Payless Text Settlement

IF BETWEEN THE DATES OF OCTOBER 29, 2005 AND OCTOBER 4, 2010, YOU RECEIVED ONE OR MORE PROMOTIONAL TEXT MESSAGES FROM PAYLESS SHOESOURCE, INC. YOU MAY BE ENTITLED TO A MERCHANDISE CERTIFICATE WORTH UP TO $25 AS PART OF A CLASS ACTION SETTLEMENT. YOU MUST SUBMIT A CLAIM FORM BY FEBRUARY 6, 2012.

IMPORTANT: PLEASE READ THIS NOTICE CAREFULLY.
IF YOU ARE A SETTLEMENT CLASS MEMBER THE PROPOSED SETTLEMENT WILL AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. THIS NOTICE CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO MAKE A CLAIM UNDER THE SETTLEMENT, YOUR RIGHTS TO EXCLUDE YOURSELF FROM IT AND YOUR RIGHTS TO OBJECT TO THE SETTLEMENT

A federal court authorized this Notice and it is posted on the Web by Court order.

A proposed settlement (the "Settlement Agreement") has been reached in this case against Payless ShoeSource, Inc. ("Payless" or "Defendant"). You may be a Member of the Settlement Class and might be eligible to receive a merchandise certificate worth up to $25 if you are a person who received one or more text messages promoting Payless products between October 29, 2005 and October 4, 2010. If you are a Settlement Class Member and the Court gives final approval to the Settlement Agreement:

• You may be entitled to receive a $25 merchandise certificate (a "Settlement Payment") or a lesser pro rata amount if the total of all claims exceeds $6,000,000.
• You will be giving up the right to bring certain legal claims in the future, as discussed more fully below.

• These rights and options – and the deadlines to exercise them – are explained below.
• The Court in charge of this case has preliminarily approved the Settlement Agreement and must decide whether to give final approval to the Settlement Agreement. Settlement Payments will be made if the Court gives final approval to the Settlement Agreement, and if there are any appeals, after they are resolved. Please be patient.

Basic Information

1. What is this lawsuit about?
   This lawsuit alleges that Payless, in violation of a federal statute, sent unwanted and unsolicited text messages to cell phone subscribers promoting Payless products. Examples of such text messages were:

   PSST ...Payless Insider, Ur the 1st to know BOGO starts TODAY 9/29! bUY 1 Get One 1/2 off EVERYTHING 866-746-5923 or END3 to Opt-Out Txt fees apply Not @ Shopko

   Or

   Payless thnx U for giving us your number! Show 28147 & get 20% OFF ur next purchase 7/2 -7/27 866-746-5923 or END3 to opt out Txt fees may apply Excludes Shopko.

   The text messages usually originated from shortcodes 242424 or 747474.
   
   The lawsuit has been brought on behalf of a nationwide class of persons who received such messages. Count I of the complaint alleged that the sending of such messages was illegal unless Payless had received the "prior express consent" of the recipients, which the complaint alleged Payless had not received. Count II alleged that Payless had violated certain federal statutes and regulations requiring, among other things, companies not to send text messages to customers who had asked to be placed on the company's Do-Not-Call list. To see a copy of the complaint, click here. No court has determined the correctness of the ultimate position of any of the parties in this lawsuit. Rather, the parties have agreed to settle the lawsuit so as to avoid the uncertainties, the expense, and the diversion of resources from further litigation. The Notice is not an admission by either party as to the strength of the other's position or of any weakness in its own position.
2. Why is this case a class action?
   In a class action, one or more people called Class Representatives (in this case, Mohammad Kazemi), sue on behalf of a group (or a "class") of people who have similar claims. After the parties reached an agreement to settle the case, the Court recognized this as a case that should be treated as a class action for settlement purposes.
3. Why is there a settlement?
   The Court has not decided that the Plaintiff or the Defendant should win this case. Instead, both sides agreed to a settlement. That way, they avoid the cost of a trial, and the Settlement Class Members will get compensation now rather than, if at all, years from now.
4. How do I know if I am part of the settlement?
   The Court decided that everyone who fits this description is a Settlement Class Member:
   

   All persons who received one or more text messages from or on behalf of Payless ShoeSource, Inc. between October 29, 2005 and October 4, 2010.

