ARcare, Inc. v Cynosure, Inc. Settlement

  1. Why is there a notice?
  2. What is this litigation about?
  3. Why is this a class action?
  4. Why is there a Settlement?
  5. Who is included in the Settlement?
  6. What if I am not sure whether I am included in the Settlement?
  7. What does the Settlement provide?
  8. How much will my payment be?
  9. When will I receive my payment?
  10. What am I giving up to if I do not exclude myself from the Settlement?
  11. How can I receive a payment?
  12. How will my claim be decided?
  13. How do I exclude myself from the Settlement?
  14. If I do not exclude myself, can I sue Cynosure for the same thing later?
  15. If I exclude myself, can I still get a payment?
  16. Do I have a lawyer in the case?
  17. How will the lawyers be paid?
  18. How do I tell the Court if I do not like the Settlement?
  19. What is the difference between objecting and asking to be excluded?
  20. When and where will the Court decide whether to approve the Settlement?
  21. Do I have to attend the hearing?
  22. May I speak at the hearing?
  23. How do I get more information?
  1. Why is there a notice?

    A court authorized this notice because you have a right to know about the proposed Settlement of this class action lawsuit and about all of your options before the Court decides whether to give final approval to the Settlement.  

     

    Judge Douglas P. Woodlock of the United States District Court for the District of Massachusetts is overseeing this case.  This litigation is known as ARcare, Inc. v. Cynosure, Inc., No. 16 Civ. 11547 (D. Mass.)The entity that sued, ARcare, Inc. (“ARcare”), is called the “Plaintiff.”  Cynosure, Inc. (“Cynosure”) is the “Defendant.”

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  2. What is this litigation about?

    The lawsuit concerns whether Cynosure sent advertisements by facsimile that violated a law called the Telephone Consumer Protection Act.   

     

    Click here to review the Complaint which contains all of the allegations and claims asserted against Cynosure.  Cynosure denies any liability or wrongdoing.

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  3. Why is this a class action?

    In a class action, one or more people called “Class Representatives” (in this case, ARcare, Inc.) sue on behalf of themselves and other people with similar claims.  Together, all the people with similar claims are members of a “Class.”

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  4. Why is there a Settlement?

    The Court has not decided in favor of the Plaintiff or Cynosure.  Instead, both sides have agreed to a Settlement.  By agreeing to the Settlement, the Parties avoid the costs and uncertainty of a trial, and Settlement Class Members (except those who exclude themselves) receive the benefits described in this notice.  The proposed Settlement does not mean that any law was broken or that Cynosure did anything wrong.  Cynosure denies all claims in this case.  The Class Representative and its lawyers think the proposed Settlement is best for everyone who is affected.

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  5. Who is included in the Settlement?

    You are a member of the Settlement Class if, between July 27, 2012 and March 13, 2019, you were sent one or more facsimile transmissions advertising the availability or quality of property, goods, or services of Cynosure.

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  6. What if I am not sure whether I am included in the Settlement?

    If you are not sure whether you are in the Settlement Class, or have any other questions about the Settlement, you may review the Amended Settlement Agreement and Release, or call the toll free number, 1-866-298-4191.  You may also send questions to the Settlement Administrator at P.O. Box 404115, Louisville, KY 40233-4115.

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  7. What does the Settlement provide?

    If the Settlement is approved and becomes final, it will provide benefits to Settlement Class Members who file a valid claim and do not exclude themselves.  Cynosure agreed to pay $8,500,000.00 for the Settlement, which will be used to make payments to eligible Settlement Class Members, to pay any Court-ordered award of attorneys’ fees and costs to Class Counsel, to pay any Court-ordered service award to Plaintiff for serving as the class representative, and to pay any costs of Settlement administration, including the cost of notice and any taxes.  Cynosure has also agreed not to send advertising faxes that do not comply with the Telephone Consumer Protection Act or applicable federal regulations for two years after this Settlement is finally approved.

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  8. How much will my payment be?

