ESD Journal - Palm Settlement Action

Palm settlement action

SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO

CLIFFORD E. ELEY, on Behalf of Himself and All Other Similarly Situated,Plaintiff,v.PALM, INC., a Delaware corporation, and DOES 1-50, inclusive,Defendants. Case No.: 403768

UNLIMITED JURISDICTION

CLASS ACTION

NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT
Judge: Hon. Richard A. KramerDept.: 304

NOTICE TO PERSONS WHO OWNED A PALM m500 OR m505
ON OR AFTER JANUARY 23, 1998

This notice may affect your rights.
Please read it carefully.
If you owned a Palm personal digital assistant model m500 or m505 ("Palm Handheld") manufactured by defendant Palm, Inc.("Palm"), this notice may be important to you. A proposed settlement has been reached in a lawsuit in which plaintiff claims that: (1) the Palm Handhelds may be defective in that they sometimes do not properly perform the HotSync® operation to transfer data to and from a primary computer, as a result of an event involving electro-static discharge ("ESD"); and (2) Palm purportedly communicated and/or failed to communicate and disclose certain facts and circumstances in connection therewith.
The purpose of this notice is to inform you of the proposed settlement, and of a hearing to consider the settlement to be held on December 22, 2003 at 1:30 p.m., before Judge Richard A. Kramer, Department 304 of the Superior Court of the State of California, San Francisco County; how to participate in the settlement; how to object to it if you wish; and how to get more information.

A. Description of the Lawsuit.
On January 23, 2002, plaintiff Clifford E. Eley commenced an action against Palm entitled Eley. v. Palm, Inc., (San Francisco Superior Court Case No. 403768) (the "Action"), which was brought as a purported nationwide class action and which asserted claims for violation of the Unfair Competition Law, California Business and Professions Code sections 17200 and 17500 et seq., and breach of express warranty.
Palm denies the allegations made in the plaintiff's complaint and denies any and all liability with respect to the facts alleged therein, and denies that anyone has suffered damage or is entitled to any relief whatsoever. The Court has not decided whether plaintiff or Palm is correct.

B. The Settlement Class Members.
For purposes of settlement, the Court has certified a class consisting of all Persons (defined to mean individuals or legal entities residing or with their principal place of business in the United States (including the District of Colombia and territories and possessions)), who owned for their own use (and not for resale) a Palm Handheld (defined to mean a Palm personal digital assistant model m500 or m505), on or after January 23, 1998, up to and including the date of Final Approval of the settlement, as defined in the parties' Settlement Agreement ("Final Approval"), which agreement is located on the website established for this settlement at www.EleySettlement.com.
If you fit within this definition, you will be considered a member of the class ("Settlement Class Member"), unless you request to be excluded.

