Gordon v. Apple Computer Inc., No. 5:2006cv05358 - Document 59 (N.D. Cal. 2008)

Court Description: AMENDED ORDER Granting Approval of Forms and Methods of Notice by Apple Computer Inc re 57 Proposed Order filed by Apple Computer Inc. Motion Hearing set for 12/15/2008 09:00 AM in Courtroom 8, 4th Floor, San Jose. Signed by Judge James Ware on 9/3/2008. (ecg, COURT STAFF) (Filed on 9/3/2008)
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Gordon v. Apple Computer Inc. Doc. 59 1 S UNIT ED mes Wa Judge Ja RT 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION A H ER re LI NO 5 R NIA 4 ERED O ORD IT IS S FO 3 RT U O 2 ISTRIC ES D TC T TA N F D IS T IC T O R C 11 12 BRIAN F. GORDON, on behalf of himself and all others similarly situated, Case No. 5:06-cv-05358-JW 13 Plaintiff, 14 15 16 17 18 CLASS ACTION v. APPLE COMPUTER, INC., and DOES 1 THROUGH 50, inclusive, Defendant. 19 20 21 22 23 24 [PROPOSED] AMENDED ORDER GRANTING APPROVAL OF FORMS AND METHODS OF NOTICE 25 26 27 28 [PROPOSED] AMENDED ORDER GRANTING APPROVAL OF FORMS & METHODS OF NOTICE CASE NO. 5:06-CV-05358-JW sf-2564194 Dockets.Justia.com 1 This Court previously issued an Order Granting Conditional Certification of a 2 Settlement Class, Approval of Forms and Methods of Notice, and Preliminary Approval 3 of Settlement Agreement and Release on March 24, 2008. The Court has been informed 4 by the Parties that the notice program approved by the Court on March 24, 2008 and 5 implemented by the Parties inadvertently omitted certain computer models covered by 6 the Settlement. The Parties have proposed a further notice program to ensure that notice 7 is provided to purchasers of the models omitted from the initial notice program. Having 8 reviewed the Parties’ submissions, 9 IT IS HEREBY ORDERED AS FOLLOWS: 10 1. All terms and definitions used herein have the same meanings as set forth in 11 the Agreement. 12 2. The Second Notice of Pendency and Proposed Settlement of Class Action 13 (“Second Class Notice”); the Second Summary Notice of Settlement (“Second Summary 14 Notice”); the Second Postcard Notice of Settlement (“Second Postcard Notice”), and the 15 Amended Claim Form, Instructions, and Release (“Claims Package”); which are attached 16 to the this Order as Exhibits A, B, C and D, respectively, are hereby approved as to form. 17 3. A copy of the Second Class Notice, together with the Claims Package, shall 18 be posted on a settlement website, www.rosenthalco.com/gordonvapple (the “Settlement 19 Website”) and shall be mailed at Apple’s expense to Settlement Class Members who call 20 a toll-free number to be established at Apple’s expense (“Toll-Free Number”). 21 4. Apple shall send via email an electronic copy of the Second Postcard Notice 22 to the last submitted e-mail address of each member of the Settlement Class whose email 23 address is contained in Apple’s warranty registration database and who is identified in 24 Apple’s warranty registration database as having purchased one of the computer models 25 omitted from the list of covered models used in the initial notice program. 26 5. For each member of the Settlement Class identified in Apple’s warranty 27 registration database as having purchased one of the computer models omitted from the 28 list of covered models used in the initial program for whom Apple does not have an e[PROPOSED] AMENDED ORDER GRANTING APPROVAL OF FORMS & METHODS OF NOTICE CASE NO. 5:06-CV-05358-JW sf-2564194 1 1 mail address but does have a street address in its warranty registration database, Apple 2 shall mail a copy of the Second Postcard Notice to the member’s last known address (as 3 validated by a licensed N.C.O.A. provider). Apple shall also mail the Second Settlement 4 Postcard to any Class Member for whom e-mailed notice pursuant to paragraph 4 is 5 returned undeliverable. 6 6. A copy of the Second Summary Notice shall be published by Apple once in 7 USA Today, a newspaper of national circulation, and once on a different date in 8 Macworld. The notice shall not be less than 1/4 of a page in size. The Second Summary 9 Notice shall include the address of the Settlement Website and the Toll-Free Number. 10 7. The Court finds that the forms of notice to the Settlement Class regarding the 11 pendency of the Action and of this settlement and Class Counsel’s fee and expense 12 application and application for incentive award set forth above, and the methods of 13 dissemination to members of the Settlement Class in accordance with the terms of this 14 Order, constitute the best notice practicable under the circumstances and constitute valid, 15 due, and sufficient notice to all members of the Settlement Class, complying fully with 16 the requirements of Rule 23(c)(2)(B) and the United States Constitution. 17 8. Any member of the Settlement Class who does not, in connection with the 18 settlement notices, file a valid and timely request for exclusion will be bound by the Final 19 Judgment dismissing the Action on the merits and with prejudice. 20 9. A hearing (the “Final Hearing”) shall be held by the Court on December 15, 21 2008, at 9:00 a.m., to consider and determine whether the requirements for certification 22 of the Settlement Class have been met and whether the proposed settlement of the Action 23 on the terms set forth in the Agreement should be approved as fair, reasonable, adequate, 24 and in the best interests of the Settlement Class Members; whether Class Counsel’s fee 25 and expense application and application for service award, included as part of the 26 settlement, should be approved; and whether the Final Judgment approving the settlement 27 and dismissing the Action on the merits and with prejudice against the Class 28 Representatives and all Settlement Class Members should be entered. [PROPOSED] AMENDED ORDER GRANTING APPROVAL OF FORMS & METHODS OF NOTICE CASE NO. 5:06-CV-05358-JW sf-2564194 2 1 10. The Final Hearing may, from time to time and without further notice to the 2 Settlement Class (except those who have filed timely and valid objections), be continued 3 or adjourned by Order of the Court. 4 11. Any Settlement Class Member who seeks to be excluded from the 5 Settlement Class must send a request by first class mail, postmarked on or before 6 December 1, 2008, to Ronald J. Aranoff, Bernstein Liebhard & Lifshitz, LLP, 10 East 7 40th Street — 22nd Floor, New York, NY 10016. 8 12. Objections by any Settlement Class Member to: (A) the certification of the 9 Settlement Class and the proposed settlement contained in the Agreement and described 10 in the Class Notice and Summary Notice; (B) the payment of fees and expenses to Class 11 Counsel and service award to Plaintiff; and/or (C) entry of the Final Judgment, shall be 12 heard and any papers submitted in support of said objections shall be considered by the 13 Court at the Final Hearing only if, on or before December 1, 2008, such objector files 14 with the Court a notice of his, her or its objections, submits documentary proof that he, 15 she or it is a member of the Settlement Class, states the basis for such objections, and 16 serves copies of the foregoing and all other papers in support of such objections on 17 counsel for the Parties identified in the Class Notice. In order to be considered for 18 hearing, all objections must be actually received by the counsel identified in the Class 19 Notice on or before December 1, 2008. 