I would have never expected an AOL user would bring a suit against the company, but holy shit, they actually did. I remember writing about how to evade AOL’s e-mail footer ads using “somewhat” legitimate means, and now the company has agreed to provide the option for users to opt-out of unwanted advertising at the footer of their outbound email. In a class action settlement, AOL has agreed to donate a small sum of money to seven charities as well.
I’m vindicated. That’s what you get when you don’t act in the best interest of your customers. You know, the ones paying you $25.90 monthly. I take great pride at explaining on how users can evade AOL’s advertising placed into emails. If this lawsuit was frivolous, AOL’s team of ~900 lawyers would have scoffed at it; responding with action only validates that there’s merit to claims brought on by the plaintiffs.
I wonder if all those page views from the email footer was worth it. I don’t know; the people that make those decisions probably were laid off and are happily selling their soul for the next big company.
If you’re an AOL user, simply sign in and visit http://footer.aol.com to opt-out of the unwanted ads that no one asked you permission to embed in your emails.
This was the email I received from the company in my abandoned AOL account:
Subj: OFFICIAL NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENTFrom: FooterSettlement <email@example.com>To: <SCREENNAME>@aol.comDate: Sat, Sep 5, 2009 4:27 pm
OFFICIAL NOTICE OF PENDENCY OF CLASS ACTION
AND PROPOSED SETTLEMENT
If You Are Currently an AOL Member Your Rights May Be Affected by a Proposed Class Action Settlement.
• The Proposed Settlement is on behalf of all current AOL Members. It resolves claims regarding advertising or promotional “footers” that may have been appended to the bottom of your e-mails by AOL. • The Proposed Settlement provides that all current AOL Members will immediately be provided notice of the footers and their ability to discontinue the footers via AOL Keyword: Footer and http://footer.aol.com, and that, if AOL continues to append footers to its Members’ e-mails, such notice will be provided both to all new customers upon their registration of an AOL account and to all current AOL Members on a regular, periodic basis (every six months for two years) • The Proposed Settlement provides that AOL shall make donations to several different charities totaling $103,000. • If you do nothing and this Proposed Settlement is approved by the Court you will be part of the Settlement Class and bound by the terms of the Settlement. • The Court still has to decide whether to approve the Proposed Settlement. Settlement Class Members will receive the benefits of the Settlement after the Court approves the Settlement. PLEASE DO NOT CALL OR WRITE DIRECTLY TO THE COURT.
YOUR LEGAL RIGHTS ARE AFFECTED WHETHER OR NOT YOU ACT.
PLEASE READ THIS NOTICE CAREFULLY.
YOUR RIGHTS AND CHOICES:
1. Do Nothing
(see questions #7 and 15)
This space intentionally left blank or
2. Exclude Yourself
(see questions #11 – 13)
November 20, 2009
3. Object to the Settlement
(see question #14)
Filed and Received by
December 7, 2009
4. Appear in the Lawsuit
(see question #14)
Filed and Received by
December 7, 2009
1. WHO SHOULD READ THIS NOTICE?
If you are presently an AOL customer you should read this notice. Your legal rights are affected by the proposed Settlement of a class action lawsuit, Fairchild et al v. AOL, Case No. CV09-03568 CAS (PLAx), which is pending in the United States District Court for the Central District of California. This Notice explains:
- What this Lawsuit is about;
- Who is included in the Settlement;
- How the Settlement will benefit you;
- How to get the benefits of the Settlement; and
- What your legal rights are.
If you have any questions regarding this Notice, please send an e-mail to firstname.lastname@example.org, which will be shared with Settlement Class Counsel. If you send an e-mail, please be sure to include the name of the lawsuit (Fairchild v. AOL) in the Subject Line. However, please read the entire Notice before writing. A copy of this Notice is also available online at http://legal.web.aol.com/Footersettlement.pdf.
PLEASE DO NOT CALL OR WRITE DIRECTLY TO
THE COURT OR THE CLERK’S OFFICE.
2. WHAT IS THIS LAWSUIT ABOUT?
This Lawsuit was brought by Plaintiffs Dawn Fairchild, Robert Nachshin, Brian Geers and Larry Gerrard against Defendant AOL LLC. Plaintiffs allege that (1) the failure to inform them that AOL would insert e-mail footers in their sent e-mails and (2) the insertion of such footers, violate the law.
AOL denies Plaintiffs’ allegations and maintains that it acted in accordance with all laws and regulations.