C. Description of the Settlement.
1. The Claim Process and Relief to Settlement Class Members
As part of the settlement, Palm has agreed to the following relief available to Settlement Class Members who submit a valid claim form (available on the website established for this settlement at www.EleySettlement.com), with adequate Claim Documentation (as defined in the claim form), establishing the requirements of membership in the class (including Claim Documentation establishing that the claimant owned a Palm Handheld), and the requirements of one or more of the following types of claim relief:
(a) Claim Relief 1: Palm will exchange for any Settlement Class Member who so requests pursuant to the terms of the claim form a replacement (new or refurbished) USB cradle for the Settlement Class Member's original cradle. Such exchange will be at Palm's expense, including shipping.
(b) Claim Relief 2: For any Settlement Class Member who follows the steps set forth under Claim Relief 1, and who is not satisfied because his or its Palm Handheld continues to cease to perform the HotSync® operation as a result of ESD, to be validated by Palm, and who requests pursuant to the terms of the claim form, Palm will provide and ship to such Settlement Class Member, at Palm's own expense, a preprogrammed (new or refurbished) SD card (including instructions) to reset the Palm Handheld.
(c) Claim Relief 3 : For any Settlement Class Member who follows the steps set forth under Claim Relief 1 and Claim Relief 2 above, and who is not satisfied because his or its Palm Handheld continues to cease to perform the HotSync® operation as a result of ESD, to be validated by Palm, and who requests pursuant to the terms of the claim form, Palm will provide and ship to such Settlement Class Member, at Palm's own expense, a replacement (new or refurbished) Palm Handheld viewer of the same model type. To qualify for this relief, the Settlement Class Member must exchange and return the Palm Handheld viewer and SD card as to which the Settlement Class Member was not satisfied.
Claims must be submitted on the Claim Form provided below, and must be submitted within one year after Final Approval (subject to change by the Court). No Settlement Class Member may submit more than one (1) claim with respect to each Palm Handheld model owned by the Settlement Class Member, and each claim must relate to a separate Palm Handheld. Only one replacement cradle, SD card and/or replacement viewer will be provided with respect to any Palm Handheld bearing the same serial number. Claims will not be processed until after Final Approval.
In addition to the relief described above, as part of the settlement, Palm has agreed to maintain on its customer service telephone lines a level of service that will reasonably meet the demands of customers that are anticipated in connection with implementation of this settlement.
2. Awards to the Representative Plaintiff and Plaintiff's Counsel
Under the terms of the settlement, the Representative Plaintiff (Clifford E. Eley) will receive an incentive award of $1000 for his participation in the litigation, subject to approval by the Court. Plaintiff's Counsel will apply for an award of attorneys' fees and costs from the Court not to exceed $500,000, which application Palm has agreed not to oppose. Neither the Representative Plaintiff's incentive award nor any attorneys' fee award made by the Court will decrease or have any other effect on the relief to be provided to Settlement Class Members.
3. Releases
Under the terms of the settlement, plaintiff has agreed to dismiss Eley v. Palm, Inc. in its entirety, including the claims of the Settlement Class Members, with prejudice, which dismissal will be incorporated into a final judgment approving the settlement. All Settlement Class Members who have not excluded themselves will be bound by the final judgment entered by the Court. All claims of the Settlement Class Members which were or could have been asserted in the Action, related in any way to the subject matter of the Action, will be released as provided in the Settlement Agreement, and Settlement Class Members will be forever barred from seeking other or further relief on such claims.

D. Right to Object or Opt Out
Any Settlement Class Members who object to the settlement and that have not excluded themselves from the settlement, may file written objections with the Court. ANY SUCH OBJECTIONS MUST BE FILED WITH THE CLERK OF THE COURT AND SERVED ON THE ATTORNEYS FOR THE SETTLEMENT CLASS AND PALM, AT THE ADDRESSES SET OUT BELOW ON OR BEFORE DECEMBER 1, 2003. ANY OBJECTIONS TO THE SETTLEMENT MUST BEGIN WITH THE FOLLOWING STATEMENT: "I OBJECT TO THE PROPOSED SETTLEMENT IN ELEY V. PALM, INC., Case No. 403768, California Superior Court, San Francisco County." All objections must state the objector's name and address and all grounds for the objection in writing. Objections must be filed with the Clerk of the Court, San Francisco County Superior Court, 400 McAllister Street, San Francisco, California 94102, with copies sent to Ex Kano Sams II, Milberg Weiss Bershad Hynes & Lerach LLP, 100 Pine Street, Suite 2600, San Francisco, California 94111, and Peter S. Hecker, Heller Ehrman White & McAuliffe LLP, 333 Bush St., San Francisco, California 94104.
If you do not wish to be a member of the class, you must exclude yourself by mailing a written request to be excluded that must be received no later than December 1, 2003, and addressed to Ex Kano Sams II, Milberg Weiss Bershad Hynes & Lerach LLP, 100 Pine Street, Suite 2600, San Francisco, California 94111, with a copy sent to Peter S. Hecker, Heller Ehrman White & McAuliffe LLP, 333 Bush St., San Francisco, California 94104. The request should state your name and address. If you choose to exclude yourself from the class, you will not be affected by the Action, and you will not be able to object to or participate in the settlement.

