Wolph et al v. ACER America Corporation

Filing 179

ORDER GRANTING 169 Motion for Preliminary Approval of Class Action Settelement. Fairness Hearing set for 10/4/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Signed by Judge Jeffrey S. White on April 11, 2013. (jswlc3, COURT STAFF) (Filed on 4/11/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

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11 LORA AND CLAY WOLPH, on behalf of
themselves and all others similarly situated,
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Plaintiffs,
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vs.
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ACER AMERICA CORPORATION, a
15 California corporation,

CASE NO. CV-09-01314 JSW
CLASS ACTION
AMENDED [PROPOSED] ORDER
GRANTING PLAINTIFFS' MOTION FOR
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT

Defendant.

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The Court, having reviewed Plaintiffs Lora and Clay Wolph’s (“Plaintiffs”) Motion for

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2 Preliminary Approval of Class Action Settlement with Defendant Acer America Corporation
3 (“Acer” or “Defendant”), the pleadings and other papers on file in this action, and the statements
4 of counsel and the parties, hereby finds that Plaintiffs’ motion should be GRANTED.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

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1.

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For purposes of this Order, except as otherwise set forth herein, the Court

7 adopts and incorporates the definitions contained in the First Amended Settlement Agreement
8 (“Settlement Agreement”).
2.

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The Court hereby gives its preliminary approval to the Settlement

10 Agreement, subject to a hearing on the final approval of the settlement (the “Fairness Hearing”) on
11 behalf of the following Class that was certified by the Court on March 25, 2011:
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All persons and entities who reside in the United States who have

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purchased, and have not returned for refund, a new Acer notebook

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computer from Acer or an Acer Authorized Reseller, not for resale, that

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came pre-installed with a Microsoft® Windows Vista Home Premium,

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Business, or Ultimate operating system, and contained 1 GB of Random

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Access Memory or less as shared memory for both the system and

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graphics.

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3.

The Court finds that the Settlement Agreement falls within the range of

20 reasonableness. The Court further finds that there is a sufficient basis for notifying the Class of
21 the proposed Settlement Agreement, and for enjoining class members from proceeding in any
22 other action arising from or relating to this litigation pending the conclusion of the Fairness
23 Hearing.
4.

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The Fairness Hearing will be conducted to determine the following:
a.

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Whether the proposed Settlement Agreement is fair, reasonable, and

26 adequate and should be granted final approval;
b.

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Whether final judgments should be entered dismissing the claims of

28 the class against Acer with prejudice as required by the Settlement Agreement; and
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Such other matters as the Court may deem appropriate.

5.

The Court appoints KCC Class Action Services LLC as the Claims

6.

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The Court approves the form and content of the Claim Form, Long Form

3 Administrator.
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5 Notice, Summary Published Notice, Summary Email Notice, Summary Postcard Notice/Claim
6 Form and Banner Advertisement attached hereto as Exhibit A through Exhibit F, respectively.
7.

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Within 7 days of this Order, Defendant shall provide the Claims

8 Administrator with all electronic and physical mail addresses in its possession that correspond to
9 potential Class Members.
8.

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Notice to class members shall commence no later than 14 days after the

11 entry of this Order (“Notice Date”).
9.

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On or before the Notice Date, the Claims Administrator will send the

13 Summary Email Notice, in the form attached hereto as Exhibit D, via electronic mail to all Class
14 Members for whom electronic mail addresses were provided in a manner that minimizes
15 bouncebacks. The Class Administrator may resend the Summary Email Notice to the potential
16 Class Members thirty (30) calendar days after the Notice Date at Class Counsel’s expense.
10.

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On or before the Notice Date the Claims Administrator shall send via U.S.

18 Mail the Summary Postcard Notice/Claim Form, in the form attached hereto as Exhibit E, to each
19 class member for whom Acer has a physical mail address, after updating the addresses through the
20 National Change of Address system.
11.

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Commencing on or before the Notice Date, the Claims Administrator shall

22 arrange for publication of the Summary Publication Notice, in the form attached hereto as Exhibit
23 C, in black and white, by purchasing media buys using Kinsella Media, LLC, in the following
24 publications: (a) USA Today in a size equivalent to a one eighth-page advertisement for four
25 consecutive weeks totaling four advertisements; (b) TV Guide in a size equivalent to a one half26 page advertisement for a single week; (c) the San Francisco Examiner in a size equivalent to a one
27 eighth-page advertisement for four consecutive Sundays totaling four advertisements; and (d) the
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1 Los Angeles Times in a size equivalent to a one eighth-page advertisement for four consecutive
2 Sundays totaling four advertisements.
12.

