ITP WORLD APOCALYPSE: AOL DEFENDENT IN CIVIL SUIT

This just in, AOL is being sued for those annoying e-mail footers. In a nutshell, AOL is being sued for SPAM, and ads that subscribers and users did NOT PUT or endorse in their e-mails. I've also complained about AOL SPAM as recently as APRIL. BTW, AOL is one big, electronic marketing BOT, and that indeed is how AOL makes the bulk of it's money, not through subscribers but through in house, SYSTEMATIC marketing scam and schemes. Very much how TICKETMASTER sells tickets to scalping agencies. LMAO. \m/ We at ITP will say no more..
http://www.aweber.com/blog/email-marketing/email-footer-mistakes.htm
http://www.theregister.co.uk/2006/12/21/new_web_email_regulation/
FROM MEDIA POST PUBLICATION: Two AOL subscribers have brought a new lawsuit against the company for allegedly violating a federal privacy law by inserting ads in email.

Los Angeles residents Rande Bronster and Robert Nachshin quietly filed a complaint last week in the federal court in the central district of California alleging that such ads are unlawful under the federal Electronic Communications Act and California law. This case marks at least the second time that AOL's email ads have spurred a lawsuit.

An AOL spokesperson said the company disputes Bronster and Nachshin's factual allegations and legal claims.

AOL has offered free email accounts for almost three years, but Bronster and Nachshin pay the company for premium service -- which, they argue, should be ad-free. "Subscribers to AOL's paid email service pay a monthly fee, in part, to be free from the annoyance of ads strewn throughout their emails," they wrote in an April letter to a lawyer for AOL. In that letter, they asked AOL to refund all fees they had paid since March 2006, shortly after AOL began inserting ads into emails.

Last year, AOL began allowing paying subscribers to opt out of the ad insertions, but Bronster and Nachshin allege that the company didn't proactively notify them they could refuse to carry the ads. They also allege that AOL doesn't inform subscribers that it will insert ads into the footers of their messages.

An AOL spokesperson said that paying members can easily opt out.

Bronster and Nachshin are represented by the law firm Kabateck Brown Kellner, known for suing Google and Yahoo for click fraud. The firm achieved a multimillion-dollar settlement from Yahoo and participated in a $90 million settlement from Google.

In the case against AOL, the lawyers seek to represent all subscribers who have paid the company for an account since February 2006. They are also asking for monetary damages and an injunction against AOL.

The Bronster/Nachshin action is the second lawsuit against AOL for inserting ads into email footers. Last year, California resident Frank Cecchini also brought a potential class-action lawsuit against AOL. That case is still going forward.
FROM THE E_MAIL ADMIN: A report on the ADOTAS blog says popular online service AOL is being sued over their policy of placing ads in user’s emails. A footer containing ads is placed in every outgoing email. The plaintiff is an AOL member and California resident. Here’s an excerpt:

In a complaint filed in federal district court in Los Angeles, AOL subscriber Frank Cecchini alleges that his emails should not contain ads because he pays the Internet company $25.90 a month for his account.

Cecchini is seeking class action status for his suit and is claiming AOL willfully deceived consumers by not telling them ads would be added to their emails. He’s asking for $5 million in damages. Experts say since AOL has never claimed to be an ad free service, the lawsuit may be on shaky ground.
FROM DIRECTMAG.COM: A California man has filed a class-action suit against AOL for allegedly including text e-mail ads in the footers of paid subscribers’ outgoing messages.


Filed by Encino, CA-based Hamner Law Offices on behalf of Frank Cecchini, the suit claims AOL wrongly inserted the ads in outgoing e-mail from 2 million paid subscribers, or 20% of AOL’s e-mail users.

The suit claims that nowhere in AOL’s terms of service does it say ads will appear in paying subscribers’ messages.

“As such, AOL pay e-mail subscribers expect the ability to send out e-mail without advertisements inserted into their e-mail,” the suit claims. “This is different from e-mail services provided by so-called free e-mail accounts (such as Hotmail.com and Yahoo.com) which do insert various advertisements into sent e-mails.”

The complaint continues: “Unlike ‘banner’ advertisements or other overt Internet advertisements, these footers, or ad tags, essentially add to and/or change the actual message contained in the e-mail.”

As a result, AOL users who don’t want ads inserted into their messages choose the premium service, the complaint said.

In 2006, according to the complaint, “AOL unilaterally, and without seeking or obtaining any permission from its pay subscribers, began inserting ad tags directly after the senders’ e-mail.”

The ads included pitches for AOL products and those of business partners, such as Mapquest, the complaint alleges.

Moreover, the complaint alleges, since the ads are inserted after subscribers hit “send,” AOL users aren’t immediately aware their messages contain ads.

“The vast majority, if not all, of the e-mails sent by AOL pay e-mail subscribers since about June of 2006 include an ad tag inserted at the end of the message,” the complaint alleges. “This action is wholly inconsistent with AOL’s terms of service and is in direct conflict with the reasonable expectations of AOL’s pay e-mail subscribers.”

The complaint also alleges AOL illegally inserted ads at the end of more than 100 million customer e-mails and profited “substantially” from them.

The suit accuses AOL of fraud, unjust enrichment, unlawful business practices under California law and breach of implied covenant of good faith and fair dealing.

The suit calls for a jury trial and a preliminary injunction barring AOL from inserting ads in the footers of paying subscribers’ outgoing messages. The suit also calls for unspecified compensatory and punitive damages, attorney fees and court costs.

AOL did not immediately respond to a request for comment.
FROM AOL 9/5/09:
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:


You May
Due Date

1. Do Nothing
(see questions #7 and 15) This space intentionally left blank
or
2. Exclude Yourself
(see questions #11 – 13) Postmarked by
November 20, 2009
or
3. Object to the Settlement
(see question #14) Filed and Received by
December 7, 2009
or
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 footerlitigation@corp.aol.com, 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:

Glenn Nunes
The Nunes Law Group
101 California St. Suite 2450
San Francisco, CA
(415) 946-8894

Christopher J. Hamner
Hamner Law Offices
15760 Ventura Blvd Ste 860
Encino, CA 91436
(818) 386-0444

Brian Kabateck, Esq.
Richard Kellner, Esq.
Kabateck Brown Kellner LLP
644 South Figueroa Street
Los Angeles, CA 90017
(213) 217-5000

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 settlementoptout@corp.aol.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
Thanks-Stay Metal, Stay Brutal, Best of Luck in that lawsuit- \m/ -l-