U.S. DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
If You Are a Property Owner in the
United States with Cross Timbers Decking,
DuraLife Decking, or Railways Railings
You Could Get Benefits from a Class Action Settlement.
A Federal Court authorized this notice. This is not a solicitation.
•
A proposed Settlement has been reached in a class action lawsuit involving: (1) Cross Timbers and DuraLife
decking products manufactured or sold by Elk Corporation (“Elk”) or Building Materials Corporation of America
(“Defendant”) (“Decking”) or (2) Railways railing products manufactured or sold by Defendant or Elk (“Railways”),
collectively “Decking Materials.” The lawsuit claims that such Decking Materials are or were prone to splitting,
warping, swelling, shrinking, or surface decay and to develop pervasive mold, mildew, or fungal or other growth.
Defendant claims that the Decking Materials were not defective, and there has been no determination of wrongdoing
by the Court.
•
You may be included in the Settlement Class if you purchased (or are a Permitted Transferee of the underlying
warranties of): (1) Decking manufactured or sold by Defendant or Elk between January 1, 2002 and December 31,
2012 which remains installed on your property on November 11, 2016 and (2) Railways manufactured or sold by
Defendant or Elk between January 1, 2005 and December 31, 2012 which remains installed on your property on
November 11, 2016.
•
The Settlement provides cash compensation of up to $5.53 per linear foot of total Decking boards and fascia, and up
to $5.00 per linear foot of total Railways handrails, subject to applicable proration and other terms provided in the
Settlement Agreement. The Settlement is contingent upon the Court’s final approval.
•
This notice provides only a summary of the terms of the Settlement Agreement (which is available for review at the
Settlement website). Capitalized terms in this notice have a specific, defined meaning. If the meaning of a capitalized
term is not included in this notice, please refer to the Settlement Agreement for the meaning.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT
A CLAIM
This is the only way to receive benefits under the Settlement. You may open a claim by
visiting www.DeckingSettlement.com or calling 1-(844) 528-0185. You will then receive
instructions for filling out a claim form and submitting a claim package. You can open and
submit a claim for Qualifying Damage during the two years after the Effective Date of the
Settlement. You can open and submit a claim for Mold Condition during the first year after
the Effective Date of the Settlement.
EXCLUDE
YOURSELF
You will not receive any benefits from the Settlement, but you will keep any rights you
currently have to separately sue Defendant for the claims that are the subject of this lawsuit.
The deadline to exclude yourself is January 10, 2017.
OBJECT TO THE
SETTLEMENT
You may write to the Court explaining why you object to the Settlement. Any objection
must be filed no later than January 10, 2017.
GO TO THE
HEARING
You may ask to speak in Court about the Settlement. The Final Approval Hearing is
scheduled for February 27, 2017 at 11:00 a.m.
DO NOTHING
AT ALL
You do not have to submit a claim now. However, if you do not exclude yourself and do
not submit a claim prior to the claim submission deadline, you will not receive benefits
from the Settlement and you will give up any rights you currently have as specified in the
Settlement Agreement to separately sue Defendant for the claims being resolved by the
Settlement.
These rights and options – and the deadlines to exercise them – are explained in this Notice.
Call Toll Free 1-(844) 528-0185 or visit www.DeckingSettlement.com
Important Document – Do not Discard
WHAT THIS NOTICE CONTAINS
BASIC INFORMATION .................................................................................................. 3
1.
2.
3.
What is this Notice about?
What is the lawsuit about?
What is a class action?
WHO IS INCLUDED ....................................................................................................... 3
4.
5.
6.
7.
How do I know if I am included in the Settlement Class?
Am I included if I am not the original owner of the structure?
Who is not included in the Settlement Class?
What do the Decking Materials look like?
THE SETTLEMENT’S BENEFITS ................................................................................. 4
8.
9.
What does the Settlement provide?
What can I get?
