Attention AOL members! (LONG)
Richard Masoner (richardm@cd.com)
Tue, 16 Jul 1996 15:26:57 -0500 (CDT)
[483+ line post follows, but it might be worth a couple of dollars
to ya' to read if you've had America Online service between July 14
1991 and March 31 1996]
Richard M.
--
From: TELECOM Digest Editor <ptownson@massis.lcs.mit.edu>
Newsgroups: comp.dcom.telecom,alt.dcom.telecom,comp.dcom.telecom.tech,misc.misc
Subject: LEGAL NOTICE: America On Line Class Action
Message-ID: <96.07.13.jj56t1@massis.lcs.mit.edu>
Date: Sun, 14 Jul 1996 01:30:00
Sender: ptownson@massis.lcs.mit.edu
Approved: [comp.dcom.telecom/d87a1757568c3e7c6282eff82433b242]
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LEGAL NOTICE: AMERICA ON LINE CLASS ACTION
SUIT SETTLEMENT ANNOUNCEMENT
This is a legal notice, and you should read it carefully since your
rights may be affected. Show this notice to your attorney and seek
your attorney's counsel before responding.
Superior Court of the City and County
of San Fransisco, California
Docket # 971047 Consolidated
Hagen, et al vrs. America On Line, Inc.
ARE YOU, OR WERE YOU AN AMERICA ON LINE SUBSCRIBER AT ANY TIME
BETWEEN JULY 14, 1991 AND MARCH 31, 1996? If so, you are a Member
of the Class described below.
1. Several subscribers of America On Line (hereinafter AOL) filed
lawsuits in 1994 and 1995 seeking to represent present and past
subscribers of AOL and challenging certain of AOL's billing
practices. While AOL denies any wrong doing, it wishes to end the
lawsuits and settle the claims against it. If the proposed settlement
discussed below is approved by the Court as fair, just, and reasonable,
persons who are presently or were AOL subscribers at any time between
July 14, 1991 and March 31, 1996 (the 'class period') may be entitled
to receive a share of the benefits provided for by the settlement.
2. The purpose of this notice is to provide a summary of the claims
asserted in the various lawsuits which have since been consolidated
under docket 971047 in the Superior Court of the City and County of San
Fransisco, CA. This notice also describes your rights and what you
can do if you wish to be excluded from the plaintiff class and the
settlement.
**If you wish to be included in the settlement, you do
not have to do anything, except as explained below.**
THE SETTLEMENT CLASS
3. The following Settlement Class has been certified for the purpose
of the proposed settlement:
All persons in the United States who at any time during
the period July 14, 1991 through March 31, 1996 were
subscribers of AOL.
Persons first subscribing *after* March 31, 1996 are NOT
members of the class. AOL changed its billing practices
at that time, nullifying further complaints by subscribers
after that date.
For purposes of settlement, the Court has approved the parties'
agreement to allow Stephen Anderson, Todd Bandrowsky, John Przygoda,
Steven Craig Smith, Paul Boni, Frederick J. DiMarco, David L. Feige,
First M. Corp. (a corporation), Fred Glick, Stephen E. Hagen, Marc L.
Hoffman, Craig Smith, Kenneth Crystal, and Heather Buchfirer (herein-
after 'plantiffs'), subscribers to AOL who originally raised these
claims in various lawsuits to represent the interests of all AOL
subscribers in the consolidated claim before the Court at this time.
The Court has appointed the following attornies as co-lead counsel
representing Plaintiffs and the Settlement Class:
Max W. Berger G. Oliver Koppell
Rochelle Feder Hansen Oren S. Giskan
Berstein Litowitz Berger & Zwerling, Schachter, Zwerling &
Grossman, LLP Koppell, LLP
1285 Avenue of the Americas 767 Third Avenue
New York, NY 10019 New York, NY 10017
Brian W. Newcomb Stephen E. Hagen
Attorney at Law Attorney at Law
770 Menlo Avenue Suite 101 1436 Hamilton Avenue
Menlo Park, CA 94025 Palo Alto, CA 94301
SUMMARY OF THE CLAIMS AGAINST AOL
4. The cases were filed at various times by individuals and corporations
who have been subscribers to AOL. In each case, the plaintiffs
believe that AOL did not adequately disclose its policies of adding
a fifteen-second connection and fifteen-second disconnection time to
the length of each session for billing purposes, and in billing
subscribers in one-minute increments rounded up to the next full
minute. The plaintiffs believe that AOL's billing practices and
methods caused subscribers to incur additional charges for downloading
of image files, for delays in connection time and completion of
transactions on line due to AOL software and network congestion over
which plaintiffs believe AOL had control, and for time spent in
'free' areas but which none the less plaintiffs beleive was in
some instances billed for.
