WeCare RG, Inc. et al. v. Giftly Inc.

A class action is a lawsuit in which a few representative plaintiffs, such as WeCare RG, Inc. d/b/a Café Ole in the Valley, Gracie Baked LLC, and Andrea Schoenbein d/b/a Second Chance Treasures (the “Named Plaintiffs” and “Class Representatives” in this class action), argue that they should be allowed to bring a lawsuit on behalf of themselves and other similarly situated persons (i.e., the class) that they contend have similar claims against the Defendant. The Named Plaintiffs, the Court, and counsel appointed to represent the class (“Class Counsel”) all have a responsibility to make sure that the interests of all class members are adequately represented.

Class members are not individually responsible for the attorneys’ fees or litigation expenses. In a class action settlement, the plaintiffs’ attorneys’ fees and litigation expenses are paid from a settlement fund and must be approved by the Court.

When a class enters into a settlement with a defendant, such as this Settlement with Defendant, the Court will require that the members of the class be given notice of the lawsuit, the settlement, your legal rights, an opportunity to be heard, the benefits of the settlement, and who is eligible to receive them. The Court then conducts a hearing to determine, among other things, if the settlement is fair, reasonable, and adequate.

You received this Notice because records indicate that you may be a member of the Settlement Class. If you are a potential Settlement Class Member, you have important decisions to make and you may be entitled to money as part of the Settlement. You are not being sued.

Giftly is an online service that provides a way to send small sums of money to friends with a “suggestion” of how to spend it. Once an individual receives a Giftly gift, he or she must go to Giftly’s website and redeem the gift in the form of a Visa gift card, a deposit to a bank account, or a credit to a Paypal account. After a Giftly gift recipient receives the funds associated with their gift, they may spend the money at the suggested merchant or however they may choose. Giftly’s website names and provides information for thousands of businesses across the United States. The lawsuit alleges that Giftly’s use of those business names has injured those businesses and violated federal and state laws. Defendant denies all of the Named Plaintiffs’ claims, denies violating any law, and asserts that, at all times, its actions and business practices have been lawful and appropriate. Defendant is settling this action to avoid the cost and distraction of protracted litigation.

Class Counsel (identified below in response to Question 18) have investigated the facts and law regarding the claims at issue in this litigation, as well as Defendant’s potential defenses. After lengthy, detailed negotiations with counsel for Defendant to reach the Settlement, Class Counsel believe the Settlement is in the best interests of the Settlement Class and support its approval. In addition, the Named Plaintiffs also support approval of the Settlement.

Defendant denies the allegations against it and denies that it did anything wrong. By agreeing to settle, Defendant is in no way admitting any liability on any of the allegations or claims, nor that this case can or should proceed as a class action if the litigation went forward.

The parties have agreed to settle the Action in its entirety without any admission of liability by Defendant to avoid burdensome and costly litigation. The parties intend this Settlement Agreement to bind Named Plaintiffs, Defendant, and all Settlement Class Members who do not timely and properly exclude themselves from this Settlement.

In a Preliminary Approval Order, dated April 28, 2023, the Court defined the Settlement Class as:

All businesses or entities, and/or any individuals with any ownership interest in such entities, in the United States that, without their agreement, were listed on Defendant Giftly Inc.’s website, and/or such subclasses as the Court may deem appropriate. Excluded from the Settlement Class are Defendant, its parents, subsidiaries and affiliates, and federal governmental entities and instrumentalities of the federal government and any judicial officer presiding over the Action, and any member of his or her immediate family and judicial staff.

You will not be part of the Settlement if you exclude yourself.

A simple way to see if you are included is to search for your business on Giftly.com at https://www.giftly.com/gift-cards. If you are still not sure whether you are included, you can ask for free help. You can call the Class Counsel (identified below) or visit the Settlement Website (www.giftlymerchantadvertising.com) for more information.

Named Plaintiffs, on behalf of themselves and Settlement Class Members, and Defendant have agreed to settle this case by dismissing this Action and discharging the Released Claims against the Releasees in exchange for Giftly to: (1) provide a financial benefit in the form of an advertising program of up to $1,000 to each Settlement Class Member, not exceeding a total of $500,000; (2) assist Plaintiffs in administering the settlement by creating a settlement website and notifying merchants about the settlement; (3) abide by or alter certain business practices and communications on its website (“Commitments”); (4) pay Class Counsel’s fees and costs up to the amount of $100,000; and (5) pay service awards to the Named Plaintiffs up to a total of $9,000 to be divided evenly between each Named Plaintiff.