HOW TO GET BENEFITS.............................................................................................. 6
10. How do I make a claim?
11. When may I make a claim?
12. What if my claim is denied or I disagree with the amount of my payment?
REMAIN IN THE SETTLEMENT CLASS ...................................................................... 7
13. What am I giving up if I stay in the Settlement Class?
EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS ........................................ 7
14. How do I get out of the Settlement Class?
15. If I don’t exclude myself, can I sue for the same thing later?
16. If I exclude myself, can I still get benefits?
OBJECT TO OR COMMENT ON THE SETTLEMENT ................................................. 8
17. How do I object to or comment on the Settlement?
18. What is the difference between excluding myself and objecting?
THE LAWYERS REPRESENTING YOU ....................................................................... 9
19. Do I have a lawyer representing me?
20. How will the lawyers be paid?
THE FINAL APPROVAL HEARING .............................................................................. 9
21. When and where will the Court decide whether to approve the Settlement?
22. Do I have to come to the hearing?
23. May I speak at the hearing?
GET MORE INFORMATION .......................................................................................... 9
24. Where can I get more information?
Call Toll Free 1-(844) 528-0185 or visit www.DeckingSettlement.com
Important Document – Do not Discard
BASIC INFORMATION
1.
What is this Notice about?
This Notice is to inform you about the Settlement of a lawsuit that may affect your rights, before the Court
decides whether to approve the Settlement.
The lawsuits have been coordinated in one case called In Re Elk Cross Timbers Decking Marketing, Sales
Practices and Products Liability Litigation, No. 15-cv-00018 (D.N.J.). The United States District Court for
the District of New Jersey is overseeing the lawsuit. The people that sued are called Plaintiffs, and the
company they sued is called the Defendant.
2.
What is the lawsuit about?
In the lawsuit, Plaintiffs make claims about the durability of certain Cross Timbers Decking, DuraLife
Decking, and Railways Railings. Plaintiffs claim that Decking manufactured or sold from January 1, 2001
through December 31, 2012 by Defendant or Elk; and Railways manufactured or sold by Defendant or Elk
from January 1, 2005 through December 31, 2012 are or were prone to splitting, warping, swelling,
shrinking, or surface decay and to develop pervasive mold, mildew, or fungal or other growth. Defendant
claims that the Decking and Railways were not defective. The Court has not decided who is right.
3.
What is a class action?
In a class action, one or more people called class representatives sue on behalf of a group or a “class” of
people who have similar claims. In a class action, the court resolves the issues for all class members, except
for those who exclude themselves from the class.
WHO IS INCLUDED
4.
How do I know if I am included in the Settlement Class?
You may be included in the Settlement Class if you purchased the following (or are a Permitted Transferee
of the underlying warranties): (a) Decking manufactured or sold by Defendant or Elk between
January 1, 2002 and December 31, 2012 which remains installed on your property on November 11, 2016,
and/or (b) Railways manufactured or sold by Defendant or Elk between January 1, 2005 and December 31,
2012 which remains installed on your property on November 11, 2016.
5.
Am I included if I am not the original owner of the structure?
You must be either the original purchaser of the Decking Materials or a Permitted Transferee of the express
limited warranty for those Decking Materials, and they must be installed on your property when you open
your claim.
6.
Who is not included in the Settlement Class?
The Settlement Class does not include:
• Any persons who previously executed and returned a release, or endorsed a check bearing a release,
with regard to their Decking Materials; and
• All persons and entities who timely exercise their rights under Federal Rule of Civil Procedure 23 to
opt out of the Settlement (see # 14 – 17 below for more details about opting out of the Settlement); and
• Defendant or any of its predecessors, successors, parent or subsidiary companies, affiliates, officers,
directors, employees, agents, attorneys, representatives, insurers, suppliers, distributors or vendors; and
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3
• Class Counsel and any member of Class Counsels’ immediate family; and
• The Judges, including Magistrates, to whom the cases within the MDL Litigation were assigned in the
transferor courts, the Judges, including Magistrates, to whom the MDL Litigation is assigned, and any
member of those Judges’, including Magistrates’, immediate family.
