Many of you have received the email below if you advertised with MIVA and/or Lycos in the past. In order to receive advertiser credits for any click fraud you my have paid for during your campaign, you must visit www.PayPerClickSettlement.com and submit your claim by April 11, 2008 to be eligible. Please note that if you do not actively opt out of the class (whether or not you submit a claim to receive advertiser credits), you will not be eligible to pursue future litigation against MIVA or Lycos for click fraud-related activity.
Re: advertiser account(s): ******
Notice of Pendency and Settlement of Class Action, Settlement Hearing and Claims Procedure
This court-ordered notice may affect your legal rights. Please read it carefully.
If you purchased online advertising from MIVA, Inc., formerly known as FindWhat.com, Inc., or any of its subsidiaries, including B&B Advertising, Inc. (also known as “SearchFeed.com”), between January 1, 2000 and September 30, 2007, or if you purchased online advertising from Lycos, Inc. between September 23, 2002 and March 30, 2006, you are a class member in a class-action lawsuit, Lane’s Gifts and Collectibles et al. v. MIVA, Inc. et al., Case No. CV-2005-52-1, in the Circuit Court of Miller County, Arkansas. This notice is to inform you of the Court’s certification of a class; the nature of the claims alleged; your right to participate in, or exclude yourself from, the class; a proposed settlement; and how you can claim an award of advertising credits under the settlement. For ease of reference, MIVA and its subsidiaries are referred to collectively hereinafter as “MIVA;” however, the provisions of this notice apply to all of these companies.
· The settlement will provide advertising credits to class members who certify that they were the victims of “click fraud” or other invalid or improper clicks on online advertisements purchased from MIVA on or after January 1, 2000 and on or before September 30, 2007, or from Lycos on or after September 23, 2002 and on or before March 30, 2006.
· The settlement will resolve claims that MIVA and Lycos allegedly breached contracts with advertisers and violated other laws by failing to adequately detect and stop “click fraud” or other invalid or improper clicks on online advertisements.
· If you are a member of the class, your legal rights are affected by whether you act or do not act.
YOUR LEGAL RIGHTS AND OPTIONS
You will automatically be eligible to submit a claim form for MIVA advertising credits and will give up your ability to sue MIVA and/or Lycos over the subject matter of this case.
You will not be able to submit a claim form for MIVA advertising credits. This is the only option that allows you to bring or participate in another lawsuit against MIVA and/or Lycos about the subject matter of this case.
Write to the Court and parties about why you don’t like the settlement.
· 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. Awards of advertising credits will be made only if the Court approves the settlement. If someone appeals from the Court’s approval of the settlement, awards of credits will not occur until the appeal is resolved.
WHAT IS THIS CASE ABOUT?
Plaintiffs Lane’s Gifts and Collectibles, Max Caulfield d/b/a Caulfield Investigations, Federal Tax Resolution, LLC, Toni Riss d/b/a Death Becomes You (a/k/a Blue Lips), and Payday Advance Plus, Inc. allege that MIVA and Lycos breached their contracts with class members, unjustly enriched themselves, and engaged in a civil conspiracy by failing to adequately detect and stop “click fraud” or other invalid or improper clicks on online advertisements. MIVA and Lycos deny Plaintiffs’ allegations and contend that all payments they have received from class members for online advertising were legally and properly charged, and that they have neither breached their contracts with class members nor violated any other law through the actions alleged in the case. The Court has not made a determination regarding which of the parties’ contentions are correct.
WHY IS THERE A SETTLEMENT?
The Court did not decide in favor of Plaintiffs or MIVA and Lycos. Instead, both sides agreed to a settlement. That way, both sides avoid the cost and uncertainty of further litigation.
AM I AFFECTED BY THE SETTLEMENT?
If you fit within the definition of the class that the Court has certified, then you are a member of the class and you will be affected by the settlement. The class that the court has certified is defined as:
All persons, together with any officer, employee or agent of the same that have purchased advertising on the Internet from: (a) MIVA, FindWhat.com, and/or any subsidiary of MIVA, on or after January 1, 2000 and on or before September 30, 2007; and/or (b) Lycos on or after September 23, 2002 and on or before March 30, 2006, regardless of where any of the foregoing ads were displayed.
WHAT WILL I GET FROM THE SETTLEMENT?
Under the settlement, MIVA will establish a settlement fund of $3,936,812.00 on behalf of MIVA and Lycos, of which a portion will be used to pay class counsel’s fees and costs, and the remainder will be available to class members in the form of advertising credits that may be applied to up to 50% of the cost of future online advertising purchased from MIVA. To receive credits, you must submit a valid and timely claim form. Credits will be awarded on a pro rata basis, taking into account the amount that you paid to MIVA and/or Lycos for ads that you believe in good faith to have been result of click fraud and the total amount of credits available. For example, if the amounts that you paid to MIVA for the affected ads were 1% of the combined online advertising revenues of MIVA between January 1, 2000 and September 30, 2007 and Lycos between September 23, 2002 and March 30, 2006, you would be eligible to receive 1% of the total available credits. You must certify in your claim form the percentage of your ads you believe were the result of “click fraud.” Credits must be used within one year of issuance and may be used only for advertising on the MIVA Media US Network.