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On or before the Notice Date, Defendant shall announce the settlement, and

4 provide a hyperlink to the Settlement Website, at http://us.acer.com/ac/en/US/content/alerts-recalls
5 utilizing language that is approved by Class Counsel.
13.

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Commencing on or before the Notice Date, Defendant shall spend $20,000

7 for static (no rich media), black and white Banner Advertisement, in a form attached hereto as
8 Exhibit F, with the 24/7 Network.
14.

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Commencing on or before the Notice Date, Defendant shall spend up to

10 $80,000 in online advertising via Google Adwords and/or similar services provided on Bing, MSN
11 and/or Yahoo to purchase the following phrases: “Acer Slow;” “Acer Freeze;” “Acer Lock up;”
12 “Acer Crash;” “Acer Memory Settlement,” and “Acer RAM Settlement.” Such advertising shall
13 end at the earlier of when the $80,000 is exhausted or upon the deadline to object or opt-out.
15.

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On or before the Notice Date, the Parties shall announce the settlement via a

15 jointly approved press release that is distributed to national media outlets.
16.

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Within 7 calendar days following this Order, the Claims Administrator shall

17 establish the Settlement Website, which shall contain the Long Form Notice, information
18 substantial similar to the Summary Published Notice; a Contact Information page that includes
19 address and telephone numbers for the Claim Administrator and Plaintiffs' Counsel; the Settlement
20 Agreement; this Order; an electronic and downloaded version of the Claim Form; and (when it
21 becomes available) Plaintiffs’ Counsel’s application for attorneys’ fees, expenses and incentive
22 awards.
17.

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Class Members are instructed to follow the instructions for exercising their

24 rights under the Settlement Agreement as set forth in the Settlement Agreement and Class Notice.
25 Failure to timely file and serve written objections will preclude a class member from objecting to
26 the Settlement Agreement.
18.

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The Court finds that the forms of notice to the Class Members regarding the

28 pendency of this class action, and the methods of dissemination to the Class Members in
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1 accordance with the terms of this Order, constitute valid, due, and sufficient notice to the Class
2 Members pursuant to Federal Rule of Civil Procedure 23, the United States Constitution, and any
3 other applicable law.
19.

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Counsel for the parties are hereby authorized to utilize all reasonable

5 procedures in connection with the administration of the settlement which are not materially
6 inconsistent with either this Order or the terms of the Settlement Agreement.
20.

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In the event that this Order conflicts with the Settlement Agreement

8 regarding the form and manner of providing notice to the Class, this Order shall control. All
9 provisions of the Settlement Agreement regarding the form and manner of providing notice to the
10 Class shall remain in full force and effect unless otherwise expressly modified herein.
21.

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The Court adopts the following schedule in order to effectuate the final

12 approval of the Settlement Agreement:
a.

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Plaintiffs’ motion for attorneys’ fees, costs and incentive awards

July 9
14 shall be filed on or before ____________, 2013 (75 days after the Notice Date);
b.

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Class Members shall have until __________, 2013 (90 days after the
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16 Notice Date) to file claims, opt-out or exclude themselves, file a Notice of Intent to Appear at the
17 Fairness Hearing, object to the Settlement Agreement or respond to Plaintiffs’ motion for
18 attorneys’ fees and costs;
c.

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Plaintiffs shall file their motion for final approval of the Settlement

August 8
20 Agreement on or before ____________, 2013 (105 days after the Notice Date); and
d.

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The Fairness Hearing shall be held on __________, 2013 at 9:00
October 4

22 a.m. (133 days after the Notice Date).
22.

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The hearing date or time for the Fairness Hearing may be moved sua sponte

24 by the Court or pursuant to a stipulation by the parties subject to Court approval without providing
25 additional notice to the Class Members.
23.

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Class Members shall, upon final approval of the Settlement Agreement, be

27 bound by the terms and provision of the Settlement Agreement so approved, including but not
28 limited to the releases, waivers, and covenants described in the agreements, whether or not such
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1 person or entity objected to the Settlement Agreement and whether or not such person or entity
2 makes a claim upon the settlement funds.
24.