7.
What do the Decking Materials look like?
Samples of the Decking Materials that are part
of the Settlement Class are shown in the
pictures on the left.
THE SETTLEMENT’S BENEFITS
8.
What does the Settlement provide?
The Settlement covers claims for:
•
•
•
Qualifying Damage (Splitting, Warping, Swelling, Shrinking, or Surface Decay) and/or Mold
Condition (pervasive mold, mildew, fungal, or other growth) to Decking Boards;
Qualifying Damage to Decking fascia; and
Qualifying Damage to handrails
More details are in the Settlement Agreement, which is available at www.DeckingSettlement.com.
9.
What can I get?
The benefits you may receive are based on: (1) the total amount of Decking boards or fascia with Qualifying
Damage; (2) the total amount of Decking boards with Mold Condition; and (3) the total amount of Railways
handrails with Qualifying Damage.
The Rate of Compensation for Qualifying Damage and Mold Condition is as follows:
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4
a. Materials:
i. Boards and fascia: Defendant shall pay a fixed rate of $2.51 per linear foot of the total boards
and fascia that have been approved for a payment, reduced by any applicable deduction for
proration as set forth in the applicable express limited warranty.
ii. Handrails: Defendant shall pay a fixed rate of $5.00 per linear foot of the total handrails that
have been approved for a payment, reduced by any applicable deduction for proration as set forth
in the applicable express limited warranty. Qualifying Damage that displays on a handrail will
constitute Qualifying Damage to that continuous piece of handrail only (e.g., a handrail that
displays Qualifying Damage and that is six (6) feet in length will be compensated for Qualifying
Damage by multiplying $5.00 by six (6)).
b. Labor. Eligible Claimants who show Qualifying Damage to boards or fascia will also qualify for
payment for labor costs at a fixed rate of $2.37 per linear foot of the total boards or fascia that have
been approved for a payment.
i. If the applicable express limited warranty provides for coverage for the cost of labor, then for
claims opened within the period in which labor is covered under the applicable express limited
warranty, the fixed rate for labor costs will not be subject to proration, and for claims opened
after the expiration of the period in which labor is covered by the applicable express limited
warranty, the fixed rate for labor costs will be prorated by dividing the number of months that
have elapsed since the date on which the Decking Materials were installed by the total number of
months that the applicable express limited warranty provides for materials coverage.
ii. If the applicable express limited warranty does not provide any coverage for the cost of labor,
then the fixed rate for labor costs will be prorated by dividing the number of months that have
elapsed since the date on which the Decking Materials were installed by the total number of
months that the applicable express limited warranty provides for materials coverage.
c. Other. Eligible Claimants who show Qualifying Damage to boards will also qualify for payment for
other costs at a fixed rate of $0.65 per linear foot of the total boards that have been approved for a
payment. The fixed rate for this “other” payment will be prorated by dividing the number of months
that have elapsed since the date on which the Decking boards were installed by the total number of
months that the applicable express limited warranty provides for materials coverage.
d. Claims for Mold Condition.
Settlement Class Members with Mold Condition that displays on
more than fifty percent (50%) of the top surface area of the total surface area of the Decking boards
installed on the deck are entitled to a payment at a fixed rate of $1.26 per linear foot of boards for all
of the Decking boards installed on the deck, reduced by any applicable deduction for proration as set
forth in the applicable express limited warranty.
e. All proration provided for above shall be calculated based upon the date on which the Eligible
Claimant opens a claim; provided, however, that for any Eligible Claimant who opens a claim within
six (6) months after the Effective Date, the period in which proration runs for that claim will end on
the date the MDL Litigation was established (December 12, 2014).
f.
