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iloveboxcars

BMG Music subscriber between 1998 till now? class action suit son.

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IN THE CIRCUIT COURT OF COOK COUNTY,



COUNTY DEPARTMENT, CHANCERY DIVISION

ERIC STELK, on behalf of himself and all others similarly situated, Plaintiff,

LAURA MURPHY, BRENT T. MURPHY, and JERRY MILLER, individually and on behalf of all others similarly situated, Plaintiffs-Intervenors,

v.

BEMUSIC, INC., a corporation d/b/a BMG Music Service,



a wholly owned subsidiary of Bertelsmann, Inc., Defendant.

NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT OF CLASS ACTION,� PRELIMINARY APPROVAL OF THE SETTLEMENT,



SETTLEMENT CLASS CERTIFICATION, AND FINAL FAIRNESS HEARING

Case No. 04 CH 13631

TO:� ALL PERSONS IN THE UNITED STATES OF AMERICA WHO, AS MEMBERS OF A BMG MUSIC CLUB, PAID SHIPPING AND HANDLING CHARGES FOR DELIVERY OF CDs OR CASSETTES FROM A BMG MUSIC CLUB DURING THE PERIOD FROM JUNE 14, 1998, THROUGH AND INCLUDING may 15, 2006. EXCLUDED FROM THE CLASS ARE GOVERNMENTAL ENTITIES AND DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF BMG AND ITS AFFILIATES.

PLEASE READ THIS NOTICE CAREFULLY. THIS NOTICE RELATES TO A PROPOSED SETTLEMENT OF THIS CLASS ACTION LAWSUIT.� IF YOU ARE A SETTLEMENT CLASS MEMBER, THIS NOTICE CONTAINS IMPORTANT INFORMATION AS TO YOUR RIGHTS CONCERNING THE SETTLEMENT. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS AND DO NOT SUBMIT A TIMELY REQUEST FOR EXCLUSION, YOU WILL BE BOUND BY THE RELEASE REGARDLESS OF WHETHER YOU SUBMIT A CLAIM.

Pursuant to an Order of the Circuit Court of Cook County, Chancery Division (the �Court�), dated May 15, 2006, YOU ARE HEREBY NOTIFIED:

������� Plaintiffs in the above-captioned action (�Action�), individually and on behalf of the Settlement Class (defined herein), have entered into a proposed settlement (the �Settlement�) with BMG Direct, Inc. (sued herein as BeMusic, Inc.) (�Defendant�).

������� 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 Action or the merits of the claims or defenses asserted. This Notice is to advise you of the Settlement of this Action and of your rights with respect to this Action and the Settlement.

I.����� NATURE OF THE LITIGATION

������� The Action was filed on August 20, 2004. The complaint alleges that Defendant engaged in deceptive, misleading, and unfair marketing and sales practices in regard to its shipping and handling charges and its advertised cost to consumers of its CDs and cassettes.

������� Defendant denies all liability or wrongdoing with respect to any and all of the claims alleged in the Action, but considers it desirable that this matter be settled because such settlement will avoid the risk, expense, inconvenience, and distraction of continued litigation. After arm�s-length negotiations, a Settlement has been reached and has been preliminarily approved by the Court.

������� Notice of a prior settlement that was reached between some of the parties (�prior Stelk settlement�) was provided; however, that settlement was not granted final approval by the Court. Subsequently, the present Settlement was reached (the �Stelk/Murphy settlement�). Class members who submitted claims, requested CDs, and made payments under the prior Stelk settlement shall have their claims honored under the terms of the prior Stelk settlement and those claims are unaffected by the Stelk/Murphy settlement. Filing a claim under the prior Stelk settlement shall not affect or in any way limit any Class Member�s right to file a claim under the Stelk/Murphy settlement. Class Members who have filed claims under the prior Stelk settlement may also file claims under the Stelk/Murphy settlement and the benefits provided under the Stelk/Murphy settlement are in addition to those provided in the prior Stelk settlement.

II.���� SETTLEMENT CLASS

������� On May 15, 2006, the Court conditionally certified the Action for the purposes of settlement only. This �Settlement Class� includes all persons in the United States of America who, as members of a BMG music club, paid shipping and handling charges for delivery of CDs or cassettes from a BMG music club during the period beginning June 14, 1998, through and including May 15, 2006. Excluded from the Class are governmental entities and directors, officers, employees, and agents of BMG and its affiliates.

������� If you fit within the above-described Settlement Class, your rights to participate in the Settlement, object to the Settlement, or exclude yourself from the Settlement Class are described in this Notice.

