Simms v. ExactTarget, LLC

Frequently Asked Questions

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Questions

Answers

1. Why is the notice being provided?

Answer:

The Court directed that the Notice be sent because you have a right to know about the proposed Settlement that has been reached in this class action lawsuit and about all of your options before the Court decides whether to grant final approval of the Settlement. If the Court approves the Settlement, the Claims Administrator appointed by the Court will make the payments that the Settlement provides to those who have submitted valid and approved claims. The Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

The Court in charge of this case is the United States District Court for the Southern District of Indiana. The case is known as Simms v. ExactTarget, LLC, Case No. 1:14-cv-00737-WTL-DLP (the “Action”). The person who filed the lawsuit, Latonya Simms, is called the Plaintiff. The company she sued, ExactTarget, LLC, is called the Defendant.

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2. What is this lawsuit about?

Answer:

Plaintiff seeks to hold Defendant liable under the Telephone Consumer Protection Act (“TCPA”) for text messages sent to consumers’ cellular telephones by or on behalf of Simply Fashion and using an automatic telephone dialing system or with an artificial or prerecorded voice message, without consent either because the consumers never asked to receive the Simply Fashion text messages or because they continued receiving the Simply Fashion text messages after asking for them to stop. Defendant denies any wrongdoing.

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3. What is a class action?

Answer:

In a class action, one or more people called a Class Representative(s), in this case Latonya Simms, sue on behalf of people who have similar claims. Together, the Class Representative and group of individuals are called the Class or Class Members. One court resolves the issues for all Class Members, except for those who request to be excluded from the Settlement.

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4. Why is there a Settlement?

Answer:

The Court did not decide in favor of Plaintiff or Defendant. Instead, the Plaintiff and Defendant agreed to settle the Action to avoid the risks and cost of a trial. The Settlement also allows Class Members to be compensated without further delay. The Class Representative and her attorneys think the Settlement is best for all Class Members.

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5. Am I included?

Answer:

If you received an email or postcard providing notice of the Settlement, you have been identified as a user of a cell phone number that Defendant’s records show as having been sent a text message by or on behalf of Simply Fashion during the relevant time period. Specifically, the Settlement includes all persons in the United States who received a text message via an ExactTarget texting platform from or on behalf of Simply Fashion from July 23, 2009, through September 30, 2013 (the “Class Period”). The Parties estimate that there are approximately 528,451 persons in the Settlement Class.

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6. What does the Settlement provide?

Answer:

The Settlement provides $6,250,000 (the “Settlement Fund”). After deducting the notice and claims administration costs, payment of attorneys’ fees and costs of litigation, and any incentive payment to the Class Representative, the net Settlement Fund will be divided equally among all Settlement Class Members who file approved claims.

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7. How much will my payment be?

Answer:

Payment amounts depend on the number of valid claims submitted. Each Settlement Class Member who files an approved claim will be entitled to a one-time pro rata (i.e., equal or proportional) share of the net Settlement Fund, up to $1,500 per person. The Claims Administrator will issue payments by way of check. Any unclaimed or un-cashed funds or checks will be divided among the Settlement Class Members who cashed their settlement checks if the remaining amount will provide for more than $10 per person, otherwise it will become part of the Settlement Fund for cy pres distribution to the Privacy Rights Clearinghouse, or a similar organization approved by the Court.

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8. How do I file a claim for a payment?

Answer:

You may make a claim for a cash payment in one of two ways:

  1. Submitting an Online Claim Form on this website, or

  2. Submitting a Paper Claim Form by mail by either downloading a Claim Form from the website or requesting by telephone that the Claims Administrator mail you a copy of the Claim Form, completing such paper Claim Form, and mailing the completed Claim Form to the Claims Administrator.

Claim Forms must be submitted online by 11:59 p.m. Central Time on June 12, 2018 or postmarked by June 12, 2018. You may make only one claim for each cellular phone number that received a text message from Defendant’s text messaging platforms.

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9. When will I get my payment?

Answer:

The Court has scheduled a Final Approval Hearing before Judge Doris L. Pryor on July 20, 2018 at 1:30 p.m. in Courtroom 243 of the Birch Bayh Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana 46204. You or your attorney (at your expense) may attend this hearing if you desire and request to address the Court regarding any matters relating to this Settlement.

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10. Do I have a lawyer in this case?

Answer:

Yes, the Court has appointed Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci of The Law Offices of Ronald A. Marron, 651 Arroyo Drive, San Diego, CA 92103 to represent you and other Class Members as “Class Counsel.” Their contact information is below:


Ronald A. Marron
Alexis M. Wood
Kas L. Gallucci
The Law Offices of Ronald A. Marron
651 Arroyo Drive
San Diego, California 92108
Admin@ConsumersAdvocates.com

You may hire your own lawyer at your own expense, but you don’t have to.