    Each Settlement Class Member who files a valid claim will receive a pro rata share of the Settlement Fund after deduction of any attorneys’ fees and costs the Court approves for Class Counsel, any award to the Class Representative approved by the Court, the cost of Settlement administration, and any taxes on the Settlement.  If a Settlement Class Member submits copies of cynosure faxes they received during the Class Period, they will be considered to have submitted one claim for every valid fax submitted.  See Amended Settlement Agreement and Release ¶¶ 74-81.

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  9. When will I receive my payment?

    Settlement Class Members who submit valid claims will receive their payments, by check, only after the Court grants final approval to the Settlement and after any appeals are resolved.  If there are appeals, resolving them can take time.  Please be patient. 

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  10. What am I giving up to if I do not exclude myself from the Settlement?

    Unless you exclude yourself from the Settlement, you will be bound by the Settlement.  This means that you can’t sue Cynosure in court for claims related to fax advertisements sent between July 27, 2012 and March 13, 2019.  If you do not exclude yourself, the Amended Settlement Agreement and Release and all decisions by the Court will bind you.  The Amended Settlement Agreement and Release (¶¶ 82-84) describes the claims that you give up if you remain in the Settlement.  

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  11. How can I receive a payment?

    To receive a payment, you must submit a claim.  If you received notice of the Settlement by fax or mail, that notice included a Proof of Claim Form.  You can also request that a Claim Form be mailed to you by calling 1-866-298-4191, or by writing to the Settlement Administrator at P.O. Box 404115, Louisville, KY 40233-40115.

     

    To be eligible for payment, you must complete, sign, and return the Proof of Claim Form by submitting it online here, faxing it to 1-866-298-4192, or mailing it to the following address:

     

    ARcare, Inc. v. Cynosure, Inc.

    Settlement Administrator

     P.O. Box 404115

     Louisville, KY 40233-4115

     

    Claims must be postmarked or submitted no later than August 7, 2019.

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  12. How will my claim be decided?

    After you submit your claim, the Settlement Administrator will confirm whether you are a Settlement Class Member and therefore entitled to a payment.  If your application is incomplete or does not establish that you are entitled to a payment, the Settlement Administrator will notify you to correct any problems with your claim.  If you do not correct the problems, your claim will be denied. 

     

    The Amended Settlement Agreement and Release provides more detail on how claims will be decided.

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  13. How do I exclude myself from the Settlement?

    If you don’t want benefits from the Settlement, and you want to keep the right to sue Cynosure about the legal issues in this case, then you must take steps to get out of the Settlement.  This is called excluding yourself—or it is sometimes referred to as “opting out” of the Settlement.

    To exclude yourself from the Settlement, you must send a letter or other written document by mail to the Settlement Administrator.  Your request must include:

     

    • Your name, address, and fax number;
    • A statement that you want to be excluded from the Settlement in ARcare, Inc. v. Cynosure, Inc., No. 16 Civ. 11547 (D. Mass.); and
    • Your signature.

     

    You must mail your exclusion request, postmarked no later than July 5, 2019, to P.O. Box 404115 Louisville, KY 40233-4115.  

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

    No.  Unless you exclude yourself, you give up the right to sue Cynosure for the claims that the Settlement resolves.  You must exclude yourself from the Settlement in order to maintain your own lawsuit.

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  15. If I exclude myself, can I still get a payment?

    No.  You will not get a payment if you exclude yourself from the Settlement.

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  16. Do I have a lawyer in the case?

    The Court has appointed the following lawyers as Class Counsel to represent the entire Settlement Class.  They are:

    Phillip A. Bock

    Bock, Hatch, Lewis & Oppenheim

    134 N LaSalle St., Suite 1000

    Chicago, IL 60602

    Tel.: 213-658-550
    Fax: 312-659-5501

    E-mail: phil@bockhatchllc.com

    Randall K. Pulliam

    Carney, Bates & Pulliam, PLLC

    519 West 7th Street

    Little Rock, AR 72201

    Tel.: 510-312-8500

    E-mail: rpulliam@cbplaw.com

     

    Alan Cantor

    Swartz & Swartz, P.C.

    10 Marshall Street

    Boston, MA 02108

    Tel.: 617-742-1900

    Fax: 617-367-7193

    E-mail: acantor@swartzlaw.com

     

    If you want to be represented by your own lawyer, you may hire one at your own expense.

