Notice of Proposed Class Action Settlement and Fairness Hearing Minor, et al. v. Congoleum Corporation United States District Court District Of New Jersey Case No.: 3:13-cv-07727-PGS-LHG This is a Notice to inform you about a Settlement in a class action lawsuit brought against Congoleum Corporation (the Defendant) related to certain warranty claims made with regard to Congoleum's DuraCeramic tile. You may be entitled to the benefits of the Settlement. This Notice describes the Settlement and informs you of your rights. Please carefully read the entire Notice. If you take no action, you will automatically remain in the Settlement Class and obtain the benefits of the Settlement for which you are eligible. The Settlement will only be final when given final approval by the Court, and either no appeals are taken or the order of final approval is not overturned on appeal. If the Settlement becomes final, Defendant will implement a new enhanced warranty applicable to its DuraCeramic products, and each eligible Settlement Class Member may receive a cash payment from Congoleum Corporation. You do not have to do anything until the Court grants final approval of the Settlement and all appeals have passed. After that, you will need to submit a claim to be eligible to receive a benefit. If you wish to exclude yourself from the Settlement Class and not receive the benefits of the Settlement, you must follow the instructions in the answer to Question 10 on page 6 below. To exclude yourself from this Settlement, you must deliver your exclusion letter by 5:00 p.m. on July 6, 2015. If you wish to stay in the Settlement Class but object to the terms of the Settlement, you must follow the instructions in the answer to Question 11 on page 7 below. To object to the Settlement, you must deliver your objection letter by 5:00 p.m. on July 6, 2015. If you do not exclude yourself and do not submit a claim later, you will not receive benefits from the Settlement and you will give up any rights you currently have to separately sue Congoleum for the claims being resolved by the Settlement. Do not be alarmed. You are not being sued. A United States Magistrate Judge authorized this Notice. This is not a solicitation. Page 1 of 8
What This Notice Contains Page Basic Information... 3, 4 1. What is this lawsuit about? 2. What is a class action and who is involved? 3. Why did I get this Notice? 4. Why is there a Settlement? The Claims in the Lawsuit... 4 5. What did the Plaintiff ask for? 6. Who is representing the Settlement Class in this case? The Terms of the Settlement... 4,5 7. What is the proposed Settlement? (a) Implement a new Enhanced DuraCeramic Tile Warranty (b) Make a cash Settlement payment to each eligible Settlement Class Member (c) Pay the Cost of Administering the Settlement (d) Pay Attorney's Fees and Costs (e) Pay a Service Award to the Named Class Representative 8. What claims are released if I participate in the Settlement? Your Rights and Options... 6, 7, 8 9. How do I participate in the Settlement? 10. What if I want to exclude myself from the Settlement Class and the Settlement? 11. What if I object to the terms of the Settlement? 12. What is the difference between objecting to the Settlement and asking to be excluded from the Settlement Class? 13. What will happen at the Fairness Hearing? 14. How will I know if the Settlement is approved? Additional Information... 8 15. How may I obtain more information about the case? 16. What if my address changes? Page 2 of 8
1. What is this lawsuit about? Basic Information This Notice is to inform you about a Settlement of a lawsuit that might affect your rights, before the Court decides whether to approve the Settlement. In the lawsuit, the plaintiffs made claims about the durability of certain DuraCeramic tiles. The plaintiffs claim that DuraCeramic tile sold failed as a result of a common design defect and that Congoleum failed to honor or perform under its lifetime limited warranty of the product. Congoleum claims that its tile is not defective and that its warranty appropriately covers any problems. The Court has not decided who is right. More information concerning the Settlement can be found at www.floortilesettlement.com. 2. What is a class action and who is involved? In a class action lawsuit, a person called a "class representative" files a lawsuit on behalf of himself/herself and others who have similar claims. In this case, Ms. Minor is the "Class Representative" or the "Plaintiff. Together, the people with similar claims are a "Settlement Class" or "Settlement Class Members." Congoleum Corporation is the name of the Defendant. Since everyone in the Settlement Class have common or similar claims against the Defendant, one court action can resolve the issues for everyone in the Settlement Class - except for those who choose to exclude themselves from the Settlement Class. 3. Why did I get this Notice? You received this Notice because Defendant s records show that you are a member of the proposed Settlement Class that is defined as: All persons, organizations, corporations and entities that submitted warranty claims in connection with DuraCeramic tile to Congoleum and were denied warranty coverage during the period January 1, 2010 through the notice date. Excluded from the Class are the following: All end-users who submitted a warranty claim that was honored prior to the Effective Date, Congoleum, Congoleum s employees, Congoleum s subsidiaries, the Judge to which this case is assigned and the immediate family of the Judge to which this case is assigned, those who previously accepted a repair remedy from Congoleum, and those who previously sued Congoleum claiming that their DuraCeramic Floor Tiles experienced failures and that lawsuit was resolved through a Settlement or decision by a court or arbitrator. Page 3 of 8
