SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT

Transcription

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT TO: All persons who are domiciled or reside in the United States or its territories and whose Personal Identification Information (in this case defined as names, mailing addresses, addresses, phone numbers, and credit card numbers and expiration dates, and/or other identifying information) resided on Vendini, Inc. s computer network servers on or before April 25, IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. A settlement ( Settlement ) has been proposed in a class action lawsuit pending in the Superior Court of the State of California for the County of Santa Clara ( Court ) titled Lim, et al. v. Vendini, Inc., Case No cv ( Action ). If the Court gives final approval to the Settlement, Vendini, Inc. will offer compensation for each Class Member (defined below) who properly and timely completes a Claim Form for either or both Unreimbursed Identity Theft Losses or Unreimbursed Expenses and whose claim is approved by the Claims Administrator. SUBMIT A CLAIM FORM EXCLUDE YOURSELF OBJECT GO TO THE FINAL APPROVAL HEARING DO NOTHING YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT This is the only way to be eligible to receive compensation for either or both of Unreimbursed Identity Theft Losses (up to $3,000.00) or Unreimbursed Expenses (up to $1,000.00). Visit the Settlement website located at to obtain a Claim Form. If you exclude yourself from the Settlement, you will not receive compensation under the Settlement. Excluding yourself is the only option that allows you to ever bring or maintain your own lawsuit against Vendini, Inc. regarding the allegations in the Action ever again. You may write to the Court about why you object to (don t like) the Settlement and think it should not be approved. Filing an objection does not exclude you from the Settlement. The Court will hold a Final Approval Hearing to consider the Settlement, the request for plaintiffs attorneys fees and costs of the lawyers who brought the Action, and the representative plaintiffs request for service awards for bringing the Action. You may, but are not required to, speak at the Final Approval Hearing about any Objection you file to the Settlement. If you intend to speak at the Final Approval Hearing, you must also submit a Notice of Intention to Appear to the Court indicating your intent to do so. You will not receive any compensation under the Settlement. You will also give up your right to object to the Settlement and you will be not be able to be part of any other lawsuit about the legal claims in this case. Deadline: July 11, 2015 Deadline: August 25, 2014 Deadline: August 25, 2014 Hearing Date: October 3, 2014 N/A These rights and options and the deadlines to exercise them are explained in more detail below. The Court in charge of this Action has preliminarily approved the Settlement and must decide whether to give final approval to the Settlement. The relief provided to Class Members will be provided only if the Court gives final approval to the Settlement and, if there are any appeals, after the appeals are resolved in favor of the Settlement. Please be patient. Page 1 of 9

2 WHAT THIS NOTICE CONTAINS BACKGROUND INFORMATION 1. Why did I get this notice? What is this lawsuit about? Why is this a class action? Why is there a Settlement? How do I know if I am part of the Settlement? I m still not sure if I am included THE PROPOSED SETTLEMENT 7. What are the terms of the Settlement? What relief does the Settlement provide to the Class Members?... 4 HOW TO SUBMIT A CLAIM FORM 9. How can I submit a claim form? When will I receive compensation?... 5 THE LAWYERS IN THIS CASE AND THE REPRESENTATIVE PLAINTIFFS 11. Do I have a lawyer in this case? How will the lawyers be paid? Will the Representative Plaintiffs receive any compensation for their efforts in bringing this Action?... 6 DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS 14. What am I giving up to obtain relief under the Settlement?... 6 HOW TO EXCLUDE YOURSELF FROM THE SETTLEMENT 15. How do I exclude myself from the Settlement?... 7 HOW TO OBJECT TO THE SETTLEMENT 16. How do I tell the Court that I do not like the Settlement? What is the difference between excluding myself and objecting to the Settlement?... 8 FINAL APPROVAL HEARING 18. What is the Final Approval Hearing? When and where is the Final Approval Hearing? May I speak at the hearing?... 8 GETTING MORE INFORMATION 21. How do I get more information? What if my address or other information has changed or changes after I submit a claim form?... 9 Page 2 of 9

