Frequently Asked Questions

  1. How do I learn what number I was called on or how many calls I received?

    Go to the Check Phone Calls page. Then, log in using your Class Member ID or affected phone number.

    You do not need to submit a claim to learn the number you were called on or the number of calls.

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  2. Why did I get a Notice?

    The purpose of the Notice is to let you know that a proposed Settlement has been reached in the class action lawsuit entitled Naiman v. Total Merchant Services, Inc, Civil Action No. 4:17-cv-03806-CW in the United States District Court for the Northern District of California. You have legal rights and options that you may act on before the Court decides whether to approve the proposed Settlement. Because your rights will be affected by this Settlement, it is extremely important that you read the Notice carefully. The Notice summarizes the Settlement and your rights under it.

    If you would like to review a copy of the Notice, you may download a copy here.

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  3. What is this lawsuit about?

    In a class action, one or more people, called class representatives, sue on behalf of people who have similar claims. All of these people are a class, or class members. One court resolves the issues for all class members, except those who exclude themselves from the class.

    Here, the Class Representative alleges that from July 5, 2013 through June 8, 2018, Defendant violated the Telephone Consumer Protection Act (“TCPA”) by the fact that Quality Merchant Services, Inc., Michael Alimento and/or Brian Alimento, on behalf of Defendant, made automated telemarketing calls and/or calls using an artificial or prerecorded voice through the Spitfire dialing system to cellular telephones. The Class Representative alleges that Defendant did not have the recipients’ permission to make these calls.

    The Court has certified a class for Settlement purposes only (the “Settlement Class”). U.S. District Court Judge Claudia Wilken (the “Court”) is in charge of this class action.

    Defendant denies that it did anything wrong and that this case would be certified as a class action in litigation.

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  4. Why is there a settlement?

    The Court has not decided in favor of Plaintiff or Defendant. Instead, both sides agreed to a Settlement. That way, they avoid the cost of a trial, and the people affected will get compensation. The Class Representatives and their attorneys think the Settlement is best for the Settlement Class.

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  5. How do I know if I am a part of the Settlement?

    Go to the Check Phone Calls page. Then, log in using your Class Member ID or affected phone number.

    You are likely in the Settlement Class if, between July 5, 2013 and June 8, 2018, Quality Merchant Services called your cell phone. You can check whether you are in the Settlement Class by entering your phone number here.

    If you have questions about whether you are part of the Settlement Class, you may call 1-877-327-1109.

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  6. What does the Settlement provide?

    Defendant has agreed to pay Seven Million Five Hundred Thousand Dollars ($7,500,000) to be divided among all Settlement Class Members who send in a valid Claim Form after any fees, costs, service awards, and Settlement administration expenses have been deducted.

    Defendant has also agreed that it will take remedial steps in an effort to comply with the TCPA’s requirements regarding making telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service in response to the allegations and claims asserted in this lawsuit.

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  7. How much will my payment be?

    Your share of the Settlement will depend on the number of Claim Forms that Settlement Class Members submit and the amount of calls you received, but, based on historical statistics, the amount each Claimant is estimated to receive is $225. or more. In particular, the payment to each participating Settlement Class Member will be proportionate to the number of calls he or she received. If more people participate than in past cases, your payment may be less than $225.

    You can learn the number of calls you received by inputting your phone number here.

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  8. How do I make a claim?

    To qualify for payment, you must submit a Claim Form by February 4, 2019. There are multiple ways to submit a Claim Form. You may submit a Claim Form online by clicking here and following the directions. Claims submitted online must be received by 11:59 p.m. PST on February 4, 2019. You also may download a paper Claim Form here or call the Settlement Administrator at 1-877-327-1109. Claim Forms sent by mail must be postmarked by February 4, 2019 and mailed to:

    Total Merchant TCPA Settlement Administrator
    P.O. Box 3770
    Portland, OR 97208-3770

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  9. When will I get my payment?

    The Court will hold a hearing to decide whether to approve the Settlement. The hearing is expected to be on April 2, 2019, at 2:30 p.m., and if the hearing date changes, the updated date will be posted on this website. If the Settlement is approved, appeals may still follow. It is uncertain whether the Settlement will survive these appeals, resolution of which can take more than a year.

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  10. What am I giving up to get a payment or stay in the Class?

    Unless you exclude yourself, you are staying in the Settlement Class and you will be a Settlement Class Member. That means you can’t sue, continue to sue, or be part of any other lawsuit against Defendant regarding the claims that are subject to the Settlement. If the Settlement is approved and becomes final and not subject to appeal, then you and all Class Members release all “Released Claims” against all “Released Parties.” It also means that all of the Court’s orders will apply to you and legally bind you.

    The Settlement Agreement (available here) and the stipulation amending it (available here) describe the claims you are releasing (the “Released Claims”) and against whom you are releasing them (“Released Parties”) in detail, so read them carefully. To summarize, the release includes, but is not limited to, telemarketing-related claims that arise out of the improper use of an “automatic telephone dialing system” and/or an “artificial or prerecorded voice” by, or on behalf of, the Defendant to make telephone calls to cellular phones.

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  11. How do I get out of the Settlement?

    If you don’t want a payment from this Settlement, but you want to keep the right to sue or continue to sue Defendant, then you must take steps to remove yourself from the Settlement Class. This is called excluding yourself—or is sometimes referred to as “opting out” of the Settlement Class.

