BUSINESS AND CONSUMER COURT - STATE OF MAINE, CUMBERLAND COUNTY
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
YOU MAY BE A MEMBER OF A CLASS ACTION
THIS IS NOT A SOLICITATION
YOU COULD LOSE RIGHTS OR BENEFITS
THE CASE: Hunnewell, Fortin and Pierce v. SHW Properties, LLC and Steve Fowler, BCD-CV-16-28
This Notice is provided to members of a class action in the case mentioned above. The presiding Judge in the case, Justice Michaela Murphy, has authorized this written notice about a proposed settlement (here) reached by the parties to this class action litigation. Please take a few minutes to review this Notice as it may affect your rights to receive benefits, and it should answer questions you may have.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:
FILE A CLAIM
Remove yourself from this class action. Get no benefits or money. Keep any legal claims you have against the Defendants.
If you exclude yourself and money or benefits are awarded, you will not share in such recovery. But you keep any rights you may have to sue Defendants separately about the same legal claims that are a part of this lawsuit.
Oppose the settlement. Propose an alternative resolution.
If you object to the settlement, you should write to the Court about why you don’t like the settlement. You may also appear in support of your objection at the Fairness Hearing scheduled for September 15, 2017 at 9 A.M. (this date may change, the most current information will be available on www.MaineWorkerJustice.com)
Stay in this lawsuit. Await the Court’s decision whether to approve the Settlement. Give up certain rights.
By doing nothing, you will receive no money that may come from the proposed settlement. But, you give up any rights to sue Defendants individually and to seek damages for the same legal claims that are in this lawsuit.
Your options are explained in this Notice. To share in the Distribution Fund established for the benefit of the class members, you need to file a claim form no later than July 13, 2017. To be excluded from the settlement or to object, you must act before July 13, 2017.
1. Why did I receive this Notice?
Plaintiffs Roger Hunnewell, Gina Fortin and Brenda Pierce brought this class action lawsuit alleging, among other things, that Defendants SHW Properties, LLC and Steve Fowler (the “Defendants”) improperly held security deposits received from tenants at 61, 63, 65 and 69 Grant Street, Portland, Maine 04101 (the “Grant Street Properties”) in violation of 14 M.R.S. § 6038. The Defendants have denied these allegations. The Court has not decided who is right and who is wrong. The Defendants’ records show that you are a member of the following proposed settlement class:
All current and former tenants of the Grant Street Properties whose leases or tenancies were secured by security deposits at any point in time that any of the Defendants owned or managed the Grant Street Properties.
2. What is this claim about?
In this lawsuit, Plaintiffs asserted several claims, the most significant of which was that Defendants, in violation of 14 M.R.S. § 6038, failed to maintain all security deposits received from tenants of the Grant Street Properties in an account of a bank or other financial institution under terms that place those security deposits beyond the claims of the creditors of the landlord or any other entity or person, including a foreclosing mortgagee or trustee in bankruptcy, and that would provide for the transfer of the security deposits to a subsequent owner of the dwelling unit or to the tenant in accordance with section 6035.
You can read the Plaintiffs’ full Second Amended Class Action Complaint here. Defendants deny the allegations and the Court has made no finding of liability.
3. What is the purpose of this Notice?
You may be a member of the proposed settlement class and therefore you have a legal claim. This Notice informs you of your rights in this matter and what steps you may take to either (i) seek a share of the settlement; (ii) opt out of the settlement; or (iii) object to the settlement.
4. Why is this case a class action?
In a class action lawsuit, one or more people called “Class Representatives” (in this case, Roger Hunnewell, Gina Fortin and Brenda Pierce) sue on behalf of a group (or “Class”) of other people who have similar claims. Mr. Hunnewell, Ms. Fortin and Ms. Pierce are the Named Plaintiffs and Class Representatives. They are pursuing claims on behalf of the Class described above. Steve Fowler and SHW Properties, LLC are the defendants in this lawsuit. In a class action, a single court resolves the issues for everyone in the Classes except for anyone who choses to opt out or exclude themselves from the Class. The Court decided that this lawsuit can proceed as a class action, finding that there are enough people with similar questions with common questions of law and fact. The Court’s Order does not express any opinion about who is right or who is wrong, it simply allows all of the class members’ claims to be asserted in one lawsuit. The Court’s order certifying this case as a class action is here.
5. Why is there a settlement?
After months of pre-trial litigation, the parties engaged in extensive, good faith and arms-length settlement negotiations, including a mediation session with Mr. Jerrol Crouter of Drummond Woodsum. In order to avoid the cost, risk and delay of litigation, the parties agreed to settle.
6. What are the terms of the proposed settlement?
If the settlement is approved by the Court, each eligible class member will be entitled to a share of the recovery. The Class Settlement Agreement calls for Defendants to contribute $15,000 to a Distribution Fund that will be distributed to members of the Settlement Class.
7. What are my rights and potential benefits?
The parties have presented the proposed Class Settlement Agreement to Judge Murphy, who has reviewed the terms of the Agreement, and without deciding whether she will ultimately approve the Final Settlement, has authorized this Notice describing the Settlement. By authorizing this Notice, the Court has not made a decision as to whether or not the Settlement will ultimately be approved, but only that Class Members are entitled to Notice and an opportunity to be heard on the matter. Assuming you are a member of the settlement class, you will be entitled to a portion of the settlement. The formula for calculating settlement shares will depend on how many class members participate.
8. What do I do to participate in the settlement and receive benefits?
To participate in the settlement and receive a cash payment from the Distribution Fund, you must complete and return the Claim Form (here) and W-9 form (here). The Claim Form must be postmarked no later than July 13, 2017. Only class members who file timely, valid claim forms will be eligible to receive a payment.
