Cantlin et al. v. Smythe, Cramer Co. Frequently Asked Questions

Frequently Asked Questions about the Cantlin et al. v. Smythe, Cramer Co.

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Questions

Answers

1.

What is this lawsuit about?

Answer:

This class action lawsuit claims that Defendant unlawfully charged its clients Administrative Fees and Brokerage Service Fees.

Defendant denies the characterization by Plaintiffs and any wrongdoing in its business practices.

This Website explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.  If the Court approves the Settlement and it becomes final, a Settlement Administrator appointed by the Court will make the Benefit Amount payments provided by the Settlement. 

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2.

Who is affected by this Settlement?  

Answer:

“Administrative Fee Class” means all individuals in the state of Ohio, both buyers and sellers, who, between September 18, 2005 and December 31, 2009, paid Defendant an  “Administrative Fee” or  “Administrative Services Fee” pursuant to the Exclusive Right to Sell Agreement; Exclusive Buyer Representation Agreement; Offer to Purchase Agreement; or Purchase Agreement.  


“Brokerage Services Fee Class” means all buyers of real estate in Ohio who, between March 1, 2009 and August 1, 2019, paid Defendant a “Brokerage Services” fee pursuant to the Purchase Agreement or Offer to Purchase Agreement and who did not have an exclusive “Representation Agreement” with Defendant.  


Where two or more persons (e.g., a couple or a group of friends) participated in the same sale or purchase jointly, these persons will constitute a single Class Member for purposes of Claim Form submission.  No more than one Benefit Amount will be paid for each Fee charged by Defendant and paid by the Class Member.  Each  Claim must be submitted by a Class Member or in the event of death or incapacity, someone authorized on their behalf, and no Claims may be submitted by a factor, aggregator, or in a group of persons.  


Excluded from the Settlement Classes are: Defendant, Defendant’s personal representatives, affiliates, and parent and each of their current or former directors, officers, and employees, sales agents/associates, legal representatives, successors, and assigns; any other entity in which the Defendant has a controlling interest; any Judge to whom the Action is assigned and all members of his immediate family; and all Persons who timely and validly request exclusion from the Settlement pursuant to the Class Notice disseminated in accordance with the Preliminary Approval Order.

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3.

Why is this a class action? 

Answer:

In a class action, one or more individuals called Representative Plaintiffs sue as Plaintiffs on behalf of others who have similar claims.  In this class action, the Representative Plaintiffs Patrick W. Cantlin, Elizabeth S. Haggerty (fka Hong), Rita A. Noall, and Cindy L. Miller sued on behalf of Defendant’s clients (the “class members”). 

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4.

Why is there a Settlement and what is its effect? 

Answer:

After many years of litigation and extensive negotiations, the parties have agreed to a Settlement.  The Court did not make any decisions as to the ultimate merits of the allegations.  A Settlement avoids the uncertainty, risks, and delay of continued litigation, and gives class members the opportunity to receive a cash Benefit Amount now subject to the Settlement’s approval by the Court.  The Representative Plaintiffs and their lawyers believe that the Settlement is fair and in the best interest of the Classes.  Unless you Opt-Out, you are accepting the Settlement.  This means that if the Settlement is approved, you will be releasing all Claims in this class action and will not to be able to sue Defendant as to any of the Claims brought in this lawsuit, whether you file a Claim Form for a Benefit Amount or not. 

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5.

What does the Settlement provide?  

Answer:

If you submit a Valid Claim Form by June 22, 2020, you can receive a cash Benefit Amount payment equal to the full amount of any Fee you paid plus interest calculated pursuant to O.R.C. Chapters 1343 and 5703.47.  Additionally, there is a Cy Pres Payment of $200,000, half of which can be directed and presented by or on behalf of Plaintiffs to the charities of their choice and half of which can be directed and presented by Defendant to charities of its choice, with the option of Class Counsel to attend any such presentment.  The Cy Pres Payment, as well as Attorneys’ Fees and the Costs incurred by the Class Counsel, DO NOT reduce your Benefit Amount.  The Settlement also provides for injunctive relief in the form of certain disclosure reforms implemented by Defendant.

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6.

How can I get a cash Benefit Amount payment?

Answer:

To qualify for a cash Benefit Amount payment, you must fill out and timely submit a Claim Form by June 22, 2020.  You can submit the Claim Form online here.  If you want to submit a paper Claim Form by mail, you can print a copy available online here, or call 833.930.2420 and ask that a paper Claim Form be mailed to you.  

