9D - KCC Class Action - Active Casesclassaction.kccllc.net/Documents/TIC0001... · Exhibit 6 is a "long form" Notice of Settlement to class members and Claim Form proposed to be placed

Case No. SACV12-1710 DOC (ANx)

Class Action

Supplemental Memorandum inSupport of Plaintiffs UnopposedMotion for Preliminary Approval ofClass Action Settlement

Date:Time:Courtroom:

September 22, 20148:30 A.M.9D

Law Offices of Scott Z. ZimmermannScott Z. Zimmermann, Bar No. [email protected] S. Figueroa Street, Suite 2610Los Angeles California 90017Telephone:C213) 452-6509Facsimile: ( 13) 622-2171

Payne & Fears LLPC. Darryl Cordero, Bar No. [email protected]

Figueroa Street, Suite 1150Los Angeles, California 90017Telephone: (213) 439-9911Facsimile: (213) 439-9922

Attorneys for Plaintiff Craftwood II, Inc., d/b/aBay Hardware, and for all others similarly situated

United States District Court

Central District of California

Southern Division

CRAFTWOOD II, INC., a Californiacorporation, d/b/a Bay Hardware,individually and on behalf of all otherssimilarly situated,

Plaintiffs,v.

TOMY INTERNATIONAL, INC., et al.,

Defendants.

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SUPPLEMENTAL MEMO IN SUPPORT OF PRELIMINARY APPROVAL OF SETTLEMENT Case No. SACV12 - 1710 DOC (ANx)

As indicated in the Motion for Preliminary Approval of Class Action Settlement

filed yesterday (Did. 126), a dedicated website (www.tomyfaxsettlement.com ) for the

settlement will be established for the benefit of class members. Attached hereto as

Exhibit 6 is a "long form" Notice of Settlement to class members and Claim Form

proposed to be placed onto the settlement website. Plaintiff requests the Court's

approval of this Notice and Claim Form as part of preliminary approval of the

settlement. To that end, Plaintiff concurrently submits a proposed revised order

preliminarily approving the settlement.

Respectfully submitted,

Dated: August 26, 2014 Law Offices of Scott Z. Zimmermann

By /s/ Scott Z. ZimmermannScott Z. ZimmermannAttorneys for Plaintiff Craftwood II, Inc., d/b/aBay Hardware, and for all others similarlysituated

CT MDT FTCFNIT AT 11/1V1tArl TNT CT TDDCADT !ID PD VT MATTO A DV Al:MD(11/AT (IV Ccl"TT PAIFTTT taco 'Mrs A ("N711-1'7111 TInr- 1nTvl

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Exhibit 6

UNITED STATES DISTRICT COURT — CENTRAL DISTRICT OFCALIFORNIA

If you were sent facsimile advertisements from TOMY, youcould get a payment from a class action settlement.

A federal court authorized this notice. This is not a solicitation from a lawyer.

• According to records produced in pending federal litigation, you may have been sentfacsimile advertisements from by TOMY International, Inc. (formerly known as RC2Corporation) ("TOMY") which the Plaintiff alleges were sent in violation of the TelephoneConsumer Protection Act ("TCPA"). The parties in this litigation have reached a Settlement,which could entitle you to a payment up to $750 per transmission of facsimile advertisementssent by TOMY during the period August 14, 2008 to August 30, 2012, based on recordsproduced in the case. There are 159 facsimile advertisements that are the subject of theSettlement. They either promoted TOMY's products: John Deere brand-licensed productsthat TOMY sold; or Case-, Case 1H-, or New Holland brand-licensed products that TOMYsold.

• The Settlement resolves a lawsuit over whether sending these advertisements violated theTCPA; it avoids costs and risks to you from continuing the lawsuit; pays money to classmembers; and releases TOMY and other defendants from liability.

• Court-appointed lawyers for the class will ask the Court for up to one-third (33.33%) ofthe total settlement payment as attorneys' fees, plus expenses, for investigating the facts,litigating the case, and negotiating the Settlement.

• The parties disagree whether a class would have been certified and how much moneycould have been won if the case had been litigated to conclusion.

• Your legal rights are affected whether you act or don't act. Read this Notice carefully.Your options—and the deadlines to exercise them—are explained in this Notice. If youwish to file a claim to potentially receive a payment from the Settlement, you must submit aClaim Form by [insert date].

• The Court in charge of this case will decide whether to give final approval of theSettlement. Payments will be made if the Court approves the settlement and after anyappeals are resolved. Please be patient.