   
   If you believe you are a Settlement Class Member, you may obtain a claim form by clicking here.
5. What can I get from the settlement?
   Payless has agreed to issue a single use merchandise certificate worth up to $25 to each Settlement Class Member who files an approved claim. Each merchandise certificate will be fully transferable, shall not expire for a period of twelve months from issuance, shall be good for the purchase of any item sold by Payless (at any Payless store in the U.S.), shall be combinable with other gift cards or certificates, shall not require the purchase of any particular product, and shall be useable for the purchase of an item selling for more than $25 as well as items costing less than $25. Such certificates shall not be valid on previous purchases. In the event that a $25 merchandise certificate is used for the purchase of an item costing less than $25 (including applicable taxes), the bearer shall not receive a cash refund or a credit for the unused amount.
   
   If the total amount of approved claims exceeds $6,000,000, claimants will receive merchandise certificates in a lesser proportionate amount.
6. What other benefits are provided by the settlement?
   By whatever amount the value of the merchandise certificates redeemed by Approved Claimants falls short of $5 million, Payless will donate that amount to a tax-exempt charity or charities approved by the Court in the form of $15 merchandise certificates. These charitable payments will be made within three years after the date merchandise certificates are issued to Settlement Class Members.
   
   Additionally, upon the approval of the Settlement, as part of the Settlement, Payless will implement certain specified procedures and safeguards to protect against consumers' receiving unwanted and unsolicited text messages in the future, including not using any lists of cell phone numbers compiled prior to October 4, 2010 to send text messages.
   
   Payless will pay all expenses of giving notice in this case and all charges and expenses of the Settlement Administrator appointed by the Court to administer notice and claims in this case.
7. When will I receive these benefits?
   You will receive these benefits within 90 days after the Settlement Agreement has been finally approved and the time to appeal that approval to a higher court has expired and/or any appeals have been resolved in favor of the Settlement Agreement.
8. I want to be part of the settlement and receive these benefits, what do I do?
   You must submit a timely, truthful, accurate, and properly completed Claim Form. If you do not do so, you will not receive any Settlement Payment. You may obtain a Claim Form by following the instructions below (see Question 17, below). You may either submit the Claim Form online by clicking here or you may print out the Claim Form, fill it out completely and mail it in so that it is received or postmarked no later than February 6, 2012.
9. What am I giving up to receive these benefits?
   Unless you exclude yourself, you are staying in the Settlement Class and agreeing to the Settlement Agreement. Generally, that means that you cannot sue, continue to sue, or be part of a future suit involving the claims raised in this case. In other words, you are agreeing to "release" those claims. Unless you exclude yourself, you are "releasing" these claims, regardless of whether you submit a claim or not.
   
   The Settlement Agreement provides that "Released Claims" means "any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, rights, causes of action, contracts or agreements, extra-contractual claims, damages, punitive, exemplary or multiplied damages, expenses, costs, attorneys' fees and/or obligations (including "Unknown Claims" as defined below), whether in law or in equity, accrued or unaccrued, direct, individual or representative, of every nature and description whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including the law of any jurisdiction outside the United States, against any of the Released Parties, relating to or arising out of any fact, transactions, events, matters, occurrences, acts, disclosures, statements, misrepresentations, omission or failure to act relating to the sending or alleged sending of SMS text messages to persons by or on behalf of Payless ShoeSource, Inc. from October 29, 2005 through October 4, 2010 that were or could have been alleged or asserted in the Action relating to such text messages (including, without limitation, any claims, whether direct, derivative, representative or in any other capacity, arising under federal, state, local statutory or common law or any other law, rule or regulations, including the law of any jurisdiction outside of the United States) that relate in any way to any actual or alleged violation of law, misstatement or omission, breach of duty, negligence or fraud or any other actual or alleged wrongdoing or misconduct in connection with the sending of the said text messages; provided, however, that nothing herein is meant to or shall release any claim anyone may have against VMBC concerning any text messages other than those that are the subject of this Action that VMBC sent on behalf of Payless or any other entity that is under common ownership or control of Collective Brands, Inc."
   
