Sims v. Cellco Partnership

Filing 74

ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE AND HEARING. The application for attorney's fees or reimbursement of expenses, and all papers filed in support of the Settlement and in response to any objections, shall be filed on July 10, 2009. The Settlement Hearing shall be conducted on July 24, 2009. Signed by Judge Maxine M. Chesney on February 18, 2009. (Attachments: # 1 Exhibit One, # 2 Exhibit Two) (mmclc1, COURT STAFF) (Filed on 2/18/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF PENDENCYAND PROPOSED SETTLEMENT OF CLASS ACTION v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, a Delaware general partnership. Defendant. MICHELLE SIMS, individually and on behalf of a class of similarly-situated individuals, Plaintiff, Case No. 3:07-cv-1510-MMC CLASS ACTION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

If you were charged by Verizon Wireless for third party mobile content that you did not subscribe for but that was subscribed for by the previous owner or user of your mobile telephone number, you could be entitled to benefits under a class action settlement.
The United States District Court, Northern District of California, authorized this notice. This is not a solicitation from a lawyer. If you are a member of the class and the Court approves the settlement:
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You may be eligible to receive up to a $15 refund in the form of a credit on your Verizon Wireless bill or a cash payment. Your legal rights are affected whether you act or don't act. Please read this notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

SUBMIT A CLAIM FORM The only way to get a refund. EXCLUDE YOURSELF OBJECT GO TO A HEARING DO NOTHING
Get no refund. This is the only option that allows you to ever be part of any other lawsuit against Verizon Wireless about the legal claims in this case. Write to the Court about why you don't like the settlement. Ask to speak in Court about the fairness of the settlement. Get no refund. Give up rights.

These rights and options--and the deadlines to exercise them--are explained in this notice. The Court in charge of this case has preliminarily approved the settlement but still has to decide whether to give final approval to the settlement. Refunds will be made if the Court finally approves the settlement and after any appeals are resolved. Please be patient. QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 1

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA WHAT THIS NOTICE CONTAINS BASIC INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE 3 l. Why did I get this notice package? 2. What is this lawsuit about? 3. Why is this a class action? 4. Why is there a settlement? WHO IS IN THE SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE 4 5. How do I know if I am part of the settlement? 6. Are there exceptions to being included? 7. I'm still not sure if I am included. THE SETTLEMENT BENEFITS--WHAT YOU GET . . . . . . . . . . . .PAGES 4-5 8. What does the settlement provide? 9. What can I get from the settlement? HOW YOU GET A REFUND -- SUBMITTING A CLAIM FORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE 5 10. How can I get a refund? 11. When would I get my refund? 12. What am I giving up to get a refund or stay in the Class? EXCLUDING YOURSELF FROM THE SETTLEMENT . . . . . . . . . .PAGES 5-6 13. How do I get out of the settlement? 14. If I exclude myself, can I get money from this settlement? 15. If I don't exclude myself, can I sue Verizon Wireless for the same thing later? THE LAWYERS REPRESENTING YOU . . . . . . . . . . . . . . . . . . . . . . . PAGE 6 16. Do I have a lawyer in this case? 17. How will the lawyers be paid? OBJECTING TO THE SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . .PAGES 6-7 18. How do I tell the Court that I don't like the settlement? 19. What's the difference between objecting and excluding? THE COURT'S SETTLEMENT HEARING . . . . . . . . . . . . . . . . . . . . .PAGES 7-8 20. When and where will the Court decide whether to approve the settlement? 21. Do I have to come to the hearing? 22. May I speak at the hearing? IF YOU DO NOTHING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE 8 23. What happens if I do nothing at all? GETTING MORE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE 8 24. How do I get more information? 25. What if I have a new address?

QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 2

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BASIC INFORMATION 1. Why did I get this notice package? You were sent this material because it appears you may be a past or present Verizon Wireless Subscriber ("Subscriber") who was assigned a mobile telephone number previously assigned to another owner and/or users, and who paid charges for third party mobile content (such as ring tones, stock tips, horoscopes, jokes, etc.) that were authorized by the prior owner and/or users of that mobile telephone number and not authorized by you, and for which you have not received a full credit or refund. The Court ordered this notice to be sent to you because you have a right to know about a proposed settlement of a class action lawsuit, and about your options, before the Court decides whether to give final approval to the settlement. If the Court gives its final approval and after any appeals are resolved, you will receive the refunds that the settlement allows. This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as Sims v. Cellco Partnership d/b/a Verizon Wireless, a Delaware General Partnership, Case No. 3:07-cv-1510-MMC (N.D. Cal.). The person who sued is called Plaintiff, and the company she sued, Cellco Partnership d/b/a Verizon Wireless ("Verizon Wireless"), is called the Defendant. 2. What is this lawsuit about? The lawsuit alleges that some Verizon Wireless Subscribers were assigned a "recycled" mobile telephone number and were charged for third party mobile content that they had not authorized, but rather were purportedly authorized by the previous owner and/or users of that mobile telephone number. The lawsuit alleges that this resulted in unauthorized charges to Subscribers' accounts and seeks to represent a nationwide class of such Subscribers. Verizon Wireless denies that it has done anything wrong. The settlement is not an admission of wrongdoing. 3. Why is this a class action? In a class action, one or more people, called Class Representatives (in this case Michelle Sims), sue on behalf of people who have alleged similar claims. All these people are a Class or Class Members. One court resolves the issues for all Class Members, except for those who exclude themselves from the Class. 4. Why is there a settlement? The Court did not decide in favor of Plaintiff or Defendant. Instead, both sides agreed to a settlement. That way, they avoid the cost and risk of a trial and settlement benefits go to the Class Members now instead of, if at all, years from now. The Class Representative and her attorneys think the settlement is best for the Class Members.

QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 3

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WHO IS IN THE SETTLEMENT To see if you will get a refund from this settlement, you first have to determine whether you are a Class Member. 5. How do I know if I am part of the settlement? The Court has decided that everyone who fits this description is a Class Member: Those past or present Verizon Wireless Subscribers who, as reflected in Verizon Wireless' records, were assigned a mobile telephone number previously assigned to another owner and/or user, and who paid charges for third party mobile content that purportedly was authorized by the prior owner and/or users of that mobile telephone number and not authorized by the Settlement Class Member, and for which the Settlement Class Member has not previously received a full credit or refund. 6. Are there exceptions to being included? The Class does not include anyone who validly requests exclusion from the Settlement Class. 7. I'm still not sure if I am included. If you are still not sure whether you are included, you can visit www.simsclasssettlement.com for more information or you can call counsel for the Settlement Class at 866-354-3015. THE SETTLEMENT BENEFITS--WHAT YOU GET 8. What does the settlement provide? Verizon Wireless will provide one million dollars ($1,000,000) to the Settlement Class. If you submit a valid claim form you will be entitled to a refund or credit of up to fifteen dollars ($15) as further described in Section 9 below. If the valid claims submitted by Class Members total less than one million dollars ($1,000,000), the difference between the amount of the total claims and one million dollars ($1,000,000) will be distributed in the form of hand sets and minutes donated to the National Domestic Violence Hope Line, or similar charitable organization(s) to be agreed upon by the parties. 9. What can I get from the settlement? If you submit a valid claim form you will be entitled to a refund or credit in the amount of fifteen dollars ($15), unless full payment of the claims submitted by all Class Members would exceed one million dollars ($1,000,000), in which case you will instead receive a pro rata share of the one million dollars ($1,000,000) ("Refund Amount"). If you previously received a partial credit or refund, you will receive a refund for the amount of Disputed Charges for which you did not previously receive a credit or refund, up to a maximum of the Refund Amount. QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 4

