Hi All, Got a letter the other day and then this email with the same content (see below). Have anyone heard about this ?? or is this some sort of scam? I don't know what to do... Regards, Jan, Sweden Subject: Notice of Class Action Settlement (OMS v. Yahoo!) From: "Administrator" <Administrator@omssettlement.yahoo-inc.com> Date: Thu, August 31, 2006 4:22 am To: Options: View Full Header | View Printable Version * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * IMPORTANT: To submit a Claim Form for the class action settlement described in this Notice, please visit: http://www.omsbudgetingsettlement.com You will be asked to provide the following information: Login: Password: * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ONLINE MERCHANT SYSTEMS, INC., an Illinois Corporation, on behalf of itself, all others similarly situated, and the general public, Plaintiff, vs. OVERTURE SERVICES, INC., a Delaware corporation; and YAHOO!, INC., a Delaware corporation, Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Case No. 05-4833-RGK (MAN) NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT AND PROPOSED HEARING DATE FOR COURT APPROVAL * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * THIS NOTICE MAY AFFECT YOUR RIGHTS PLEASE READ ALL OF IT CAREFULLY ATTENTION: ALL PERSONS OR ENTITIES WHICH BID AND PAID FOR ADVERTISING PLACEMENT IN YAHOO!'S SEARCH MARKETING SYSTEM IN AN ADVERTISING AUCTION CONTAINING AT LEAST ONE BIDDER WHO USED THE BUDGETING FEATURE AT ANY TIME BETWEEN OCTOBER 1, 2004 AND JUNE 1, 2005 1. Why Did I Get this Notice? You have received this Notice because the records of Yahoo! indicate that you are a current or former Yahoo! Search Marketing account holder who bid and paid for advertising placement in Yahoo!'s Search Marketing System at some time between October 1, 2004 and June 1, 2005. You are a member of the Settlement Class in a proposed class action settlement pending in the United States District Court for the Central District of California. 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 individuals or businesses, called Class Representatives (in this case Online Merchant Systems, Inc.) sue on behalf of others that have similar claims. All of these other individuals or businesses 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 R. Gary Klausner is in charge of this class action. 3. What are the Critical Dates? October 14, 2006 The last date to submit your Claim Form if you are willing to be bound by the Settlement and want to receive your share of the settlement credits. October 14, 2006 The last date to submit your written request to be excluded from the Settlement if you are not willing to be bound by it and do not want to receive any credit. October 14, 2006 The last date to submit any written objection to the Settlement. October 23, 2006 The hearing on any objections and to give final approval to the Settlement. No earlier than December 7, 2006 The approximate date payment processing begins if there are no objections, appeals, or Court ordered extensions. 4. Why Should I Read this Notice? This Notice is given pursuant to an Order of the Court, dated August 21, 2006. The purpose of this Notice is to inform you that a settlement has been reached between the parties in the case ("the Action") on behalf of all persons or entities which bid and paid for advertising placement in Yahoo!'s Search Marketing System in an advertising auction containing at least one bidder who used the budgeting feature at any time between October 1, 2004 and June 1, 2005. You have received this Notice because records indicate that you bid and paid for advertising placement in Yahoo!'s Search Marketing System in an advertising auction containing at least one bidder who used the budgeting feature during this period. The Settlement is subject to final approval by the Court. If this occurs, the Settlement will result, among other things, in (a) a distribution of unrestricted credits to the accounts of the Class Members who remain in the Class and timely submit a valid Claim Form, and (b) the dismissal of the pending Action and the release of certain potential or actual claims which Class Members may have against Yahoo! This Notice is designed to advise you of how you can participate in this Settlement or how to be excluded. 