement Class is telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.Top
The Court will hold the final fairness hearing at 9:00 a.m. on December 20, 2018, before the Honorable Thomas M. Durkin at the U.S. District Court for the Northern District of Illinois, 219 S Dearborn St., Chicago, IL 60604. The purpose of the hearing is for the Court to determine whether the settlement is fair, reasonable, adequate, and in the best interests of the class. At the hearing, the Court will hear any objections and arguments concerning the fairness of the proposed settlement, including those related to the amount requested by Class Counsel for attorneys’ fees and expenses, and the incentive award to the class representative. After the hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will take. The date and time of the final fairness hearing are subject to change by Court Order, please check this settlement website periodically for updates.Top
Class Counsel will answer any questions the Court may have. But you are welcome to come to the hearing at your own expense. If you send an objection, you don’t have to come to Court to talk about it. As long as your written objection was filed or mailed on time, and meets the other criteria described in the Settlement Agreement, the Court will consider it. You may also pay a lawyer to attend, but you don’t have to.Top
If you do not exclude yourself from the Settlement Class, you may ask the Court for permission to speak at the hearing concerning any part of the proposed Settlement Agreement. If you filed an objection and intend to appear at the hearing, you must state your intention to do so in your objection. To speak, you must state that in your objection. Be sure to include your name, address, telephone number, that you are a Class Member, and your signature. You cannot speak at the hearing if you exclude yourself.Top
If you do nothing, you’ll get no money from this settlement. But, unless you exclude yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant about the legal issues released in this case.Top
If you have additional questions and can't find the answers on this settlement website, you can call 1-844-593-1077 toll free; write to First Choice Telemarketing Settlement Administrator, P.O. Box 404083, Louisville, KY 40233-4083; or you also may write to Broderick & Paronich, P.C., 99 High St., Suite 304, Boston, MA 02110.
PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT OR CLAIMS PROCESS.Top