NOTICE OF PROPOSED CLASS SETTLEMENT
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THIS NOTICE AFFECTS YOUR RIGHTS.
PLEASE READ THE ENTIRE NOTICE CAREFULLY
TO: ALL PERSONS WHO, PRIOR TO JUNE 30, 2000, PURCHASED IN THE UNITED
STATES OF AMERICA FOR THEIR OWN USE AND NOT FOR RESALE TO OTHERS A
NEW JORNADA 400 SERIES PALM-SIZE PC OR A NEW JORNADA 540 SERIES COLOR
POCKET PC MANUFACTURED AND DISTRIBUTED BY HEWLETT-PACKARD CO. THAT IS
ONE OF THE FOLLOWING MODELS:
(a) Jornada 400 Series Palm-size PC, Model Nos. 420 and 430; or
(b) Jornada 540 Series Color Pocket PC, Model Nos. 540, 545 and 548.
This notice ("Class Notice") is to advise you as a member of the Settlement
Class, as that term is defined in Section I below, of the filing and status
of a lawsuit pending in the Superior Court of San Diego County, California
(Civil Action No. GIC 748858) (the "Action") and of your rights with
respect to a proposed settlement of the Action (including certain rights
you can lose if you do not protect them). These rights include the right
to be excluded from the settlement. If you are a member of the Settlement
Class and do not request exclusion from the settlement, you will be bound
by the terms of the Settlement Agreement and Release (the "Agreement").
Any capitalized terms used in this Class Notice that are not defined shall
have the meaning specified in the Agreement. Please read this entire
notice carefully to understand your rights and options.
I. BACKGROUND
1. In the Action, Richard Feferman ("Class Representative") claims that
Hewlett-Packard Co. ("HP" or "Defendant") misrepresented the functionality
and capabilities of the Jornada 400 Series Palm-size PC, Model Nos. 420 and
430, and the Jornada 500 Series Pocket PC, Model Nos. 540, 545 and 548 (the
"Product"), including but not limited to (a) the color display capability of
the Product, and (b) failing to disclose adequately that the use of a
separately purchased modem connected to a land telephone line, or the use of
a mobile telephone, was required to access the Internet and e-mail, that the
Internet and e-mail could not be accessed any time and anywhere, that
certain mobile telephones are not compatible with the Jornada, and that not
all web content was accessible. Defendant denies the Class Representative's
allegations and alleges numerous affirmative defenses.
2. The Court has conditionally ruled that this Action may be maintained on
behalf of the Settlement Class defined as:
All persons who, prior to June 30, 2000, purchased in the United States of
America for their own use and not for resale to others, a new Jornada 400
Series Palm-size PC or a new Jornada 540 Series Color Pocket PC manufactured
and distributed by Hewlett-Packard Co. that is one of the following models:
(a) HP Jornada 400 Series Palm-size PC, Model Nos. 420 and 430; and
(b) HP Jornada 540 Series Color Pocket PC Model Nos. 540, 545 and 548.
3. The settlement is subject to approval by the Court. A hearing will be
held in Department 66 of the California Superior Court for the County of San
Diego, 330 West Broadway, San Diego, California 92101, on January 19, 2001,
at 2:00 p.m. for the purpose of determining whether the settlement should be
finally approved.
4. This notice is not intended to be and should not be construed as an
expression of any opinion of the Court with respect to the truth of the
allegations in the Action or the merits of the claims or defenses asserted.
This notice is merely to advise you of the pendency and proposed settlement
of the Action and of your rights thereunder.
II. TERMS OF PROPOSED SETTLEMENT
1. Subject to the Court's final approval, the Class Representative and
Defendant have signed the Agreement, which provides that Defendant shall
make available to Settlement Class Members who do not request exclusion the
option of returning the Product for a full cash refund of the purchase price
paid by the Settlement Class Members (including all taxes). All shipping
expenses related to the return of the Product will be paid by HP.
2. The Agreement also provides that HP shall, in addition to its prior
notification, provide written notice by no later than November 22, 2000, to
all HP authorized resellers of the Product directing that they correct all
references in any sales materials to the color capability of the Product and
further directing that their sales employees be advised of this correction.
Such notice shall further direct the HP authorized resellers of the Product
to disclose to all potential purchasers that certain accessories must be
purchased separately and at additional cost in order for the Product to
perform certain functions, and of the web access capabilities of the
Product.
3. The settlement is conditioned on the Court's determination that the total
amount payable to Settlement Class Members is the amount that will be paid
to Settlement Class Members who register to receive a refund on or before
November 22, 2000, pursuant to the procedures set forth in Section III, and
that there will be no unpaid residual pursuant to Cal. Civ. Proc. Code §
384.
4. Defendant has also agreed to pay, subject to and to the extent of Court
approval, a sum not to exceed $300,000, in full payment of the attorneys'
fees and expenses of the Class Representative and Settlement Class relating
to the settlement.
