pygmypiranha
Vice Admiral
NOTICE TO PERSONS WHO PURCHASED A CREATIVE AUDIGY ES, AUDIGY PLATINUM, AUDIGY PLATINUM EX, AUDIGY GAMER, AUDIGY MP3+, OR EXTIGY SOUND CARD ON OR AFTER MARCH 28, 1999
This notice may affect your rights.
Please read it carefully.
If you purchased a Creative Audigy ES, Audigy Platinum, Audigy Platinum EX, Audigy Gamer, Audigy MP3+, or Extigy sound card (all of these are referred to as "Sound Cards") manufactured by defendant Creative Labs, Inc. ("Creative") after March 28, 1999 this notice may be important to you. A proposed settlement has been reached in litigation between plaintiff Creative Labs, Inc. (hereinafter referred to as "the Litigation"), in which plaintiff claims that Creative made misrepresentations and concealed material information in the marketing, advertising and sale of the Sound Cards. Plaintiff alleges that Creative represented, on the Sound Cards' packaging and through advertising and other promotional materials, that the Sound Cards process audio at 24 bit/96kHz, but plaintiff alleges that the Sound Cards cannot actually process audio at 24 bit/96kHz for all functions. Creative denies the claims made in this Litigation, and denies that anyone has been harmed or deserves compensation in relation to the claims.
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 May 20, 2005 at 9:30 a.m., before Judge Richard C. Kramer, Department 304 of the Superior Court of the State of California, City and County of San Francisco, 400 McAllister Street, San Francisco, CA 94102; 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 March 28, 2003, plaintiff Paul Holt commenced an action against Creative entitled Holt v. Creative Labs, Inc., (San Francisco Superior Court Case No. CGC-03-418809) (the "Litigation"), which was brought as a proposed nationwide class action and which asserted claims for violation of the Unfair Competition Law, California Business and Professions Code sections 17200 and 17500 et seq., and breach of the Song-Beverly Consumer Warranty Act.
Creative denies the allegations made in the Litigation, denies any and all liability with respect to any and all facts and claims alleged therein, denies that the Settlement Class Members (defined below) or anyone has suffered any harm or damage or is entitled to any monetary or equitable relief whatsoever in connection therewith, and denies that the Litigation should be treated as a class action except for purposes of settlement; and Creative contends that the Litigation is without merit and that Creative has represented its products truthfully and appropriately. The Court has not decided whether plaintiff or Creative is correct.
B. The Settlement Class Members.
For purposes of settlement, the Court has certified a class consisting of all Persons (defined to mean 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), who purchased for their own use (and not for resale) a Sound Card on or after March 28, 1999, up to and including the date of Preliminary Approval of the settlement, as defined in the parties' Settlement Agreement, which agreement is located on the website established for this settlement at www.audiocardsettlement.com.
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, Creative has agreed to make the following relief available to Settlement Class Members who submit a valid Claim Form (available on the website established for this settlement at www.audiocardsettlement.com), establishing the requirements of membership in the class and entitlement to the following relief: The settlement relief shall consist of an award of a certificate offering twenty-five percent (25%) off of the purchase price of any Creative product, up to a maximum of sixty-two dollars and fifty cents ($62.50) off of the purchase price, which relief will be available to all Settlement Class Members who submit a valid, completed online Claim Form at www.audiocardsettlement.com, which requires providing the model and serial number of the Sound Card, the claimant's address and other information, attesting to dissatisfaction with the audio processing capabilities of the Sound Card, and releasing claims. Claim Forms must be filled out and submitted online. The certificate will be good for up to one year from the date of issuance.
Claims must be submitted on the online Claim Form provided at www.audiocardsettlement.com and must be submitted on or before September 22, 2005.* No Settlement Class Member may submit more than one (1) claim with respect to each Sound Card purchased by the Settlement Class Member, and each claim must relate to a separate Sound Card. Only one coupon will be provided with respect to any Sound Card bearing the same serial number. All claims are subject to verification and validation by Creative. Claims will not be processed until after the Effective Date.
