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. What is the Settlement About?
Plaintiffs allege that in the sale and marketing of the Flash Memory Devices, Defendants overstate the useable storage capacity by approximately 4%. For example, Plaintiffs allege that a 256MB Flash Memory Device had only 244MB of accessible memory. Plaintiffs allege that Defendants marketed the memory capacity of their products by assuming that one megabyte equals one million bytes and one gigabyte equals one billion bytes. Plaintiffs further allege that these assumptions are incorrect, that Defendants failed to inform consumers of their assumptions, and that certain Defendants' websites expressly told consumers that they were defining megabyte to equal 1,048,576 bytes and gigabyte to equal 1,073,741,824 bytes. Plaintiffs also allege that, undisclosed to consumers, a portion of the represented storage capacity of the Flash Memory Devices was used for formatting or operating the devices. Plaintiffs claim that Defendants' actions constituted false advertising, unfair business practices, breach of contract, fraud, and violations of the California Consumers Legal Remedy Act. Plaintiffs sought restitution, damages, punitive damages, and injunctive relief. Defendants deny all of Plaintiffs' allegations; that they engaged in any wrongful, deceptive, or misleading practice; or that they are liable in any manner for the claims alleged in the Litigation. Defendants have concluded that further conduct of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions of the proposed settlement.
2. Who Can Participate?
All purchasers within the United States of a Flash Memory Device manufactured, branded, and/or sold by one of the defendants between February 1, 2000 and February 7, 2006.
3. What Changes Will Be Made To Defendants' Marketing?
If this settlement is finally approved by the Court Defendants will include language on the packaging of their Flash Memory Devices that is reasonably calculated to inform consumers that the useable storage capacity of their Flash Memory Devices may be less than the stated amount of storage. Such language also shall appear in the product descriptions for Flash Memory Devices on Defendants' Websites and Defendants' Online Stores.
4. What Benefits Are Available In the Settlement?
Subject to the claims process and limitations set forth in the Agreement, if this settlement is finally approved by the Court, Defendants will provide to Class Members one of the following for each Flash Memory Device purchased:
1. A cash refund equal to five percent of the purchase price, exclusive of any tax paid, of each Flash Memory Device purchased during the Refund Class Period;
Or
2. For up to one Flash Memory Device purchased during the Discount Class Period from each Defendant, a discount of ten percent off a future online purchase from Defendants' Online Stores Flash Memory Device.
5. Why Can I Only Receive One Discount Per Brand Of Flash Memory Device?
The settlement agreement provides that for each flash memory device purchased, a class member can receive a discount of ten percent off a future purchase of a flash memory device. However, there is a limit of one discount per brand of flash memory device purchased. For example, a customer who submits discount claims for two SanDisk cards and one Lexar card will receive a total of two discount codes.
This limit was reached as a compromise. It was based in part on Defendants' argument that after the first flash memory purchase, the consumer would be on notice that the actual capacity could be less than the stated capacity.
6. Is There A Limit To The Number Of Refund Claims I Can Submit?
No. There is no limit to the number of refunds that a class member can receive. The class member must submit a valid receipt or equivalent proof of purchase for each device on which a refund is claimed.
7. If I Have Already Submitted A Claim, Can I Submit Another Claim For Additional Purchases?
Yes. If you have already submitted a claim, but you forgot to include some of the purchases that you made during the class period, simply fill out the Claim Form again.
8. How Do I Obtain Settlement Benefits?
1. To receive the Refund, each Class Member must accurately complete and submit the Downloadable Claim Form available here. Class Members must then print and mail the completed Downloadable Claim Form to the Claims Administrator, along with an original or copy of a valid receipt or the equivalent proof of purchase from a merchant or financial institution specifying the Flash Memory Device purchased, brand, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. Please note that original receipts, copies of receipts, and proofs of purchase will not be returned.