20 13. No later than December 8, 2008, the Parties shall file all papers in support 21 of the application for final approval of the settlement, the application for payment of 22 attorneys’ fees and expenses, and/or any papers in response to any valid and timely 23 objections with the Court, and shall serve copies of such papers upon each other and upon 24 any objectors who have complied with the provisions of paragraph 12 of this Order. 25 14. Settlement Class Members who wish to claim a benefit and whose Adapter 26 failure occurred on or before the Notice Date must mail their Claim Form and supporting 27 documentation postmarked on or before the Notice Date plus 120 days. Settlement Class 28 Members who wish to claim a benefit and whose Adapter failure occurred after the [PROPOSED] AMENDED ORDER GRANTING APPROVAL OF FORMS & METHODS OF NOTICE CASE NO. 5:06-CV-05358-JW sf-2564194 3 1 Notice Date must mail their Claim Form and supporting documentation postmarked on or 2 before the earlier of 120 days after the date the failure occurred, or by May 31, 2009. 3 15. Counsel for the Parties are hereby authorized to utilize all reasonable 4 procedures in connection with the administration of the settlement which are not 5 materially inconsistent with either this Order or the terms of the Agreement. 6 7 8 9 10 11 12 13 September 3 2008 Dated: __________________, By: Order of the U.S. District Court for the Northern District of California _______________________________ The Honorable James Ware DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] AMENDED ORDER GRANTING APPROVAL OF FORMS & METHODS OF NOTICE CASE NO. 5:06-CV-05358-JW sf-2564194 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 BRIAN F. GORDON, on behalf of himself and all others similarly situated, Case No. 5:06-cv-05358-JW 13 Plaintiff, CLASS ACTION 14 v. 15 16 APPLE COMPUTER, INC., and DOES 1 THROUGH 50, inclusive, 17 Defendant. 18 19 20 EXHIBIT A 21 SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION 22 23 24 25 26 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 1 UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA 2 If you purchased a replacement power adapter for certain Apple PowerBook or iBook computers, you could be entitled to benefits under a class action settlement. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The United States District Court, Northern District of California, authorized this notice. This is not a solicitation from a lawyer. The settlement will provide a cash payment if you purchased an Apple PowerBook or iBook computer (certain models), the power adapter failed within the first three years following the initial retail purchase of the computer, and you purchased a replacement adapter. The amount of the cash payment will vary; see the chart on page 5 for payment amounts. To qualify, you must be a United States resident who purchased in the United States an Apple PowerBook or iBook computer listed on Exhibit 1 hereto for which the replacement power adapter sold by Apple was the Apple Portable Power Adapter – 65W. For convenience, these computers are referred to as the “Subject Computers.” In addition, the adapter included with or sold for the Subject Computer (referred to as “Adapter”) must have failed and you must have purchased an Apple-branded 65W power adapter or third-party power adapter to replace it (referred to as “Replacement Adapter”) at your own expense within the first three years following the initial retail purchase of the Subject Computer. Your legal rights are affected whether you act or don’t act. Please read this notice carefully. If you previously received or reviewed a notice relating to replacement power adapters for certain Apple PowerBook and iBook computers, please do not disregard this notice. Additional computers covered by the settlement have been added since the previous notice. 18 YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: 19 20 SUBMIT A CLAIM FORM The only way to get a payment. 21 EXCLUDE YOURSELF Get no payment. This is the only option that allows you to ever be part of any other lawsuit against Apple about the legal claims in this case. OBJECT Write to the Court about why you don’t like the settlement. GO TO A HEARING Ask to speak in Court about the fairness of the settlement. DO NOTHING Get no payment. Give up rights. 22 23 24 25 26 27 28 These rights and options—and the deadlines to exercise them—are explained in this notice. The Court in charge of this case still has to decide whether to approve the settlement. Payments will be made if the Court approves the settlement and after appeals are resolved. Please be patient. EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WHAT THIS NOTICE CONTAINS BASIC INFORMATION ........................................................................... PAGE 3 l. Why did I get this notice package? 2. Why is there a second notice package? 3. What is this lawsuit about? 4. Why is this a class action? 5. Why is there a settlement? WHO IS IN THE SETTLEMENT............................................................. PAGE 4 6. How do I know if I am part of the settlement? 7. Are there exceptions to being included? 8. If I purchased a Subject Computer but did not purchase a Replacement Adapter as described, am I included in the Class? 9. I’m still not sure if I am included. THE SETTLEMENT BENEFITS—WHAT YOU GET ......................... PAGES 4-5 10. What does the settlement provide? 11. What can I get from the settlement? 12. What if I pay for a Replacement Adapter in the future? HOW YOU GET A CASH PAYMENT— SUBMITTING A CLAIM FORM ............................................................. PAGES 5-6 13. How can I get a cash payment? 14. When would I get my cash payment? 15. What am I giving up to get a cash payment or stay in the Class? EXCLUDING YOURSELF FROM THE SETTLEMENT..................... PAGES 6-7 16. How do I get out of the settlement? 17. If I don’t exclude myself, can I sue Apple for the same thing later? 18. If I exclude myself, can I get money from this settlement? THE LAWYERS REPRESENTING YOU ............................................... PAGE 7 19. Do I have a lawyer in this case? 20. How will the lawyers be paid? OBJECTING TO THE SETTLEMENT................................................... PAGES 7-8 21. How do I tell the Court that I don’t like the settlement? 22. What’s the difference between objecting and excluding? THE COURT’S FAIRNESS HEARING................................................... PAGES 8-9 23. When and where will the Court decide whether to approve the settlement? 24. Do I have to come to the hearing? 25. May I speak at the hearing? IF YOU DO NOTHING.............................................................................. PAGE 9 26. What happens if I do nothing at all? GETTING MORE INFORMATION ........................................................ PAGE 9 27. Are there more details about the settlement? 28. How do I get more information? 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 2 1 BASIC INFORMATION 2 1. Why did I get this notice package? 3 You may be a United States resident who purchased for your own use and not for resale an Apple PowerBook or iBook computer listed on Exhibit 1 hereto for which the replacement power adapter sold by Apple was the Apple Portable Power Adapter – 65W. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 The Court ordered this notice to be sent to you because you have a right to know about a proposed settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the settlement. If the Court approves it and after appeals are resolved, an administrator will make the payments that the settlement allows. This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as Gordon v. Apple Computer, Inc., Case No. 5:06-cv-05358JW. The person who sued is called Plaintiff, and the company they sued, Apple Inc. (formerly called Apple Computer, Inc.), is called the Defendant. 