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is deal as well fri 07 apr 2006 the april 6 document orgy posted by mark lyon yesterday 996 pages were filed in response to judge naomi reice buchwald s april 6 deadline to file papers in support of the application for final settlement from her hearing order of january 6 i downloaded them all pacer is now 70 richer a number of the documents due to the way pacer works were divided into multiple smaller documents to make browsing easier i have consolidated those types of documents into single documents whenever possible the largest file is around 3 5 mb feel free to link to the documents if you wish to copy and host them elsewhere please credit sonysuit com i m in the process of updating the docket on the michaelson page with the actual docket text and links to each document look for that to be done tonight first i wanted to get the most important documents online of note are three motions the first is the plaintiffs motion for final approval of class action settlement in addition to the motion itself there is a memorandum in support of the motion and the affidavits of mark russinovich kimberly k ness dora rivas and a joint affidavit of class counsel daniel c girard and scott a kamber declarations supporting the motion were filed by plaintiffs james michaelson ori edelstein and alexander guevara the second is the motion for attorney fees reimbursement of expenses and incentive awards to named plaintiffs this application for fees by the class counsel is capped at 2 300 000 00 in legal fees and 75 000 00 in expenses additionally under the terms of the settlement each of the named plaintiffs will receive in addition to the other provisions of the settlement a 1000 cash incentive payment to encourage them to agree to the settlement also filed with the second motion was a memorandum in support of the motion and the declarations of peter safirstein ira m press oren giskan cornelius p dukelow barry m altman dennis a burke tracy d rezvani peter michael d halbelish alan himmelfarb michael l kelly robert i lax douglas a linde daniel lynch paul r huff william a baird ethan preston stephen raff brian j robbins philip a tortoreti robert i harwood jennifer sarnelli and joseph e levi which contain information about their billing and work performed during the settlement the third set of documents is the motion for an award of attorneys fees and reimbursement of expenses from the other set of plaintiffs this set of fees is in addition to that of the class counsel noted above and includes the attorneys for the eff these attorneys request fees in the amount of 1 846 480 16 and expenses in the amount of 90 148 66 i anticipate that the class counsel and sony bmg will oppose this application for fees and expenses the third motion is supported by a memorandum in support of the motion and the affidavits of reed r kathrein steven m bellovin larry ponemon aram sinnreich lawrence e feldman and stan mallison declarations supporting the motion were filed by ira p rothken esq robert s green cindy a cohn diana schneider and a joint declaration of counsel cindy a cohn jeffrey d friedman and rovert s green while i have not finished reviewing all of the documents i was particularly impressed with the inside look that the affidavit of reed r kathrein gives to the settlement process it s quite lengthy 288 pages and includes many emails that have been sent throughout the settlement these applications total 4 311 628 82 in fees and expenses i was not able to find any indication of the number of claimants thus far so it is impossible for me to guess at the total cost of this settlement to sony bmg mr sinnreich in an analysis performed for the eff attempts to form a reasonable estimate of the cost of various settlement provisions it is of note that dr larry ponemon in his affidavit for the eff notes that there are 1 440 000 computers infected with xcp or mediamax divided equally these fees represent 2 99 to the attorneys for each infection dr ponemon estimates the total cost to consumers of the infection to be between 10 530 000 00 using minimum wage and 32 760 000 00 average u s wage i did find that two letters of complaint have been sent to class counsel complaining that the settlement is inadequate if you want to share your views and opinions with the court or would like to attend the may 22 fairness hearing please read my recent post for simple forms details and instructions mon 03 apr 2006 make your voice heard posted by mark lyon note this post is an updated version of an older post the outdated infomation is displayed in strikethrough text a fairness hearing in the sony bmg settlement will be held on may 22 2006 at 9 15 am at the daniel patrick moynihan united states courthouse for the southern district of new york at 500 pearl street room 2270 new york ny during this hearing the proposed settlement will be evaluated by the court and objections to the settlement can be heard by class members who have not opted out of the class it does not matter if you have accepted the settlement benefits as long as you have not opted out as of today i am not aware of anyone being allowed to opt out you must however have purchased received came into possession of or otherwise have used a sony bmg xcp or mediamax infected cd if you are able to attend the hearing i encourage you to do so pursuant to the hearing order of january 6 you must file a notice with the court clerk before may 1 2006 that indicates your intent to appear and serve copies of the notice along with any documents you intend to use during your statement to the court upon the attorneys involved in the case for more information about this process see section 15 page 7 8 of the hearing order of january 6 i have created a sample form that you can use in order to notify the court clerk and the attorneys simply download the template in your desired format doc wpd rtf txt and fill it in with your information the instructions are on the first page if you have nt done so already read the settlement agreement and the hearing order of january 6 carefully i encourage you to focus your arguments around the terms of the settlement agreement and the hearing order if there are other related issues you wish to discuss please do so but it is important that you express your opinion on the settlement agreement itself it appears that sony bmg is going to oppose my attempt to speak at the hearing because of this i encourage anyone who wishes to have their voice heard but who is not certain that they will be able to attend the fairness hearing to use this modified notice doc rtf txt it requires that you notarize exhibit a the affidavit and asks that th court accept it as your testimony in the event that you do not or are not able to appear you can attach copies of your cds receipts emails and any other information that supports your affidavit you will have to mail the origional to the court and copies to the attorneys i understand however that many class members simply can t make it to new york i plan to attend and also plan to speak to the court about the merits of the settlement while i will not be there to represent anyone other than myself i would like to be able to use the opinions of others to support and strengthen my argument to that end i have prepared a template affidavit that you can use to explain your experience with sony bmg xcp and mediamax simply download the template in your desired format doc wpd rtf txt and fill it in with