   You can see a complete copy of the Settlement Agreement by clicking here.

Excluding Yourself from the Settlement

If you don't want to receive the benefits from the Settlement Agreement, but you want to keep any right to sue that you may have or you want to continue to sue the Defendant on your own over the claims in this case, then you must take steps to get out. This is called excluding yourself.

By staying in the Settlement Class, you are giving up, among other things, any right you may have under the Telephone Consumer Protection Act ("TCPA"), 47 USC §227, to bring an action, including an action in small claims court, to recover the greater of $500 or your actual monetary loss for each violation you establish of §227(b)(3) of the TCPA relating to the text messages at issue in this suit or to enjoin any such alleged violations under §227(b)(3).

Some Settlement Class members may have registered their telephone number with Payless's internal Do Not Call list and thereafter been sent more than one text message in a 12 month period, which were alleged in Count II of the Complaint to violate 47 USC § 227(c)(5) and 47 CFR § 64.1200(c) and (d). [You can see a complete copy of the Settlement Agreement by clicking here or you can see a copy of the Complaint by clicking here] By staying in the Settlement Class, such class members are giving up, among other things, any right they may have under the TCPA, to bring an action, including an action in small claims court, to recover actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation and/or to enjoin such alleged violation under § 227(c)(5). If you stay in the class, you give up every claim that was brought or that could have been brought against Defendant for sending these text messages.



10. How do I get out of the settlement?
    If you don't want to receive the benefits from the Settlement Agreement, but you want to keep any right to sue that you may have or you want to continue to sue the Defendant on your own over the claims in this case, then you must take steps to get out. This is called excluding yourself.
    
    By staying in the Settlement Class, you are giving up, among other things, any right you may have under the Telephone Consumer Protection Act ("TCPA"), 47 USC §227, to bring an action, including an action in small claims court, to recover the greater of $500 or your actual monetary loss for each violation you establish of §227(b)(3) of the TCPA relating to the text messages at issue in this suit or to enjoin any such alleged violations under §227(b)(3).
    
    Some Settlement Class members may have registered their telephone number with Payless's internal Do Not Call list and thereafter been sent more than one text message in a 12 month period, which were alleged in Count II of the Complaint to violate 47 USC § 227(c)(5) and 47 CFR § 64.1200(c) and (d). [You can see a complete copy of the Settlement Agreement by clicking here or the Complaint by clicking here or by writing to Payless Text Settlement, P.O. Box 360, Philadelphia, PA 19105-0360.] By staying in the Settlement Class, such class members are giving up, among other things, any right they may have under the TCPA, to bring an action, including an action in small claims court, to recover actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation and/or to enjoin such alleged violation under § 227(c)(5). If you stay in the class, you give up every claim that was brought or that could have been brought against Defendant for sending these text messages.
    
    To exclude yourself from the Settlement Agreement, you must send a letter by mail saying that you are a member of the Settlement Class and want to be excluded from Kazemi v. Payless ShoeSource, Inc., Case No. CV 09-5142 MHP (N.D. Cal.). Be sure to include your name, address, your telephone number, the cellular telephone number on which you received the text message(s) in question, your signature and the title of the case, Kazemi v. Payless ShoeSource, Inc. You must mail your exclusion request so that it is postmarked no later than December 6, 2011 to: Payless Text Settlement, P.O. Box 360, Philadelphia, PA 19105-0360.
    