2. To receive the Discount, Class Members must complete the Online Claim Form on the Settlement Website. The Online Claim Form will require the Class Member, under penalty of perjury, to specify the Flash Memory Device purchased, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. Upon completing the Online Claim Form, the Class Member will receive one Discount code for each prior purchase of a Flash Memory Device during the Discount Purchase Period, limited to one Discount code per Defendant whose Flash Memory Devices were purchased. Each Discount code can be used only once, towards a single purchase of a Flash Memory Device at Defendants' Online Stores, and cannot be combined with any other offer. The Discount and the Refund are mutually exclusive.
Please note the Following:
(i) The Discount need not be provided on purchases of Flash Memory Devices as to which Lexar, PNY and SanDisk were contractually or legally prohibited from providing such discounts as of December 6,2005, which are: Lexar's LockTight flash memory cards, Lexar's ActiveMemory flash memory cards, and Lexar's Professional Series flash memory cards.
(ii) For any digital camera purchased from Defendants FujiFilm or Kodak during the Refund Purchase Period that included Digital Camera Bundled Flash Memory, the Refund shall apply not against the purchase price of the digital camera but only against the value of the Digital Camera Bundled Flash Memory. Exclusively for purposes of this Settlement, each Digital Camera Bundled Flash Memory is deemed to have had a purchase price of $20.00.
9. When is the Deadline to file a Claim?
The Downloadable Claim Form and/or Online Claim Form must be completed no later than November 16, 2006 or thirty (30) days after Final Approval, whichever is later. Class Members who do not complete a Claim Form by that date will not be eligible to receive the Class Benefit.
10. Who is Considered to be a Class Member?
All purchasers within the United States of a Flash Memory Device manufactured, branded, and/or sold by one of the defendants between February 1, 2000 and February 7, 2006.
11. How do I File a Refund Claim?
Click here.
12. How do I File a Discount Claim Form?
Click here.
13. What are the Attorneys Fees for the Case?
From the inception of this lawsuit, Plaintiffs' Counsel have not received payments for their services, nor have they been reimbursed for any out-of-pocket expenses. If the Court approves the settlement, Plaintiffs' Counsel will ask the Court to award, and Defendants have agreed to pay, and not contest the reasonableness of, an award of fees and costs up to $2,400,000. Additionally, Plaintiffs' Counsel will ask the Court to award Plaintiffs Vroegh and Witthoff $1,000 each for their time and effort related to the Litigation, and Defendants have agreed not to contest the reasonableness of the award. Finally, Defendants have agreed to administer the settlement including the class notice, claim forms, and provisions of the Class Benefit, and have agreed to bear their own costs associated therewith. Any award of attorneys' fees, costs, and any payment to the Plaintiffs will be paid separately from, and will not reduce, the Class Benefit provided under the settlement. Class Members will not be personally liable for any attorneys' fees, costs or payment to the Plaintiffs.
14. How do I Remain a Class Member?
If you do not request exclusion from the Class, you will remain a Class Member. Your interests in connection with the proposed settlement will be represented by Plaintiffs and Plaintiffs' Counsel. You will not be charged for the services or expenses of Plaintiff's Counsel. You must comply with the Claims Process and Deadline requirements in order to receive the Class Benefit.
