Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 1 of … · 2018-06-05 · Case No. 1:...

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SARAH TONEY on behalf of herself and others similarly situated,

Case No. 1: 13-cv-42

Judge Shadur

CLASS ACTION Plaintiff,

V.

14 QUALITY RESOURCES, INC. DECLARATION OF CORINNE LEFLER RE: NOTICE PROCEDURES and SEMPRIS, LLC D/B/A BUDGET

15 SAVERS,

16 Defendants.

17

18 I, CORINNE LEFLER, declare:

19 1. I am a Senior Project Manager at Kmizman Carson Consultants LLC ("KCC"). I am over

20 21 years of age and am not a pIDiy to this action. I have personal knowledge of the facts set fmih herein

21 and, if called as a witness, could and would testify competently thereto.

22 2. KCC was retained by the pIDiies to serve as the Claims Administrator to, among other

23 tasks, mail the Notice of Proposed Settlement of Class Action (the "Notice") and detachable Proof of

24 Claim Fmm (the "Claim Form"); to publish the Summruy Notice; receive and process Claim Fmms,

25 respond to Class Member inquiries; to establish and maintain a settlement website and perfmm other

26 duties as specified in the Settlement Agreement (the "Settlement Agreement") preliminarily approved by

27 this Comi on August 16, 2016.

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DECLA RA TJON OF CORJ NE LEFLER RE: NOTICE PROCEDURES

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 1 of 18 PageID #:3490

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3. CAF A Notification. In compliance with the Class Action F aimess Act ("CAF A"), 28

U.S.C. Section 1715, KCC compiled a CD-ROM containing the following documents: Class Action

Complaint, First Amended Class Action Complaint, Second Amended Complaint, Notice of Unopposed

Motion, Plaintiffs Unopposed Motion for Preliminary Approval of Class Action Settlement and for

Conditional Certification of Settlement Class, Declaration of Judge James F. Holde1man (Ret.),

Affidavit of Alexander H. Burke in Suppolt of Preliminary Approval, Affidavit of Edward A. Broderick

in Support of Plaintiff's Unopposed Motion for Suppolt of Plaintiffs Unopposed Motion for

Prelimina1y Approval of Class Settlement, Affidavit of Matthew P. McCue in SuppoI1 of Plaintiffs

Unopposed Motion for Preliminary Approval of Class Settlement, proposed Preliminaty Approval

Order, Notice of Proposed Settlement of Class Action, Postcard Notice, Proof of Claim Form, Class

Action Settlement Agreement (between Plaintiff Sat·ah Toney and Defendant Sempris, LLC), proposed

Final Approval Order and Judgment which accompanied a cover letter ( collectively, the "CAF A Notice

Packet"). A copy of the cover letter is attached hereto as Exhibit A

4. On July 15, 2016, KCC caused fifty (50) CAF A Notice Packets to be mailed via Priority

Mail from the U.S. Post Office in San Rafael, California to the patties listed on Exhibit B, i.e. , the U.S.

Attorney General, the Attorneys General of each of the 50 States and the District of Columbia with the

exceptions oflowa, Minnesota, Ve1mont and Wisconsin, as well as paities of interest to this Action.

5. On July 21 , 2016, KCC caused five (5) CAFA Notice Packets to be mailed via Priority

Mail from the U.S. Post Office in San Rafael, California to the patties listed on Exhibit C, i.e. , the

Attorneys General of the 5 recognized U.S. Territories, at the request of defense counsel.

6. As of the date of this declat·ation, KCC has received no response to the CAFA Notice

Packet from any of the recipients identified in paragraphs 4 or 5 above.

7. Mailed Notice. On August 22, 2016 Class Counsel provided KCC with a computerized

2

DECLARA TJON OF CORJ NE LEFLER RE: NOTICE PROCED URES

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 2 of 18 PageID #:3491

l list of 35,435 records associated with members of the Settlement Class. On August 25, 2016, Class

2 Counsel provided KCC with a list of an additional compute1ized list of 13,983 records associated with

3 members of the Settlement Class. In total 49,418 records were provided associated with members of the

4 Settlement Class, i.e. All persons who are or were the subscribers and/or customaiy users of the

5 telephone numbers on the Class List, and to whom, from January 3, 2009 through the date of

6 preliminaiy approval, Quality Resources, Inc. , made a call or calls in connection with Stompeez Kids

7 Slippers purchases. The following persons are excluded from the Settlement Class: Sempris, any parent,

8 subsidiaiy, or affiliate of Sempris, the officers, directors, agents, servants, or employees of any of the

9 foregoing as of the entry of the Preliminaiy Approval Order, Class Counsel, the Settlement

10 Administrator, the Mediator, and any judge presiding over the Action.

11 8. KCC identified 5,645 duplicative records. Per the request of counsel for all Pai1ies, these

12 records were removed from the Class Member List, resulting in 43,773 records remaining on the Class

1 3 Member List.