You will be asked, but are not required, to include your unique class member identifier on the Claim Form, which will help make it easier to submit a Claim electronically.  This code is on the postcard you received. If you did not receive or can’t locate your postcard, you can contact the Settlement Administrator at 833.930.2420 and obtain your unique Class Member identifier. Claim Forms submitted by mail must be postmarked by June 22, 2020; Claim Forms filed online must be submitted by June 22, 2020 at 11:59 p.m. Eastern Time. 

If you submit an incomplete or late Claim Form, your Claim will not be deemed a Valid Claim and you will be ineligible to receive a Benefit Amount payment under the Settlement.

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7.

What happens if I don’t send in a Claim Form? 

Answer:

If you neither submit a Claim Form nor opt-out from the Settlement as described in the next section below, you will still be bound by all the terms of the Settlement, including Releasing all Claims as described in the Settlement Agreement, you will not be able to sue Defendant for the Claims alleged in this class action, and you will not receive any Benefit Amount payment from the Settlement.  


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8.

What does excluding myself from the settlement mean?  

Answer:

If you don’t believe the Settlement is fair or don’t want a Benefit Amount payment from the Settlement, then you may Opt-Out (i.e., exclude yourself) from the Settlement.  To Opt-Out from the Settlement, you must submit a statement to the Settlement Administrator that is signed and states your full name, address, and phone number stating “I/We wish to be excluded from the Settlement Class and Settlement in the Cantlin Action.”  Your Opt-Out statement must be returned to the Settlement Administrator so that it is postmarked on or before May 14, 2020:  Class Action Opt-Out, Settlement Administrator, PO Box 58967, Philadelphia PA 19102-8967.

If you choose to Opt-Out of the Settlement: (1) you will not get any Benefit Amount; and (2) you cannot file an Objection to the Settlement.  By Opting-Out, you will not be legally bound by the Settlement, and may still pursue your own claims against Defendant at your own expense if they are not too late under the applicable statute of limitations.

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9.

How can an Objection be made?  

Answer:

If you fall within the definitions of a Class Member set forth above, you may file an Objection to the Settlement.  You cannot object to the Settlement if you Opt-Out from the lawsuit.  Any Objection must be filed with the Court and must be served upon the Settlement Administrator as well as upon all the lawyers representing the Class and the Defendant at the addresses below.

Your written Objection must be served on Class Counsel and Defendant’s Counsel (listed below) no later than May 14, 2020 and include all of the following information to be considered valid: (a) reference at the beginning to Cantlin v. Smythe Cramer Co., Case No. 12-790865, the Court of Common Pleas, Cuyahoga County, Ohio; (b) the objector’s full name, address, and telephone number; (c) the name, current address and phone number of all lawyers or other persons working with, representing, or advising the objecting Class Member in connection with the Objection; (d) a written statement of all grounds for the Objection, accompanied by any legal support for such Objection; (e) copies of any papers, briefs, or other documents upon which the Objection is based; (f) a list of all persons who will be called to testify in support of the Objection; (g) a statement of whether the objector intends to appear at the Final Approval Hearing.  If the objector intends to appear at the Final Approval Hearing through counsel, the Objection must also state the identity of all attorneys representing the objector who will appear at the Final Approval Hearing; (h) a statement of his, her, or its membership in one of the Settlement Classes, including all information required by the Claim Form; and (i) a detailed list of any other  Objections to class action settlement filed by the Objector or his, her, or its counsel in any court, whether state or federal, in the United States, in the previous five (5) years.  If the Settlement Class Member or his, her, or its counsel has not objected to any other class action settlement in any court in the United States in the previous five (5) years, he, she, or it shall affirmatively state so in the written materials provided in connection with the Objection to this Settlement. Any Class Member who fails to timely file and serve a written Objection containing all of the information listed above in the previous paragraphs, including notice of his, her, or its intent to appear at the Final Approval Hearing, shall not be permitted to object to the Settlement and shall be foreclosed from seeking any review of the Settlement or the terms of the Settlement Agreement by any means, including but not limited to an appeal. To appeal from any provision of the order approving the Settlement as fair, reasonable and adequate, the  Attorneys’ Fees or the award of incentive payments, the Class Member must appear in person, or through counsel, or seek leave of Court excusing such appearance prior to the Final Approval Hearing, or as otherwise may be permitted by the Court at the Final Approval Hearing.  Further, any Class Member who submits a timely written Objection shall consent to deposition by Class Counsel and/or Defendant’s counsel prior to the Final Approval Hearing.

If any objecting Class Member, or that Class Member’s counsel, has objected to a class action settlement on more than three occasions, the notice of intent to object must also contain: a. a list all cases in which such  Objections were filed and by whom; b. the outcome of the Objections; c. the amount of money, if any, paid in connection with the  Objection to the objecting Class Member, Class Member’s counsel, or to anyone else; d. the identity of the person or entity that made the payment; e. the identity of the person or entity that received the payment or any subsequent distribution of that payment; and f. a declaration of whether the information in subsections (c)-(e) above was disclosed to the court overseeing the proposed settlement.