9. Why would I ask to be excluded?
If you do not want a benefit from the settlement, but you want to maintain your right to sue, or if you already have a lawsuit against the Defendants for the same or similar claims and want to continue with it, you need to be excluded from the Class. If you exclude yourself from this litigation – which means you want to remove yourself from the Class, also called “opting out” of the Class – you will not get any money or benefits from this lawsuit even if the proposed settlement is approved. If you exclude yourself, you may be able to sue or continue to sue the Defendants on your own. You will not be legally bound by the Court’s judgments in this class action.
10. How would I exclude myself from the case and settlement?
If you choose not to be a part of the Settlement, you should submit a statement saying you wish to “opt out.” Your request should be addressed to the Settlement Administrator, c/o Andrew Schmidt Law PLLC, PO Box 7357, Portland, ME 04112, and must be postmarked no later than July 13, 2017. Your opt-out request must contain the following information:
a. The name of the case;
b. Your full name, address and telephone number;
c. A specific statement of your intention to exclude yourself from the Settlement;
d. The identity of your attorney, if any; and
e. Your signature and the date on which you signed.
In the event you submit a timely and valid opt-out request, you will be excluded from the Settlement and will not be entitled to any proceeds. If you initiate your own individual lawsuit against Defendants after excluding yourself from this action, you will have to seek damages in court, retaining and paying for any legal counsel you may need. If you want to purse your own lawsuit you should consult your own lawyer soon because your claims may be subject to time limits including those imposed by what are called a statute of limitation.
11. What would I do to object?
To object to the settlement, you must provide written notice of the objection via first class mail to the Clerk of Court (Danielle Young, Clerk, Business and Consumer Court, 205 Newbury Street, Ground Floor, Portland, ME 04101), Class Counsel (Andrew Schmidt Law PLLC, PO Box 7357, Portland, ME 04112), and Defendants’ counsel (Paul S. Bulger, Jewell & Bulger, P.A., 477 Congress Street, Suite 1104, Portland, ME 04101).
For an objection to be considered by the Court, the objection must be postmarked no later than July 13, 2017. The objection must set forth:
a. the name of the case;
b. the objector’s full name, address and telephone number;
c. all grounds for the objection, accompanied by any legal support for the objection known to the objector or his counsel;
d. the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application;
e. any and all agreements that relate to the objection or the process of objecting— whether written or oral—between objector or objector’s counsel and any other person or entity;
f. the identity of all counsel representing the objector who will appear at the Final Approval Hearing;
g. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;
h. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and
i. the objector’s signature (an attorney’s signature is not sufficient).
The Judge will consider your objection at the hearing.
12. Am I represented by a lawyer in this case?
The Court has named the law firms of Andrew Schmidt Law PLLC and Johnson, Webbert & Young, LLP as Class Counsel. Contact information for the Class Counsel law firms and attorneys is:
Andrew Schmidt Law PLLC
PO Box 7357
Portland, ME 04112
Johnson, Webbert & Young LLP
160 Capitol St., Suite 3
P.O. Box 79
Augusta, ME 04332-0079
You will not be charged for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense. If you choose to hire your own lawyer, he or she must file an appearance by July 13, 2017.
13. How will the lawyers be paid?
Class Counsel, Andrew Schmidt Law PLLC and Johnson, Webbert & Young LLP, will ask the Court to approve the award of an amount for attorneys’ fees and litigation expenses in an amount up to $15,000, less an estimated $4000 in costs to administer distribution of the settlement.
Further, the Named Plaintiffs in this case who spent considerable time assisting in the preparation of this case will apply for individual settlement and service awards – that is, additional amounts for their individual contribution to this case – but only if such amounts are approved by the Court. The amount set aside for such payments to the named Plaintiffs is $2411.
14. Is this a fair settlement?
Both Class Counsel and Defendants believe that the settlement, negotiated at arm’s length, is fair. The statute under which the Named Plaintiffs sued, 14 M.R.S. § 6038, allows for a recovery of either (a) actual damages; (b) $500; or (c) one-month’s rent, whichever is higher. Further, if successful, may also be able to recover attorney’s fees and the costs of prosecuting the suit.
Based on considerable experience litigating these types of cases and assessment of possible risks and reward, Class Counsel believes that this settlement is fair. If this case goes forward to a final court decision, Plaintiffs could lose and recover nothing. So far, the Court has made no decision one way or the other on the merits. Even assuming Plaintiffs prevail, the measure of damages under the law is uncertain and damages ultimately awarded by a court might not equal the Settlement Amount. Class Counsel believes this is a fair settlement.
15. Fairness Hearing
The Court will hold a hearing to decide whether to approve the settlement. You may attend but you are not required to do so. The hearing is scheduled for September 15, 2017 in the courtroom of Judge Murphy, in the Courthouse for the Business and Consumer Court, Cumberland County, 205 Newbury Street, Portland, ME 04101. This date may change, the most current information will be here.
The purpose of the hearing will be for the Court to determine whether the proposed settlement is fair, reasonable and adequate and in the best interests of the Class and to determine the appropriate amount of compensation for the Class Counsel. At that hearing the Court will be available to hear any objections and arguments concerning the fairness of the proposed settlement. The hearing may be postponed to a later date without notice.
16. How can I learn more?
For more information about the case and settlement, go to: www.MaineWorkerJustice.com. On the website you can find the Court’s Order certifying the Classes (here), Plaintiff’s Second Amended Class Action Complaint (here), the Defendants’ Answer to the Amended Complaint (here), as well as more information about your options as a Class member. You may also speak to one of the attorneys working on this class action by calling: (207) 619-0884 or emailing one of the attorneys at Peter@maineworkerjustice.com.
Please do not contact the Clerk of the Court, the Judge, the Defendants or their attorneys with inquiries.