your information you can attach copies of your cds receipts emails and any other information that supports your affidavit an example of a completed affidavit is available in pdf format once your affidavit is assembled you must sign it in front of a notary there are many public notaries in your area they can often be found at banks law offices and even most pack and mail type centers there is typically a small fee of a few dollars for this service take the complete affidavit along with any attachments and your identification when going to the notary after the affidavit is completed signed and notarized mail the original to me along with all of the attachments by first class mail my mailing address is mark lyon sonysuit com 123a highway 80 east 238 clinton mississippi 39056 please mail your affidavit on or before thursday april 20 2006 so that i will have time to assemble all of the affidavits and file them by may 1 i will be responsible for the costs of copying and mailing a copy to each of the attorneys and to the court clerk i will submit every signed notarized affidavit i receive regardless of your position as to the fairness of the settlement your notice must be recieved by the court before may 1 2006 make certain to mail it in time i feel that it is important for your voice to be heard please encourage all class members to get involved the more information that the court has before it the better the end result of the class action will be wed 08 feb 2006 notice of appeal filed posted by mark lyon a notice of appeal to the us court of appeals has been filed by a nonparty frederick d cooke jr while the appeal has not yet been filed it will appeal the hearing order entered on january 6 2006 the hearing order contained an injunction that prevents anyone who has not opted out of the class action which you cannot do as of this posting i ve tried from filing commencing prosecuting maintaining or intervening in as members of a class action or otherwise any claim lawsuit arbitration administrative regulatory or other proceeding arising out of sony bmg s xcp and mediamax until the appeal is filed we won t know exactly what mr cooke is complaining about but i can speculate that he wants to move forward with his own suit against sony bmg and the class action injunction is being used to delay his lawsuit the problem with this injunction is that it prevents those who don t want to be part of the class action from seeking relief the only way that they can through a lawsuit the class action settlement isn t a terrible deal for most people there are a number of people however who aren t going to be adequately compensated for their damages if they are forced to accept the class action incentives as their only compensation with the injunction in place it is impossible for one of these people to have their problem resolved in a reasonable time frame there are those who probably don t think that forcing those with otherwise valid claims against sony bmg to wait until the class action is completely settled or at least made final before pursuing their own action you must remember however that the people who want to bring these claims must do a lot to prove their damage they need to maintain their computer in the state it was when it was infected in order to preserve it for evidence and examination that means they ll need to spend money to get a replacement computer or at least a new hard drive in order to continue to have a machine they also have the statute of limitations running against them and will forever lose their ability to file their claim if the southern district of new york forces them to wait too long the injunction benefits sony bmg quite a bit the longer they make plaintiffs wait the fewer will be willing to pursue their individual actions hopefully the appeal will prevent future class actions from doing similar things mon 06 feb 2006 settlement notice posted by mark lyon the website is not yet up but i wanted to provide this information as soon as it was available following is the notice form provided in the consent motion to modify the settlement agreement and notice forms anyone impacted by either xcp or mediamax should read the more detailed notice of proposed class action settlement motion for attorney s fees and settlement fairness hearing if you bought received or used a sony bmg music entertainment cd containing either xcp or mediamax content protection software your rights may be affected by a class action settlement and you should download updates for that software what is this about a settlement has been proposed in a lawsuit brought against sony bmg music entertainment inc sunncom international inc and first 4 internet ltd defendants the lawsuit in re sony bmg cd technologies litigation case no 1 05 cv 09575 nrb is pending in the united states district court for the southern district of new york and relates to xcp and mediamax content protection software installed on certain sony bmg music cds the settlement resolves claims that the defendants manufactured and sold cds containing xcp and mediamax software without adequately disclosing the limitations the software imposes on the use of the cds and the security vulnerabilities it creates the defendants have denied that they did anything wrong who is included and what does the settlement provide the settlement provides relief for persons who bought received or used sony bmg cds with either xcp or mediamax software under the settlement any person in possession of an xcp cd can exchange it for a replacement cd an mp3 download of the same album and either a cash payment of 7 50 and one 1 free album download from a list of 200 albums or b three 3 free album downloads from that list purchasers of cds containing mediamax 5 0 software will receive a free mp3 download of the same album and one 1 additional free album download purchasers of cds containing mediamax 3 0 software will receive a free mp3 download of the same album the settlement also requires the defendants to stop manufacturing sony bmg cds with xcp or mediamax 3 0 and 5 0 software and until 2008 1 make available updates to fix all known security vulnerabilities caused by xcp and mediamax software 2 provide software programs to uninstall xcp and mediamax software safely 3 fix any future security vulnerabilities discovered in mediamax and any other content protection software placed on sony bmg cds 4 provide independent verification that personal information about users of sony bmg cds has not and will not be collected through xcp or mediamax 5 waive certain provisions of the end user license agreements for xcp and mediamax software and 6 ensure that any other content protection software will be clearly disclosed independently tested and readily uninstalled at 9 15 a m on may 22 2006 the court will hold a hearing at the united states district court daniel patrick moynihan united states courthouse 500 pearl street courtroom 21a new york new york 10007 1312 to decide whether to approve the settlement and the class attorneys fees and costs how do i participate in the settlement if you bought or received a sony bmg music cd containing xcp or mediamax software and want to receive the relief you may be eligible for under the settlement you must submit an online claim form at www sonybmgcdtechsettlement com or mail a claim form to sony bmg cd technologies settlement p o box 1804 faribault mn 55021 1804 all claim forms must be submitted by december 31 2006 what are my other options...