2. Why is there a second notice package? If you previously received or reviewed a notice package relating to replacement power adapters for certain Apple PowerBook and iBook computers, please do not disregard this notice package. Additional computers covered by the settlement have been added since the previous notice. Consult Exhibit 1 hereto to review the complete list of Subject Computers and to determine whether your computer is now included in the settlement. If you have already submitted a claim, request for exclusion or objection in response to the prior notice, you do NOT need to do so again. 3. What is this lawsuit about? 20 The lawsuit claimed that the Adapter sold with the Subject Computers is defective in that it “dangerously frays, sparks and prematurely fails to work,” and that Apple engaged in misrepresentations regarding the Adapter. Apple denies all allegations and has asserted many defenses. The settlement is not an admission of wrongdoing. 21 4. Why is this a class action? 22 24 In a class action, one or more people, called Class Representatives (in this case Brian Gordon), sue on behalf of people who have alleged similar claims. All these people are a Class or Class Members. One court resolves the issues for all Class Members, except for those who exclude themselves from the Class. United States District Court Judge James Ware is in charge of this class action. 25 5. Why is there a settlement? 26 The Court did not decide in favor of Plaintiffs or Defendant. Instead, both sides agreed to a settlement. That way, they avoid the cost of a trial, and settlement benefits go to the Class Members. The Class Representatives and the attorneys think the settlement is best for the Class Members. 19 23 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 3 1 2 WHO IS IN THE SETTLEMENT To see if you will get money from this settlement, you first have to determine whether you are a Class Member. 3 4 5 6 7 8 9 10 11 12 13 6. How do I know if I am part of the settlement? Judge Ware has decided that everyone who fits this description is a Class Member: All United States residents who purchased in the United States, for their own use and not for resale, an Apple PowerBook or iBook computer listed on Exhibit 1 hereto. Please note that the list of Subject Computers on the Exhibit 1 included with the previous notice package was not complete. The complete list of Subject Computers can be found on Exhibit 1 hereto. 7. Are there exceptions to being included? The Class does not include Apple; any entity in which Apple has a controlling interest; Apple’s directors, officers, and employees; Apple’s legal representatives, successors, and assigns; and all persons who validly request exclusion from the Settlement Class. 8. If I purchased a Subject Computer but did not pay for a Replacement Adapter as described, am I included in the Class? 14 Yes, because you may be entitled to make a claim if your Adapter fails in the future and you then purchase a Replacement Adapter as covered by the settlement. 15 9. I’m still not sure if I am included. 16 If you are still not sure whether you are included, you can visit the website, www.rosenthalco.com/gordonvapple, for more information. 17 THE SETTLEMENT BENEFITS—WHAT YOU GET 18 19 20 21 22 23 24 25 26 10. What does the settlement provide? Apple has agreed to provide a cash payment to Class Members who purchased a Replacement Adapter for a Subject Computer covered by the settlement and who send in a valid claim form. The settlement covers the purchase of a Replacement Adapter due to failure of the Adapter sold with the Subject Computer within the first three years following the initial retail purchase of the Subject Computer, and before May 31, 2009. The amount of the cash payment will vary depending on when the Adapter included with or sold for the Subject Computer failed. To qualify for a cash payment if the Adapter failed within the first year following the initial retail purchase of the Subject Computer, you must have sought to have the failed adapter covered under warranty and that request must have been denied by Apple for a reason other than user abuse. If your Adapter failed during the first year following the initial retail purchase of the Subject Computer and you meet these conditions, you will be reimbursed for the actual amount you paid for the Replacement Adapter (excluding tax and shipping/handling fees) up to a maximum of $79.00. 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 4 1 11. What can I get from the settlement? 2 The settlement provides for different cash payments depending on when the Adapter included with or sold for your Subject Computer failed and when you purchased a Replacement Adapter. If these events occurred during the first year following the initial retail purchase of the Subject Computer, the amount of your cash payment will also vary depending on how much you paid for the Replacement Adapter. 3 4 5 6 7 8 9 10 Year of Failure and Purchase of Replacement Adapter Cash Payment Amount During the first year following the initial retail purchase of the Subject Computer Amount paid for the Replacement Adapter (excluding sales tax and shipping/handling fees) not to exceed $79.00. 11 12 13 Must Show the Following to Receive Cash Payment 1. Proof of purchase of Replacement Adapter; 2. Declaration that you attempted to have the failed Adapter repaired within the warranty period of the Subject Computer and that such request was denied by Apple for a reason other than user abuse; and 3. Valid claim form. 14 15 16 During the second year following the initial retail purchase of the Subject Computer $40.00 During the third year following the initial retail purchase of the Subject Computer $25.00 1. Proof of purchase of Replacement Adapter; and 2. Valid claim form. 17 18 19 1. Proof of purchase of Replacement Adapter; and 2. Valid claim form. 20 21 There is a limit of one cash payment per Subject Computer. 22 12. What if I pay for a Replacement Adapter in the future? 23 If you purchase a Replacement Adapter because the Adapter included with or sold for your Subject Computer fails in the future within three years from the date of the initial retail purchase of the Subject Computer, you may claim the cash payment amounts above so long as you send in a claim form by the deadlines described in the next section. 24 25 26 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 5 1 How You Get A CASH PAYMENT—Submitting a Claim Form 2 13. How can I get a cash payment? 3 To qualify for a cash payment, you must send in a claim form. A claim form, including instructions on how to make a claim, is attached to this Notice. You can also get a claim form on the Internet at www.rosenthalco.com/gordonvapple or by calling 1-888-539-5706. 4 5 6 7 8 9 You must read the instructions carefully, fill out the form as directed in the instructions, include all the documents the form asks for, and sign the claim form under penalty of perjury. If you purchased a Replacement Adapter as described herein on or before October 14, 2008, you must mail the claim form postmarked on or before February 11, 2009. If you purchased a Replacement Adapter as described herein after October 14, 2008, you must mail the claim form postmarked on or before the earlier of 120 days after the date the Adapter failure occurred, or by May 31, 2009. If you fail to return your claim form by the required date, your claim will be rejected, and you will be deemed to have waived all rights to receive any benefits under this settlement. 