4. Why is there a Settlement? Both sides agreed to a Settlement before going to trial in order to avoid the costs and uncertainties of litigation. The Class Representative and Class Counsel believe the proposed Settlement is in the best interest of all Settlement Class Members. 5. What did the Plaintiff ask for? The Claims in the Lawsuit The Plaintiff sought money damages as well as non-monetary relief for the Settlement Class. 6. Who is representing the Settlement Class in this case? Class: The Court appointed the following firm as "Class Counsel" to represent the Settlement Cuneo Gilbert & LaDuca, LLP Charles J. LaDuca 8120 Woodmont Avenue, Suite 810 Bethesda, MD 20814 These attorneys are experienced in handling class actions. You will not be charged for their services. You may hire your own attorney to represent you in this matter. If you want to be represented by your own lawyer, you will be responsible for paying his or her fees. 7. What is the proposed Settlement? The Terms of the Settlement Under the terms of the Settlement, the Defendant will: (a) Implement a new Enhanced DuraCeramic Tile Warranty The Defendant will implement a new, enhanced warranty for its DuraCeramic tile. That warranty can be reviewed at www.floortilesettlement.com or be made available by contacting Congoleum directly at 609-584-3000. (b) Make a cash Settlement payment to each eligible Settlement Class Member Pay to each eligible Settlement Class Member cash in an amount determined by multiplying the number of Units of Affected Flooring installed in the Settlement Class Member's structure by $17.50. A "Unit of Affected Flooring" means a quantity of Duraceramic tile sufficient to cover 10 square feet of floor. (c) Pay the Cost of Administering the Settlement The Defendant will pay all costs of administering the Settlement including the fees and costs of the Settlement Administrator in sending out this Notice. Page 4 of 8
(d) Pay Attorney's Fees and Costs The Defendant will pay Class Counsels' reasonable attorneys' fees and expenses incurred in connection with this litigation upon application of Class Counsel and subject to the Court s approval. This payment will not reduce the benefits to the Settlement Class. (e) Pay a Service Award to the Named Class Representative The Defendant will make a payment of $5,000 to the Named Class Representative in recognition of her service efforts on behalf of the Settlement Class and to settle her individual claims. In exchange for these benefits, each member of the Settlement Class will be releasing claims, as described in response to Question 8. 8. What claims are released if I participate in the Settlement? Persons who do not opt-out of the Settlement Class will not be able to sue, or continue to sue, the Defendant as part of any other lawsuit about the same legal claims that are the subject of this lawsuit. If you remain in the Settlement Class, you will be legally bound by all of the Orders the Court issues and judgments the Court makes in the proposed Settlement. The following release language shall appear in the final judgment: As a result of the Settlement that has been approved in this judgment, when this judgment becomes effective upon the final approval date, Plaintiff Robin Minor, and each Member of the Settlement Class, for themselves, their heirs, successors and assigns shall have jointly and severally remised, released, acquitted and forever discharged the Defendant and any current, former, and future parent, subsidiary, affiliate, predecessor or successor, and all agents, employees, officers, directors and attorneys thereof (collectively, Released Parties ). The Class Members release the Released Parties from any and all claims, debts, liabilities, obligations, guarantees, costs, expenses, attorneys fees, damages, rights or equitable, legal or administrative relief, of any basis or source, whether known or unknown, that were, have been, or could have been, now, in the past, or in the future, asserted or alleged in this action or that relate to any aspect of the subject matter of this action whether such claims are contingent or absolute, mature or not yet mature, discoverable or undiscoverable, whether concealed or hidden, asserted or that might have been asserted against the Released Parties based upon, arising out of, or related in any way whatsoever to any of the facts, transactions, events, occurrences, disclosures, statements, acts, omissions or failures to act which were or could have or might have been alleged in or embraced or otherwise referred to or encompassed by the Class Action, or which relate to the subject matter of the Class Action, regardless of upon what legal theory based, whether legal or equitable, including without limitation, claims for negligence, gross negligence, fraud, breach of warranty, violations of the common law, administrative rule or regulation, tort, contract, equity, or otherwise or of any state or federal statutes, rules or regulations. Page 5 of 8
Your Rights and Options 9. How do I participate in the Settlement? If you received this Notice, you do not have to do anything to receive the benefits of this Settlement at this time. You will automatically remain in the Settlement Class and, upon final judicial approval of this Settlement, entry of a final order and judgment, and expiration of any time for appeal, review or alteration of the final order and judgment, receive a Verification Form which must be submitted to the Claims Administrator within 120 days from the Effective Date to be eligible for benefits under this Settlement. 10. What if I want to exclude myself from the Settlement Class and the Settlement? Any Settlement Class Member who does not want to be a Settlement Class Member must timely and properly complete and submit an Opt-Out Notice. The Opt-Out Notice must include: (1) the Settlement Class member's name, address, and phone number (2) the statement "I request to be excluded from the Settlement Class in the Minor v. Congoleum Corporation class action Settlement." The Opt-Out Notice must be received by the Settlement Administrator, Heffler Claims Group, at the following addresses on or before 5:00 p.m., on July 6, 2015. DuraCeramic Class Settlement c/o Heffler Claims Group 1515 Market Street, Suite 1700 Philadelphia, PA 19102 and Cuneo Gilbert & LaDuca, LLP Charles J. LaDuca 8120 Woodmont Avenue, Suite 810 Bethesda, MD 20814 Re: Minor v. Congoleum Corporation If the Settlement Administrator receives your request after 5:00 p.m., on July 6, 2015, your request may be considered untimely and you may continue to be a member of the Settlement Class. 