15. How do I Exclude Myself From the Class And Retain My Right To Bring A Separate Lawsuit?
Any Class Member may opt-out of the Settlement Class (which enables you to retain your right to bring a separate lawsuit) by submitting a written, signed request to opt-out, by postage-paid, first class mail, with the following: (1) their name, address, and telephone number, (2) reference to this Litigation (i.e., Vroegh, et al v. Eastrnan Kodak Company, et al., Case No. CGC-04-428953), (3) identify the Flash Memory Device(s) purchased, including the brand, (4) identify the approximate date of purchase and (5) a statement that they wish to opt-out of the Class to:
Flash Memory Settlement Opt Out
P.O. Box 210511
San Francisco, CA 94121
Plaintiffs allege that in the sale and marketing of the Flash Memory Devices, Defendants overstate the useable storage capacity by approximately 4%. For example, Plaintiffs allege that a 256MB Flash Memory Device had only 244MB of accessible memory. Plaintiffs allege that Defendants marketed the memory capacity of their products by assuming that one megabyte equals one million bytes and one gigabyte equals one billion bytes. Plaintiffs further allege that these assumptions are incorrect, that Defendants failed to inform consumers of their assumptions, and that certain Defendants' websites expressly told consumers that they were defining megabyte to equal 1,048,576 bytes and gigabyte to equal 1,073,741,824 bytes. Plaintiffs also allege that, undisclosed to consumers, a portion of the represented storage capacity of the Flash Memory Devices was used for formatting or operating the devices. Plaintiffs claim that Defendants' actions constituted false advertising, unfair business practices, breach of contract, fraud, and violations of the California Consumers Legal Remedy Act. Plaintiffs sought restitution, damages, punitive damages, and injunctive relief. Defendants deny all of Plaintiffs' allegations; that they engaged in any wrongful, deceptive, or misleading practice; or that they are liable in any manner for the claims alleged in the Litigation. Defendants have concluded that further conduct of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions of the proposed settlement.
2. Who Can Participate?
All purchasers within the United States of a Flash Memory Device manufactured, branded, and/or sold by one of the defendants between February 1, 2000 and February 7, 2006.
3. What Changes Will Be Made To Defendants' Marketing?
If this settlement is finally approved by the Court Defendants will include language on the packaging of their Flash Memory Devices that is reasonably calculated to inform consumers that the useable storage capacity of their Flash Memory Devices may be less than the stated amount of storage. Such language also shall appear in the product descriptions for Flash Memory Devices on Defendants' Websites and Defendants' Online Stores.
4. What Benefits Are Available In the Settlement?
Subject to the claims process and limitations set forth in the Agreement, if this settlement is finally approved by the Court, Defendants will provide to Class Members one of the following for each Flash Memory Device purchased:
1. A cash refund equal to five percent of the purchase price, exclusive of any tax paid, of each Flash Memory Device purchased during the Refund Class Period;
Or
2. For up to one Flash Memory Device purchased during the Discount Class Period from each Defendant, a discount of ten percent off a future online purchase from Defendants' Online Stores Flash Memory Device.
5. Why Can I Only Receive One Discount Per Brand Of Flash Memory Device?
The settlement agreement provides that for each flash memory device purchased, a class member can receive a discount of ten percent off a future purchase of a flash memory device. However, there is a limit of one discount per brand of flash memory device purchased. For example, a customer who submits discount claims for two SanDisk cards and one Lexar card will receive a total of two discount codes.
This limit was reached as a compromise. It was based in part on Defendants' argument that after the first flash memory purchase, the consumer would be on notice that the actual capacity could be less than the stated capacity.
6. Is There A Limit To The Number Of Refund Claims I Can Submit?
No. There is no limit to the number of refunds that a class member can receive. The class member must submit a valid receipt or equivalent proof of purchase for each device on which a refund is claimed.
7. If I Have Already Submitted A Claim, Can I Submit Another Claim For Additional Purchases?
Yes. If you have already submitted a claim, but you forgot to include some of the purchases that you made during the class period, simply fill out the Claim Form again.
8. How Do I Obtain Settlement Benefits?
1. To receive the Refund, each Class Member must accurately complete and submit the Downloadable Claim Form available here. Class Members must then print and mail the completed Downloadable Claim Form to the Claims Administrator, along with an original or copy of a valid receipt or the equivalent proof of purchase from a merchant or financial institution specifying the Flash Memory Device purchased, brand, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. Please note that original receipts, copies of receipts, and proofs of purchase will not be returned.
