Cubamax Travel, Inc. Settlement

You received a notice because you have a right to know about a proposed Settlement of a class action lawsuit known as Poirier v. Cubamax Travel, Inc., Case No. 1:18-cv-23240-CMA and about all of your options before the Court decides whether to give Final Approval to the Settlement. This website explains the lawsuit, the Settlement, and your legal rights.

Judge Cecilia Altonaga of the United States District Court for the Southern District of Florida is overseeing this case. The person who sued, Stephane Poirier, is called the “Plaintiff.” Cubamax is called the “Defendant.”

To review a copy of the Notice, click here.

The lawsuit alleges that Cubamax Travel, Inc. sent text messages to wireless telephone numbers without consent of the recipients, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and seeks actual and statutory damages under the TCPA on behalf of the named Plaintiff and a class of all individuals in the United States.

Cubamax denies each and every allegation of wrongdoing, liability, and damages that were or could have been asserted in the litigation and that the claims in the litigation would be appropriate for class treatment if the litigation were to proceed through trial.

The Plaintiff’s Complaint, Settlement Agreement, and other case-related documents are posted under the Important Documents page. The Settlement resolves the lawsuit. The Court has not decided who is right.

The Telephone Consumer Protection Act (commonly referred to as the “TCPA”) is a federal law that restricts telephone solicitations and the use of automated telephone equipment.

In a class action, one person called the “Class Representative” (in this case, Plaintiff Stephane Poirier) sues on behalf of himself and other people with similar claims.

All of the people who have claims similar to the Plaintiff’s are Settlement Class Members, except for those who exclude themselves from the class.

The Court has not found in favor of either Plaintiff or Cubamax. Instead, both sides have agreed to a settlement. By agreeing to the Settlement, the parties avoid the costs and uncertainty of a trial, and if the Settlement is approved by the Court, Settlement Class Claimants will receive the benefits described in the Notice. Cubamax denies all legal claims in this case. Plaintiff and his lawyers think the proposed Settlement is best for everyone who is affected.

The Settlement includes all persons who received a text message on their cell phone from Cubamax. Specifically, the Settlement is defined as:

All individuals residing in the United States (i) who were sent a text message (ii) on his or her cellular telephone (iii) using the Nexmo platform (iv) by or on behalf of Cubamax Travel, Inc. (v) promoting one of Cubamax Travel, Inc.’s specials, promotions, and/or locations (vi) from August 8, 2014 through January 3, 2019.

Persons meeting this definition are referred to collectively as the “Settlement Class” and, individually, as “Settlement Class Members.”

Excluded from the Settlement Class are:

1. The district judge and magistrate judge presiding over this case, the judges of the U.S. Court of Appeals for the Eleventh Circuit, their spouses, and persons within the third degree of relationship to either of them;
2. Individuals who are or were during the Class Period agents, directors, employees, officers, or servants of Cubamax or of any affiliate or parent of Cubamax;
3. Plaintiff’s counsel and their employees; and
4. All persons who file a timely and proper request to be excluded from the Settlement Class.

If you are not sure whether you are in the Settlement Class or have any other questions about the Settlement, please call the toll-free number, 1-877-698-3790. You also may send questions to the Settlement Administrator at Cubamax TCPA Settlement Administrator, P.O. Box 4259, Portland, OR 97208-4259.

To fully settle and release claims of the Settlement Class Members, Cubamax has agreed to make payments to the Settlement Class Members and pay for notice and administration costs of the Settlement, attorneys’ fees and expenses incurred by counsel for the Settlement Class, and a service award for Plaintiff (the “Settlement Fund”). Each Settlement Class member who timely files with the Settlement Administrator a valid Claim Form will receive a check for $7.00, less notice and administration costs, attorneys’ fees and expenses, and a service award.

If you qualify for a payment, you must complete and submit a valid Claim Form. You may submit a Claim Form online. You may also download a Claim Form here, or request a Claim Form by calling the Settlement Administrator at 1-877-698-3790. To be valid, a Claim Form must be completed fully, accurately, signed under penalty of perjury, and submitted timely. You must complete your submission online by 11:59 p.m. EST on July 5, 2019 or postmarked no later than July 5, 2019 to the following address:

Cubamax Settlement Administrator
P.O. Box 4259
Portland, OR 97208-4259

Only one Claim Form may be submitted per Settlement Class Member.

Payments to Settlement Class Members will be made only after the Court grants Final Approval to the Settlement and after any appeals are resolved. If there are appeals, resolving them can take time. Please be patient.

If you do not want benefits from the Settlement, and you want to keep the right to sue or continue to sue Cubamax on your own about the legal issues in this case, then you must take steps to get out of the Settlement. This is called excluding yourself—or it is sometimes referred to as “opting out” of the Settlement Class.

To exclude yourself from the Settlement, you must send a timely letter by mail to:

Cubamax Settlement Administrator
P.O. Box 4259
Portland, OR 97208-4259

Your request to be excluded from the Settlement must be personally signed by you under penalty of perjury and contain a statement that indicates your desire to be “excluded from the Settlement Class” and that, absent of excluding yourself or “opting out,” you are “otherwise a member of the Settlement Class.”