3 1. Why did I get this notice? You received this Notice because a settlement has been reached in this Action. According to Vendini, Inc. s available records you might be a member of the Settlement Class and may be entitled to the relief detailed below. This Notice explains the nature of the Action, the general terms of the proposed Settlement, and your legal rights and obligations. To obtain more information about the Settlement, including information about how you can see a copy of the Settlement Agreement (which defines certain capitalized terms used in this Notice), see Section 21 below. 2. What is this lawsuit about? Vendini, Inc. ( Vendini ) handles ticket sales for event and entertainment venues across the United States. In this capacity Vendini collects and stores customer information, including names, addresses, telephone numbers, addresses, and credit-card numbers. Beginning in May 2013, Vendini notified customers that on April 25, 2013, it had detected potential unauthorized access by a third party to its databases and to customers Personal Identification Information ( Data Security Incident ). The Action alleges that Vendini allowed unauthorized third-party access to its databases and to customers Personal Identification Information (defined as including names, mailing addresses, address, phone numbers, and credit card numbers and expiration dates). The Action asserts several causes of action for violations of Cal. Civ. Code 1750, et seq; Cal. Bus. & Prof. Code 17200, et seq.; Cal. Bus. & Prof. Code 17500, et seq.; Cal. Civ. Code , et seq.; Cal Civ. Code ; 18 U.S.C. 1030; as well as breach of contract, breach of implied contract, negligence, unjust enrichment, and invasion of privacy. Plaintiffs seek civil penalties and/or damage and attorneys fees, among other relief. Defendant denies any wrongdoing and any liability whatsoever. This Notice does not express the Court s opinion regarding the merits or lack of merits of the claims of the Representative Plaintiffs in the Action. For information about how to learn about what has happened in the Action to date, please see Section 21 below. 3. Why is this a class action? In a class action lawsuit, one or more people called Representative Plaintiffs sue on behalf of other people who have similar claims. For purposes of this proposed Settlement, one court will resolve the issues for all Class Members, except for those people who properly exclude themselves from the Class, as explained in Section 15 below. The company sued in this case, Vendini, Inc., is called the Defendant. 4. Why is there a Settlement? The Representative Plaintiffs have made claims against Vendini. Vendini denies that it has done anything wrong or illegal and admits no liability. The Court has not decided that the Representative Plaintiffs or Vendini should win this Action. Instead, both sides agreed to a Settlement. That way, they avoid the risks and costs of further proceedings, and the Class Members whose claims are approved by the Claims Administrator will receive relief now rather than years from now, if at all. Lawyers representing the proposed class ( Class Counsel ) view the Settlement as fair, reasonable, and adequate, and in the best interest of Class Members. Class Counsel has investigated the Data Security Incident, including, among other things, consulting with experts, reviewing documentation provided by Vendini, and communicating with Class Members. The parties have participated in mediation with the Honorable John Leo Wagner (U.S. Magistrate Judge, Ret.) and negotiated the Settlement over the course of many months with his assistance. Page 3 of 9

4 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 for purposes of the proposed Settlement: All persons who are domiciled or reside in the United States or its territories whose Personal Identification Information, defined below, resided on Defendant s computer network servers on or before April 25, Personal Identification Information, means any of the following: names, mailing addresses, addresses, phone numbers, credit card numbers, expiration dates, and/or other identifying information. You have received this Notice because your Personal Identification Information may have resided on Vendini s servers on or before April 25, I m still not sure if I am included. If you are still not sure whether you are included, you can contact the Claims Administrator by calling or writing to the Claims Administrator at the following address: CPT Group, Inc., Aston, Irvine, CA What are the terms of the Settlement? The Settlement establishes a total settlement fund of $3,000,000. This amount includes all settlement payments to Class Members, all attorneys fees and litigation costs, the Representative Plaintiffs incentive payments, and the costs of providing notice and claims administration. In exchange, Vendini will receive a release of claims asserted in the Action or arising out of or related to the Data Security Incident. Class Members may submit claims as explained in Section 8 below. But if Class Members do not claim all of the settlement fund, then the difference will be distributed to a charity or charities whose primary mission is aimed at protecting consumers privacy on the Internet. 8. What relief does the Settlement provide to the Class Members? As part of the proposed Settlement, Class Members who timely file a valid Claim Form are eligible to receive compensation for either or both Unreimbursed Identity Theft Losses (of up to $3,000.00) or compensation for Unreimbursed Expenses (of up to $1,000.00). Unreimbursed Identity Theft Losses include any actual losses resulting from Identity Theft. Identity Theft is the use of a Class Member s name, mailing address, address, phone number, credit card number, expiration date, and/or other identifying information arising from the Data Security Incident without the Class Member s knowledge to commit fraud or other crimes. Class Members may submit claims for these losses up to $3,000.00, provided the loss is (1) an actual, documented, and unreimbursed loss (2) that resulted from Identity Theft that is attributable to the Data Security Incident, and (3) that occurred on or after April 25, 2013, through the end of the Claims Period, which will remain open until July 11, Unreimbursed Expenses include the following unreimbursed out-of-pocket expenses that you incurred through the end of the Claims Period (except as provided below) that can be attributed to the Data Security Incident: (i) the cost of obtaining, prior to June 27, 2014, credit-monitoring or identity-theft insurance,but in no event more than $20.00 per month, subject to reasonable documentation, and up to a total maximum of $250.00, (ii) the cost of telephone calls, facsimile transmissions, and postage relating to Identity Theft or potential Identity Theft with banks, credit-card companies, credit-reporting agencies, or creditors, up to $60.00, (iii) the cost of placing a freeze on a your credit report, (iv) the cost of changing your phone number, up to $200.00, (v) the cost of ordering or obtaining replacement credit or debit cards, up to $20.00, (vi) late fees proximately caused by losses or expenses incurred as a result of Identity Theft, up to $200.00, and/or (vii) overdraft fees proximately caused by losses or expenses incurred as the result of Identity Theft, up to $ Page 4 of 9