14 9. On August 28, 2016, KCC facilitated through a vendor, reverse direct01y services of the

15 28,141 telephone numbers associated with the members of the Settlement Class for whom a name or

16 addresses had not been provided on Class Member List.

17 10. Upon completion ofKCC's analysis of the data returned by the vendor, KCC received a

18 complete name and address for 22,288 of the 28,141 telephone numbers. As a result, no name and

19 address was found for 5,853 telephone numbers. In total 43,733 records remained on the Class Member

20 List.

21 11. KCC identified 5,851 records with more than one name located at a given address. Per

22 the request of counsel these records were consolidated, resulting in 37,922 records remaining on the

23 Class Member List for mailing.

24 12. KCC entered the Class Member List information into its proprieta1y database and

25 prepai·ed a data file for the initial mailing. Prior to mailing, KCC caused the addresses in the Class

26 Member List to be updated using the National Change of Address database (' 'NCOA") maintained by

27 the U.S. Postal Service. A total of 5,478 addresses were found and updated

28 13. On September 2, 2016, KCC mailed the Notice and Claim F01m (collectively, "the

3

DECLARA TJON OF CORJ NE LEFLER RE: NOTICE PROCEDURES

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 3 of 18 PageID #:3492

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 4 of 18 PageID #:3493

1 the class was a postmarked deadline of November 4, 2016. As of the date of this declaration, KCC has

2 received 5 requests for exclusion. A list of the Class Members requesting to be excluded and copies of

3 the exclusion requests are attached hereto as Exhibit E.

4 20. Objections to the Settlement. The deadline for Class Members to object to the

5 Settlement was a postmarked deadline of November 4, 2016. As of the date of this declaration, KCC has

6 not received any objections to the settlement.

7 21. Claim Forms. The deadline for Class Members to file a claim was a postmarked

8 deadline ofNovember 4, 2016. As ofNovember 15, 2016, KCC has received 4,766 claim fonns. This

9 count includes potentially duplicate or otherwise invalid claims.

10 22. Distribution. In accordance with the Settlement Agreement, the Settlement Fund equals

11 $2,150,000. The following estimated payments will be made from the Settlement Fund: (i) Class

12 Counsel Fees and Expenses of $760,274.71; (ii) Class Representative Payment of $15,000; and (iii)

13 KCC expenses of $88,562. The remaining estimated $1,286,163.29 will be distributed on a pro rata

14 basis to Class Members with Approved Claims. Each Class Member, who submits an Approved Claim,

15 shall be entitled to receive an amount equal to the Settlement Class Recovery divided by the total

16 number of Approved Claims, which if all cunent claims are accepted is $269.86 per claim.

17

18 I declare under penalty of perjury pursuant to the laws of the State of California that the

19 foregoing is true and correct to the best ofmy knowledge. Executed on this 16th day of November 2016

20 at San Rafael, California.

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Corinne Lefler

5 DECLARATION OF CORINNE LEFLER RE: NOTICE PROCEDURES

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 5 of 18 PageID #:3494

Exhibit A

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 6 of 18 PageID #:3495

353 NORTH CLARK STREET CHICAGO ILLINOIS 60654 3456

CHICAGO LONDON LOS ANGELES NEW YORK WASHINGTON, DC WWW.JENNER.COM

July 15, 2016

VIA PRIORITY MAIL

«First» «Last» «Company» «Address_1» «Address_2» «City», «State» «Zip»

Re: Notice of Proposed Class Action Settlement Pursuant to 28 U.S.C. § 1715

Dear «First» «Last»:

Jenner & BLOCK LLP represents Sempris, LLC (“Sempris”) in a putative class action lawsuit entitled Sarah Toney on behalf of herself and others similarly situated, v. Quality Resources, Inc. and Sempris, LLC d/b/a Budget Savers, et al., Case No. 1:13-cv-00042. The lawsuit is pending before the Honorable Milton I. Shadur in the United States District Court for the Northern District of Illinois, Eastern Division. This letter is to advise you that Plaintiff filed a Motion for Preliminary Approval of Class Action Settlement in connection with this class action lawsuit on July 5, 2016.