    To exclude yourself from the Settlement, you must send a letter saying that you want to be excluded from the Naiman v. Total Merchant Services, Inc., Civil Action No. 4:17-cv-03806-CW Settlement. Your letter must state that you wish to be excluded from this Settlement, include your name, address, and telephone number, and be signed by you. You must mail your exclusion request postmarked no later than February 4, 2019.

    Total Merchant TCPA Settlement Administrator
    P.O. Box 3770
    Portland, OR 97208-3770

    You cannot exclude yourself by phone, fax, email, or this website. If you ask to be excluded, you will not get any payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Defendant in the future.

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  12. If I don’t exclude myself, can I sue Defendant for the same thing later?

    No. Unless you exclude yourself, you give up any right to sue Defendant for the claims that this Settlement resolves. If you already have a lawsuit that may relate to the claims being released as part of this class action Settlement, you should speak to your lawyer in that case immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit. Remember, the exclusion deadline is February 4, 2019.

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  13. If I exclude myself, can I get anything from this Settlement?

    No. If you exclude yourself, do not submit a claim to ask for a payment.

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  14. Do I have a lawyer in this case?

    The Court has appointed Broderick & Paronich, P.C., The Law Office of Matthew P. McCue, Heidarpour Law Firm, and Jon Fougner to represent you and other Settlement Class Members. These lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

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  15. How will the lawyers be paid?

    Class Counsel will ask the Court to approve payment of up to One Million Eight Hundred Seventy-Five Thousand Dollars ($1,875,000) to them for attorneys’ fees. This amounts to 25% of the total fund. Class Counsel will also seek recovery of their actual expenses spent on the litigation, not to exceed $20,591.19. These payments would pay Class Counsel for investigating the facts, litigating the case, and negotiating the Settlement. Class Counsel also will request a service award of $10,000 for the named Plaintiff, to compensate him for his time and effort. The Court may award less than these amounts.

    If there is money left over that is too small to be practicably distributed to class members (i.e., payment would be under $5 per person), the Parties have proposed to the Court that such money goes to the National Consumer Law Center (“NCLC”). NCLC is a nonprofit organization that works for consumer justice and economic security for low-income and other disadvantaged people, including advocating against illegal telemarketing.

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  16. How do I object to the Settlement?

    You can ask the Court to deny approval of the Settlement by filing an objection. You can’t ask the Court to order a larger Settlement; the Court can only approve or deny the Settlement. If the Court denies approval, no Settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object.

    You may object to the proposed Settlement in writing, in which case you may also appear at the Final Fairness Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. All written objections and supporting papers must (a) clearly identify the case name and number (Naiman v. Total Merchant Services, Inc., Case Number 4:17-cv-03806-CW); (b) be submitted to the Court either by mailing them to the Class Action Clerk, United States District Court for the Northern District of California, 1301 Clay St., Oakland, CA 94612, or by filing them in person at any location of the United States District Court for the Northern District of California; and (c) be filed or postmarked on or before February 4, 2019.

    The written objection must (a) contain information sufficient to allow the parties to confirm that you are a member of the Settlement Class, including your full name, address, telephone number, and signature; (b) include a statement of your specific factual and/or legal objections, as well as any witness testimony and documents that you would like the Court to consider; (c) provide the name and contact information of any attorney you intend to have assert your objections before the Court; and (d) state whether you intend to appear at the Final Fairness Hearing.

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  17. What’s the difference between objecting and excluding myself from the Settlement?

    Objecting simply means telling the Court that you don’t like something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself from the Settlement Class is telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer directly affects you.

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  18. When and where will the Court hold a hearing on the fairness of the Settlement?

    The Court is expected to hold the Final Fairness Hearing at 2:30 p.m. on April 2, 2019, before the Honorable Claudia Wilken at the U.S. District Court for the Northern District of California, 1301 Clay Street, Oakland, CA 94612. The purpose of the hearing is for the Court to determine whether the Settlement is fair, reasonable, adequate, and in the best interests of the class. At the hearing, the Court will hear any objections and arguments concerning the fairness of the proposed Settlement, including those related to the amount requested by Class Counsel for attorneys’ fees and expenses, and the Incentive Award to the Class Representative. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

    Note: The date and time of the fairness hearing are subject to change by Court Order without further notice to the class. You may check this website or www.cand.uscourts.gov/cm-ecf to check if the date has changed.

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  19. 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 to 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 your written objection was filed or mailed on time, and meets the other criteria described in the Settlement Agreement, the Court will consider it. You may also pay a lawyer to attend, but you don’t have to.

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  20. May I speak at the hearing?

    If you do not exclude yourself from the Settlement Class, you may ask the Court for permission to speak at the hearing concerning any part of the proposed Settlement Agreement. If you filed an objection and intend to appear at the hearing, you must state your intention to do so in your objection. To speak, you must state that you intend to appear at the hearing in your objection. Include your name, address, telephone number, signature, and that you are a Class Member. You cannot speak at the hearing if you exclude yourself.

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  21. What happens if I do nothing at all?

    If you do nothing, you’ll get no money from this Settlement. But, unless you exclude yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant about the legal issues released in this case.

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  22. How do I get more information?

    This website and the Notice summarize the proposed Settlement. More details are in the Settlement Agreement and the stipulation amending it. You can also get a copy of the Settlement Agreement by writing to any of the Court-appointed attorneys.

    For further information, you can call 1-877-327-1109 toll-free or write to Total Merchant TCPA Settlement Administrator, P.O. Box 3770, Portland, OR 97208-3770.

    PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT OR CLAIMS PROCESS.

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