NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT
TO: ALL POTENTIAL CLASS MEMBERS WHO PURCHASED OR OTHERWISE PROVIDED CONSIDERATION FOR NGC-DESIGNATED "FIRST STRIKES" U.S. BULLION COINS.
THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE READ THE COMPLETE NOTICE CAREFULLY.
I. Purpose of this Notice
There is now pending in the United States District Court for the Southern District of Florida, Miami Division, a class action lawsuit entitled Thomas Francisco v. Numismatic Guaranty Corporation of America d/b/a NGC, Case No.: 06-61677-CIV-MARTINEZ-BANDSTRA (the "Litigation"). This Notice explains the nature of the Litigation, general terms of the proposed settlement, and informs you of your legal rights and obligations.
Thomas Francisco ("Plaintiff" or "Class Representative") filed a class action lawsuit against Numismatic Guaranty Corporation of America d/b/a NGC ("Defendant") on behalf of the Class described above. Plaintiff alleged claims against Defendant in connection with United States bullion coins designated as "First Strikes" by NGC. Plaintiff alleged that NGC was aware that promoters and sellers of these bullion coins, designated as "First Strikes" by NGC, improperly informed the coin buying public that the designation of these coins were among the first coins struck by the United States Mint, and therefore, were worth more money than identical coins that did not carry NGC’s "First Strikes" designation. Plaintiff alleged that Defendant violated the State of Florida’s Deceptive and Unfair Trade Practices Act. Defendant denied all allegations and claims, and asserted affirmative defenses.
Plaintiff and Plaintiff’s Counsel have investigated and evaluated the claims asserted in the Litigation and have determined that the settlement detailed herein is fair, reasonable, and adequate. The incremental revenue NGC was paid for its "First Strikes" designation program was less than $90,000. Because the designated coins may have been resold to third parties, class members are difficult to identify, and the expense of distributing the fund could consume the fund itself, so payment of the settlement proceeds to a charity is appropriate. All parties recognize and acknowledge the uncertainty, risks, difficulties, delays, and expenses involved in litigation.
The court has determined that this Litigation should proceed as a class action, for purposes of settlement only, with the Plaintiff as the representative of the Class, and has found that the proposed settlement has apparent sufficient merit to proceed.
II. Class Members
The Court has conditionally ruled that the Litigation may be maintained on behalf of the following:
All persons who purchased and or otherwise provided consideration for NGC-designated "First Strikes" U.S. bullion coins.
Excluded from the Class Members are any entity in which NGC has a controlling interest; NGC’s directors, officers, and employees; Plaintiff’s and NGC’s attorneys and all employees of said attorneys and their respective law firms; The Honorable Jose E. Martinez, United States District Judge, and The Honorable Ted Eugene Bandstra, United States Magistrate Judge; members of their immediate families; and all other persons who timely and validly request exclusion from the Class in compliance with the requirements of this notice.
Non-excluded persons and entities that fall within the foregoing definition are referred to as "Class Members."
III. Settlement Benefit for Class Members
If the Court ultimately approves this settlement, Defendant has agreed to contribute $650,000.00, net of fees and costs as described below, to the American Numismatic Association ("ANA"), or such other not-for-profit entity (the "Charity") as the Plaintiff and Defendant ("Parties") may agree and the Court may approve.
IV. Dismissal of Litigation, Entry of Judgment and Release of Claims
If the Court approves this settlement, it will enter a judgment that will dismiss the Litigation on the merits and with prejudice as to all Class Members who have not requested to be excluded. All Class Members who do not validly and timely request to be excluded from this settlement shall be forever barred from prosecuting their own lawsuits and shall be deemed to have released Defendant and each of its past or present officers, directors, employees, agents, representatives, attorneys, parents, subsidiaries, affiliates, and each of its predecessors, successors, heirs and assigns from any and all claims, rights, demands, causes of action, suits, debts, liens, contracts, liabilities, agreements, costs, expenses or losses of any kind whatsoever that any Class Member has or may claim to have against such persons or entities which are based upon, arising out of, or in any way relating to any of the acts, omissions or other conduct that has been alleged in the Litigation.
V. Attorneys’ Fees and Costs
Plaintiff’s Counsel have not received payment for their services, nor have they been reimbursed for any out-of-pocket expenses, in connection with this Litigation. If the Court approves this settlement, Plaintiff’s Counsel will ask this Court to award them attorneys’ fees and costs in an amount not to exceed thirty percent (30%) of Defendant’s $650,000.00 contribution to the ANA or other Charity, which amount shall be deducted from Defendant’s contribution. Additionally, Plaintiff’s Counsel will ask the Court to award the Plaintiff $7,500.00 for his time and effort and as reimbursement of expenses related to this Litigation, which will also be deducted from Defendant’s contribution. Defendant shall not be required to pay additional fees other than those awarded by the Court and disbursed from the Settlement Fund. Defendant has agreed to pay all costs associated with this settlement, including the class notice and costs of administering the settlement in an amount not to exceed $25,000.00. If the costs associated with class notice and administering this settlement exceeds $25,000.00, costs in excess of that amount will be deducted from Defendant’s contribution after approval by class counsel or by the Court. Class Members will not be personally liable for those attorney’s fees and costs or the payment to the Plaintiff.
VI. Rights and Options of Class Members
A. Remain a Class Member
1. If you do not request exclusion from the Class, you will remain a Class Member. Plaintiff and Plaintiff’s Counsel will represent your interests in connection with this settlement. You, however, will not be charged for the services or expenses of Plaintiff’s Counsel. Plaintiff’s Counsel include, as co-lead counsel, Lipcon, Marguiles & Alsina, P.A., Kozyak Tropin & Throckmorton, P.A., and the Law Office of David H. Pollack, P.A.