    In order to be valid, any request for exclusion must be received or postmarked no later than December 6, 2011.
11. If I exclude myself, do I still receive benefits from this settlement?
    No, you will not receive anything resulting from the settlement of this case if you exclude yourself. But you will have the right to attempt to sue Defendant over the claims raised in this case, either on your own or as part of a different lawsuit, including by bringing an individual action in Small Claims Court pursuant to 47 U.S.C. § 227(b)(3) or (c)(5). The amount of time the law gives you to sue over such claims (that is, the "statutes of limitation") may or may not have been extended because of this case; however, even if they were extended previously, they will not be extended any further if you exclude yourself. If you want your own attorney to represent you in an individual case, the terms of such representation are a matter for you and your attorney to negotiate. You are not required (and sometimes not permitted) to be represented by an attorney to bring a claim in Small Claims Court.

The Lawyers Representing You

12. Do I have a lawyer in this case?
    The Court has approved John G. Jacobs and Bryan Kolton of Jacobs Kolton, Chtd. and Jeffrey F. Keller and Carey G. Been of Keller Grover, LLP. to be the attorneys representing the class. They are called the "Class Counsel." They believe, after conducting an extensive investigation, that the Settlement Agreement is fair, reasonable, and in the best interests of the class. You will not be charged for these lawyers. If you want to be represented by your own lawyer in this case, you may hire one at your expense.
13. How will the lawyers be paid?
    To date, Class Counsel have not received any payment for their work in prosecuting this Action on behalf of the Settlement Class, nor have counsel been reimbursed for their out-of-pocket expenses. The fees and expenses requested by Class Counsel would compensate them for their efforts in achieving the benefits described above for the benefit of the Settlement Class and for their risk in undertaking this representation on a contingency basis.
    
    At the Final Approval Hearing, Class Counsel will request an award of attorneys' fees of $1.25 million and reimbursement of costs and expenses not to exceed $20,000 for their work on this case, which request Defendant has agreed is reasonable and will not oppose. In advance of the final approval hearing, Class Counsel will file a petition for such payment. The Court may award less than this amount. Under the Settlement Agreement, any amount awarded to Class Counsel will be paid by Defendant in addition to the sums paid to Class Members.
    
    Subject to approval by the Court, Defendant has agreed to pay $5,000 to the representative plaintiff, Mohammad Kazemi, for his services in helping to prosecute this case.
    
    Payment of the incentive award and attorneys' fees and expenses, the administrative costs of the Settlement Administrator and costs of providing notice will be paid by Payless in addition to the benefits provided to the members of the Settlement Class and will not reduce the benefits available to the Settlement Class members or the recipient charities.

Objecting to the Settlement

You can tell the Court that you don't agree with the Settlement Agreement or some part of it. Only those that remain in the Settlement Class may object to the Settlement Agreement. Whether or not you file a claim, you may also object to the settlement. You cannot object if you have opted out of the Settlement Class.

14. How do I tell the Court that I don't like the settlement?
    You can tell the Court that you don't agree with the Settlement Agreement or some part of it. Only those that remain in the Settlement Class may object to the Settlement Agreement. Whether or not you file a claim, you may also object to the settlement. You cannot object if you have opted out of the Settlement Class.
    
    If you're a Settlement Class Member, you can object to the Settlement Agreement if you don't like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter (or legal "brief") saying that you object to the Settlement Agreement in Kazemi v. Payless ShoeSource, Inc. et al., Case No. CV 09-5142 (N.D. Cal.) and clearly identify all your reasons for your objections and attach any materials you rely on for your objections. Be sure to include your name, address, the cellular telephone number on which you received the text message(s) in question, as well as your current telephone number, your signature, and the reasons you object to the Settlement Agreement. You must also specifically identify whether you received a text message of the kind described in the case. If you want to speak at the Final Approval Hearing, you must say so in your objections. At the same time, you must also serve complete copies of your objection papers on both counsel for Defendant and Class Counsel. If you fail to object as specified above, you will be deemed to have waived any objections and will be barred from raising any such objections in this case or any other proceeding. Unless you or your lawyer appear in person at the Final Approval Hearing, or receive a dispensation in advance from the Court for good cause shown, you will not be permitted to appeal any aspect of any Final Order and Judgment the Court might enter.
    