Plaintiffs allege further that AOL failed or refused to refund
unused membership charges to subscribers who cancelled their
subscriptions prior to the end of a billing period and that
subscribers who cancelled their subscriptions near the end of a
billing period were erroneously charged for an additional monthly fee.
Plaintiffs allege further that AOL's billing practices unfairly
calculated service charges on a per-session basis; that AOL made
withdrawals in inappropriate amounts and without authorization from
subscriber's checking accounts; and that AOL engaged in false and
misleading advertising when stating that its hourly rate was
$2.95.
5. AOL completely denies any wrong doing and is completely convinced
that the manner in which it has billed its subscribers is proper
and adequate. It vigorously denies each and every claim asserted by
plaintiffs. Nonetheless, AOL has decided to voluntarily settle these
claims pursuant to the terms set out below because it beleives the
settlement is in the best interests of itself and its subscribers and
because AOL wishes to avoid further time consuming and expensive
litigation.
PROPOSED SETTLEMENT AGREEMENT
6. The terms of the proposed settlement agreement applicable in the
various lawsuits now consolidated are set forth in detail in the
parties Stipulation of Settlement of Class Action. This document has
been filed with the Superior Court of the City and County of San
Fransisco, CA in the action entitled Hagen et al vrs. America Online,
Inc. Number 971047 (hereinafter, the 'action'). This document is
available to the public to review or copy during regular business
hours of the Court, 633 Folsom Street, Second Floor, San Fransisco, CA.
**The Court Clerk and other personnel will be unable
to assist you in your review of the matter. See
details below for how to obtain further assistance.**
This is a summary:
a) Current subscribers: AOL will provide free time on its service to
Settlement Class Members who are subscribers at the time free time is
distributed ('current subscribers') by
a) crediting the accounts of all current subscribers with
one hour of additional free time (in addition to the time
included in the monthly minimum service charge), to be
used within a four month period after such time is made
available to each current subscriber; and
b) making available 1.36 million hours of free time by
crediting the accounts of current subscribers who, based
on AOL's computerized records have paid $300 or more in
total lifetime charges for AOL's services (hereinafter
'Heavy Users'). The 1.36 million hours of additional free
time will be allocated as follows:
Charges paid by current subscribers through May 5, 1996
of $300-$600, one hour; for $601-$900, two hours; for $901-
$1200, three hours; for $1201-$1500, four hours; for $1501-
$1800, five hours; for $1801-$2100, six hours; for $2101-
$2400, seven hours; and one additional hour for each $300
(or fraction thereof) in excess of $2400 in billings.
If the 1.36 million hours of free time are not fully
distributed pursuant to this formula, any remaining free time
will be automatically distributed to Heavy Users pro-rata.
Each subscriber will have a four-month period, after the
free time is distibuted, to use the free time. The free
time should be distributed no later than thirty days after
the Court's approval of the settlement is effective.
**NO CLAIM SHOULD BE FILED BY CURRENT SUBSCRIBERS SINCE
THE DISTRIBUTION OF FREE TIME WILL BE CREDITED AUTOMATICALLY
BY AOL UPON APPROVAL OF THE SETTLEMENT.**
b) Former Subscribers: AOL will pay up to $500,000 in cash for claims
made by members of the settlement class who are not current users and
who have paid $300 or more in total lifetime charges for AOL services
during the class period as noted above. Former users must submit a
claim form to receive their money as described below. The amount to
be paid to each claimant will be allocated as follows:
For charges paid by former subscribers through May 5, 1996
of $300-$600, $2.95; for $601-$900, $5.90; for $901-$1200,
$8.85; for $1201-$1500, $11.80; for $1501-$1800, $14.75;
for $1801-$2100, $17.70; for $2101-$2400, $20.65; and an
an additional $2.95 for each additional $300 in charges
(or fraction thereof) in excess of $2400. In the event the
total dollar amount of all valid claims exceeds $500,000
the claims will be prorated so that the total amount paid
by AOL for all claims equals $500,000. In the event the
total claims paid are less than $500,000 any amounts which
remain after reimbursement of certain audit expenses will
be donated to consumer-oriented, charitable organizations
engaged in issues involving the online and Internet media.