3. WHO REPRESENTS ME IN THIS CASE?
The Court has appointed the following attorneys in the Fairchild Action to act as Settlement Class Counsel:
The Nunes Law Group
101 California St. Suite 2450
San Francisco, CA
Christopher J. Hamner
Hamner Law Offices
15760 Ventura Blvd Ste 860
Encino, CA 91436
Brian Kabateck, Esq.
Richard Kellner, Esq.
Kabateck Brown Kellner LLP
644 South Figueroa Street
Los Angeles, CA 90017
4. WHY IS THERE A SETTLEMENT?
The Court has not decided who is right or wrong in this lawsuit. Instead, the Settlement Class Representatives and AOL agreed to a Settlement, which was preliminarily approved by the Court on August 25, 2009. As a result of the Settlement, all parties avoid the costs of further litigation and risks of a trial and Settlement Class members may obtain the benefits of the Settlement.
The Settlement Class Representatives believe that the case has merit and that the evidence supports their claims. The Settlement Class representatives determined that the proposed settlement is fair, reasonable, adequate, and in the best interests of the Settlement Class. The Settlement will permit Plaintiffs and the Settlement Class Members to receive full and complete disclosure of AOL’s practice of appending e-mail footers and the ability simply and easily to discontinue these footers, without the time, risk and expense of litigation. AOL has also agreed to contribute significant sums to 7 charities as part of this settlement.
AOL does not believe that Plaintiffs’ claims have factual or legal merit. However, AOL desires to avoid unnecessary litigation costs while also ensuring that it has taken adequate steps to ensure that consumers are fully aware of the footers and their ability to discontinue them.
In an effort to resolve this matter, the parties engaged The Hon. Dickran Tevrezian,(Ret.) U.S. District Judge for the Central District of California, to mediate a resolution. The parties were thereby able to negotiate a settlement.
5. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
If you are a current AOL member and are not an employee of AOL, their counsel, or an immediate family member of an employee or their counsel you are in the class and are part of this settlement.
6. WHAT DOES THE SETTLEMENT PROVIDE AND HOW WILL I RECEIVE THE BENEFITS?
The Settlement provides that all current AOL Members will be provided e-mail notice of the footers and their ability to discontinue the footers via AOL Keyword: Footer and http://footer.aol.com, and that, if AOL continues to append footers to its Members’ e-mails, such notice will be provided both to all new customers upon their registration of an AOL account and to all current AOL Members on a regular, periodic basis (every six months for two years).
7. HOW CAN I GET THE BENEFITS OF THE SETTLEMENT?
To obtain the benefits of this Settlement all you need to do is not opt-out of this Settlement.
8. WHEN WILL I GET THE BENEFITS OF THIS SETTLEMENT?
If the Court approves the Settlement, AOL will send you the notice explaining how to discontinue the footers within 30 days of approval.
9. AM I GIVING ANYTHING UP IN EXCHANGE FOR THE BENEFITS OF THE SETTLEMENT?
Yes. If the Court approves the Settlement, it will enter a judgment dismissing the lawsuit with prejudice as to all Settlement Class Members and releasing all claims they may have against AOL regarding advertising or promotional “footers” that may have been appended to the bottom of their e-mails by AOL. In other words, by remaining in the Settlement Class, all of the Court’s Orders will apply to you and you will thereby release all claims that you may have regarding advertising or promotional “footers” that may have been appended to the bottom of your e-mails by AOL, thereby barring you from bringing your own lawsuit based on such claims.
10. IF I CURRENTLY USE AOL, WILL THIS SETTLEMENT CANCEL OR INTERRUPT MY SUBSCRIPTION?
No. Neither the settlement nor this lawsuit affects your ongoing online service. If you have any questions about your existing subscription, please contact AOL Member Services.
11. CAN I GET OUT OF THE SETTLEMENT AND THE SETTLEMENT CLASS?
Yes. You may request to be excluded from the Settlement and the Settlement Class. If you exclude yourself, you will not receive any of the benefits of the Settlement. You will still have the right to bring your own lawsuit. The deadline to exclude yourself is November 20, 2009.
12. HOW DO I EXCLUDE MYSELF FROM THE SETTLEMENT?
To exclude yourself, you must, no later than November 20, 2009, send an e-mail to email@example.com requesting exclusion from the Settlement.
