Declaration of William H. Anderson in Support of Joint Motion for

Transcription

Case 1:14-cv-12409-MLW Document 20 Filed 01/15/16 Page 1 of 6
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TODD M. GORNSTEIN, on behalf of himself
and all others similarly situated,
Plaintiff
CA. No. I:14-ev-12409-MLW
V.
TIMBERTECH LTD,, and CPU
INTERNATIONAL, INC.,
Defendants.
DECLARATION OF WILLIAM IL ANDERSON IN SUPPORT OF 30INT MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
I, William
1.
Anderson, declare as follows:
I am an attorney duly licensed to practice in thc District of Columbia, Commonwealth
of Pennsylvania and the State of Colorado. I am a partner in the law firm of Cuneo Gilbert &
LaDuca, I proposed Class Counsel for Plaintiff and Settlement Class members in the aboveentitled action, I have personal knowledge of the matters stated herein and, if called upon. I could
and would competently testify thereto. I submit this declaration in support of the Parties' Joint
Motion for Preliminary Approval of Class Action Settlement.
2,
Attached hereto as Exhibit 1 is the fully executed Settlement Agreement and Release
of Claims ("Settlement Agreement"). Appended to the Settlement Agreement as Exhibits A-E are:
(A) the Claim Form, (B) the Notice Plan, (C) the Proposed Website Notice, (D) the Proposed Mail
Notice, and (E) the Proposed Preliminary Approval Order.
3.
Attached hereto as Exhibit 2 is the curriculum vitae of Cunco Gilbert & LaDuea, 1,I,P
("COL").
4.
Attached hereto as Exhibit 3 is the curriculum vitae of Lockridge Grindal Nauen
5.
Attached hereto as Exhibit 4 is the curriculum vitae of .Audet & Partners, UP,
6.
Attached hereto as Exhibit 5 is the curriculum vitae orattorney Erica C. Mirabella.
7.
Proposed Settlement Class Counsel have extensive experience in class actions
PLLP.
generally, and in cases alleging defects in various construction-related materials.
8.
COI, was co-lead counsel in the Entran 11 radiant heating litigation, which yielded a
$364 million settlement. CCiL was also co-lead counsel in the Certainteed roofing shingle litigation,
which yielded a settlement with an estimated value o f $700 million. COL was also co-lead counsel
All capitalized terms shall have the same meaning assigned to them in the Settlement Agreement
and Release of Claims, unless otherwise noted.
in the 1pcx brass fittings case that lead to a $125 million fund of compensation for homeowners.
These are but a few examples of cases evidencing sophistication in this area of the law, and
settlements which yielded substantial recoveries for consumers.
9.
Prior to drafting and filing the original complaint in the instant action, my firm, along
With co-counsel, conducted significant research into applicable state and federal law, spoke with
decking experts and interviewed numerous potential class members over a period of several months.
10.
On June 6, 2014, Plaintiff's counsel filed the initial complaint in this action and sent a
Chapter 93A letter the same day. Subsequently, in a letter dated July 9, 2014, Paul
Williams, of Shook I lardy & Bacon, LLP, responded to the 93A letter and indicated, among other
things, that Defendants would not entertain a class settlement.
11.
On July 31, 2014, Plaintiff filed the operative amended complaint. Defendants
subsequently substituted counsel and answered the amended complaint in lieu of moving to dismiss
pursuant to Fed. R. Civ. P. 12.
12.
In mid-September 2014 undersigned counsel spoke with counsel for the Defendants,
and, for the first time discussed the potential for early resolution. Defendants' counsel indicated that
the breadth of the defect was more narrow than the amended complaint contemplated. The
discussion was productive and suggested that common ground might be found for purposes of
settlement.
13.
In follow up to that discussion, undersigned counsel sent a letter to counsel for
Defendants and requested certain targeted discovery to illuminate the issues surrounding
Defendants' claim that the class should be more narrowly defined. In addition, the discovery was
directed at a variety of information necessary for Plaintiff's counsel to be prepared to participate
constructively in mediation including, sales data, defect complaints, and warranty data. Ultimately,
Case 1:14-cv-12409-MLW Document 20 riled 01/15/16 Page 4 of 6
in light of the informal discovery produced, Plaintiff agreed to narrow the class to Mountain Cedar
and Desert Bronze.
14.
Ultimately, the Parties agreed to mediate on November 18, 2014, in Columbus, Ohio.
The Parties agreed upon thelIonorable Charles M. Swartwood, III (mt.) of JAMS in Boston to serve
as their mediator. Judge Swartwood served as a Magistrate Judge for the United States District
Court, District of Massachusetts from 1993-2005 and Chief Magistrate Judge from 2005-2006.
15.
In preparation for the mediation, Plaintiff s counsel carefully reviewed the informal
discovery provided by Defendants. In addition, Plaintiff s counsel prepared a mediation statement
and held discussions with Judge Swartwood prior to the mediation by phone. The mediation on
November 18, 2014, provided an excellent forum for the Parties to have a frank dialogUe about
settlement and narrowed the issues in dispute. Linfbrtunately, the Parties were not able to reach
agreement on November 18, 2014.
16.
In the weeks and months .following the mediation the Parties stayed in contact and
continued to negotiate towards a resolution. Numerous follow-up communications occurred by
phone and email. Additional informal discovery was also requested and provided including
historical pricing data. Although at times it looked as if no settlement could be reached, following
months of sometimes contentious dialogue, the Parties were able to agree on all material terms. At
that point the parties began preparing and exchanging drafts of the Settlement Agreement.
Originally, the Settlement Agreement included a direct replacement of XI,M Mountain Cedar for
XLM Mountain Cedar and XLM Harvest Bronze for XLM Desert Bronze. However, Plaintiffs
counsel was informed in September 2015 that CPG was ceasing production of XLM Mountain Cedar
and XLM Harvest Bronze. Because the Crane Group, which owned Timbeffech at the time the
decking at issue was manufactured, but subsequently sold TimberTech to Defendant CPG, was
leading negotiations as indemnitor to CPG the issue did not come to light earlier. I lowever, after
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additional dialogue and informal discovery, the Parties agreed to the broader variety of colors and
lines now available to members of the Class through the proposed Settlement, '1'his change did not
affect the fundamental premise of the Settlement that members of the Class would be eligible to
receive free replacement materials, it merely expanded the options available to members of the
Class.
17.
Once the material terms of the settlement. were agreed upon the Parties began
discussions regarding the Plaintiff service award, as well as attorney's fees and costs. The Parties
were unable to reach consensus on the appropriate amounts. Following the submission of mediationrelated materials and calls with Judge Swartwood, on August 19, 2015, the Parties held a one half
day mediation before Judge Swartwood directed at the service award, attorney's fees and costs.
18.
The second mediation before Judge Swartwood ended with the Parties' acceptance of
a mediator's proposal of $329,000 for attorney's fees and costs, as well as a service award of $4,800
for Plaintiff Gornstein, subject to the Court's review and consideration.
I declare under penalty of perjury under the laws of the United States of America that the foregoing
is true and correct. Executed on the 15th day of January, 2016, at Boulder, Colorado.
WILLIAM H. ANDERSON
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Case 1:14-cv-12409-MLW Document 20 Filed 01115/16 Page 6 of 6
CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2016, I filed the foregoing with the Clerk of the Court
using the CMIECF system, which will send notification of such filing to all counsel registered with
that system.
Is/ Matthew E. Miller
Matthew E. Miller (BBO# 559353)
CUNEO GILBERT & LADUCA, LLP
507 C Street, NE
Washington, DC 20002
(202) 789-3960
[email protected]
Case 1:14-cv-12409-MLW Document 20-1 Filed 01/15/16 Page 1 of 50
FOR THE DISTRICT OF MASSACHUSETTS
)
)
)
)
Plaintiff, )
)
)
v.
)
)
)
TIMBERTECH LTD., and
CPG INTERNATIONAL, INC.,
)
)
Defendants.
)
)
TODD M. GORNSTEIN, on behalf of
himself and all others similarly situated,
Civil Action No. 1:14-CV-12409-MLW
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims ("Settlement" or "Agreement") is made
and entered into by and between plaintiff Todd M. Gornstein ("Plaintiff" or "Named Plaintiff"),
acting individually and on behalf of the Settlement Class defined below, and defendants
TimberTech Ltd. ("TimberTech") and CPG International LLC ("CPG") (formerly known as CPG
International, Inc.) (collectively, the "Defendants"). The Plaintiff and the Defendants, collectively,
are referred to herein as the "Parties."
RECITALS
WHEREAS, Plaintiff has brought a proposed class action, on behalf of himself and a
putative class, entitled Gornstein v. TimberTech Ltd and CPG International, Inc., Case No. 14-cv12409, currently pending in the United States District Court for the District of Massachusetts (the
"Action"), which seeks injunctive relief and damages for alleged Breach of Implied Warranty,
Unjust Enrichment, Negligent Misrepresentation, Negligence, and Violation of Mass. Gen. Laws
ch. 93A, arising out of Defendants' manufacture and sale of allegedly defective decking materials;
and
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WHEREAS, Defendants have filed an answer and affirmative defenses denying any and all
wrongdoing and liability to Plaintiff and the putative class; and
WHEREAS, the Plaintiff and Plaintiff's Counsel, while believing that the claims asserted
in this Action have merit, have examined the benefits to be obtained under the terms of the
proposed settlement, and have considered the risks associated with the continued prosecution and
possible appeal of this litigation, and the likelihood of success on the merits of this Action, and
believe that, in careful consideration of all the circumstances, the settlement embodied in this
Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class (as
hereinafter defined); and
WHEREAS, Plaintiff's Counsel have performed substantial investigation regarding the
claims and the defenses that were or could have been asserted in this Action. Among other things,
Plaintiff's Counsel propounded document and information requests, analyzed documents produced
by Defendants, reviewed public documents, consulted with experts, and researched the applicable
law regarding the claims asserted and the potential defenses thereto; and
WHEREAS, Defendants, while denying wrongdoing and liability of any kind whatsoever,
and without admitting liability, nevertheless have agreed to enter into this Agreement and the
settlement contained herein to avoid further risk, expense, inconvenience and the distraction of
burdensome and protracted litigation, and to be completely free of any further controversy with
respect to the claims that were or could have been asserted by Plaintiff in the amended class action
complaint filed in this Action on July 31, 2014 (the "Class Action Complaint").
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, the Plaintiff, individually
and on behalf of the Settlement Class, and Defendants hereby agree that this Action and the claims
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that are raised or could be raised in it are hereby settled, compromised, and dismissed, on the merits
and with prejudice, on the following terms and conditions, subject to the approval of the Court:
A.
DEFINITIONS
The following definitions, in addition to any definitions elsewhere in this Agreement, shall
apply for purposes of this Agreement and the Exhibits hereto:
1) "Action" means the above captioned action, Gornstein v. TimberTech and CPG
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International, Inc., Case No. 14-cv-12409, pending in the United States District
Court for the District of Massachusetts.
2) "Agreement" or "Settlement" or "Settlement Agreement" means this Settlement
Agreement, including and incorporating herein by reference all Exhibits.
3) "Attorneys' Fees and Costs" means the amount awarded by the Court as
compensation for the services provided by Plaintiff's counsel (which includes all
counsel representing the Plaintiff in this matter, including Class Counsel and all
other counsel who signed the Class Action Complaint in this matter) to date and into
the future to effectuate this Settlement, to include reimbursement of costs, expenses,
and interest (including expert witness fees and expenses), The Attorneys' Fees and
Costs shall be paid in addition to, and shall not be a reduction of, the compensation
payable to Eligible Claimants pursuant to this Agreement.
4) "Claim or Claims" means a claim for a Covered Condition submitted pursuant to
the Claims Program established by this Agreement.
5) "Claimant" means anyone who submits a Claim in the Claims Program.
6) "Claim Form" means the document made available pursuant to the provisions of
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the Notice Plan that a Class Member must submit, subject to the provisions of this
Agreement, in order to obtain benefits from the Agreement. The Claim Form shall
be in substantially the form set forth in Exhibit A to this Agreement.
7) "Claim Period" or "Claims Period" means the period of time that expires after
twelve (12) months from the giving of notice of Preliminary Approval of the
settlement by the Court. All Class Members who do not submit a timely Claim
Form within the Claim Period shall be barred from asserting any further claim
against, or demand or request to, Defendants and shall be barred under the Claims
Program.
8) "Claims Program" means the procedure set forth in Section E for processing
Claims.
9) "Class Counsel" means William Anderson and Charles J. LaDuca of the law firm
Cuneo Gilbert & LaDuca, LLP; Robert Shelquist of the law firm Lockridge Grindal
Nauen PLLP; Michael McShane of the law firm of Audet & Partners, LLP; and
Erica Mirabella of the law firm Mirabella Law, LLC.
10) "Class Member" or "Class Members" means any Person who is included within
the definition of the Settlement Class (and that Person's heirs, executors,
administrators, successors, and assigns), and who does not make a valid and timely
request for exclusion from the Settlement Class, in accordance with the provisions
of Section G of this Agreement, Requests for Exclusion and Rights of Exclusion.
11) "Class Period" means, with respect to Defendants' Desert Bronze decking, sold to
end users or their agents or contractors on or before November 1, 2011, and with
respect to Defendants' Mountain Cedar decking, sold to end users or their agents or
contractors on or before August 31, 2010.
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12) "Court" means the United States District Court for the District of Massachusetts.
13) "Covered Condition" means any whitening, scorching (i.e., black staining), or
manifestation of a surface film (i.e., blistering), on a TimberTech deck in either the
Mountain Cedar or Desert Bronze colors. A "Covered Condition," shall not include
slight variations in color through normal weathering, dirt, algae, mildew, or mold.
14) "Cure Period" means the period of time in which a Claimant may respond to a
Deficiency Letter and address any deficiencies with that Claim that are explicitly
enumerated in the Deficiency Letter. The Cure Period Shall run for 30 days from the
date of the Deficiency Letter. For purposes of calculating the deadline for the Cure
Period, it is sufficient if a Claimant's response is postmarked on or before 30 days
from the date of the Deficiency Letter.
15) "Deficiency Letter" means a letter sent to a Claimant via US Mail, which
explicitly sets forth the basis for denial of a Claim. A Deficiency Letter may not be
dated earlier than the date it is postmarked.
16) "Effective Date" means that date described in Section M herein.
17) "Eligible Claimant" means a Class Member who: 1) certifies that he or she
has not made an assignment of a Claim to any other person or entity; and 2) submits
a timely Claim that complies with Section (E)(1) of the Claims Program. .
18) "Fairness Hearing" means the settlement approval hearing(s) to be conducted by
the Court in connection with the determination of the fairness, adequacy and
reasonableness of this Agreement in accordance with Fed. R. Civ. P. 23(c).
19) "Final Order and Judgment" means the Order to be entered by the Court, in a
form that is mutually agreeable to the Parties, approving this Agreement as fair,
adequate and reasonable in accordance with Fed. R. Civ. P. 23(e), confirming the
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Settlement Class certification, and making such other findings and determinations as
are necessary and appropriate to effectuate the terms of this Agreement.
20) "Notice of Proposed Class Action Settlement" means the Court-approved written
notice to Settlement Class Members.
21) "Notice Plan" or "Notice" means the notice, plan, and schedule for providing
class-wide notice of the settlement and certification of the Settlement Class,
including the Notice of Proposed Class Action Settlement, all as more particularly
described in a form to be mutually agreed upon by the parties.
22) "Opt-Out Period" means the forty five (45) day period from the sending of notice
of Preliminary Approval to the Class.
23) "Person" means any individual, legal entity, association, or their successors or
assigns.
24) "Preliminary Approval" means the Court's provisional certification of the
Settlement Class, preliminary approval of this Agreement, and approval of the
Notice of Proposed Class Action Settlement pursuant to Fed. R. Civ. P. 23(c)(2) and
(e).
