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Tuesday, November 1, 2011

One of the deadly sins destroying this country

I have long since lost count the number of settlement statements I have received in the last few years.  Just recently, I've received one for a stove a bought from Sears and another one for buying stocks from the company that employed me and another one concerning Bank of America.  My latest one is reprinted below.

The settlement offers is the epitome of one of the deadly sins destroying this country.  Greed. 

I have yet to collect any money from any of the cases I've unwittingly became a plaintiff to.  Not that I wanted or expected anything.  In fact, I have yet to understand why any of the cases were even brought forward, the one below being no exception.

Read the settlement carefully.  First, I am automatically considered a plaintiff, even though I've had no reason to consider a lawsuit, and now I am required to respond, in writing, if I wish to be dismissed from the case.  Failure to dismiss myself means I forfeit all future claims against the company.

Wait a minute.  I didn't ask to be in this lawsuit so what gives anyone the right to take away my right to any future claim?  Remember, this settlement notice came to me via email.  All my other notices came to me regular mail.  No one could ever prove I received this notification or any of the others.  Things get lost in the mail.  Email accounts close, consider things spam, which no one goes through the list unless they know there is an email, and email accounts are borrowed when one doesn't have an account of his own.  If a court is going to enter an action that could affect my future rights, they damn well better be sure I am receiving the proper notification.

Let's say I do nothing because I really don't care.  Prosecution wins the class action lawsuit.  What redress will the court award me?  None.  Nothing.  Nada.

Who does get something?  The lady who brought the suit will get $5,000 for her time and help getting the case to court.  A charity, namely a charity that benefits lawyers, will get $100,000.  And the lawyers prosecuting the case will get $300,000 for fees and court costs.

Class action lawsuits need to be dissolved.  They may have been a beneficial tool for helping to keep the case loads down when many plaintiffs are involved, but they have become a tool to benefit lawyers and a tool to save companies millions of dollars if thousands of plaintiffs filed individual cases instead.

If class action lawsuits can't be dissolved, then cap the fees attorneys are able to collect.  In civil lawsuits, an attorney gets a percentage of the damages awarded to the plaintiff.  In class action lawsuits, limit the fees to a percentage of what an average individual claimant receives.  This case would never have come to trial if fees were limited to a percentage of the individual claimant's award as no plaintiff is getting a dime, so the lawyers wouldn't be getting anything, either.

I wonder if the lady who brought the case forward feels like a sucker for giving almost 99% of the award to her lawyers?

The settlement:

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION


MIRANDA L. DAY, for herself and all persons similarly situated, Plaintiff,

vs.

PERSELS & ASSOCIATES, LLC, et al. Defendants.

Case No.: 8:10-cv-02463-VMC-TGW

NOTICE OF PENDENCY OF CLASS ACTION,
PROPOSED SETTLEMENT AND HEARING


TO: ALL PERSONS WHO ENTERED INTO RETAINER AGREEMENTS WITH GRIFFITH &
RUTHER, LLC, RUTHER & ASSOCIATES, LLC OR PERSELS & ASSOCIATES, LLC TO
RECEIVE LEGAL ADVICE AND OTHER LEGAL SERVICES, INCLUDING DEBT SETTLEMENT
LEGAL SERVICES, FOCUSED ON HELPING THE CONSUMERS GET OUT OF DEBT.

Please Read This Notice Carefully In Its Entirety
Your Rights May Be Affected By The Settlement Of This Lawsuit Now Pending In This Court
Court

BASIC INFORMATION

1. Why was this notice issued?


A court authorized this notice because you have a right to know about a Proposed Settlement of this putative class action lawsuit and about all of your options before the Court decides whether to give "final approval" to the Proposed Settlement. This notice explains the lawsuit, the Proposed Settlement, your legal rights, what benefits will be provided, and who will receive them.

This case is currently pending in the U.S. District Court for the District of Florida, Tampa Division. The case is known as Miranda Day v. Persels & Associates, LLC, et al., Civil Action No. 8:10-cv-02463-VMC-TGW. The lawsuit was filed by Miranda Day and she is called the Representative Plaintiff. The companies and individuals she is suing are called the Defendants and include Persels & Associates, LLC f/k/a Ruther & Associates, LLC f/k/a Griffith & Ruther, LLC ("P&A"), Legal Advice Line, LLC ("Legal Advice Line"), Jimmy B. Persels ("Persels"), Neil Ruther ("Ruther"), Robyn R. Freedman ("Freedman"), and CareOne Services, Inc. ("CareOne").
2. What is this lawsuit about?