2. If this settlement is not granted final approval by the Court, or this settlement is granted final approval but the judgment does not become final, the certification of the Class will be vacated and the Litigation will continue as if no proposed settlement has been reached.
3. As a Class Member, you will be bound by any judgment or other disposition of the Litigation. Furthermore, you and your heirs, executors, administrators, representatives, agents, partners, successors and assigns, will be deemed to have agreed to the terms of this settlement and the release set forth in Section IV, above.
B. Opt-Out of the Settlement:
You have the right to opt-out of this Settlement. If you opt-out of this Settlement, you will not be bound by or subject to any judgment or settlement of the Litigation. If you wish to opt-out, you must identify the NGC Certification Number for each and every coin you contend was designated by NGC as a "First Strikes" U.S. bullion coin, for which you claim you were misled into believing was one of the first coins struck off a new die, mail a signed letter requesting exclusion to Tucker Ronzetti, Esq., Kozyak Tropin & Throckmorton, P.A., 2525 Ponce de Leon Boulevard, 9th Floor, Coral Gables, Florida 33134, post-marked on or before November 13, 2007. If you do not submit a timely opt-out request that complies with these requirements, your opt-out request will be deemed invalid and you will not be excluded from the Class and will be bound by any judgment or final disposition as a Class Member as described above.
C. Object to the Settlement
You have the right to object to, or comment on, this settlement as set forth in Section VII.B., below.
VII. Final Settlement Hearing and Settlement Objections
A. Settlement Hearing
On December 13, 2007, a public Fairness Hearing will be held before The Honorable Jose E. Martinez in the United States District Court for the Southern District of Florida – 301 North Miami Avenue, Miami, FL 33128. At the Fairness Hearing, the Court will determine: (1) whether this Settlement of the Litigation as set forth in the Class Action Settlement Agreement is just, fair, reasonable and adequate for the Class and should be granted for final approval; (2) whether certification of the Class should be made final; (3) whether the Court should enter the proposed judgment dismissing the Litigation with prejudice; (4) whether the Court should award Plaintiff’s Counsel attorneys’ fees and costs in the amount set forth above, or some lesser amount; and (5) whether the Court should award Plaintiff $7,500.00 for his time, efforts, and expenses in the Litigation. You are not required to attend the Fairness Hearing.
B. Objection Procedure and Deadline
1. If you are a Class Member, you have the right to intervene in or object to this Settlement. To do so, you must submit your written statement setting forth (1) your name, address, telephone number and e-mail address; (2) a reference to the Litigation (i.e. Francisco v. Numismatic Guaranty Corporation of America d/b/a NGC, Case No.: 06-61677-CIV-MARTINEZ-BANDSTRA); (3) the identify of the U.S. bullion coins you purchased that was designated by NGC as "First Strikes," specifically identified by the NGC Certification Number for each U.S. bullion coin; (4) submit proof that you purchased the U.S. bullion coin designated by NGC as a "First Strikes" coin; (5) provide an affidavit that you suffered a loss due to your understanding that NGC’s "First Strikes" designation meant one of the first coins struck off a new die, and (6) your objections, comments and arguments to:
Clerk of the United States District Court for the Southern District of Florida
301 North Miami Avenue
Miami, Florida 33128
You must also mail or otherwise deliver identical copies of your written submission to
Tucker Ronzetti, Esq.
Kozyak Tropin & Throckmorton, P.A.
2525 Ponce de Leon, 9th Floor
Coral Gables, FL 33155
And
NORRIS, McLAUGHLIN & MARCUS, P.A.
Attn: Edward G. Sponzilli, Esq.
721 Route 202-206
Bridgewater, New Jersey 08807
The Court must receive your written objection on or before November 13, 2007, and copies must be delivered to Plaintiff’s Counsel and Defendant’s Counsel no later than November 13, 2007 or, if mailed, post marked no later than November 13, 2007. Your submission to the Court must include a certification that you have caused identical copies to be delivered to Plaintiff’s Counsel and Defendant’s Counsel on or before November 13, 2007 (or mailed to them via first class mail on or before November 13, 2007). You cannot object if you have opted out of the Class. Only those that remain in the Class may object to this settlement.
2. You may also attend the Fairness Hearing either in person or through an attorney retained by you at your own expense. You may ask to be heard by the Court at the Fairness Hearing. In order to be heard, however, you must have submitted a written objection in compliance with paragraph (1), above, and, include in your comments a statement that you intend to appear and wish to be heard at the Fairness Hearing.
VII. Additional Information and Important Dates
A. Additional Information
The description of the Litigation set forth in the Notice is general and does not cover all of the issues in the proceeding thus far. If you have additional questions, you can contact Plaintiff’s Counsel, visit the website or see the complete file by visiting the Clerk of the United States District Court for the Southern District of Florida, 301 North Miami Avenue, Miami, Florida 33128. The Clerk will make the file relating to the Litigation available to you for inspection and copying at your own expense.
B. Deadline and Dates to Remember
November 13, 2007 is the deadline to opt-out of this settlement.
November 13, 2007 is the deadline for filing an intervention / objection.
December 13, 2007 is the Final Hearing date.
DO NOT CALL THE COURT. COURT PERSONNEL CANNOT RESPOND TO QUESTIONS REGARDING THIS CASE.
Dated: August 1, 2007


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