11. What if I object to the terms of the Settlement? Objecting is telling the Court that you do not approve of the Settlement or that you dislike the Settlement. Only those persons who remain in the Settlement Class and do not exclude themselves are eligible to object to the terms of the Settlement. Those who exclude themselves are ineligible to make a formal objection. You or your attorney must appear at the Fairness Hearing to make an objection. At the Fairness Hearing, any Settlement Class Member who has not opted out may appear in person or through counsel of his or her own choosing, and at his or her own expense, and be heard to the extent allowed by the Court to object to any aspect of the Settlement. In order to object to the Settlement, you must send a written notice to the Clerk of Court, and to the lawyers representing the parties in this case. Objections not conforming to the Page 6 of 8
requirements set forth in the Notice shall be stricken and shall not be considered or heard by this Court. To be effective, a written objection must contain your name, current address and telephone number, a concise statement of each objection being made; a description of the facts underlying each objection; a description of the legal authorities underlying each objection; a statement of whether the objector intends to appear at the Fairness Hearing; a list of witnesses whom the objector may call by live testimony, oral deposition testimony or affidavit during the Fairness Hearing; and a list of exhibits which the objector may offer during the Fairness Hearing, along with copies of all of the exhibits, and it must be received by the Court, Class Counsel and Defendants' counsel by no later than 5:00 p.m., on July 6, 2015. These addresses are as follows: Clerk of the Court Re: Minor v. Congoleum Corporation Case No.: 3:13-cv-07727-PGS-LHG United States District Court, District of New Jersey Clarkson S. Fisher Building & U.S. Courthouse 402 East State Street, Room 2020 Trenton, NJ 08608 Attorneys for Defendants Dante C. Rohr, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 200 Lake Drive East, Suite 300 Cherry Hill, NJ 08003 Re: Minor v. Congoleum Corporation Class Counsel Cuneo Gilbert & LaDuca, LLP Charles J. LaDuca 8120 Woodmont Avenue, Suite 810 Bethesda, MD 20814 Re: Minor v. Congoleum Corporation The written notice must include notice that you or your attorney will appear, along with a statement indicating the basis for your opposition and any documentation in support of such opposition. Any and all documents must contain a reference to Minor v. Congoleum Corporation, Case No.: 3:13-cv-07727-PGS-LHG. Any Settlement Class Member who does not object in the manner provided above shall be deemed to have waived his or her objection and shall forever be foreclosed from objecting to the fairness, reasonableness, or adequacy of the proposed Settlement or any payment of Settlement Class attorneys' fees and expenses and payment of the Class Representative's service award. 12. What is the difference between objecting to the Settlement and asking to be excluded from the Settlement Class? You can object, but only if you remain in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class and do not wish to participate in the Settlement. If you exclude yourself, you have no basis to object because the case no longer affects you. You may not object and then exclude yourself. You may not exclude yourself and then object. Page 7 of 8
13. What will happen at the Fairness Hearing? At the Fairness Hearing, presently scheduled for 2:00 p.m. on September 17, 2015, the Judge will decide whether the Settlement is fair, reasonable, and adequate and whether it should be given final approval. The Judge will also consider any objections and determine the amount that Class Counsel will receive in attorneys' fees and expenses and whether payment of the Class Representative's service award should be approved. Unless you wish to object to the Settlement, you are not required to attend the Fairness Hearing. You are welcome to attend at your own expense. The Court may adjourn the Fairness Hearing without further written notice to the Settlement Class. 14. How will I know if the Settlement is approved? If the Court approves the Settlement, the final approval order will be made available at this website: www.floortilesettlement.com. You may also contact Class Counsel. Additional Information 15. How may I obtain more information about the case? Do not contact the Judge or the Clerk of the Court for legal questions or advice. You may obtain copies of the complaint and other documents filed in this lawsuit from the Clerk of the Court, United States District Court, District of New Jersey, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Room 2020, Trenton, NJ 08608, during regular business hours. You will need to provide the name of the lawsuit and the case number: Minor v. Congoleum Corporation, Case No. 3:13-cv-07727-PGS-LHG. You can also obtain documents filed with the Court in this case through the website http://www.pacer.gov/. You may also contact Class Counsel at the addresses listed in the answer to Question 6 above. 16. What if my address changes? If your address has changed, or changes in the future, you should send your new address and telephone number to Heffler Claims Group, the company selected to mail Notices and Settlement checks to the Settlement Class Members, at this address: DuraCeramic Class Settlement c/o Heffler Claims Group 1515 Market Street, Suite 1700 Philadelphia, PA 19102 THIS NOTICE WAS APPROVED BY THE UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY /s/ PETER G. SHERIDAN, U.S.D.J. Page 8 of 8