<< Date: Wed, 11 Oct 2000 19:34:39 -0700
From: Settlement Admin <email@example.com>
Subject: Notice of Pendency of Class Action and Proposed Settlement
To: Russ Stringham <firstname.lastname@example.org>
X-MIME-Autoconverted: from quoted-printable to 8bit by www35.web2010.com id UAA16794
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
HANK BARBER, et.al. ] Case Number 806372
vs. ] Class Action
BUY.COM INC. ]
NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT
THIS NOTICE MAY AFFECT YOUR RIGHTS --- PLEASE READ IT CAREFULLY
If you are a consumer who, during the period February 5, 1999, through and including February 8, 1999, purchased or attempted to purchase a Hitachi Superscan 753 computer monitor from Buy.com Inc. for $164.50 and who have been unable to do so because Buy.com, Inc. refused to provide the product in question at that price, you may be a member of the Settlement Class described herein.
THIS NOTICE IS NOT AN EXPRESSION BY THE COURT OF AN OPINION CONCERNING THE MERITS OF ANY CLAIM OR DEFENSE OR THE TRUTH OF ANY OF THE ALLEGATIONS OF THE PARTIES
1. On or about March 4, 1999, the plaintiffs in this matter filed a proposed class action lawsuit against defendant Buy.com. The lawsuit alleged that the defendant had offered items for sale on its Website at a substantially reduced price, and then had refused to consummate sales at the price indicated. In particular, it was alleged that a Hitachi Superscan 753 computer monitor was for sale at $164.50 for a three day period and that the defendant refused to sell that item for that price. In the alternative, the plaintiffs alleged that if the posting of the $164.50 price was an error, the error amounted to negligence in that the defendant did not have sufficient safeguards in place to discover an inaccuracy in pricing.
2. Buy.com denied and continues to deny all of the allegations in the complaint. Specifically, Buy.com contends that the listing of the Hitachi Superscan monitor at a price of $164.50 was a data entry error, and that the intended price was $564.50. Buy.com further contends that the error was not the result of negligence in that it had sufficient safeguards in place, and this inaccuracy was the result of a clerical error in incorrectly reviewing a printed price report.
3. On September 22, 2000, the court granted preliminary approval of an opt-out class comprised of consumers as described above pursuant to California Civil Code section 382 and the California Consumers Legal Remedies Act. An opt-out settlement means that individuals who do not wish to participate in the settlement process and share in the settlement proceeds may remove themselves from the action and proceed on their own to seek legal redress if they so desire. Any person who elects to opt-out of this settlement will not share in the settlement proceeds.
a. The distribution of settlement proceeds to individual claimants will begin once the settlement is approved and final. If you wish to object to this settlement, you must follow the procedures described in paragraphs 11 and 12 below, by the objection postmark deadline.
Terms of the Settlement
4. Class counsel and counsel for Buy.com have reached a proposed settlement which has obtained preliminary approval of the Court. The proposed settlement provides for payment of the sum of five hundred seventy five thousand dollars ($575,000) to a settlement fund. In addition, Buy.com has agreed to maintain improved operating procedures to (1) reduce the risk of inadvertent pricing errors; (2) improve its customer service department; and (3) reduce the possibility that any customer might misconstrue an acknowledgment of order from Buy.com to be an acceptance of contract. These modifications include, but are not limited to, additional verification of pricing changes, better accessibility of management to sales and order reports, new billing procedures, and changes in the Company's form acknowledgment of receipt of order and form Terms and Conditions. Defendant shall maintain these policies in effect while offering merchandise and/or services for sale on the Internet to the general public. Defendant may change such policies in response to changing market conditions or for any other reason without notice or leave of Court provided that any policy change, deletion, or addition results in better procedures for achieving the three goals set forth in this paragraph than existed as of February 5, 1999.
5. In exchange for the monetary payment to the settlement fund and the agreement to modify its operating procedures, all members of the class who do not opt-out of the settlement shall release and shall conclusively be deemed to have given full general releases of Buy.com and its employees, representatives, administrators, attorneys, and insurers contributing to the settlement (in their capacity as insurers for Buy.com), lenders, shareholders, officers, directors, divisions, affiliates, partnerships, partners, parent and/or subsidiary corporations, assigns, heirs and successors in interest and each of them, from any and all claims, demands and causes of action arising out of, connected with or incidental to the subject matter set forth in the class action lawsuit or any other complaint wherever and whenever filed. This release includes a waiver of the provisions, rights, and benefits of California Civil Code section 1542 and any similar, comparable, or equivalent law of any state or territory of the United States or principle of common law. In that regard, all members of the class who do not opt-out of the settlement waive California Civil Code section 1542, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR
Members of the class should understand that the facts for which this release are given may hereafter turn out to be other than or different from the facts now believed to be true, but that nonetheless, each member of the class who does not opt-out of the settlement accepts and assumes such risk and agrees that this release shall be and remain in all respects effective and not subject to termination or rescission by virtue of any such difference in facts.