Case Name: Toney v. Quality Resources, Inc., et al.

Case Number: 1:13-cv-00042

Jurisdiction: United States District Court, Northern District of Illinois, Eastern Division

Date Settlement Filed with Court: July 5, 2016

Sempris denies any wrongdoing or liability whatsoever, but has decided to settle this action solely in order to eliminate the burden, expense, and uncertainties of further litigation. In compliance with 28 U.S.C. § 1715(b), the following documents referenced below are included on the CD that is enclosed with this letter:

1. 28 U.S.C. § 1715(b)(1) – Complaint and Related Materials: Copies of the Class Action Complaint, First Amended Class Action Complaint, and SecondAmended Complaint are included on the enclosed CD Rom. The Third Amended Complaint in this Action was filed under seal.

David Jimenez-Ekman Tel +1 312 923 2683 Fax +1 312 840 7683 djimenez-ekman@jenner.com

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 7 of 18 PageID #:3496

«First» «Last» July 15, 2016 Page 2

2. 28 U.S.C. § 1715(b)(2) – Notice of Any Scheduled Judicial Hearing: As of July 15, 2016, the Court has not yet scheduled a final fairness hearing in this matter. Plaintiff filed Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement and For Conditional Certification of Settlement Classrequesting a final approval hearing be scheduled before the Honorable Milton I. Shadur. Copies of the Notice of Unopposed Motion, Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement and For Conditional Certification of Settlement Class, Declaration of Judge James F. Holderman (Ret.), Affidavit of Alexander H. Burke in Support of Preliminary Approval, Affidavit of Edward A. Broderick in Support of Plaintiff’s Unopposed Motion for Preliminary Approval of Class Settlement, Affidavit of Anthony I. Paronich in Support of Plaintiff’s Unopposed Motion for Preliminary Approval of Class Settlement, Affidavit of Matthew P. McCue in Support of Plaintiff’s Unopposed Motion for Preliminary Approval of Class Settlement, and proposed Preliminary Approval Order are included on the enclosed CD Rom.

3. 28 U.S.C. § 1715(b)(3) – Notification to Class Members: Copies of the Noticeof Proposed Settlement of Class Action, Postcard Notice, and Proof of Claim Form to be provided to the class are included on the enclosed CD Rom.

4. 28 U.S.C. § 1715(b)(4) – Class Action Settlement Agreement: A copy of the Class Action Settlement Agreement between Plaintiff Sarah Toney and Defendant Sempris, LLC is included on the enclosed CD Rom.

5. 28 U.S.C. § 1715(b)(5) – Any Settlement or Other Agreement: As of July 15, 2016, no other settlement or agreement has been entered into by the parties to this Action.

6. 28 U.S.C. § 1715(b)(6) – Final Judgment: No Final Judgment has been reached as of July 15, 2016. On March 22, 2013, Defendants Synergy, Ltd., Leisure Time Savings, and Direct Discount Club were dismissed from this Action. On December 1, 2014, Defendant Provell, Inc. was dismissed from this Action. A copy of the proposed Final Approval Order and Judgment is included on the enclosed CD Rom.

7. 28 U.S.C. § 1715(b)(7)(A)-(B) – Names of Class Members/Estimate of Class Members: While Sempris is in the process of gathering information on this issue, pursuant to 28 U.S.C. § 1715(b)(7)(A), at this time a complete list of names of class members as well as each State of residence is not available, because the parties do not presently know the names or current addresses of all the proposed settlement class members. Pursuant to 28 U.S.C. § 1715(b)(7)(B), it is estimated that there are approximately 64,106 individuals in the class.

8. 28 U.S.C. § 1715(b)(8) – Judicial Opinions Related to the Settlement: As the proposed Settlement is still pending final approval by the Court, there are no

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 8 of 18 PageID #:3497

«First» «Last» July 15, 2016 Page 3

other opinions available at this time. As of July 15, 2016, there has been no written judicial opinion related to the settlement.

If for any reason you believe the enclosed information does not fully comply with 28 U.S.C. § 1715, please contact the undersigned at either djimenez-ekman@jenner.com or (312) 923-2683 immediately so that Sempris can address any concerns or questions you may have.