The lawsuit is about (i) whether P&A, Legal Advice Line and CareOne provide or offer to provide services to consumers for the purpose of improving a consumer's credit record, credit history, or credit rating; (ii) whether consumers were misled about the services provided by P&A, Legal Advice Line, CareOne, Persels and Ruther; and (iii) whether consumers received the services for which they contracted in their retainer agreements with P&A.

Specifically, the Representative Plaintiff seeks relief based on the following claims: (i) violations of the Credit Repair Organizations Act ("CROA"), 15 U.S.C. §1679, et seq., breach of fiduciary duty, and negligence against P&A, Legal Advice Line, Persels, Ruther, and Freedman and CareOne; (ii) legal malpractice against P&A, Legal Advice Line, Persels, Ruther, and Freedman; (iii) aiding and abetting breach of fiduciary duty against CareOne; and (iv) negligent supervision against P&A, Legal Advice Line, Persels, Ruther, and Freedman.

Defendants deny all of these claims, deny that P&A, Legal Advice Line and CareOne are credit repair organizations, and maintain that they did not act wrongfully or unlawfully. Defendants contend that the Representative Plaintiff's claims have no merit and that, if the lawsuit would proceed, they would prevail at trial.
3. Why is this a class action?


The parties have agreed and the Court has ordered that, for settlement purposes only, this lawsuit may be maintained as a class action under Federal Rules of Civil Procedure 23(b)(2), subject to final approval at the conclusion of the settlement process. If the Proposed Settlement is not finally approved, or if any party withdraws from the Proposed Settlement, the lawsuit will return to the same status as before the Settlement Agreement was signed, and the Court will later determine if the case may proceed as a class action.
4. How do I know if I am part of the Proposed Settlement?


The Proposed Settlement includes all persons who, on or after April 28, 2005, entered into retainer agreements with Griffith & Ruther, LLC, Ruther & Associates, LLC or Persels & Associates, LLC to receive legal advice and other legal services, including Debt Settlement Legal Services, focused on helping the consumers get out of debt.

"Debt Settlement Legal Services" means the negotiated settlement of unsecured consumer debts for less than the principal amount of the debt.
5. Why is there a Proposed Settlement?


The Proposed Settlement does not mean that any law was violated or that Defendants did anything wrong. The parties arrived at the Proposed Settlement after substantial negotiations and before any of the claims or defenses were tried on the merits, and before the Court determined whether class certification was appropriate. The Proposed Settlement is a compromise of disputed claims and is not an indication of liability of any sort.

The Representative Plaintiff has entered into the Proposed Settlement after weighing the benefits of settlement against the probabilities of success or failure in the lawsuit and against any delays that would result if the lawsuit proceeded to trial, and after trial, to appeal. The Representative Plaintiff and Class Counsel have concluded that the Proposed Settlement is fair, reasonable and best for all Class Members.

Although Defendants deny any wrongdoing or liability whatsoever, Defendants believe that it is in their individual and collective best interests to settle this lawsuit on the terms set forth in the Settlement Agreement in order to avoid the further expense and inconvenience in connection with the lawsuit.
THE PROPOSED SETTLEMENT BENEFITS


6. What benefits does the Proposed Settlement provide?


P&A and Legal Advice Line will add certain disclosures and additional information to their future retainer agreements with clients, will modify the timing at which fees are collected from clients, and will ensure that clients requesting assistance with matters are able to communicate with an attorney within a reasonable period of time.

More specifically, P&A and Legal Advice Line will modify future retainer agreements with clients to provide:
  • An estimate of the total amount that will be paid in legal fees based on estimates of the amounts for which debts will settle.
  • An estimate of the amount of each payment that will be applied to legal fees based on an assumption of the amount of the anticipated settlement.
  • An estimate of the anticipated date on which the client's debts will be satisfied under the terms of the negotiated settlements, assuming all payments are received timely and made in full.
  • The nature of services included in the retainer agreement and the services that are available at an additional cost.
  • The cost of each additional, available service not included in the retainer agreement.
P&A and Legal Advice Line will also collect fees from consumers for Debt Settlement Legal Services only after negotiation of a settlement with the consumer's creditor, subject to certain conditions and limitations..

CareOne, in its role of providing administrative support services to P&A and customer service to clients of P&A, will assist P&A in adopting and effectuating these above changes.

Defendants will also donate $100,000 to a non-profit organization (see Question 7).

Defendants will pay Class Counsel's attorneys' fees, up to a certain amount, make payment to the Representative Plaintiff, and pay the costs of notice and administration of the Proposed Settlement (see Question 13). These payments will not reduce the amount Defendants will donate to charity.

More details are in a document called the Settlement Agreement, which is available for your inspection at the Office of the Clerk, United States District Court for the Middle District of Florida, Tampa Division, 801 North Florida Avenue, Tampa, Florida 33602, during normal business hours.