10 Follow all the instructions on the claim form. 11 12 NOTE: If you have already submitted a claim in response to the prior notice related to replacement adapters for certain Apple PowerBook and iBook computers, you do NOT need to re-submit the claim. 13 14. When would I get my cash payment? 14 15 16 17 18 19 The Court will hold a hearing on December 15, 2008 at 9 a.m., to decide whether to approve the settlement. If Judge Ware approves the settlement, there may be appeals. The appeal process can take time, perhaps more than a year. Please be patient. 15. What am I giving up to get a cash payment or stay in the Class? Unless you exclude yourself, you stay in the Class, and that means that you can’t sue, continue to sue, or be part of any other lawsuit against Apple about the legal issues in this case. It also means that all of the Court’s orders will apply to you and legally bind you. If you sign the claim form, you will agree to a “Release of Claims,” included with the claim form, which describes exactly the legal claims that you are giving up. 20 21 EXCLUDING YOURSELF FROM THE SETTLEMENT 23 If you don’t want a payment from this settlement, but you want to keep the right to sue or continue to sue Apple, on your own, about the legal issues in this case, then you must take steps to get out. This is called excluding yourself—or is sometimes referred to as opting out of the Settlement Class. 24 16. How do I get out of the settlement? 25 To exclude yourself from the settlement, you must send a letter by mail saying that you want to be excluded from Gordon v. Apple, Case No. 5:06-cv-05358-JW. Be sure to include your name, address, telephone number, the serial number of your Subject Computer, and your signature. You must mail your exclusion request postmarked no later than December 1, 2008, to: 22 26 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 6 1 Ronald J. Aranoff Bernstein Liebhard & Lifshitz, LLP 10 East 40th Street — 22nd Floor New York, NY 10016 2 3 4 5 6 You can’t exclude yourself on the phone or by fax or e-mail. If you ask to be excluded, you will not get any settlement payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Apple in the future about the legal issues in this case. 7 NOTE: If you have already submitted an exclusion request in response to the prior notice related to replacement adapters for certain Apple PowerBook and iBook computers, you do NOT need to do so again. 8 17. If I don’t exclude myself, can I sue Apple for the same thing later? 9 10 No. Unless you exclude yourself, you give up the right to sue Apple for the claims that this settlement resolves. You must exclude yourself from this Class to pursue your own lawsuit. Remember, your exclusion must be postmarked on or before December 1, 2008. 11 18. If I exclude myself, can I get money from this settlement? 12 13 No. If you exclude yourself, do not send in a claim form to ask for any money. But, you may sue, continue to sue, or be part of a different lawsuit against Apple about the legal issues in this case. 14 15 16 17 18 19 THE LAWYERS REPRESENTING YOU 19. Do I have a lawyer in this case? The Class is represented in this case by Mel E. Lifshitz and Ronald J. Aranoff of Bernstein Liebhard & Lifshitz LLP in New York, New York, and Helen Zeldes of the Law Offices of Helen Zeldes in San Diego, California. Together, these lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. 20. How will the lawyers be paid? 20 21 22 Class Counsel will ask the Court for attorneys’ fees and expenses in the amount of $849,500, and a service award to Plaintiff in the amount of $500. Apple will separately pay the fees and expenses that the Court awards. These amounts will not come out of any funds for payments to Class Members. Apple has agreed not to oppose these fees and expenses. Apple will also separately pay the costs to administer the settlement. 23 OBJECTING TO THE SETTLEMENT 24 You can tell the Court that you don’t agree with the settlement or some part of it. 25 26 27 28 21. How do I tell the Court that I don’t like the settlement? If you’re a Class Member, you can object to the settlement if you don’t like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to Gordon v Apple, Case EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 7 1 2 No. 5:06-cv-05358-JW. Be sure to include your name, address, telephone number, the serial number of your Subject Computer, your signature, and the reasons you object to the settlement. The objection and any supporting papers must be mailed to and actually received by all of the following three addressees no later than December 1, 2008: 3 4 5 6 7 COURT Clerk of the Court United States District Court for the Northern District of California San Jose Division 280 South 1st Street San Jose, CA 95113 CLASS COUNSEL Ronald J. Aranoff Bernstein Liebhard & Lifshitz, LLP 10 East 40th Street — 22nd Floor New York, NY 10016 DEFENSE COUNSEL Penelope A. Preovolos Morrison & Foerster LLP 425 Market Street San Francisco, CA 941052482 8 9 NOTE: If you have already submitted an objection in response to the prior notice related to replacement adapters for certain Apple PowerBook and iBook computers, you do NOT need to do so again. 10 11 22. What’s the difference between objecting and excluding? 12 Objecting is simply telling the Court that you don’t like something about the settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you don’t want to be part of the Class. If you exclude yourself, you have no basis to object, because the case no longer affects you. 13 14 THE COURT’S FAIRNESS HEARING 15 16 The Court will hold a hearing to decide whether to approve the settlement. You may attend, and you may ask to speak, but you don’t have to. 17 23. When and where will the Court decide whether to approve the settlement? 18 22 The Court will hold a Fairness Hearing at 9:00 a.m. on December 15, 2008, at the United States District Court for the Northern District of California, San Jose Division, Courtroom 8 (4th Floor) located at 280 South 1st Street, San Jose, California, 95113. At this hearing the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. Judge Ware will listen to people who have asked to speak at the hearing. The Court may also consider how much to pay Class Counsel. After the hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will take. 23 24. Do I have to come to the hearing? 24 No. Class Counsel will answer questions Judge Ware may have. But, you are welcome to come at your own expense. If you send an objection, you don’t have to come to Court to talk about it. As long as your written objection was received on time, the Court will consider it. You may also pay your own lawyer to attend, but it’s not necessary. Finally, you may seek to intervene in the action, but you need not do so. 19 20 21 25 26 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 8 1 25. May I speak at the hearing? 2 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 Intention to Appear” in “Gordon v. Apple, Case No. 5:06cv-05358-JW.” Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be received by the Clerk of the Court, Class Counsel, and Defense Counsel, at the three addresses in question 20, no later than December 1, 2008. You cannot speak at the hearing if you excluded yourself. 