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All further proceedings in this litigation are hereby stayed except for any

4 actions required to effectuate the Settlement Agreement.
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IT IS SO ORDERED

April 12 11
7 DATED: __________________, 2013
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Honorable Jeffrey S. White
UNITED STATES DISTRICT COURT

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AMENDED [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF
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EXHIBIT A

Case 3-09-cv-01314-JSW Document 177
Wolph v. Acer Americas Corp. Claims Administrator

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c/o KCC Class Action Services
P.O. Box #####
Providence, RI #####-####

AAW
«Barcode»
Claim #: AAW-«ClaimID» «MailRec»
«First1» «Last1»
«co»
«Addr1» «Addr2»
«City», «ST» «Zip» «Country»

CLAIM FORM AND INSTRUCTIONS

Your Claim Form must be postmarked no later than <<Insert 90 day deadline>>, 2013
All persons and entities who reside in the United States who have purchased, and who have not returned for a refund, a new Acer
notebook computer from Acer or an Authorized Acer Retailer, not for re-sale, that came pre-installed with a Microsoft® Vista Home
Premium, Business or Ultimate operating system, and contained 1 GB of Random Access Memory (RAM) or less as shared memory
for both the system and graphics are entitled to file a claim form.
I. Personal Information
Name:

_______________________________
(First)

________
(Middle)

_________________________________
(Last)

Address: ________________________________________________________________________
(Street)
________________________________________
____ ____
____ ____ ____ ____ ____
(City)
(State)
(Zip Code)
Telephone:

______________________________

Email:

_________________________________

II. Class Computer Information & Reward Election
Before completing this section, read each reward election carefully (including the options on the back of this Claim Form) to
determine which benefit you are entitled to receive under the settlement:
I no longer own my Class Computer:
If you no longer own your Class Computer, please choose one of the two options below. You must provide Proof of Purchase (i.e. an
itemized retail sales receipt or itemized credit/debit card statement showing, at a minimum, product or service purchased from an
authorized Acer reseller, price paid and date) with your Claim Form.
16 GB USB Flash Drive with ReadyBoost technology

$10 check

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I currently own my Class Computer:
If you currently own your Class Computer, please choose one of the three options below. In addition you must provide your serial
number.
Computer Serial Number: ________________________________________________
16 GB USB Flash Drive with ReadyBoost technology
$10 check
1 GB or 2 GB laptop memory DIMM (compatible with your specific computer) sufficient to allow your Class
Computer to operate with 2 GB of RAM.

I paid a third party to repair my Class Computer:
If you paid a third party to repair your Class Computer, before [notice date], to resolve alleged problems regarding performance issues
directly attributed to inadequate memory, please select the following option in lieu of the options provided on the first page.
In addition, you must provide proof of obtaining repairs and the cost thereof (i.e. receipts, credit card statements or invoices showing
(a) a date of service prior to [notice date], (b) the model or serial number of the Class Computer, (c) the purchase of additional RAM
or other repairs related to insufficient RAM, and (d) the amount paid for the repairs).

$_______ check for reimbursement of repairs (Please write the amount of repairs, up to, but not more than $100)
By choosing the above election and signing below, you are certifying under penalty of perjury, that you sought and
obtained repairs from a third party because your Class Computer was experiencing unusual freezing, crashing,
memory problems, or slow performance that was below your expectations given the price paid for the Class
Computer.

III. Declaration and Signature
I attest under penalty of perjury that the Acer computer reflected on this Claim Form was purchased by me as a new computer in the
United States from Acer or an Acer Authorized Reseller and has not been returned for a refund.
Dated:
Signature
Print Name
Please return the Claim Form by mail to:
Wolph v. Acer Americas Corp. Claims Administrator
c/o KCC Class Action Services
P.O. Box #####
Providence, RI #####-####

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EXHIBIT B

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

If you bought an Acer Notebook Computer pre-installed
with Microsoft® Windows Vista, you could get benefits
from a class action settlement.
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.


You could be affected by a class action lawsuit against Acer America Corporation (“Acer”)
involving insufficient memory in Acer notebook computers (“Notebook”) that run certain
versions of the Microsoft® Windows Vista operating system (Home Premium, Business, and
Ultimate) and contain one gigabyte (1 GB) of Random Access Memory or less as shared memory
for both the system and graphics.



You are included if you are a United States resident who bought certain Notebooks from Acer
or an Acer Authorized Retailer that came pre-installed with Microsoft® Windows Vista Home
Premium, Business, or Ultimate operating system, and have not returned the Notebook for a
refund.



Those included in the Settlement will be eligible to select to receive money or other benefits
(see Question 8 below).



Please read this Notice carefully. Your legal rights are affected, whether you act or don’t act.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

File a Claim

This is the only way to get benefits from the Settlement.

Exclude Yourself

You will receive no benefits, but you will retain any rights you currently have
to sue the Acer about the claims in this case.

Object to the
Settlement

Write to the Court explaining why you don’t like the Settlement.