5. What is the Action About? On July 1, 2005, Plaintiff Online Merchant Systems, Inc. ("OMS" or "Plaintiff") filed the Action in which OMS alleged that Defendants Overture Services, Inc. and Yahoo!, Inc.'s ("Yahoo!" or "Defendants") Search Marketing System (the "System") contained certain flaws and inadequate disclosures. The System is used by advertisers to bid for placement of their online advertisements through a bidding auction process. The Action alleges that when the System's budgeting feature was used, certain advertisers would be removed from search results when their daily budgets had been fully exhausted, but their bids would remain visible for other bidders to see in a manner that did not indicate that the advertiser's listings were not currently being returned in response to any queries. The Action further alleges that this flaw and/or inadequate disclosures concerning how the bidding landscape operated, caused advertisers to overbid for advertising placement on the System. OMS asserted claims on a proposed class-wide basis under California state law for unfair business practices and false advertising (Cal. Bus. & Prof. Code sections 17200, 17500 et seq.), unjust enrichment, conversion, and money had and received, and sought injunctive and other equitable relief, damages, costs and attorneys' fees. Yahoo! does not believe it did anything wrong and continues to deny all claims and allegations of wrongdoing asserted in the Action. The Court has not decided in favor of the Plaintiff or Yahoo!. Instead, beginning in March 2006, the parties entered into negotiations and participated in a session mediated by the Honorable John K. Trotter (Ret.). Through this mediation process, the parties were able to reach an agreement in principle. By settling the Action, both parties avoid the uncertainty and costs of a trial. The Settlement provides monetary and other benefits to the Class. On June 9, 2006, the parties entered into a formal, written Settlement Agreement, which is on file with the Court and available at http://www.omsbudgetingsettlement.com. OMS, as Representative Plaintiff, and the attorneys appointed by the Court to represent the Class, believes that the Settlement is fair to Class Members. By this Notice, the Court is not expressing any view on the merits of the lawsuit. On July 25, 2006, Judge Klausner entered an order granting preliminary approval of the Settlement and certifying the following Class for settlement purposes: All persons or entities which bid and paid for advertising placement in Yahoo!'s Search Marketing System in an advertising auction containing at least one bidder who used the budgeting feature at any time between October 1, 2004 and June 1, 2005. You received this Notice because you are a member of the Class, so you are eligible to participate in the Settlement if you choose to. 6. What Does the Settlement Provide? A. Monetary Relief: Under the Settlement, Yahoo! will pay a total of $750,000 in unrestricted credits to the accounts of participating Class Members. Those Class Members who submit a timely and valid Claim Form shall be members of the Settlement Class and shall receive a credit on their account, which credit may be used to pay any or all of the Settlement Class Members' account balance, or may be refunded as cash if there is no outstanding balance. The Class shall be divided into two Sub-Classes: those Class Members who bid and paid for advertising placement at any time from October 1, 2004 to June 1, 2005 (the "Class Period") and used the budgeting feature themselves (the "Budgeting Sub-Class"), and those Class Members who bid and paid for advertising placement during the Class Period but never used the budgeting feature (the "Non-Budgeting Sub-Class"). The credit to each Settlement Class Member submitting a valid and timely claim shall be determined on a percentage basis based on the amount of money spent during the Class Period by each Class Member compared to the total amount of money spent by the advertisers submitting timely and valid claims. The amount spent by Class Members shall be determined based upon Yahoo!'s records. Members of the Non-Budgeting Sub-Class shall be entitled to their pro rata share of $600,000 which shall be available to the Non-Budgeting Sub-Class, and the Budgeting Sub-Class shall be entitled to their pro rata share of $150,000 available to the Budgeting Sub-Class based upon the above formula. B. Enhanced Disclosures: In addition to the monetary relief described above, Yahoo! will take the following actions: - Provide additional information to advertisers further explaining the function of the budgeting feature and, specifically, how advertisers should consider budgeting when evaluating how to bid; - Provide information to all advertisers who view the bid landscape indicating that the bid landscape is not instantaneously updated; - If displaying to advertisers the bids of advertisers with fully exhausted budgets such that the advertisers will not appear in listings for the rest of the day, provide clear signals visible to humans, Yahoo!