This settlement is the result of extensive negotiations between counsel after Class Counsel engaged in substantial investigation, document review and discovery. Settlement discussions were supervised by the Hon. Barnett Cooperman (Ret.).
6. The amount each class member will receive is not known at this time. It will depend upon several items, including the number of class members who opt-out of the settlement. The settlement fund, less Court-approved attorneys' fees, costs, expenses and reimbursements, shall be equally divided among class members. Each class member shall receive one share of the fund, regardless of the number of monitors a class member attempted to purchase.
If you do not opt-out of the settlement, your share of the settlement proceeds will be mailed to the billing address you gave for the credit card you used in attempting to purchase a Hitachi monitor from Buy.com.
NO CLAIM FORM OR OTHER ACTION ON YOUR PART IS NECESSARY.
If your mailing address has changed since February 8, 1999, you must send an e-mail to email@example.com. Your e-mail must contain your name, former mailing address and new mailing address.
Class Counsel a nd Class Representatives
7. The court has appointed the following Class Counsel: Louis M. Marlin of Marlin & Saltzman, 203 N. Golden Circle Drive, Suite 310, Santa Ana, CA; and Gary Sodikoff, Attorney at Law, 219 E. Washington Avenue, Santa Ana, CA 92701. The Court certified the following Class Representatives to represent the settlement class; Hank Barber, Quoc Thai, Daniel Billeci, Dale Magner, Ping Kwong and Maryam Al-Dhalimy.
8. Class counsel believe that class members are best served by participating in the proposed settlement. Plaintiffs' Counsels' investigation and analysis has lead them to the conclusion that the settlement is in the best interest of the class.
9. All petitions for attorneys' fees and expenses are subject to Court approval. In this case, Class Counsel will apply to the court for reimbursement of their actual out of pocket costs, and an award of attorneys' fees in the sum of $190,000.
10. All class members have the right to comment in support of, or in opposition to, the above-referenced application for attorneys' fees and costs. In order to do so, you must follow the procedure described below.
The Settlement Approval Process
11. A final settlement approval hearing will be held on December 1, 2000 at the hour of 1:30 p.m., in Department C-67 of the Orange County Superior Court located at 909 N. Main Street, Santa Ana, California 92702, before the Hon. Robert Thomas. At that time, the court will consider evidence and argument regarding the fairness, adequacy and reasonableness of the settlement so the court can determine whether to grant it final approval; and the amount of any award of attorneys' fees and costs to plaintiffs' counsel. Class members are entitled, but not required to attend. Any member of the class who is satisfied with the proposed settlement need not appear at the hearing to recover settlement proceeds.
12. At the final settlement approval hearing, any member of the Class may appear in person or through counsel and be heard to the extent allowed by the court in support of, or in opposition to, the fairness, reasonableness and adequacy of the proposed settlement. However, no party will be heard in opposition to the proposed settlement and no briefs or papers submitted by any such party will be considered unless, at least 10 days prior to the date of the final settlement approval hearing, such person(s): (a) files with the Clerk of the Orange county Superior Court, 700 Civic Center Drive West, Santa Ana, California, a statement that indicates a basis for such opposition and (b) serves copies thereof (and any other papers or briefs it files) with the court, and in person or by mail upon each of the following:
Attorneys for the Class Attorneys for Buy.com
Louis M. Marlin, Esq. Michael T. Hornak, Esq.
Marlin & Saltzman Rutan & Tucker
203 N. Golden Circle, Suite 310 611 Anton Blvd., Suite 1400
Santa Ana, CA 92705 Costa Mesa, CA 92626
The Opt-Out Procedure
13. You may elect not to participate in this settlement. If you so elect, you will not receive any portion of the settlement proceeds and you will not be bound in any way by the settlement. If you elect to opt-out of the settlement, you are free to pursue any claim you believe you have against the defendant on your own. Class Counsel will have no obligation to assist you in that regard. If you wish to opt-out of the settlement, you must send an e-mail to firstname.lastname@example.org on or before November 21, 2000. The e-mail must contain your name and must state, "I HEREBY STATE THAT IT IS MY WISH TO OPT-OUT OF THE BUY.COM SETTLEMENT."
14. As a member of the Class, you may communicate with, seek the advice of, or enter an appearance through counsel of your own choice. Any member of the class who does not enter an appearance either individually or through counsel of his/her own choice will be represented by Class Counsel, who are proponents of the settlement, and will have no individual liability for attorneys' fees and costs, both of which are payable from the Settlement fund.
15. If the settlement does not receive final approval by the court, the case will continue to be prepared for trial.
16. This Notice summarizes the basic terms of the settlement. For more detailed information you may review and copy the pleadings, records and other papers on file at the Superior Court Clerks office at 700 Civic Center Drive, West, Santa Ana, California during regular business hours. You may also seek additional information from Class Counsel.
PLEASE DO NOT ADDRESS QUESTIONS OR REQUESTS FOR INFORMATION TO THE COURT
Dated: September 22, 2000 __/s/ Robert Thomas____
Judge of the Superior Court >>