With respect to the first category, Giftly will create an advertising program designed to drive internet traffic to a registered and enrolled Settlement Class Member’s website, online gift card program, or other online listing reasonably related to the merchant’s business (“Merchant Advertising Program”). Giftly will make available up to $500,000 to be used for the Merchant Advertising Program.  If 1,001 or more merchants register for the Merchant Advertising Program, Giftly will make available an equal portion of the $500,000 fund to each registered merchant.  If 1,000 or fewer merchants enroll in the Merchant Advertising Program, Giftly will make available to each registered merchant an equal portion of the $500,000 fund but also capped at $1,000 for each merchant.  The Merchant Advertising Program registration forms must be returned by September 25, 2023.

Notwithstanding the release below, this Settlement Agreement does not preclude Settlement Class Members from requesting reimbursement when the member reasonably accepts payment in the form of a valid gift from Giftly’s website as Giftly currently offers at https://www.giftly.com/support/merchant.  

In addition, the Settlement Agreement does not preclude you from asking to remove your business from Giftly’s website on www.giftly.com/support/merchant_search. 

The “Released Claims” are:

any and all manner of claims, demands, rights, actions, suits, and causes of action, whether class, individual, or otherwise in nature, damages whenever incurred, liabilities of any nature whatsoever, including costs, losses, injunction, declaration, contribution, indemnification or any other nature of legal or equitable relief, expenses, penalties, injuries, and attorneys’ fees that Releasors, or any one of them, whether directly, representatively, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have against the Releasees, whether known or unknown, relating in any way to the conduct by Releasees alleged in the Action whether already acquired or acquired in the future, including but not limited to (1) the Lanham Act, 15 U.S.C. § 1125 et seq.; (2) any federal or state unfair competition, unfair practices, false advertising, consumer fraud, deceptive business, or trade practice laws; or (3) common law or statutory unfair competition claims, whether such claims are known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, regardless of legal theory and regardless of the type or amount of relief or damages claimed, including any claims arising out of, resulting from, or in any way related to any conduct regardless of where it occurred at any time.  The Released Claims also include, but are not limited to, all claims asserted or which could have been asserted in the Action relating to or arising out of the facts, occurrences, transactions, statements, or other matters alleged in the Action.

The Releasees are:

Giftly and to all of its respective past and present, direct and indirect, subsidiaries, joint ventures, and Affiliates including but not limited to each and all of the present and former principals, partners, officers, directors, employees, representatives, insurers, attorneys, shareholders, heirs, executors, administrators, agents, and assigns of each of the foregoing, including but not limited to Timothy Bentley and any financial partners supporting Giftly’s business.

The Commitments provided under the Agreement are generally described as follows:

1. Communications to Giftly Gift Recipients. Giftly will more clearly communicate to the recipient the following: (1) the recipient must redeem on Giftly’s website; (2) after redeeming, the recipient is encouraged to use the funds at the suggested merchant; and (3) the funds can be used in any way.  

2. Gift Purchaser Experience. Giftly will more clearly communicate to the buyer the following: (1) the gift is not a gift card issued by the merchant; (2) the recipient must redeem on Giftly’s website to receive the funds; (3) the recipient is encouraged to use the funds at the suggested merchant; and (4) the funds can be used in any way.  

3. Merchant Removal Option. Giftly will continue to reasonably honor a merchant’s request to be removed as such a merchant. 

4. General Revisions to Language Used on Website. Giftly will not use certain identified text phrasing that Named Plaintiffs allege is misleading unless Giftly meets certain conditions that Named Plaintiffs believe adds appropriate clarification.

5. Merchant Registration. Certain merchants choose to register with Giftly.com.  Where a registered merchant has opted in and provided an e-mail address, and where consistent with applicable law as reasonably determined by Giftly, Giftly will notify via e-mail such registered business each time a customer purchases a gift where that merchant is the suggested business where the gifted funds should be spent.

6. Merchant Registration Solicitation. Giftly currently places the language: “Is this your business? Claim your business to update business information, customize this listing, and more!” below the description of the business.  Giftly agrees to place this language, a link to this language, or any substantially similar language, near the “[Business Name] Description” section headline or, if that section is removed, in another reasonably prominent place.

7. FAQ Adjustment. Giftly will remove this question from the FAQs: “What makes a Giftly for [Business Name] better than a [Business Name] gift card.”  Additionally, Giftly will not include any substantially similar question in its FAQs in the future.

If you qualify as a member of the Settlement Class, do not opt out of the Settlement Class, and submit a Merchant Advertising Program registration form electronically by the Court-established deadline, then you will be a Settlement Class Member that is entitled to participate in the Merchant Advertising Program.

