-=PCTechTalk=- Is this true of hoax?
- From: "Pat" <rhekay@xxxxxxxxxx>
- To: <pctechtalk@xxxxxxxxxxxxx>
- Date: Fri, 30 Jul 2004 04:45:38 -0400
Go here and read it is true:
http://www.snopes.com/inboxer/nothing/paypal.asp
----- Original Message -----
From: <MEspenschi@xxxxxxx>
To: <pctechtalk@xxxxxxxxxxxxx>
Sent: Thursday, July 29, 2004 10:41 PM
Subject: ***POSSIBLE SPAM*** -=PCTechTalk=- Is this true of hoax?
Husband got this and want to know if anyone else got this and if it is true
or hoax?
IF YOU OPENED A PAYPAL ACCOUNT BETWEEN OCTOBER 1999 AND JANUARY 2004, YOU
MAY
BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT.
PLEASE READ THIS NOTICE CAREFULLY.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
In re PayPal litigation
Case No. CV-02-01227-JF (PVT)
NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT
1. WHY DID I GET THIS NOTICE?
You have been sent this Notice because the records of PayPal, Inc. indicate
you are a current or former PayPal account holder. This means you may be
eligible to receive a payment from the proposed class action settlement in
the
lawsuit In re PayPal Litigation, Case No. 02 1227 JF PVT, pending in the
United
States District Court for the Northern District of California in San Jose.
This
Notice provides a summary of the terms of the proposed settlement. It also
explains the lawsuit, your legal rights under the settlement, what benefits
are
available to you under the settlement, and how to get them.
2. WHAT IS A CLASS ACTION?
In a class action, one or more people, called Class Representatives (in this
case Roberta Toher and Jeffrey Resnick), sue on behalf of people who have
similar claims. All of these people are members of the Class. One court
resolves
the issues for all Class Members, except for those who exclude themselves
from
the Class. United States District Judge Jeremy Fogel is in charge of this
class action.
3. WHAT IS THIS LAWSUIT ABOUT?
In early 2002, Plaintiffs Roberta Toher and Jeffrey Resnick filed separate
lawsuits against PayPal, Inc. These two cases were later consolidated into
one
lawsuit in the United States District Court for the Northern District of
California, San Jose Division, entitled In re PayPal Litigation, Case No. CV
02
01227-JF (PVT). The lawsuit alleges that PayPal violated the federal
Electronic
Fund Transfer Act ("EFTA"), 15 U.S.C. §§ 1693 et seq., including provisions
requiring PayPal to supply customers with information about dispute
resolution
procedures and to follow certain procedures when investigating complaints of
unauthorized or incorrect electronic fund transfers. For example, the
lawsuit
claims that PayPal did not provide account statements in the manner required
by
the EFTA. The lawsuit further alleges that PayPal has placed inappropriate
restrictions or other limits on customers' accounts and engaged in other
improper
practices. Based on these practices, the lawsuit asserts claims under
California state law for conversion, money had and received, negligence, and
violations
of consumer protection statutes.
PayPal does not believe that it did anything wrong. In fact, PayPal disputes
that the EFTA, originally passed in 1978, applies to its business. PayPal
denies any and all liability for the claims alleged in the lawsuit. The
Court did
not decide in favor of the Plaintiffs or PayPal. Instead, beginning in the
fall of 2003, the parties began a series of settlement negotiation sessions
mediated by United States Magistrate Judge Edward Infante. Eventually, in
November
2003, both sides agreed to a settlement in principle. By settling their
claims, both parties avoided the uncertainty and cost of a trial. The
settlement
provides money and other benefits to the Class. On June 11, 2004, the
parties
entered into a formal, written Settlement Agreement, which is on file with
the
Court and available on the Internet at https://www.paypal.com/settlement/.
By
entering into the Settlement Agreement, PayPal is not admitting any
wrongdoing.
PayPal continues to believe that it did not do anything wrong. The
Representative Plaintiffs and the attorneys appointed by the Court to
represent the Class
believe that the settlement is fair to Class Members. By this notice, the
Court is not expressing any view on the merits of the lawsuit.
4. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
On July 12, 2004, Judge Fogel entered an order granting preliminary approval
of the settlement and certifying the following class for purposes of the
settlement: All Persons who opened a PayPal account during the period from
October
1, 1999 through January 31, 2004. Excluded from the class are any judicial
officer to whom the lawsuit is assigned; PayPal and any of its affiliates;
any
current or former employee, officer, or director of PayPal; anyone who
resides
in Austria, Belgium, Denmark, Germany, Greece, Finland, France, Ireland,
Italy,
Luxembourg, Portugal, Spain, Sweden, The Netherlands, or United Kingdom; and
all persons who timely and validly request exclusion from the class pursuant
to this notice.
Thus, if you opened a PayPal account between October 1, 1999 and January 31,
2004, and are not one of the excluded persons listed above, you are a member
of the class.
5. WHO REPRESENTS ME IN THIS CASE?
To represent the class, the Court has appointed Plaintiffs Roberta Toher and
Jeffrey Resnick as Representative Plaintiffs and their counsel of record as
Class Counsel. The Court has also appointed the following attorneys and law
firms as Co-Lead Counsel:
A. J. De Bartolomeo
Girard Gibbs & De Bartolomeo LLP
601 California Street, Suite 1400
San Francisco, California 94108
Robert C. Finkel
Wolf Popper LLP
845 Third Avenue
New York, New York 10022
6. WHAT DOES THE SETTLEMENT PROVIDE?
A. Injunctive Relief
The settlement requires that PayPal consent to the entry of an order, called
an injunction, that mandates various changes to PayPal's business practices.
PayPal has already implemented these changes. The injunction includes
PayPal's
agreement to comply with certain notice and error resolution procedures of
the
EFTA, and to follow certain procedures for limiting accounts and responding
to and returning funds to customers whose accounts have been limited. A copy
of
this injunction can be found as Exhibit D to the Settlement Agreement,
entitled "Form of Injunctive Order."
B. Monetary Relief
Under the settlement, PayPal will pay $9.25 million into a settlement fund,
to be held in an interest-bearing account. The fund will be used (1) to make
payments to class members who submit valid claims before the claims
deadline;
(2) to pay certain costs of giving notice to the Class and of settlement
administration, as approved by the Court; and (3) to pay attorneys' fees and
expenses
to Class Counsel in the amount awarded by the Court. Class Counsel have
proposed that, after deduction of notice and administrative costs and Class
Counsel's attorneys' fees and expenses, the balance of the fund ("Net
Settlement
Fund") be applied in accordance with a written plan of allocation. (The
following
explanation is qualified in its entirety by reference to the Plan of
Allocation attached to the Settlement Agreement as Exhibit C, a copy of
which is on
file with the Court and available on the Internet at
https://www.paypal.com/settlement/.)
1. Certain Definitions
Certain capitalized words are used in this part of the Notice to describe
the
way in which the Net Settlement Fund will be allocated. These capitalized
words have the following meanings:
(a) "Released Persons" means PayPal and its past and present partners,
affiliates, predecessors, successors, assigns, parents, subsidiaries,
officers,
directors, attorneys, and employees.
(b) "Fund Claimants" are class members who submit timely, valid claims in
accordance with the procedures described in this notice.
(c) "Dispute Resolution Claimants" are Fund Claimants who contend that,
prior
to February 1, 2004, they:
(i) experienced or reported to PayPal an unauthorized or incorrect
electronic
transfer to or from their PayPal account including, without limitation,
electronic transfers initiated by (a) the Fund Claimant; (b) PayPal in
connection
with, among other things, chargebacks, refunds, buyer complaints, PayPal's
Seller Protection Policy, Buyer Complaint Process and/or Buyer Protection
Policy;
or (c) any third party;
(ii) had access to their PayPal account improperly, incorrectly or
erroneously limited or restricted, in whole or in part;
(iii) made a request for information in connection with PayPal's restriction
or limitation of the Fund Claimant's PayPal account or regarding an
incorrect
or unauthorized electronic transfer to which PayPal did not respond at all
or
did not respond to the Fund Claimant's satisfaction.
(d) "Statutory Damage Fund Claimants" are all Fund Claimants who are not
Dispute Resolution Claimants.