Your exclusion request must be postmarked no later than May 21, 2019. You cannot ask to be excluded on the phone, by email, or on this website.

You may opt out of the Settlement Class only for yourself.

No. Unless you exclude yourself, you give up the right to sue Cubamax for the claims that the Settlement resolves. You must exclude yourself from this Settlement Class in order to pursue your own lawsuit.

Unless you opt out of the Settlement, you cannot sue or be part of any other lawsuit against Cubamax about the issues in this case, including any existing litigation, arbitration, or proceeding. Unless you exclude yourself, all of the decisions and judgments by the Court will bind you.

The Settlement Agreement is available here. The Settlement Agreement provides more detail regarding the Releases and describes the Released Claims with specific descriptions in necessary, accurate legal terminology, so read it carefully. You can talk to the law firms representing the Settlement Class listed in FAQ 15 for free, or you can, at your own expense, talk to your own lawyer if you have any questions about the Released Claims or what they mean.

No. You will not get a payment from the Settlement Fund if you exclude yourself from the Settlement.

The Court has appointed the following lawyers as “Class Counsel” to represent all members of the Settlement Class.

You will not be charged for these lawyers. If you want to be represented by another lawyer, you may hire one to appear in Court for you at your own expense.

Class Counsel intend to request up to 18.6% of the value of the Settlement for attorneys’ fees plus reimbursement of reasonable, actual out-of-pocket expenses incurred in the litigation. The fees and expenses awarded by the Court will be paid out of the Settlement Fund. The Court will decide the amount of fees and expenses to award.

Class Counsel will also request that a Service Award of $5,000.00 be paid from the Settlement Fund to the Class Representative for his service as representative on behalf of the whole Settlement Class.

If you are a Settlement Class Member (and do not exclude yourself from the Settlement Class), you can object to any part of the Settlement. To object, you must timely submit a letter that includes the following:

1. A heading that includes the case name and case number— Poirier v. Cubamax Travel, Inc., Case No. 1:18-cv-23240-CMA;
2. Your name, address, telephone number, the cell phone number at which you received text messages from Cubamax;
3. A signed statement stating, under penalty of perjury, that you received one or more text messages from Cubamax and are a member of the Settlement Class;
4. All grounds for the objection, accompanied by any legal support for the objection known to you or your counsel;
5. The number of times in which you have objected to a class action settlement within the five years preceding the date that you filed the objection, the caption of each case in which you have made such an objection, and a copy of any orders related to or ruling on your prior such objections that were issued by the trial and appellate courts in each listed case;
6. The identity of all counsel who represent you, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application;
7. A copy of any orders related to or ruling on your counsel’s or your counsel’s law firm’s prior objections made by individuals or organizations represented by them that were issued by the trial and appellate courts in each listed case in which your counsel and/or counsel’s law firm have objected to a class action settlement within the preceding 5 years;
8. Any and all agreements that relate to the objection or the process of objecting—whether written or verbal—between you or your counsel and any other person or entity;
9. The identity of all counsel (if any) representing you who will appear at the Final Approval Hearing;
10. A statement confirming whether you intend to personally appear and/or testify at the Final Approval Hearing;
11. A list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; and
12. Your signature (an attorney’s signature is not sufficient).

If you wish to object, you must file your objection with the Court (using the Court’s electronic filing system or in any manner in which the Court accepts filings) and mail your objection to each of the following three (3) addresses, and your objection must be postmarked by May 21, 2019.

Objecting is telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object to the Settlement because it no longer affects you.

The Court has scheduled a Final Approval Hearing on June 20, 2019 at 9:00 a.m. in Room 12-2 in the Wilkie D. Ferguson, Jr. United States Courthouse in Miami, FL. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check this website for updates.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider the requests by Class Counsel for attorneys’ fees and expenses and for a Service Award to the Class Representative. If there are objections, the Court will consider them at that time. After the hearing, the Court will decide whether to approve the Settlement. It is unknown how long these decisions will take.

No. Class Counsel will answer any questions the Court may have. However, you are welcome to attend the hearing at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you submitted your written objection on time to the proper addresses and it complies with all the other requirements set forth above, the Court will consider it. You may also pay your own lawyer to attend the hearing, but it is not necessary.

You may ask the Court for permission to speak at the Final Approval Hearing. To do so, your timely filed objection must include a statement of whether you intend to appear at the Final Approval Hearing (see FAQ 17).

You cannot speak at the hearing if you exclude yourself from the Settlement.

If you are a Settlement Class member and do nothing, meaning you do not file a timely Claim, you will not get benefits from the Settlement. Further, unless you exclude yourself, you will be bound by the judgment entered by the Court.

This website summarizes the proposed Settlement. You are urged to review more details in the Settlement Agreement. You may write with questions to the Settlement Administrator at Cubamax Settlement Administrator, P.O. Box 4259, Portland, OR 97208-4259 or call the toll-free number, 1-877-698-3790.