All Settlement Class Members will also benefit from the Commitments provided in the Agreement and explained above.

If the Court approves the Settlement Agreement, the operation of the Merchant Advertising Program will be available to Settlement Class Members after the Effective Date, as defined in the Settlement Agreement.

If you qualify as a member of the Settlement Class, you will remain a Settlement Class Member unless you elect to be excluded. By staying in the Settlement Class, you will remain eligible to submit a registration form and participate in the Merchant Advertising Program. Registration forms must be completed and submitted electronically or by a date to be set by the Court if it approves the Settlement.

If the Settlement is approved and becomes final, and if you remain in the Settlement Class, you will give up your right to individually sue the Releasees related to the Released Claims (defined above). That means, among other things, that you cannot sue, continue to sue, or be part of any other lawsuit against Releasees regarding any and all of the Released Claims (see Question 8 for further information). It also means that all of the Court’s rulings will apply to you and legally bind you, whether favorable or unfavorable to the Settlement Class.

The above description of the claims you are giving up against Releasees is only a summary. Unless you exclude yourself, you are “releasing” those claims regardless of whether you submit a Claim Form. If you wish, you can review the entire Settlement Agreement, including the definitions of terms such as “Releasees,” “Releasors,” and “Released Claims,” in Paragraphs 12-16 of the Settlement Agreement, which may be obtained on the Settlement Website (www.giftlymerchantadvertising.com) or by contacting Class Counsel at the address or telephone number below.

If the Settlement is not approved, the Agreement will become null and void, shall be of no further force or effect, and shall not be used, cited, or referred to for any purposes whatsoever in the Action or in any other case or controversy. This Action will then proceed as if the Settlement Agreement had not been entered into.

If you do not want to remain in the Settlement Class and do not want a payment from the Settlement, then you have the right to request exclusion from the Settlement Class. This is called “opting out” of the Settlement Class.

However, if you want to remain in the Settlement Class but simply wish to remove your business from Giftly’s website, you may request removal by visiting www.giftly.com/support/merchant_search. 

You can exclude yourself, or “opt out,” by sending a written “Request for Exclusion” to Class Counsel, postmarked no later than September 25, 2023. Your written request must be signed by the person or entity requesting exclusion or his, her, or its authorized representative, state the name, address, phone number, and the last four (4) digits of a tax ID of the individual or entity of that person or entity, that your business’s information was published on Giftly’s website, and state that “I wish to opt out from the Giftly settlement.”  You cannot exclude yourself by telephone. You must do so by regular mail.  The request must be mailed to the Class Counsel at:

Pollock Cohen LLP

1500 Chestnut St. Suite 2 #2926

Philadelphia, PA 19102

A Request for Exclusion that: (1) does not include all of the foregoing information; (2) does not contain the proper signature; (3) is sent to an address other than the one designated above; or (4) is not sent within the time specified, shall be invalid, and the person or entity filing such an invalid request shall be a Settlement Class Member and shall be bound by the Settlement, if approved. All persons or entities who submit valid and timely Requests for Exclusion in the manner set forth in this paragraph shall have no rights under the Settlement Agreement, cannot object to the Settlement, are not eligible to get any benefit offered by the Settlement, including but not limited to the Merchant Advertising Program, and shall not be bound by the Settlement Agreement or the Judgment.

You can still benefit from this Settlement Agreement and request removal from Giftly’s website. If you wish to remove your business from Giftly’s website, you do not need to send a “Request for Exclusion.”  Instead, please visit www.giftly.com/support/merchant_search. 

If your business has reasonably accepted payment in the form of a valid gift from Giftly’s website, you may request reimbursement by contracting Giftly at https://www.giftly.com/support/contact-us or by emailing support@giftly.com.

If you are a Settlement Class Member and do not opt out, you can object to all or any part of the Settlement, including the proposed Merchant Advertising Program, as well as any request for attorneys’ fees and/or expenses, and/or any request for service awards for the Named Plaintiffs. You can explain the reasons for your objection, and the Court will consider your views.

Your objection must be in writing, must identify the full business name, address, telephone number, and the last four digits of the objector’s tax ID; the case name and number; a statement of the objector’s basis for any objections to the Settlement; a statement advising whether the objector plans to address the Court at the Final Approval Hearing and any legal briefs, papers or memoranda the objector proposes to submit to the Court; and, if the objector is represented by counsel, the name and address of his or her counsel. Any person or entity that fails to object in the manner set forth in this Notice shall be deemed to have waived his, her, or its objections and will forever be barred from making any such objection to any aspect of the Settlement.