25) "Released Claims" means and includes, in addition to all claims and causes of
action set forth in the Complaint, any and all claims, demands, actions, causes of
action, proceedings, judgments, liens, obligations, damages, liabilities, penalties,
punitive or exemplary damages, consequential damages, damages based on a
multiplication of compensatory damages, or statutory damages, of any nature
whatsoever, legal or equitable or administrative or regulatory, known or unknown,
foreseen or unforeseen, foreseeable or unforeseeable, whether now existing or
hereafter arising, whether or not heretofore asserted, including without limitation
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requests for accommodations and claims for contribution or indemnification or
subrogation, in any way or manner arising out of, relating to, or based upon (in
whole or in part), a TimberTech Deck. The Released Claims include, without
limitation, all causes of action related to a Covered Condition of a TimberTech Deck
and related to the above without regard to whether such cause of action is or could
be brought pursuant to any law, statute, regulation, order, rule or ordinance, whether
federal, state or local, including but not limited to federal, state or local statute,
regulations, laws, rules or ordinances concerning unfair competition; unfair or
deceptive methods of competition; unfair, deceptive, fraudulent, unconscionable,
false or misleading conduct, acts, advertising or trade practices; consumer protection
(including violations Mass. Gen Laws. Ch, 93A, and the Magnuson-Moss Warranty
Act); or under the common law of any state as a claim for breach of contract, breach
of express and implied warranties, reformation of warranty, breach of fiduciary duty,
fraud, intentional misconduct, unjust enrichment, misrepresentation (negligent or
otherwise), tort, negligence, breach of constructive trust, breach of the implied
covenant of good faith and fair dealing, or any other common law or statutory basis.
Released Claims shall not include claims brought against third parties, other than
Released Parties, for defects in a TimberTech Deck arising out of installation of a
TimberTech Deck, or brought for personal injury caused by a TimberTech Deck.
26)"Released Parties" or" Released Party" means Defendants and all their parent
companies, subsidiaries, predecessors, affiliates, successors, insurers, reinsurers,
claims administrators, assigns, and their respective past or present managers,
officers, directors, members, shareholders, employees, agents, representatives,
attorneys, and their respective personal representatives, heirs, successor and assigns,
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including but not limited to The Crane Group Companies Limited and Gramlich
Investment LLC. "Released Parties" or "Released Party" also includes all vendors,
distributors, dealers, contractors and other persons who sold, distributed and/or
installed a TimberTech Deck and all other Persons for whom Defendants or other of
the foregoing "Released Parties" could be liable to any Class Member(s) arising out
of or related to a Released Claim.
27) "Settlement Class" means all owners, or former owners with a valid legal
assignment from an owner, of residences or commercial buildings in the United
States with a TimberTech Deck purchased during the Class Period. The Settlement
Class excludes the following individuals and entities: (i) those who properly and
effectually exclude themselves from the settlement as set forth herein; (ii) those who
have previously resolved and released their claims, or whose predecessors in interest
previously resolved and released their claims, as a result of a written settlement
agreement, dismissal with prejudice or res judicata, (iii) Defendants and their
employees and other affiliates; and (iv) the judge(s) to whom this Action is assigned
or who is (are) presiding over the approval of this Settlement. Included within the
Settlement Class are the legal representatives, heirs, successors-in-interest,
transferees, and assignees of all such foregoing holders and/or owners, immediate
and remote.
28) "Still Photographs or Still Photographic Proof' means the photographs that a
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Class Member submits with a Claim Form in the Claims Program. These
photographs shall be date-stamped if date-stamping is available. StillPhotographs or Still-Photographic Proof requires photographs taken during the day
with a film camera or digital camera.
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29) "TimberTech Deck" refers to Defendant TimberTech's XLM Desert Bronze
decking, sold to end users or their agents or contractors on or before November 1,
2011, and XLM Mountain Cedar decking, sold to end users or their agents or
contractors on or before August 31, 2010. All other TimberTech colors, products,
and brands are expressly excluded from this settlement.
B. CERTIFICATION OF SETTLEMENT CLASS
1) The Parties to this Agreement agree that this Action shall be certified and proceed as
a class action solely for purposes of settlement under Fed. R. Civ. P. 23(b)(3),
consisting of all Settlement Class members, with the named Plaintiff as the
Settlement Class representative and Class Counsel as counsel for the Settlement
Class. This Agreement is for settlement purposes only, and neither the fact of, nor
any provision contained in, this Agreement or its Exhibits, nor any action taken
hereunder shall constitute, be construed as, or be admissible in evidence as, any
admission of the validity of any claim or any fact alleged by Plaintiff in this Action
or in any other pending or subsequently filed action or proceeding of any
wrongdoing, fault, violation of law, or liability of any kind on the part of the
Defendants or admission by Defendants of any claim or allegation made in this
Action or in any action or proceeding. This Agreement shall, however, be
admissible in any action or proceeding to enforce the terms of the Agreement.
2) Any certification of a conditional, preliminary or final Settlement Class pursuant to
the terms of this Agreement shall not constitute, and shall not be construed as, an
admission on the part of Defendants that this Action, or any other proposed or
certified class action, is appropriate for trial class treatment pursuant to Fed. R. Civ.
P. 23 or any similar state or federal class action statute or rule. This Agreement is
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without prejudice to the rights of Defendants to: (I) oppose final certification in this
Action should this Settlement not be approved or implemented for any reason; (2)
oppose certification in any other proposed or certified class action; or (3) use the
certification of this Settlement Class to oppose certification of any other proposed
class arising out of the issues and claims that are asserted herein.
3) In the event this Agreement is terminated pursuant to its own terms, or a Final
Approval of the Settlement for any reason does not occur, the Settlement Class
defined herein shall cease to exist and the Action shall proceed as if no Settlement
Class or Agreement had ever existed and Defendants shall not have waived any and
all rights they might have to oppose class certification, and to defend themselves
against the allegations of the Class Action Complaint.
C.
SUBMISSION FOR PRELIMINARY APPROVAL
1) As soon as possible after execution of this Agreement, the Parties shall jointly
submit this Agreement, through their respective attorneys, to the Court for
Preliminary Approval.
D.
RELIEF UNDER SETTLEMENT
1) General: Any relief set forth in this Agreement shall be made available to Class
Members only after the Effective Date of this Agreement. All Class Members will
be entitled, subject to the conditions in this Settlement Agreement, to submit a Claim
Form to Defendants. Defendants shall provide Claim Forms to potential Class
Members upon request. The Claim Form will be substantially similar to the form
attached hereto as Exhibit A. The Notice Plan will set forth the method by which a
potential Class Member may request a Claim Form.
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2) Compensatory Relief
In exchange for the Release provided herein, Defendants
shall provide the following options for compensatory relief to Claimants who
qualify under the terms of this Settlement Agreement:
a.
Replacement Option: Under the "Replacement Option", Eligible
Claimants may choose between the following: i) replacement decking for the
TimberTech Deck with a Covered Condition and labor reimbursement at a
rate of $4.50 per square foot of decking replaced; or ii) for those who
previously received a replacement deck but were previously reimbursed at a
rate less than $4.50 per square foot of decking replaced, reimbursement in
the amount he or she actually paid up to $4.50 per square foot, less any
amount already reimbursed or paid by Defendants for labor costs.
Replacement decking shall include replacement TimberTech fasteners upon
proof that the purchase of the deck being replaced included the purchase of
TimberTech fasteners.
Because Desert Bronze and Mountain Cedar will no longer be in
production, the replacement deck options will be as follows:.
1.
Owners of Mountain Cedar may choose one of Azek XLM Sand
Ridge, Azek XLM River Rock, TimberTech Evolutions Terrain Brown Oak,
TimberTech Evolutions Rustic Elm, or TimberTech Evolutions Pacific
Walnut.
2.
Owners of Desert Bronze may choose one of Azek XLM Sand Ridge,
AZEK XLM River Rock, AZEK XLM Rustic Bark, AZEK XLM Walnut
Grove, TimberTech Evolutions Terrain Brown Oak, TimberTech Evolutions
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Pacific Teak, TimberTech Evolutions Tropical Pacific Walnut, or
TimberTech Evolutions Pacific Rosewood.
Should any of these replacement deck options be unavailable at the
time of selection by an Eligible Claimant, the Eligible Claimant may choose
any other replacement deck option listed above that is still available. Should
none of the replacement deck options listed above be available at the time of
selection by an Eligible Claimant, Defendants will provide a replacement
deck selected by CPG from among the options then available that are
reasonably similar in color to but of no greater value than the replacement
deck options listed above.
b.
Warranty: . Class Members' warranties shall be limited in duration
and scope to those of the original TimberTech Deck being replaced. This
Settlement Agreement and the relief provided herein are expressly not
intended to expand or reduce the scope or duration of a Class Members'
existing warranty.
c.
One Time Cash Option: Eligible Claimants who have not yet
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received a replacement deck from Defendants and do not choose the
Replacement Option may instead elect to receive a one-time cash payment of
$400. By accepting the One-Time Cash Option, claimants commit to
informing any subsequent purchaser of the TimberTech Deck that they
declined the Replacement Option and that the rights of such purchaser are
limited by the Release herein.
3) Consequential Damages: Eligible Claimants shall be entitled to a maximum of $100
per Claimant to cover any consequential damages caused by a TimberTech Deck,
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subject to a cap of $100,000 for all claims for consequential damages. In the event
that total Claims for consequential damages exceed $100,000, the amount paid on
each Claim shall be reduced pro rata. "Consequential damages" for this purpose
means financial loss from damage to other property of the Class Member caused
necessarily and directly by removal of the TimberTech Deck pursuant to the
Replacement Option. Any such claim shall require Still-Photographic proof of the
property damage, proof that the property damage necessarily and directly was
caused by such removal and was not attributable to the negligence or misconduct of
the owner or third parties, and documentary proof of the amount of loss.
4) No Assignment of Claims and Notice to Successors: No Claims may be assigned
except by the current owner to a former owner of the residence or commercial
building with a TimberTech Deck.
E. CLAIMS ADMINISTRATION AND TIME FOR MAKING CLAIMS
1) Eligibility for Relief To qualify for the Relief set forth under Section D of this
Agreement, a Class Member must submit a fully completed Claim Form postmarked
before the end of the Claims Period (as provided herein) that includes all of the
information required under this Section E(1) . The Claim Form will, among other
things, require the Class Member, under penalty of perjury, to:
i.
Certify ownership of a residence or commercial building with a
TimberTech Deck.
Submit proof of ownership of the property on which a TimberTech
Deck is installed (e.g., a copy of a deed, mortgage bill, or utility bill
showing the required information).
Submit proof of purchase and installation of a TimberTech Deck
during the Class Period (e.g., purchase receipt or contractor receipt
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expressly identifying the TimberTech Deck, any fasteners for which
replacement is sought, and the date of purchase), and, as applicable,
proof of a valid assignment.
iv,
Submit documents sufficient to identify the total square footage of
the TimberTech Deck.
v.
Certify that, and submit Still-Photographic Proof that, the
TimberTech Deck has a Covered Condition. Still-Photographic
Proof must include photographs showing the Claimant's deck in its
entirety and the various areas of the Claimant's deck affected by the
Covered Condition. The photographs must show a date-stamp of
when the photograph was taken or Claimant must have some other
means of demonstrating when the photo(s) were taken.
vi.
Certify that Claimant has not been reimbursed by Defendants or any
third party for any Covered Condition in the TimberTech Deck or
certify the amount of such reimbursement, which will be deducted
from any amount otherwise due under the Settlement.
2) Costs of Administration: All costs of the administration of Claims under the Claims
Program shall be borne solely and exclusively by Defendants.
Defendants have the right to
3) Communication with Claimants and Denial of Claims:
communicate exclusively with a Claimant regarding a Claim, request additional
documentation and proof, or deny a Claim. If a timely Claim is denied by
Defendants for any reason, the Defendants will notify the Claimant of such a denial
and the reasons therefor and shall provide copies of documents submitted in the
Claims Program for any denied claim to Class Counsel within 14 days.
4) Opportunity to Cure Denied Claim: Should Defendants deny a claim, such denial
shall be communicated to a Claimant through a Deficiency Letter sent via US Mail.
The Deficiency Letter shall not be dated earlier than the date it is postmarked. The
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mailing of the Deficiency Letter shall commence the Cure Period. Claimants shall
have 30 days to provide a response to the items explicitly identified in the
Deficiency Letter. In order to be considered timely, the response to the Deficiency
Letter must be postmarked within 30 days of the date of the Deficiency Letter.
5) Appeals from Denials of Claims: If a Claimant wishes to challenge the denial of a
Claim by Defendants, the Claimant will have the right to appeal to a neutral Claim
Adjudicator, as further set forth below, with or without class counsel or counsel of
his or her own.
6) Costs of Appeals from Denials of Claims: All costs of any and all Claimant appeals,
including reasonable fees and expenses of the Claims Adjudicator (but not the fees
or expenses of Claimants or their counsel), shall be borne solely and exclusively by
Defendants.
7) Selection of Claims Adjudicator: The Claims Adjudicator shall be such a Person as
chosen by counsel for Defendants, subject to the consent of Class Counsel, such
consent not to be unreasonably withheld. The Claims Adjudicator shall be
independent of Defendants, having no past or current relationship, business or
otherwise, with Defendants or any affiliated company. The Claims Adjudicator shall
also be approved by the Court and subject to the jurisdiction of the Court throughout
the entirety of the Claims Period.
8) Relief to be Granted by Claims Adjudicator: The Claims Adjudicator may provide
only the Relief as provided for under Section D of this Agreement, and shall have no
authority to and may not award or impose damages, including but not limited to any
punitive, exemplary or multiple damages, or any costs or attorneys' fees, for or
15
related to any Claim or otherwise. Subject to this restriction, the decisions of the
Claims Adjudicator shall be binding and final and not subject to appeal.
F. NOTICE PLAN AND COSTS OF NOTICE
1) The Parties shall cause the Notice of Proposed Class Action Settlement describing
this Agreement and the Fairness Hearing to be provided to the members of the
Settlement Class as provided in this Agreement and to the appropriate government
officials as required by 28 U.S.C. § 1715(a).
2) Notice shall be given as set forth in the Notice Plan, attached hereto as Exhibit B.
The Parties understand that the Notice Provider will have to submit to the Court as
part of the Final Approval Process a Declaration which confirms that the best notice
practicable was provided and that the reach was sufficient to meet the Due Process
requirements of Rule 23.
3) All costs associated with providing Notice shall be paid by Defendants. Defendants
shall be solely responsible for making all arrangements necessary to effectuate the
dissemination of Notice in accordance with the terms of the Preliminary Approval
Order.
G. REQUESTS FOR EXCLUSION AND RIGHTS OF EXCLUSION
1) A Settlement Class member may opt-out of the Settlement Class during the OptOut Period. To exercise the opt-out right set forth in this Section, the Settlement
Class member must complete and return a written request for exclusion. Written
requests for exclusion must include the potential Class Member's name, address,
and telephone number, and expressly state the desire to be excluded from the
Settlement Class. If such exclusion is filed by counsel representing the opt-out, such
request for exclusion shall also include contact information for counsel for the opt-
16
out. Such request must be sent by first-class mail to Defendants' counsel and
postmarked on or before the end of the Opt-Out Period for prompt forwarding to
Defendants and Class Counsel. The Plaintiff will not request exclusion from the
Settlement Class and will not object to the Settlement.
2) Except for those Settlement Class members who have properly opted-out, all
Settlement Class members will be deemed Settlement Class members for all
purposes under this Agreement. Any Settlement Class member who elects to opt-out
of the Settlement Class pursuant to this Section shall not be entitled to relief under
this Agreement.
3) Any Class Member who does not file a timely written request for exclusion shall be
bound by this Settlement and by all subsequent proceedings, orders and judgments
in the Action.
H. OBJECTIONS TO SETTLEMENT
1) Class Members who do not file a timely request for exclusion may file a Notice of
Intent to Object to the Settlement. The written Notice of Intent to Object must be:
(a) filed with the Clerk of the Court not later than 30 days before the date set for the
Final Settlement Hearing; and (b) sent by first-class mail, postmarked not later than
forty-five (45) days before the date set for the Final Settlement Hearing, to
Defendants' counsel and Class Counsel.
2) Any Notice of Intent to Object must contain: (a) a heading which refers to the
Action; (b) a statement as to whether the objector intends to appear at the Final
Settlement Hearing, either in person or through counsel, and, if through counsel,
identify counsel by name, address and phone number, and, if in person, the class
member shall provide his or her name, address and phone number; (c) a detailed
17
statement of the specific legal and factual bases for each and every objection; (d) a
list of any witnesses and photocopies of exhibits that the objector intends to
introduce at the Final Settlement Hearing, if any; and (e) the objector's signature,
verifying under penalty of perjury, that he or she is a member of the Settlement
Class, and the address of the relevant property.