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11. How will the lawyers, Class Representative and Claims Administrator be paid?

Answer:

Class Counsel will apply to the Court for their attorneys’ fees and expenses (no more than one-third of the Settlement Fund, or $2,083,333.33), as well as all reasonable costs and expenses associated with giving notice to the Class Members and administering the Settlement (estimated to be approximately $225,000), and an Incentive Award in the amount of no more than $5,000 for the Class Representative for her efforts in bringing the action and assisting throughout the litigation. If approved by the Court, all of these amounts will be deducted and paid from the Settlement Fund before making payments to Class Members who submit valid claims.

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12. What happens if I do nothing at all?

Answer:

If you’re a member of the Settlement Class and you do nothing at all, you will remain in the Settlement, but you will not get a payment. If the Court approves the Settlement, you’ll give up your right to sue ExactTarget on the issues the Settlement concerns through an individual or class action.

If you’re a member of the Settlement Class but want to retain your rights to sue ExactTarget on the issues the Settlement concerns, you have the option to exclude yourself, which is discussed below.

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13. What happens if I ask to be excluded?

Answer:

If you’re a Settlement Class Member and you ask to be excluded from the Settlement, you’ll keep the right to sue ExactTarget on the issues the Settlement concerns, but ExactTarget can raise all of its defenses. You will not be legally bound by the Court’s orders or any judgment related to the Class and the Defendant in this class action and you will not be entitled to any relief the Settlement provides.

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14. How do I ask to be excluded?

Answer:

You may request to be excluded from the Settlement Class by sending a letter to the Claims Administrator. For your request to be valid, you must send a written request (1) stating that you want to be excluded from the Settlement in Simms v. ExactTarget, LLC, No. 1:14-cv-00737-WTL-DLP, (2) including your name, address, and the telephone number at which you allegedly received a text message from or on behalf of Simply Fashion, (3) that is physically signed by you, and (4) postmarked on or before June 5, 2018. You must mail your exclusion request to:


Simms v. ExactTarget LLC Claims Administrator
PO Box 11730
Philadelphia, PA 19101-1730


You cannot exclude yourself over the phone or by email.

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15. If I do not exclude myself, can I sue the Defendant for the same thing later?

Answer:

If you are a member of the Settlement Class and you do not submit a request for exclusion, you’ll give up your right to sue ExactTarget on the issues the settlement concerns through an individual or class action.

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16. If I exclude myself from the Settlement Class, can I get anything from the Settlement?

Answer:

No. If you exclude yourself from the Settlement Class, do not submit a Claim Form. You will no longer be able to receive a benefit from the Settlement.

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17. How do I tell the Court that I do not like the Settlement?

Answer:

If you are a Class Member, you can object to the Settlement or a portion of it. You can give reasons why you think the Court should not approve it. The Court will consider your views before making a decision. To object, you must mail a letter or other document saying that you object to the Settlement of Simms v. ExactTarget, LLC, United States District Court for the Southern District of Indiana, Case No. 1:14-cv-00737-WTL-DLP. Your objection must also include your name, address, current telephone number, the telephone number at which you allegedly received a text message from or on behalf of Simply Fashion, your signature, the reason you object to the Settlement and any documents that support your objection. Mail the objection to the Clerk of the Court at the address below, postmarked no later than June 5, 2018. If you are represented by a lawyer, your lawyer must file your objection or comment with the Court. Include your lawyer’s contact information in the objection or comment.


Clerk of the Court
Room 105
U.S. District Court
Southern District of Indiana
46 E. Ohio Street
Indianapolis, IN 46204

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18. May I speak to the Court about my objection?

Answer:

Yes, you may also ask the Court for permission to speak at the fairness hearing. To do so, you must either include in your objection a statement designating it as your “Objection and Notice of Intention to Appear at Final Fairness Hearing,” or you must send a letter stating such intent to the Clerk of the Court. If submitted separately from an objection, your Notice of Intention to Appear at Final Fairness Hearing must include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be postmarked no later than June 5, 2018.

You cannot object or speak at the hearing if you “excluded yourself” from the Class.

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19. What is the difference between objecting to and asking to be excluded from the Settlement?

Answer:

Objecting simply means telling the Court that you don’t like something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself means telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself from the Settlement Class, you’re excluding yourself from the entire Settlement, and you have no basis to object because the case no longer affects you.

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20. When and where is the fairness hearing?

Answer:

The Court will hold a final fairness hearing at 1:30 p.m. on July 20, 2018 at the United States District Court for Southern District of Indiana, in Courtroom 243 of the Birch Bay Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana 46204 before the honorable Doris L. Pryor. If anyone has asked to speak at the hearing (see FAQ 18), Judge Pryor will listen to him or her at that time. The Court will decide after the hearing whether to approve: (1) the Settlement as fair and reasonable; (2) the amount of attorneys’ fees and costs of litigation; (3) the costs of notice and claims administration; and (4) the incentive payment to be provided to the Plaintiff as Class Representative. The Motion for Attorney’s fees and costs will be posted on the website after it is filed.