The address for filing and mailing objections are:

Pollock Cohen LLP

1500 Chestnut St. Suite 2 #2926

Philadelphia, PA 19102

Objecting is simply telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you remain in the Settlement Class and do not exclude yourself from the Settlement. Excluding yourself from a Settlement is telling the Court that you do not want to be a part of the Settlement or the Settlement Class. If you exclude yourself from the Settlement, you have no right to object to the Settlement because it no longer affects you.

The Court has appointed the firms listed below as Class Counsel to represent you and the Settlement Class in this case:

Raphael Janove
POLLOCK COHEN LLP
111 Broadway, Suite 1804
New York, NY 10006
Tel:  (212) 337-5361

If you want to be represented by your own lawyer, you may hire one at your own expense.

Class Counsel will apply to the Court for payment of its attorneys’ fees and expenses. You will not otherwise be charged for Class Counsel’s services. Class Counsel will request attorneys’ fees for themselves and payment of the costs and expenses they have incurred in prosecuting the Action on behalf of the Settlement Class in the amount of $100,000. The hearing on Class Counsel’s request for attorneys’ fees and payment of costs and expenses will take place at the Fairness Hearing, discussed below.

Class Counsel may also request awards to the Class Representatives, as WeCare RG, Inc. d/b/a Café Ole in the Valley, Gracie Baked LLC, and Andrea Schoenbein d/b/a Second Chance Treasures, for their assistance in prosecuting the Action on behalf of the Settlement Class, in an amount not to exceed $3,000 for each Class Representative. The hearing on the request for the Class Representatives’ service awards will take place at the Final Approval Hearing, discussed below.

This is Only a Summary of the Request for Attorneys’ Fees, Payment of Costs and Expenses, and Service Awards to the Class Representatives. The Motion in Support of these requests will be on file with the Court by August 25, 2023 and will be available at the Settlement Website (www.giftlymerchantadvertising.com).

The Court will hold the Final Approval Hearing on October 30, 2023. The Final Approval Hearing will take place either virtually by Zoom Remote Videoconference, or in person at the United States District Court for the Eastern District of Pennsylvania, Courtroom 10-A, 601 Market Street, Philadelphia, PA 19106. IF POSSIBLE, THE DECISION WHETHER THE FINAL APPROVAL HEARING WILL TAKE PLACE VIRTUALLY OR IN PERSON WILL BE MADE NO LATER THAN OCTOBER 16, 2023, AND WILL BE POSTED AT THE SETTLEMENT WEBSITE (www.giftlymerchantadvertising.com). IF THE FINAL APPROVAL HEARING WILL BE HELD VIRTUALLY, THE SETTLEMENT WEBSITE WILL POST CONFERENCING INFORMATION.

At this hearing, the Court will consider whether the Settlement, including the proposed plan of distribution, is fair, reasonable, and adequate. The Court will take into consideration any written objections filed in accordance with the instructions in this Notice. The Court also may listen to people who have properly indicated, within the deadline identified above, a desire to speak at the hearing, but decisions regarding the conduct of the hearing will be made by the Court. The Court will also decide whether to approve Class Counsel’s request for attorneys’ fees and expenses and service awards to the Named Plaintiffs. We do not know how long the hearing will take or whether the Court will make its decision on the day of the hearing or sometime later.

You should be aware that the Court may change the date, time, and/or format (i.e., virtually or in person) of the Final Approval Hearing. Thus, if you want to attend and/or participate at the hearing, you should check either on the Settlement Website (www.giftlymerchantadvertising.com) or with Class Counsel beforehand to be sure that the date, time, and/or format has not changed.

No. Class Counsel will answer any questions the Court may have. You are, however, welcome to attend at your own expense. If you file an objection, you do not have to attend or participate at the Fairness Hearing to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also hire your own lawyer to attend, but you are not required to do so.

Yes. Anyone can attend the Fairness Hearing and watch. If you want to appear at the Fairness Hearing and object, in person (or virtually if that is how the Fairness Hearing will be held) or through an attorney hired at your own expense, you need to file a written Notice of Intent to Appear with the Court.

This Notice summarizes the Settlement. More details are in the Settlement Agreement. You can get a complete copy of the Settlement Agreement at the Settlement Website (www.giftlymerchantadvertising.com). You may also write to Class Counsel at the address in Question 20 or giftly-settlement-administration@pollockcohen.com, or call the Claims Administrator at 646-201-5523.

Complete copies of public pleadings, Court rulings, and other filings are available for review and copying at the Clerk of Court’s office. The address is: United States District Court for the Eastern District of Pennsylvania, 601 Market Street, Philadelphia, PA 19106.

Please do not contact the Court or the clerk’s office regarding this Notice or for additional information.