-approved third-party bidding tools, or bidding robots, that these are "maxed" bids belonging to advertisers who will not appear in search results for the remainder of the day, such signals to be provided as soon as reasonably practicable after the System recognizes that the budget is exhausted; - Provide the disclosures agreed upon herein in three ways such that each advertiser will receive the disclosures at least once: (1) at the time of online sign-up for new advertisers; (2) on an ongoing basis through a website tutorial; (3) to existing advertisers through inclusion in emails sent in the normal course of business (e.g., newsletters, update emails); - Continue to ensure that bids from advertisers with exhausted budgets shall not be considered by Yahoo! in calculating the cost-per-click of other bidders; - Revise its customer service manual to specifically note that customer service representatives should explain, when queried about the budgeting feature, that advertisers are not charged for bids which do not appear in search results. Yahoo! may make further revisions to its policies and practices in response to changes in market conditions, business requirements or applicable law, but if these changes occur, they shall be consistent with these enhanced disclosures. C. Dispute Resolution: Yahoo!'s records as to the amount of money paid by the Class Member during the Class Period are used for calculating the ultimate amount the Class Member may receive. If the Settlement is approved, Claimants will be entitled to dispute the information in the Claim Form, but only as to the amount of money paid by the Class Member during the Class Period (that is, the Settlement Class Member can object to the amount he or she claims to have paid Yahoo! for advertising, but may not dispute the formulas or calculations that determined the Claimant's pro rata share.) If a Settlement Class Member disputes the accuracy of Yahoo!'s records, Yahoo! shall promptly review the disputed claim and supporting documents and notify the Settlement Class Member and Class Counsel of its determination. If the Settlement Class Member continues to dispute Yahoo!'s determination, the Settlement Class Member may elect to submit the dispute to the Honorable John T. Trotter (Ret.) (the "Referee") for a final, binding, non-appealable decision with the understanding that the only such objections permitted are those which challenge the amount paid during the Class Period. Claims that Yahoo! believes are fraudulent or contain inaccurate information will also be decided in this manner. 7. How Do I Make a Claim and Get a Payment? To make a claim for payment, please complete the Claim Form that is available at http://www.omsbudgetingsettlement.com. A sample of this Claim Form is attached. Click here to access the attached claim form: http://content.dynamicmessenger.com/rustconsulting/images/8/SampleClaimForm.pdf You will need to (1) fill out the Claim Form electronically; and (2) submit the Claim Form electronically on or before October 14, 2006. If you are receiving this Notice by U.S. Mail, you may either complete the Claim Form that is attached to this Notice, or complete the Claim Form that is available at http://www.omsbudgetingsettlement.com. Your payment will be transferred electronically to your Yahoo! account and will be applied to your account balance, or if you have no outstanding balance, will be credited to your account to either withdraw or use toward a future balance. 8. What Am I Giving Up If I Participate in the Settlement? The Settlement provides that once the Court enters an order finding the proposed Settlement fair, adequate and reasonable, and all appeals have been resolved or all appeal periods have expired, those Class Members who have not timely requested exclusion from this Action shall be deemed to have and by operation of the Judgment shall have fully, finally and forever released, relinquished and discharged all Released Claims as set forth below. Specifically, the Settlement is intended to settle all claims against Yahoo! that members of the Settlement Class have asserted or could have asserted in the Action based upon or in any way relating to Yahoo!'s budgeting feature in its Search Marketing System through June 1, 2005. The release will extend to Yahoo! and its past or present directors, officers, employees, partners, principals, agents underwriters, issuers, insurers, co-insurers, reinsurers, controlling shareholders, attorneys, any entities involved directly or indirectly in this Action in which Yahoo! has had a controlling interest or that have controlled Yahoo! at any relevant time, accountants, auditors, banks or investment bankers, advisors, personal or legal representative, predecessors, successors, parents, subsidiaries, licensees, divisions, joint