Decking Settlement FAQs

Frequently Asked Questions about the Decking Settlement.

If you do not find an answer to your question below, click here to contact us.


Questions

Answers

1. What is the Notice about?

Answer:

The 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.

Back to top

2. What is the lawsuit about?

Answer:

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.

Back to top

3. What is a class action?

Answer:

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.

Back to top

4. How do I know if I am included in the Settlement Class?

Answer:

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.

Back to top

5. Am I included if I am not the original owner of the structure?

Answer:

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.

Back to top

6. Who is not included in the Settlement Class?

Answer:

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

• 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.

Back to top

7. What do the Decking Materials look like?

Answer:

Samples of the Decking Materials that are part of the Settlement Class are shown in the pictures below:

Sample of CT boards that are part of the GAF Decking Settlement

Sample of DL boards that are part of the GAF Decking Settlement

Sample of Railways Handrails that are part of the GAF Decking Settlement

Back to top

8. What does the Settlement provide?

Answer:

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 in the ‘Important Documents’ section.

Back to top

9. What can I get?

Answer:

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:

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 open not more than one Claim for Qualifying Damage during the Qualifying Damage Claims Period and not 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 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.

Back to top

10. How do I make a claim?

Answer:

After the Court grants Final Approval of the Settlement and the Effective Date occurs, any Settlement Class Member who desires to make a claim under the terms of the Agreement can visit the ‘Open A Claim’ section or call the Claims Administrator at 1-(844) 528-0185.  If you would like to be notified when the Effective Date occurs, you may provide your name, mailing address, and email address where indicated in the "Contact" section of this web page.

When you Open A Claim, 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 in the ‘Important Documents’ section.

Back to top

11. When may I make a claim?

Answer:

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.

Back to top

12. What if my claim is denied or I disagree with the amount of my payment?

Answer:

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 in the ‘Important Documents’ section.

Back to top

13. What am I giving up if I stay in the Settlement Class?

Answer:

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 in the ‘Important Documents’ section.

Back to top

14. How do I get out of the Settlement Class?

Answer:

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. 15-cv-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:

Decking Settlement Exclusions
Daniel K. Bryson
Whitfield Bryson & Mason LLP
900 W. Morgan Street
Raleigh, NC 27603

Back to top

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

Answer:

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.

Back to top

16. If I exclude myself, can I still get benefits?

Answer:

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.

Back to top

17. How do I object to or comment on the Settlement?

Answer:

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 or personally delivered no later than January 10, 2017 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

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

Back to top

18. What is the difference between excluding myself and objecting?

Answer:

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 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.

Back to top

19. Do I have a lawyer representing me?

Answer:

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.

Back to top

20. How will the lawyers be paid?

Answer:

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.

Back to top

21. When and where will the Court decide whether to approve the Settlement?

Answer:

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 this website 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.

Back to top

22. Do I have to come to the hearing?

Answer:

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.

Back to top

23. May I speak at the hearing?

Answer:

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.

Back to top

24. Where can I get more information?

Answer:

This website summarizes the Settlement. You can get more information about the Settlement in the ‘Important Documents’ section or by calling 1-(844) 528-0185.

Back to top

This website is authorized by the Court, supervised by counsel for the parties, and controlled by Heffler Claims Group, a third party claims administrator. This is the only authorized website for this Settlement. For more information, please call toll free 1-(844) 528-0185.

Documents

Please read for a full explanation of the settlement and your options and all applicable timelines.

Contact

Contact us with any inquiries, comments, and/or requests.

Open A Claim

Click here to safely and securely open a Claim.

Upload A Video

Upload A Video

Important Dates

  • Notice Sent to Known Class Members:

    Friday, November 11, 2016 Direct Mailing of Class Notice to known Class Members.
  • Objection Deadline:

    Tuesday, January 10, 2017

    You must mail your objection(s) to any aspect(s) of the Settlement so that it is/they are postmarked no later than Tuesday, January 10, 2017. See section 17 of the Long Form Notice (PDF: 1.1 MB).

  • Exclude yourself from the Class:

    Tuesday, January 10, 2017 You must mail your exclusion request so that it is postmarked no later than Tuesday, January 10, 2017. See section 14 of the Long Form Notice (PDF: 1.1 MB).
  • Deadline for Notice of Your Intention to Appear at the Final Approval Hearing:

    Tuesday, January 10, 2017 You must mail your notice of intent to appear at the Final Approval Hearing so that it is postmarked no later than Tuesday, January 10, 2017. See sections 17, 22 and 23 of the Long Form Notice (PDF: 1.1 MB).
  • Final Approval Hearing Date:

    Monday, February 27, 2017 The Final Approval Hearing occurred on Monday, February 27, 2017 and the Court granted final approval of the settlement. 

Important Documents

Having Trouble?

Having trouble opening .pdf files? You can download Acrobat Reader  for free from www.adobe.com.

Copyright © 2017 Heffler Claims Group - All Rights Reserved. This site designed and developed by Heffler Claims Group - Privacy Policy