A former subscriber may alternatively choose to re-subscribe
to AOL and receive an additional one hour of free time
(in addition to the time provided to such individuals for
resubscribing) to be used in the first four months following
re-subscription. Such former subscribers must request the
additional one hour free time when resubscribing.
c) Former subscriber Proof of Claim form:
** FORMER SUBSCRIBERS WHO WISH TO SUBMIT A CLAIM FOR CASH
<MUST> SUBMIT A COMPLETED PROOF OF CLAIM FORM. THE FORM IS
PROVIDED WITH THIS NOTICE.
Additional Proof of Claim forms may be obtained by written
request from the administrator of the settlement and ONLY
from this address:
America OnLine Claim Forms
PO Box 75999
Oklahoma City, OK 73147-5999
Or, you may call ONLY the phone number 800-471-6148.
DO NOT telephone or write America OnLine for information
or assistance with your claim.
DO NOT telephone or write the Court, the clerk of the
court or the attornies for assistance with your claim.
Use ONLY the address and telephone number shown above to
obtain copies of the claim form.
Claim forms must be returned and postmarked no later than
November 30, 1996. However, if you are a current subscriber
and you cancel your subscription prior to receiving your
free time (generally, this would be susbcribers who stop
using America OnLine after about November 20, 1996 or
during December, 1996 or January, 1997) then you may
submit a claim form after the above deadline provided it
is submitted within ten days of the date you cancel your
subscription.
The completed claim form must be mailed ONLY to the
address:
America OnLine Settlement Administrator
PO Box 1559
Odgen, UT 84401
Remember, if you not paid more than $300 in your lifetime
to AOL as of May 5, 1996 or if you joined AOL after
March 31, 1996 (and have since cancelled your subscription
to the service) then ** YOU ARE NOT ENTITLED TO MAKE A
CLAIM FOR CASH DAMAGES**.
A Proof of Claim form appears at the conclusion of this
notice which you may print out and use.
d) Disclosures:
For at least a one year period, AOL will include as part of its online
service, certain specified disclosures and changes (as set out in the
Stipulation of Settlement) in its billing screens, Terms of Service
messages, End of Session Message, and in connection with its online
clock designed to provide subscribers with additional information
about AOL's billing practices.
e) Attorney's Fees and Expenses:
AOL has agreed to pay plaintiff's attornies' fees and expenses as
approved by the Court, in the amount of $2,750,000 (two million,
seven hundred fifty thousand dollars). In addition, AOL has paid the
costs of providing notice by publication in print and online media.
YOUR OPTIONS WITH RESPECT TO THE PROPOSED SETTLEMENT
7. If you are or were a subscriber of AOL during the class period of
July 14, 1991 through March 31, 1996, then you are now a member of
the settlement class. This notice constitutes legal service to you
to apprise you of your rights and obligations under the law.
a) If you agree with the settlement, you need do nothing at all to
indicate your consent. You will participate in, and be deemed to
have agreed to the terms set forth above and below. This also means
that you fully, finally and forever release, relinquish and discharge
any and all claims, rights (including rights to reimbursement or
restitution), demands, actions, causes of action, suits, matters,
issues, debts, leins, contracts, liabilities, agreements, costs,
expenses or losses of any nature known or unknown arising from the
case described herein against the following:
America Online, Inc.
Steve Case an officer of America Online, Inc.
Steve Case an individual
James Kimsey an officer of America Online, Inc.
James Kimsey an individual
and each of their present and past officers, directors, employees,
and their predecessors, successors, parents, subsidiaries, affiliates,
agents, accountants, attornies, spouses, advisors, representatives,
partners, heirs and assigns, whether under federal law or regulation
or the laws and regulations of any and all states and the subdivisions
thereof which are alleged in the Amended Complaint on file in the
Action, or which could or might have been alleged in the Amended
Complaint and arise out of or are related to the matters referred to
in the Amended Complaint.
b) **FIRST YOU SHOULD SHOW THIS NOTICE TO YOUR ATTORNEY AND SEEK
COUNSEL BEFORE DECIDING ON A COURSE OF ACTION**. You may decide
for whatever reason on advice of your counsel that you do not wish
to participate in this class action settlement. If you wish to be
excluded from the settlement, you must provide notice as follows:
Send a letter postmarked no later than August 23, 1996
which includes your name, address and telephone number
along with the name of the case (Hagen vrs. America Online, Inc)
and a statement that you do not wish to participate in the
settlement.
