SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
|
DAVID MULLENS, on behalf of himself and all others similarly situated and the General Public, Plaintiff, v. SYMANTEC CORPORATION, and DOES 1 through 20, Defendants. |
Case No.: 1-06-CV-068535 UNLIMITED JURISDICTION CLASS ACTION NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT Judge: Hon. James Emerson Dept.: 19 Date: November 4, 2008 Time: 9:00 a.m. |
NOTICE TO PERSONS WHO ACQUIRED SYMANTEC’S NORTON GOBACK™,
EITHER AS A STANDALONE PRODUCT OR AS PART OF A
NORTON SYSTEMWORKS™ SOFTWARE PACKAGE
This Notice may affect your rights.
Please read it carefully.
If you acquired Symantec’s Norton GoBack™ (“GoBack”), either as a standalone product or as part of a Norton SystemWorks™ software package containing GoBack manufactured by Defendant, Symantec Corporation (“Symantec”), this notice may be important to you. A proposed settlement has been reached in a lawsuit in which Plaintiff claimed that: (1) GoBack caused a persistent failure of the boot process (e.g. an inability to start Windows); and (2) Symantec allegedly failed to communicate and disclose certain of these facts and circumstances to consumers.
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 June 23, 2009 at 9:00 a.m., before The Honorable James Emerson, Department 19 of the Superior Court of the State of California, Santa Clara 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 August 2, 2006, Plaintiff, David Mullens, commenced an action against Symantec entitled David Mullens v. Symantec Corporation (Santa Clara Superior Court Case No. 06-CV-06853) (the “Action”), which was brought as a putative class action and which asserted claims for violations of California Civil Code §§ 1750 et seq. (Consumer Legal Remedies Act), Business and Professions Code §§ 17200 and 17500 (Unfair Competition and False Advertising), negligent misrepresentation and omission, intentional misrepresentation and omission, and fraud.
Symantec denies the allegations made in the Plaintiff’s complaint, 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 Symantec is correct.
B. The Settlement Class Members
For purposes of settlement, the Court has certified a class consisting of all individuals or legal entities residing or with their principal place of business in the United States (including the District of Columbia and territories and possessions) during the period of time from and including April 1, 2003 up to and including November 4, 2008, the date on which the Court entered an order preliminarily approving the terms and conditions of this settlement agreement (including the manner of providing notice to Settlement Class Members), and within this same Settlement Class Period, (a) acquired not for resale Norton GoBack™ (either alone or as part of a Norton SystemWorks™ suite), and (b) experienced a persistent failure of the boot process (e.g. an inability to start Windows) in connection with the use of GoBack (“Specified Software Issue”), and (c) in order to resolve this Specified Software Issue paid Symantec a fee for customer support (e.g., paid Symantec $29.95 for telephone support) or paid a third-party computer support technician. The Settlement Class is also described in the parties’ Settlement Agreement. To see a copy of the Settlement Agreement, click here.
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, Symantec has agreed to make the following relief available to Settlement Class Members who submit a valid Claim Form. To view and print a copy of the Claim Form, click here.
(a) For any Settlement Class Member who paid Symantec a fee for customer support (e.g., paid Symantec $29.95 for telephone support) with regard to a Specified Software Issue, Symantec will provide and send to such Settlement Class Member, at Symantec’s expense, a ten dollar ($10.00) certificate redeemable on the purchase of Symantec product(s) or services from the Symantec on-line store. The certificate is non-transferable and will be redeemable for a period of one (1) year from issuance.
(b) For any Settlement Class Member who paid for a third-party computer support technician with regard to a Specified Software Issue, Symantec will provide such Settlement Class Member with a cash payment equivalent to 20% of the out-of-pocket payment made to acquire such support, up to a maximum $40 payment per claimant.
Claims must be submitted on the Claim Form available here, and must be submitted by May 4, 2009 (subject to change by the Court). No Settlement Class Member may submit more than one (1) claim form with respect to each copy of GoBack acquired by the Settlement Class Member (up to a maximum of three (3) claims per household). All claims are subject to verification and validation by Symantec. Claims will not be processed until after Final Approval.