3) Any Class Member who does not file a Notice of Intent to Object waives the right to
do so in the future, and shall be forever barred from making any objection to the
Settlement.
EXCLUSIVE REMEDY: DISMISSAL OF ACTION: JURISDICTION OF COURT
1) Each and every member of the Settlement Class who has not requested exclusion
pursuant to Section G submits to the jurisdiction of the Court and will be bound by
the terms of this Agreement (including, without limitation, any and all releases),
conditioned upon the occurrence of the Effective Date of this Agreement, as well as
any other Court orders including, without limitation, the Final Order and Judgment
barring further litigation against the Released Parties with respect to any of the
Released Claims.
2) This Agreement and the Relief provided herein shall be the sole and exclusive
remedy for any and all Claims of Settlement Class members against the Released
Parties arising from or related to a Released Claim. Upon the entry of the Final
Order and Judgment by the Court, each Settlement Class member who has not
opted-out of the Settlement Class, shall be barred from initiating, asserting, or
prosecuting any Released Claims against the Released Parties, except in accordance
with the terms of this Agreement.
18
3) Settlement Class members agree to the dismissal of any action or proceeding
pending against the Released Parties to the extent any such action or proceeding
seeks recovery for any Released Claims.
4) Upon the entry of the Final Order and Judgment, this Action and all claims and
pending allegations by Plaintiff shall be dismissed with prejudice.
5) The Court shall retain exclusive and continuing jurisdiction over the Action, the
Parties, and Settlement Class members, to interpret and enforce the terms,
conditions, and obligations of this Agreement.
J.
ENFORCEMENT OF AGREEMENT
1) In the event of a breach by the Parties or a Settlement Class member under this
Agreement, the Court may exercise all equitable powers over the Parties or
the Settlement Class member to enforce this Agreement and the Final Order and
Judgment irrespective of the availability or adequacy of any remedy at law. Such
powers include, among others, the power of specific performance, contempt and
injunctive relief. The Agreement is specifically enforceable by and is intended to
inure to the benefit of all Released Parties.
K.
RELEASE
1) Upon entry of the Final Order and Judgment, Plaintiff and Class Members, on
behalf of such Persons and any Person claiming by or through such Persons (the
"Releasing Party" or "Releasing Parties"), regardless of whether any Settlement
Class member executes and delivers a written release, shall be deemed to and do
hereby release and forever discharge the Released Parties, of and from any and all
Released Claims and related subrogation claims of the Releasing Party's subrogees
or insurance carriers. The Releasing Parties shall also be deemed to and do hereby
19
release and forever discharge any other persons or entities from claims for which
Defendant could be liable to the Releasing Parties, arising out of or related to a
Covered Condition of a TimberTech Deck, whether based on the design,
specification, manufacture, production, promotion, advertising, sale, representation,
distribution, or installation of the TimberTech Deck. The Releasing Parties further
covenant not to initiate, assert, prosecute or make any other demand or request
related to any Released Claims.
2) Plaintiff and Class Members acknowledge that they are aware that they may
hereafter discover claims presently unknown or unsuspected, or facts or law in
addition to or different from those that they know now or believe to be true with
respect to the matters released herein or with respect to a TimberTech Deck.
Nevertheless, it is the intention of Plaintiff and the Class Members in executing this
Agreement to fully, finally, and forever settle and release all Released Claims which
exist, might have existed, or which hereafter may exist whether or not previously or
currently asserted in any action or proceeding, and to expressly waive any common
law or statutory rule that would circumscribe the extent of this full Release,
including any statute or rule giving the releasing party the right to complain of facts
relating to a Released Claim that are unknown as of the date of any releases, except
in the event of fraud.
3) The release shall not affect the ability of any governmental entity to conduct an
investigation or assert a claim on its own behalf, but the Release shall continue to
have a preclusive effect as to any and all relief for any member of the class who has
not been excluded from the settlement.
L. ATTORNEY'S FEES AND INCENTIVE AWARD TO NAMED PLAINTIFF
20
1) Attorneys' Fees and Costs for Plaintiff's counsel (which includes all counsel
representing Plaintiff in this matter, including Class Counsel) will be subject to
approval by the Court and will be paid by Defendants in addition to any relief
granted to Plaintiff and Settlement Class members for valid Claims. No portion of
the compensation made available to Plaintiff or Settlement Class members pursuant
to this Agreement shall be reduced in any way to pay fees, costs, interest, or
expenses to Plaintiffs counsel. After negotiating relief to the Settlement Class,
Defendant agreed that it would pay, subject to Court approval, a total award to
Plaintiff's counsel of no more than $329,000, inclusive of fees, costs, interest, and
expenses of any kind. If the Court does not approve this amount but approves a
lesser figure, then Plaintiff's Counsel shall accept such figure in full satisfaction of
all rights to any such fees, costs, interest, and expenses, and the difference shall be
retained by Defendants and not distributed to the Class.
2) Plaintiff's counsel will not seek Attorneys' Fees and Costs in excess of this
amount and Defendant agrees to pay and will not object to an award of this amount.
In the event that Attorneys' Fees and Costs are granted in excess of $329,000,
Defendants may terminate this Agreement.
3) Other than the amounts approved by the Court, and paid exclusively by Defendants
pursuant to this Agreement, Plaintiff's counsel waives, discharges and releases the
Released Parties and the Class from any and all claims for Attorneys' Fees and
Costs, by lien, statute, equity or otherwise, in connection with this Action.
4) The Attorneys' Fees and Costs referred to herein will be paid within 30 days of the
Effective Date.
21
5) Class Counsel shall distribute such payment among the Plaintiff's counsel as may be
appropriate, and Defendants will have no responsibility for the handling and
distribution of such funds.
6) Subject to Court approval, Defendants agree to pay the Named Plaintiff $ 4,800 as a
service award in this matter. This amount shall be in addition to the relief to which
the Plaintiff is entitled under this Agreement.
M. EFFECTIVE DATE AND EFFECT OF FAILURE OF FINAL APPROVAL
1) The Effective Date of this Agreement shall be the date upon which all of the
following conditions and events have been met or have occurred:
a. The Court has entered an order preliminarily approving this
Agreement (the "Preliminary Approval Order"), without any material
alterations;
b. The Court has entered a final order approving this Agreement and
releasing the Released Parties from the Released Claims and dismissing
with prejudice, and without leave to amend, the Action and all claims
asserted therein, except as to those potential Class Members who make a
timely request for exclusion (the "Final Order and Judgment"); and
c. Unless the Parties otherwise agree in writing to waive all or any portion
of the following provisions: (i) the expiration (without the filing or
noticing of an appeal) of the time to appeal from the Final Order and
Judgment; (ii) if an appeal is filed, the entry of a final order dismissing
any and all appeals from the Final Order and Judgment; (iii) affirmance
on appeal of the Final Order and Judgment without material alteration;
(iv) if a ruling or decision is entered by an appellate court with respect to
22
affirmance of the Final Order and Judgment, the time to petition for a
writ of certiorari with respect to such ruling or decision has expired; or
(v) if a petition for a writ of certiorari with respect to the Final Order and
Judgment is filed, the petition has been denied or dismissed or, if
granted, has resulted in affirmance of the Final Order and Judgment
without material alteration.
2) In the event that any of the conditions or events described above in this Section M
are not met or do not occur, this entire Agreement shall become null and void,
except that the Parties shall have the option to agree in writing to waive the event or
condition and proceed with this Agreement, in which event the Effective Date shall
be deemed to have occurred on the date of said written agreement.
N. DENIAL OF LIABILITY
1) Defendants maintain that they have consistently acted in accordance with governing
laws at all times and continue to deny all of the material allegations in the Action.
Defendants enter into this Agreement without in any way acknowledging any fault,
liability, or wrongdoing of any kind. Neither this Agreement, nor any of its terms or
provisions, nor any of the negotiations or proceedings connected with it, shall be
construed as an admission or concession by Defendants of the truth of any of the
allegations in the Action, or of any liability, fault, or wrongdoing of any kind on the
part of Defendants.
2) Neither this Agreement, nor any of its terms or provisions, nor any of the
negotiations or proceedings connected with it, shall be offered as evidence or
received in evidence in any pending or future civil, criminal, or administrative
23
action or proceeding, to establish any liability or admission by Defendants, except in
any proceedings brought to enforce the Agreement.
0. FINAL APPROVAL OF DISMISSAL
1) After the Fairness Hearing, and subject to the Court's approval of the Agreement, a
Final Order and Judgment shall be entered:
a. approving the Agreement as fair, reasonable and adequate and as having
been entered into in good faith; directing the parties to comply with and
implement the terms of the Agreement; and declaring the Agreement
binding on all Settlement Class members;
b. confirming that the Notice constitutes the most effective and
practicable notice to Settlement Class members under the circumstances;
c. dismissing the Action on the merits and with prejudice, without costs
to any party except as provided in this Agreement; and
d. retaining jurisdiction over the matters provided for in the Agreement.
P.
TERMINATION OF THIS AGREEMENT
1) The performance of this Agreement is expressly contingent upon the Court's
issuance of the Final Order and Judgment. If the Court issues an Order disapproving
the Agreement, either Party may elect to terminate this Agreement within 30 days of
such Order, rendering it as having no force or effect whatsoever, null and void, ab
initio, and not admissible as evidence for any purpose in any pending or future
litigation or other proceeding (in any jurisdiction) involving any of the Parties.
Q.
MISCELLANEOUS PROVISIONS
1) The Parties hereto and their undersigned counsel agree to undertake their best
efforts and mutually cooperate to effectuate this Agreement and the terms of the
24
Agreement set forth herein, including taking all steps and efforts contemplated by
this Agreement, and any other steps and efforts that may become necessary by order
of the Court or otherwise.
2) Neither Defendants, nor Plaintiffs Counsel, nor the Named Plaintiff will encourage
any Person to request exclusion from membership in the Settlement Class,
encourage any Person to object to the Agreement and/or discourage any Person from
participating in the distribution of the proceeds of the Agreement.
3) This Agreement may be pleaded as a full and complete defense to, and may be
used as the basis for an injunction against, any action, suit or other proceeding
that may be instituted, prosecuted or attempted in breach of this Agreement.
4) This Agreement shall be deemed to have been executed upon the last date of
execution by all the undersigned counsel, which may be done in counterparts, each
of which shall constitute an original but all of which together shall constitute one
and the same instrument.
5) The Parties agrees that they will not issue any press release or make any public
disclosure (other than public filings with the Court) regarding this Settlement unless
and until after the Court grants preliminary approval of the Settlement. However, in
the event that Plaintiffs Counsel receives inquiries from Settlement Class members
regarding the terms of the Settlement Agreement before the Court grants preliminary
approval of the Settlement, Counsel may advise the Settlement Class members of
the status and terms of the Settlement. The Parties shall not make any statements to
the media in respect of this Agreement until after the Court grants Preliminary
Approval of the Settlement.
25
6) Should any provision of this Agreement, or any of the Exhibits hereto, require
judicial interpretation, the Parties agree that the Court or other adjudicating body
shall not apply a presumption that the terms shall be more strictly construed against
the party who prepared this Agreement, it being agreed that all Parties collectively
participated in the negotiation and preparation of this Agreement and its Exhibits.
7) This Agreement shall be construed under and governed by the laws of the
Commonwealth of Massachusetts, applied without regard to its choice of law
provisions.
8) Class Counsel represent that they are authorized to enter into the Settlement
Agreement on behalf of the Plaintiff and all Plaintiff's Counsel, and that they are
seeking to protect the interests of the entire Class.
9) Defendants' counsel, whose name appear in the signature below, represents that
they are authorized to enter into this Agreement on behalf of the Defendants.
26
Defendants TimberTech Limited and
CPG International LLC f/k/a
CPG International, Inc.
A
Plaintiff Todd M. Gomstein and
the Proposed Class
BY: milteal..%
John A. ope, Esq.
By:
William Anderson, Esq.
Dated:
Dated:
AV/
EXHIBIT A
CLAIM FORM
TimberTech Limited
Attn: Warranty Program
894 Prairie Avenue
Wilmington, OH 45177
www.timbertech.com/classactionsettlement.aspx
email: [email protected]
Use this form if you wish to make a claim in the settlement of Gornstein, et al. v. TimberTech,
Ltd., etal., Civil No. 1:14-cv-12409 MLW (D. Mass.). For information about what benefits the
settlement provides, please visit the website listed above.
Claim Number
(to be completed by TimberTech)
Claimant Name(s)
I. General Instructions
A.
Type or print all information clearly and legibly.
B.
You must answer all questions to obtain a benefit.
C.
Be sure to enclose all requisite evidence as indicated. If you do not, your claim
will be denied and a Deficiency Letter will be sent to you by US Mail.
D.
Make a copy of all submissions, as no documents or photos will be returned.
E.
Sign and date the form on the last page.
F.
. If your
Your claim must be postmarked or received no later than
claim is not timely, it will be denied. You may send your claim form together
with all requisite proof by e-mail, U.S. mail, or overnight delivery to the
addresses listed above.
G.
You will not receive an acknowledgement of receipt. If you wish to have proof of
delivery, use a delivery method that will provide proof such as a return receipt.
II. Claimant Information
A.
B.
Name of Claimant(s)
Last
First
Last
First
MI.
Claimant's Address
Street Address
State
City
Zip
Address of Deck Location (if different from your address)
Street Address
State
City
C.
D.
Zip
Claimant's Phone Numbers
Home
Work
Mobile
Home
Work
Mobile
Ownership
Claimant is the current owner of a deck covered by the settlement and has
O
not assigned his or her claim hereunder.
YOU MUST ATTACH A DEED, MORTGAGE STATEMENT, UTILITY BILL,
OR OTHER DOeUMENTARY PROOF OF OWNERSHIP OF THE
PROPERTY ON WHICH THE DECK COVERED BY THE SETTLEMENT IS
LOCATED.
Claimant is the former owner of a deck covered by the settlement, has
received an assignment of the claim from the current owner, and has not made
any further assignment of the claim. YOU MUST ATTACH A COPY OF THE
ASSIGNMENT.
O
III. Deck Information
A.
The deck for which claimant is making a claim is made of:
O
TimberTech Mountain Cedar decking material purchased on or before
August 31, 2010.
Case 1:14-ov-12409-MLW Document 20-1 Filed 01/15/16 Page 30 of 50
TimberTech Desert Bronze decking material purchased on or before
LI
November 1,2011.
The square footage of the deck is
square feet.
YOU MUST ATTACH A RECEIPT OR OTHER DOCUMENTATION
SHOWING THE TYPE OF DECKING, THE DATE OF PURCHASE, AND
THE SQUARE FOOTAGE OF THE DECK.
13.
The deck for which claimant is making a claim has:
O
Scorching
CI
Whitening
O
Manifestation of a surface film (blistering)
YOU MUST ATTACH STILL PHOTOGRAPHS TO SHOW ANY
SCORCHING OR FADING. THE PHOTOGRAPHS MUST SHOW (1) THE
ENTIRE DECK, (2) THE AREA(S) OF SCORCHING, WHITENING, OR
MANIFESTATION OF A SURFACE FILM (BLISTERING), AND (3) THE
SCORCHING, WHITENING, OR MANIFESTATION OF A SURFACE FILM
(BLISTERING) IN CLOSE UP. THE PHOTOGRAPHS SHOULD INDICATE
THE DATE ON WHICH THEY WERE TAKEN WITH A DATE STAMP.
YOU DO NOT NEED TO SUBMIT THIS PROOF IF YOUR ONLY REQUEST
BELOW IS FOR AN INCREASED LABOR REIMBURSEMENT, NOT A
REPLACEMENT DECK.
C.
Claimant or, if applicable, Claimant's assignor:
Has previously received a warranty benefit from TimberTech, such as a
0
replacement deck and/or a payment. IF SO, CLAIMANT'S WARRANTY
CLAIM NUMBER IS
O
D.
Has not previously received any warranty benefit from TimberTech.
Claimant or, if applicable, claimant's assignor:
Has not previously received any compensation from any party other than
O
TimberTech with respect to scorching of, whitening of, or manifestation of a
surface film (blistering) on the deck.