Your notice must be sent to each of the attornies listed
below:
G. Oliver Koppell Melvin R. Goldman
Zwerling, Schachter, Zwerling Morrison & Foerster, LLP
& Koppell, LLP 345 California Street
767 Third Avenue San Fransisco, CA 94104
New York, NY 10017-2023
** DO NOT TELEPHONE the attornies. Your correspondence must
be in writing via paper, postal mail..
If you validly and timely request exclusion from the class, you
will be excluded from the class.
i) you will not be permitted to object to the settlement;
ii) you will not be bound by the final judgment of the Court
entered in this action;
iii) you will not be precluded from otherwise prosecuting
any individual claim you wish to make, if timely.
c) If you have decided you would like to participate in the settlement
you still have the option of objecting to the settlement under the
procedures set forth in section 8 below. You may -- it is very
recommended but not required -- employ an attorney at your own expense
to represent you for this purpose. However, you will be barred from
bringing your own individual lawsuit asserting claims in the matters
referred to in the Amended Complaint and, if your objection is
rejected, you will be bound by the final judgment just as if you had
not objected at all.
THE SETTLEMENT HEARING
8. A hearing will be held on September 20, 1996 at 9:30 AM at San
Fransisco Superior Court, Courtroom of the Honorable A. James
Robertson II, 633 Folsom Street, San Fransisco, CA 94107.
The purpose of the hearing is for the judge to decide whether the
proposed settlement, including the provision for attornies' fees and
other related expenses is fair and should be approved.
If you decide to participate in the settlement and not request an
exclusion, you may come to the hearing to support or object to the
settlement or the payment of attornies' fees and reimbursement of
expenses.
If you wish to object to any of these things, you must file a written
copy of your objection with the Court. Kindly research the matter
carefully and include pertinent legal citations in your well prepared,
well documented and literate objection. If applicable, explain why
the settlement is inadequate or unfair in your particular instance
and include documentation. Again, it is the Court's recommendation
that you seek advice from counsel of your choice before proceeding. If
you wish to address the Court in person at the hearing this must be
indicated in a separate notice attached to your written objection. The
written objection must be mailed or hand-delivered to the Clerk of the
Court with copies to the aforementioned attornies no later than August
23, 1996.
DO NOT telephone the clerk of the court or the attornies
on this matter.
** CLASS MEMBERS WHO DO NOT MAKE TIMELY THEIR OBJECTIONS IN THE
MANNER AND FORM DESCRIBED ABOVE WILL BE DEEMED TO HAVE WAIVED ALL
OBJECTIONS AND SHALL NOT BE HEARD AT THIS HEARING. **
MORE INFORMATION
More information can be obtained by examining and/or making copies
of the file on this case at your own expense at the the office of
the Clerk of the Court during business hours. Neither the Clerk
nor the Clerk's employees will be able to assist you with your
research.
The publication of this notice is not an expression of any opinion
by the Court as to the merits of the lawsuit or the fairness of the
proposed settlement. This notice is being published to advise you
of the pendancy of the lawsuit, the proposed settlement, and your
rights and obligations thereto under the law, so that you and counsel
of your choice can detirmine what steps you will take in relation
to this action. For the purposes of the matter before the Court
you have been given legal service by publication. It is the Court's
wish that this notice be given particular attention on the Internet
and other online media so that the widest possible number of persons
potentially involved will be made fully aware of the matter.
Date: July 1, 1996
Published by Order of the San Fransisco
County Superior Court
Honorable A. James Robertson II
San Fransisco County Superior Court Judge
---------- Proof of Claim Form ----------
Please print this out and submit it:
I am a former subscriber to America Online. I have paid more than $300
in my lifetime to America Online for charges using their service.
NAME__________________________________________________________________
ADDRESS_______________________________________________________________
TELEPHONE NUMBER:_____________________________________________________
DATE STARTED SUBSCRIBING TO AOL (APPROXIMATE):________________________
DATE STOPPED SUBSCRIBING TO AOL (APPROXIMATE):________________________
ONE OF MY SCREEN NAMES WAS:___________________________________________
A SECOND SCREEN NAME WAS (if applicable):_____________________________
TOTAL AOL CHARGES THROUGH MARCH 31, 1996 (in some cases billed 5-5-96)
WERE:
$301-$600______ $601-900________ $900-$1200_________
Other amount (please specify)___________________
Under oath I hereby