Your e-mail should include all of the following:
- Your name, address and telephone number;
- A statement that you wish to be excluded from the lawsuit and the Settlement.
13. IF I EXCLUDE MYSELF, CAN I OBTAIN THE BENEFITS OF, OR COMMENT ON, THE SETTLEMENT?
No. If you exclude yourself, you are no longer part of the Class or the Settlement. You will not receive any benefits from the Settlement and the Court will not consider your comments in support of or in opposition to the Settlement.
14. CAN I TELL THE COURT IF I SUPPORT OR OBJECT TO THE SETTLEMENT OR THAT I WANT TO APPEAR AT THE FINAL SETTLEMENT APPROVAL HEARING?
Yes. So long as you do not exclude yourself, you can tell the Court that you support or object to the Settlement or some part of it.
To comment in support of, or in opposition to, the Settlement, you must file a letter with the Clerk of the Court, United States District Court for the Central District of California, Western Division, 312 North Spring Street, Los Angeles, CA 90012 on or before December 7, 2009, and mail a copy to: AOL E-mail Footer Litigation Settlement, P.O. Box 65771, Sterling, VA 20165-8806. Your letter must be received no later than December 7, 2009.
Your letter should include all of the following:
• Your name, address and telephone number; • The name and number of the lawsuit: Fairchild v. AOL, Case No. CV 09-03568 CAS (PLAx); • A statement of the reasons why you believe the Settlement is or is not fair, reasonable, or adequate; and • A statement regarding whether you (or your lawyer) wish to speak at the Settlement Fairness Hearing. If you object, you may, but are not required to, appear at the Final Approval Hearing, either in person or through an attorney retained and paid by you. The Fairness Hearing will take place on December 28, 2009, at 10:00 AM. The Court is located at 312 North Spring Street, Los Angeles, CA 90012, Courtroom 5. If you or your attorney intend to appear at the Final Approval Hearing, you or your attorney must file a written Notice of Intention to Appear, together with any supporting legal memoranda and evidence, with the Clerk of the Court no later than December 7, 2009, and mail a copy to: AOL E-mail Footer Litigation Settlement, P.O. Box 65771, Sterling, VA 20165-8806. The Notice of Intention to Appear must be received no later than December 7, 2009. If you do not appear at the hearing, you waive the right to appeal.
15. WHAT HAPPENS IF I DO NOTHING AT ALL?
If you do nothing, you will receive any and all benefits under the Settlement, and you will be subject to the Release (described in # 9).
16. IF I WANT TO KEEP THE E-MAIL FOOTERS WILL I BE ABLE TO?
Yes. This Settlement only gives you as the Member the option to discontinue these footers.
17. WHO PAYS THE LAWYERS AND HOW MUCH WILL THEY BE PAID?
If the Court approves the Settlement, the lawyers for the Settlement Class will apply to the Court for an award of the fees and costs that they have incurred over the course of this lawsuit. AOL has agreed to pay up to $250,000 in fees and costs, in addition to the $103,000 in charitable donations, and the costs of administering the Settlement, including the notice process. AOL’s payment of attorneys’ fees and litigation costs will not reduce any amounts paid or credited to the Charities.
18. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT?
A Fairness Hearing will be held at 10:00 AM on December 28, 2009. The Court is located at 312 North Spring Street, Los Angeles, CA 90012, Courtroom 5. At the Fairness Hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate to Settlement Class Members. As part of making this determination, the Court will consider the views of Settlement Class Members both in favor of and opposed to the Settlement. The Court will further consider Settlement Class Counsel’s request for attorneys’ fees and litigation costs. After the hearing, the Court will decide whether to approve the Settlement and attorneys’ fees and costs.
19. HOW DO I GET MORE INFORMATION?
This Notice only provides a summary of the Settlement. The full terms of the Settlement are set forth in the Settlement Agreement. You can read the Settlement Agreement and the other documents in this lawsuit during regular business hours, at the Clerk of the Court, United States District Court for the Central District of California, Western Division, 312 North Spring Street, Los Angeles, CA 90012 (fees may apply for copies of these documents).
PLEASE DO NOT CALL THE COURT OR THE COURT CLERK.
THIS NOTICE IS NOT AN EXPRESSION BY THE COURT AS TO
THE FAIRNESS OR ADEQUACY OF THE SETTLEMENT.
Dated: August 25, 2009 By Order of the Court
THE HONORABLE CHRISTINA A SNYDER