Claims for Qualifying Damage and Mold Condition. Settlement Class Members may not open
more than one Claim for Qualifying Damage during the Qualifying Damage Claims Period and may
not open more than one Claim for Mold Condition during the Mold Condition Claims Period.
Settlement Class Members may not open Claims for both Qualifying Damage and Mold Condition
on the same particular board (e.g., Settlement Class Members have the option of opening a Claim for
either Qualifying Damage (including a combination of Qualifying Damage and Mold Condition on
40% or more of boards) or Mold Condition, but not both, for any board). These limitations apply
irrespective of whether the Claim is approved or denied and the amount of any payment; thus, a
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Important Document – Do not Discard
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Class Member whose Claim for Qualifying Damage is denied may not subsequently open a Claim
for Mold Condition on the same board(s), and a Class Member whose Claim for Mold Condition is
denied may not subsequently open a Claim for Qualifying Damage on the same board(s).
g. Prior Compensation. No compensation will be paid or awarded for Qualifying Damage or Mold
Condition for any individual Decking Materials for which the Class Member previously received any
compensation from Defendant or Elk (or from any past and present parent companies, subsidiaries,
predecessors, successors, divisions, affiliates, and assigns of Defendant or Elk), and no such
materials may be utilized to satisfy any of the percentage threshold calculations.
h. Causation Defenses. No compensation will be paid or awarded for Qualifying Damage or Mold
Condition caused by or resulting from any one or more of the below defenses (“Causation
Defenses”):
i. Any action of a party other than Defendant;
ii. Settlement, distortion, failure, or cracking of the structure to which the Decking Materials are
attached or the foundation or ground on which it is supported;
iii. Natural disaster;
iv. Failure to install the Decking Materials in strict accordance with Elk’s or Defendant’s applicable
installation instructions;
v. Inadequate ventilation (i.e. inadequate or obstructed gapping between boards and/or space
beneath the deck, as set forth in the installation and maintenance instructions); and
vi. Abuse, or public use resulting in heavy foot traffic, such as use for commercial purposes, or for
Mold Condition only, a substantial failure to maintain the Decking Materials in accordance with
instructions published by Defendant or Elk.
HOW TO GET BENEFITS
10.
How do I make a claim?
Any Settlement Class Member who desires to make a claim under the terms of the Agreement can visit the
Settlement website at www.DeckingSettlement.com or call the Claims Administrator at 1-(844) 528-0185.
The Claims Administrator will send you a Claim Form and accompanying documentation (collectively a
“Claim Kit”) that identifies the respective claim number and also includes information and instructions on
how to submit a Claim Package. The Claim Kit will require you to provide a Claim Form and supporting
documents (collectively, a “Claim Package”), which you may submit by electronic mail, regular mail, or a
combination of both.
When you open a Claim, you agree to cooperate to provide information, as is reasonably needed to evaluate
the Claim and efficiently determine whether the Claim qualifies for compensation. You also agree to make
your Decking Materials available for inspection, if deemed necessary.
Your Claim may not request compensation for both Qualifying Damage and Mold Condition on the same
particular board (for example, your Claim may assert Qualifying Damage or Mold Condition for each board
for which you seek compensation, but not both for any board). Only a Settlement Class Member or his/her
contractor may open a Claim. You may not utilize a third-party claims service or similar services to submit a
Claim.
More details are available in the Settlement Agreement, which is available at www.DeckingSettlement.com.
Call Toll Free 1-(844) 528-0185 or visit www.DeckingSettlement.com
Important Document – Do not Discard
6
11.
When may I make a claim?
After the Court grants Final Approval of the Settlement and the Effective Date occurs you may make your
claim by visiting the Settlement website at www.DeckingSettlement.com or calling 1-(844) 528-0185. The
Settlement is contingent upon the Court’s final approval. Benefits will not be distributed to Class Members
until after the Court grants final approval to the Settlement and any appeals are resolved. Appeals could take
years to conclude. The Final Approval Hearing is scheduled for February 27, 2017.