2. Awards to the Representative Plaintiff and Plaintiff's Counsel
Under the terms of the settlement, the Representative Plaintiff (Paul Holt) will receive an incentive award of $3,000, and Plaintiffs Henri Carnal and Lewis White will each receive an incentive award of $1,000, for their participation in the litigation, subject to approval by the Court. Plaintiff's Counsel will apply for an award of attorneys' fees, costs and expenses from the Court not to exceed $470,000, which application Creative has agreed not to oppose. Neither the Representative Plaintiff's incentive award nor any attorneys' fee award made by the Court or paid by Creative will decrease or have any other effect on the relief to be provided to Settlement Class Members.
3. Releases
Under the terms of the Agreement, plaintiff has agreed to dismiss Holt v. Creative Labs, Inc. 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 which were or could have been asserted in the Litigation, based upon the facts alleged in the Litigation, 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 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 CREATIVE, AT THE ADDRESSES SET OUT BELOW ON OR BEFORE APRIL 29, 2005. ANY OBJECTIONS TO THE SETTLEMENT MUST BEGIN WITH THE FOLLOWING STATEMENT: "I OBJECT TO THE PROPOSED SETTLEMENT IN HOLT V. CREATIVE LABS, INC., Case No. CGC-03-418809, California Superior Court, City and County of San Francisco." All objections must state the objector's name, address, and telephone number, shall provide sufficient information to establish membership in the Settlement Class (i.e., the model of Sound Card purchased, the purchase date and serial number), 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, San Francisco County Superior Court, 400 McAllister Street, San Francisco, CA 94102-4514, with copies sent to Plaintiff's Counsel: Juden Justice Reed, Schubert & Reed LLP, Two Embarcadero Center, Suite 1660, San Francisco, CA 94111, and Creative's Counsel: Peter S. Hecker, Heller Ehrman White & McAuliffe LLP, 333 Bush St., San Francisco, California 94104.
If you do not wish to be a member of the class, you must exclude yourself by mailing a written request to be excluded, postmarked on or before April 29, 2005, and addressed to Juden Justice Reed, Schubert & Reed LLP, Two Embarcadero Center, Suite 1660, San Francisco, CA 94111, with a copy to Peter S. Hecker, Heller Ehrman White & McAuliffe LLP, 333 Bush St., San Francisco, California 94104. The request should state your name and address. If you choose to exclude yourself from the class, you will not be affected by the Litigation, and you will not be able to make a claim, object or otherwise participate in the settlement.
Any Settlement Class Members who fail to properly or timely file or serve any of the requested information and/or documents required to object to the settlement 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 May 20, 2005 at 9:30 a.m., in Department 304, San Francisco Superior Court, 400 McAllister Street, San Francisco, California 94102, 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, YOU MUST NOTIFY THE COURT AND COUNSEL IN WRITING OF YOUR INTENTION TO DO SO, WITH YOUR WRITTEN OBJECTION AND REASONS THEREFORE AND DOCUMENTS IN SUPPORT THEREOF, FILED AND SERVED AS DESCRIBED ABOVE. DO NOT CALL OR PERSONALLY CONTACT THE COURT OR CREATIVE ABOUT MATTERS SET FORTH IN THIS NOTICE. Any written objections to the Settlement 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 April 29, 2005.
F. Examination of Papers.
You may inspect the complete Settlement Agreement, the complaint in the action, and other papers filed in this lawsuit at the office of the Clerk of the Superior Court, 400 McAllister Street, San Francisco, CA 94104, during its regular hours of operation. In addition, you may review the Settlement Agreement, this class notice, the summary class notice, the Court's preliminary approval order and the Claim Form on the settlement website at www.audiocardsettlement.com.
G. Additional Information
DO NOT CONTACT THE COURT OR CREATIVE CONCERNING THIS NOTICE OR THE LAWSUIT. If you have questions contact your own attorney or, if you would like more information about this notice or this case, you may contact:
Juden Justice Reed
Schubert & Reed LLP
Two Embarcadero Center, Suite 1660
San Francisco, CA 94111
(415) 788-4220
www.audiocardsettlement.com
* Subject to change by the Court.