2. Statutory Damage Fund Claimants
The plan of allocation designates $1 million of the Net Settlement Fund to a
"Statutory Damage Fund," to be distributed equally among all Fund Claimants
who are not Dispute Resolution Claimants. This means that if you are a
member of
the Class and do not fall within the definition of a "Dispute Resolution
Claimant," as set out above, you can make a claim for a payment from the
Statutory
Damage Fund. The Statutory Damage Fund provides compensation for potential
statutory damages under the Electronic Fund Transfer Act ("EFTA"), 15 U.S.C.
§§
1693 et seq. Statutory damages under the EFTA are limited by law to no more
than $500,000 for any class of individuals claiming "the same failure to
comply." Plaintiffs' counsel contended in the litigation and for purposes of
settlement that PayPal was potentially liable for multiple failures to
comply, a
position PayPal vigorously opposed.
The Statutory Damage Fund Claim Form requires you to provide certain
identifying information and sign a statement under penalty of perjury
authenticating
your claim, which may be subject to verification by PayPal's records. To
make a
claim for payment from this fund, please complete and submit the Statutory
Damage Fund Claim Form available on the Internet at
https://www.paypal.com/settlement/ in accordance with the instructions on
the form.
3. Dispute Resolution Claimants
The balance of the Net Settlement Fund will be allocated for distribution to
Dispute Resolution Claimants. If you fall within the definition of a
"Dispute
Resolution Claimant," as set out above, you have the right to make a Dispute
Resolution Claim. You can choose to submit either the Short Claim Form or
the
Long Claim Form available on the Internet at
https://www.paypal.com/settlement/. If the Court awards attorneys' fees and
costs in the amount requested, Class
Counsel estimate that there will be approximately $4.3 million to pay the
claims of Dispute Resolution Claimants. Half of the money allocated to
Dispute
Resolution Claimants will be allocated to pay Short Form Claimants (the
"Short
Form Fund"). The other half will be allocated to pay Long Form Claimants
(the
"Long Form Fund").
a. Short Form Claimants
The Short Claim Form requires you to provide certain identifying information
and sign a statement under penalty of perjury, which may be verified using
PayPal's records, that you experienced an unauthorized or incorrect
electronic
transfer or an account limitation or denial of access to your account. If
you
make a timely, valid claim using the Short Claim Form, you will receive a
payment of $50, unless the amount needed to pay all of the Short Form claims
exceeds
the Short Form Fund. In that case, the Short Form Fund will be divided
equally among all Short Form Claimants. If the amount needed to pay all of
the Short
Form claims is less than the amount of the Short Form Fund, the money left
over will be added to the Long Form Fund.
b. Long Form Claimants
The Long Claim Form requires you to provide certain identifying information;
give the details of the account restriction(s) and/or unauthorized
electronic
fund transfer(s) you experienced; state the amount of your claim, and sign a
statement, under penalty of perjury, which may be subject to verification by
PayPal's records, that you actually suffered the claimed damages. You should
also provide any documentation you have that will support your claim, as
explained in more detail on the Long Form.
If you make a timely, valid claim using the Long Claim Form, an independent,
court-approved claims administrator will evaluate your claim and determine
the
amount you should receive. In making this determination, the claims
administrator will take into account the amount of damages you claim; the
nature of
your complaint; the quality of the supporting documentation you provide;
your
recoverable damages; the probability that you would be successful on your
complaint; and such other factors that the claims administrator considers
relevant.
If the amount needed to pay all of the Long Form claims is less than the
amount
of the Long Form Fund, the money left over will be added to the Short Form
Fund.
c. Balance after payment of Long Form and Short Form Claimants
If there are sufficient funds to pay all Short Form and Long Form Claimants
in full in accordance with the written plan of allocation, any remaining
funds
will be divided equally among all Dispute Resolution Claimants to supplement
their recoveries.
7. HOW DO I MAKE A CLAIM AND GET A PAYMENT?
To make a claim for payment, please complete one of the claim forms
(Statutory Damage Claim Form, Short Claim Form, or Long Claim Form)
available on the
Internet at https://www.paypal.com/settlement/. To make a valid claim, you
will
need to (1) fill out the claim form electronically and (2) print the
signature
page of your claim form, sign it and return it by mail to the address
provided on the claim form. You must complete the claims procedure no later
than
October 23, 2004. Your payment will be transferred electronically to your
PayPal
account. If you do not have a current, unrestricted PayPal account or you
indicate on the claim form that you prefer to receive a check, payment will
be made
in the form of a check, sent by first class mail to the address provided on
the claim form. If you are paid by check, a $1.00 charge will be deducted
from
your payment to cover the cost of issuing and mailing the check. The claims
administrator will not issue checks for less than $1.00. Such amounts will
instead be reallocated to those claimants who are entitled to receive
distributions.