ventures, assigns, associates, and related or affiliated entities. If the Settlement is approved by the Court and not otherwise terminated, the Court will dismiss the Action with prejudice, and bar and permanently enjoin the named Plaintiff and each Class Member from prosecuting the Released Claims. As a result, once the Judgment of Court in accordance with this Settlement has become final (the "Effective Settlement Date"), each of the Class Members and their legal successors-in-interest shall be deemed to have forever given up any Released Claims against Yahoo! and the other released parties. If you bid and paid for advertising placement in Yahoo!'s Search Marketing System in an advertising auction containing at least one bidder who used the budgeting feature at any time between October 1, 2004 and June 1, 2005, and do not elect to exclude yourself from the Settlement Class, you will be deemed to have entered into this release and to have released the above-described claims. If the Settlement is not approved by the Court or does not become final for some other reason, the litigation will continue. 9. Why are Class Counsel Recommending this Settlement? Relative to the risks and costs of continuing the litigation, Class Counsel believe this Settlement provides a favorable recovery which is in the best interests of the Class. Class Counsel's collective evaluation in this regard is based on the extensive investigation and discovery they have undertaken, and upon their experience prosecuting similar cases. Absent settlement, Plaintiff would have to secure class certification on the claims set forth in the Action over the strenuous opposition of Yahoo!. Additionally, at trial, Plaintiff would have the burden of proof to establish liability and the amount of damages. The case involves many unresolved factual and legal issues, some of which could be decided against Plaintiff at or before trial, and which would jeopardize Plaintiff's ability to certify a class or to obtain a favorable judgment and preserve it on appeal. In addition, settling the case now has the further advantage of avoiding the very substantial additional costs and delay that further litigation would involve. Yahoo! has made it clear that it would likely seek appellate review of a grant of class certification outside the Settlement context and any final adverse result at trial. Thus, absent settlement, it is likely to be years before the litigation ends and Class Members receive a monetary recovery, if any. Given the costs involved in further litigation and the time-value of money, even if a favorable judgment were obtained at trial, it could well produce less net recovery to the Class Members than the present Settlement. 10. What If I Do Not Wish to Participate in the Settlement? If you do not want to remain a member of the Class and participate in the Settlement, then you must email or send by mail (to the address indicated on the form) a signed Request for Exclusion form. The signed Request for Exclusion form must include your name, Yahoo! account number(s), address, telephone number, and a statement indicating a desire to not participate in the Settlement. You can obtain the form at http://www.omsbudgetingsettlement.com. Your signed Request for Exclusion must be received by the Settlement Administrator, electronically or by first class mail, no later than October 14, 2006. If you validly request exclusion from the Settlement, (1) you will be excluded from the Settlement; (2) you will not share in the proceeds of the proposed Settlement which are available for distribution as described above; (3) you will not be bound by any judgment or release entered in this Action; and (4) you will retain the option to pursue your claims, if timely, on an individual basis at your own expense against the Defendants. If you do not request exclusion, you will be bound by the terms of the Settlement, even if you do not file a Claim Form. rest in the tread...
Hi All, Below is the rest of the emial I recived... Regards, Jan 11. How Will the Lawyers for the Class Be Paid? From the inception of the litigation in July 2005 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 and reimbursement of expenses of up to $420,000. Class Counsel will also seek an enhanced award for the Representative Plaintiff in the amount of $2,500. The amount of attorneys' fees to be awarded will be subject to the Court's discretion, but in any event, will not exceed $420,000. Similarly, the amount of the Representative Plaintiff's enhanced award, if any, will be subject to the Court's discretion, but in any event, will not exceed $2,500. These two awards will not affect the $750,000 Settlement Fund or the amount awarded to individual, unnamed Class Members. Class Counsel's motion will be filed according to the applicable rules of court after the hearing on final approval of the Settlement. 