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What benefits does the Proposed Settlement provide?
The Class Representatives have negotiated a Proposed Settlement Agreement dated November 13, 2009 (“Proposed Settlement”), between the Plaintiffs on behalf of the Class and Dryvit, which if approved by the Court will affect your rights. If settlement is not approved, Class Representatives will continue to prosecute the class action for the Class Members who do not request exclusion.
The Proposed Settlement provides monetary benefits to certain Class Members up to a maximum of $8.00 per square foot of EIFS on a Structure ($4.00 per square foot of EIFS that has been replaced). The legal rights and options of Class Members are explained below. You should read the Long Form Notice and Settlement Agreement carefully and make sure that you understand the rights and options available to you. You may want to consult with your own lawyer.
The Proposed Settlement provides various benefits to Class Members. The Benefits are described in the Proposed Settlement and summarized below. To obtain benefits, you must timely file a Claim Form no later than August 2, 2010.
The Proposed Settlement was reviewed by the Court and preliminarily approved on November 12, 2009. This is not the final approval and there is still an opportunity for you to object to the Proposed Settlement if you want to do so. You may not both object and request exclusion.
A hearing by the Court to determine the fairness, reasonableness and adequacy of the Proposed Settlement is scheduled for the Beaufort County Courthouse at 10:00 a.m. on Monday, June 7, 2010.
Your Legal Rights and Options if the Proposed Settlement is Approved by the Court:
DO NOTHING.
Get no benefit. Give up your rights.
SUBMIT A CLAIM FORM.
The only way to get a benefit. You must file a timely claim form.
Filing Deadline: August 2, 2010
OBJECT.
You may tell the Court what you don’t like about the Proposed Settlement by filing a timely objection.
Filing Deadline: May 3, 2010
EXCLUDE YOURSELF.
Get no benefit from this class action. You must file a timely request to be excluded from the settlement.
Filing Deadline: April 5, 2010
Class Members Who Purchased a Qualifying Structure BEFORE January 1, 2003:
1) If such a Class Member has NOT replaced their EIFS, then he or she is entitled to $8.00 per square foot of Dryvit EIFS installed over wood framing, or
2) If such a Class Member has replaced their EIFS, then he or she is entitled to $4.00 per square foot of Dryvit EIFS installed over wood framing.
Class Members Who Purchased a Qualifying Structure AFTER January 1, 2003:
These Class Members are not eligible for monetary benefits in this Proposed Settlement, but they may pursue individual lawsuits against Dryvit. For these individual lawsuits, Dryvit agrees to (1) toll the period proscribed by the applicable Statute of Limitation and Statute of Repose for a period of time running from the purchase of the Structure to the Notice Date, and (2) waive the affirmative defenses of res judicata, settlement, release and collateral estoppel arising from the Posey action.
To obtain this benefit, you must BOTH timely file a Claim Form and have filed an individual lawsuit by August 2, 2010. This class action is NOT an individual lawsuit so Class Members who are not now represented by an attorney should consult a lawyer to advise about the merits of an individual lawsuit.
Class Members Who Made Claims in the Posey Settlement:
These Class Members are treated as having previously settled their claims, but may apply to an Equitable Claims Adjustment Fund if their individualized circumstances suggest that some additional compensation is appropriate under concepts of fairness and equity. Distributions from this Fund must be approved by the Court.
Class Members Who Sold their Structures but Retained the Right to Sue Dryvit:
These Class Members may participate in the Proposed Settlement to the extent that the current owner could participate if the right of action had not been retained by the seller.
Other Class Members:
The Proposed Settlement does not provide Benefits to Class Members whose claims previously were settled or dismissed, who sold but did not retain rights, who otherwise purchased a non-qualifying Structure or who do not meet the criteria for receiving Benefits set forth in the Proposed Settlement. If you believe you fall in this group of Class Members, you may want to consult your own counsel for advice and guidance.