Has received such compensation from a contractor, lumberyard, or other
O
third party. LIST THE AMOUNT AND WHO MADE THE PAYMENT.
Payor
Amount $
IV. Relief Requested
A.
Claimant requests (check only one):
•
Replacement decking and labor reimbursement.
An increase of a labor reimbursement previously paid by TimberTech to
O
make up any difference between the prior reimbursement and your actual labor
cost up to a maximum not to exceed of $4.50/sq. it YOU MUST ATTACH
RECEIPTS OR OTHER EVIDENCE OF THE AMOUNT THAT YOU PAID A
CONTRACTOR TO INSTALL A REPLACEMENT DECK AND ANY LESSER
AMOUNT PREVIOUSLY PAID BY TIMBERTECH.
A cash payment of $400. You are not eligible for this option if you
O
previously received a replacement deck from TimberTech. In making this
election, you commit to advising any purchaser of the property that you declined
the preceding options.
B.
If you are requesting a replacement deck, indicate whether the purchase of the
deck to be replaced:
Included the purchase of TimberTech fasteners. YOU MUST ATTACH
O
RECEIPTS OR OTHER DOCUMENTARY PROOF OF THE PURCHASE OF
TIMBERTECH FASTENERS IF YOU WISH TO RECEIVE FASTENERS
WITH A REPLACEMENT DECK AT NO COST. OTHERWISE YOU MUST
PURCHASE FASTENERS FROM TIMBERTECH OR PROVIDE YOUR
OWN.
Did not include the purchase of TimberTech fasteners, or claimant lacks
O
knowledge and/or proof.
C.
If you are requesting a replacement deck or an increase in a labor reimbursement
for previous installation of a replacement deck:
The removal of the original deck did not cause any damage to the
O
claimant's other property for which claimant seeks relief.
The removal of the original deck caused damage to claimant's other
property and claimant is seeking reimbursement for the damage in an amount not
to exceed $100. YOU MUST ATTACH STILL PHOTOGRAPHIC PROOF OF
THE DAMAGE TO OTHER PROPERTY, PROOF THAT ANY SUCH
DAMAGE WAS NECESSARILY AND DIRECTLY CAUSED BY THE
REMOVAL OF THE ORIGINAL DECK, AND DOCUMENTARY PROOF OF
THE AMOUNT OF THE LOSS.
0
V. Replacement Options
TimberTech Mountain Cedar and Desert Bronze are no longer in production. If you are
requesting a replacement deck, you must specify a substitute color. The substitutes listed below
may be viewed at www.timbertech.com and www.azek.com .
A.
B.
If the deck to be replaced is made of Mountain Cedar, choose one of the
following:
O
Azek XLM Sand Ridge.
O
Azek XLM River Rock.
o
TimberTech Evolutions Terrain Brown Oak
O
TimberTech Evolutions Rustic Elm
O
TimberTech Evolutions Pacific Walnut
If the deck to be replaced is made of Desert Bronze, choose one of the following:
LI
Azek XLM Sand Ridge
o
Azek XLM River Rock
O
Azek XLM Rustic Bark
O
Azek XLM Walnut Grove
O
TimberTech Evolutions Terrain Brown Oak
O
TimberTech Evolutions Pacific Teak
O
TimberTech Evolutions Tropical Pacific Walnut
O
TimberTech Evolutions Tropical Pacific Rosewood
VI. Certification
The undersigned hereby certifies under penalty of perjury that all of the information
herein and attached hereto is true, accurate, and complete. The undersigned authorizes
TimberTech to enter the property to inspect the deck at issue, and promises to cooperate
reasonably with TimberTech in any investigation of this claim.
Signature(s) of Claimant(s)
Print Name(s)
Date
EXHIBIT B
Notice Plan
The defendants shall give notice of the settlement in the following manner:
1.
Individually addressed letters, sent by bulk mail, to all known Class Members for
whom TimberTech possesses an address. The addresses used for such notice shall be updated
using the United States Postal Service's national change of address database.
2.
A dedicated website describing the settlement and attaching the Settlement
Agreement and Release of Claims and key court documents. This website shall be linked to
TimberTech.com in its Warranty Claims Center section.
3.
Publication in USA Today in an advertisement occupying 1/8 of page on four (4)
different dates of publication as selected in the defendants' discretion, but no later than sixty (60)
days after preliminary approval of the settlement.
4.
Publication once in the print edition of This Old House in an advertisement
occupying 1/3 of page on a date as selected in the defendants' discretion, but no later than sixty
(60) days after preliminary approval of the settlement.
5.
Banner advertisements on internet websites relating to home construction and
renovation as selected by the defendants in their reasonable discretion for an estimated five
million (5,000,000) impressions. Such advertisements shall refer to TimberTech XLM Desert
Bronze and Mountain Cedar and contain a link to the dedicated website described above.
6.
Banner advertisements for the following searches on Google or Bing:
a.
TimberTech scorch OR TimberTech fade OR TimberTech settlement.
b.
Desert Bronze scorch OR Desert Bronze fade OR Desert Bronze
settlement.
c.
Mountain Cedar scorch OR Mountain Cedar fade OR Mountain Cedar
settlement.
Such advertisements shall refer to a TimberTech settlement and contain a link to the dedicated
website described above.
7.
The content of the foregoing notices shall be drafted by the defendants subject to
the consent of Class Counsel, such consent not unreasonably to be withheld.
B4473549,6
EXHIBIT C
Pla in tiff
C.A. No. 1:14-cv-12409-MLW
V.
TIMBERTECH LTD., and CPG
Defendants.
(PROPOSED] WEBSITE NOTICE
NOTICE OF PENDING CLASS ACTION AND NOTICE OF PROPOSED SETTLEMENT
GORNSTEIN v.TIMBERTECH LTD, et al.
Please review this notice if you own
XLM Mountain Cedar decking purchased on or before August 31, 2010, or XLM Desert
Bronze purchased on or before November 1, 2011.
A federal court authorized this Notice.
What is this notice about? A settlement ("the Settlement") has been proposed in a class action
lawsuit pending in the United States District Court for the District of Massachusetts titled
Gornstein v. TimberTech LTD, No 1:14-cv-12409-MLW ("Lawsuit"). According to available
records, you may be a member of the "Settlement Class." The purpose of this notice is to
inform you of the Lawsuit and the Settlement so that you may decide what steps to take in
relation to it.
What is the Lawsuit about? The Lawsuit was filed against TimberTech Ltd. ("TimberTech") and
CPG International, Inc. ("CPG," and together with TimberTech, "Defendants"). Among other
things, the Lawsuit alleges that TimberTech XLM Mountain Cedar decking sold on or before August
31, 2010 and XLM Desert Bronze sold on or before November 1, 2011 is subject to a defect that can
cause the decking to, among other things, scorch (i.e., blacken) or fade (i.e., whiten) or manifest a
surface film (i.e., blister). The Lawsuit asserts a variety of claims against Defendants concerning the
purported defects. Defendants deny any wrongdoing and any liability whatsoever, and no court or
other entity has made any judgment or other determination of any liability. To view a copy of
the complaint in the lawsuit, click here.
Who is a member of the Settlement Class? If the Court approves the Settlement, the Settlement
Class will include all persons in the United States who own XLM Mountain Cedar purchased on or
before August 31, 2010, or own XLM Desert Bronze purchased on or before November 1, 2011, or
who received a permitted assignment. The Settlement covers only scorching, fading, and
blistering, and does not cover slight variations in color through normal weathering, dirt, algae,
mildew, or mold. The Settlement will not include any person who has already released a claim,
Defendants, their parent companies, subsidiaries, affiliates, officers and directors, any entity in
which any Defendants have a controlling interest, Defendants' employees, and all judges
assigned to hear any aspect of this litigation.
What relief does the Settlement provide? For each member of the Settlement Class who
submits a timely and valid Claim Form, including proof of a covered condition, and has not
already received a replacement deck, Defendants have agreed to provide free replacement
decking from a variety of lines and in a variety of colors because Mountain Cedar and Desert
Bronze are no longer in production. In addition, for those who purchased TimberTech fasteners,
free fasteners may also be supplied with the replacement decking. Additionally, members of the
Settlement Class may be eligible for labor reimbursement at a rate of $4.50 per square foot for
their existing TimberTech deck. Members of the Settlement Class may also be eligible for up to
$100 for repair of any property damage caused by removal of the existing TimberTech Deck.
Members of the Settlement Class who have not already received a replacement deck and elect
not to take advantage of the repair and replacement option may be eligible for a one-time
payment of $400. To the extent a member of the Settlement Class has already received labor
reimbursement from Defendants at a rate of less than $4.50 per square foot, the member of the
Settlement Class will be entitled to the difference between the previously provided compensation
rate and up to $4.50 per square foot upon proof of actual expense.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT A
CLAIM
FORM
This is the only way to get relief under the Settlement. You
may click here [hyperlink to claim form] to obtain a claim
form from the settlement website.
Deadline: 12
months after
the giving of
notice of
Preliminary
Approval of
the Settlement
by the Court.
[INSERT
SPECIFIC
DATES].
EXCLUDE
YOURSELF
If you exclude yourself from the Settlement, you will not be
able to submit a settlement claim. Excluding yourself is the
only option that allows you to bring your own lawsuit against
the Defendants.
Deadline: 45
days after the
giving of
notice of
Preliminary
Approval of
the Settlement
by the Court.
[INSERT
SPECIFIC
DATES].
To exclude yourself from the Settlement, you must send a
letter by U.S. mail that provides your name, your address,
your telephone number and an express statement that you
wish to be excluded from the Settlement. You must sign and
mail this letter to Defendants' counsel, John A. Shope, Foley
Hoag LLP, 155 Seaport Boulevard, Boston, MA 02210. The
Court will exclude from the Settlement Class any member
who complies with these procedures.
OBJECT
Write to the Court about why you object to (i.e., don't like)
the Settlement and think it shouldn't be approved. Making an
objection does not exclude you from the Settlement.
To object to the Settlement, you should mail a written
statement describing your objections (along with any
supporting papers or briefs) to the following three addresses:
(1) the Clerk of Court at John Joseph Moakley U.S.
Courthouse, 1 Courthouse Way, Suite 2300, Boston, MA
02210, (2) William H. Anderson, Cuneo Gilbert & LaDuca,
LLP, 507 C Street, NE, Washington, DC 20002, and (3) John
A. Shope, Foley Hoag LLP, 155 Seaport Boulevard, Boston,
MA 02210.
Deadline: 45
days before
the Final
Approval
Hearing to
Defendants'
and Class
Counsel; Filed
with the Clerk
of the Court at
least 30 days
before the
Final
Approval
Hearing
[[NSERT
SPECIFIC
DATES].
GO TO THE
"FAIRNESS
HEARING"
DO
NOTHING
The Court will hold a "Fairness Hearing" to consider the
Settlement, the request for attorneys' fees and expenses of the
lawyers who brought the Lawsuit, and the representative
Plaintiff's request for a service awards for bringing the
Lawsuit.
Hearing Date:
[Month Day,
Year] at
[Time].
You may, but are not required to, speak at the Fairness
Hearing about any objection you filed to the Settlement. You
may, but are not required to, hire an attorney to speak on your
behalf at the Fairness Hearing. If you or your attorney intend
to speak at the Fairness Hearing, you must notify both the
Court and the parties' attorneys of your intent to do so by
[[NSERT SPECIFIC DATES]. You should mail your notice
to the following three addresses: (1) the Clerk of Court at
John Joseph Moakley U.S. Courthouse, 1 Courthouse Way,
Suite 2300, Boston, MA 02210, (2) William H. Anderson,
Cuneo Gilbert & LaDuca, LLP, 507 C Street, NE,
Washington, DC 20002, and (3) John A. Shope, Foley Hoag
LLP, 155 Seaport Boulevard, Boston, MA 02210.
Hearing
Location:
Courtroom 10,
John Joseph
Moakley U.S.
Courthouse, 1
Courthouse
Way, Boston,
MA.
You will get no monetary relief from the Settlement, you will
give up your right to object to the Settlement, and you will be
not be able to bring your own lawsuit about the legal claims in
this case.
N/A
What effect will the Settlement have if it is approved by the Court? If you do not exclude
yourself from the Settlement, then you (and any person claiming by, for, or through you) will
give up any right to bring your own lawsuit or participate in any lawsuit about the issues in this
case. The Settlement releases the Defendants and their affiliated parties from all the claims
described here [hyperlink to settlement website].
What if I would like more information about the Settlement? For complete information
about the Settlement; to view the Settlement Agreement, related Court documents, and the claim
form, visit vvvvvv.timbertechsettlement.com . You may also secure additional information by
email at [email protected] , by U.S. mail at TimberTech Settlement, 894 Prairie
. You may also contact the
Avenue, Wilmington, OH 45177, or by phone at 1- attorneys for the Settlement Class: William Anderson of Cuneo Gilbert & LaDuca, LLP by
calling 202-789-3960.
B4495933.3
Case 1:14-cv-12409-MLW Document 20-1 Filed 01/15/16 Page 40 Of 50
EXHIBIT D
Plaintiff;
C,A. No. 1:14-cv-12409-MLW
V.
TIMBERTECH LTD., and CPG
. Defendants.
[PROPOSED] MAIL NOTICE
To: <<class member address>>
Re: LEGAL NOTICE OF SETTLEMENT OF CLASS ACTION — TIMBERTECH
NOTICE OF PENDING CLASS ACTION AND NOTICE OF PROPOSED SETTLEMENT
GORNSTEIN v.TIMBERTECH LTD, et al.
You are receiving this notice because you may own XLM Mountain Cedar decking
purchased on or before August 31, 2010, or XLM Desert Bronze purchased on or before
November 1, 2011.
A federal court authorized this Notice. This is not a solicitation from a lawyer.
Why did I get this notice? A settlement ("the Settlement") has been proposed in a class action
lawsuit pending in the United States District Court for the District of Massachusetts titled
Gornstein v. TimberTech LTD, No 1:14-cv-12409-MLW ("Lawsuit"). According to available
records, you may be a member of the "Settlement Class." The purpose of this notice is to
inform you of the Lawsuit and the Settlement so that you may decide what steps to take in
relation to it.
What is the Lawsuit about? The Lawsuit was filed against TimberTech Ltd. ("TimberTech") and
CPG International, Inc. ("CPG," and together with TimberTech, "Defendants"). Among other
things, the Lawsuit alleges that TimberTech XLM Mountain Cedar decking sold on or before August
31, 2010 and XLM Desert Bronze sold on or before November 1, 2011 is subject to a defect that can
cause the decking to, among other things, scorch (•.e., blacken) or fade (i.e., whiten) or manifest a
surface film (i.e., blister). The Lawsuit asserts a variety of claims against Defendants concerning the
purported defects. Defendants deny any wrongdoing and any liability whatsoever, and no court or
other entity has made any judgment or other determination of any liability.
Who is a member of the Settlement Class? If the Court approves the Settlement, the Settlement
Class will include all persons in the United States who own XLM Mountain Cedar decking
purchased on or before August 31, 2010, or XLM Desert Bronze purchased on or before November
1, 2011, or who received a permitted assignment. The Settlement covers only scorching, fading,
and blistering, and does not cover slight variations in color through normal weathering, dirt,
algae, or mold. The Settlement will not include Defendants, their parent companies, subsidiaries,
affiliates, officers and directors, any entity in which any Defendants have a controlling interest,
Defendants' employees, and all judges assigned to hear any aspect of this litigation, as well as
the immediate family members of all the preceding referenced individuals.
What relief does the Settlement provide? For each member of the Settlement Class who
submits a timely and valid Claim Form, including proof of a covered condition, Defendants have
agreed to provide free replacement decking from a variety of lines and in a variety of colors
because Mountain Cedar and Desert Bronze are no longer in production. In addition, for those
who purchased TimberTech fasteners, free fasteners will also be supplied with the replacement
decking. Additionally, members of the Settlement Class may be eligible for labor
reimbursement at a rate of $4.50 per square foot for their existing TimberTech deck. Members
of the Settlement Class may also be eligible for up to $100 for repair of any damages caused by
removal of the existing TimberTech Deck. Members of the Settlement Class who have not ,
already received a replacement deck and elect not to take advantage of the repair and
replacement option may be eligible for a one-time payment of $400. To the extent a member of
the Settlement Class has already received labor reimbursement from Defendants at a rate of less
than $4.50 per square foot, the member of the Settlement Class will be entitled to the difference
between the previously provided compensation rate and up to $4.50 per square foot upon proof
of actual expense. The settlement website at www.[INSERT URL].com contains a complete
description of the proposed Settlement and what you must do to receive benefits under the
Settlement.