III.��� SETTLEMENT FAIRNESS HEARING

������� The Court, by its Order on May 15, 2006, has preliminarily approved the Settlement as sufficiently fair, reasonable, and adequate to allow for the dissemination of this Notice, and has directed that this Notice be provided to members of the Settlement Class. The proposed Settlement, the terms of which are summarized in this Notice, is embodied in a Settlement Agreement (the �Agreement�), dated May 15, 2006, which has been filed with the Court. All terms used in this Notice have the same meanings set forth in the Settlement Agreement. The Court has also preliminarily approved the appointment of Plaintiffs Eric Stelk and Laura Murphy as �Class Representatives� and Ben Barnow, Barnow and Associates, P.C., One North LaSalle Street, Suite 4600, Chicago, Illinois 60602, William J. Harte, William J. Harte, Ltd, 111 West Washington Street, Suite 1100, Chicago, Illinois 60602, and Richard J. Burke, The Lakin Law Firm, P.C., 300 Evans Avenue, Wood River, Illinois 62095, as Class Counsel.

������� A Final Fairness Hearing has been scheduled for September 26, 2006, at 10:30 a.m. before the Honorable Thomas P. Quinn at the Circuit Court of Cook County, Illinois, Richard J. Daley Center, Courtroom 2410, 50 W. Washington Street, Chicago, Illinois, to hear any objections to the Settlement; to determine, fully and finally, whether the proposed settlement is a fair, reasonable, and adequate compromise of the claims of the Settlement Class; and to consider Class Counsel�s application for attorneys� fees, reimbursement of costs and expenses, and incentive awards (the �Final Fairness Hearing�).�

������� Members of the Settlement Class (�Class Members�) who do not request exclusion (as described in Section VIII below) have the right to appear and address the court, either in person or through counsel retained by them (at the Class Member�s own expense), at the Final Fairness Hearing. Attendance at the Final Fairness Hearing is not necessary; however, persons who wish to comment orally on the proposed Settlement must state in writing their intention to appear at the Final Fairness Hearing and the nature of their proposed comment, and must serve that document in the time and manner prescribed for written objections in Section IX below, except as otherwise permitted by the Court.�

������� IF YOU DO NOT WISH TO OBJECT TO THE PROPOSED SETTLEMENT IN PERSON,

OR IF YOU DO NOT DESIRE TO DIRECTLY ADDRESS THE COURT, YOU NEED NOT APPEAR AT THE HEARING.�

������� ANY CLASS MEMBER WHO DOES NOT OBJECT IN THE MANNER DESCRIBED HEREIN WILL BE DEEMED TO HAVE WAIVED ANY OBJECTION, AND SHALL BE FOREVER FORECLOSED FROM MAKING ANY OBJECTION TO THE PROPOSED SETTLEMENT.

IV.� THE PROPOSED SETTLEMENT

������� The terms of the proposed Settlement are as follows:

A.��� Class Benefit

��������������� As set forth in the Settlement Agreement, Defendant shall mail, to the mailing address as reflected by BMG�s current membership records, to each Class Member who is an active member of a BMG music club and to each claimant under the prior Stelk settlement for which BMG has an address or email address, a Voucher. The email mailing shall contain a link to the internet website, http://www.bmgmusic.com/stelk/settlement. Class Members who are no longer members of a BMG music club must complete and submit by mail to BMG a Claim Form, which will be available at http://www.bmgmusic.com/stelk/settlement, and provided to any Class Member in response to an oral or written request. You will receive the highest level of benefits for which you qualify. As of May 15, 2006:

If you: have not yet fulfilled your commitment under their membership agreement

You will receive: a Voucher for two single CDs (excluding sales-restricted products designated as such in BMG�s catalogues and on-line offerings) at 80% off BMG�s regular club price, each free of shipping and handling charges.

If you: have fulfilled your commitment under their membership agreement

You will receive: a Voucher for three single CDs (excluding sales-restricted products designated as such in BMG�s catalogues and on-line offerings) at 80% off BMG�s regular club price, each free of shipping and handling charges.

If you: have fulfilled your commitment under their membership agreement and have been a member for at least five years prior to May 15, 2006 and have purchased at least 20 CDs or cassettes during that time period (in addition to fulfillment) (units received by Class Members without separate charge as part of enrollment or other special promotions do not count towards the aforementioned purchase requirement)

You will receive: a Voucher for four single CDs (excluding sales-restricted products designated as such in BMG�s catalogues and on-line offerings) at 80% off BMG�s regular club price, each free of shipping and handling charges.

If you: have fulfilled your commitment under their membership agreement and have been a member for at least ten years prior to May 15, 2006 and have purchased at least 40 CDs or cassettes during that time period (in addition to fulfillment) (units received by Class Members without separate charge as part of enrollment or other special promotions do not count towards the aforementioned purchase requirement)

You will receive: a Voucher for five single CDs (excluding sales-restricted products designated as such in BMG�s catalogues and on-line offerings) at 80% off BMG�s regular club price, each free of shipping and handling charges.