Go to the Hearing

Ask to speak in Court about your opinion of the Settlement.

Do Nothing

You won’t get benefits and will give up your rights to sue Acer about the
claims in this case.



These rights and options – and the deadlines to exercise them – are explained in this Notice.

QUESTIONS? CALL 1-000-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM

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BASIC INFORMATION
1. What is this Notice about?
A Court authorized this Notice because you have a right to know about a proposed Settlement of this
class action lawsuit, and about all of your options, before the Court decides whether to give final
approval to the Settlement. This Notice explains the lawsuit, the Settlement, and your legal rights.
Judge Jeffrey S. White, of the U.S. District Court for the Northern District of California, is
overseeing this case. The case is known as Wolph v. Acer America Corp., No. 3:09cv01314. The
people who sued are called the Plaintiffs. The Defendant is Acer America Corporation.
2. What is this lawsuit about?
This lawsuit claims that the Acer Notebooks did not contain sufficient memory to properly run the
pre-installed operating system, including Microsoft® Windows Vista Home Premium, Business,
and/or Ultimate operating systems (“Vista Premium OS”). Plaintiffs claim that per Microsoft’s®
requirements, a computer must have more than 1 gigabyte (“GB”) of RAM in order to properly run
the Vista Premium OS. The Acer Notebooks covered in this lawsuit contain 1 GB or less of RAM to
be shared between the system and the graphics. Plaintiffs claim that as a result of this insufficient
system memory, Acer’s Notebooks suffered from freezing, crashes, lock-ups, and other poor
performance.
The Court has not determined who is right. Rather, the Parties have agreed to settle the lawsuit to avoid
the uncertainties and expenses associated with ongoing litigation.
3. Why is this lawsuit a class action?
In a class action, one or more people called class representatives (in this case, Lora and Clay Wolph)
sue on behalf of a group or a “class” of people who have similar claims. In a class action, the court
resolves the issues for all Class Members, except for those who exclude themselves from the Class.
4. What is RAM?
Random Access Memory (“RAM”) is a type of computer memory. The more RAM a computer has,
the faster it can work and run programs. The computers at issue in this case have a total of 1 GB of
RAM shared between the system and graphics. In order to determine the amount of RAM in your
computer, please see the instructions printed on the website: www.WEBSITE.com.
5. Why is there a Settlement?
By agreeing to settle, both sides avoid the cost and risk of a trial, and the people affected will get a
chance to receive benefits. The Class Representatives and their attorneys think the Settlement is best
for all Class Members. The Settlement does not mean that Acer did anything wrong.

QUESTIONS? CALL 1-800-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM
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WHO’S INCLUDED IN THE SETTLEMENT?
6. How do I know if I am a member of the Settlement Class?
You are a member of the Class if you:


Are a resident of the United States;



Bought a new Notebook from Acer or an Acer Authorized Retailer, that came preinstalled with a Microsoft® Windows Vista Home Premium, Business, or Ultimate
operating system, which contained 1 GB of RAM or less as shared memory for both the
system and graphics; and



Have not returned the Notebook for a refund.

Retailers and distributors of Notebooks are not included in this Settlement.
The Acer Notebooks at issue in this case include some, but not all, of the computers with the
following model numbers:
Aspire 3050
Aspire 3100
Aspire 4220
Aspire 4315
Aspire 4520
Aspire 4710Z

Aspire 4720Z
Aspire 5050
Aspire 5100
Aspire 5315
Aspire 5520

Aspire 5570
Aspire 5570Z
Aspire 5580
Aspire 5610
Aspire 5610Z

Aspire 5630
Aspire 5720Z
Aspire 7520
Aspire 7720Z
Aspire 9300

Aspire 9410
Aspire 9410Z
Aspire 9420
Extensa 5520
Extensa 5620Z

In order to obtain more information regarding whether you are included in the Class, go to:
www.WEBSITE.com or call 1-000-000-0000.
7. What if I am not sure whether I am included in the Settlement?
If you are not sure whether you are included in the Settlement, you may call 1-000-000-0000
with questions or visit www.WEBSITE.com. You may also write with questions to Wolph v. Acer
Americas Corp. Settlement Administrator, PO Box 0000, City, State 00000.