3 4 5 7 NOTE: IF YOU HAVE ALREADY SUBMITTED A NOTICE OF INTENTION TO APPEAR IN RESPONSE TO THE PRIOR NOTICE RELATED TO REPLACEMENT ADAPTERS FOR CERTAIN APPLE POWERBOOK AND IBOOK COMPUTERS, YOU DO NOT NEED TO DO SO AGAIN. 8 IF YOU DO NOTHING 6 9 10 11 26. What happens if I do nothing at all? If you do nothing, you’ll get no money from this settlement. But, unless you exclude yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Apple about the legal issues in this case, ever again. 12 13 14 15 16 GETTING MORE INFORMATION 27. Are there more details about the settlement? This notice summarizes the proposed settlement. More details are in a Settlement Agreement. Copies of the Settlement Agreement and the pleadings and other documents relating to the case are on file at the United States District Court for the Northern District of California, San Jose Division, and may be examined and copied at any time during regular office hours at the Office of the Clerk, 280 South 1st Street, San Jose, California, 95113. 17 18 Note that the original Exhibit 1 on file with the Court as an attachment to the Settlement 19 Agreement has been updated to include additional computers. The updated version of Exhibit 1 20 is attached hereto. 21 28. How do I get more information? 22 You can visit the settlement website at www.rosenthalco.com/gordonvapple, where you will find answers to common questions about the settlement, a claim form, plus other information. You may also write to Helen Zeldes, Esq., Law Offices of Helen Zeldes, 249 S. Highway 101, #370, Solana Beach, CA 92075. Questions may not be directed to the Court. 23 24 date: ____________, 2008. 25 26 27 28 EXHIBIT A – SECOND NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION Case No. 5:06-cv-05358-JW sf-2563109 9 EXHIBIT 1 Amended Exhibit 1 Configuration Codes of PowerBook and iBook Computers Covered by Settlement PowerBook and iBook computers with serial numbers that include the following configuration codes are now covered by the Settlement. To determine the configuration code, please look at the serial number for your computer. The configuration code is the last three characters of the serial number. PowerBook Computers: MRT MVZ MW0 MWO MYN N1Q N4K N4L N4M NEM NEN NGK NGL NGM NGN NGP NGQ NL5 NL6 NL7 NMH NMJ NMK NP4 NQ9 NRW NRX NRY NRZ NS0 NS1 NWL NZA NZB NZG NZK P08 P0B P21 P22 P23 P2L PEZ PFK PGK PGL PGM PHK PHL PJ3 PJ4 PLG PLH PLW PLX POB PQV PT4 PT6 PT7 PT8 PVF Q1Q Q76 Q77 QA7 QA8 QC6 QCA QCS QCT QD0 QDW QFH QFJ QFT QFU QH9 QHB QHX QHY QJD QJE QKU AMENDED EXHIBIT 1 CASE NO. 5:06-CV-05358-JW sf-2567739 QL0 QLU QMQ QQ5 QRU QRV QRW QV7 QW2 QW3 QWE R29 R2A R2B RAA RAN RBB RBC RBF RC8 RC9 RCG RCH RCJ RDK REK REL RFK RFL RG3 RG4 RG5 RG6 RGV RJ3 RJ4 RJ5 RJ6 RJ7 RJF RNF RP3 RPS RXR SB7 SCQ SD2 SD7 SD8 SK1 SQ5 SQ6 SQ7 SWZ SX0 SX2 SX3 SXZ SY2 SY3 SY5 SY6 SY7 SY8 SYG SYH SYL SYP SYS T0U T0V T1C T1V T41 T5D TBX TCG TCH TFW TFX TFY TFZ TG3 TG4 TG8 TJC TJG TKZ TSK U34 UB1 UDR UDS UDT UDU UDW UDX UE0 UE1 UE2 UEE UEF UEG UEH UF1 UF6 UF7 UFA UFB UFE UFF UFG UQD URC URQ URR US6 UT6 UT7 UUF UWV UXA UZB 1 iBook Computers: MRR N1N N4P N4Q N4R N4S N4T N5A N5C NDF NDP NDQ NDR NDV NDW NDX NRL NRM NRN NRP NVH NWR NWS NWT NWU NY4 NY5 NYF NYG NZ8 NZ9 NZH P7Y PB8 PB9 PBA PBB PBC PBD PBE PBF PBG PBM PBN PER PES PET PF2 PF3 PFB PG7 PGH PGN PGV PGW PGX PGY PGZ PH0 PH1 PH2 PKW PKX PKY PKZ PL0 PL1 PMA PMM PPT PPX PQ0 PQ1 PQ2 PS1 PS2 PSC PSK PSZ PT2 PT3 PXZ PY0 Q1R Q73 QAD QAX QAY QAZ QC9 QD2 QE2 QE4 QF9 QH0 QHA QHU QHV QHW QJP AMENDED EXHIBIT 1 CASE NO. 5:06-CV-05358-JW sf-2567739 QJQ QJS QKX QKY QKZ QL1 QLW QMN QMP QNA QPZ QQC QRD QRE QT5 QVZ QW0 QWF QYH QYJ QYK QYL QYM QYN QYP QYQ QYR R12 R2C R41 R6E R6R R6S R71 R72 R73 R74 R8F R9C RA9 RAK RAL RAM RAP RAZ RB8 RB9 RBA RC7 RCF RCQ RCR RCS RCT RCU RCV RD7 RD8 RDH RE8 RED REE REF REG RER REZ RFH RNE RNG RNR RP1 RP2 RPN RPZ RQ0 RQ1 RQ2 RZR S02 S03 S24 S25 S3Z S85 S86 S87 S88 SCR SCS SCT SCU SCY SCZ SD0 SD4 SD5 SDE SDN SDP SE4 .SE6 SE7 SE9 SEB SEC SEH SEJ SHE SK2 SLJ T2X T5X T5Y TCF TCJ TG0 TG1 TG2 TJD TJE TJF TP4 TP5 TP6 TP7 TRR TVX TWR TX8 TYE U6C U6D U6E U6Q U6R U6S U6U UCR UK9 UT8 UUG UZ9 UZA V3B VR3 VR4 VR5 VUZ VW1 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 BRIAN F. GORDON, on behalf of himself and all others similarly situated, 14 15 Case No. 5:06-cv-05358-JW CLASS ACTION Plaintiff, v. 16 17 18 APPLE COMPUTER, INC., and DOES 1 THROUGH 50, inclusive, Defendant. 19 20 21 22 EXHIBIT B SECOND SUMMARY NOTICE OF SETTLEMENT 23 24 25 26 27 28 EXHIBIT B – SECOND SUMMARY NOTICE OF SETTLEMENT Case No. 5:06-cv-05358-JW sf-2563128 1 LEGAL NOTICE 2 If you purchased a replacement power adapter for certain Apple PowerBook or iBook computers, you could be entitled to benefits from a class action settlement. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A settlement of a class action lawsuit affects you if you purchased an Apple PowerBook or iBook computer for which the replacement power adapter was the Apple Portable Power Adapter — 65W (“Subject Computer”) and subsequently purchased a Replacement Adapter for the Subject Computer due to failure of the Adapter included with or sold for the Subject Computer. A list of the Subject Computers (Exhibit 1) is available on the Internet at www.rosenthalco.com/gordonvapple or by calling 1-888-539-5706 to request the full notice package. The settlement will provide a cash payment to United States residents who purchased a Subject Computer and paid for a Replacement Adapter covered by the settlement within the first three years following the initial retail purchase of the Subject Computer. If you qualify, you may send in a claim form to ask for payment, or you can exclude yourself from the settlement, or object. The United States District Court for the Northern District of California authorized this notice. The Court will have a hearing to consider whether to approve the settlement, so that the benefits may be paid. WHO’S AFFECTED? WHY IS THIS NOTICE BEING PUBLISHED AGAIN? Apple has agreed to provide a cash payment to Class Members who purchased a Replacement Adapter due to the failure of the Adapter included with or sold for a Subject Computer covered by the settlement and who send in a valid claim form. For failures within the first year following the initial retail purchase of the Subject Computer, the settlement requires that you attempted to have the failed Adapter replaced or repaired under warranty by Apple and such request was denied by Apple for a reason other than user abuse. If you previously received or reviewed a notice relating to replacement power adapters for certain Apple PowerBook and iBook computers, please do not disregard this notice. Additional computers covered by the settlement have been added since the previous notice. Consult the list of Subject Computers (Exhibit 1) available on the Internet at www.rosenthalco.com/gordonvapple or by calling 1-888-539-5706 to request the full notice package, to see whether your computer is now included in the settlement. If you have already submitted a claim, request for exclusion or objection in response to the prior notice, you do NOT need to do so again. Purchasers of an Apple PowerBook or iBook computer listed on Exhibit 1. Exhibit 1 is available on the Internet at www.rosenthalco.com/gordonvapple or by calling 1-888-539-5706 to request the full notice package. You’re a “Class Member” if you are a United States resident who purchased in the United States an Apple PowerBook or iBook computer listed on Exhibit 1 for your own use and not for