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The Refund Amount shall be provided as follows: (a) in the form of a credit on your bill or, in the sole discretion of Verizon Wireless, in the form of a cash payment, if you are a current Subscriber; (b) in the form of a cash payment if you are a former Subscriber who is not delinquent on your closed accounts for an amount in excess of $15; and (c) if you are a former Subscriber who is delinquent on your closed account, then you will receive a credit on the delinquent account in an amount equal to the Refund Amount that otherwise would have been payable under the settlement or, in the sole discretion of Verizon Wireless, a cash payment. HOW YOU GET A REFUND --SUBMITTING A CLAIM FORM 10. How can I get a refund? You must submit a claim form. You can either complete the form included with this notice and mail it to Sims Settlement Administrator, P.O. Box 4109, Portland OR 97208-4109 or, in the alternative, go to www.simsclasssettlement.com and submit a claim form electronically. Make sure to follow all of the instructions on the claim form. In order to be considered for a refund, your claim form must be postmarked or received no later than June 12, 2009. If your claim form is not postmarked or received by the required date, your claim will be rejected, and you will be deemed to have waived all rights to receive any benefits under this settlement. 11. When would I get my refund? The Court will hold a hearing on July 24, 2009 at 9:00 a.m., to decide whether to give final approval to the settlement. If the Court gives final approval to the settlement, there may be appeals. The appeal process can take time, perhaps more than a year. Please be patient. 12. What am I giving up to get a refund or stay in the Class? Unless you exclude yourself, you stay in the Class, and that means that you can't sue, continue to sue, or be part of any other lawsuit against Verizon Wireless about the legal issues in this case. It also means that all of the Court's orders will apply to you and legally bind you. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don't want a refund from this settlement, but you want to keep the right to sue or continue to sue Verizon Wireless on your own about the legal issues in this case, then you must take steps to get out. This is called excluding yourself -- or is sometimes referred to as opting out of the Settlement Class.

QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 5

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13. How do I get out of the settlement? To exclude yourself from the settlement, you must send a letter by mail saying that you want to be excluded from Sims v. Cellco Partnership d/b/a Verizon Wireless, a Delaware General Partnership, Case No. 3:07-cv-1510-MMC (N.D. Cal.). Be sure to include your name, address, your current telephone number, and your signature and the name and number of the case. You must mail your exclusion request postmarked no later than June 12, 2009, to: Sims Settlement Administrator P.O. Box 4109 Portland, OR 97208-4109

9 You can't exclude yourself on the phone or by fax or e-mail. If you ask to be excluded, you will not get any refund, and you cannot object to the settlement. You will not be legally bound by 10 anything that happens in this lawsuit. You may be able to sue (or continue to sue) Verizon Wireless in the future about the legal issues in this case. In order to be valid, any request for 11 exclusion must be received or postmarked no later than June 12, 2009. 12 14. If I exclude myself, do I still receive benefits from this settlement? 13 No. If you exclude yourself, do not send in a claim form to ask for a refund. But, you may sue, 14 continue to sue, or be part of a different lawsuit against Verizon Wireless about the legal issues in 15 this case. 16 15. If I don't exclude myself, can I sue Verizon Wireless for the same thing later? 17 No. Unless you exclude yourself, you give up the right to sue Verizon Wireless for the claims 18 that this settlement resolves. You must exclude yourself from this Class to pursue your own lawsuit. Remember, your exclusion must be received or postmarked on or before June 12, 2009. 19 THE LAWYERS REPRESENTING YOU 20 21 16. Do I have a lawyer in this case? 22 The Court has appointed Jay Edelson of KamberEdelson, LLC and John G. Jacobs of The Jacobs Law Firm, Chtd., to be the lead attorneys representing the Class. They are called the "Lead Class 23 Counsel." You will not be charged for these lawyers. If you want to be represented by your own 24 lawyer in this case, you may hire one at your own expense. 25 26 27 28 QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 6

1 17. How will the lawyers be paid? 2 Class Counsel will ask the Court for attorneys' fees and expenses in the amount of $289,980.07, 3 and an award to Plaintiff in the amount of $1,000 for her services in helping to prosecute this case. The Court has expressed no opinion about what amount would be appropriate 4 compensation for Class Counsel or Plaintiff and may award less than these amounts. Under the proposed settlement, any amount awarded will be paid separately by Verizon Wireless and will 5 not come out of any funds for refunds to Class Members. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 7