1. Why did I get this Notice?

After extensive negotiation, including before an impartial mediator, the parties have reached theproposed Settlement for this lawsuit, which must be approved by the Court. You are receivingthis Notice because records produced in the lawsuit indicate you may be a member of the

QUESTIONS? Call 1-(866) 279-6217 Toll Free, or Visit tomyfaxsettlementcom

"Settlement Class" entitled to receive payment. The purpose of this Notice is to inform you ofthe terms of Settlement, the benefits available to you under it, how the case and the Settlementmay affect your legal rights, important deadlines relating to the Settlement, and the steps youmust take if you want to participate in the Settlement or object to or opt-out of the Settlement.

2. What is the name of the case and where is it filed?

The case is Craftwood, Inc. v. TOMY International, Inc., et al., Case No. SACCV12 - 1710 DOC(ANx). The defendants are TOMY International, Inc., John Deere Shared Services, Inc., andCNH Industrial America LLC (formerly known as CNH America LLC). The lawsuit is pendingin the United States District Court for the Central District of California.

3. What is the case about?

Plaintiff claims that Defendants violated the TCPA by sending 159 fax advertisements betweenAugust 14, 2008, and August 30, 2012 (the "Facsimile Advertisements"). The FacsimileAdvertisements were sent by TOMY or its predecessor RC2 Corporation, through its ERTL andLearning Curve divisions, and promoted TOMY's products; or John Deere brand-licensedproducts that TOMY sold; or Case brand-, Case IH brand- or New Holland brand-licensedproducts that TOMY sold. Copies of all 159 Facsimile Advertisements are available for viewingon the settlement website at www.tomyfaxsettlement.com . The TCPA provides for actualdamages or statutory damages of $500 per facsimile transmission that violates it provisions. TheTCPA further provides that the Court has the discretion to increase damages by up to three times.

4. What do Defendants say about the case?

Defendants deny all of Plaintiff's claims. In denying the merits of Plaintiff's claims, Defendantscontend that the Court should not certify the case as a class action. If the Settlement is notapproved, Defendants will continue to fight the case and the only way that you and classmembers will recover anything is if Plaintiff ultimately wins the case, or if the parties later reachanother settlement that is approved by the Court.

5. Who are potential class members? How many Facsimile Advertisementtransmissions did I receive?

The "Settlement Class" consists of all persons and entities to whose facsimile telephonenumber(s) TOMY sent, between August 14, 2008 to August 30, 2012, one or more of theFacsimile Advertisements. In order to receive any payment under the Settlement, one or moreFacsimile Advertisements must have been sent to your facsimile telephone number. Only theindividual or entity who or that is the subscriber to the facsimile telephone with which the faxmachine is associated is eligible to receive a payment, regardless of the number of individuals orbusiness who used the same facsimile telephone number.

TOMY used an internal fax application to send the Facsimile Advertisements that did not keephistorical logs of the facsimile telephone numbers to which the faxes were sent. Therefore,

QUESTIONS? Call 1-(866) 279-6217 Toll Free, or Visit tomyfaxsettlement.com

Plaintiff retained an expert who analyzed TOMY's telephone records and fax lists to determinethe facsimile telephone numbers to which TOMY sent the Facsimile Advertisements. The expertcreated a report listing the facsimile telephone numbers to which TOMY sent the ads and thenumber of transmissions of the Facsimile Advertisements sent to such numbers ("ExpertReport"). The Expert Report indicates that that there were nearly 113,000 transmissions of theFacsimile Advertisements to almost 9,000 different facsimile telephone numbers.

If you complete and timely submit the Claim Form at the end of this Notice, the ClaimsAdministrator will review the Expert Report to determine the number of FacsimileAdvertisements the Expert Report indicates were sent to your facsimile telephone number(s).The Claims Administrator will also review the fax lists used by TOMY to see if they indicatewhether TOMY may have attempted to send any additional Facsimile Advertisements. TheClaims Administrator will send you a notice informing you of the number of FacsimileAdvertisements the Expert Report reflects were sent to your facsimile telephone number and theapproximate dates they were sent. It will also inform you whether TOMY's fax lists reflect thatTOMY may have sent you additional Facsimile Advertisements and the approximate date(s) theymay have been sent. You may submit evidence to the Claims Administrator that you were sentadditional Facsimile Advertisement(s), such as copies of the additional FacsimileAdvertisements or fax logs from your fax machine showing additional Facsimile Advertisementswere sent from TOMY (or RC2, Ertl or Learning Curve)(the sending fax number on the top lineof the Facsimile Advertisement should be (563) 875-5680). You must submit any proof ofadditional Facsimile Advertisements to the Claims Administrator within 21 days of the date ofthe notice. If you do not do so, you will only be awarded payment based on the number ofFacsimile Advertisements the Expert Report reflects were sent to your facsimile telephonenumber.

