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Palm settlement action
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Palm Inc., sued for ESD
New
cradles wil be offered to fix sychronizing glitch
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:
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:____________________________
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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