SUBMIT A
CLAIM
FORM
This is the only way to get relief under the Settlement. You
may click here [hyperlink to claim form] to obtain a claim
form from the settlement website.
Deadline: 12
months after
the giving of
notice of
Preliminary
Approval of
the Settlement
by the Court.
[INSERT
SPECIFIC
DATES].
EXCLUDE
YOURSELF
If you exclude yourself from the Settlement, you will not be
able to submit a settlement claim. Excluding yourself is the
only option that allows you to bring your own lawsuit against
the Defendants.
To exclude yourself from the Settlement, you must send a
letter by U.S. mail that provides your name, your address,
your telephone number and an express statement that you
wish to be excluded from the Settlement. You must sign and
mail this letter to Defendants' counsel, [mailing address for
opt outs]. The Court will exclude from the Settlement Class
any member who complies with these procedures.
OBJECT
Write to the Court about why you object to (i.e., don't like)
the Settlement and think it shouldn't be approved. Making an
objection does not exclude you from the Settlement.
To object to the Settlement, you should mail a written
statement describing your objections (along with any
supporting papers or briefs) to the following three addresses:
(1) the Clerk of Court at John Joseph Moakley U.S.
Courthouse, 1 Courthouse Way, Suite 2300, Boston, MA
02210, (2) William H. Anderson, Cuneo Gilbert & LaDuca,
LLP, 507 C Street, NE, Washington, DC 20002, and (3) John
A. Shope, Foley Hoag LLP, 155 Seaport Boulevard, Boston,
MA 02210.
Deadline: 45
days after the
giving of
notice of
Preliminary
Approval of
the Settlement
by the Court.
[INSERT
SPECIFIC
DATES].
Deadline: 45
days before
the Final
Approval
Hearing to
Defendants'
and Class
Counsel; Filed
with the Clerk
of the Court at
least 30 days
before the
Final
Approval
Hearing
[INSERT
SPECIFIC
DATES].
GO TO THE
"FAIRNESS
HEARING"
DO
NOTHING
The Court will hold a "Fairness Hearing" to consider the
Settlement, the request for attorneys' fees and expenses of the
lawyers who brought the Lawsuit, and the representative
Plaintiffs request for a service awards for bringing the
Lawsuit.
Hearing Date:
[Month Day,
Year] at
[Time].
You may, but are not required to, speak at the Fairness
Hearing about any objection you filed to the Settlement. You
may, but are not required to, hire an attorney to speak on your
behalf at the Fairness Hearing. If you or your attorney intend
to speak at the Fairness Hearing, you must notify both the
Court and the parties' attorneys of your intent to do so by
[INSERT SPECIFIC DATES]. You should mail your notice
to the following three addresses: (1) the Clerk of Court at
John Joseph Moakley U.S. Courthouse, 1 Courthouse Way,
Suite 2300, Boston, MA 02210, (2) William H. Anderson,
Cuneo Gilbert & LaDuca, LLP, 507 C Street, NE,
Washington, DC 20002, and (3) John A. Shope, Foley Hoag
LLP, 155 Seaport Boulevard, Boston, MA 02210.
Hearing
Location:
Courtroom 10,
John Joseph
Moakley U.S.
Courthouse, 1
Courthouse
Way, Boston,
MA.
You will get no monetary relief from the Settlement, you will
give up your right to object to the Settlement, and you will be
not be able to bring your own lawsuit about the legal claims in
this case.
N/A
What effect will the Settlement have if it is approved by the Court? If you do not exclude
yourself from the Settlement, then you (and any person claiming by, for, or through you) will
give up any right to bring your own lawsuit or participate in any lawsuit about the issues in this
case. The Settlement releases the Defendants and their affiliated parties from all the claims
described here [hyperlink to settlement website].
What if I would like more information about the Settlement? For complete information
about the Settlement; to view the Settlement Agreement, related Court documents, and the claim
form; and to learn more about how to exercise your various options under the Settlement, please
visit wwvv.INSERT URL.com . You may also secure additional information by email at
[email protected] , by U.S. mail at TimberTech Settlement, 894 Prairie Avenue,
. You may also contact the attorneys for
Wilmington, OH 45177, or by phone at 1- the Settlement Class: William Anderson of Cuneo Gilbert & LaDuca, LLP by calling 202-7893960.
B4495743.3
EXHIBIT E
Plaintiff
C.A. No. 1:14-cv-12409-MLW
V
.
Class Action
TIMBERTECH LID., and
CPG INTERNATIONAL, INC.,
Defendants.
[PROPOSED 1 ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED
CLASS ACTION SETTLEMENT, DIRECTING THE DISSEMINATION OF NOTICE
AND SCHEDULING A FINAL SETTLEMENT HEARING
Before the Court is the parties' Joint Motion for Preliminary Approval. The Court has
considered the Stipulation and Agreement of Class Action Settlement and its exhibits; the parties'
joint motion for an order preliminarily approving a class action settlement, directing the
dissemination of notice, and setting a final settlement hearing; and all other papers filed in this
action.
The matter having been submitted and good cause appearing therefore, the Court finds as
follows:
1.
All defined terms contained herein shall have the same meanings as set forth in the
Stipulation and Agreement of Class Action Settlement executed by the settling parties and filed
with this Court (the "Settlement Agreement").
2.
The Settlement Class Representative and the Released Parties, through their
counsel of record in the Litigation, have reached an agreement to settle all claims in the
-
1-
Case 1:14-cv-12409-M LW Document 20-1 Filed 01/15/16 Page 45 of 50
Litigation.
3.
The Court preliminarily concludes that, for the purposes of approving this
settlement only and for no other purpose and with no other effect on the Litigation, should the
proposed Settlement Agreement not ultimately be approved or should the Effective Date not
occur, the proposed Settlement Class meets the requirements for certification under Rule 23 of
the Federal Rules of Civil Procedure in that:
(a)
the proposed Settlement Class is ascertainable and so numerous that
joinder of all Settlement Class Members is impracticable for purposes of the Settlement;
(b)
there are questions of law or fact common to the proposed Settlement Class
in the context of the Settlement;
(c)
the claims of Settlement Class Representative Todd Gornstein are typical
of the claims of the Members of the proposed Settlement Class for purposes of the Settlement;
(d)
Settlement Class Representative Todd Gornstein will fairly and adequately
represent the interests of the Members of the Settlement Class for purposes of the Settlement;
(e)
certification of a Settlement Class is superior to other available methods for
an efficient adjudication of this controversy;
(0
Settlement Class Counsel are qualified to serve as counsel for the
Settlement Class Representative in his own capacity as well as his representative capacity and for
the Settlement Class; and
(g)
in the context of the Settlement, common issues will likely predominate
over individual issues.
4.
The parties have also presented to the Court for review a Settlement Agreement,
which proposes a Settlement that is within the range of reasonableness and meets the
-2-
Case 1:14-cv-12409-NALW Document 20-1 Filed 01/15/16 Page 46 of 50
requirements for preliminary approval.
5.
The parties have also presented to the Court for review a plan to provide notice to
the proposed Settlement Class of the terms of the settlement and the various options each
Settlement Class Member has, including, among other things, (1) the option for Settlement Class
Members to opt-out of the class action; (2) the option to be represented by counsel of their
choosing and to object to the proposed settlement; and/or (3) the option to become a participating
Claimant. Notice will be disseminated consistent with the Settlement Agreement. The Court
preliminarily concludes that:
(a)
the notice proposed is the best practicable under the circumstances,
consistent with Fed. R. Civ. P. 23(c)(2)(B), and provides sufficient notice to all Settlement Class
Members, and
(b)
the contents of the proposed notice and the manner of its dissemination
satisfy the requirements of state and federal due process.
Good cause appearing therefore, IT IS HEREBY ORDERED that:
1.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Settlement
Agreement and Release of Claims, and the Settlement contemplated therein, is preliminarily
approved.
2.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for purposes df,
and solely in connection with, the Settlement, the Court finds that each of the requirements for
certification of the Class set forth in the parties' Joint Motion for Preliminary Approval are met
and hereby conditionally certifies the following Class:
All owners, or former owners with a valid legal assignment from an
owner, of residences or commercial buildings in the United States
with a TimberTech Deck purchased during the Class Period.
-3-
A TimberTech Deck shall be defined as Defendant TimberTech's XLM Desert Bronze decking,
sold to end users or their agents or contractors on or before November 1, 2011, and XLM
Mountain Cedar decking, sold to end users or their agents or contractors on or before August 31,
2010. Excluded from the class are the following individuals and entities: (i) those who properly
and effectually exclude themselves from the settlement as provided herein, (ii) those who have
previously resolved and released their claims, or whose predecessors in interest resolved and
released their claims, as a result of a written settlement agreement, dismissal with prejudice, or
res judicata, (iii) Defendants and their employees and other affiliates, and (iv) the judge(s) to
whom this case is assigned or who is (are) presiding over the approval of this settlement. In the
event that the Settlement Agreement is terminated or not consummated, such conditional
certification shall be void, and the Released Parties shall have reserved their rights to oppose any
and all class certification motions.
3.
The Court appoints and designates the named plaintiff, Todd Gornstein, as
Settlement Class Representative. The Court appoints and designates the following attorneys and
law firms as Settlement Class Counsel: William H. Anderson and Charles J. LaDuca of the law
firm Cuneo Gilbert & LaDuca, LLP; Robert K. Shelquist of the law firm Lockridge Grinal Nauen
PLLP; Michael A. McShane of the law firm Audet & Partners, LLP, and Erica C. Mirabella of
Mirabella Law, PC. The Court authorizes Settlement Class Counsel to take approved steps to
effectuate the Settlement Agreement and the Settlement contemplated therein on behalf of the
Settlement Class Representative and Members of the Settlement Class.
4.
The Court directs that Notice be provided consistent with the terms of the
Settlement Agreement.
5.
Notice of the proposed Settlement and the rights of Settlement Class members to
-4-
opt out of the settlement, to object to the settlement, and/or to become a participating Claimant
shall be given by issuance of notice consistent with the terms of the Settlement Agreement. Nonsubstantive changes to the form of the Notice may be made without seeking further approval of
the Court.
6.
Settlement Class Counsel shall file a Motion for Fees and Costs on or before
[30 days before the Final Approval Hearing].
7.
of the
A hearing (the "Final Approval Hearing") shall be held in Courtroom
John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, Massachusetts, on
at : a.m./p.m. to consider whether the settlement should be given final approval
by the Court and whether this Court should enter a Final Approval Order.
(c)
Written objections by Settlement Class members to the proposed
Settlement will be considered if they are filed with the Court and received by Settlement Class
Counsel and counsel for Defendants on or before
[30 days before the Final Approval
Hearing].
(d)
All papers filed in support of final approval of the proposed Settlement
shall be filed on or before
[14 days before the Final Approval Hearing]. The form of Notice
disseminated to the Settlement Class shall be filed with the Court on or before
[14 days
before the Final Approval Hearing]. Evidence that the parties have complied fully with the notice
provisions of the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, shall be filed with the
, Court on or before
(e)
[14 days before the Final Approval Hearing].
At the Final Approval Hearing, Settlement Class members may be heard
orally in support of or, if they have timely submitted written objections, in opposition to the
proposed Settlement.
-5
(0
Settlement Class Counsel and counsel for the Released Parties should be
prepared at the Final Approval Hearing to respond to objections filed by Settlement Class
members and to provide other information as appropriate, bearing on whether or not the proposed
Settlement should be approved.
(g)
In the event that the Effective Date occurs, all Settlement Class members
will be deemed to have forever released and discharged the Released Claims. In the event that
the Effective Date does not occur for any reason whatsoever, the Settlement Agreement shall be
deemed null and void and shall have no effect whatsoever.
8.
Pending entry of a Final Approval Order (and any appellate review thereof), all
discovery, pretrial deadlines, and other pretrial proceedings in the Litigation are stayed and
suspended until further order of this Court, except as otherwise agreed to by the parties or as may
be necessary to implement the Settlement Agreement or this Order.
9.
Pending a ruling on the Final Approval Order (and any appellate review thereof)
or termination of the Settlement Agreement, whichever occurs earlier, all Settlement Class
members, and any Person actually or purportedly acting on behalf of any Settlement Class
member(s), are stayed and enjoined from commencing, instituting, continuing, pursuing,
maintaining, prosecuting, or enforcing any Released Claim, directly or indirectly, in any judicial,
administrative, arbitral, or other forum, against any of the Released Parties.
10.
Other than to enforce its terms, this Order is not admissible as evidence for any
purpose against the Released Parties in any pending or future litigation. In the event that no Final
Approval Order is issued or the Settlement Agreement is otherwise terminated pursuant to its
terms, the Order shall not be construed or used (1) as an admission or evidence of the validity of
any Released Claim or of any wrongdoing by or against the Released Parties, or (2) as a waiver
-6-
by the Released Parties of any right to present any evidence, arguments, or defenses (including
without limitation to class certification) in this action or any other proceeding.
Dated:
HON. MARK L. WOLF
United States District Judge
7
CHARLES J. LADUCA
CHARLES J. LADUCA's tenure at the firm
began over twenty years ago as a messenger
working his way through college. He rose from
messenger to paralegal to law clerk to attorney
to be named partner (within just four years after
graduating law school).
Over the past fifteen years, Charles LaDuca has
served as Lead Counsel, or in the leadership
structure in dozens of defective building
products and consumer cases. To date, his
cases have recovered over $1.8 billion dollars
for Cuneo Gilbert & LaDuca's clients.
Mr. LaDuca's most noted achievement has been to use the legal system to help millions of
homeowners obtain compensation to fix their homes after suffering from flawed, leaky roofs,
faulty plumbing and defective siding. Specific examples of Mr. LaDuca's accomplishments
include:
•
Mr. LaDuca was co-lead counsel in the efforts of homeowners with heating systems outfitted
with "Entran II" piping, which the homeowners believed were defective. After a fifteen month
investigation, and having overcome motions to dismiss, Mr. LaDuca forged a North
American settlement under which homeowners received on average of $60,000 each to fix
their homes. This $364 million settlement came about as a result of aggressive litigation by
Mr. LaDuca's team against the defendant and other homeowner lawyers that involved two
"All Writs" injunctions.
•
Mr. LaDuca represented homeowners who purchased lpex brass fittings that the
homeowners believed turned out to be defective. Mr. LaDuca was co-lead counsel in the
case which has allowed thousands of home owners to recover thousands of dollars each in
compensation for their losses. The total fund for homeowners' compensation is $125 million,
and the claims period is still pending for another five years.
•
In his largest case, Mr. LaDuca was co-lead counsel representing owners of over 1.8 million
homes who purchased CertainTeed roofing shingles. The homeowners believed were
defective. And thanks to Mr. LaDuca's determined legal work, more than 75,000
homeowners to date have recovered up to thousands of dollars each. As a result of Mr.
LaDuca's efforts the claims period will go for another twenty-three years. The estimated
value of the settlement exceeds $700 million dollars.
•
Mr. LaDuca was the Chair of the Executive Committee in the Zurn defective brass fitting
litigation. After the plaintiff's team certified the national class, the defendants appealed
unsuccessfully all the way to the Supreme Court. The case settled for roughly $30 million
dollars. The Final Approval was granted in March, 2013.
•
In the civil rights area, Mr. LaDuca represented detainees in over twenty cases challenging
the blanket strip search practices of large and small counties across America. He recovered
approximately $30 million to date for our clients. The average payment to each class
member has been in the thousands of dollars.
•
Mr. LaDuca is co lead counsel in the GAF roof shingles litigation which was consolidated
before Judge Childs in South Carolina. He represents homeowners who believe their roof
shingles are defective. The plaintiffs have successfully beaten back 14 Motions to Dismiss,
and have a certified South Carolina class so far.
•
Mr. LaDuca is co lead counsel in a case which represents homeowners with Owens Corning
roof shingles, which the homeowners believe are defective. The court initially granted
judgment for Owens Corning, and Mr. LaDuca's team won reversal in a federal appeals
court. Discovery is ongoing.
