For those of you wondering about the class action lawsuit against Commission Junction (CJ.com), the official hearing is to take place tomorrow, January 5th, 2009. Many publishers and advertisers alike have many questions about what the lawsuit is for and how it is going to effect them. They have sent out emails last year providing the information about the settlements and also created a website offering full legal details of the lawsuit. Here is the stuff you need to know:

I. WHY SHOULD YOU READ THIS NOTICE?

The parties have proposed to settle this lawsuit. Because you may be a member of the “Settlement Class,” as that term is described below, your legal rights may be affected if the settlement receives final approval by the Court.

This Notice summarizes what the lawsuit is about and the terms of the proposed settlement. The Notice describes what you need to do to receive certain benefits under the settlement, how you can obtain more information about the settlement, which persons would be covered and what legal claims would be resolved by final approval of the settlement by the Court, how to exclude yourself from the settlement if you do not wish to participate, and how to object to the settlement or intervene in the lawsuit if you wish to do so. The Notice also explains the procedures that the Court will follow regarding the settlement, including holding a hearing to consider the fairness, reasonableness, and adequacy of the proposed settlement and to consider the plaintiffs’ application for attorneys’ fees and costs.

This Notice, which has been approved by the Court, contains only a summary of the terms of the proposed settlement. You may obtain a copy of the complete Settlement Agreement from the Clerk’s Office at the Court at the address listed below or by writing to the Settlement Administrator at the address listed below, in section VII.D of this Notice. You may also obtain a copy of the Settlement Agreement on the settlement website, www.CJSettlement.com.

II. WHAT IS THIS LAWSUIT ABOUT?

The plaintiffs in this lawsuit are two current and former members of the Commission Junction (”CJ”) Network who entered into either a publisher service agreement (”Publishers”) or an advertiser service agreement (”Advertisers”) with the defendants. They contend that the defendants did not do enough to monitor the CJ Network for the use by third-parties of software programs that do not comply with CJ’s Publisher Code of Conduct and are intended to steal or divert commissions from Publishers and Advertisers on CJ’s Network (”Non-Compliant Software”) or to monitor for or prevent third parties from engaging in the theft or “hijacking” of commissions from Advertisers and Publishers on CJ’s Network. They further contend that the Defendants failed to make sufficient disclosures regarding the existence of such Non-Compliant Software and commission theft, resulting in losses to both Advertisers and Publishers on CJ’s Network. As a result, the plaintiffs believe both Advertisers and Publishers suffered losses on the CJ Network.

The defendants in this case are ValueClick, Inc., and its subsidiary, Commission Junction, Inc., and former subsidiary, Be Free (which has since been merged into CJ). Defendants vigorously deny the allegations in these lawsuits. Defendants further contend that Plaintiffs’ claims are barred by the express terms of written contracts between the Parties, that they owe no legal duty to Plaintiffs to monitor for or detect the use of Non-Complaint Software or to restore any commission payments made by Publishers or Advertisers that were made due to third parties’ use of such Non-Complaint Software or otherwise, and that CJ’s monitoring and compliance systems satisfy any legal obligations they may have. Defendants also deny that these lawsuits could be certified for trial as one or more class actions in light of severe manageability problems that would exist.

III. WHAT ARE THE REASONS FOR THE SETTLEMENT?

Defendants have agreed to the proposed settlement to avoid the threat and expense of years of further litigation. Plaintiffs reached this Settlement after weighing the risks and benefits to the Class of this Settlement as compared with continuing litigation. Class Counsel believe that the claims asserted in the litigation have merit, but that the proposed settlement is fair, reasonable, and in the best interest of the members of the Settlement Class given the risk and expense of further litigation, including the uncertainty of particular legal issues that have yet to be determined and the delay associated with a trial and appeals.

IV. WHO IS COVERED BY THE SETTLEMENT?

As part of the settlement, the plaintiffs and defendants have agreed to the certification of a “Settlement Class” for purposes of this settlement only. The Settlement Class includes all persons and entities who, between April 20, 2003 and July 22, 2008, either (a) hosted ads on, or had ads hosted on, Defendants’ online affiliate marketing network, or (b) paid or received commissions pursuant to a publisher service agreement with Defendants for affiliate marketing management services. However, any and all persons who have already settled or otherwise compromised claims against the Defendants arising from the issues involved in this lawsuit, or any persons who timely request exclusion, are not included in the Settlement Class.

If you fall within the Settlement Class definition above, you are automatically a Class Member unless you exclude yourself from the Settlement Class by following the procedure for exclusion described below. Persons who are Class Members and do not exclude themselves will be eligible for the compensation offered by the settlement if they meet the specified criteria and the settlement receives final approval by the court. Class Members will be bound by the settlement if approved by the Court and will be prevented from bringing other claims covered by the settlement. Persons who exclude themselves from the Settlement Class will neither be bound by, nor benefit from, the terms of the settlement.