If you wish to object to the Settlement and you do not serve a written Objection containing all of the information listed above, you will not be permitted to object to the Settlement and will be foreclosed from seeking any review of the Settlement by any means, including but not limited to an appeal.  Members of the Settlement Class who do not timely make their Objections in this manner will be deemed to have waived all Objections and shall not be entitled to be heard at the Fairness Hearing.  You have the right to retain a lawyer at your own expense to file your Objection.  If your lawyer intends to appear at the Fairness Hearing, your lawyer must file and serve a notice of appearance with the Clerk of the Court and upon the counsel of record listed below:

CLASS COUNSEL:

Patrick J. Perotti

Dworken & Bernstein Co., L.P.A.

60 South Park Place

Painesville, Ohio 44077 


James A. DeRoche

Garson Johnson LLC

101 West Prospect Avenue, Suite 1600

Midland Building

Cleveland, Ohio 44115


DEFENDANT COUNSEL:

Jay N. Varon

Foley & Lardner LLP

3000 K Street, N.W.  Suite 600

Washington, DC  20007-5109


Anthony J. Coyne

Mansour Gavin LPA

North Point Tower

1001 Lakeside Ave., Suite 1400

Cleveland, Ohio 44114

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10.

Who is Class Counsel? 

Answer:

The Court has appointed the following lawyers to represent you and the Class: Patrick J. Perotti of Dworken & Bernstein Co., L.P.A. and James A. DeRoche of Garson Johnson LLC. 

You are not personally responsible for payment of Attorneys’ Fees and Costs for Class Counsel and no Attorney Fees will be deducted from your Benefit Amount.  Attorney Fees, as approved by the court, are being paid separately by Defendant and do not affect your Benefit Amount in any way. 

The Settlement provides that Defendant will pay Class Counsel, subject to Court approval, their legal fees and reimbursement of expenses in an amount not to exceed $8,500,000.  Class Counsel will also ask the Court to authorize Representative Plaintiff Incentive Awards of $5,000 to be paid to each Representative Plaintiff who contributed in a significant way by, among other things, bringing this Action, providing important information and documents used to achieve the Settlement, and having their depositions taken by Defendant.   

Class Counsel’s motion for Attorneys’ Fees and Costs incentive compensation may be viewed here, and the Court will hear that motion at the Final Approval Hearing.  

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11.

What is a Final Approval Hearing?

Answer:

A Final Approval Hearing is a proceeding in which the Court reviews the settlement of the parties, considers any objections that have been made and determines whether the settlement terms, including Attorneys’ Fees and Costs, incentive and all other payments are fair and adequate.  The Final Approval Hearing will be held before the Honorable John P. O’Donnell, in Courtroom 18-D of the Court of Common Pleas, Cuyahoga County, Ohio, 1200 Ontario Street, Cleveland, Ohio 44113 on May 28, 2020 at 2:30 p.m. You do not have to appear at this Hearing.

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12.

How do I get more information about the settlement? 

Answer:

You can contact the Settlement Administrator at 833.930.2420; or you may visit the Documents section of this website where you will find copies of all pertinent Settlement documents, including the Settlement Agreement, the complaint, the motion for Attorneys’ Fees, and other materials.  

You may also contact Class Counsel Patrick J. Perotti, Dworkin & Berstein Co., L.P.A., 60 South Park PL, Painesville, OH 44077 at [email protected] or at 877.833.6370.

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

For more information please call Settlement Administrator at 833-930-2420

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

  • Exclusion Deadline

    Thursday, May 14, 2020
    You must complete and mail your request for exclusion form so that it is postmarked no later than Thursday, May 14, 2020.
  • Objection Deadline

    Thursday, May 14, 2020
    You must mail your objection(s) and/or notice of intent to appear at the Final Approval Hearing so that it/they are filed with the Court no later than Thursday, May 14, 2020.
  • Claim Form Deadline

    Monday, June 22, 2020
    You must submit your Claim Form online no later than Monday, June 22, 2020 at 11:59 p.m. Eastern, or mail your completed paper Claim Form so that it is postmarked no later than Monday, June 22, 2020.
  • Final Approval Hearing Date

    Thursday, May 28, 2020
    The Final Approval Hearing is set for Thursday, May 28, 2020 at 2:30 P.M. and will be held via Zoom videoconference, Metting ID - 975 1149 6547 and Password 779059.
    The Hearing will be conducted by the Honorable John P. O'Donnell in Room 18D of the Justice Center.

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