resale. WHAT’S THIS ABOUT? The lawsuit claimed that the Adapter included with or sold for the Subject Computers is defective in that it allegedly “dangerously frays, sparks and prematurely fails to work.” Apple denies all allegations and has asserted many defenses. Apple is entering into this settlement to avoid burdensome and costly litigation. The settlement is not an admission of wrong-doing. WHAT CAN YOU GET FROM THE SETTLEMENT? The settlement provides for different cash payments depending on when the Adapter included with or sold for your Subject Computer failed. The settlement only applies to a Replacement Adapter purchased during the first three years following the initial retail purchase of the Subject Computer, and before May 31, 2009. Cash payment amounts are as follows: EXHIBIT B – SECOND SUMMARY NOTICE OF SETTLEMENT Case No. 5:06-cv-05358-JW sf-2563128 1 1 2 3 YEAR OF FAILURE OF ADAPTER YEAR 1 4 5 6 YEAR 2 YEAR 3 CASH PAYMENT AMOUNT If you stay in the Class, you may object to the settlement. Objections must be received by December 1, 2008. THE ACTUAL AMOUNT PAID FOR THE REPLACEMENT ADAPTER (EXCLUDING TAX & SHIPPING) UP TO $79 $40 $25 NOTE: If you have already submitted an exclusion request or objection in response to the prior notice related to replacement adapters for certain Apple PowerBook and iBook computers, you do NOT need to do so again. 7 8 9 10 11 12 13 14 15 16 17 There is a limit of one cash payment per Subject Computer. HOW DO YOU GET A PAYMENT? A detailed notice and claim form package contains everything you need. Just call 1-888-539-5706 or go to www.rosenthalco.com/gordonvapple to get one. The detailed notice describes how to exclude yourself or object. The Court will hold a hearing in this case (Gordon v. Apple Computer, Inc., Case No. 5:06-cv-05358) on December 15, 2008, at 9 a.m. to consider whether to approve (1) the settlement and (2) attorneys’ fees and expenses of $849,500 and a service payment to Plaintiff of $500. You may appear at the hearing, but you don’t have to. To obtain a full notice and claim form, go to www.rosenthalco.com/gordonvapple or call toll free 1-888-539-5706. For more details, go to www.rosenthalco.com/gordonvapple or write to Helen Zeldes, Esq., 249 S. Highway 101, #370, Solana Beach, CA 92075. IMPORTANT DEADLINES If you purchased a Replacement Adapter as described herein on or before October 14, 2008, you must mail the claim form postmarked on or before February 11, 2009. If you purchased a Replacement Adapter as described herein after October 14, 2008, you must mail the claim form postmarked on or before the earlier of 120 days after the date the Adapter failure occurred, or by May 31, 2009. 18 19 20 21 22 23 24 25 NOTE: If you have already submitted a claim in response to the prior notice related to replacement adapters for certain Apple PowerBook and iBook computers, you do NOT need to re-submit the claim. WHAT ARE YOUR OPTIONS? If you don’t want a payment and you don’t want to be legally bound by the settlement, you must postmark your request to exclude yourself by December 1, 2008, or you won’t be able to sue, or continue to sue, Apple about the legal claims in this case. If you exclude yourself, you can’t get a payment from this settlement. 26 27 28 EXHIBIT B – SECOND SUMMARY NOTICE OF SETTLEMENT Case No. 5:06-cv-05358-JW sf-2563128 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 BRIAN F. GORDON, on behalf of himself and all others similarly situated, Case No. 5:06-cv-05358-JW 13 15 16 17 CLASS ACTION Plaintiff, 14 v. APPLE COMPUTER, INC., and DOES 1 THRUOGH 50, inclusive, 18 Defendant. 19 20 21 EXHIBIT C 22 SECOND POSTCARD NOTICE OF SETTLEMENT 23 24 25 26 27 28 EXHIBIT C – SECOND POSTCARD NOTICE OF SETTLEMENT Case No. 5:06-cv-05358-JW sf-2563921 Notice of Apple Adapter Settlement For Certain PowerBook and iBook Computers 1 2 3 4 Attention: A settlement of a class action lawsuit affects you if you purchased certain models of Apple’s PowerBook or iBook computer (“Subject Computer”) and subsequently purchased a Replacement Adapter due to failure of the Adapter included with or sold for the Subject Computer. You may be entitled to benefits under the settlement. The United States District Court for the Northern District of California authorized this notice. 5 6 7 8 9 10 To learn more about the settlement (including whether your computer is covered by the settlement), make a claim or exclude yourself from the settlement, go to www.rosenthalco.com/gordonvapple or call 1-888-539-5706 to request the full notice package. Note: If you previously received a notice relating to replacement power adapters for certain Apple PowerBook and iBook computers, please do not disregard this notice. Additional computers covered by the settlement have been added since the previous notice. Consult the list of Subject Computers available on-line at www.rosenthalco.com/gordonvapple or by calling 1-888-539-5706 to request the full notice package, to see whether your computer is now included in the settlement. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Settlement: The settlement will provide a cash payment if you purchased a Subject Computer, the power adapter included with or sold for your computer (“Adapter”) failed within the first three years following the initial retail purchase of the computer, and you purchased a Replacement Adapter at your own expense. If the court approves the settlement, you may be entitled to a cash payment in the following amounts depending on whether your Adapter failed during the first, second or third year following the initial retail purchase of the Subject Computer: (a) first year, the actual amount you paid (excluding taxes and shipping/handling fees) up to a maximum of $79.00; (b) second year, $40; (c) third year, $25. There is a limit of one cash payment per Subject Computer. Your Rights: If you qualify, you may send in a claim form to ask for payment, or you can exclude yourself from the settlement or object to the settlement. If you wish to make a claim and you purchased your Replacement Adapter on or before October 14, 2008, you must submit your claim by February 11, 2009. If you purchased your Replacement Adapter after October 14, 2008, you must submit your claim by the earlier of 120 days after the date your Adapter failed, or by May 31, 2009. If you don’t want a payment and you don’t want to be legally bound by the settlement, your opt-out request must be postmarked by December 1, 2008. If you stay in the Class, your objection to the settlement must be received by December 1, 2008. To get the information you need to make a claim, exclude yourself or object, go to www.rosenthalco.com/gordonvapple or call 1-888-539-5706 to request the full notice package. Note: If you have already submitted a claim, request for exclusion or objection in response to the prior notice, you do NOT need to do so again. The Court will hold a hearing in this case (Gordon v. Apple Computer, Inc., Case No. 5:06cv-05358) on December 15, 2008, at 9:00 a.m. to consider whether to approve (1) the settlement and (2) attorneys’ fees and expenses of $849,500 and a service payment to Plaintiff of $500. You may appear at the hearing, but you don’t have to. To obtain a full notice and claim form, go to www.rosenthalco.com/gordonvapple or call toll free 1-888-539-5706 For more details, go to www.rosenthalco.com/gordonvapple or write to Helen Zeldes, Esq., 249 S. Highway 101, #370, Solana Beach, CA 92075. 