We do not know how long these decisions will take.

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21. Do I have to come to the hearing?

Answer:

No. Class Counsel will answer questions Judge Pryor may have that are directed to the Class. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mail your written objection on time, the Court will consider it.

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22. Are there more details about the Settlement?

Answer:

The Notice summarizes the proposed Settlement. More details are in the Settlement Agreement, which can be viewed or downloaded and is part of the Court’s file, a public record. Many of the Court papers, including the notice, the Settlement Agreement and the Order for Preliminary Approval are also posted on this website in the Documents Section. You can obtain a copy of the Settlement Agreement or review any other part of the papers relating to the lawsuit by examining the records of this case, Simms v. ExactTarget, LLC, Case No. 1:14-cv-00737-WTL-DLP at the Clerk’s office at the U.S. District Court for the Southern District of Indiana, 46 East Ohio Street, Indianapolis, IN 46204. The clerk’s office has the ability to make copies of any such public documents for you for a fee. Also, all filed documents in the case, including the Settlement documents, are available for viewing online for a fee through the Court’s PACER document review system (website.pacer.gov). Any questions that you may have concerning the notice should not be directed to the Court but should be directed to the Claims Administrator.

Contact the claims administrator with any questions through the Contact Page of the website or call 1-844-245-3777.

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23. What am I giving up in exchange for the Settlement?

Answer:

Unless you exclude yourself, you will release ExactTarget, LLC and its past, present and future parents (including salesforce.com, inc.), subsidiaries, affiliated companies and corporations, and each of their respective past, present, and future directors, officers, managers, employees, general partners, limited partners, principals, agents, insurers, reinsurers, shareholders, attorneys, advisors, representatives, predecessors, successors, divisions, joint ventures, assigns, or related entities, and each of their respective executors, successors, assigns, and legal representatives (collectively “Released Parties”) from any and all claims related to unauthorized text messages sent by or on behalf of Simply Fashion from an ExactTarget platform during the Class Period. You will no longer be able to sue, continue to sue, or be part of any other lawsuit against Defendant and related parties about the claims made in this Action and released by the Settlement Agreement. You will be legally bound by all of the Court’s orders, as well as the “Released Claims” (see FAQ 24 ).

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24. What are the Released Claims?

Answer:

The “Released Claims” are any and all claims, causes of action, suits, obligations, debts, demands, agreements, promises, liabilities, damages, losses, controversies, costs, expenses, and attorneys' fees of any nature whatsoever, whether based on any federal law, state law, common law, territorial law, foreign law, contract, rule, regulation, any regulatory promulgation (including, but not limited to, any opinion or declaratory ruling), common law or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, punitive or compensatory, as of the date of the Final Approval Order, that arise out of or relate in any way to the sending of allegedly unauthorized text messages from the ExactTarget platform by or on behalf of Simply Fashion during the Class Period, including alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, and similar state laws relating to sending of text messages without consent. The Parties acknowledge and agree that the Settlement does not release any claims held by the States or other governmental entities.

The release also covers known and unknown claims, and waives rights under California Civil Code Section 1542 and similar statutes. This means that all of the Court’s orders will apply to you and legally bind you. By staying in the Class, you agree to release any claims, known and unknown, arising from the facts alleged in this lawsuit. The full terms of this Release are contained in the Settlement Agreement, Section 15.01, or at the public court records on file in this lawsuit.

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This website is authorized by the Court, supervised by counsel and controlled by the Settlement Administrator approved by the Court. This is the only authorized website for this case.

For more information please call 1-844-245-3777

Documents

Please read for a full explanation of the settlement and your options and all applicable timelines.

Contact

Contact us with any inquiries, comments, and/or requests.

Submit Claim

Click here to safely and securely submit a Claim Form.

Important Dates

  • Deadline to Exclude Yourself from the Settlement

    Tuesday, June 5, 2018 You must mail your opt-out request so that it is postmarked no later than Tuesday, June 5, 2018.
  • Deadline to Object to the Settlement

    Tuesday, June 5, 2018 You must mail your written objection so that it is postmarked no later than Tuesday, June 5, 2018.
  • Deadline to Submit a Claim Form

    Tuesday, June 12, 2018 You must submit your Claim Form on-line no later than Tuesday, June 12, 2018, or mail your completed paper Claim Form so that it is postmarked no later than Tuesday, June 12, 2018.
  • Fairness Hearing

    Friday, July 20, 2018 The Fairness Hearing is currently scheduled for 1:30 p.m. on Friday, July 20, 2018. Please check this website for updates as the hearing date is subject to change.

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