THE SETTLEMENT BENEFITS
8. What does the Settlement provide?
The Settlement provides for the following benefits to eligible Class Members who file a valid claim
(each Class Member can only get one benefit):
(a)
(b)

A 16 GB USB Flash Drive with ReadyBoost technology;
A check for $10;

QUESTIONS? CALL 1-800-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM
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(c) A check for up to $100 as reimbursement for Class Members who, before [notice date], paid
for Notebook performance repairs in an effort to resolve performance problems due to
RAM; or
(d) A compatible 1 GB or 2 GB laptop memory DIMM for Class Members who still own their
Notebook that will allow the computer to operate with 2 GB of RAM.
Acer will separately pay attorneys’ fees, expenses, and the cost to provide notice to administer the
Settlement (see Question 17 below).
More details are in a document called the Settlement Agreement, which is available at
www.WEBSITE.com.

HOW TO GET BENEFITS
9. How do I get benefits?
If you are a Class Member and you want to participate in the Settlement, you must complete and submit a
Claim Form, signed under penalty of perjury, submitted by Month 00, 0000. The Claim Form can be
found at www.WEBSITE.com, by calling, toll-free, 1-000-000-0000, or as an attachment to the postcard
notice you received by mail. The Claim Form can be submitted online at the website or by mail.

REMAINING IN THE SETTLEMENT
10. What happens if I do nothing at all?
If you do nothing, you won’t get any money or other benefits from this Settlement. But, unless you
exclude yourself, you won’t be able to start a lawsuit or be part of any other lawsuit against Acer for
the claims being resolved by this Settlement.
11. What am I giving up if I stay in the Class?
If the Settlement becomes final, you will give up your right to sue Acer for the claims being resolved by
this Settlement. The specific claims you are giving up against Acer are described in Section VII of the
Settlement Agreement. You will be “releasing” Acer and all related people as described in Section VII of
the Settlement Agreement. Unless you exclude yourself (see Question 13), you are “releasing” the
claims, regardless of whether you submit a claim or not. The Settlement Agreement is available at
www.WEBSITE.com.
The Settlement Agreement describes the released claims with specific descriptions, so read it carefully. If
you have any questions, you can talk to Class Counsel listed in Question 14 for free or you can, of
course, talk to your own lawyer if you have questions about what this means.

QUESTIONS? CALL 1-800-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM
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EXCLUDING YOURSELF FROM THE SETTLEMENT
12. What if I don’t want to be in the Settlement?
If you decide to exclude yourself from the Class, you will be free to sue Acer on your own for the
claims being resolved by this Settlement. However, you will not receive any benefits from the
Settlement, and Class Counsel will no longer represent you. If you want to receive benefits from the
Settlement, do not exclude yourself.
13. How do I get out of the Settlement?
To exclude yourself from the Settlement, you must send a letter by mail stating that you want to be
excluded from Wolph v. Acer America Corp., No. 3:09cv01314. Your letter must also include:


Your name, address, and telephone number;



The name of the case (Wolph v. Acer America Corp., No. 3:09cv01314-JSW);



A statement that you want to be excluded from this case; and



Your signature and date.

You must mail your request for exclusion postmarked no later than Month 00, 0000, to:
Settlement Administrator
Wolph v. Acer Americas Corp. Exclusions
c/o KCC Class Action Services
PO Box 0000
City, ST 00000-0000

OBJECTING TO THE SETTLEMENT
14. How do I object to the Settlement?
You can object to the Settlement if you don’t like some or part of it. The Court will consider your
views. To do so, you must file a written objection in this case, Wolph v. Acer America Corp., No.
3:09cv01314. Be sure to include:


Your name, address, and telephone number;



Proof of Class membership;



A detailed statement of any objection, including reasons why you object to the
Settlement;



Whether you plan on appearing at the Fairness Hearing; and

QUESTIONS? CALL 1-800-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM
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Any legal support or evidence that supports your objection that you wish to bring to the
Court’s attention.

Objections must be filed with the Court (address below) and a served electronically by Electronic Case
Filing or by mailing the same upon the Settlement Administrator (address above), Defense Counsel and
Class Counsel (addresses below) no later than Month 00, 0000:

Court
United States District Court
Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102-3489

Class Counsel
Pearson, Simon & Warshaw, LLP
15165 Ventura Boulevard,
Suite 400
Sherman Oaks, CA 91403

Defense Counsel
Akin Gump Strauss Hauer &
Feld LLP
300 West 6th Street,
Suite 1900
Austin, TX 78701