8. WHAT AM I GIVING UP IF I PARTICIPATE IN THE SETTLEMENT?
If you do not exclude yourself from the class and the settlement is granted
final approval, the judgment entered upon approval of the settlement will
dismiss the lawsuit with prejudice, and will release any and all claims,
demands,
rights, liabilities, and causes of action of every nature and description
whatsoever, known or unknown, matured or unmatured, at law or in equity,
existing
under federal or state law, that were or could have been asserted in the
Litigation against the Released Persons, including without limitation,
claims under
the Electronic Fund Transfer Act, California Business and Professions Code
§§
17200 et seq.; the California Consumers Legal Remedies Act, Cal. Civ. Code
§§
1750 et seq.; and for PayPal's alleged conversion, breach of the User
Agreement or other contract, money had and received, unjust enrichment, and
negligence
under California law or any other state or federal law arising out of, among
other things, PayPal's restriction or limitation of accounts; PayPal's
dispute
resolution policies, practices and procedures; PayPal's debit of accounts
following the receipt of chargebacks, buyer complaints, reports of
unauthorized
access or in connection with its Seller Protection Policy, Buyer Complaint
Process or Buyer Protection Policy; PayPal's alleged conversion of funds;
and
PayPal's compliance with the Electronic Fund Transfer Act, 15 U.S.C. §§ 1693
et
seq., or any similar legislation arising under the laws of any state. You
will
be permanently barred from bringing any such claims that arose prior to
February 1, 2004. With regard to accounts that were limited prior to
February 1,
2004, however, you will not be releasing claims to recover any balance that
remained in the account 180 days after the account was initially limited.
In summary, if you do not exclude yourself, you will not be able to sue,
continue to sue, or be part of another lawsuit against PayPal relating to
the
legal issues in this case. You will be bound by all proceedings, orders, and
judgments entered in connection with the settlement, whether favorable or
unfavorable, and will be represented by the Representative Plaintiffs and
Class Counsel
for purposes of the settlement. If you do not exclude yourself from the
class, and the settlement is granted final approval, your claims against
PayPal and
its affiliates will be released as described above. If you are a class mem
ber, you may, if you wish, appear in this lawsuit through your own attorney
at
your own expense. You need not do so to participate in the settlement,
however.
9. WHAT IF I WANT TO EXCLUDE MYSELF (OPT-OUT) FROM THE SETTLEMENT?
If you do not want to remain a member of the class and participate in the
settlement, then you must mail or deliver (email is not considered
adequate),
such that it is RECEIVED on or before September 7, 2004, (1) an original
written,
signed request for exclusion to Co-Lead Counsel at the following address:
Co Lead Counsel:
PayPal Class Action Settlement
A. J. De Bartolomeo
Girard Gibbs & De Bartolomeo LLP
601 California Street, Suite 1400
San Francisco, California 94108
and (2) a copy of the written signed request to PayPal's counsel at the
following address:
PayPal's counsel:
PayPal Class Action Settlement
Morgan Lewis & Bockius LLP
One Market
Spear Street Tower
San Francisco, California 94105
This request for exclusion must contain your name and address; be signed by
you; and include the reference "In re PayPal Litigation, Case No.
CV-02-1227-JF
(PVT)."
If you exclude yourself from the class, you will not participate in the
settlement and cannot receive any payment from the settlement. Your claims
will not
be released.
10. HOW WILL THE LAWYERS FOR THE CLASS BE PAID?
From the inception of the litigation in early 2002 to the present, Class
Counsel have not received any payment for their services in prosecuting the
case,
nor have they been reimbursed for any out-of-pocket expenses. If the Court
approves the proposed settlement, Class Counsel will make a motion to the
Court
for an award of attorneys' fees of up to $3,332,500 and reimbursement of
expenses of up to $135,000, to be paid from the $9.25 million settlement
fund. Class
Counsel will also seek reimbursement from the settlement fund on behalf of
certain of the named plaintiffs in the litigation for reimbursement of their
expenses related to their service as class representatives in the
litigation, in
an aggregate amount not to exceed $15,000. The motion will be heard at the
settlement hearing described below in Section 11.