27 28 1 EXHIBIT C – SECOND POSTCARD NOTICE OF SETTLEMENT Case No. 5:06-CV-05358-JW sf-2563921 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 BRIAN F. GORDON, on behalf of himself and all others similarly situated, Case No. 5:06-cv-05358-JW 13 Plaintiff, CLASS ACTION 14 v. 15 16 17 APPLE COMPUTER, INC., and DOES 1 THROUGH 50, inclusive, Defendant. 18 19 20 EXHIBIT D 21 AMENDED CLAIM FORM 22 23 24 25 26 27 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 1 Apple Power Adapter Claim Form (PowerBook and iBook Power Adapters) 2 (Including Instructions, Claim Form, Release and Declaration) 3 INSTRUCTIONS 4 5 READ THESE INSTRUCTIONS CAREFULLY. IF YOU FAIL TO FOLLOW THESE INSTRUCTIONS, YOU MAY LOSE CERTAIN BENEFITS TO WHICH YOU MIGHT OTHERWISE BE ENTITLED. 6 1. Summary of Key Provisions 7 The settlement provides for a cash payment if (1) you purchased an Apple PowerBook or iBook computer (models listed in Exhibit 1), (2) the Apple-branded power adapter included with or sold for your computer (referred to as “Adapter”) failed during the first three years following the initial retail purchase of the computer, and (3) you replaced the Adapter at your expense. The amount of the cash payment will vary depending on when your Adapter failed and was replaced (and for failures during the first year, depending on the amount you actually paid). Please refer to the full Notice for an explanation and chart of the cash payment amounts. 8 9 10 11 12 13 14 15 16 To receive a cash payment under the settlement, you must fill out and return the attached Claim Form (“Claim Form”) postmarked on or before the dates explained in Part 5 below. If you fail to return a valid Claim Form by the deadline, your claim will be rejected and you will lose all rights to these benefits. Unless you request exclusion from the class as explained in the Class Notice, you will be bound by the Settlement Agreement and Release and the Final Judgment even if you do not return the Claim Form. If you have any questions while completing the Claim Form, please go to www.rosenthalco.com/gordonvapple. 17 18 19 NOTE: If you previously received or reviewed a notice relating to replacement power adapters for certain Apple PowerBook and iBook computers, please review the computer models covered by the settlement listed in Exhibit 1. Additional computers covered by the settlement have been added since the previous notice. You may now be eligible to submit a claim. 20 21 If you have already submitted a claim in response to the prior notice, you do NOT need to do so again. 22 2. Who Is Eligible to Make a Claim Under the Settlement 23 To qualify, you must be a United States resident who purchased in the United States an Apple PowerBook or iBook computer listed on Exhibit 1 hereto for which the replacement power adapter sold by Apple was the Apple Portable Power Adapter – 65W. For convenience, these computers are referred to as the “Subject Computers.” In addition, the Adapter included with or sold for the Subject Computer must have failed and you must have purchased an Applebranded 65W power adapter or third-party power adapter to replace it (referred to as “Replacement Adapter”) at your own expense within the first three years following the initial retail purchase of the Subject Computer. There is a limit of one cash payment per Subject Computer. 24 25 26 27 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 1 1 3. One Claim Per Subject Computer. 2 4 If you purchased more than one Subject Computer, experienced an Adapter failure and paid for a Replacement Adapter for more than one Subject Computer, and you wish to make claims for multiple Subject Computers, you must fill out a separate Claim Form for each Subject Computer. You may print multiple copies of this claim form, or make photocopies, if necessary. 5 4. How To Make A Claim 6 To make a claim, complete and submit this Claim Form, along with the required documentation, in compliance with the instructions below. Send the original of the signed Claim Form and a copy of the required documentation to Gordon v. Apple Computer Claims Administrator, P.O. Box 6177, Novato, CA 94948-6177 . Please keep copies for your records. 3 7 8 9 10 11 12 13 14 15 16 17 A. Proof of Purchase You must attach a Proof of Purchase of your Replacement Adapter to your Claim Form. Proof of Purchase means an invoice, receipt or other document (such as a credit card statement or cancelled check) evidencing that the product purchased was a Replacement Adapter, the name and address of the entity that sold you the Replacement Adapter, the date you purchased the Replacement Adapter, and the amount you paid for the Replacement Adapter (excluding tax and shipping/handling fees). If your Proof of Purchase does not specifically identify the purchase of an Apple Portable Power Adapter – 65W or isolate the amount you paid because you purchased other products in the same purchase, you must (1) fill out the section of the Claim Form declaring under penalty of perjury that the Proof of Purchase was for a Replacement Adapter, (2) fill out the section of the Claim Form that asks you to state the amount you paid for the Replacement Adapter (excluding tax and shipping/handling fees), and (3) circle or highlight the item on the invoice, receipt or other document that includes the Replacement Adapter. B. Claims for Failures During the First Year Following Purchase of the Subject Computer 18 20 If your Adapter failed during the first year following the initial retail purchase of the Subject Computer, you must sign and attach to your Claim Form the enclosed Declaration Regarding First Year Adapter Failure, stating that you attempted to have the failed Adapter covered under warranty and that request was denied by Apple for a reason other than user abuse. 21 5. Claims Deadlines 22 Please note the following deadlines for postmarking your Claim Form and supporting documentation. If you purchased a Replacement Adapter as described herein on or before October 14, 2008, you must mail the claim form postmarked on or before February 11, 2009. If you purchased a Replacement Adapter as described herein after October 14, 2008, you must mail the claim form postmarked on or before the earlier of 120 days after the date the Adapter failure occurred, or by May 31, 2009. If you fail to return your claim form by the required date, your claim will be rejected, and you will be deemed to have waived all rights to receive any benefits under this settlement. 19 23 24 25 26 27 28 Remember: To be valid, your Claim Form must be completely and accurately filled out, signed and dated, and must include all requested information, including Proof of Purchase and any required Declaration(s). If your Claim EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 2 1 2 Form is incomplete, untimely, illegible, or contains false information, it may be rejected by the Claims Administrator. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 3 1 CLAIM FORM (Please Print or Type) 2 3 4 5 A. REQUIRED INFORMATION FOR ALL CLAIMANTS You must complete every part of this Section A (except that providing your e-mail address is optional). The information you provide will be treated as confidential. Any compensation that Apple provides in response to your claim will be issued to the name and street address you provide. Please print clearly in blue or black ink. 6 7 Name (Full name required): 8 Address: 9 City: 10 State: 11 Zip Code: 12 E-mail (optional): (First) (Last) 13 14 15 Subject Computer Serial Number: 16 (Location of the serial number varies by computer model. Go to www.rosenthalco.com/gordonvapple to determine the location of the serial number on your model.) 