12. Can I Comment on the Settlement? If you decide to remain in the Class, you may comment in support of or in opposition to the Settlement. Your comments must be mailed or delivered, such that they are received on or before October 14, 2006, 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 Central District of California 255 East Temple Street Los Angeles, California 90012 and (2) copies must be sent to Class Counsel and Defendants' Counsel at the addresses listed below. Class Counsel Mark J. Tamblyn WEXLER TORISEVA WALLACE LLP 1610 Arden Way, Suite 290 Sacramento, California 95815 C. Brooks Cutter KERSHAW CUTTER & RATINOFF LLP 980 9th Street, Suite 1900 Sacramento, California 95814 Defendants' Counsel Gayle M. Athanacio, Esq. SONNENSCHEIN NATH & ROSENTHAL LLP 525 Market Street, 26th Floor San Francisco, California 94105-2708 Your written comments must contain your name and address, be signed by you, and include the reference Online Merchant Systems, Inc. v. Overture Services, Inc., Case No. 05-4833-RGK (MAN). If you object to the Settlement, and if you intend to appear at the approval hearing, you must include with your written objection a Notice of Intention to Appear at the Final Approval Hearing currently set for October 23, 2006 at 9:00 a.m. Your Notice of Intention to Appear must include a statement that you intend to appear and be heard, a statement of the position you intend to present at the hearing, and any supporting arguments. You will be solely responsible for the fees and costs of your attorney, if you intend to appear through an attorney. If the Court rejects your objection, you will still be bound by the terms of the Settlement. 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. When Will the Court Decide Whether to Approve the Settlement? The Court will hold a hearing on October 23, 2006 at 9:00 a.m., before the Honorable R. Gary Klausner, United States District Judge, United States District Court for the Central District of California, Courtroom 850, 255 East Temple Street, Los Angeles, California 90012. The purpose of the hearing will be to determine (a) whether the proposed Settlement should be approved as fair, reasonable, and adequate; and (b) 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, unless you have timely submitted a Notice of Intention to Appear. 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. Unless otherwise ordered by the Court, any Class Member who does not make his or her objection or opposition in the manner provided shall be deemed to have waived all objections and opposition to the fairness, reasonableness and adequacy of the proposed Settlement, the distribution of settlement payments to and among Class Members, the fee and expense application, and the incentive payment application, and will have no other chance to object or oppose any of these items. 14. Where Can I Find Additional Information? If you have questions you may call a special Settlement Administration line at 1-800-616-1481 weekdays, 9:00 a.m. to 5:00 p.m., Pacific Standard Time. You can also get more information by writing Class Counsel electronically or by first class mail, or by telephoning Class Counsel at: Mark J. Tamblyn WEXLER TORISEVA WALLACE LLP 1610 Arden Way, Suite 290 Sacramento, California 95815 mjt@wtwlaw.us (916) 568-1100 C. Brooks Cutter KERSHAW CUTTER & RATINOFF LLP 980 9th Street, Suite 1900 Sacramento, California 95814 bcutter@kcrlegal.com (916) 448-9800 This Notice is only 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 on file with the Court or visit http://www.omsbudgetingsettlement.com. 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 Central District of California, 255 East Temple Street, Los Angeles, California 90012. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * PLEASE DO NOT TELEPHONE THE COURT OR THE OFFICE OF THE CLERK FOR INFORMATION REGARDING THIS SETTLEMENT OR THE CLAIM PROCESS. BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Questions? Call 1-800-616-1481 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *** Please do not reply to this e-mail message. *** If you are having trouble viewing this message, click on the link below or copy and paste the link into your browser's address field. http://content.dynamicmessenger.com/rustconsulting/?0AyqsSVj9EE.SxPbJjBYrkQTlO0 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Click here to access the attached claim form: http://content.dynamicmessenger.com/rustconsulting/images/8/SampleClaimForm.pdf * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *