IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
STEVEN F. SCHWAB, individually, )
and on behalf of all other persons )
similarly situated, )
)
Plaintiff, )
) No. 96 CH 13732
v. )
) Hon. Stephen A. Schiller
AMERICA ONLINE, INC., )
a Delaware corporation, )
)
Defendant. )
NOTICE OF PENDENCY OF CLASS ACTION
| TO: | ALL AMERICA ONLINE SUBSCRIBERS IN THE UNITED STATES WHO WERE SUBSCRIBERS TO AMERICA ONLINE ON DECEMBER 1, 1996 OR WHO BECAME SUBSCRIBERS ON SAID DATE OR THEREAFTER. |
IMPORTANT
PLEASE READ THIS NOTICE CAREFULLY
THIS NOTICE RELATES TO THE PENDENCY OF
THIS CLASS LITIGATION AND IF YOU ARE
A CLASS MEMBER CONTAINS IMPORTANT
INFORMATION AS TO YOUR RIGHTS
Pursuant to 735 ILCS 5/2-803 and pursuant to the Orders of the Circuit Court of Cook County, Chancery Division ("the Court") dated January 30, 1997, and January 31, 1997, YOU ARE HEREBY NOTIFIED:
1.
DEFINITION OF THE CLASS
By Orders dated January 30, 1997, and January 31, 1997, the Court has certified this action (the "Litigation") as a class action pursuant to 735 ILCS 5/2-802, on behalf of a nationwide class (the "Class") consisting of:
All AOL subscribers throughout the United States who were subscribers to AOL on December 1, 1996 or who became subscribers on said date or thereafter.
As used in this Notice, the term "Defendant" refers to America Online, Inc. and shall be referred to in this Notice as "AOL."
This notice is not intended to be, and should not be construed as, an expression of any opinion by the Court with respect to the truth of the allegations in the litigation or the merits of the claims or defenses asserted. This notice is sent to advise you of the pendency of this action and of your rights with respect to this action.
2.
COMMENCEMENT OF THE LITIGATION
The Litigation was commenced on December 18, 1996, when Plaintiff Steven F. Schwab filed a class action complaint ("Complaint"). The Complaint alleges that Defendant AOL, which owns and operates the computer online service "America Online," breached its subscription agreements with its customers, and violated state consumer protection and deceptive trade practice laws, by falsely advertising unlimited access to AOL's online service for a flat rate.
The Complaint alleges that in late 1996, AOL promised existing and prospective customers "unlimited access" to America Online for a fixed rate of $19.95 a month (or less for one and two year subscriptions). It is alleged, inter alia, that AOL offered and advertised its "unlimited access" plan with knowledge that (1) subscribers would spend considerably more time online, (2) AOL's number of subscribers would increase dramatically, and (3) AOL did not have the capacity necessary to meet the increased demand for online time.
As a result, from December 1, 1996 to the present, it is alleged that
Class Members have experienced long delays in connecting to America Online,
have been unable to connect to America Online, and, once connected, have
been disconnected. The Complaint alleges that, as a result, AOL has failed
to deliver the unlimited online access it promised. AOL denies that it has
breached any agreement or otherwise violated any law in connection with
the foregoing.
3.
AOL'S ARRANGEMENT WITH STATE ATTORNEYS GENERAL
AOL has entered into an Assurance of Voluntary Compliance ("arrangement") with the attorneys general or other officials of 43 states (i.e., all states except Delaware, Louisiana, Maine, Montana, New Hampshire, South Dakota and Wyoming, and except the District of Columbia). That arrangement provides limited refunds or credits to certain AOL subscribers. In order to receive a refund or the one-month credit, qualified subscribers must send and sign a written request to either AOL or the subscriber's attorney general. Either AOL or the attorney general must receive the request by June 4, 1997.
BE ADVISED THAT AOL's ARRANGEMENT WITH THE ATTORNEYS GENERAL DOES NOT AFFECT YOUR RIGHTS TO PARTICIPATE IN THE CLASS ACTION. BY REQUESTING AND RECEIVING A REFUND OR CREDIT PURSUANT TO THE ATTORNEYS GENERAL ARRANGEMENT, YOU ARE NOT WAIVING ANY RIGHTS TO PARTICIPATE IN THE CLASS ACTION, AND YOU ARE NOT RELEASING ANY CLAIMS AGAINST AOL.
4.
THE RIGHTS OF CLASS MEMBERS
(a) You have the following options:
(1) You may remain a member of the Class. To remain a member of the Class, you do not have to take any action. If you remain a member of the Class, you will be bound by any judgment in the action, whether favorable or unfavorable. As a member of the Class, you may share in the recovery, if any, and you will be barred from prosecuting your own claim. If judgment is rendered in favor of AOL, Class Members will be denied any recovery from this class action. You will automatically be considered a member of the Class, unless you request exclusion in accordance with the procedure set forth below.
(2) You may exclude yourself from the Class. Any member of the Class may be excluded, but only upon specific requests. If you wish to be excluded from the Class, you must ask the Court to exclude you from the Litigation by mailing a signed letter requesting exclusion to:
Schwab v. AOL, 96 CH 13732
Clerk, Circuit Court of Cook County,
Chancery Division
Richard J. Daley Center
Room 802
Chicago, Illinois 60602(b) If you file a request for exclusion as described in the previous paragraph, your request for exclusion must set forth your name, address and telephone number, and the name and number of the Litigation (Schwab v. America Online, Inc., No. 96-CH-013732). Such request must be postmarked within 45 days of the date of this notice. If your request for exclusion is timely mailed, you will be excluded from the Class. If excluded, you will not be bound by the results of the Litigation, and you will also not share in any recovery that benefits the Class.
(c) If you do not request exclusion, you will be represented by Plaintiff and his counsel, who have been appointed Class Counsel by the Court, unless you enter an appearance through counsel of your own choice. You are not required to obtain your own counsel, but if you choose to do so, your counsel must file an appearance on your behalf within 45 days of the date of this notice, and mail copies of such appearance to the attorneys listed in paragraph 5 below.
(d) If you remain a member of the Class and change your address, send written notification of your change of address to the address set forth in paragraph 4(a)(2) above.
(e) By remaining in the Class, you will not subject yourself to any obligation to pay the costs of the Litigation. With respect to the Class Members, all costs and expenses, including attorneys' fees, will be paid from any recovery obtained on behalf of the Class or by AOL, as such payment may be approved and ordered by the Court.
5.
COUNSEL
Lead Counsel for the Plaintiff Class are:
Ben Barnow |
Larry D. Drury | |
| ||
6.
EXAMINATION OF PAPERS AND INQUIRIES
For a more detailed statement of the matters involved in this Litigation, please refer to the pleadings and other papers filed in this action, which may be inspected at the Offices of the Clerk, Circuit Court of Cook County, Chancery Division, Richard J. Daley Center, Room 802, Chicago, Illinois, 60602, during business hours of each day.
Dated: Chicago, Illinois BY ORDER OF THE CIRCUIT COURT
February 25, 1997 COOK COUNTY, CHANCERY DIVISION
HONORABLE STEPHEN A. SCHILLER