17 Date Of Initial Retail Purchase of Your Subject Computer: ____________________, 200_ 18 19 Date Adapter Failed: __________________, 200_ 20 21 22 Date Replacement Adapter Purchased (if not shown on proof of purchase: __________________, 200_ 23 24 Entity From Whom Replacement Adapter Purchased (if not shown on Proof of Purchase): ________________________ 25 26 27 Amount Paid for Replacement Adapter, excluding tax and shipping/handling fees (if not shown on Proof of Purchase): $_________ 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 4 1 B. 2 DECLARATION UNDER PENALTY OF PERJURY FOR CLAIMANTS WHOSE PROOF OF PURCHASE DOES NOT SPECIFICALLY IDENTIFY PURCHASE OF AN APPLE PORTABLE POWER ADAPTER – 65W 3 4 If your Proof of Purchase does not specifically identify the purchase of an Apple Portable Power Adapter – 65W, you must check the box below and sign and date under the box: 5 I declare under penalty of perjury that the product circled or highlighted in the enclosed invoice, receipt or other document was for a Replacement Adapter for the Subject Computer whose serial number I have filled in above. 6 7 Signed: _______________________________ Dated: __________________________ 8 9 10 11 12 13 14 C. CERTIFICATION Please read, date, and sign the statement below [required for all claims]. By signing and dating this form below, I acknowledge that I have read the Release attached to this Claim Form, and understand that the Settlement Agreement and Release and the Final Judgment entered in this action will be binding on me, my agents and heirs, and any other person or entity with authority to act on my behalf. I state under penalty of perjury that the information provided above is true and correct to the best of my knowledge and belief. 15 16 17 ______________________________ Date ____________________________________ Signature 18 19 20 21 D. ADDITIONAL REQUIREMENTS FOR CLAIMANTS WITH A FAILURE DURING THE FIRST YEAR If your Adapter failed during the first year following the initial retail purchase of the Subject Computer, you must fill out, sign and enclose the Declaration Regarding First Year Adapter Failure. 22 REMINDER 23 24 25 26 27 Remember to attach your Proof of Purchase to the Claim Form. Please note the following deadlines for postmarking or e-mailing your Claim Form and supporting documentation: If you fail to return your claim form by the required date, your claim will be rejected, and you will be deemed to have waived all rights to receive any benefits under this settlement. If you purchased a Replacement 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 5 1 Adapter as described herein on or before October 14, 2008, you must mail the claim form postmarked on or before February 11, 2009. 2 3 4 If you purchased a Replacement Adapter as described herein after October 14, 2008, you must mail the claim form postmarked on or before the earlier of 120 days after the date the Adapter failure occurred, or by May 31, 2009. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 6 1 RELEASE 2 3 4 5 If the Court approves the proposed settlement, it will enter a Judgment that will dismiss the Action on the merits and with prejudice as to all Settlement Class Members. All Class Members who do not validly and timely request to be excluded from the proposed settlement will be forever barred from prosecuting their own lawsuits and shall be deemed, on behalf of themselves and their heirs, assigns, and successors, to have fully released and forever discharged the “Released Persons” (as defined below) from all “Released Claims” (as defined below). 6 7 8 “Released Persons” shall mean Apple, and, whether or not specifically named herein, each of its past or present directors, officers, employees, agents, insurers, shareholders, attorneys, advisors, consultants, representatives, partners, affiliates, parents, subsidiaries, joint venturers, independent contractors, wholesalers, resellers, distributors, retailers, related companies and divisions, and each of their predecessors, successors, heirs, and assigns. 9 10 11 12 13 14 15 “Released Claims” shall mean any and all liabilities, claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts, agreements, damages, costs, attorneys’ fees, losses, expenses, obligations or demands, of any kind whatsoever, whether known or unknown, existing or potential, or suspected or unsuspected, whether raised by claim, counterclaim, setoff or otherwise, including any known or unknown claims, which they have or may claim now or in the future to have, that were or could have been alleged or asserted against any of the Released Persons in the Litigation regarding the Adapters or that relate to the claims regarding the Adapters set forth in the Complaint filed in the Litigation, including any claims that the Adapters are defective in that they dangerously fray, spark or prematurely fail to work, and any alleged misrepresentations or failures to disclose with respect to the Adapters (“Released Claims”). Personal injury and property damage claims (other than damage to the Adapter itself, including the cords that come with the Adapter) are excluded from the release. 16 17 18 19 20 21 22 23 By operation of the Final Judgment, all Settlement Class Members shall be deemed to have waived any and all provisions, rights, and benefits conferred by § 1542 of the California Civil Code or any comparable statutory or common law provision of any other jurisdiction with respect to the Released Claims. Section 1542 reads as follows: Certain Claims Not Affected By General Release: 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 settlement with the debtor. Although the releases granted under the Agreement are not general releases, the Settlement Class Members nonetheless acknowledge that they are waiving the protections of § 1542 and of any comparable statutory or common law provision of any other jurisdiction. 24 25 26 27 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 7 1 DECLARATION REGARDING FIRST YEAR ADAPTER FAILURE 2 3 If your Adapter failed during the first year following the initial retail purchase of the Subject Computer, you must check the appropriate boxes and fill out and sign the following declaration: 4 5 My Adapter failed during the first year following the initial retail purchase of the Subject Computer identified above. 6 7 I attempted to have the failed Adapter covered under warranty and my claim was denied. 8 9 10 State who you contacted — e.g., called Apple directly, went to Apple retail store (state location), or went to Apple authorized service provider (state name of service provider): 11 _________________________________________ 12 13 Date contact was made (if you are unsure of the exact date, you may approximate): __________________, 200_ 14 15 16 17 18 Provide a brief explanation of what happened and why your claim was denied: _____________________________________________________________________ _____________________________________________________________________ ______ 19 20 My claim was not denied for user abuse and my Adapter had not suffered user abuse at the time I made my claim. 21 I purchased a Replacement Adapter at my own expense. 22 CERTIFICATION UNDER PENALTY OF PERJURY 23 I hereby affirm and declare under penalty of perjury that the information provided herein is 24 true and accurate to the best of my knowledge. 25 26 SIGNED DATED 27 28 EXHIBIT D – AMENDED CLAIM FORM Case No. 5:06-cv-05358-JW sf-2564187 8