7. What does the Proposed Settlement give to charity?


Defendants will donate $100,000, with the approval of the Court, to the American Bar Foundation. The American Bar Foundation is an organization dedicated to advancing justice through rigorous research on the law, legal processes, and the law's impact on our society. More information is available at http://www.americanbarfoundation.org/index.html.
8. When will the Proposed Settlement go into effect?


The Court will hold a final approval hearing on February 2, 2012 at 2:30 p.m. to decide whether to approve the Proposed Settlement (see Question 16). Even if the Court approves the Proposed Settlement, there could be appeals. The time for an appeal varies, and could take more than a year.

If no appeals are taken, the Effective Date is the date on which the Court approves the Proposed Settlement as final, subject to certain conditions. If an appeal is taken, the Effective Date is the date when all appeals are completed and the Proposed Settlement becomes final.

The Proposed Settlement will go into effect on the Effective Date.
9. What am I giving up as part of the Proposed Settlement?


If you do nothing, you will be part of the Class. That means you cannot sue Defendants over the claims settled in this case. It also means that all of the Court's orders, including the release of claims and dismissal of the lawsuit with prejudice (see Question 10), will apply to you and legally bind you.

Your interests as a member of the Class will be represented by the Representative Plaintiff and Class Counsel. You will not be billed for their services. Class Counsel will receive a fee only if the Court approves the Proposed Settlement, and the fee award will be set by the Court and paid by Defendants (see Question 13).
10. How does the Proposed Settlement affect my rights?


If the Proposed Settlement is finally approved, the Court will enter a judgment dismissing all claims against Defendants with prejudice. Under the terms of the Proposed Settlement, you will release Defendants with respect to the claims that were raised or could have been raised in the case. This means you cannot seek equitable relief or any type of monetary relief against Defendants based on any claim related to or arising out of your retainer agreement with P&A, the services provided pursuant to that agreement, or the Debt Settlement Legal Services provided by Defendants. You will be giving up all such claims, whether or not you know about them. The precise terms of dismissal and the release are explained in the Settlement Agreement, which is available for your inspection at the Office of the Clerk, United States District Court for the Middle District of Florida, Tampa Division, 801 North Florida Avenue, Tampa, Florida 33602, during normal business hours.

The Court's order will apply to you even if you objected or have any other claim, lawsuit, or proceeding pending against any of the Defendants. If you have any questions about the release, you should consult with a lawyer.
EXCLUDING YOURSELF FROM THE PROPOSED SETTLEMENT


If you want to keep your right to sue Defendants, you must take steps to remove yourself from the Proposed Settlement. This is called asking to be excluded from – or "opting out" of – the Class..
11. How do I remove myself from the Proposed Settlement?


If you choose to exclude yourself from the Class, you will not be bound by any order, judgment or settlement of the lawsuit, nor will you receive any of the benefits of this class action. You will retain and be free to pursue any claims that you may have on your own behalf.

To exclude yourself from the Proposed Settlement, you must mail a letter saying that you want to be excluded from the Class in Day v. Persels & Associates, LLC. You must include your full name, current mailing address, and telephone number, and the letter must be signed by you personally. Your letter requesting exclusion must be mailed or otherwise delivered to the following address such that it is received by December 15, 2011:

Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 2625
Faribault, MN 55021-9625

You cannot exclude yourself on the phone or by email.
THE LAWYERS REPRESENTING YOU


12. Do I have a lawyer in this case?


Yes. The Court has approved the following lawyers to represent you and the other Class Members in this case:
  • James Felman and Katherine Earle Yanes of Kynes, Markman & Felman, PA, in Tampa, Florida.
  • Thomas A. Lash of Lash & Wilcox, PL, in Tampa, Florida
  • Herbert Roy Donica of the Donica Law Firm PA, in Tampa, Florida
These lawyers are called Class Counsel. The Court has approved James Felman and Thomas A. Lash as Lead Class Counsel.

You will not be charged for these lawyers. If you want to be represented by another lawyer, you may hire one at your own expense.


13. How will the lawyers be paid? What will the Representative Plaintiff receive?


Class Counsel will ask the Court to approve attorneys' fees and expenses of $300,000, for the time and effort they have spent on this case. Class Counsel will also ask the Court to approve an incentive award of $5,000 to be paid to the Representative Plaintiff for the time and resources she has spent helping the lawyers on behalf of the whole Class. The Court may award less than these amounts.