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  17. How will the lawyers be paid?

    Class Counsel intend to request attorneys’ fees of one fourth of the Settlement Fund ($2,125,000.00) and reasonable costs and litigation expenses of prosecuting the class action.  The attorneys’ fees and expenses awarded by the Court will be paid out of the Settlement Fund.  The Court will decide the amount of any fees and expenses to award.  Class Counsel will also request that a service payment of $5,000.00 be paid from the Settlement Fund to the Class Representative for service as a representative of the whole Settlement Class. The Court will decide the amount of any service payment.

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  18. How do I tell the Court if I do not like the Settlement?

    If you are a member of the Settlement Class, you can object to any part of the Settlement, the Settlement as a whole, Class Counsel’s requests for fees and costs, and/or the service payment to the Class Representative.  To object, you must file the objection electronically with the Court, or mail your objection first-class postage prepaid to the each of the following addresses:

    Clerk of the Court

    U.S. District Court for the District of Massachusetts,
    1 Courthouse Way,
    Boston, MA 02210

    Phillip A. Bock

    Bock, Hatch, Lewis & Oppenheim

    134 N. LaSalle St., Suite 1000

    Chicago, IL 60602

     

    Alan E. Schoenfeld

    Wilmer Cutler Pickering Hale and Dorr LLP

    7 World Trade Center

    250 Greenwich Street

    New York, NY 10007

     

    Your objection must include:

     

    • The name of the case (ARcare, Inc. v. Cynosure, Inc., No. 16 Civ. 11547 (D. Mass.));
    • Your full name, address, and fax number;
    • An explanation of the basis upon which you claim to be a Settlement Class Member;
    • The reasons you object to the Settlement, along with any supporting materials;
    • The identity of all counsel who represent you, including any former or current counsel who may be entitled to compensation for any reasons related to the objection;
    • Whether you intend to appear at the Final Approval Hearing and, if so, the identity of any counsel representing you who will appear on your behalf;
    • A list of all other class action settlements to which you or your counsel filed an objection;
    • A list of any witnesses you plan to call at the Final Approval Hearing; and
    • Your signature.

     

    The requirements to object to the Settlement are described in detail in the Amended Settlement Agreement and Release in Paragraphs 59-60.  Your objection must be filed or postmarked by July 5, 2019.

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

    Objecting is telling the Court that you do not like something about the Settlement.  You can object to the Settlement only if you do not exclude yourself.  Excluding yourself is telling the Court that you do not want to be part of the Settlement.  If you exclude yourself, you have no basis to object to the Settlement because it no longer affects you.

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

    The Court has scheduled a Final Approval Hearing on July 11, 2019 at 2:00 p.m. at the United States District Court for the District of Massachusetts, located at 1 Courthouse Way, Boston, MA 02210.  The hearing may be moved to a different date or time without additional notice, so it is a good idea to check this website periodically for updates.  At this hearing the Court will consider whether the Settlement is fair, reasonable, and adequate.  If there are objections, the Court will consider them at that time.  After the hearing, the Court will decide whether to approve the Settlement.  We do not know how long these decisions will take.

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  21. Do I have to attend the hearing?

    No.  Class Counsel will answer questions the Court may have.  But you are welcome to attend the hearing at your own expense.  If you send an objection, you don’t have to come to Court to talk about it.  As long as you submitted your written objection on time, to the proper addresses, and it complies with the other requirements described in Paragraphs 59-60 of the Amended Settlement Agreement and Release, the Court will consider it.  You may also pay your own lawyer to attend, but it’s not necessary.

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  22. May I speak at the hearing?

    You may ask the Court for permission to speak at the Final Approval Hearing.  To do so, you must comply with the requirements in Question 18 above.  You cannot speak at the hearing if you exclude yourself from the Settlement.

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  23. How do I get more information?

    This notice summarizes the proposed Settlement.  More details are in the Amended Settlement Agreement and Release.  For a complete, definitive statement of the Settlement terms, please refer to the Amended Settlement Agreement and Release.  You also may write with questions to the Settlement Administrator at P.O. Box 404115, Louisville, KY 40233-4115 or call the toll-free number, 1-866-298-4191.

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