Class Counsel's motion for an award of attorneys' fees and reimbursement of
expenses is based on various factors that include the benefits obtained for
the
class through litigation. These benefits include the $9.25 million cash
settlement and PayPal's agreement to the injunctive relief requirements. In
addition, certain changes to PayPal's business practices are attributable in
part to
this litigation, including PayPal's decision to undertake to return to its
customers approximately $5.1 million in those accounts to which access was
limited for 180 days or more; modifications to PayPal's arbitration
provision in its
User Agreement and its replacement with a clause that limits PayPal's
ability
to compel arbitration where the total amount of the award sought is $10,000
or greater; and various other changes in PayPal's business practices during
the
pendency of the litigation.
Class Counsel submitted their proposed request for attorneys' fees to the
Magistrate Judge who had previously presided over discovery and settlement
discussions. Class Counsel's request for attorneys' fees is equal to the
amount
recommended by the Magistrate Judge.
11. WHEN AND HOW WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT?
The Court will hold a hearing on September 24, 2004, at 9:00 a.m., before
the
Honorable Jeremy Fogel, United States District Judge, United States District
Court for the Northern District of California, Courtroom 3, 5th Floor, 280
South First Street, San Jose, California 95113. The purpose of the hearing
will
be to determine (a) whether the proposed settlement should be approved as
fair,
reasonable, and adequate; (b) whether the application by Class Counsel for
an
award of attorneys' fees and expenses should be granted; and (c) whether the
lawsuit and class members' claims should be dismissed with prejudice
pursuant
to the settlement. The Court reserves the right to adjourn or continue the
hearing without further notice to the class.
You may attend the hearing if you wish, but are not required to do so to
participate in the settlement.
If the settlement is not approved by the Court, the lawsuit will proceed. If
there are further actions taken in the case that affect your rights, you
will
receive notice as determined by the Court.
12. CAN I COMMENT ON THE SETTLEMENT?
If you decide to remain in the class, and you wish to comment in support of
or in opposition to the settlement or Class Counsel's motion for attorneys'
fees and expenses, you may do so by mailing or delivering your written
(non-email) comments, such that they are RECEIVED on or before September 3,
2004, as
follows: (1) the original must be sent to the Court at the following
address:
Clerk of the Court
United States District Court for the Northern District of California
280 South First Street
San Jose, California 95113
and (2) copies must be sent to Co Lead Counsel and PayPal's counsel at the
addresses listed in Section 9, above.
Your written comments must contain your name and address; be signed by you;
and include the reference In re PayPal Litigation, Case No. CV-02-1227-JF
(PVT). If you wish to appear and present your comments orally at the
hearing, your
written comments must contain a notice that you intend to appear and be
heard,
a statement of the position you intend to present at the hearing, and any
supporting arguments.
If you do not comply with the foregoing procedures and deadlines for
submitting written comments or appearing at the hearing, you will not be
entitled to
be heard at the hearing; contest or appeal from approval of the settlement
or
any award of attorneys' fees or expenses; or contest or appeal from any
other
orders or judgments of the Court entered in connection with the settlement.
13. HOW CAN I GET MORE INFORMATION ABOUT THE SETTLEMENT?
You can get more information by writing Plaintiffs' Co-Lead Counsel
electronically or by first class mail at:
paypalsettlement@xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Girard Gibbs & De Bartolomeo LLP
601 California Street, Suite 1400
San Francisco, California 94108
Wolf Popper LLP
845 Third Avenue
New York, NY 10022
This notice is a summary and does not describe all details of the
settlement.
For full details of the matters discussed in this notice, you may wish to
review the Settlement Agreement dated June 11, 2004 and on file with the
Court or
visit https://www.paypal.com/settlement/. Complete copies of the Settlement
Agreement and all other pleadings and papers filed in the lawsuit are also
available for inspection and copying during regular business hours, at the
Office
of the Clerk of the Court, United States District Court for the Northern
District of California, 280 South First Street, San Jose, California 95113.
PLEASE DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE.
DATED: July 12, 2004
BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA
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