5 To receive compensation Class Members must provide information and documentation supporting their losses. The Claims Administrator will review and verify this information and documentation. The Claims Administrator may decline to approve your claim or reduce the amount you have requested, but if it does so, you will have the opportunity to contest the Claims Administrator s decision. The amount of money you receive, if the Claims Administrator approves your claim, may ultimately be increased or decreased depending on the number of other claims that are submitted and the value of those claims. 9. How can I submit a claim? To request compensation, you must send in a Claim Form. A Claim Form is available by clicking HERE or on the Internet at the website You may complete the Claim Form electronically using the settlement website, or you may send your Claim Form by United States First-Class Mail to the Claims Administrator at the address provided below: Vendini Class Action Settlement c/o CPT Group, Inc Aston Irvine, CA Please read the instructions on the Claim Form carefully, fill out the form, and submit it on or before 11:59 p.m. (Western) on July 11, YOU MUST SUBMIT YOUR CLAIM NO LATER THAN JULY 11, 2015 OR YOU WILL NOT HAVE THE OPPORTUNITY TO RECEIVE ANY MONEY UNDER THE SETTLEMENT BUT YOU WILL NEVERTHELESS BE BOUND BY THE RELEASE OF CLAIMS SET OUT IN SECTION 14 BELOW. 10. When will I receive compensation? Claimants will receive their settlement payments after the end of the Claims Period. No compensation will be paid until the Settlement is approved and any appeals concluded. As described in Section 18, the Court will hold a hearing on October 3, 2014 at 9 a.m., to decide whether to approve the Settlement. If the Court approves the Settlement after that hearing, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps more than a year. You can check on the progress of the case on the website dedicated to the Settlement at Please be patient. Your settlement check will be valid for 180 days after issuance. If you do not cash the check within that time, your settlement payment will be distributed to a charity or charities whose primary mission is aimed at protecting consumers privacy on the Internet. 11. Do I have a lawyer in this case? The Court has ordered that CounselOne, PC, the Law Office of Scott E. Brown, and the Law Offices of Siprut PC ( Class Counsel ) will represent the interests of all Class Members. You will not be separately charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. 12. How will the lawyers be paid? Class Counsel will request up to thirty percent (30%) of the total settlement fund for their attorneys fees, plus up to $25,000 as reimbursement for costs. The Court will make the final decision as to the amounts to be paid to Class Counsel. Page 5 of 9