Mr. LaDuca and his family are active in his community, especially in helping to repair, rebuild
and raise money for better homes for the poor. Mr. LaDuca's charitable contributions have
included his support for education programs for the needy children in third world countries such
as Ethiopia and Sierra Leone.
WILLIAM H. ANDERSON
WILLIAM H. ANDERSON
focuses his practice primarily
on representing plaintiffs in
consumer protection and
product liability cases. He
began his legal career as law
clerk to Judge Rhonda Reid
Winston in the District of
Columbia Superior Court,
where he worked on a range
of cases from complex civil
litigation to the most serious
felony cases.
Since entering private
practice, he has represented
clients in a variety of actions
against large corporations as
well as the U.S. Government.
He has also advocated for
clients in the areas of complex
antitrust, civil and human
rights, and securities class
actions before federal and
state courts.
A few examples of Mr. Anderson's achievements include:
True v. American Honda Motor Co., (Case No. 07-cv-00287, C.D. Cal.) At just 27 years old
Mr. Anderson filed this first-of-its-kind class action regarding fuel efficiency in Honda Civic
Hybrid vehicles and successfully argued the motion to dismiss against a named partner at
an 850 lawyer, prominent national law firm. Mr. Anderson served as class counsel in the
lawsuit, which, after several years of contentious litigation, produced a settlement with actual
cash benefits realized of well over $50 million.
•
In re Global Concepts Limited, Inc., (Case No. 12-cv-23064, S.D. Fla.) Mr. Anderson served
as co-lead counsel in this litigation concerning more than three million falsely advertised
pest control devices. Mr. Anderson and his co-counsel negotiated a settlement providing full
refunds to class members. The settlement was finally approved without a single objection
being filed.
•
In re LivingSocial Marketing & Sales Practice Litig., (Case No. 11-mc-00472, D.C.D.C.) This
litigation challenged the expiration dates included on LivingSocial gift certificates. Mr.
Anderson's firm was appointed co-lead counsel in the litigation, which ultimately settled for
$7.5 million in cash.
•
Sloan v. United States, (Case No. 06-483, U.S.D.C.D.C.) This litigation involved the illegal
collection of taxes on long-distance telephone service by the IRS. After the filing of the
case, the IRS acknowledged the illegality of the tax and has returned more than eight billion
dollars to American taxpayers. Mr. Anderson's firm served as co-lead counsel in the
litigation.
Mr. Anderson was named a Rising Star by Super Lawyers for the Washington, D.C. area 20142016.
Mr. Anderson supports numerous local and national charities and he speaks Spanish.
CUNEO GILBERT & LADUCA, LLP
FIRM PROFILE
Civil Litigation in Federal and State Courts. General Commercial Practice. Antitrust, Civil Rights,
Government Relations, Products Liability, Administrative, Securities, Labor, and Consumer law.
ATTORNEYS
Jonathan W. Cuneo, born New York, New York, September 10, 1952. Admitted to the District of
Columbia Bar, 1977; New York Bar, 2006. Admitted to practice before the United States Supreme
Court, 1994; United States Court of Appeals for the First Circuit, 2006; United States Court of
Appeals for the Second Circuit, 2007; United States Court of Appeals for the Third Circuit, 2004;
United States Court of Appeals for the Fourth Circuit, 2005; United States Court of Appeals for the
Fifth Circuit, 2009; United States Court of Appeals for the Ninth Circuit, 2007; United States Court
of Appeals for the Tenth Circuit, 2011; United States Court of Appeals for Eleventh Circuit, 2012;
United States Court of Appeals for the District of Columbia Circuit, 1978; United States District
Court for the Eastern District of Michigan; United States District Court for the Eastern District of
New York, 2006; United States District Court for the Southern District of New York, 2006; United
States District Court for the Northern District of New York, 2002; United States District Court for
the District of Columbia, 1978. Education: Columbia University (A.B., 1974); Cornell University
(J.D., 1977). Experience: Law clerk to the Honorable Edward Tamm, United States Court of
Appeals, District of Columbia Circuit (1977-1978); Attorney, Office of the General Counsel, Federal
Trade Commission (1978-1981); Assistant Counsel and Counsel, Subcommittee on Monopolies and
Commercial Law, House Committee on the Judiciary (1981-1986); General Counsel, Committee to
Support the Antitrust Laws (1986 - 2004); Legislative Counsel, National Association of Shareholder
and Consumer Attorneys (1988-2004); Legislative Counsel, National Coalition of Petroleum
Retailers and Service Station Dealers of America (1988-1994). Activities: Arlington County
Democratic Committee (1983-1987); Board Member, Juvenile Law Center (2009- ); Board Member,
American Antitrust Institute (1998 - 2009); Board Member, Violence Policy Center (1999 - 2009);
Board Member, Appleseed Legal Foundation (1999-2005). Honors: Rated by Martindale-Hubbell as
AV® PreeminentTM ; Listed in Marquis "Who's Who in America"; Dean's Board of Advisors, The
George Washington University Law School (2012 — current); Finalist, 2006 Trial Lawyer of the
Year, Trial Lawyers for Public Justice. Publications: Judge Tamm and the Evolution of
Administrative Law: The Art of Judging, 74 GEORGETOWN L.J. 1595 (1986); Pulling the Plug on
Antitrust Law (with Jerry Cohen), THE NATION (1987); House Takes Up Cause of Discounters,
LEGAL TIMES, Vol X, No. 30 (1987); Supreme Court's "Sharp" Ruling Means Higher Prices, Fewer
Choices for Consumers, MANHATTAN LAWYER (1988); Chapter, Consumer Protection -- Federal
Trade Commission, CHANGING AMERICA: BLUEPRINTS FOR THE NEW ADMINISTRATION (edited by
Mark Green) (1992); Antitrust and Clinton: Changes on the Horizon, THE CALIFORNIA LAWYER
(1993); Action on Class Actions, THE RECORDER (1997); The Gold Train Case: Successfully Suing
the United States on Behalf of a Class of Holocaust Era Victims (with Professor Charles Tiefer), 27
CLASS ACTION REPORTS 139 (2006); THE INTERNATIONAL HANDBOOK OF PRIVATE ENFORCEMENT OF
COMPETITION LAW (with Albert A. Foer) (Edward Elgar Publishing Inc., 2010). Remediation and
Deterrence: The Real Requirements of the Vindication Doctrine, publication forthcoming (2013),
publication forthcoming in George Washington Law Review. Guest Lecturer: Southwestern Law
School, 1997 and 1998; numerous appearances in CLE programs in the United States and Canada;
District of Columbia Judicial Conference (2007). Member: American Bar Association; District of
Columbia Bar Association; American Association for Justice.
Pamela B. Gilbert, born New Brunswick, New Jersey, October 3, 1958. Admitted to the New York
Bar, 1985 (inactive); District of Columbia Bar 1986. Admitted to practice in D.C. Education: Tufts
University (B.A., magna cum laude, 1980); New York University (J.D., 1984). Experience:
Consumer Program Director, United States Public Interest Research Group (1984-1989); Legislative
Director, Executive Director, Public Citizen's Congress Watch (1990-1992; 1992-1994); Attorney,
M+R Strategic Services (1995); Executive Director, Consumer Product Safety Commission (19962001); Chief Operating Officer, M+R Strategic Services (2001-2002). Honors and Activities: Board
Member, American Antitrust Institute (2010 - ); Board Member, Center for Effective Government
(2009 - ); Board Member, National Environmental Law Center (2006 - ); Board Member, Equal
Justice Works (2004 - 2012). Publications: PRIVATE ENFORCEMENT OF THE ANTITRUST LAWS IN THE
UNITED STATES (edited by Albert A. Foer and Randy M. Stutz), "Proposals for Reform," written with
Victoria Romanenko. Member: New York Bar Association; District of Columbia Bar Association;
American Bar Association; American Association for Justice; Public Justice; Consumer Attorneys of
California.
Charles J. LaDuca, born Buffalo, New York, September 30, 1974. Admitted to the New York State
Bar, 2001; District of Columbia Bar, 2002; United States Supreme Court, 2009; United States Court
of Appeals for the Second Circuit, 2007; United States Court of Appeals for the Third Circuit, 2004;
United States Court of Appeals for the Sixth Circuit, 2012; United States Court of Appeals for the
Ninth Circuit, 2011; United States Court of Appeals for the District of Columbia Circuit, 2013;
United States District Court for the Northern District of New York, 2002; United States District
Court for the Western District of New York, 2004; United States District Court for the Southern
District of New York, 2013; United States District Court for the District of Columbia, 2002; United
States District Court for the Central District of Illinois, 2009; United States District Court for the
District of Colorado, 2008; United States District Court for the Western District of Michigan, 2010.
Education: George Washington University (B.A., 1996); Catholic University of America (J.D.,
2000). Member: District of Columbia Bar Association (Corporation, Finance and Securities Law
Section); New York State Bar Association; New York State Society.
Joel Davidow, born Trenton, New Jersey, July 24, 1938. Admitted to the Bar in the District of
Columbia, 1965; New York Bar, 1981; Court Admissions: U.S. Supreme Court, U.S. Court of
Appeals (D.C., Ninth, First and Federal Circuits), U.S. District Court, S.D. N.Y., U.S. District Court,
E.D. N.Y. Education: Columbia University School of Law (LLB, cum laude, 1963); Princeton
University, Woodrow Wilson School of Public Affairs (B.A., summa cum laude, 1960). Experience:
Notes editor of the Columbia Law Review and the winner of the National Jessup Moot Court
Competition; Two years in the U.S. Federal Trade Commission; Fifteen years in Antitrust Division
of the Department of Justice, where he eventually served as Chief of the Foreign Commerce Section
and then Director of Policy and Planning; Senior antitrust partner in major New York City and
Washington, D.C. law firms, representing clients from Japan, Europe, and the United States, as both
plaintiffs and defendants, in antitrust, patent, and trade litigation matters; Counsel of record in
numerous antitrust class actions and has briefed and argued multi-million dollar appeals before the
First, Second, Seventh, Ninth and Federal Circuit courts of appeal. Publications: ANTITRUST GUIDE
FOR INTERNATIONAL BUSINESS ACTIVITIES (BNA, 4th ed. 2011); PATENT-RELATED MISCONDUCT
ISSUES IN U.S. LITIGATION (OUP, 2010); and numerous articles dealing with international antitrust
and patent litigation topics. Adjunct Professor: George Washington University School of Law,
Columbia Law School, Georgetown Law Center, American University Law School, and George
Mason University Law School, where he has taught courses in antitrust, regulation, and international
competition policy.
Daniel M. Cohen, born Detroit, Michigan, January 24, 1958. Admitted to the Florida Bar, 1989;
District of Columbia Bar, 2001; Maryland State Bar, 2003; Virginia State Bar, 2010. Admitted to
practice before the United States District Court for Maryland, 2002; United States District Court for
the Middle District of Florida, 2003; United States District Court of District of Columbia, 2008;
Eastern District of Virginia, 2010; Western District of Virginia, 2010; Southern District of Florida,
2013. Education: Ithaca College (B.A., 1981); Wes tern New England School of Law (J.D., 1988).
Experience: Criminal Defense Trial Attorney, Public Defenders Office, tried 70 jury trials,
Jacksonville Florida, 1989-1999. Member: District of Columbia Bar Association (Antitrust and
Consumer Law Section); Florida State Bar Association.
Michael J. Flannery, born January 22, 1963. Admitted to the Virginia Bar, 1991; District of
Columbia Bar, 1992; California Bar, 1998; Missouri Bar, 2001. Admitted to practice before the
United States Court of Appeals for the Third Circuit; United States Court of Appeals for the Ninth
Circuit; United States District Court for the Eastern District of Missouri, United States District Court
for the Western District of Missouri, United States District Court for the Southern District of Illinois,
United States District Court for the Northern District of Illinois, United States District Court for the
Northern District of California, United States District Court for the Southern District of California,
United States District Court for the Central District of California, United States District Court for the
Eastern District of California, and the United States District Court for the District of Columbia.
Education: University of Notre Dame (B.A., 1985); College of William and Mary Marshall-Wythe
School of Law (J.D., 1991). Honors and Awards: William and Mary Law Review (1989-91);
Publication of Student Note: "Abridged Too Far: Anticipatory Search Warrants and the Fourth
Amendment," 32 Wm. & MARY L. REV. 781 (1991) (reprinted in 14 Criminal Law Review (1992));
Teaching Assistant, William and Mary Legal Skills Program; Chief Justice, William and Mary
Honor Council; Notre Dame Scholar/Edward W. Krause Academic Scholarship. Experience: Cohen,
Milstein, Hausfeld & Toll, Washington, DC, 1994-1997; Milberg Weiss Bershad Hynes & Lerach,
San Diego, CA, 1997-2000; Carey, Danis & Lowe, St. Louis, MO, 2000-2012.
Matthew E. Miller, born Queens, New York, May 16, 1966. Admitted to the Bar of the
Commonwealth of Massachusetts, 1992; Louisiana Bar, 1993; District of Columbia Bar, 1994.
Admitted to practice before the United States Courts of Appeals for the First Circuit, 1998, Fourth
Circuit, 2010, Ninth Circuit, 2010, Tenth Circuit, 2011, D.C. Circuit, 2012; United States District
Court for the District of Massachusetts, 1994; United States District Court for the District of the
District of Columbia, 2008. Education: Tufts University (B.A., magna cum laude, 1988); University
of Virginia (J.D., 1991). Experience: Law Clerk to the Honorable Edith Brown Clement, United
States District Court for the District of Louisiana, 1991-1993; Berman, DeValerio & Pease, Boston,
MA 1994-1999; sole practitioner, 1999-2008. Languages: French, Spanish.
Alexandra C. Warren, born Bucharest, Romania, October 9, 1977. Admitted to the New York Bar,
2003; Massachusetts Bar, 2003; Pennsylvania Bar, 2004; District of Columbia Bar, 2007. Admitted
to practice before the United States District Court for the Eastern District of Pennsylvania, 2005;
United States District Court for the Western District of Pennsylvania, 2007; United States District
Court for the District of Columbia, 2007; United States District Court for the District of Colorado,
2008; United States District Court for the Middle District of Pennsylvania, 2009; United States
District Court for the Western District of Michigan, 2010; United States District Court for the
District of Massachusetts, 2012; United States Court of Appeals for the Third Circuit, 2009; United
States Court of Appeals for the Fifth Circuit, 2009; United States Court of Appeals for the Ninth
Circuit, 2011; United States Supreme Court, 2009. Education: Brandeis University (B.A., cum
laude, 1999); Fordham University Law School (J.D., 2002) (Fordham Environmental Law Journal,
Staff). Honors: Archibald R. Murray Public Service Award (2002); Addison M. Metcalf Labor
Law Prize (2002). Experience: Law Clerk to the Honorable John E. Jones III, United States District
Court for the Middle District of Pennsylvania (2002-2004); Associate, MacElree Harvey, Ltd. (20042006). Member: District of Columbia Bar Association; Philadelphia Trial Lawyers Association.
William H. Anderson, born Trenton, New Jersey, March 28, 1979. Admitted to the Pennsylvania
Bar, 2004; District of Columbia Bar, 2007; United States District Court for the District of Columbia
2007; United States Court of Appeals for the District of Columbia Circuit 2009; Colorado Bar, 2013;
United States District Court for the District of Colorado 2013. Education: The George Washington
University (B.A., cum laude, 2000); American University (J.D., 2004). Honors and Awards: Super
Lawyers DC Rising Star 2014 & 2015. Experience: Law clerk to the Honorable Rhonda Reid
Winston, Superior Court, District of Columbia (2004-2005). Member: American Bar Association;
District of Columbia Bar Association; Pennsylvania Bar Association; Public Justice Foundation.
Languages: Spanish and English.
Katherine W. Van Dyck, born Corpus Christi, Texas, July 4, 1979. Admitted to the Texas Bar,
2004; District of Columbia Bar, 2008. Admitted to practice before the United States District Court
for the Northern District of Texas, 2006; United, States District Court for the District of Columbia,
2008; United States Court of Appeals for the Fourth Circuit, 2009. Education: Texas Christian
University (B.A. 2001); Texas Tech University Law School (J.D., 2004). Texas Tech Law Review Articles Editor, Outstanding Third Year Editor, Outstanding Second Year Editor (2002-2004)
Experience: Law clerk to the Honorable Hayden W. Head, Jr., United States District Court for the
Southern District of Texas (2004-2006); Associate, Fee, Smith, Sharp & Vitullo, LLP (2006-2007);
Associate, Griffith & Wheat, LLP (2008-2012).