If you complete and timely submit the Claim Form at the end of this Notice and your facsimiletelephone number is not on the Expert Report, but is on one or more of TOMY's fax lists used tosend the Facsimile Advertisements, the Claims Administrator will send you a notice informingyou whether TOMY's fax lists reflect that TOMY may have sent you Facsimile Advertisementsand the approximate date(s) they may have been sent. You may submit evidence that you weresent Facsimile Advertisement(s) to the Claims Administrator, such as copies of the FacsimileAdvertisements or logs from your fax machine showing the Facsimile Advertisements sent fromTOMY (or RC2, Ertl or Learning Curve) (the sending fax number on the top line of theFacsimile Advertisement should be (563) 875-5680). You must submit any proof you were sentadditional Facsimile Advertisements to the Claims Administrator within 21 days of the date ofthe notice. You will only receive payment based on the number of transmissions of the FaxedAdvertisements established by this proof as determined by the Claims Administrator. If you donot make a timely submission of requested proof, you will not receive any payment fromthe Settlement Agreement other than for the transmission(s) indicated on the ExpertReport (if any), even if you timely file a Claim Form.


Settlement Terms

Under the Settlement, TOMY will pay for itself and the other defendants the sum of$10,075,000. This sum, together with any earnings thereon (the "Settlement Fund"), afterdeduction of attorneys' fees/costs to the Settlement Class Counsel, any incentive award toPlaintiff (in amounts to be determined by the Court), and fees and costs of the ClaimsAdministrator, Class Notice and the issuance of Class Notice and of claims and settlementadministration, is the "Claims Payment Amount." The Claims Payment Amount will be used topay each member of the Settlement Class that submits a valid and timely claim up to $750 pereach transmission of the Facsimile Advertisements as reflected in the Expert Report or asdetermined by the Claims Administrator based on proof you provide.

The amount to be paid per transmission will not exceed $750 and may be lower. In the eventthat number of such transmissions multiplied by $750 per transmission would exceed the ClaimsPayment Amount, the per transmission payment amount will be determined by dividing theClaims Payment Amount by the total number of transmissions of Facsimile Advertisementsrepresented by timely and valid claims as determined by the Claims Administrator.

At the Final Approval Hearing (see below): (1) Plaintiff will move for an order directingpayment of an incentive award to Plaintiff from the Settlement Fund in an amount not to exceed$15,000; and (2) Plaintiff and/or Settlement Class Counsel will move for an order directingpayment of attorneys' fees from the Settlement Fund in an amount not to exceed one-third (33.3percent) of the Settlement Fund, and for reimbursement of litigation-related costs.

Each Settlement Class member who submits a timely and valid claim and who is entitled toreceive payment of $600 or more for their claim will be asked to complete and submit aSubstitute Form W-9 to the Claims Administrator. A Settlement Class member who fails tosubmit a timely and valid Substitute Form W-9 will have his, her or its payment subject towithholding in an amount according to law.

Each Settlement Class member (except a Settlement Class member who has obtained proper andtimely exclusion from the Settlement Class; see below) will release Defendants and relatedpersons and entities from any and all claims and causes of action, including without limitationunder the TCPA, whether currently known or unknown, arising from or relating solely to thetransmission of the Facsimile Advertisements (the "Released Claims").

Any Settlement Class member who does not negotiate a settlement check within 115 days of thedate of the check (as printed on the check), forever waives and releases its claim for payment ofthe amount represented by the settlement check and directs that the amount represented by thesettlement check be made to one or more recipients ordered by the Court.


What are my Options?

Option # 1 - File a Claim Form: You must submit a Claim Form found at the end ofthis Notice in order to become potentially eligible to receive a payment from theSettlement. If you choose this option, please follow the directions on the Claim Formand be sure to submit the Claim Form so it is received no later than [insert date],otherwise your Claim Form will be irrevocably denied.

Option #2 - Exclude Yourself: You may exclude yourself from the Settlement Class.If you choose this option, please follow the directions below and be sure that your requestfor exclusion is received no later than [insert date]. Do not request exclusion if youwish to participate in the Settlement and potentially receive payment under theSettlement. If you validly request exclusion from the Settlement, you will (a) beexcluded from the Settlement Class and not be entitled to any payment; (b) not be boundby any determinations or judgments entered in the lawsuit; and (c) not release theReleased Claims and not be precluded from prosecuting an individual claim, if timely,against Defendants based on the issues raised in the lawsuit, but you will have to payyour own attorneys' fees and expenses in doing so. If you do not request exclusionfrom the Settlement Class, you will be bound by all determinations or judgments in thelawsuit and will release the Released Claims.

Option # 3 - Object to the Settlement: If you do not exclude yourself from theSettlement Class, you have the right to object to any aspect of the Settlement, includingthe relief provided to Class Members and/or the requested attorneys' fees and expenses,and/or the requested incentive award. If you object, you or your attorney must serveobjections by following the directions below no later than [insert date]. Even if youobject to the Settlement, you will still be a Class Member and may still be entitled apayment from the Settlement if you file a timely and valid Claim Form.

Option #4 Do Nothing: You may choose to do nothing, in which case you will remain amember of the Settlement Class and be bound by all determinations or judgments in thelawsuit and release the Released Claims, but you will not receive any payment underthe Settlement unless you submit a valid and timely Claim Form.

Procedure for Requesting Exclusion From the Settlement

To exclude yourself from the Settlement, you must make a signed written request for exclusionthat includes your name and current address, current telephone number and facsimile telephonenumber(s) during August 14, 2008, to August 30, 2012. Requests for exclusion must be receivedby the Claims Administrator no later than [insert date]. The exclusion request must beaddressed as follows: Craftwood v. TOMY Claims Administrator, P.O. Box 43034, Providence,RI 02940-3034.


The Final Approval Hearing and Objection Procedures

On [insert date], 2014, the Court entered an order preliminarily approving the settlement andcertifying, for settlement purposes only, the Settlement Class. The Court will hold a hearing on[insert date], 2015, at .M. in the Courtroom 9D of the United States District Courtlocated at 411 West Fourth Street, Santa Ana, CA 92701-4516, to determine whether theSettlement should be given final approval and to determine the attorneys' fees and expensespayable to Settlement Class Counsel and any incentive award to Plaintiff (the "Final ApprovalHearing"). You do not need to attend the Final Approval Hearing to receive a payment under theSettlement if you proceed under Option #1 above. The Final Approval Hearing may berescheduled by the Court, without further notice to you. The following is a summary of therequirement for filing and serving an objection:

To be valid and considered by the Court, any objections by you must be submitted in writing,must be filed with the Clerk of the Court— DO NOT MAIL OR ATTEMPT TO FILEDOCUMENTS WITH THE JUDGE; THEY MUST BBE FILED WITH THE CLERK OF THECOURT — and served by mail and/or email on Plaintiff's counsel by no later that [insert date].Your objection must include the following:

(a) a Notice of Intention to Appear described herein (if you or someone else representing youintend to appear to present your objection); (b) the full name, address and telephone number ofthe person objecting; (c) a statement of membership in the Settlement Class including his, her orits facsimile telephone number(s) during the period August 14, 2008, to August 30, 2012, thename of the person or business who was the subscriber, i.e., who was the billing party of recordwith the telephone company, of such facsimile telephone number(s) during such period, andevidence of the same; (d) a statement of each objection verified under penalty of perjury; and (e)a written brief detailing the specific reasons, if any, for each objection, including any legal andfactual support the objector wishes to bring to the Court's attention and any evidence theobjector wishes to introduce in support of the objection(s).

If you or someone else representing you intends to appear at the Final Approval Hearing, theNotice of Intention to Appear must: (a) state how much time the objector and/or his, her or itsattorney anticipates needing to present the objection(s); (b) identify by name, address, telephonenumber, and provide a detailed summary of testimony, of all witnesses from whom the objectorand/or his, her or its attorney intend to present any testimony; and (c) identify all exhibits theobjector and/or his, her or its attorney intends to offer in support of the objection(s) and attachcomplete copies of all such exhibits. Only persons who file and serve a Notice of Intention toAppear, or his, her or its attorney identified in the Notice of Intention to Appear, may make anappearance or speak at the Final Approval Hearing.

Any objector must be available for deposition within Orange County, California, by SettlementClass Counsel and/or counsel for Defendants within ten business days following the filing of theobjection, and the objection must include each date within that period when the objector will beavailable and present for deposition. In the event that any Settlement Class member objects in the


manner prescribed herein, Plaintiff and Defendants shall be afforded full opportunity to respondto such objections.