6 13. Will the Representative Plaintiffs receive any compensation for their efforts in bringing this Action? The Representative Plaintiffs will request a service award (also known as an incentive award) of up to $2,500 each for their services as a class representatives and their efforts in bringing the Action. The Court will make the final decision as to the amount to be paid to the Representative Plaintiffs. 14. What am I giving up to obtain relief under the Settlement? If the Court approves the proposed Settlement, unless you exclude yourself from the Settlement, you will be releasing your claims against Vendini. This means that you will not be able to file a lawsuit, continue prosecuting a lawsuit, or be part of any other lawsuit against Vendini regarding the allegations in the Action or the Data Security Incident. The full release of claims is set out below: RELEASE Upon entry of the Judgment, the Representative Plaintiffs and each Class Member who does not validly opt out of the Settlement (called Settlement Class Members ) will be deemed to have, and by operation of the Judgment will have, fully, finally, and forever released, relinquished, and discharged the Released Persons from all Released Claims, meaning any and all claims, demands, rights, suits, liabilities, and causes of action of every nature and description whatsoever, known or unknown, matured or un-matured, at law or in equity, existing under federal and/or state law, that Representative Plaintiffs and/or any Settlement Class Member has or may have against the Released Persons, without limitation to those that have been brought, could have been brought, or are currently pending, arising out of or related to the Data Security Incident or any allegation or relief sought in the Complaint filed in the Action at any time and in any forum in the United States (including any of its territories). After entering into this Settlement Agreement, the Representative Plaintiffs or Settlement Class Members may discover facts other than, different from, or in addition to, those that they know or believe to be true with respect to the Released Claims. The Representative Plaintiffs and Settlement Class Members expressly waive and fully, finally, and forever settle and release any known or unknown, suspected or unsuspected, contingent or non-contingent equitable Claim, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such other, different, or additional facts. With respect to the Released Claims, the Representative Plaintiffs and each Settlement Class Member expressly understands and agrees to waive the provisions of, and relinquishes any rights or benefits available to them under California Civil Code 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Notwithstanding Section 1542 of the California Civil Code, or any other federal or state statute or rule of law of similar effect, this Settlement Agreement shall be given full force and effect according to each and all of its expressed terms and provisions, including those related to any unknown or unsuspected claims, liabilities, demands, or causes of action which are based on, arise from or are in any way connected with the Litigation or the Data Security Incident. Upon entrance of the Final Approval Order, Representative Plaintiffs, and any Class Member who does not opt out, is hereby barred from bringing any action or proceeding or participating as a named plaintiff or as an unnamed class member in any other lawsuit in any state or federal court, administrative tribunal, or any other forum against any of the Released Parties regarding any of the Released Claims. As used in the Release and Settlement Agreement, the term Released Persons means Vendini, its parent companies, subsidiary companies, affiliated companies, and each of their past, present, and future officers, directors, shareholders, employees, predecessors, members, customers, clients, joint partners, distributors, principals, insurers, administrators, agents, servants, successors, trustees, vendors, subcontractors, co-conspirators, buyers, independent contractors, attorneys, experts and consultants, and their representatives, heirs, executors, successors, predecessors and assigns of all of the foregoing persons and entities. Page 6 of 9

7 15. How do I exclude myself from the Settlement? You may exclude yourself from the Class and the Settlement. If you want to be excluded, you must send a letter or postcard via United States First Class Mail stating: (a) the name and case number of the Action, Lim, et al. v. Vendini, Inc., Superior Court of the State of California for the County of Santa Clara, Case No cv ; (b) your full name, address, address, and telephone number; and (c) a statement that you do not wish to participate in the Settlement, postmarked no later than August 25, 2014 to the Claims Administrator at: Vendini Class Action Settlement c/o CPT Group, Inc Aston Irvine, CA If you timely request exclusion from the Class, you will be excluded from the Class, you will not be bound by the judgment entered in the Action, and you will not be precluded from prosecuting any timely, individual claim against Vendini based on the conduct complained of in the Action at your own expense. If you do not exclude yourself from the Settlement you will be bound by its terms. 16. How do I tell the Court that I do not like the Settlement? At the date, time, and location stated in Section 19 below, the Court will hold a Final Approval Hearing to determine if the Settlement is fair, reasonable, and adequate, and to also consider Class Counsel s request for an award of attorneys fees and costs, and service awards to the Representative Plaintiffs. If you have not submitted a timely request for exclusion and wish to object to the fairness, reasonableness or adequacy of the Settlement Agreement or the proposed Settlement, or to the award of attorneys fees and costs or the service awards, you must file a written objection with the Court and send a copy such objection to the Claims Administrator, Class Counsel and Vendini s Counsel at the addresses set forth below by United States First-Class Mail no later than (that is, postmarked by) August 25, CLASS COUNSEL ANTHONY J. ORSHANSKY, ESQ. JUSTIN KACHADOORIAN, ESQ. COUNSELONE, PC 9301 WILSHIRE BLVD., SUITE 650 BEVERLY HILLS, CA VENDINI, INC. S COUNSEL NANCY E. HARRIS, ESQ. ORRICK, HERRINGTON & SUTCLIFFE LLP THE ORRICK BUILDING 405 HOWARD STREET SAN FRANCISCO, CA JOSEPH J. SIPRUT, ESQ. SIPRUT PC 17 NORTH STATE ST., SUITE 1600 CHICAGO, IL Any written objection must include a title or caption that identifies it as Objection to Class Settlement in Lim, et al. v. Vendini, Inc., Superior Court for the State of California for the County of Santa Clara, case number 1-14-cv and must include: (a) the full name, address, and telephone number of the person objecting; (b) the name, address, and telephone number of any attorney for the objector with respect to the objection; (c) the factual basis and legal grounds for the objection, including any documents sufficient to establish the basis for his or her standing as a Settlement Class Member; and (d) identification of the name, case number, and court for any prior class action lawsuit in which the objector and the objector s attorney (if applicable) has objected to a proposed class action settlement. You may, but need not, file and serve your objection through counsel of your choice. If you do make your objection through an attorney, you will be responsible for your personal attorney s fees and costs. Page 7 of 9