Thank you.

Sincerely,David Jimenez-Ekman

Enclosure – CD Rom

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 9 of 18 PageID #:3498

Exhibit B

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 10 of 18 PageID #:3499

LastFirst

Com

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ddress 1A

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raig W.

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StrangeLuther

Office of the Alabam

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501 Washington Avenue

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36130-0152R

utledgeLeslie

Arkansas Attorney General O

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enter Street, Suite 200Little R

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onsumer Law

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olorado Judicial Center

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acineKarl A.

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Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 11 of 18 PageID #:3500

Exhibit C

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 12 of 18 PageID #:3501

LastFirst

Com

panyA

ddress 1A

ddress 2C

ityState

ZipAle

Talauega Eleasalo V.Am

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oaPago Pago

AS96799

Barrett-AndersonElizabeth

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Puerto Rico Attorney G

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. Box 902192San Juan

San JuanPR

902W

alkerC

laude E.D

epartment of Justice

Virgin Islands Attorney General

34-38 Kronprindsens Gade, G

ERS Bldg, 2nd Floor

St. Thomas

VI00802

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 13 of 18 PageID #:3502

Exhibit D

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 14 of 18 PageID #:3503

Toney v. Sempris, LLC Settlement Administrator P.O. Box 30246 College Station, TX 77842-3246

SEY

«Barcode» Postal Service: Please do not mark barcode

Claim#: SEY-«ClaimID»-«MailRec» «Firstl » «Lastl » «CO» «Addr2» «Addr l» «City», «St» «Zip» «Com1try»

Carefully separate at perforation

PROOF OF Q &Of FORM + Complete the steps below to Submit a Claim under the Settlement descnl>ed in the Notice Yo11 nuuf <'1mplet, a11d ret11n1 this Qaim Forn, before No,•en,b,r 4, 1016 to be eligible to recefre a paynumt und,r tire S,t1lenrent. Your ,·esponst ,n11 bt. cl,ecked agai11st records produc,d in the case.

1. Id<ntifr yonrstlf:

~=~.~t~~l;,1.-»---------------------------------------City, State, Zip: «City», «Sb> «Zip» ------------------------------------Telephone number: «PboneNumbeo> ------------------------------------

1. Vel'll\· that you ue a membf'.r of the Settlement Class described in the Notice:

By checking this box. I am confirming that the abo\'e infom,ation is aCCUI11te D 3. Sign the Claim Form and Tran,;mit It to the Settlement Administrator.

After you complete this Claim Fann, sign it below and submit it by United States Mail lo the Settlement Administrator, recei,'ed no later than NO\....i.,, 4, 2016, at the following address:

Toney v. Sempris, LLC Settlement Administrator, PO Box 30246, College Station, TX 77842-3246

NOTE: Only one claim is pmnitt,d per ttkphon• number.

I ce-rtify that the statements herein an true to the bf'St of my knowledge, and that I am not submitting multiple Claim Forms in this Sertltment, except as disclostd ht.rein.

SignMun,: -------------------- PrintNamt: ------------------

Teltphon• Numbtr on 'Which Calls wert Rtceind (If known) : ---------------------------­If you claim to ban r«tind calls on mort than one teltphon• number and art submitting multipl• Claim Forms, pitas• prorid• an nplanation of th• cinumstancf'S surrounding suc.b hen:

Date(mm/dd/})'}y): _________________________________________ _

• IISEY II 111 II «Claim ID» SEYCRD1 +

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 15 of 18 PageID #:3504

A proposed settlement (the “Settlement”) has been reached in a class action lawsuit Toney v. Sempris, LLC d/b/a Budget Savers, et al., United States District Court for the Northern District of Illinois, No 1:13-cv-42 (the “Lawsuit”) The Lawsuit alleges that telemarketing calls made by Quality Resources, Inc (“Quality Resources”) allegedly on behalf of Sempris, LLC in connection with Stompeez Kids Slippers purchases violated the Telephone Consumer Protection Act, 47 U S C § 227 (the “TCPA”) and the Federal Communications Commission’s regulations Sempris denies that it violated any laws, that it did anything wrong and that it should be held liable for calls made by Quality Resources Plaintiff and Sempris have agreed to the Settlement to avoid the burden, expense, risk and uncertainty of continuing the Lawsuit Who is included? You were identified as someone who may have received one or more of these phone calls since January 3, 2009 How much money can I get? If the Court approves the Settlement, every Settlement Class Member who submits a valid Claim Form will be entitled to an equal payment from the $2,150,000 Settlement Fund Your actual payment amount will depend on how many Settlement Class Members submit valid Claim Forms The Settlement Fund will be divided and distributed equally–sometimes referred to as “pro rata”–to all Settlement Class Members who submit a valid Claim Form after attorneys’ fees, costs and expenses, an award for the Class Representative, and notice and administration costs have been deducted Furthermore, the lawsuit will continue against Quality Resources, and you will continue to have an opportunity to recover against them How can I get a payment? You must complete and return the attached Claim Form by no later than November 4, 2016 Claim Forms may also be completed online at www StompeezTCPASettlement com or obtained by calling the Settlement Administrator at 1-844-762-5391. What are my options? If you are a Settlement Class Member and you submit a Claim Form or do nothing, and the Court approves Settlement, you will be bound by all of the Settlement terms, including the releases of claims against Sempris and the other Released Parties This Settlement does not affect claims against Quality Resources and its officer and employees, which are still part of the Lawsuit You may “opt out” (exclude yourself) from the Settlement If you opt out, you will not receive a payment, and you will not release any claims You will be free to pursue whatever legal rights you may have at your own risk and expense To exclude yourself from the Settlement, you must mail a request for exclusion to the Settlement Administrator, Toney v. Sempris, LLC Settlement Administrator, P O Box 30246, College Station, TX 77842-3246 which must be received by November 4, 2016 that includes your full name, address, telephone number or numbers, a statement that you wish to be excluded from the Settlement, and your personal signature Unless you exclude yourself from this Settlement, you give up your right to sue or continue a lawsuit against Sempris and the other Released Parties related to or arising from the TCPA or similar state telemarketing laws having to do with calls made by Quality Resources in connection with a Stompeez purchase You may object to the Settlement by submitting a written objection in Toney v. Sempris, LLC d/b/a Budget Savers, et al., No 1:13-cv-42 to (1) the Clerk of Court, U S District Court, Northern District of Illinois, 219 South Dearborn Street, Chicago, IL 60604; and (2) Class Counsel; and (3) the Settlement Administrator, received by November 4, 2016 Any objection to the Settlement must include your full name; address; telephone numbers that you maintain were called; all grounds for your objection, with factual and legal support for each stated ground; the identity of any witnesses you may call to testify; copies of any exhibits that you intend to introduce into evidence at the Final Approval Hearing; and a statement of whether you intend to appear at the Final Approval Hearing with or without counsel Attendance at the hearing is not necessary; however, persons wishing to be heard orally (either personally or through counsel) in opposition to the approval of the Settlement are required to file a timely objection as set forth above When will the Settlement be finally approved? The Court will hold a Final Approval Hearing (the “Hearing”) at 8:45 a m on December 1, 2016 at the U S District Court for the Northern District of Illinois, Room 2303, 219 South Dearborn St , Chicago, Illinois 60604 At the Hearing, the Court will consider whether to approve: the proposed Settlement as fair, reasonable, and adequate; Class Counsel’s request of up to one-third of the Settlement Fund in fees in addition to their costs and expenses; and a $15,000 payment to the Class Representative The Court will also hear objections to the Settlement If approval is denied, reversed on appeal, or does not become final, the case will continue and claims will not be paid Want more information? The Settlement Agreement and other relevant documents are available at www StompeezTCPASettlement com Pleadings and documents filed in Court may be reviewed or copied in the office of the Clerk Please do not call the Judge or the Clerk of the Court They cannot give you advice on your options

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 16 of 18 PageID #:3505

Exhibit E

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 17 of 18 PageID #:3506

Toney v. Quality Resource Inc. and Sem

pris, LLC D/B/A Budget Savers 11/10/2016

Exclusions

CLAIM

IDPH

ON

ELAST 1

FIRST 1

ADD

RESS 1

ADD

RESS 2

CITY

STATEZIP

Received

10017849201GASPAR

JULIE

9/14/201610032051001

PEARSON

STEPHANIE

10/3/201610035000801

ROLAN

DELLILAU

REN9/14/2016

10042860501W

INAN

SJAKE

9/9/2016

10043513001YO

UN

GYO

REANCE

11/2/2016

Case: 1:13-cv-00042 Document #: 301-2 Filed: 11/17/16 Page 18 of 18 PageID #:3507