5. Under the terms of the Agreement, members of the Settlement Class who do
not request exclusion, on behalf of themselves and their heirs, assigns and
successors, fully release and forever discharge the following entities
("Released Entities"):
HP and each of its subsidiaries and their respective past and present
directors, officers, employees, agents, insurers, shareholders, attorneys,
advisors, representatives, partners, affiliates, parents, subsidiaries,
joint venturers, consultants, independent contractors, resellers,
distributors, retailers, vendors, suppliers, related companies and
divisions, and each of their predecessors, successors, heirs and assigns,
whether or not specifically named herein, from any and all "Released
Claims," which is defined in the Agreement as follows:
any and all claims, rights, demands, actions, causes of action, suits,
debts, liens, contracts, liabilities, agreements, attorneys' fees, costs,
expenses or losses of any kind whatsoever, whether raised by claim,
counterclaim, setoff or otherwise, including any known or unknown claims,
which any Settlement Class Member has or may have, now or in the future,
against the Released Entities, or any of them, arising out of, or in any way
related to the conduct, facts, circumstances and/or allegations referred to
in the Action, or based on, arising out of, or in any way related to
statements or representations regarding any aspect of the Product, including
but not limited to its color display, functionality or access capabilities.
The Plaintiff and Settlement Class Members hereby acknowledge the existence,
and expressly waive the application of, any Federal or State law that would
otherwise limit the waiver of unknown claims, including, without limitation,
the application of Cal. Civ. Code § 1542, which provides as follows: "A
general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known to him must have materially affected his settlement with the
debtor."
6. Defendant and the Released Entities dispute wrongdoing and liability.
The proposed settlement is a compromise of contested claims. The terms of
the settlement are a matter of public record and are not confidential.
III. RIGHTS AND OPTIONS OF SETTLEMENT CLASS MEMBERS
You have the following rights and options:
1. You may return the product for a full refund of the purchase price
(including all taxes). All shipping expenses relating to the return of the
Product will be paid by HP. HP welcomes these returns for any reason
whatsoever. To obtain a refund, you must call HP toll-free at 1-(800)
294-6160 before 5:00 p.m. Pacific Standard Time on November 22, 2000, to
register. Registrants will be asked to provide HP with their names,
addresses, the model numbers of the Product being returned, and the receipts
or other proof of the purchase dates. If the settlement is finally
approved, within ten days of the Effective Date of the settlement, HP will
send to each person who requests a refund a packet of materials containing
directions for packing the Product and the accessories that were included
with the Product when it was purchased; shipping labels; and instructions
for having the Product picked up or dropped off to Federal Express and
delivered to HP.
A. If you do not request exclusion, you will be bound by any judgment or
other disposition of this Action, even if you do not return the Product for
a full refund. Further, you, your heirs, executors, administrators,
representatives, agents, partners, successors, and assigns will be deemed to
have agreed to the terms of the release and discharge set forth in Section
II.
B. If you do not request exclusion, the Class Representative and the
attorneys representing the Class Representative ("Class Counsel") will
represent your interests at no charge to you. Class Counsel is Howard D.
Finkelstein, Esq., Finkelstein & Krinsk, 501 West Broadway, Suite 1250, San
Diego, CA 92101; telephone (619) 238-1333; fax (619) 238-5425.
2. You may request exclusion. If you request exclusion from the Settlement
Class, you will not be bound by any judgment or settlement of this Action,
and you will not be entitled to return the Product for a full refund. If
you wish to be excluded, you must send a request for exclusion stating:
(1) your name, address, and telephone number; (2) the approximate date of
purchase the Product; (3) the serial number of the Product; and (4) that you
wish to be excluded from the Settlement Class, postmarked on or before
November 22, 2000, to: (1) Class Counsel, Howard D. Finkelstein, Esq.,
Finkelstein & Krinsk, 501 West Broadway, Suite 1250, San Diego, CA 92101;
and (2) HP's Counsel, Gail E. Lees, Esq., Gibson, Dunn & Crutcher LLP, 333
South Grand Avenue, Los Angeles, CA 90071. Requests for exclusion will not
be accepted if made verbally, or by fax, e-mail, or other means. Failure to
follow these instructions for requesting exclusion will result in a waiver
of your right to exclude yourself from the Settlement Class.
3. You may object to the settlement. If you do not request exclusion from
the Settlement Class and you are a member of the Settlement Class, you may
object to the settlement and/or the payment of Class Counsel's fees and
costs by filing a written objection with the Clerk of the Superior Court of
San Diego, California, 330 West Broadway, San Diego, CA 92101. Objections
must be filed at the Superior Court Clerk's office no later than December
20, 2000. A copy of any objection must also be mailed, postmarked no later
than December 10, 2000, to: (1) Class Counsel, Howard D. Finkelstein, Esq.,
Finkelstein & Krinsk, 501 W. Broadway, Suite 1250, San Diego, CA 92101; and
(2) HP's Counsel, Gail E. Lees, Esq., Gibson, Dunn & Crutcher LLP, 333 South
Grand Avenue, Los Angeles, CA 90071. If you wish to speak in person at the
Settlement Hearing, you must indicate this intention in your written
objection. If you support the proposed settlement, you do not need to
appear at the hearing or take any action to indicate your approval.
