Free Motion for Miscellaneous Relief - District Court of Connecticut - Connecticut

Case 3:03-cv-00664-CFD

Document 35-5

Filed 12/21/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT __________________________________________________ DIONNE CALDWELL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff

) ) ) ) ) v. ) ) WINDHAM PROFESSIONALS, INC. ) Defendant ) __________________________________________________ )

CASE NUMBER: 3-03-cv-664 (CFD) NOTICE OF PENDENCY OF CLASS ACTION, PROPROSED SETTLEMENT AND HEARING

September __, 2004

NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT AND HEARING PLEASE READ THIS NOTICE CAREFULLY. THIS NOTICE MAY AFFECT YOUR RIGHTS. THIS IS NOT AN ATTEMPT TO COLLECT MONEY FROM YOU. THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. YOU MAY BENEFIT FROM READING THIS NOTICE. This notice is to individuals who after April 14, 2002 received collection notices seeking collection fees in excess of 15% from Windham Professionals, Inc. You are receiving this notice because it has been determined that you are a member of the class on whose behalf this Class Action Lawsuit has been brought. This notice explains the nature of this lawsuit, as well as a proposed settlement of this lawsuit, and informs you of your legal rights under that proposed settlement. WHAT THIS LAWSUIT IS ABOUT AND STATUS OF THE LAWSUIT This consumer class action lawsuit was commenced by Plaintiff, Dionne Caldwell, in April 2003. Plaintiff alleges in her lawsuit that Windham Professionals sent her and the class members collection notices seeking collection fees in excess of 15% of the amount of the debt. In the lawsuit, the Plaintiff claimed that Windham Professionals violated the Fair Debt Collection Practices Act and sought monetary damages as well as costs and attorney's fees. Windham disputes the Plaintiff's allegations and denies that it did anything wrong or illegal. Windham is entering into the proposed settlement to provide a benefit to its customers in lieu of the cost and expense of defending this lawsuit. The parties have now reached a proposed agreement to settle the lawsuit (the "Settlement Agreement") and have asked the Court to approve the Settlement Agreement. The Court will approve the Settlement if it determines that the Settlement is fair, reasonable, and adequate to the Class Members.

SUMMARY AND VALUE OF THE PROPOSED SETTLEMENT If the Settlement Agreement receives final approval from the Court, Windham will reimburse the collection fee to each Class Member who has paid the fee. For those class members who have not paid the collection fee, Windham will adjust their accounts by the amount that the collection fees exceed 15% and will correct all reports to credit bureaus accordingly. Additionally, Windham will pay damages in the amount of $31.25 to each class member who can be located. Windham will also pay a reasonable attorney's fee of $27,000 to the Plaintiff's attorneys and will pay a class representative fee of $1,500 to the Plaintiff, subject to court approval. In return for these payments, Plaintiff and Class Members agree to dismiss this lawsuit with prejudice, and fully and finally release their claims against Windham Professionals. Although an individual prevailing in an action under the Fair Debt Collection Practices Act may collect up to $1,000 as statutory damages plus actual damages, in a class action, the recovery in a class action is limited to $500,000 or one percent of the defendant's net worth, whichever is less. In this case, the maximum that could be recovered for individual class members is approximately $81. Windham Professionals has raised potentially meritorious defenses to the lawsuit, and it is possible that there would be no recovery if the case is not settled. This settlement is the result of serious negotiations and was reached with the assistance of a Special Master who was appointed by the court to assist the parties in resolving the controversy. Class Counsel believes that the settlement is fair, reasonable, and adequate and recommends that the class members participate in the settlement.

Case 3:03-cv-00664-CFD

Document 35-5

Filed 12/21/2004

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SETTLEMENT HEARING There will be a hearing (the "Settlement Hearing") on ___________ at _____, in the United States District Court, District of Connecticut, 450 Main Street, Hartford, Connecticut, Room ____. You are not required to attend this hearing, but you are permitted to do so. At the Settlement Hearing, the Court will determine: (i) whether the Settlement Agreement and the terms and conditions of the Settlement are fair, reasonable, and adequate, and in the best interests of the Class Members; (ii) whether final judgment should be entered dismissing the action as to the Defendant, with prejudice and on the merits as against Plaintiff and all the Class Members; and (iii) whether, if the court approves this Settlement Agreement and the Settlement and enters such final judgment, it should award attorney's fees and expenses to the Class Counsel in an amount to be established by the Court, and a class representative fee to Plaintiff. At the Settlement Hearing, the Court will also hear any objections and arguments about the Settlement. The Court has reserved the right to adjourn the Settlement Hearing, including consideration of the application for attorney's fees and expenses, by oral announcement at such hearing, and without further notice of any kind. The Court also has reserved the right to approve the Settlement Agreement and the Settlement, with or without modifications, to enter its final judgment dismissing the action as to the Defendant with prejudice as against Plaintiff and Class Members, and to order the payment of attorney's fees and expenses, without further notice of any kind. RIGHTS OF CLASS MEMBERS Class Members have three options with respect to this lawsuit: · · · Remain a Class Member and agree to the Settlement; or Remain a Class Member and object to the Settlement; or Exclude yourself from the Class.

Option 1 Remain a Class Member and agree to the Settlement. If you do not exclude yourself, and you have no objection to the proposed Settlement, you will remain a Class Member. If the Court approves the proposed Settlement then you will receive a check in the amount of $31.25. Further, if you have paid the collection fee in excess of 15%, you will receive a full refund of such excess amount. If you have not paid the collection fee, then Windham will adjust your account by the amount that the collection fee exceeds 15% of the debt and will request that your credit report be amended to reflect this adjustment. Option 2 Remain a Class Member and object to the Settlement. If you want to remain a Class Member but you object to the proposed Settlement (or any of the terms of the proposed Settlement), you must put your objection in writing. You must then send your objection to Class Counsel: Daniel S. Blinn, Consumer Law Group, LLC, P.O. Box 1039, 2138 Silas Deane Highway, Rocky Hill, CT 06067 and Counsel for the defendant: Jonathan D. Elliot, Kleban & Samor, P.C., P.O. Box 763, Southport, CT 06490. You must include copies of any documents you plan to present to the Court at the hearing. Your objection and supporting documents must be postmarked or hand-delivered on or before ________________. Any person who fails to object to the proposed Settlement as described above will lose the right to object to it later in this or any other legal action. If the proposed Settlement is approved despite your objection, you will still receive the benefits of the Settlement and will be bound by its terms. Option 3 Exclude yourself from the class. You have a right to exclude yourself from the class (which is called "opting out"). If you exclude yourself from the class, you will not receive any benefits from the Settlement or from a judgment in this Lawsuit, but you will have the right to file your own lawsuit and to pursue your claims against it separately. If you want to exclude yourself from the class, you must complete and mail the attached Opt-Out Form to Class Counsel: Daniel S. Blinn, Consumer Law Group, LLC, P.O. Box 1039, 2138 Silas Deane Highway, Rocky Hill, CT 06067. Your envelope must be postmarked or hand-delivered on or before __________. If you are a Class Member and you do not mail or hand-deliver the signed Opt-Out Form by the __________ deadline, you will remain a Class Member. This means you will receive any benefits from the Settlement or from any judgment in this Lawsuit, but you will lose the right to pursue any claims against Windham Professionals on your own, and you will be bound by any judgment of the Court. If you remain a Class Member, you have the right to hire your own attorney (at your own expense) to represent you in this lawsuit or to enter an appearance in this lawsuit yourself and represent

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Case 3:03-cv-00664-CFD

Document 35-5

Filed 12/21/2004

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yourself. If you do not hire your own attorney or choose to represent yourself, you will be represented in this lawsuit, at no cost to you, by the Class Counsel: Attorneys Daniel S. Blinn, Matthew T. Theriault and Sarah Poriss, Consumer Law Group, LLC, P.O. Box 1039, 2138 Silas Deane Hwy, Rocky Hill, CT 06067. If you do nothing, you will remain a Class Member. You may attend the hearing. If the Settlement is approved, you and the other Class Members will receive the benefits described in this notice. If the Settlement is not approved, you will still be considered a Class Member and this Lawsuit will go on. There still will be no guarantee that Class Members will recover any benefits or that they will recover more than the amounts provided in the Settlement. If you have any questions, you may contact Class Counsel toll-free at 877 425-4529. EXAMINATION OF PAPERS AND INQUIRIES This Notice does not purport to be a comprehensive description of the Action. For a more detailed statement of the matters involved in this litigation, reference is made to the pleadings, the orders entered by the Court, and other papers filed in this litigation, which, unless sealed, may be inspected by contacting the Hartford Clerk's Office at the United States District Court, District of Connecticut, 450 Main Street, Hartford, Connecticut, during regular business hours of each business day. ALL INQUIRIES REGARDING THIS LITIGATION SHOULD BE ADDRESSED TO CLASS COUNSEL. PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE OR THE DEFENDANT'S COUNSEL FOR INFORMATION. BY ORDER OF THE UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT,

Federal Court Judge DATED: __________________, 2004

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Case 3:03-cv-00664-CFD

Document 35-5

Filed 12/21/2004

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OPT­OUT FORM

3-03-cv-664 (CFD) Dionne Caldwell, Individually and on Behalf of a Class of Others Similarly Situated v. Windham Professionals, Incorporated UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DO NOT SUBMIT THIS FORM IF YOU WANT TO BE INCLUDED IN THE CLASS ACTION. YOU DO NOT NEED TO DO ANYTHING TO REMAIN IN THE CLASS PLEASE EXCLUDE ME FROM THE CLASS. I DO NOT WANT TO PARTICIPATE IN THE CLASS ACTION LAWSUIT AGAINST WINDHAM PROFESSIONALS, INCORPORATED. NAME: ADDRESS: PHONE: ______________________________ ______________________________ ______________________________

Instructions: If you wish to exclude yourself from the class you must complete this Opt-Out Form and mail or hand-deliver this form to: Daniel S. Blinn, Consumer Law Group, LLC, P.O. Box 1039, Rocky Hill, CT 06067 and Jonathan D. Elliot, Kleban & Samor, P.C., P.O. Box 763, Southport, CT 06890 by ___________. If you exclude yourself, you will no longer be a Class Member, will not be bound by any judgment in this lawsuit, and will not participate in the proposed Settlement or any recovery obtained on behalf of the Class Members, but you will retain the right to bring your own lawsuit. If you wish to be included in the class action, do not return this form.

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