2. Awards to the Representative Plaintiff and Plaintiff’s Counsel
Under the terms of the settlement, the Representative Plaintiff (David Mullens) will receive an incentive award of $1,000 for his participation in the litigation, subject to approval by the Court. Plaintiff’s Counsel will apply for an award of attorneys’ fees, costs and expenses in the sum of $175,000 for their work in connection with the prosecution of this action. Subject to Court approval, Symantec will pay that award. Neither the Representative Plaintiff’s incentive award nor any attorneys’ fee award made by the Court or paid by Symantec 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 David Mullens v. Symantec Corporation 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 that actually were, or could have been, asserted in the Action based upon the facts alleged in the Complaint, 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, Seek to Intervene or Opt Out
Any Settlement Class Members who object to the settlement and who 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 SYMANTEC, AT THE ADDRESSES SET OUT BELOW ON OR BEFORE MAY 4, 2009. ANY OBJECTIONS TO THE SETTLEMENT MUST BEGIN WITH THE FOLLOWING STATEMENT: “I OBJECT TO THE PROPOSED SETTLEMENT IN DAVID MULLENS v. SYMANTEC CORPORATION, Case No. 1-06-CV-068535, California Superior Court, Santa Clara County.” All objections must state the objector’s name, address, and telephone number, shall provide documents to establish membership in the Settlement Class, and shall provide a detailed written statement of each objection asserted, including all grounds for the objection and reasons, if any, for requesting the opportunity to appear and be heard at the final approval hearing. Objections must be filed with the Clerk of the Court, Santa Clara County Superior Court, 191 N. First Street, San Jose, California 95113, with copies sent to Plaintiff’s Counsel: Joshua C. Ezrin, Audet & Partners, LLP, 221 Main Street, Suite 1460, San Francisco, CA 94105 and Symantec’s Counsel: Robert B. Hawk, Hogan & Hartson LLP, 525 University Avenue, 2nd Floor, Palo Alto, CA 94301.
Any Settlement Class Members who wish to intervene in the Action and that have not excluded themselves from the settlement, may file a motion to intervene with the Court. ANY SUCH MOTION MUST BE FILED WITH THE CLERK OF THE COURT AND SERVED ON THE ATTORNEYS FOR THE SETTLEMENT CLASS AND SYMANTEC, AT THE ADDRESSES SET OUT BELOW ON OR BEFORE MAY 4, 2009. Any motion or request to intervene must state the requesting party’s name, address, and telephone number, shall provide documents to establish membership in the Settlement Class, and shall provide all arguments and documents in support of the intervention request. Motions or requests for intervention must be filed with the Clerk of the Court, Santa Clara County Superior Court, 191 N. First Street, San Jose, California 95113, with copies sent to Plaintiff’s Counsel: Joshua C. Ezrin, Audet & Partners, LLP, 221 Main Street, Suite 1460, San Francisco, CA 94105 and Symantec’s Counsel: Robert B. Hawk, Hogan & Hartson LLP, 525 University Avenue, 2nd Floor, Palo Alto, CA 94301.
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 May 4, 2009, and addressed to Mullens v. Symantec Corp. Settlement Administrator, c/o Rosenthal & Company LLC, P.O. Box 6177, Novato, CA 94948-6177. 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, intervene or participate in the settlement.
Any Settlement Class Member who fails to properly or timely file or serve any of the requested information and/or documents required to object to the settlement, request to intervene or exclude themselves, will be forever precluded from doing so.
E. Court Hearing and Final Approval
The proposed Settlement Agreement must be finally approved by the Court. On June 23, 2009 at 9:00 a.m., in Department 19, Santa Clara Superior Court, 191 N. First Street, San Jose, California 95113, a hearing will be held on whether the proposed settlement should be approved as fair, reasonable and adequate.
If you file a proper, 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 OR TO SEEK TO INTERVENE, YOU MUST NOTIFY THE COURT AND COUNSEL IN WRITING OF YOUR INTENTION TO DO SO, WITH YOUR WRITTEN OBJECTION AND REASONS THEREFOR, AND/OR REQUEST OR MOTION TO INTERVENE AND SUPPORTING ARGUMENTS AND DOCUMENTS IN SUPPORT THEREOF, FILED AND SERVED AS DESCRIBED ABOVE. DO NOT CALL OR PERSONALLY CONTACT THE COURT OR SYMANTEC ABOUT MATTERS SET FORTH IN THIS NOTICE.
Any written objections to the Settlement, requests to intervene 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 May 4, 2009.
F. Examination of Papers
This website also includes the following documents. To view those documents, simply click on the links below:
G. Additional Information
DO NOT CONTACT THE COURT OR SYMANTEC CONCERNING THIS NOTICE OR THE LAWSUIT. If you would like more information about this notice or this case, you may contact:
Joshua C. Ezrin
Audet & Partners, LLP
221 Main Street, Suite 1460
San Francisco, CA 94105
Telephone: (415) 568-2555
Fax: (415) 568-2556
| Dated: November 4, 2008 | The Honorable James Emerson Judge, Superior Court of California County of Santa Clara |