������� Said Vouchers shall be valid for one year from the Effective Date of the Settlement or one year from the date of issuance of said Voucher, whichever is later. Purchases made using the Vouchers will not count towards the number of single CDs required to be purchased by you pursuant to your contractual commitment to BMG. BMG�s catalogues of CDs are presently estimated at approximately 15,000 titles, with only 150 titles being sales restricted.

B.��� Minimum Guaranteed Redemption

������� 1. There will be a Minimum Guaranteed Redemption of $8,000,000.00. CDs issued pursuant to claims will be valued at $17.98, 80% of which ($14.38) will be credited against the Minimum Guaranteed Redemption, as will Shipping and Handling at $2.79 per each said CD, for a total credit of $17.17 per CD. There will be no credit against the Minimum Guaranteed Redemption for notice costs, attorneys� fees, costs, expenses, and any other such charges. CDs shipped pursuant to claims made under the prior Stelk settlement shall be counted against the Minimum Guaranteed Redemption, but at the prior value (i.e., 75% of $17.98, which is $13.48, plus Shipping and Handling at $2.79 per each CD for a total credit of $16.27 per CD).

������� 2. In the event that the redemption of CDs as valued above does not reach $8,000,000.00 at the end of the Claim Period, BMG shall issue additional Vouchers to Class Members who have made claims under this Settlement Agreement (including the prior Stelk settlement) in accordance with such Class Member�s pro-rata share of the unclaimed balance of the Minimum Guaranteed Redemption, that unclaimed balance being $8,000,000.00 less the total value of redeemed Vouchers. Additionally, BMG shall issue a verified report of redemption results from the Claim Period to Class Counsel, within 30 days from the end of the Claim Period. The pro-rata share shall be the product of the percentage of the total claims that the Class Member�s claim represents times the unclaimed amount of the $8,000,000.00 minimum guarantee. Any proration that results in a fractional allocation of a Voucher shall be rounded up to a full Voucher; distributions in this fashion will continue until the $8,000,000.00 Minimum Guaranteed Redemption is reached, but no amount in excess of that amount. All Vouchers issued pursuant to the Minimum Guaranteed Redemption proration shall be valid for one year from date of issuance. A second verified report of redemption results shall be issued to Class Counsel within 30 days after one year of the issuance of the Voucher issued under the Minimum Guaranteed Redemption distribution. In the event that the $8,000,000.00 Minimum Guaranteed Redemption still has not been reached, then within 30 days, BMG and Class Counsel shall submit a plan of final distribution to the Court for approval. If the parties cannot agree on a plan of final distribution, or if the Court disapproves of the Plan submitted, the Court shall determine the method of final distribution.

������� 3. The redemption of $8,000,000.00 in Vouchers shall not relieve BMG of the obligation of redeeming all Vouchers properly presented to it under this Settlement Agreement and the prior Stelk settlement. The Minimum Guaranteed Redemption is a minimum redemption requirement only and not a limit of liability under this Settlement Agreement.

C.��� Prospective Business Practice

������� Defendant shall also maintain the BMG Membership Guide with clear and conspicuous language representing that its �shipping and handling� charges cover all associated costs and services, including labor, materials, processing, and postage.

V. �� EFFECT OF SETTLEMENT�RELEASE OF CLAIMS

������� Upon the Effective Date of the Settlement, as defined in the Settlement Agreement, Plaintiffs and each of the members of the Settlement Class shall be deemed to have, and by operation of the Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims, as defined in the Settlement Agreement, against Defendant and its parents and affiliates. Further, upon the Effective Date of the Settlement and to the fullest extent permitted by law, Plaintiffs and each of the members of the Settlement Class shall, either directly, indirectly, representatively, as a member of or on behalf of the general public, or in any capacity, be permanently barred and enjoined from commencing, prosecuting, or participating in any recovery in any action in this or any other forum (other than participation in the settlement as provided herein) in which any of the Released Claims is asserted.

������� Upon the Effective Date of the Settlement, Defendant shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished, and discharged Plaintiffs, each and every member of the Settlement Class, and Class Counsel, from all claims arising out of, in any way relating to, or in connection with the institution, prosecution, assertion, settlement, or resolution of the litigation or the Released Claims.