    In order to be considered, any objections must be received or postmarked no later than December 6, 2011. Any objections and supporting materials should be sent to:
    

    Clerk of the Court
    United States District Court for the Northern District of California
    450 Golden Gate Avenue
    16th Floor
    San Francisco, California 94102
    

    AND TO:

    John G. Jacobs, Esq.
    Jacobs Kolton, Chtd.
    122 South Michigan Avenue, Suite 1850
    Chicago, Illinois 60603
    

    AND TO:

    Ian D. Volner, Esq.
    Venable, LLP
    575 7th Street, N.W.
    Washington, D.C. 20004

    
    YOU MAY NOT DO THIS ONLINE.

The Final Approval Hearing

The Court has preliminarily approved the Settlement Agreement and will hold a hearing to decide whether to give final approval to the Settlement Agreement. You may attend and you may ask to speak, but you don't have to.

15. When and where is the Final Approval Hearing?
    The Court has preliminarily approved the Settlement Agreement and will hold a hearing to decide whether to give final approval to the Settlement Agreement. You may attend and you may ask to speak, but you don't have to.
    
    The Court will hold the Final Approval Hearing at 1:30 p.m. on March 23, 2012 in Courtroom 5 on the 17th Floor of the United States Courthouse at 450 Golden Gate Avenue, San Francisco, California 94102. The purpose of the hearing will be for the Court to determine whether the Settlement Agreement should be approved as fair, reasonable and adequate and in the best interests of the Class; to consider the parties' agreement that Class Counsel should be paid $1,250,000 for an award of attorneys' fees and reimbursement of costs and expenses up to $20,000; and to consider the request for an incentive awards to Mr. Kazemi in the amount of $5,000. At that hearing, the Court will be available to hear any objections and arguments concerning the fairness of the Settlement Agreement that have properly been requested, as set forth above.
    
    The hearing may be changed to a different date or time without notice.
    
    You are not required to come to the Final Approval Hearing.
    
    If the Court determines that the Settlement Agreement should be approved as fair, reasonable and adequate and in the best interests of the Class, any Settlement Class members who have not excluded themselves and their representatives are barred from filing any lawsuit asserting any claims against Defendant that relate to the claims discussed above.

Getting More Information

16. How do I get more information?
    The Notice is necessarily an incomplete summary of the Settlement Agreement and its terms. You are free to inspect the court files from 9:00 a.m. until 4:30 p.m. on weekdays at the office of the Clerk of the Court, United States District Court for the Northern District of California, 450 Golden Gate Avenue, 16th Floor, San Francisco, California 94102. You may also see a complete copy of the Settlement Agreement by clicking here or by writing to Payless Text Settlement, P.O. Box 360, Philadelphia, PA 19105-0360. You can call Jacobs Kolton, Chtd., one of the law firms representing the class, toll-free at 1-800-492-1939 or the Settlement Administrator at 1-800-945-9438, if you have any questions. Before doing so, please read the full Notice carefully. You may also fine additional information elsewhere on this website, including in the FAQ section click here.
    
    Do not call or direct any inquiries to the Court, to Defendant or to Defendant's lawyers.
    
    Click Here to Download a Copy of the Settlement Agreement

Filing a Claim

17. How do I file a claim?
    To complete and submit a Claim Form online, click here. You may also print a blank Claim Form, fill it out completely, and mail it in so that it is received or postmarked no later than February 6, 2012. Click here to download a copy of the paper Claim Form.
    
    If you choose to file a paper Claim Form, mail it only to the following address: Payless Text Settlement, P.O. Box 360, Philadelphia, PA 19105-0360. Either format (hard copy or online filing) is acceptable. Online filing is quicker and cheaper. Please mail your Claim Form only to this address or submit it by clicking on the link above.

On any communication concerning this case, you should always provide a telephone number where you can be reached with any questions.

PLEASE DO NOT CONTACT THE COURT OR COUNSEL FOR DEFENDANT ABOUT THIS NOTICE. YOU MAY CALL CLASS COUNSEL AT 1-800-492-1939 OR THE SETTLEMENT ADMINISTRATOR AT 1-800-945-9438.

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