E. Court Hearing and Final Approval
The proposed Settlement Agreement must be finally approved by the Court. On December 22, 2003 at 1:30 p.m., in Department 304, San Francisco Superior Court, 400 McAllister Street, San Francisco, California 94102, a hearing will be held on whether the proposed settlement should be approved as fair, reasonable and adequate.
If you file a timely written objection and have not previously requested exclusion, you may appear at the hearing in person or through an attorney retained at your own expense. IF YOU WISH TO APPEAR AT THE HEARING TO OBJECT TO THE SETTLEMENT, YOU MUST NOTIFY THE COURT AND COUNSEL IN WRITING OF YOUR INTENTION TO DO SO, WITH YOUR WRITTEN OBJECTION FILED AS DESCRIBED ABOVE. DO NOT CALL OR PERSONALLY CONTACT THE COURT OR PALM ABOUT MATTERS SET FORTH IN THIS NOTICE.
Any written objections to the Settlement and notices of intent to appear at the final approval hearing must be filed with the Clerk of the Court at the address listed above on or before December 1, 2003.

F. Examination of Papers
You may inspect the complete Settlement Agreement, the complaint in the action, and other papers filed in this lawsuit at the office of the Clerk of the Superior Court, 400 McAllister Street, San Francisco, California 94102 during its regular hours of operation. In addition, you may review the Settlement Agreement, complaint, this class notice and the claim form on the website at www.EleySettlement.com.

G. Additional Information
DO NOT CONTACT THE COURT OR PALM CONCERNING THIS NOTICE OR THE LAWSUIT. If you have questions contact your own attorney or, if you would like more information about this notice or these cases, you may contact:
Ex Kano Sams, II
Milberg Weiss Bershad Hynes & Lerach LLP
100 Pine Street, Suite 2600
San Francisco, California 94111
(415) 288-4545

DATED: September 16, 2003 The Honorable Richard A. KramerJudge, Superior Court of CaliforniaCounty of San Francisco
____________________________________________________________________

CLAIM FORM

THE DEADLINE TO SUBMIT THIS CLAIM FORM IS FEBRUARY 23, 2005.*
* Subject to change by the Court.

This is the official claim form you must use to make a claim in Eley v. Palm, Inc. Please read this form carefully before filling it out. For complete information about the settlement see www.EleySettlement.com.

In order to qualify for any relief under any Claim Group identified below, you must establish - through "Claim Documentation" (see definition below) submitted with this claim form - that you owned a Palm™ personal digital assistant model m500 or m505 ("Palm Handhelds") covered by the settlement, and that you meet the other requirements described below.

If you did not own a Palm Handheld at some time between January 23, 1998 and February 23, 2004,* you are not eligible to make a claim and should not submit a claim form.

"Claim Documentation" means sales receipts, purchase orders, warranty repair invoices, credit card billings, cancelled checks, e-mail threads and/or other similar written materials that you provide to support your claim.
For each claim, you must submit a separate claim form with any required Claim Documentation.

PLEASE REFER TO THE CLASS NOTICE AND THE SETTLEMENT AGREEMENT POSTED ON THE ABOVE WEBSITE FOR RULES CONCERNING ELIGIBILITY AND SUBMISSION OF CLAIMS AND TIME LIMITS ON THIS CLAIM PROCESS, THE NUMBER OF CLAIMS THAT CAN BE SUBMITTED, PROCEDURES FOR DISPUTED CLAIMS AND OTHER MATTERS.

NOTE: YOUR CLAIM IS SUBJECT TO VALIDATION BY PALM. YOUR CLAIM WILL NOT BE PROCESSED UNTIL AFTER FINAL APPROVAL OF THE SETTLEMENT WHICH WILL NOT OCCUR UNTIL FEBRUARY 23, 2004 AT THE EARLIEST.

(PLEASE TYPE OR PRINT LEGIBLY)

PALM HANDHELD OWNED - SERIAL NUMBER
Please circle the Palm Handheld model for which you are making this claim, and provide its serial number:

Palm m500
Palm m505

Serial Number: ______________________

Only if you (1) prove by Claim Documentation that you owned the Palm Handheld listed by you, and (2) provide the Palm Handheld's serial number, should you submit a claim in connection with this settlement.
The relief available is in three successive stages. Please answer the following questions to determine which phase, if any, is applicable.