VI.�� APPLICATION FOR ATTORNEYS� FEES, COSTS, AND EXPENSES, CLASS REPRESENTATIVE AWARDS, AND NAMED-PLAINTIFFS AWARDS

������� At the Final Fairness Hearing, Class Counsel will make an application for an award by the Court of attorneys� fees, costs, expenses, and incentive awards (as set forth below for Class Representatives and Named Plaintiffs) in the total amount not to exceed $1,600,000.00, which are to be paid by Defendant over and above any relief to the Class identified herein. Defendant has agreed not to object to this application up to said amount and to pay any award by the Court up to that amount. Class Counsel will also make application for incentive awards to be paid from said sum for Class Representatives and named-plaintiffs in the amount of $4,000.00 for the Class Representatives (Eric Stelk and Laura Murphy) and in the amount of $3,000.00 for each named plaintiff (Brent T. Murphy, Jerry Miller, Jeffrey Greenfield, Carolyn Jackson, and Emily Geiler).

VII. FILING A CLAIM

������� Only those Class Members who are no longer active members of the BMG Music Club need to submit a claim form. Active club members will automatically be mailed a Voucher, unless they opt out of the settlement. Class Members who are no longer members of the BMG Music Club must complete and submit a Claim Form to BMG at P.O. Box 91002, Indianapolis, IN 46291-0006. Claim forms will be available at the following Internet address: http://www.bmgmusic.com/stelk/settlement, and will be provided to any Class Member in response to a written or oral request.

VIII. OPTING OUT OF THE SETTLEMENT CLASS

������� If you wish to opt out of the Settlement Class and forego any of the Settlement benefits, you must individually sign and submit a written notice clearly manifesting your intent to be excluded from the Settlement Class. Written notices of opt-out under the previous Stelk settlement are not effective opt-out notices under this settlement. Your request must set forth: (1) your full name; (2) your address; (3) your phone number; (4) the name and number of the Action (Stelk v. BeMusic, Inc., No. 04 CH 13631); (5) your request for exclusion from the Settlement Class; and (6) your signature. In the event you are not able to sign on your own behalf, signature by a duly authorized representative (including attorney) is authorized and shall be acceptable. The written notice must be postmarked no later than September 5, 2006, and sent to:

BMG Opt-out

P.O. Box 64777

Chicago, Illinois 60664

IX.�� OBJECTING TO THE SETTLEMENT

����������� If you do not request exclusion from the Settlement Class under Section VIII, above, and you oppose the proposed Settlement, you may object to the Settlement. Objections made under the previous Stelk settlement shall not be deemed as objections to this settlement. If you wish to object to the Stelk/Murphy Settlement, you must file your timely written objection, setting forth the reasons for your objection. You or your duly authorized representative must sign the objection and provide information identifying yourself as a Class Member (such as proof of membership in a BMG music club during the Class Period and proof of payment for shipping and handling charges for delivery of BMG music club CDs or cassettes), your address, and whether you intend on appearing at the Final Fairness Hearing. If proof of membership is not available, an affidavit to that effect and setting forth the fact of purchase and payment of shipping and handling charges and the approximate date of said membership must be included. You must file your objection with the Clerk of the Circuit Court of Cook County, Room 802, Richard J. Daley Center, Chicago, Illinois 60602, by no later than September 5, 2006. Additionally, you must serve, by said date, one copy of your written objection upon each of the following counsel:

Class Counsel: Ben Barnow, Esq.

Barnow and Associates, P.C.

One North LaSalle Street, Suite 4600

Chicago, IL 60602

Defendant�s Counsel: Steven M. Hayes, Esq.

Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP

112 Madison Ave.

New York, NY 10016-7416

X. �� FURTHER INFORMATION

������� For a more detailed statement of the claims in this Action and the Settlement, you are referred to the papers on file in this Action, including the Settlement Agreement, which may be inspected during regular business hours at the office of the Clerk of the Circuit Court of Cook County, Chancery Division, Richard J. Daley Center, Room 802, Chicago, Illinois 60602. This notice also is posted on http://www.bmgmusic.com/stelk/settlement.

PLEASE DO NOT CONTACT THE COURT

 

 

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class action lawsuits cost us (taxpayers) a lot of money. if you were dumb enough to "buy" 12 cds for a penny then fuck you. end of story.

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bmg wins this one. in the end, you the consumer, do not get a dime. when you "win" this settlement, you will be able to purchase between 2 and 5 of their cd's at 80% off the list price without paying the shipping and handling charge. thats the summary.

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"so wait... i take this little stamps with album cover printed on them, lick 'em, apply 'em to a piece of paper, mail them in and they just give me 12 cds? fuck it dude, let's do it."

 

"but what about when they want to collect their money?"

 

"psh, i'm 13 years old. those motherfuckers can lick my balls!"

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"so wait... i take this little stamps with album cover printed on them, lick 'em, apply 'em to a piece of paper, mail them in and they just give me 12 cds? fuck it dude, let's do it."

 

"but what about when they want to collect their money?"

 

"psh, i'm 13 years old. those motherfuckers can lick my balls!"

 

 

wow

u were me

n stuff.

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