Jennifer E. Kelly, born Elmira, New York, July 7, 1975. Admitted to the Maryland Bar, 2007,
District of Columbia Bar, 2008, U.S. District Court for the District of Columbia, 2012. Education:
Boston University (B.A., cum laude, 1997), American University (JD., cum laude, 2007; highest
grade designation, Wills, Trusts, & Estates). Experience: Internship, Parliament of Great Britain
(1995); Internship, District of Columbia Corporation Counsel (1996); Legislative Assistant, Office of
Senator Robert C. Byrd (1998-2002); American University Civil Practice Clinic (Oral Argument
before the Maryland Court of Special Appeals and Maryland District Court Small Claims Trial)
(2006); Associate, Bracewell 8c Giuliani, LLP (2007-2009) (Paralegal, 2003-2007); Volunteer
Attorney, American Red Cross (2010-2011). Member: American Bar Association.
Brendan S. Thompson, born Buffalo, New York, February 21, 1974. Admitted to the Maryland
Bar, 2008; Admitted to practice before the United States District Court for the District of Colorado,
2008; United States District Court for the Central District of Illinois, 2008; United States Court of
Appeals for the Ninth Circuit, 2011. Education: University of Detroit (B.S., 1997); visiting student,
George Mason Law School; University of Baltimore Law School (J.D., 2008). Experience: Student
Internships: Congressman Brian Higgins (D-NY) (2007); Chambers of the Honorable LeRoy F.
Millett Jr., Circuit Court for the 31st Judicial Circuit of Virginia (2006); The Commonwealth's
Attorney's Office for Prince William County, Virginia (2005). Member: Maryland State Bar
Association, Bar Association of Baltimore City, American Bar Association; New York State Society.
Victoria 0. Romanenko, born Kiev, Ukraine, April 8, 1983. Admitted to the Maryland Bar, 2009;
the District of Columbia Bar, 2012. Education: Catholic University, Columbus School of Law (J.D.,
2009); Brandeis University (B.A., with honors, 2006). Experience: Worked at a Washington D.C.
firm engaging in antitrust and telecommunications litigation (2009-2011). Law Clerk at U.S.
International Trade Commission (2009) (antidumping, countervailing duties, Section 337). Law
Clerk at Department of Labor (2008) (Occupation Safety and Health Division). Law Clerk at District
of Columbia Office of the Attorney General (2007) (Civil Enforcement Section). Ms. Romanenko
was also nominated for the 2009 Jan Jancin award upon her completion of law school. This
nomination is given to the student with the highest Intellectual Property GPA in the graduating class.
Publications: Remediation and Deterrence: The Real Requirements of the Vindication Doctrine
(2013), publication forthcoming in George Washington Law Review; PRIVATE ENFORCEMENT OF THE
ANTITRUST LAW IN THE UNITED STATES (edited by Albert A. Foer and Randy M. Stutz) (2012),
Chapter, Proposals for Reform, co-authored with Pamela Gilbert. Ms. Romanenko has a working
knowledge of Russian and French.
Beatrice 0. Yakubu, born Melbourne, Florida, January 3, 1984. Admitted to the Maryland Bar,
2010. Education: American University, Washington College of Law (J.D. 2010); Florida State
University (B.S. 2005). Experience: clerked at the United States Attorney's Office and a criminal
defense firm, and worked as a Student Attorney for the Mid-Atlantic Innocence Project. Ms. Yakubu
is conversational in the Yoruba language.
Yifei Li, born Wuhan, China, February 15, 1988. Admitted to the New York State Bar, 2013; United
States Court of Appeals for the Second Circuit, 2013; United States Court of Appeals for the District
of Columbia Circuit, 2013; United States Court of Federal Claims, 2013; United States District
Court for the Eastern District of Michigan, 2013; United States District Court for the Eastern District
of New York, 2013; United States District Court for the Southern District of New York, 2013.
Education: The George Washington University Law School (LL.M., 2011); Beijing Foreign Studies
University Law School (LL.B., B.A., Scholarship Recipient, 2010). Experience: Judicial Intern to the
Honorable Chief Judge Randall R. Rader at U.S. Court of Appeals for the Federal Circuit (20122013). Legal Intern at Federal Circuit Bar Association (2011-2012). Law Clerk at Jingtian &
Gongcheng Attorneys At Law (2009). Judicial Intern at People's Court ofJiang' An District (2007).
Member: New York State Bar Association; American Bar Association. Ms. Li is a native speaker of
Chinese (Mandarin).
Taylor Asen, born Portland, Maine, February 22, 1984. Admitted to the New York State Bar, 2013;
United States Court of Appeals for the Third Circuit, 2014; United States District Court for the
Eastern District of New York, 2014; United States District Court for the Southern District of New
York, 2014. Education: Yale Law School (J.D. 2012); Columbia University (M.A. 2007); George
Washington University (B.A., summa cum laude, 2006). Experience: Law Clerk, United States Court
of Appeals for the Third Circuit (2013-2014); Law clerk, United States District Court, Southern
District of New York (2012-2013). Member: New York County Lawyers Association.
Benjamin D. Elga, born New York, New York, October 12, 1985. Admitted to the New Jersey Bar,
2014; New York Bar, 2015. Admitted to practice before the United States Federal Court for New
Jersey. Education: Harvard Law School (J.D. 2014); Princeton University (A.B. 2008). Member:
New York County Lawyers' Association. Mr. Elga is conversational in Wolof.
SPECIAL COUNSEL
Robert J. Cynkar, born Chicago, Illinois, April 22, 1952. Admitted to the Illinois Bar, 1977;
District of Columbia Bar, 1978; Virginia Bar, 1984. Admitted to practice before the United States
Supreme Court and before the United States Courts of Appeals for the First, Second, Third, Fourth,
Fifth, Sixth, Eighth, Eleventh, District of Columbia Circuit, and Federal Circuits. Education:
Princeton University (A.B., magna cum laude, 1974); New York University School of Law (J.D.,
1977) (Staff, Law Review). Experience: Associate, Fried, Frank, Harris, Shriver & Kampelman,
Washington, D.C. (1977-1979); Counsel to Chairman Bob Dole, Subcommittee on Improvements in
Judicial Machinery, United States Senate Committee on the Judiciary (1979-1981); General Counsel
to Chairman Paul Laxalt, Subcommittee on Regulatory Reform, United States Senate Committee on
the Judiciary (1981-1983); Assistant United States Attorney, Eastern District of Virginia (Criminal
Division) (1983-1985); Special Assistant to Attorney General Edwin Meese (1985); Deputy
Assistant Attorney General, Civil Division, United States Department of Justice (1985-1988);
Associate, Shaw, Pittman, Potts & Trowbridge, Washington, D.C. (1988-1991); Partner, Shaw,
Pittman, Potts & Trowbridge, Washington, D.C. (1991-1996); Founding Partner, Cooper & Kirk,
Washington, D.C. (1996-2003); Partner, Egan, Fitzpatrick, Malsch & Cynkar, Vienna, Virginia
(2004-2006); has tried over 25 cases in federal and state courts; has briefed numerous appeals in the
majority of Federal Circuits and in State Supreme Courts, and in the U. S. Supreme Court, and
personally argued many of those appeals. Sample Noteworthy Cases: US. v. Fleming (E.D.Va.
1984) (successful prosecution of a drunk driver who killed a mother of 11 for second-degree
murder); US. v. Winstar (U .S. Sup. Ct. 1996) (holding that even the requirements of a broad change
in regulatory policy by Congress cannot excuse the federal government's breach of contract); U.S. ex
Ubl v. IIF Data Solutions (E.D. Va. 2009) (successful defense of a government contractor
accused of violating the False Claims Act in a bet-the-company case); Livingston v. Virginia Dept. of
Transportation (Va. Sup. Ct. 2012) (establishing that a damaging for public use does not need to rise
to the level of a taking to qualify for just compensation under the Virginia Constitution); Settle v.
RGR, (Prince William Cir. Ct. 2012)(over $3 million jury award for the widow of a truck driver
killed in a collision with a train). Publications: Dumping on Federalism, 75 U. COLO. L. REV. 1261
Case 1:14-cv-12409-MDN Document 20-2 Filed 01/15/16 Page 10 of 11
(2004); The Changing Vocabulary of Administrative Law, 43 FOOD DRUG Cosm. L.J. 681 (1988);
"Buck v. Bell: 'Felt Necessities' v. Fundamental Values?" 81 COLUM. L. REV. 1418 (1981).
Member: District of Columbia Bar Association; Virginia Bar Association; Fairfax County Bar
Association; Federalist Society.
OF COUNSEL TO THE FIRM
Charles Tiefer, born January 21, 1954. Admitted to the District of Columbia Bar. Admitted to
practice before the United States Supreme Court; United States Court of Federal Claims. Education:
Columbia University (B.A., summa cum laude, 1974), Harvard Law School (J.D., magna cum laude,
1977) (Member, Harvard Law Review). Experience: Law clerk, United States Court of Appeals for
the D.C. Circuit (1977-1978); Trial Attorney, United States Department of Justice, Civil Rights
Division (1978-1979); Assistant Senate Legal Counsel, United States Senate (1979-1984); Solicitor
and Deputy General Counsel, United States House of Representatives (1984-1995); Professor of
Law, University of Baltimore School of Law (1995 - ). Publications: VEERING RIGHT: How THE
BUSH ADMINISTRATION SUBVERTS THE LAW FOR CONSERVATIVE CAUSES (U. Cal. Berkeley, 2004);
GOVERNMENT CONTRACT LAW: CASES AND MATERIALS (co-author) (Carolina Academic Press, 2d
ed., 2004); THE SEMI-SOVEREIGN PRESIDENCY (Westview, 1994); CONGRESSIONAL PRACTICE AND
'PROCEDURE (Greenwood Press, 1989); Congress 's Transformative "Republican Revolution" in
2001-2006 and the Future of One-Party Rule, J. L. & POL. OF U. VA. (2008); The Iran Debacle: The
Rise and Fall of Procurement-Aided Unilateralism as a Paradigm of Foreign War, UNIV. PENN. J.
INT'L ECON. LAW (2008); Can Appropriation Riders Speed Our Exit From Iraq? 42 STAN. J. INT'u L.
291 (2006); The Gold Train Case: Successfully Suing the United States on Behalf of a Class of
Holocaust-Era Victims, 27 CLASS ACTION REP. 136 (2006); Cancellation and Termination Without
Forfeiture, 54_MERcER L. REV. 1031 (2003). Member: District of Columbia Bar Association.
David W. Stanley, born St. Louis, Missouri, May 30, 1944. Admitted to the District of Columbia
Bar, 1973; Virginia State Bar, 1972. Admitted to practice before the United States Supreme Court,
1980; United States Court of Appeals for the District of Columbia Circuit, 1978; United States
District Court for the District of Columbia, 1974. Education: University of Virginia (B.A., 1966);
University of Virginia School of Law (J.D., 1972). Experience: Law clerk to Honorable Gerard D.
Reilly, Chief Judge, District of Columbia Court of Appeals (1972-1973). Assistant U.S. Attorney,
• U.S. Attorney's Office for the District of Columbia, 1973-1984 (Fraud Division, 1981-1984);
Assistant Chief Trial Attorney, Division of Enforcement, U.S. Securities and Exchange Commission
(1984-1987); Of Counsel, Swidler & Berlin, Chartered (1987-1992). Member: District of Columbia
Bar Association (Corporation, Finance and Securities Law Section; Litigation Section); Assistant
U.S. Attorneys Association (President, 1994-1995); Association of Securities and Exchange
Commission Alumni; The Barristers.
Bradford E. Kile. Admitted to the District of Columbia Bar. Admitted to practice before the United
States Supreme Court, United States Court of Appeals for the Federal, Fourth, and DC Circuits,
United States District Court for the District of Columbia and Eastern District of Virginia. Registered
to practice before the United States Patent and Trademark Office — Reg. No. 25,223. Education: The
Ohio State University (B. Mech. Engr., 1966); The George Washington University (J.D., 1970;
LL.M. 1978). Publications: Legal 'X Games' Risk: Officer and Director Passive Retention of
Personal Liability for Patent Infringement, 7 IP Litigator 11(2001); "Lotus v. Borland-Copyright
Protection of Computer Software in a State of Transition," Copyright World, 1995. Member:
American Bar Association; Fellow of the Inn — Giles S. Rich American Inn of Court; American
Intellectual Property Law Association; Federal Circuit Historical Society.
-
LOCKRIDGE
GRINDAL
\AUEN
-
P. L L. P.
Atcorneys
au
Law
Founded in 1978, Lockridge Grindal Nauen P.L.L.P. has extensive experience in
antitrust, securities, environmental, employment, health care, commercial, intellectual
property and telecommunications law.
The firm's clients include agri-businesses, business enterprises, banks, local
governments, trade and industry associations, real estate developers, telecommunications
providers, health care professionals, casualty insurers, union pension funds, publishers
and authors, and a major computer manufacturer and retailer.
Lockridge Grindal Nauen P.L.L.P. attorneys are assisted by more than 20
paralegals and government relations specialists, and an extensive support staff. The firm
has offices in Minneapolis, Minnesota and Washington, D.C.
Lockridge Grindal Nauen P.L.L.P. has been continuously active in class action
and other complex litigation, including the following illustrative cases, in which the firm
has served as lead or co-lead counsel:
469736.1
•
Peterson v. BASF Corp., Civil No. C2-97-295 (Norman County
District Court, Minn.);
•
In Re Baycol Products Litig., MDL No. 1431 (D. Minn.);
•
Benacquisto, et al. v. American Express Financial Corp. et al.,
Master File No. 00-1980 (D. Minn.), Civil Action No. 96-18477
(Henn. Cty. Dist. Ct.) (insurance class action);
•
In Re Catfish Antitrust Litig., MDL No. 928 (N.D. Miss.);
•
In Re Certain Teed Corp. Roofing Shingle Products Liability Litig.,
MDL 1817 (E.D. Pa.);
•
George Guenther, et al. v. Cooper Life Sciences, et al. (Cooper
Life Sciences Securities Litig.), No. C 89-1823 MHP (N.D. Cal.).
•
In Re HardiePlank Fiber Cement Siding Litig., MDL No. 2359 (D.
Minn.),
•
In Re IKO Roofing Shingle Products Liability Litig., MDL No.
2104 (C.D. Ill.);
•
In Re Kitec Plumbing Systems Products Liab. Litig. MDL No.
2098 (N.D. Tex.);
•
In Re Lutheran Brotherhood Variable Insurance Products Co.
Sales Practices Litig., MDL No. 1309 (D. Minn.);
•
Meyers v. The Guardian Life Insurance Company of America, Inc.
Litig., Civil No. 2:97CV35-D-B (N.D. Miss.);
•
In Re Monosodium Glutamate Antitrust Litig., MDL No. 1328 (D.
Minn.);
•
In Re Northstar Education Finance, Inc. Contract Litig., MDL 081990 (D. Minn.);
•
In Re Piper Funds, Inc. Institutional Government Income Portfolio
Litig., Master File No. 3-94-587 (D. Minn.);
•
In Re Polypropylene Carpet Antitrust Litig., MDL No. 1075 (N.D.
Ga.);
•
In Re: Potash Antitrust Litigation (II), MDL No. 1996 (N.D. Ill.);
•
Judith Thorkelson, et al. v. Publishing House of the Evangelical
Lutheran Church in America, et al., Court File 10-01712 (D.
Minn.);
•
In Re Residential Doors Antitrust Litig., MDL No. 1039 (E.D. Pa.);
•
Gary G. Smith, et al. v. Little Caesar Enterprises, Inc., et al. (Little
Caesar Franchise Litig.), Civil No. 93 CV 74041 DT (E.D. Mich.);
•
In Re Unisys Savings Plan Litig., Master File No. 91-3067 (E.D.
Pa.).
LGN also had substantial involvement in the following litigation:
In Re Air Cargo Shipping Services Antitrust Litig., Civil No. 1:06md-1775-CBA-VVP (E.D.N.Y.);
•
469736.1
American Telephone and Telegraph Antitrust Litig., Civil Action
No. 81-2623 (D.D.C.);
2
In Re AOL Time Warner Securities Litig., MDL No. 1500
(S.D.N.Y.);
In Re Blue Cross Blue Shield Subscriber Litig., Master File No. 19C3-98-7780 (Dakota County District Court, Minn.);
In Re Connecticut General Life Insurance Co. Premium Litig.,
MDL No. 1336 (C.D. Cal.);
Davenport, et al. v. Illinois Farmers Insurance Company, et al.,
Case No. CIV-03-158-F (W.D. Ok.);
In Re Delphi Corporation Securities, ERISA, and Shareholder
Derivative Litig., Master Case No. 05-md-1725 (E.D. Mich.);
In Re Domestic Air Transportation Antitrust Litig., MDL No. 861
(N.D. Ga.);
Eliason v. Gentek Building Products, Inc., et al., Civ. No. 10-cv2093 (N.D. Ohio) (Executive Committee).
In Re Federal National Mortgage Association Securities,
Derivative and ERISA Litig., MDL No. 1668 (D.D.C.);
In Re Flat Glass (I) Antitrust Litig., MDL No. 1200 (W.D. Pa.);
•
In Re Guidant Corp. Implantable Defibrillators Products Liability
Litig., MDL No. 1708 (DWF/AJB)(D. Minn.);
•
Haritos, et al. v. American Express Financial Advisors, Inc., 022255-PHX-PGR (D. Ariz.);
87 Civ. 4296 (S.D.N.Y.);
•
In Re ICN/Viratek Securities Litig.,
•
In Re IPhone Application Litig., Civil No. 10-CV-05878-LHK
(N.D. Calif.);
•
In Re Lease Oil Antitrust Litig., MDL No. 1166 (S.D. Tex.);
469736.1
•
In Re Medtronic, Inc. Implantable Defibrillator Products Liability
Litig., MDL No. 1726 (JMR/AJB) (D. Minn.)
•
In Re Medtronic, Inc. Sprint Fidelis Leads Products Liability
Litig., MDL 08-1905 (D. Minn.) (Liaison Counsel);
3
•
In Re Merck & Co., Inc., Securities, Derivative & ERISA Litig.,
No. 3:05-cv-1151 (D.N.J.);
•
In Re Meridia Products Liability Litig., MDL No. 1481 (N. D.
Ohio);
•
In Re Nasdaq Market-Maker Antitrust Dag., MDL No. 1023
(S.D.N.Y.);
•
Ohio Public Employees Retirement System, et al. v. Freddie Mac,
et al., MDL No. 1584 (S.D.N.Y.);
•
In Re Payment Card Interchange Fee and Merchant Discount
Antitrust Litig., MDL No. 1720 (E.D.N.Y.);
In Re Propulsid Products Liability Litig., MDL No. 1355 (E.D.
La.);
In Re Rezulin Litig., MDL No. 1348 (S.D.N.Y.);
•
In Re Vioxx Product Liability Litig., MDL No.1657 (E.D.La.);
•
In Re Vytorin/Zetia Marketing, Sales Practices, and Products
Liability Litig., MDL 1938 (D.N.J.); and
In Re Worldcom, Inc. Securities Litig., No. 02-CV-3288
(S.D.N.Y.).
469736.1
4
Robert K. Shelquist
Robert K. Shelquist is a partner in the Lockridge Grindal Nauen P.L.L.P. firm.
He is a graduate of the University of California at Berkeley (A.B. Legal Studies; A.B.
Political Science with high honors 1987) and the University of Minnesota Law School
(J.D. cum laude 1990). Thereafter, he was associated with the law firm of Popham, Haik,
Schnobrich & Kaufman in Minneapolis, Minnesota from 1990 until 1995, and a partner
in the law firm of Plunkett Schwartz Peterson, P.A., also in Minneapolis, from 1995 to
2000.
Mr. Shelquist has prosecuted national class actions to verdict in two cases. In
Peterson v. BASF Corp., Mr. Shelquist was court-appointed class counsel and was one of
the trial attorneys who secured a jury verdict for a nation-wide class seeking redress for
defendant's marketing of its herbicide products. After multiple state appellate opinions
and two trips to the United States Supreme Court, a judgment in excess of $60,000,000
was paid. He also was one of the court-appointed class counsel and trial counsel
representing a certified sub-class as part of a nationwide antitrust trial in In Re Laminates,
which was tried to verdict in the United States District Court for the Southern District of
New York.
Mr. Shelquist has been active in class action, consumer fraud, product liability,
and other complex litigation, including court appointed co-lead counsel, class counsel, or
steering committee appointments in:
In Re Building Materials Corporation of America Asphalt Roofing
Shingle Products Liab. Litig., MDL 2283 (D.S.C.) (Plaintiff
Steering Committee);
469736.1 -
Case 1:14-cv-12409-MLW Document 20-3 Filed 01/15116 Page 6 of 9
•
In Re CertainTeed Corp. Roofing Shingle Products Liability Lag.,
MDL 1817 (E.D. Pa.) (Co-Lead Counsel);
•
Eliason v. Gentek Building Products, Inc., et al., Civ. No. 10-cv2093 (N.D. Ohio) (Executive Committee);
•
In Re HardiePlank Fiber Cement Siding Litig., MDL No. 2359 (D.
Minn.) (Lead Counsel);
•
In Re IKO Roofing Shingle Products Liability Litig., MDL No.
2104 (C.D. III.) (Co-Lead Counsel);
•
In Re Kitec Plumbing Systems Products Liab. Litig MDL No.
2098 (N.D. Tex.) (Co-Lead Counsel);
•
In Re Laminates, MDL File No. 1368, (S.D.N.Y.) (Lead Counsel
to Miami Sub-class);
•
McFerren v. AT&T Mobility LLC, Civil No. 2008-cv-151322
(Superior Court Fulton County, GA) (Chairman of Plaintiffs'
Steering Committee);
•
In Re Medtronic, Inc. Sprint Fidelis Leads Products Liability
Litig., MDL 08-1905 (D. Minn.) (Liaison Counsel);
In Re Navistar Diesel Engine Products Liab. Litig., MDL No. 2223
(N.D. Ill.) (Plaintiffs' Steering Committee);
•
469736.1
•
In Re Northstar Education Finance, Inc. Contract Litig., MDL 081990 (D. Minn.) (Co-Lead Counsel);
•
Peterson v. BASF Corp., Civil No. C2-97-295 (Norman County
District Court, Minn.) (Lead Counsel);
•
Cynthia Walker v. Cellfish Media, LLC, No. 08 CH 40592 (IL. Cir.
Ct.) (Plaintiffs' Steering Committee);
•
Patricia Wright, et al. v. Owens Corning, MDL No. 1567 (W.D.
Pa) (Co-Lead Counsel);
•
In re Google Android Consumer Privacy Litig., MDL No. 2264
(N.D. Calif.) (Interim Co-Lead Counsel);
•
In Re Zurn Pex Products Liability Litig., MDL 1958 (D. Minn.)
(Co-Chair Plaintiffs' Steering Committee);
•
George v. Uponor Corporation, et al., Court File No. 12-249 (D.
Minn.) (Co-Lead Counsel).
•
In Re Aredia and Zometa Products Liability Litig., MDL 06-1760
(M.D. Tenn.) (Plaintiff Steering Committee);
•
In Re IPhone Application Litig., Civil No. 10-CV-05878-LHK
(N.D. Calif.) (Executive Committee);
6
•
In Re Syngenta AG MIR162 Corn Litig., Civil No. 14-md-2591JWL-JP0 (D. Kansas) (Executive Committee)
Mr. Shelquist also is or has been also involved in the following litigation:
In Re Air Transportation Excise Tax Litig., Civil File No. 3-96CV-453 (D. Minn.);
Austerschmidt v. T-Mobile USA, Inc., Court File No. 19-HA-CV081709 (Ramsey County District Court, Minn.);
In Re Baycol Products Litig., MDL No. 1431 (D. Minn.)
(Discovery and Briefing Committees);
In Re Berg, Master File No. CY-96-3151-AAM (E.D. Wash.);
Birkemeyer Farm Partnership, et al. v. Monsanto Co., et al., Court
File No. 07-CV-04-1092 (D. Minn.);
In Re Blue Cross Blue Shield Subscriber Litig., Master File No. 19C3-98-7780 (Dakota County District Court, Minn.) (Co-Chair
Discovery Committee);
•
Brown v. State of Minnesota, Court File No. 98-11152 (Hennepin
County District Court, Minn.);
•
Crosby v. Aid Association for Lutherans, File No. 00-CV-2112
MJD/RLE (D. Minn.);
•
•
Davenport, et al. v. Illinois Farmers Insurance Company, et al.,
Case No. CIV-03-158-F (W.D. Ok.);
In Re Digi International, Inc. Securities Litig., Master File No. 975 (D. Minn.);
In Re European Rail Pass Antitrust Litig., MDL 1386 (S.D.N.Y.);
•
In Re Flat Glass Antitrust Litig., MDL 1200 (W.D. PA);
•
Good v. Fluor Daniel Corp., Case No. CT-00-5021-RHW (E.D.
•
Wash.);
•
In Re Green Tree Acceptance Corp. Securities Litig., Master File
No. 97-2666 (JRT/RLE) (D. Minn.);
•
In Re Guidant Corp. Implantable Defibrillators Products Liability
Litig., MDL No. 05-1708 (DWF/AJB) (D. Minn.) (Trial Team);
Hanson v. TCI Cable Corp., Court File No. CX- 97-1434 (Mower
•
469736.1
•
Hensley v. AT&T Mobility, LLC, Court File No. 27-cv-08-72I0,
(Hennepin County District Court, Minn.);
•
Jacobson v. Correct Building Products, LLC, Court File No. 08cv-5135 (D. Minn.);
7
•
Koras v. Verizon Wireless, Court File 27-cv-08-18517, (Hennepin
•
Larson v. Burlington Northern Santa Fe Railway Company, Civil
No. CV 01-527 JEL/RLE (D. Minn.);
•
Jeffrey H. Leech, et. al. v. Excel Title, LLC, Court File No. 27-CV06-4625 (Hennepin County District Court);
•
In Re Linerboard Antitrust Litig., MDL 1261 (E.D. PA);
•
•
McGregor et al. v. Uponor, Inc. et al, Court File No. 09-cv-1136
(D. Minn.);
•
McNeil v. IKO Manufacturing, Inc., Court File No. 09-cv-2105
(C.D. Ill.);
•
In Re Medtronic, Inc., Implantable Defibrillators Products
Liability Litig., MDL No..05-1726 (JMR/AJB) (D. Minn.) (Trial
Team);
•
In Re Meridia Products Liability Litig., MDL 1481 (N.D. Ohio)
(Co-Chair Discovery Committee);
•
In Re Milk Products Antitrust Litig., Master File 3-96-458 (D.
Minn.) (Co-Chair Discovery Committee);
•
In Re MSG Litig., MDL File No. 00-1328 (D. Minn.);
•
In Re National Arbitration Forum Litig., Civil No. 09-1939 (D.
Minn.) (Plaintiffs' Lead Counsel Committee);
•
In Re Propulsid Products Liability Litig., MDL 1355 (E.D. LA);
•
In Re Rezulin Litig., MDL 1348 (S.D. N.Y.);
•
Ross et al. v. Trex Company, Inc., Court File No. 09-cv-670 (N.D.
Calif.).
•
In Re Serzone Products Liability Litig., MDL 1477 (S.D. W.V.);
•
Robert Smale v. Sears Roebuck & Co. and Whirlpool Corp., Court
File No. C3-04-8891 (Hennepin County District Court) (Liaison
Counsel);
•
In Re StarLink Corn Products Liability Litig., MDL 1403 (N.D.
IL);
469736.1
•
In re Syngenta Litigation, Court File 27-cv-153785 (Henn. Co.,
MN) (Liaison Counsel);
•
In Re Tamoxifen Citrate Antitrust Litig., MDL 1408 (ED. N.Y.);
•
Villa v. Rexall Sundown, Inc., Court File No. 00-9061 (Palm Beach
County Court, Florida);
8
In Re Vioxx Litig., MDL 1657 (E.D. LA);
In Re Vytorin/Zetia Marketing, Sales Practices, and Products
Liability Litig., MDL 1938 (D.N.J.); and
In Re Western Union Money Transfer Litig., Master File No. CV
01 0335 (CPS) (VVP) (E.D. N.Y.).
Mr. Shelquist has been recognized as a Super Lawyer by Minnesota Law and
Politics and listed by the Guide to Leading American Attorneys.
He is currently a
member of AAJ, the Federal Bar Association, and the Minnesota Bar Association.
469736.1
9
T: 855.505.5342
ei
Jctr,f)
F: 617.583.1905
1 3 2 BOYLSTON STREET, 5 th FLR
fy(1/
BOSTON, MA 02116-4606
Mirabella Law, LLC specializes in specializes in a wide range of complex litigation,
including the representation of whistleblowers, shareholders and consumers in class action
lawsuits. Erica C. Mirabella is a member of the State Bar of Massachusetts, the United States
District Court of Massachusetts, the United States District Court of Tennessee, and the
United States Court of Appeals for the First Circuit.
Ms. Mirabella is a 2009 graduate of the University of Virginia School of Law. She
earned her undergraduate degree in Corporate Finance and Accounting from Bentley
University. While pursuing her law degree, Ms. Mirabella interned with the Insurance and
Financial Services Division of the Massachusetts Office of the Attorney General, where she
assisted with investigations and litigation related to unfair and deceptive trade practices and
violations of consumer protection statutes.
Ms. Mirabella later served as Special Assistant Corporation Counsel for the City of
Boston Law Department, where she advised City Departments on a wide variety of
contractual issues as well as helping to draft and implement new legislation and policies. She
also represented the City in all stages of litigation in the areas of civil rights, employment law,
and personal injury.
Ms. Mirabella has also practiced in the finance department of a top-tier international
law firm, where she represented banks, hedge funds and other institutional lenders in the
structuring and documentation of complex financial transactions. She participated in major
US bankruptcy cases, and assisted public and private clients in all stages of development,
including formation, mergers and acquisitions, and securities law compliance.
Her current practice encompasses complex litigation in the areas of consumer protection
and products liability. Below is a sampling of cases she is litigating along with co-counsel:
•
•
•
•
•
•
•
•
•
•
•
Gornstein v. TimberTech, Case No. 1:14-cv-12409 (D. Mass.).
In Re: Azek Building Products ) Inc., Marketing And Sales Practices Litigation, MDL No. 2506
In re: Whole Foods Market, Inc., Greek Yogurt Marketing And Sales Practices Litigation, MDL
No. 2588.
Leach v. Honeywell International, Inc., Case No. 1:14 cv 12245 LTS (D. Mass.).
DiFrancesco v. UttQuali0 Foods, Inc., No. 14 cv 14744 DPW (D. Mass.).
Emmanuello v. Fifth Generation, Case No. 1:15-cv-11513-GAO (D. Mass.).
Vass v. Blue Diamond Growers, Case No. 1:14-cv-13610 (D. Mass.).
Marino v. The Coca Cola Company, Case No. 1:14-cv-13446 (D. Mass.).
Doucette v. Welch Foods, Case No. 2015-cv-00145 (Suffolk County Superior Court).
In re: Wal Mart Stores, Inc., Herbal Supplements Marketing And Sales Practices Litigation, MDL
No. 2620.
Piro et al v. Exergen Corporation, Case No. 1:15-cv-11834-DJC (D. Mass.).
Yershov v. Gannett Satellite Information Network, Inc., USCA Case No. 15 1719 (1st Circuit).
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ONE HUNDRED THIRTY-TWO BOYLSTON STREET, OVERLOOKING HISTORIC BOSTON COMMOIVIS LISTED ON THE NATIONAL REGISTER OF HISTORIC PLACES,
AND IS OPPOSITE TO THE BOSTON CENTRAL BURIAL GROUND
(1756-1836),
RESTING PLACE OF BRITISH SOLDIERS KILLED AT BUNKER HILL ON JUNE 14, 1775.

Declaration of William H. Anderson in Support of Joint Motion for

Transcription

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