1 Upon Final Approval, Plaintiffs Henri Carnal and Lewis White will also dismiss Carnal v. Creative Technologies, Ltd., San Francisco Superior Court Case No. 400152, with prejudice, which dismissal also will be incorporated into the final judgment approving the settlement.
This notice may affect your rights.
Please read it carefully.
If you purchased a Creative Audigy ES, Audigy Platinum, Audigy Platinum EX, Audigy Gamer, Audigy MP3+, or Extigy sound card (all of these are referred to as "Sound Cards") manufactured by defendant Creative Labs, Inc. ("Creative") after March 28, 1999 this notice may be important to you. A proposed settlement has been reached in litigation between plaintiff Creative Labs, Inc. (hereinafter referred to as "the Litigation"), in which plaintiff claims that Creative made misrepresentations and concealed material information in the marketing, advertising and sale of the Sound Cards. Plaintiff alleges that Creative represented, on the Sound Cards' packaging and through advertising and other promotional materials, that the Sound Cards process audio at 24 bit/96kHz, but plaintiff alleges that the Sound Cards cannot actually process audio at 24 bit/96kHz for all functions. Creative denies the claims made in this Litigation, and denies that anyone has been harmed or deserves compensation in relation to the claims.
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 May 20, 2005 at 9:30 a.m., before Judge Richard C. Kramer, Department 304 of the Superior Court of the State of California, City and County of San Francisco, 400 McAllister Street, San Francisco, CA 94102; 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 March 28, 2003, plaintiff Paul Holt commenced an action against Creative entitled Holt v. Creative Labs, Inc., (San Francisco Superior Court Case No. CGC-03-418809) (the "Litigation"), which was brought as a proposed nationwide class action and which asserted claims for violation of the Unfair Competition Law, California Business and Professions Code sections 17200 and 17500 et seq., and breach of the Song-Beverly Consumer Warranty Act.
Creative denies the allegations made in the Litigation, denies any and all liability with respect to any and all facts and claims alleged therein, denies that the Settlement Class Members (defined below) or anyone has suffered any harm or damage or is entitled to any monetary or equitable relief whatsoever in connection therewith, and denies that the Litigation should be treated as a class action except for purposes of settlement; and Creative contends that the Litigation is without merit and that Creative has represented its products truthfully and appropriately. The Court has not decided whether plaintiff or Creative is correct.
B. The Settlement Class Members.
For purposes of settlement, the Court has certified a class consisting of all Persons (defined to mean 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), who purchased for their own use (and not for resale) a Sound Card on or after March 28, 1999, up to and including the date of Preliminary Approval of the settlement, as defined in the parties' Settlement Agreement, which agreement is located on the website established for this settlement at www.audiocardsettlement.com.
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, Creative has agreed to make the following relief available to Settlement Class Members who submit a valid Claim Form (available on the website established for this settlement at www.audiocardsettlement.com), establishing the requirements of membership in the class and entitlement to the following relief: The settlement relief shall consist of an award of a certificate offering twenty-five percent (25%) off of the purchase price of any Creative product, up to a maximum of sixty-two dollars and fifty cents ($62.50) off of the purchase price, which relief will be available to all Settlement Class Members who submit a valid, completed online Claim Form at www.audiocardsettlement.com, which requires providing the model and serial number of the Sound Card, the claimant's address and other information, attesting to dissatisfaction with the audio processing capabilities of the Sound Card, and releasing claims. Claim Forms must be filled out and submitted online. The certificate will be good for up to one year from the date of issuance.
Claims must be submitted on the online Claim Form provided at www.audiocardsettlement.com and must be submitted on or before September 22, 2005.* No Settlement Class Member may submit more than one (1) claim with respect to each Sound Card purchased by the Settlement Class Member, and each claim must relate to a separate Sound Card. Only one coupon will be provided with respect to any Sound Card bearing the same serial number. All claims are subject to verification and validation by Creative. Claims will not be processed until after the Effective Date.
2. Awards to the Representative Plaintiff and Plaintiff's Counsel
Under the terms of the settlement, the Representative Plaintiff (Paul Holt) will receive an incentive award of $3,000, and Plaintiffs Henri Carnal and Lewis White will each receive an incentive award of $1,000, for their participation in the litigation, subject to approval by the Court. Plaintiff's Counsel will apply for an award of attorneys' fees, costs and expenses from the Court not to exceed $470,000, which application Creative has agreed not to oppose. Neither the Representative Plaintiff's incentive award nor any attorneys' fee award made by the Court or paid by Creative will decrease or have any other effect on the relief to be provided to Settlement Class Members.
3. Releases
Under the terms of the Agreement, plaintiff has agreed to dismiss Holt v. Creative Labs, Inc. 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 which were or could have been asserted in the Litigation, based upon the facts alleged in the Litigation, 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 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 CREATIVE, AT THE ADDRESSES SET OUT BELOW ON OR BEFORE APRIL 29, 2005. ANY OBJECTIONS TO THE SETTLEMENT MUST BEGIN WITH THE FOLLOWING STATEMENT: "I OBJECT TO THE PROPOSED SETTLEMENT IN HOLT V. CREATIVE LABS, INC., Case No. CGC-03-418809, California Superior Court, City and County of San Francisco." All objections must state the objector's name, address, and telephone number, shall provide sufficient information to establish membership in the Settlement Class (i.e., the model of Sound Card purchased, the purchase date and serial number), 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, San Francisco County Superior Court, 400 McAllister Street, San Francisco, CA 94102-4514, with copies sent to Plaintiff's Counsel: Juden Justice Reed, Schubert & Reed LLP, Two Embarcadero Center, Suite 1660, San Francisco, CA 94111, and Creative's Counsel: Peter S. Hecker, Heller Ehrman White & McAuliffe LLP, 333 Bush St., San Francisco, California 94104.
If you do not wish to be a member of the class, you must exclude yourself by mailing a written request to be excluded, postmarked on or before April 29, 2005, and addressed to Juden Justice Reed, Schubert & Reed LLP, Two Embarcadero Center, Suite 1660, San Francisco, CA 94111, with a copy to Peter S. Hecker, Heller Ehrman White & McAuliffe LLP, 333 Bush St., San Francisco, California 94104. The request should state your name and address. If you choose to exclude yourself from the class, you will not be affected by the Litigation, and you will not be able to make a claim, object or otherwise participate in the settlement.
Any Settlement Class Members who fail to properly or timely file or serve any of the requested information and/or documents required to object to the settlement 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 May 20, 2005 at 9:30 a.m., in Department 304, San Francisco Superior Court, 400 McAllister Street, San Francisco, California 94102, 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, YOU MUST NOTIFY THE COURT AND COUNSEL IN WRITING OF YOUR INTENTION TO DO SO, WITH YOUR WRITTEN OBJECTION AND REASONS THEREFORE AND DOCUMENTS IN SUPPORT THEREOF, FILED AND SERVED AS DESCRIBED ABOVE. DO NOT CALL OR PERSONALLY CONTACT THE COURT OR CREATIVE ABOUT MATTERS SET FORTH IN THIS NOTICE. Any written objections to the Settlement 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 April 29, 2005.
F. Examination of Papers.
You may inspect the complete Settlement Agreement, the complaint in the action, and other papers filed in this lawsuit at the office of the Clerk of the Superior Court, 400 McAllister Street, San Francisco, CA 94104, during its regular hours of operation. In addition, you may review the Settlement Agreement, this class notice, the summary class notice, the Court's preliminary approval order and the Claim Form on the settlement website at www.audiocardsettlement.com.
G. Additional Information
DO NOT CONTACT THE COURT OR CREATIVE CONCERNING THIS NOTICE OR THE LAWSUIT. If you have questions contact your own attorney or, if you would like more information about this notice or this case, you may contact:
Juden Justice Reed
Schubert & Reed LLP
Two Embarcadero Center, Suite 1660
San Francisco, CA 94111
(415) 788-4220
www.audiocardsettlement.com
* Subject to change by the Court.
1 Upon Final Approval, Plaintiffs Henri Carnal and Lewis White will also dismiss Carnal v. Creative Technologies, Ltd., San Francisco Superior Court Case No. 400152, with prejudice, which dismissal also will be incorporated into the final judgment approving the settlement.