8 IF YOU DO NOT TIMELY MAKE YOUR OBJECTION, YOU WILL BE DEEMED TO HAVE WAIVED ALL OBJECTIONS AND WILL NOT BE ENTITLED TO SPEAK AT THE FINAL APPROVAL HEARING. If you file and serve a written objection, you may appear at the Final Approval Hearing, either in person or through personal counsel hired at your expense, to object to the Settlement Agreement. You are not required, however, to appear. If you, or your attorney, intend to make an appearance at the Final Approval Hearing, you must file with the Court a Notice of Intention to Appear no later than (that is, postmarked by) August 25, What is the difference between excluding myself and objecting to the Settlement? Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the Settlement no longer affects you. 18. What is the Final Approval Hearing? The Court has preliminarily approved the Settlement and will hold a hearing to decide whether to give final approval to the Settlement. The purpose of the Final Approval Hearing will be for the Court to determine whether the Settlement should be approved as fair, reasonable, adequate, and in the best interests of the Settlement Class; to consider the award of attorneys fees and expenses to Class Counsel; and to consider the request for service awards to each of the Representative Plaintiffs. 19. When and where is the Final Approval Hearing? On October 3, 2014, a hearing will be held on the fairness of the proposed Settlement. At the hearing, the Court will be available to hear any objections and arguments concerning the proposed Settlement s fairness. The hearing will take place before the Honorable Peter H. Kirwan in Department 1 of the Superior Court of the State of California for the County of Santa Clara located at 191 North First Street, San Jose, CA The hearing may be postponed to a different date or time or location without notice. Please check for any updates about the Settlement generally or the Final Approval Hearing specifically. If the date or time of the Final Approval Hearing changes, an update to the Settlement website will be the only way you will be informed of the change. 20. May I speak at the hearing? At that hearing, the Court will be available to hear any Objections and arguments concerning the fairness of the Settlement. You may attend, but you do not have to. As described above in Section 16, you may speak at the Final Approval Hearing only if (a) you have timely served and filed an Objection, and (b) you have timely served and filed a Notice of Intention to Appear. If you have requested exclusion from the Settlement, however, you may not speak at the Final Approval Hearing. 21. How do I get more information? To see a copy of the Settlement Agreement, the Court s Preliminary Approval Order, Class Counsel s application for attorneys fees and costs, and the complaint filed in the Action, please visit the Settlement website located at: Alternatively, you may contact the Claims Administrator at the postal mailing Page 8 of 9

9 address: CPT Group, Inc., Aston, Irvine, CA This description of the Action is general and does not cover all of the issues and proceedings that have occurred. In order to see the complete file you should visit the Clerk s office at the Downtown Superior Court located at 191 North First Street, San Jose, CA 95113, telephone: (408) The Clerk will tell you how to obtain the file for inspection and copying at your own expense. 22. What if my address or other information has changed or changes after I submit a claim form? It is your responsibility to inform the Claims Administrator of your updated information. You may do so at the address below: Vendini Class Action Settlement c/o CPT Group, Inc Aston Irvine, CA DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT OR THE JUDGE. Dated: June 27, 2014 Page 9 of 9