Claims for Qualifying Damage must be opened within 24 months of the Effective Date. Claims for Mold
Condition whether Mold Condition alone or in combination with Qualifying Damage, must be opened within
12 months of the Effective Date.
12.
What if my claim is denied or I disagree with the amount of my payment?
If Defendant denies your Claim, you have the right to appeal the denial to the Third Party Claims
Administrator.
More details are available in the Settlement Agreement, which is available at
www.DeckingSettlement.com.
REMAIN IN THE SETTLEMENT CLASS
13.
What am I giving up if I stay in the Settlement Class?
Unless you exclude yourself (i.e. opt out of the Settlement), you will give up your right to sue Defendant for
the claims in this case as set forth in the Settlement Agreement. You also will be bound by any decisions by
the Court relating to the lawsuit and Settlement.
In return for paying the Settlement benefits, Defendant will be released for certain claims relating to the facts
underlying this lawsuit. The Settlement Agreement sets forth the Release, so read it carefully. If you have
any questions about what this means, you can talk to Class Counsel listed in Question 19 for free, or you can,
of course, talk to your own lawyer. The Settlement Agreement and the Release are available at
www.DeckingSettlement.com.
EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS
14.
How do I get out of the Settlement Class?
To exclude yourself from the Settlement Class, you must send a letter (a “Request for Exclusion”) by first
class mail to Class Counsel. If you exclude yourself, you will not be entitled to share in the benefits of the
Settlement. Your Request for Exclusion must include:
•
•
•
•
•
Your name, address, and telephone number;
A statement that you want to be excluded from the Settlement Class in the case called In Re
Elk Cross Timbers Decking Marketing, Sales Practices and Products Liability Litigation, No. 15cv-00018 (D.N.J.);
Address of the structure(s) that may contain Decking Materials;
Specify: (a) the total number of Decking boards, calculated in linear feet, that allegedly display
Qualifying Damage and/or Mold Condition, (b) the total linear feet of Decking fascia that
allegedly display Qualifying Damage, and (c) the total linear feet of Railways handrails that
allegedly display Qualifying Damage; and
Your signature and, if applicable, the signature of the attorney representing you.
Your Request for Exclusion must be postmarked or personally delivered no later than January 10, 2017, to:
Call Toll Free 1-(844) 528-0185 or visit www.DeckingSettlement.com
Important Document – Do not Discard
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Decking Settlement Exclusions
Daniel K. Bryson
Whitfield Bryson & Mason LLP
900 W. Morgan Street
Raleigh, NC 27603
15.
If I don’t exclude myself, can I sue for the same thing later?
No. Unless you exclude yourself, you will remain in the Settlement Class and give up any right to
separately sue Defendant for the claims covered by the Settlement.
16.
If I exclude myself, can I still get benefits?
No. If you exclude yourself, you may not make a claim under the Settlement and you will not be eligible to
receive money from the Settlement. You will, however, be able to make a claim under any existing
warranty applicable to your Decking Materials.
OBJECT TO OR COMMENT ON THE SETTLEMENT
17.
How do I object to or comment on the Settlement?
If you are a Class Member and have comments about, or disagree with, any aspect of the Settlement
which applies to you, you may express your views to the Court by writing to the Court, Class Counsel, and
Defendant’s counsel at the addresses below. Your written request must be mailed first class mail.
Your objection must include:
•
•
•
•
•
•
Your name, address, and telephone number;
Address of the structure(s) that may contain Decking Materials;
Specify: (a) the total number of Decking boards, calculated in linear feet, that allegedly display
Qualifying Damage and/or Mold Condition, (b) the total linear feet of Decking fascia that
Allegedly display Qualifying Damage, and (c) the total linear feet of Railways handrails that
allegedly display Qualifying Damage; and
The exact nature of your objection; and
Whether or not you intend to appear at the Final Approval Hearing; and
Your signature and, if applicable, the signature of the attorney representing you.