The Court must approve both the attorneys' fees and costs for Class Counsel and the incentive award for the Representative Plaintiff. Defendants will pay the approved amounts up to $300,000 for attorneys' fees and expenses and $5,000 for the incentive award. No Class Member will owe or pay anything for attorneys' fees and expenses.
OBJECTING TO THE PROPOSED SETTLEMENT


14. How do I tell the Court I don't agree with the Proposed Settlement?


You may object to any part of the Proposed Settlement. To do so, you must file a written objection in the case Miranda Day v. Persels & Associates, LLC, et al., Civil Action No. 8:10-cv-02463-VMC-TGW. Any objection must set forth your full name, current mailing address and telephone number and must include: (a) a written statement explaining the reasons for your objection; (b) copies of any papers, briefs, or other documents you want to bring to the Court's attention; (c) any evidence you wish to introduce in support of your objection; and (d) a statement of whether you or your lawyer will ask to appear at the final approval hearing to talk about your objections.

Your objection must comply with all filing rules of the U.S. District Court for the Middle District of Florida, Tampa Division. The Court's rules are available at www.flmd.uscourts.gov. Failure to follow the Court's rules constitutes noncompliance with the rules governing objections, and the objection may be deemed invalid.

Your objection must be mailed or otherwise delivered to each of the following addresses so that it is received by December 15, 2011:

Court
Clerk of the Court
United States District Court for the Middle District of Florida
801 North Florida Avenue
Tampa, Florida 33602

Settlement Administrator
Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 2625
Faribault, MN 55021-9625


If you or your lawyer asks to appear at the final approval hearing, in addition to providing the above information, you must include in your objection letter: (a) the points you wish to speak about at the hearing; (b) copies of documents you intend to rely upon at the hearing; (c) the amount of time you request for speaking at the hearing; and (d) whether you intend to have a lawyer speak on your behalf.

If you intend to have a lawyer present, your lawyer must file a written notice of appearance of counsel with the Clerk of the Court no later than December 15, 2011.
15. What is the difference between objecting and asking to be excluded?


Objecting is simply telling the Court that you do not like something about the Proposed Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Class. If you exclude yourself from the Class, you have no basis to object because the case no longer affects you.
THE COURT'S FINAL APPROVAL HEARING


16. When and where will the Court decide whether to approve the Proposed Settlement?


The Court will hold a final approval hearing to decide whether the Proposed Settlement is fair, reasonable, and adequate and should be granted final approval. The Court will also consider whether to award attorneys' fees and other expenses to Class Counsel, whether to provide an incentive award to the Representative Plaintiff, and whether to enter a final judgment and dismiss the lawsuit. If there are objections, the Court will consider them then. You may attend and you may ask to speak, but you do not have to do either.

The final approval hearing will be on February 2, 2012 at 2:30 p.m., before Magistrate Judge Thomas G. Wilson, U.S. District Court for the Middle District of Florida, 801 North Florida Avenue, Tampa, Florida 33602, in Judge Wilson's Courtroom.

The hearing may be continued or adjourned or moved to a different courtroom without further notice other than announcement at the final approval hearing. The Proposed Settlement may be approved with modifications, and without further notice, if consented to by the Representative Plaintiff and Defendants and their respective attorneys in accordance with the terms of the Settlement Agreement.
17. Do I have to come to the hearing?


No. Class Counsel will answer any questions the Court may have. However, you are welcome to attend the hearing at your own expense. If you send a written objection, you do not have to come to the final approval hearing to talk about it. As long as you mailed your written objection on time and according to the Court's rules, the Court will consider it. You may also pay your own lawyer to attend the final approval hearing, but it is not necessary.
18. May I speak at the hearing?


You or your lawyer may ask the Court for permission to speak at the final approval hearing. To do so, you must tell the Court in your objection letter that you or your lawyer would like to speak at the hearing. You must also comply with all of the requirements explained in Question 14.
IF YOU DO NOTHING


19. What happens if I do nothing?


You have the right to do nothing. If you do nothing, you will remain part of the Class and you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants about the claims in this case, ever again.
GETTING MORE INFORMATION


20. How do I get more information?


If you have any questions concerning the matters dealt with in this notice, please direct your inquiries to the following Class Counsel:

James E. Felman
Katherine Earle Yanes
100 South Ashley Drive, Suite 1300
Tampa, Florida 33602
(813) 229-1118


The pleadings and other records in this litigation, including the Settlement Agreement are available and may be examined and copied during regular office hours at the Office of the Clerk, United States District Court for the Middle District of Florida, 801 North Florida Avenue, Tampa, Florida 33602. PLEASE DO NOT TELEPHONE THE CLERK'S OFFICE OR THE JUDGE'S CHAMBERS CONCERNING THIS NOTICE OR THIS CASE.

DATE: October 31, 2011.

Clerk of Court,
U.S. District Court for the Middle District of Florida, Tampa Division

Posted by The Coffee Party

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