HOW DO I SUBMIT A CLAIM FORM?
You can submit a claim form online by visiting the following website betweenthe date of this Notice and April 11, 2008 and entering the requested information.
If you do not submit your Claim Form by April 11, 2008, your claim will be deemed late and will be rejected.
WHAT ARE THE ATTORNEYS GOING TO BE PAID?
The Court will decide the amount of fees to be paid to class counsel and the extent to which the expenses that they incurred in working on the case should be reimbursed. Class counsel intend to seek a maximum of $1,287,270.00 in attorneys’ fees and expenses in this case. Under the settlement, MIVA and Lycos have agreed that they will not oppose an award of up to this amount to class counsel.
Class counsel also shall petition the Court to determine the amount of an Incentive Award to the class representatives in an amount not to exceed $25,000 (or $5,000 for each named class representative). Under the settlement, MIVA and Lycos have agreed that they will not oppose an award of up to $25,000 to the named class representatives.
WHEN WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT?
The Court has scheduled a hearing on April 30, 2008 at 9:00 CST to consider whether the settlement is fair, reasonable and adequate and to determine the amount of the fees and expenses to be awarded to class counsel. The hearing will be held in the Miller County Courthouse at 400 Laurel Street, Texarkana, AR 71854. It is possible that the hearing may be postponed.
HOW DO I REMAIN A CLASS MEMBER?
You do not need to do anything to remain a class member. You will be bound by all orders and judgments of the Court, whether favorable or not. You will be represented by class counsel. You do not have to pay class counsel.
If you remain in the class, you will be eligible to submit a claim form for MIVA advertising credits online between the date of this notice and April 11, 2008. In return you will be giving up any claim for damages against MIVA and Lycos relating to the subject matter of this case.
WHAT AM I GIVING UP TO RECEIVE ADVERTISING CREDITS OR STAY IN THE CLASS?
Unless you exclude yourself (opt out), you are staying in the class, and that means you can’t sue, continue to sue, or be part of any other lawsuit against MIVA or Lycos relating to the subject matter of this case. It also means that all of the Court’s orders will apply to you and legally bind you. The legal issues in this case involve allegations that MIVA and Lycos breached their contracts with advertisers and violated other laws by failing to adequately detect and stop “click fraud” or other invalid or improper clicks on online advertisements.
Any member of the class who does not opt out fully and finally releases and waives all claims, demands, rights, liabilities, and causes of action of any nature that were asserted or might have been asserted, known or unknown, concealed or hidden, anticipated or unanticipated, under any law whatsoever, that arise out of, relate to, or are in connection with the legal claims against MIVA and Lycos in this case, or any facts, transactions, events, policies, occurrences, acts, disclosures, statements, omissions or failures to act, known or unknown, which are or could be the basis of claims that the monies MIVA received for online advertising on or after January 1, 2007 and on or before September 30, 2007 should not have been charged, received or held by MIVA and claims that the monies that Lycos received for online advertising on or after September 23, 2002 and on or before March 30, 2006 should not have been charged, received or held by Lycos.
HOW DO I EXCLUDE MYSELF (OPT OUT) FROM THE CLASS?
You may exclude yourself (opt out) from the class if you mail a signed letter asking to be excluded from the Class to Global Director of Advertiser Support, MIVA, Inc., 5220 Summerlin Commons Blvd., Suite 500, Fort Myers, FL 33907. The letter asking to be excluded must be postmarked no later than thirty (30) days after the date this Notice was sent. If you are excluding yourself, the letter must contain your name and address and say that you want to be excluded from the settlement. If you are excluding your company, your letter must contain your company’s name and address, your position in the company, and a statement that you are authorized to act on behalf of the company. If you exclude yourself (opt out), you will not participate in the settlement or receive any of the benefits of the settlement. If you wish to remain a class member, DO NOT send a letter asking to be excluded.
HOW DO I OBJECT TO THE SETTLEMENT?
If you don’t like the settlement and wish to object, you must say so in writing. Mail a letter saying what you do not like about the settlement to all of these addresses:
Keil & Goodson
406 Walnut St.
Texarkana, Arkansas 71854
David J. Stewart
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street, NE
Atlanta, Georgia 30309
The deadline for objection is thirty (30) days after the date this Notice was sent. If you want to object, you must mail your letter early enough so that it is received by the deadline.
If you make an objection by the deadline, and you also want to speak at the hearing, you must ask the Court for permission to do so. You may choose to be represented by counsel, but you will have to pay that counsel.