V. WHAT ARE THE PROPOSED TERMS OF THE SETTLEMENT?

The proposed settlement was negotiated between the plaintiffs and defendants, through their attorneys, and has been preliminarily approved by the Court. The terms of the settlement are as follows:

A. Monetary Compensation

Defendants have agreed to pay $1,000,000 into a Common Fund. The Common Fund will provide benefits to current and former CJ Network Advertisers and Publishers as follows:

After deducting for payment of any money awarded by the Court in connection with representation of the Class in this litigation and settlement (for example, Incentive Awards made to the named plaintiffs, consulting fees, certain costs of class settlement administration, and related expenses), the balance of the Common Fund shall be allocated 70% to the Publishers and 30% to the Advertisers in a Publisher Fund and an Advertiser Fund.

Recognizing that administration costs for low-value payments can greatly exceed the value of these payments, no payment will be made if the Settlement Class Member’s pro rata share is calculated to be less than $1.00.

Each Publisher with a claim of more than $1.00 will receive a pro rata share of the Publisher Fund equal to the percentage of total commissions it received between April 20, 2003 and July 22, 2008. For example, if a Publisher received 1 % of the total commissions paid on the CJ Network during that period, it will receive approximately 1 % of the Publisher Fund. Each Advertiser with a claim of more than $1.00 will receive a pro rata share of the Advertiser Fund equal to the percentage of total commissions it paid between April 20, 2003 and July 22, 2008. For example, if an Advertiser paid 1 % of the total commissions on the CJ Network during that period, it will receive approximately 1 % of the Advertiser Fund. If a publisher was deactivated for violating the Code of Conduct, the commissions received in the year prior to that deactivation will be excluded from these calculations.

The monetary payment due to each Publisher shall be made by depositing the amount due into the Publisher’s Commission Junction account. The monetary payment due to each Advertiser shall be made by applying a credit to the Advertiser’s Commission Junction account, to be applied against future transaction fees that would otherwise be owed to Commission Junction. If a Class Member no longer maintains a CJ Account at the time these payouts are made, or if Commission Junction so requests, a class member will receive payment in the form of a check rather than a credit. In the event that a portion of the Common Fund remains due to uncashed or undeliverable checks, the Settlement Administrator will pay the balance to charity.

Additional details concerning monetary compensation may be found in section III.C of the Settlement Agreement.

B. Injunctive Relief

Defendants have agreed to undertake an independent audit of CJ’s practices, systems and network quality efforts with respect to the prevention and detection of, and response to, third parties’ use of malicious software to “force” or “hijack” clicks on CJ’s network. This audit will be conducted by an independent auditor retained at CJ’s expense, and a designated consultant selected by Class Counsel and compensated by the Common Fund. Following the completion of the Audit, the auditor shall prepare a final report documenting his or her methodology and findings and proposing recommendations for improving or enhancing CJ’s practices, systems and network quality efforts with respect to the prevention and detection of, and response to, the use of malicious software by third parties to “force” or “hijack” clicks on its networks. Thereafter, the parties shall issue a statement to the Class Members summarizing the measures to be implemented by CJ in response to the Audit and the Report.

Defendants also agree that CJ will begin tracking additional data and information, and implement enhancements to its Network Quality procedures, including to its primary investigative tools and automated software investigative tools. In addition, CJ will implement an automated system for preserving all “click data” associated with a particular publisher during any period of time that such publisher is under investigation for the potential use of malicious software to “force” or “hijack” clicks on CJ’s network.

Please see section III.D of the Settlement Agreement for the specific details concerning, and limitations to, the injunctive relief agreed upon by the parties.

C. Releases

In return for the compensation and benefits under the Settlement Agreement, the proposed settlement will release the Defendants from all claims (known or unknown) arising in any way out of (i) Defendants’ detection, prevention or response to the use of Non-Compliant Software and/or commission theft, (ii) Defendants’ determination of commission payments owed by Advertisers to Publishers, and/or (iii) representations, statements, omissions or advertising of or regarding these practices, which arise at any time up to and including the effective date of the Settlement Agreement.

Additional details concerning the scope and nature of the releases are contained in sections II and III.B of the Settlement Agreement.

D. Other Payments

Incentive Awards: In recognition of the time and effort the named plaintiffs (Mireille Carrier and New Century International Corporation) expended in pursuing the lawsuits, in participating in discovery, in fulfilling their obligations and responsibilities as Class Representatives, and of the benefits conferred on all of the Class Members by the Settlement, Class Counsel will ask the Court to award an “Incentive Award” from the common fund to each Plaintiff in an amount not to exceed $5,000 per award; Defendants have agreed that they will not oppose this request by Class Counsel for Incentive Awards. Please see section III.E of the Settlement Agreement for the specific details concerning these payments.