ANY SETTLEMENT CLASS MEMBER WHO DOES NOT OBJECT IN THE WAYDESCRIBED ABOVE WILL BE DEEMED TO HAVE WAIVED SUCH OBJECTIONSAND SHALL NOT HAVE ANY RIGHT TO OBJECT TO THE FAIRNESS ORADEQUACY OF THE SETTLEMENT, ANY AWARD OF ATTORNEYS' FEES/COSTS,OR ANY AWARD OF INCENTIVE PAYMENT.

An original and one copy of all objections, including any Notice to Appear and all other papersrequired to be submitted, shall be timely filed with the Clerk of the Court at the followingaddress: 411 West Fourth Street, Room 1053, Santa Ana, CA 92701-4516. Copies of alldocuments filed with the Clerk of the Court must also be sent to Plaintiff's counsel at thefollowing address:

Scott 0. LuskinPayne & Fears LLP801 South Figueroa Street, Suite 1150Los Angeles, CA 90017

Correct Address

Please be sure that your correct address is clearly printed on the Claim Form to make sure thatany payment you are due under the Settlement is sent to your correct address. You may updateyour address with the Claims Administrator by calling toll free 1 (866) 279-6217 and leavingtheir name, current address, and telephone and fax numbers on the voice mail.

How do I get more information about the Settlement?

This Notice is intended only as a summary of the lawsuit and settlement. It is not a completedescription of the lawsuit or the Settlement. To obtain additional information, you may do oneor more of the following things:

(1) You may call the Claims Administrator at 1 (866) 279-6217;

(2) You may view the settlement website: www.tomyfaxsettlement.com . This websiteincludes or will include copies in downloadable .pdf format of this Notice, the SettlementAgreement, the most recent version of the Complaint, the Facsimile Advertisements, theMotion for Preliminary Approval of the Settlement, the Court Order granting PreliminaryApproval, the Motion for Final Approval of the Settlement, the Motion for Fees and Costsand Motion for Incentive Award. The website also includes other important informationrelating to the Settlement; or

(3) You may inspect the complete court file at the office of the Clerk of the Court oraccess the court file via PACER (information about PACER can be found that the court'sgeneral website: www.cacd.uscourts.gov .)


DO NOT CONTACT THE COURT, DEFENDANTS OR DEFENDANTS' COUNSELFOR INFORMATION. DEFENDANTS AND THEIR COUNSEL, EMPLOYEES ANDREPRESENTATIVES ARE NOT AUTHORIZED TO PROVIDE ANY INFORMATIONABOUT THE SETTLEMENT.

BY ORDER OF THE UNITED STATESDISTRICT COURT FOR THE CENTRALDISTRICT OF CALIFORNIA

[CLAIM FORM ON NEXT PAGE-YOU MUST SUBMIT A CLAIM FORM BY [INSERTDATE] IN ORDER TO BE ELIGIBLE TO RECEIVE A SETTLEMENT PAYMENT]


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Contact Name:

Contact E-mail:

Contact Fax Number:

Contact Tel Number:

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Craftwood v. TOMY Claims AdministratorP.O. Box 43034Providence, RI 02940-3034

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Must be Received No LaterThan [insert date]. -1—

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To be eligible to receive payment under the proposed Settlement Agreement in this lawsuit,YOU MUST COMPLETE AND RETURN THIS CLAIM FORM SO THAT IT IS RECEIVED BY [insert date'.

If you are asking to be excluded from the Settlement Class, DO NOT submit this Claim Form.

1. Your Fax Number(s) during August 14, 2008, to August 30, 2012 (attach additional page(s) if necessary):

2. Name of person or business who was the subscriber, i.e., who was the billing party on record with thetelephone company, of the above fax number(s) during August 14, 2008, to August 30, 2012:(If a business, insert the business's name; if an individual, insert the individual's name)

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1 3. Provide name of the contact person, e-mail address (if you have one), fax number (if you have one), and phone

number to allow the Claims Administrator to send you notice(s) regarding your claim. The Claims Administratorwill use your e-mail address (if you have one) as the primary means of communication.

Certification: I certify under penalty of perjury: (a) that the information I provided on this Claim Form is true and correct; and(b) in the case of a business entity named above, that I am an authorized representative of such business entity to provide theinformation in the Claim Form and to make this claim on behalf of such business.

Signature:

11Print Name of Signator: I11

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1Mail or Fax completed Claim Form to:

Craftwood v. TOMY Claims AdministratorP.O. Box 43034

Providence, RI 02940-3034Fax: (866) 508-1039

Questions? Call (866) 279-6217 or visit www.tomyfaxsettlement.com

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