Any attorney representing an objector must provide: (a) a list of the cases in which the objector’s
counsel has filed an objection to a proposed settlement of a class-action lawsuit within the past five
years; and (b) the outcome of each objection. Either Acer or Plaintiff’s Counsel may seek discovery
from any objector, subject to the Court’s approval.
15. What’s the difference between objecting and excluding myself from the Settlement?
Objecting is simply telling the Court that you don’t like something about the Settlement. You can
object only if you don’t exclude yourself from 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 LAWYERS REPRESENTING YOU
16. Do I have a lawyer in this case?
Yes. The Court appointed the following as “Class Counsel”: Pearson, Simon & Warshaw,
LLP; Hausfeld LLP; and Gary, Naegele & Theado, LLC. You will not be charged for these lawyers.
If you want to be represented by someone other than Class Counsel, you may hire a lawyer at your
own expense.
17. How will the lawyers be paid?
Class Counsel will ask the Court for attorneys’ fees, costs, and expenses of up to $2,715,000 to be paid
by Acer. Class Counsel will also request that $5,000 be paid to each of the two Class Representatives
who helped the lawyers on behalf of the whole Class.

18. Should I get my own lawyer?
QUESTIONS? CALL 1-800-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM
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You do not need to hire your own lawyer, but if you hire a lawyer to speak for you or appear in
Court, your lawyer must file a Notice of Appearance (see Question 21). If you hire your own
lawyer, you will have to pay for that lawyer at your own expense.

THE COURT’S FINAL APPROVAL HEARING
19. When and where will the Court decide whether to approve the Settlement?
The Court will hold the Fairness Hearing at _:__ _.m. on Month 00, 0000 in Courtroom 11 of the
Phillip Burton Federal Building & United States Courthouse, 450 Golden Gate Avenue, San
Francisco, CA 94102. The Court may reschedule the Final Approval Hearing without further
written notice, so you should check www.WEBSITE.com or call 1-000-000-0000 if you
want to find out if the Final Approval Hearing has been rescheduled.
At this hearing the Court will consider whether the Settlement is fair, reasonable and adequate. If
there are objections or comments about the Settlement, the Court will consider them. The Court will
also consider how much to pay Class Counsel and Class Counsel’s request for the Class
Representative awards. After the hearing, the Court will decide whether to approve the Settlement.
20. Must I attend the Final Approval Hearing?
No. Class Counsel will answer any questions that the Court may have regarding the terms of the
Settlement. But, you or your own lawyer are welcome to attend at your expense. If you send an
objection, you do not have to come to Court to talk about it. As long as you mailed your written
objection on time, the Court will consider it. You may also have your own lawyer attend, but it is
not necessary.
21. May I speak at the Final Approval Hearing?
Yes. You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must
send a letter saying that it is your “Notice of Intent to Appear in Wolph v. Acer America Corp., No.
3:09cv01314.” It must include your name, address, telephone number and signature as well as the
name and address of your lawyer, if one is appearing for you. Your Notice of Intent to Appear must
be postmarked no later than Month 00, 0000, and be sent to the addresses listed in Question 14 or served
electronically by Electronic Case Filing. You must also state in your objection that you plan on appearing
at the hearing.

GETTING MORE INFORMATION
22. Where do I get more information?
This Notice summarizes the Settlement. More details are in the Settlement Agreement. You can get a
copy of the Settlement Agreement at www.WEBSITE.com. You may also write with questions to Wolph
v. Acer Americas Corp. Settlement Administrator, c/o KCC Class Action Services, PO Box 0000, City,
State 00000-0000, or call the Settlement Administrator at 1-000-000-0000.

QUESTIONS? CALL 1-800-000-0000 TOLL-FREE, OR VISIT WWW.WEBSITE.COM
7

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EXHIBIT C

Legal Notice

Case 3-09-cv-01314-JSW

Document an AcerFiled in CAND on 04/10/2013
If you bought177
Notebook Computer
pre-installed with Microsoft® Windows Vista,
you could get benefits from a Class Action Settlement