Any comment or objection to the Settlement must be postmarked no later than January 10, 2017 and mailed
or personally delivered to these three addresses:
COURT
Clerk of the Court
United States District Court
for the District of New Jersey
Federal Building & Court House
50 Walnut Street
Newark, New Jersey 07101-0999
18.
CLASS COUNSEL
Daniel K. Bryson
Whitfield Bryson & Mason LLP
900 W. Morgan Street
Raleigh, NC 27603
DEFENDANT’S COUNSEL
Andrew Rossman
Quinn Emanuel Urquhart &
Sullivan LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
What is the difference between excluding myself and objecting?
If you exclude yourself from the Settlement Class, you are telling the Court that you don’t want to
participate in the Settlement. Therefore, you will not be eligible to receive any benefits from the Settlement
Call Toll Free 1-(844) 528-0185 or visit www.DeckingSettlement.com
Important Document – Do not Discard
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and you will not be able to object to the Settlement. Objecting to the Settlement simply means telling the
Court that you don’t like something about the Settlement. Objecting does not disqualify you from making a
claim nor does it make you ineligible to receive a payment.
THE LAWYERS REPRESENTING YOU
19.
Do I have a lawyer representing me?
Yes. The Court has appointed the following law firms as Class Counsel to represent you and all other
members of the Settlement Class: Daniel K. Bryson, Scott C. Harris, and Jeremy R. Williams of Whitfield,
Bryson & Mason, LLP; James E. Cecchi and Lindsey Taylor of Carella, Byrne, Cecchi, Olstein, Brody &
Agnello, P.C.; Benjamin Johns of Chimicles & Tikellis, LLP; Jack Landskroner of Landskroner, Grieco,
Merriman, LLC; and Frank Petosa and Pete Albanis of Morgan and Morgan Complex Litigation Group.
If you have any questions about the Settlement, you can talk to Class Counsel, or you can hire your own
lawyer at your own expense.
20.
How will the lawyers be paid?
Lead Class Counsel plans to request attorneys’ fees, costs, and expenses of up to $3,500,000 in the aggregate.
These fees, costs, and expenses and service awards will be decided by the Court and will be paid by
Defendant. The Court may award less than this amount. The payment of attorneys’ fees, costs and expenses,
and the service awards will not reduce the benefits to the Settlement Class.
THE FINAL APPROVAL HEARING
21.
When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Approval Hearing at 11:00 a.m. on February 27, 2017 at the United States
District Court for the District of New Jersey, Federal Building & Court House, 50 Walnut Street, Newark,
New Jersey 07101-0999. The hearing may be moved to a different date or time without additional notice, so
check www.DeckingSettlement.com for current information. At the Final Approval Hearing the Court will
consider whether the Settlement is fair, reasonable, and adequate. If there are objections or comments, the
Court will consider them at that time. After the hearing, the Court will decide whether to grant final
approval to the Settlement. We do not know how long these decisions will take.
22.
Do I have to come to the hearing?
No. Class Counsel will answer any questions the Court may have. But you are welcome to come at your
own expense. If you send an objection or comment, you don’t have to come to Court to talk about it. As
long as you mailed your written objection on time, the Court will consider it. You may also hire a lawyer to
appear on your behalf at your own expense.
23.
May I speak at the hearing?
If you send an objection or comment on the Settlement as described in Question 17, you will have the right
to speak at the Final Approval Hearing. You cannot speak at the hearing if you exclude yourself from
the Settlement Class.
GET MORE INFORMATION
24.
Where can I get more information?
This Notice summarizes the Settlement. You can get more information about the Settlement at
www.DeckingSettlement.com or by calling 1-(844) 528-0185.
Call Toll Free 1-(844) 528-0185 or visit www.DeckingSettlement.com
Important Document – Do not Discard
9