IV. SETTLEMENT HEARING
The Court has preliminarily approved the proposed settlement, conditionally
certified the Settlement Class, and approved appointment of the Class
Representative and Class Counsel. The Court will hold a hearing in
Department 66 of the Superior Court of San Diego County, California, 330 W.
Broadway, San Diego, CA 92101, on January 19, 2001, at 2:00 p.m. to
determine whether, as recommended by the Class Representative and Class
Counsel, the Court should give final approval to the proposed settlement.
At that hearing, or on a date to be determined by the Court, the Court will
also consider Class Counsel's application for fees and expenses.
Objections to the proposed settlement and/or Class Counsel's application for
fees and expenses will only be considered by the Court if such objections
are filed in writing with the Clerk no later than December 20, 2000, and
mailed to Howard D. Finkelstein and Gail E. Lees, postmarked no later than
December 10, 2000. Attendance at the hearing is not necessary. However, if
you wish to speak in person at the settlement hearing you must indicate this
intention in your written objection.
V. FURTHER PROCEEDINGS
You must register your return on or before Wednesday, November 22, 2000, in
accordance with the provisions of Section III. If the settlement is finally
approved, within ten days of the Effective Date of the settlement,
registrants will be sent a packet of materials containing directions for
packing the Product and the accessories that were included with the Product
when it was purchased; shipping labels; and instructions for having the
Product picked up or dropped off to Federal Express and delivered to HP at
no additional cost to the Settlement Class Members.
If the settlement is not approved or if it is approved but the Judgment does
not become Final, the Court will vacate the conditional certification of the
Settlement Class, and appointment of the Class Representative and Class
Counsel, and the case will proceed as though the Settlement Class had never
been certified, the appointments had not been made, and the Settlement
Agreement had not been executed.
VI. DEADLINES YOU MUST FOLLOW
1. TO REGISTER YOUR RETURN, YOU MUST CALL HP TOLL FREE AT 1-(800) 294-6160
BEFORE 5:00 P.M., PACIFIC STANDARD TIME ON WEDNESDAY, NOVEMBER 22, 2000.
2. IF YOU WISH TO BE EXCLUDED FROM THE SETTLEMENT CLASS, YOU MUST SEND YOUR
REQUEST FOR EXCLUSION, POSTMARKED ON OR BEFORE NOVEMBER 22, 2000, TO (1)
CLASS COUNSEL, HOWARD D. FINKELSTEIN, ESQ., FINKELSTEIN & KRINSK, 501 WEST
BROADWAY, SUITE 1250, SAN DIEGO, CA 92101; AND (2) HP'S COUNSEL, GAIL E.
LEES, ESQ., GIBSON, DUNN & CRUTCHER LLP, 333 SOUTH GRAND AVENUE, LOS
ANGELES, CA 92007.
3. IF YOU WISH TO OBJECT TO THE PROPOSED SETTLEMENT AND/OR PAYMENT OF CLASS
COUNSEL'S FEES AND COSTS, FILE YOUR WRITTEN OBJECTION WITH THE CLERK OF THE
SUPERIOR COURT OF SAN DIEGO COUNTY, CALIFORNIA, 330 WEST BROADWAY, SAN
DIEGO, CA 92101 NO LATER THAN DECEMBER 20, 2000. YOU MUST ALSO MAIL A COPY
OF THE OBJECTION, POSTMARKED NO LATER THAN DECEMBER 10, 2000, TO: (1) CLASS
COUNSEL, HOWARD D. FINKELSTEIN, ESQ., FINKELSTEIN & KRINSK, 501 WEST
BROADWAY, SUITE 1250, SAN DIEGO, CA 92101; AND (2) HP'S COUNSEL, GAIL E.
LEES, ESQ., GIBSON, DUNN & CRUTCHER LLP, 333 SOUTH GRAND AVENUE, LOS
ANGELES, CA 92007. IF YOU WISH TO SPEAK IN PERSON AT THE SETTLEMENT
HEARING, YOU MUST INCLUDE YOUR REQUEST ALONG WITH YOUR WRITTEN OBJECTION.
VII. ADDITIONAL INFORMATION; OBTAINING A COPY OF THE SETTLEMENT AGREEMENT
AND RELEASE
If you have any questions about the matters in this Notice of Proposed Class
Settlement or if you wish to obtain a copy of the Settlement Agreement and
Release, you may contact Class Counsel, Howard D. Finkelstein, Esq.,
Finkelstein & Krinsk, 501 West Broadway, Suite 1250, San Diego, CA 92101,
telephone: (619) 238-1333; facsimile: (619) 258-5425. Questions may not
be directed to the Court.
You may, of course, seek the advice and guidance of your own attorney if you
desire. The pleadings and other records in this litigation, including the
Settlement Agreement and Release, may be examined and copied at any time
during regular office hours at the office of the Clerk of the Superior Court
of San Diego County, California, 330 West Broadway, San Diego, CA 92101.
Dated: October 27, 2000
The Honorable Charles R. Hayes
Superior Court of the State of
California for the County of San Diego |
