Bishop, et al. v. Behr Process Corporation, et al.

United States District Court for the Northern District of Illinois

Case No.: 1:17-cv-04464 (N.D. Ill.)

Frequently Asked Questions

  1. Basic Information

  2. What is the Notice about?

    A Court authorized the Notice because you may have rights pursuant to a proposed Settlement of a class action lawsuit and to inform you of your options and associated deadlines. The Court issued a final judgment Order approving the Settlement on December 19, 2019. The name of the lawsuit is Bishop, et al. v. Behr Process Corporation, et al., Case No. 1:17-cv-04464 (N.D. Ill.). The defendants are Behr Process Corporation, Behr Paint Corp., Masco Corporation, The Home Depot, Inc. and Home Depot, USA, Inc. (“Defendants”). The Notice explains the lawsuit, the Settlement and your legal rights. You are NOT being sued. Payments and other benefits will be distributed after claims have been reviewed and the deficiency process is complete. Please be patient and check back to this Settlement Website regularly. Please do not contact the Parties as the Court has ordered that all questions be directed to the Class Action Settlement Administrator.

  3. What is the lawsuit about?

    The class action lawsuit claims that Behr manufactures and sells a line of products under the name “DeckOver” that (a) does not live up to the promises made regarding the performance of DeckOver, (b) deteriorates quickly, (c) fails to protect the surfaces to which it is applied, (d) fails to adhere to the surfaces to which it was applied and (e) causes property damage to the surfaces to which it is applied, and asserts claims under the Magnuson Moss Warranty Act, various states’ consumer fraud statutes and implied warranty laws, and the common law theory of unjust enrichment. You can read the First Amended Class Action Complaint by clicking here. Defendants deny that they have violated any law and deny any wrongdoing. The parties agreed to resolve these matters before these issues were decided by the Court.

  4. What customers are included in the Settlement?

    The Court has certified a class of DeckOver purchasers that includes:

    All persons and entities that, between September 1, 2012 and June 27, 2018, purchased DeckOver in the United States (or caused it to be purchased) and applied it (or caused it to be applied) to any property located in the United States owned or leased by the purchasing person or entity.

    Excluded from the Class are Defendants, and any entity in which Defendants have a controlling interest or which have a controlling interest in Defendants; Defendants’ legal representatives, assigns and successors; and all judges who have presided over the Action and any member of the judges’ immediate families.

  5. Why is this a class action?

    In a class action, people called “class representatives” sue on behalf of other people who have similar claims. All of these people together are the “Class” or “Class Members” if the Court approves this procedure. Then, that Court resolves the issues for all Class Members, except for those who exclude themselves from (opt-out of) the Class.

  6. Why is there a Settlement?

    Both sides in the Lawsuit agreed to a Settlement to avoid the cost and risk of further litigation, including a potential trial, and so that the Class Members can receive benefits in exchange for releasing Defendants from liability. The Settlement does not mean that Defendants broke any laws and/or did anything wrong, and the Court did not decide which side was right. The Settlement here has been approved by the Court, which authorized the issuance of the Notice. Plaintiffs and the lawyers representing them (called “Plaintiffs’ Co-Lead Counsel”) believe that the Settlement is in the best interests of the Class.

    The essential terms of the Settlement are summarized in the Notice. The Settlement Agreement along with all exhibits and addenda sets forth in greater detail the rights and obligations of the parties. If there is any conflict between the Notice and the Settlement Agreement, the Settlement Agreement governs.

  7. Who is in the Settlement?

    To see if you are affected or if you can get money or benefits, you first have to determine whether you are a member of the Class.
  8. How do I know if I am part of the Settlement?

    You are part of the Settlement if between September 1, 2012 and June 27, 2018, you purchased DeckOver in the United States (or caused it to be purchased) and applied it (or caused it to be applied) to any property located in the United States owned or leased by you.

    Excluded from the Class are Defendants, and any entity in which Defendants have a controlling interest or which have a controlling interest in Defendants; Defendants’ legal representatives, assigns and successors; and all judges who have presided over the Action and any member of the judges’ immediate families.

  9. I’m still not sure if I’m included in the Settlement.

    If you are not sure whether you are included in the Class, you may email the Settlement Administrator at DeckOver@AdministratorClassAction.com or call 877-235-9549. Please do not contact the Parties, the Court, or Court staff, as the Court has ordered that all questions be directed to the Administrator.

  10. The Settlement Benefits—What you get and how to get it

  11. What does the Settlement provide?

    Subject to the terms set forth in the Settlement, Class Members who submit a valid Claim Form are entitled to receive:

    • A refund for their purchase of DeckOver; and
    • Compensation for money spent removing DeckOver or otherwise repairing their deck.

    The amount Class Members are eligible to receive depends on several factors, including what proof they submit with their claim.