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OBJECTING TO THE SETTLEMENT

2 You can tell the Court that you don't agree with the settlement or some part of it. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 8 18. How do I tell the Court that I don't like the settlement? If you're a Class Member, you can object to the settlement if you don't like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter (or legal "brief") saying that you object to the settlement in Sims v. Cellco Partnership d/b/a Verizon Wireless, a Delaware General Partnership, Case No. 3:07-cv-1510-MMC (N.D. Cal.). Be sure to include your name, address, telephone number, your Verizon Wireless phone number, your signature, the reasons you object to the settlement, and any supporting papers or other materials you intend to rely on for your objection. You must also specifically identify the Disputed Charges you incurred (and the mobile telephone number on which they were incurred) so that the Court can verify that you are a member of the class. In order to be considered, any objection and supporting papers or other materials must be received no later than June 12, 2009, by all of the following addressees: COURT CLASS COUNSEL DEFENSE COUNSEL Penelope A. Preovolos Morrison & Foerster LLP 425 Market Street San Francisco, CA 941052482

Clerk of the Court Jay Edelson United States District Court for KamberEdelson, LLC the Northern District of California 350 North LaSalle San Francisco Division Suite 1300 450 Golden Gate Avenue Chicago, IL 60654 16th Floor San Francisco, CA 94102

19. What's the difference between objecting and excluding yourself from the Class? Objecting is simply telling the Court that you don't like something about the settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you don't want to be part of the Class. If you exclude yourself, you have no basis to object, because the case no longer affects you. THE COURT'S SETTLEMENT HEARING The Court will hold a hearing to decide whether to give final approval to the settlement. You may attend, and you may ask to speak, but you don't have to.

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20. When and where will the Court hold the Settlement Hearing? The Court will hold a Settlement Hearing at 9:00 a.m. on July 24, 2009, at the United States District Court for the Northern District of California, San Francisco Division, Courtroom 7 (19th Floor), located at 450 Golden Gate Avenue, San Francisco, California, 94102. At this hearing the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court will listen to people who have asked to speak at the hearing. The Court may also consider how much to pay Class Counsel, and whether to approve an incentive award for Ms. Sims. After the hearing, the Court will decide whether to give final approval to the settlement. We do not know how long these decisions will take. The Settlement Hearing may be moved to a different date or time without notice. 21. Do I have to come to the hearing? No. Class Counsel will answer questions the Court may have. But, you are welcome to come at your own expense. If you send an objection, you don't have to come to Court to talk about it. As long as your written objection was received on time, the Court will consider it. You may also pay your own lawyer to attend, but it's not necessary. Finally, you may seek to intervene in the action, but you need not do so. 22. May I speak at the hearing? You may ask the Court for permission to speak at the Settlement Hearing. To do so, you must send a letter informing the Court of your "Notice of Intention to Appear" in "Sims v. Cellco Partnership d/b/a Verizon Wireless, a Delaware General Partnership, Case No. 3:07-cv-1510MMC." Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be received by the Clerk of the Court, Class Counsel, and Defense Counsel, at the three addresses listed in question 18, no later than June 12, 2009. You cannot speak at the hearing if you excluded yourself. IF YOU DO NOTHING 23. What happens if I do nothing at all? If you do nothing, you'll get no money from this settlement. But, unless you exclude yourself, you won't be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Verizon Wireless about the legal issues in this case, ever again. GETTING MORE INFORMATION 24. How do I get more information? This notice is necessarily an incomplete summary of the settlement and its terms. You are free to inspect the court files from 9:00 a.m. to 4:00 p.m. at the office of the Clerk of the Court, United States District Court for the Northern District of California, 16th Floor, 450 Golden Gate QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 9

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Avenue, San Francisco, California, 94102. You can call KamberEdelson LLC, one of the law firms representing the class, at 866-354-3015 if you have any questions. Before doing so, please read this full notice carefully. Questions may not be directed to the Court. 25. What if I have a new address? If this Notice was sent to you at your current address, you do not have to do anything more to receive future notices concerning this case. However, if this Notice was forwarded to you, or if it was otherwise sent to you at an address that is not current, you should immediately send a letter to Sims Settlement Administrator, P.O. Box 4109, Portland OR 97208-4109, referencing this Notice and including your past and current mailing addresses. You should also provide a telephone number where you can be reached with any questions. Date: February 13, 2009.

QUESTIONS? CALL [phone] OR VISIT WWW.SIMSCLASSSETTLEMENT.COM 10