2. To receive the Discount, Class Members must complete the Online Claim Form on the Settlement Website. The Online Claim Form will require the Class Member, under penalty of perjury, to specify the Flash Memory Device purchased, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. Upon completing the Online Claim Form, the Class Member will receive one Discount code for each prior purchase of a Flash Memory Device during the Discount Purchase Period, limited to one Discount code per Defendant whose Flash Memory Devices were purchased. Each Discount code can be used only once, towards a single purchase of a Flash Memory Device at Defendants' Online Stores, and cannot be combined with any other offer. The Discount and the Refund are mutually exclusive.
Please note the Following:
(i) The Discount need not be provided on purchases of Flash Memory Devices as to which Lexar, PNY and SanDisk were contractually or legally prohibited from providing such discounts as of December 6,2005, which are: Lexar's LockTight flash memory cards, Lexar's ActiveMemory flash memory cards, and Lexar's Professional Series flash memory cards.
(ii) For any digital camera purchased from Defendants FujiFilm or Kodak during the Refund Purchase Period that included Digital Camera Bundled Flash Memory, the Refund shall apply not against the purchase price of the digital camera but only against the value of the Digital Camera Bundled Flash Memory. Exclusively for purposes of this Settlement, each Digital Camera Bundled Flash Memory is deemed to have had a purchase price of $20.00.
9. When is the Deadline to file a Claim?
The Downloadable Claim Form and/or Online Claim Form must be completed no later than November 16, 2006 or thirty (30) days after Final Approval, whichever is later. Class Members who do not complete a Claim Form by that date will not be eligible to receive the Class Benefit.
10. Who is Considered to be a Class Member?
All purchasers within the United States of a Flash Memory Device manufactured, branded, and/or sold by one of the defendants between February 1, 2000 and February 7, 2006.
11. How do I File a Refund Claim?
Click here.
12. How do I File a Discount Claim Form?
Click here.
13. What are the Attorneys Fees for the Case?
From the inception of this lawsuit, Plaintiffs' Counsel have not received payments for their services, nor have they been reimbursed for any out-of-pocket expenses. If the Court approves the settlement, Plaintiffs' Counsel will ask the Court to award, and Defendants have agreed to pay, and not contest the reasonableness of, an award of fees and costs up to $2,400,000. Additionally, Plaintiffs' Counsel will ask the Court to award Plaintiffs Vroegh and Witthoff $1,000 each for their time and effort related to the Litigation, and Defendants have agreed not to contest the reasonableness of the award. Finally, Defendants have agreed to administer the settlement including the class notice, claim forms, and provisions of the Class Benefit, and have agreed to bear their own costs associated therewith. Any award of attorneys' fees, costs, and any payment to the Plaintiffs will be paid separately from, and will not reduce, the Class Benefit provided under the settlement. Class Members will not be personally liable for any attorneys' fees, costs or payment to the Plaintiffs.
14. How do I Remain a Class Member?
If you do not request exclusion from the Class, you will remain a Class Member. Your interests in connection with the proposed settlement will be represented by Plaintiffs and Plaintiffs' Counsel. You will not be charged for the services or expenses of Plaintiff's Counsel. You must comply with the Claims Process and Deadline requirements in order to receive the Class Benefit.
15. How do I Exclude Myself From the Class And Retain My Right To Bring A Separate Lawsuit?
Any Class Member may opt-out of the Settlement Class (which enables you to retain your right to bring a separate lawsuit) by submitting a written, signed request to opt-out, by postage-paid, first class mail, with the following: (1) their name, address, and telephone number, (2) reference to this Litigation (i.e., Vroegh, et al v. Eastrnan Kodak Company, et al., Case No. CGC-04-428953), (3) identify the Flash Memory Device(s) purchased, including the brand, (4) identify the approximate date of purchase and (5) a statement that they wish to opt-out of the Class to:
Flash Memory Settlement Opt Out
P.O. Box 210511
San Francisco, CA 94121