    The Settlement benefits are outlined below, but more information, including the Agreement, can be found on the Important Documents page on this Settlement Website. The Court still has to decide whether to finally approve the Settlement. Benefits will be provided only if the Court finally approves the Settlement and any appeal period expires or any appeals are resolved in favor of the Settlement. We do not know when the Court will finally approve the Settlement, if it will do so, or whether there will be any appeals that would have to be resolved in favor of the Settlement before certain benefits would be provided, so we do not know precisely when any benefits may be available. Please check back to this Settlement Website for updates regarding the Settlement.

    1. Refund

      Class Members may receive a refund by submitting a completed Claim Form with, among other things, the following information: (1) the number gallons of DeckOver purchased; (2) the approximate square footage of the surface to which DeckOver was applied; (3) the price per gallon paid (if known); (4) proof of purchase of DeckOver products consisting of any of the following: (i) receipts; (ii) a photograph of an opened DeckOver container that the Class Member affirms having purchased during the Class Period; (iii) a formula sticker or UPC label taken from a DeckOver container; or (iv) other competent proof; and (5) proof of a problem related to the performance of DeckOver.

      Each Class Member who provides the information described above will receive a full refund, less up to 20% in reimbursed attorney fees or litigation expenses (as discussed in FAQ 14). Class Members who do not provide proof of purchase that contains the amount spent on DeckOver will be compensated at thirty dollars ($30.00) per gallon, again subject to attorney fees and litigation expenses.

    2. Compensation for Removal or Repair

      Class Members shall be eligible to receive compensation from Behr relating to removing DeckOver or otherwise repairing their decks upon submitting a completed Claim Form with the following information: (a) the same information listed directly above under the 8-a “Refund” section, including the approximate square footage of the surface to which the DeckOver was applied; and (b) proof of damage to a deck or other substrate relating to the performance of DeckOver and consisting of (i) an invoice or estimate from a contractor to address damage to a deck or other substrate; or (ii) a receipt for supplies or equipment used to repair damage to a deck or other substrate; or (iii) other competent proof.

      Each Class Member who provides the information described above will receive seventy-five percent (75%) of the cost of removing DeckOver and otherwise repairing their decks (provided that compensation will not exceed six dollars ($6) per square foot of substrate damage), less up to 20% in reimbursed attorney fees or litigation expenses (as discussed in Section 14 below).

      Class Members who cannot provide the information in subsection (b) and attest that they repaired damage caused by DeckOver and that they cannot provide estimates, invoices or receipts for the repair work, will receive seventy-five percent of four dollars ($4) per square foot for the substrate’s surface area (again, less up to 20% in reimbursed attorney fees or litigation expenses (as discussed in Section 14 below)).

    3. Alternate Dispute Resolution

      Class Members who are not satisfied with the relief offered above may opt to participate in a free alternative dispute resolution (“ADR”) process by selecting ADR on the Claim Form.

      The Class Action Settlement Administrator will then provide additional information regarding the ADR process. ADR shall be conducted before Hon. Wayne Andersen (ret.) at JAMS, at Behr’s expense and based upon written submissions only, unless the Class Member seeking ADR requests otherwise.

  12. What am I giving up in exchange for the Settlement benefits?

    Class Members who did not exclude themselves from the Class will release Defendants from liability and will not be able to sue them about the issues in the lawsuit. The Settlement Agreement describes the released claims in necessary legal terminology, so read it carefully. The Settlement Agreement is available by clicking here. You can talk to one of the lawyers listed in FAQ 15 for free or you can, of course, talk to your own lawyer at your own expense if you have questions about the released claims or what they mean.

  13. Excluding Yourself from the Settlement

    If you wanted to keep the right to sue or continue to sue Defendants over the legal issues in the lawsuit, then you must have taken steps to remove yourself from this Settlement. This is called asking to be excluded from the Class, also referred to as “opting-out” of the Class.
  14. If I exclude myself, can I get anything from this Settlement?

    If you excluded yourself, you cannot receive the Settlement benefits described in FAQ 8. But, if you timely and properly request exclusion, the Settlement will not prevent you from suing, continuing to sue or remaining in a different lawsuit to which you are a party, or becoming part of a different lawsuit against Defendants in the future about the issues in the lawsuit. If you excluded yourself, you are not bound by anything that happens in this lawsuit.

  15. If I don’t exclude myself, can I sue later?

    Unless you exclude yourself, you give up the right to sue Defendants for the claims resolved by this Settlement. Now that the Settlement is finally approved, you are permanently enjoined and barred from initiating or continuing any lawsuit or other proceeding against Defendants about the issues in the lawsuit.

  16. How do I get out of the Settlement?

    The deadline to request exclusion or to opt-out of the Settlement was October 15, 2018.

    Your exclusion request must have been mailed to the Class Action Settlement Administrator by the October 15, 2018 in order to have been considered by the Court.

  17. The Lawyers Representing You

  18. Do I have a lawyer in the case?

    Yes. The Court has appointed lawyers to represent you and other Class Members. These lawyers are called “Plaintiffs’ Co-Lead Counsel”: Katrina Carroll of Lite DePalma Greenberg, LLC; Daniel Herrera of Cafferty Clobes Meriwether and Sprengel LLP; Eric Gibbs of Gibbs Law Group LLP; and Joseph G. Sauder of Sauder Schelkopf LLC. You will not be charged for these lawyers. If you wanted to be represented by another lawyer, you may hire one at your own expense.

  19. How will the lawyers be paid?

    In contrast to other cases in the past, where plaintiffs’ counsel received about 33% of the recovery, Plaintiffs’ Co-Lead Counsel are requested to be paid 20% of the amount awarded to each Class Member under the Settlement (i.e., if the Class Member’s claim is for one hundred dollars ($100), the Class Member will receive eighty dollars ($80) and Plaintiffs’ Co-Lead Counsel will receive twenty dollars ($20)) for attorneys’ fees and out-of-pocket expenses for time and expenses incurred in prosecuting this case and estimated time and expenses through the final implementation of this Settlement Agreement. This reduction was made possible because Behr agreed to pay a portion of the fees and costs (in the amount of one million five hundred thousand dollars ($1,500,000)) separate from the amounts to be paid to the class.

    Plaintiffs asked that the Court award each Plaintiff between $1,000 and $2,000 for their time invested in connection with the Actions and securing the benefits of this Settlement for the Class. The Court has approved these requests.

  20. What Happens Next

    You had the option of telling the Court you don’t agree with the Settlement or some part of it.
  21. How could I tell the Court if I don’t like the Settlement?

    If you are a Class Member, and you didn’ton’t exclude yourself from the Class, you could havean objected to the Settlement if you didn’ton’t like some part of it. The deadline to file and objection was October 15, 2018. You can give reasons why you think the Court should not approve it. To object, you mustsend a written objection saying that you object to the Settlement in Bishop, et al. v. Behr Process Corporation, et al., Case No. 1:17-cv-04464 (N.D. Ill.), to Plaintiffs’ Co-Lead Counsel and Behr’s Counsel at the address below so that the objection is postmarked no later than October 15, 2018. To have your objectionAt the final approval hearing, the Court considered all timely objections, overruled them and issued a Final Order approving the settlement. You may download a copy of the Final Order from the important documents page of this website.

  22. What’s the difference between objecting and excluding?

    Excluding yourself is telling the Court that you don’t want to be part of the Class. If you exclude yourself, you have no basis to object because the Settlement no longer affects you. Objecting is telling the Court that you don’t like something about the Settlement.

    If you are a Class Member and you did nothing, you remain a Class Member and all of the Court’s orders apply to you. You will not receive any benefits from the Settlement, and you are not able to sue Defendants over the issues covered by the lawsuit.

  23. The Court's Fairness Hearing

    The Court will hold a hearing to decide whether to grant final approval to the Settlement and considered all of the . If you have filed an objections. All filed objections were overruled, and the Court issued a Final Order on December 19, 2018.
  24. When and where will the Court decide whether to grant final approval of the Settlement?

    The Court held a Fairness Hearing at 9:45 a.m. on December 6, 2018 at the Everett McKinley Dirksen United States Courthouse, United States District Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, IL 60604. At this hearing, the Court considered whether the Settlement is fair, reasonable, and adequate. The Court considered all filed objections. After the hearing, on December 19, 2018, the Court decided to grant final approval the Settlement, and determined how much to pay the lawyers representing Class Members. A copy of the Final Order is available on the important documents page of this website.

  25. Do I have to come to the hearing?

    The Hearing took place on December 6, 2018. Plaintiffs’ Co-Lead Counsel answered any questions the Court had.

  26. May I speak at the hearing?

    Provided you filed a Notice of Intention to Appear by the October 15, 2108 deadline you or your attorney may have asked the Court for permission to speak at the Fairness Hearing.

  27. Getting More Information

  28. How do I get more information?

    The Notice summarizes the Settlement. More details are in the Agreement, including its exhibits and addenda. You can get a copy of the Agreement, Long Form Notice and Claim Form, on the Important Documents page by clicking here. You can also email the Settlement Administrator at DeckOver@AdministratorClassAction.com, call the toll-free number, 877-235-9549, or write the Administrator at DeckOver Settlement, PO Box 15850, Philadelphia, PA 19103. You can also look at the documents filed in the lawsuit at the Court at the address provided above in response to FAQ 15.

  29. When will the Settlement be final?

    The Settlement is currently final. The Court granted final approval of the Settlement on December 19, 2018 and the time to file appeals has passed. Please do not contact the Parties, the Court, or Court staff, as the Court has ordered that all questions be directed to the Administrator.