A settlement has been reached in a class action  1 GB or 2 GB laptop memory DIMM that will
lawsuit about whether Acer America Corp.
allow the computer to operate with 2 GB of
(“Acer”) advertised and sold Acer notebook
RAM.
computers that did not contain enough RAM to
How to Get Benefits
support the pre-installed Windows Vista operating
You must complete and submit a Claim Form
system. Acer denies all of the claims in the lawsuit, by Month 00, 0000 to get benefits. Claim Forms
but has agreed to the settlement to avoid the cost may also be submitted online or by mail and are
and risk of a trial.
available at www.WEBSITE.com or by calling
Are You Included?
1-000-000-0000.
Generally, the settlement includes a “Class” or
Your Other Rights & Options
group of people that includes all U.S. residents who
If you submit a Claim Form or do nothing, your
purchased a new Acer notebook computer that: (1) rights will be affected. If you don’t want to be
came pre-installed with a Microsoft® Windows legally bound by the Settlement, you must exclude
Vista Home Premium, Business, or Ultimate yourself from it by Month 00, 0000. Unless you
operating system; (2) came with 1GB of RAM or exclude yourself, you won’t be able to sue Acer
less of shared memory for both the system and for any claim relating to this lawsuit. If you stay
graphics; (3) was purchased directly from Acer or in the Settlement (i.e. don’t exclude yourself), you
an authorized retailer; and (4) was not returned for a may object to it or you may ask for permission for
refund.
you or your own lawyer to appear and speak at the
What Can You Get?
hearing—at your own cost—but you don’t have
Those included can receive either:
to. Objections and requests to appear are due by
 A 16 GB USB Flash Drive with ReadyBoost Month 00, 0000.
technology;
The Court will hold a hearing in this case
 A check for $10;
(Wolph v. Acer America Corp., No. 3:09cv1314)
 A check for up to $100 for reimbursement of on Month 00, 0000 to consider whether to
repairs that were made before [notice date] in an approve: the settlement; attorneys’ fees, costs,
effort to resolve performance problems due to expenses and incentive awards .
RAM; or for Class Members who still own their
computer,

For more information: www.WEBSITE.com 1-000-000-0000

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EXHIBIT D

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To:
From: [e-mail]
Subject: Acer Notebook Class Action Settlement
If you bought an Acer Notebook Computer pre-installed with Microsoft®
Windows Vista, you could get benefits from a class action settlement.
A settlement has been reached in a class action lawsuit about whether Acer America
Corp. (“Acer”) advertised and sold Acer notebook computers that did not contain enough
RAM to support the pre-installed Windows Vista operating system. Acer denies all of the
claims in the lawsuit, but has agreed to the settlement to avoid the cost and risk of a trial.
Are You Included? Acer’s records show that you may be included. Generally, the
settlement includes a “Class” or group of people that includes all U.S. residents who
purchased a new Acer notebook computer that: (1) came pre-installed with a Microsoft®
Windows Vista Home Premium, Business, or Ultimate operating system; (2) came with
1GB of RAM or less of shared memory for both the system and graphics; (3) was
purchased directly from Acer or an authorized retailer; and (4) was not returned for a
refund.
What Can You Get? Those included can receive either: (1) a 16 GB USB flash drive
with ReadyBoost technology; (2) $10; (3) up to $100 for reimbursement of repairs that
were made before [notice date] in an effort to resolve performance problems due to RAM;
or if you still own your computer, (4) a compatible 1 GB or 2 GB laptop memory DIMM
that will allow the computer to operate with 2 GB of RAM.
How to Get Benefits. You must complete and submit a Claim Form by Month 00, 0000.
Claim Forms may be submitted online or by mail and are available at
www.WEBSITE.com or by calling 1-000-000-0000.
Your Other Rights & Options. If you submit a Claim Form or you do nothing, your
rights will be affected. If you don’t want to be legally bound by the settlement, you must
exclude yourself from it by Month 00, 0000. Unless you exclude yourself, you won’t be
able to sue Acer for any claim relating to this lawsuit. If you stay in the settlement (i.e.
don’t exclude yourself), you may object to it or you may ask for permission for you or
your own lawyer to appear and speak at the hearing—at your own cost—but you don’t
have to. Objections and requests to appear are due by Month 00, 0000. More information
is in the detailed Notice and Settlement Agreement, which are available at the website.
The Court will hold a hearing in this case (Wolph v. Acer America Corp., No. 3:09cv
1314) on Month 00, 0000 to consider whether to approve: the settlement; attorneys’ fees,
costs, expenses and incentive awards.
File your Claim Form online at www.WEBSITE.com or call 1-000-000-0000.

854320.1 

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EXHIBIT E

Case 3-09-cv-01314-JSW

Document 177

Legal Notice

If you bought an Acer
Notebook Computer
pre-installed with
Microsoft® Windows
Vista, you could get
benefits from a class
action settlement.