Designated Consultant Fees: The Parties and their counsel have agreed to the retention of an expert to assist in the conduct of the audit described in Section V.B. Fifteen thousand dollars ($15,000) of the common fund shall be allocated for the payment of the Designated Consultant. Please see section III.E of the Settlement Agreement for the specific details concerning these payments.

Attorneys’ Fees, Costs, & Expenses: In accordance with CJ’s Advertiser and Publisher Service Agreements, in addition to the $1,000,000 Common Fund, Defendants will pay Class Counsel’s fees, expenses and costs in an amount to be approved by the Court and subject to the limitation described below. Class Counsel will file a motion for reimbursement of, and Defendants have agreed to pay, reasonable out-of-pocket litigation costs up to $25,000 and attorneys’ fees not to exceed $475,000. No other agreement exists between the Parties as to attorney’s fees, expenses, and costs. Please see section III.E of the Settlement Agreement for the specific details concerning these payments.

Settlement Administration Fees: The Parties and their counsel have agreed that a portion of the Settlement Administrator’s fees and costs incurred in providing notice in accordance with Section IV of the Settlement Agreement, will be paid from the common fund. The Common Fund will contribute $100,000 and Defendants will contribute an additional $15,000 towards settlement administration fees. Any amounts in excess of $115,000 will be split evenly, with the Defendants paying 50% and the Common Fund paying 50%. If the settlement administration costs are less than $115,000, the surplus shall be divided equally between the Common Fund and Defendants. Please see section III.E of the Settlement Agreement for the specific details concerning these payments.

E. Failure To Request Exclusion

If you do not exclude yourself from the Settlement Class following the procedures set forth in this Notice and the Court approves the proposed settlement, you will be deemed to have entered into the release in the Settlement Agreement, whether or not you receive any compensation.

VI. WHO REPRESENTS THE CLASS?

The Court has designated Plaintiffs Mireille Carrier and New Century International Corporation to serve as class representative in this lawsuit. The attorneys that serve as Class Counsel are Nassiri & Jung LLP and Hagens Berman Sobol Shapiro LLP.

VII. WHAT ARE YOUR RIGHTS AND OPTIONS?

You have a number of rights and options that you should consider carefully.

A. Remain a Member of the Class

First, you may remain a Class Member, represented by Class Counsel. As a Class Member, you will be represented by Class Counsel and will have rights to participate in the Settlement. If you do nothing, you will be a Class Member and will be bound by the terms of the Settlement. If the Settlement is approved by the Court, you will automatically receive any payment to which you are entitled under the payout structure described in Section V. of this Notice. The Settlement will also result in an automatic dismissal of any claims you may have regarding (i) Defendants’ detection, prevention or response to the use of Non-Compliant Software and/or commission theft, (ii) Defendants’ determination of commission payments owed by Advertisers to Publishers, and/or (iii) representations, statements, omissions or advertising of or regarding these practices. Furthermore, as a Class Member, you will not be billed directly for any fees or costs incurred by Class Counsel; instead, these fees and costs will be paid in an amount determined by the district court and paid out of the Common Fund.

B. Remain a Member of the Class and Elect to Hire Separate Counsel

Second, you may remain a Class Member but elect to hire your own attorney to represent you. If you do not wish to be represented by Class Counsel, you may hire your own attorney at your own expense. Your attorney must file an Appearance, no later than September 30, 2008 with the Clerk to Hon. Florence-Marie Cooper, United States District Court for the Central District of California, 255 East Temple Street, Room 750, Los Angeles, California 90012, and must send a copy to the parties in care of the Commission Junction Settlement Administrator (listed in paragraph VII.D below), postmarked no later than September 30, 2008. Even though you are represented by your own attorney, you will continue to be a Class Member. You will be responsible for any fees and costs charged by your attorney.

C. Remain a Class Member and Object

Third, you may remain a Class Member and, on your own behalf or through your own attorney, object to the certification of the Class, to the Settlement and/or to the Application for Attorneys’ Fees. To do so, you or your own attorney must file a written objection, which must contain: (1) the name of this lawsuit, Settlement Recovery Center, et al. v. ValueClick, et al. (Case No. CV-07-02638-FMC (CTx)); (2) your full name and current address; (3) a statement of the approximate dates you contracted with Defendants, whether you were a Publisher and/or Advertiser, and the amount you paid and/or received in commissions; (4) the specific reason(s) for your objection; and (5) any and all evidence and supporting papers (including, without limitation, all briefs, written evidence, and declarations) that you would like the Court to consider. If you wish to appear at the Settlement Hearing and speak in support of, or in opposition to, the Settlement, you may do so if you indicate your desire to appear personally in your written objection. Objections, along with any supporting papers and briefs, must be filed with the Clerk to Hon. Florence-Marie Cooper by September 30, 2008 and mailed to the parties postmarked no later than September 30, 2008, at the four addresses listed below:

Clerk to Hon. Florence-Marie Cooper
US District Court - Central District of California
255 East Temple Street, Room 750
Los Angeles, California 90012

Kassra P. Nassiri
Nassiri & Jung LLP
251 Kearny Street, Suite 501
San Francisco, California 94108

Jeff D. Friedman
Hagens Berman Sobol Shapiro
LLP 715 Hearst Avenue, Suite 202
Berkeley, California 94710

Ashlie Beringer
Gibson Dunn & Crutcher
1801 California Street, Suite 4200
Denver, Colorado 80202

If you do not comply with these procedures and the deadline for objections, you will lose any opportunity to have your objection considered at the Settlement Hearing or otherwise to contest the approval of the Settlement or to appeal from any orders or judgments entered by the Court in connection with the proposed Settlement.

D. Exclusion from the Class

Fourth, you may exclude yourself from the Class. If you are a Class Member, but do not want to remain in the Class, you may exclude yourself (”exclusion”). If you exclude yourself from the Class, you will lose any right to participate in the Settlement. You will also lose the right to have objections you might have to the Settlement considered by the Court before it rules on the Settlement. You will be free to pursue any claims you may have against Defendants on your own behalf, but you will not be represented by Class Counsel. In order to exclude yourself from the Class, you must execute a request for exclusion, which must contain: (1) the name of this lawsuit, Settlement Recovery Center, et al v. ValueClick, et al. (Case No. CV-07-02638-FMC (CTx)); (2) your full name and current address; (3) a statement of the approximate dates you contracted with Defendants, whether you were a Publisher and/or Advertiser, and the amount you paid and/or received in commissions; (4) a specific statement of your intention to exclude yourself from this lawsuit (for example, “Please exclude me from the Class in the Settlement Recovery Center, et al v. ValueClick, et al. litigation.”); and (5) your signature. Requests for exclusion must be postmarked no later than September 30, 2008, and sent to the parties in care of the Commission Junction Settlement Administrator at the address listed below:

Settlement Recovery Center v. ValueClick Settlement Administrator
P.O. Box 3656
Portland, Oregon 97208-3656

If you do not comply with these procedures and the deadline for exclusions, you will lose any opportunity to exclude yourself from the Class, and your rights will be determined in this lawsuit by the Settlement Agreement if it is approved by the Court.

VIII. WHEN IS THE COURT HEARING AND WHAT IS IT FOR?

On January 5, 2009, at 10 a.m. the Court will hold a public hearing at the United States District Court for the Central District of California, 255 East Temple Street, Room 750, Los Angeles, California 90012, for the purposes of determining whether the preliminary certification of the Class was proper and whether the class should be certified for purposes of the settlement, whether the proposed Settlement is fair, adequate and reasonable and should be approved, and whether to approve Class Counsel’s application for attorney’s fees and expenses. This hearing may be continued or rescheduled by the Court without further notice. Class Members who support the proposed Settlement do not need to appear at the hearing and do not need to take any other action to indicate their approval. Class Members who object to the proposed Settlement are not required to attend the Settlement Hearing. If you want to speak in opposition to the Settlement, either personally or through counsel, you must indicate your intention to appear at the Settlement Hearing in your written objection.

IX. WHERE CAN YOU GET MORE INFORMATION?

If you have questions about this Notice or the Settlement, or if you did not receive a notice either by electronic or US mail and you believe that you are or may be a Class Member, you should write to Jeff D. Friedman of Hagens Berman Sobol Shapiro LLP, 715 Hearst Avenue, Suite 202, Berkeley, California 94710, for more information or to request that a copy of this Notice be sent to you in the mail. If you wish to communicate directly with Class Counsel, you may contact Jeff D. Friedman of Hagens Berman Sobol Shapiro LLP, 715 Hearst Avenue, Suite 202, Berkeley, California 94710. You may also seek advice and guidance from your own private attorney at your own expense, if you so desire.

This Notice is only a summary. For more detailed information, you may review the Settlement Agreement, containing the complete terms of the proposed settlement, on the settlement website, www.CJSettlement.com. The Settlement Agreement is also on file with the Court and available to be inspected at any time during regular business hours at the Clerk’s Office, United States District Court for the Central District of California, 255 East Temple Street, Los Angeles, California 90012. You may also review the pleadings, records and other papers on file in this lawsuit at the Clerk’s Office.

Cited Sources

Commission Junction - Settlement Website: FAQ. (2008). At cjsettlement.com. Retrieved 10:22, January 4, 2009, from http://www.cjsettlement.com/faq1.html

People also Digg these articles:

• Types Of Online Advertising (0)