CLAIM RELIEF 1 - CRADLE EXCHANGE

1. CRADLE EXCHANGE: Do you wish to exchange your Palm Handheld cradle for a new or refurbished replacement USB cradle?

Yes _________ No __________

In order to qualify for relief under Claim Relief 1, you must return your Palm Handheld cradle to the Settlement Administrator according to the following instructions:

Do not send your cradle with this claim form. Instead, fill out this form and mail it to the Settlement Administrator at the address on the last page. If your claim is validated, Palm will send a postage-prepaid envelope to you with instructions on returning your cradle. Follow those instructions carefully.

CLAIM RELIEF 2 - SD CARD

1. PREVIOUS CRADLE EXCHANGE: Have you previously exchanged your Palm Handheld cradle for a replacement cradle?

Yes __________ No ___________

If "No," you do not qualify for any relief under Claim Relief 2.
If "Yes," please provide the approximate date of your cradle exchange: ____________________ (month/day/year)
AND answer the following question.

2. SATISFACTION WITH NEW CRADLE: Are you satisfied with the operation of your replacement Palm Handheld cradle?

Yes ___________ No ___________

If "Yes," you do not quality for any relief under Claim Relief 2.
If "No," please answer the following question.

3. DISSATISFACTION DUE TO ELECTRO-STATIC DISCHARGE ("ESD"): Are you dissatisfied with the operation of your new Palm Handheld cradle because your Palm Handheld continues to cease to perform the HotSync® operation as a result of what may be ESD?

Yes __________ No ___________

If "No," you do not qualify for any relief under Claim Relief 2.
If "Yes," please continue to item 4.

4. DECLARATION: In order to qualify for relief under Claim Relief 2, you MUST execute the following:

My Palm Handheld does not perform the HotSync® function due to what may be ESD, and has ceased to perform the HotSync® function due to what may be ESD on prior occasions, and I am unaware of any cause for this problem other than ESD. I hereby declare, under penalty of perjury, that the foregoing is true and correct.

Dated:______________ Signature:____________________________

CLAIM RELIEF 3 - PALM HANDHELD VIEWER EXCHANGE

1. PREVIOUS CRADLE EXCHANGE AND RECEIPT OF SD CARD: Have you previously exchanged your Palm Handheld cradle for a replacement cradle, AND received an SD card pursuant to the procedures set forth above?

Yes __________ No ___________

If "No," you do not qualify for any relief under Claim Relief 3.
If "Yes," please provide the approximate dates of your:

Cradle exchange: ____________________ (month/day/year)

Receipt of SD card: __________________ (month/day/year)

AND answer the following question.

2. SATISFACTION WITH SD CARD: Are you satisfied with the operation of your SD card?

Yes ___________ No ___________

If "Yes," you do not qualify for any relief under Claim Relief 3.
If "No," please answer the following question.

3. DISSATISFACTION DUE TO ESD EVENT: Are you dissatisfied with the operation of your SD card because your Palm Handheld continues to cease to perform the HotSync® operation as a result of what may be ESD?

Yes __________ No ___________

If "No," you do not qualify for any relief under Claim Relief 3.
If "Yes," please explain why you are dissatisfied with the operation of the SD card:

4. DECLARATION: In order to qualify for relief under Claim Relief 3, you MUST execute the following:

Dated:______________ Signature:____________________________

In order to qualify for relief under Claim Relief 3, you must return your Palm Handheld viewer and SD card to the Settlement Administrator according to the following instructions:

Do not send your Palm Handheld viewer or SD card with this claim form. Instead, fill out this form and mail it to the Settlement Administrator at the address on the last page. If your claim is validated, Palm will send a postage-prepaid envelope to you with instructions on returning your viewer and card. Follow those instructions carefully.

YOUR NAME:______________________________________

YOUR ADDRESS:___________________________________

City/State/Zip____________________________

YOUR EMAIL:______________________________________

YOUR DAYTIME PHONE:____________________________

I declare under penalty of perjury that the foregoing information is true and correct.
Dated:______________________ Signature:_______________________________

(Information provided is subject to verification by Palm's Counsel and Plaintiff's Counsel. Palm will only use this form for purposes of administering this settlement.)

Return completed claim form and Claim Documentation to:
Settlement Administrator
P.O. Box 1358
Grand Rapids, MN 55745-1358

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