Filed in CAND on 04/10/2013

Wolph v. Acer Americas Corp.
Claims Administrator
c/o KCC Class Action Services
PO Box 0000
City, ST 00000-0000

Page 23 of 26

FIRST CLASS
US POSTAGE
PAID
Permit #

[Postal Service: Please do not mark barcode]
ANC-000000000000
John Q. Classmember
0000 Anywhere Street
City, ST, 00000-0000

1-000-000-0000
www.WEBSITE.com

AAW

CLAIM FORM AND INSTRUCTIONS
Before completing this claim form and mailing it so it is postmarked no later than [Month 00, 0000], read each reward
election carefully to determine which benefit you are entitled to receive under the settlement:
I. Class Computer Information & Reward Election
I no longer own my Class Computer: If you no longer own your Class Computer, please choose one of the two options below.
16 GB USB Flash Drive with ReadyBoost technology
$10 check
I currently own my Class Computer: If you currently own your Class Computer, please choose one of the three options below.
16 GB USB Flash Drive with ReadyBoost technology
$10 check
1 GB or 2 GB laptop memory DIMM sufficient to allow your Class Computer to operate with 2 GB of RAM. Indicate your
Computer Model: ___________________________________ Computer Submodel: _____________________________
I paid a third party to repair my Class Computer: If you paid a third party to repair your Class Computer, before [notice
date], to resolve alleged problems regarding performance issues directly attributed to inadequate memory, please select the
following option in lieu of the options above. In addition, you must provide proof of obtaining repairs either online or in
a separate envelope (i.e. receipts, credit card statements, or invoices, showing (a) a date of service prior to [notice date], (b)
the model or serial number of the Class Computer, (c) the purchase of additional RAM or other repairs related to insufficient
RAM, and (d) the amount paid for the repairs).
$_______ check for reimbursement of repairs (Please write the amount of repairs, up to, but not more than $100). By
choosing this election and signing below, you are certifying under penalty of perjury, that you sought and obtained repairs
from a third party because your Class Computer was experiencing unusual freezing, crashing, memory problems, or slow
performance that was below your expectations given the price paid for the Class Computer.
Mail my benefit to a different address: If you would like your benefit mailed to an address that is different from the one on the
front of this Notice you must provide proof that you currently live at that address (i.e. utility bill, driver’s license, etc.).
Mail my benefits to my new address (proof of new address enclosed)
II. Declaration and Signature: I attest under penalty of perjury that the Acer computer reflected on this Claim Form was
purchased by me as a new computer in the United States from Acer or an Acer Authorized Reseller and has not been returned
for a refund.
Dated: _______________________________

Signature: _____________________________________________

Print Name: ________________________________________________

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A settlement has been reached in a class action lawsuit about whether Acer America Corp. (“Acer”) advertised
and sold Acer notebook computers that did not contain enough RAM to support the pre-installed Windows Vista
operating system. Acer denies all of the claims in the lawsuit, but has agreed to the settlement to avoid the cost and
risk of a trial.
Are You Included? Acer’s records show that you may be included. Generally, the settlement includes a “Class”
or group of people that includes residents of the U.S. who purchased a new Acer notebook computer that: (1) came
pre-installed with a Microsoft® Windows Vista Home Premium, Business, or Ultimate operating system; (2) came
with 1GB of RAM or less as shared memory for both the system and graphics; (3) was purchased directly from Acer
or an authorized retailer; and (4) was not returned for a refund.
What Can You Get? Those included can receive either: (1) a 16 GB USB flash drive with ReadyBoost technology;
(2) $10; (3) up to $100 for reimbursement of repairs that were made before [notice date] in an effort to resolve
performance problems due to RAM; or if you still own your computer (4) a compatible 1 GB or 2 GB laptop memory
DIMM that will allow the computer to operate with 2 GB of RAM.
How to Get Benefits. You must complete and submit a Claim Form by Month 00, 0000. A Claim Form is attached
to this Notice. Claim Forms may also be submitted online or by mail and are available at www.WEBSITE.com or
by calling 1-000-000-0000.
Your Other Rights & Options. If you submit a Claim Form or you do nothing, your rights will be affected. If you
don’t want to be legally bound by the settlement, you must exclude yourself from it by Month 00, 0000. Unless you
exclude yourself, you won’t be able to sue Acer for any claim relating to this lawsuit. If you stay in the settlement (i.e.
don’t exclude yourself), you may object to it or you may ask for permission for you or your own lawyer to appear and
speak at the hearing—at your own cost—but you don’t have to. Objections and requests to appear are due by Month
00, 0000. More information is in the detailed notice and Settlement Agreement, which are available at the website.
The Court will hold a hearing in this case (Wolph v. Acer America Corp., No. 3:09cv1314) on Month 00, 0000 to
consider whether to approve: the settlement; attorneys’ fees, costs, expenses and incentive awards.

File your Claim Form online at www.WEBSITE.com or call 1-000-000-0000.

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

Wolph v. Acer Americas Corp. Claims Administrator
c/o KCC Class Action Services
P.O. Box #####
Providence, RI #####-####

«Barcode»

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EXHIBIT F

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