If you have ever entered into an annual subscription
payable in monthly installments via Ancestry.com, a pending class action
lawsuit may affect your rights.
PLEASE READ THIS NOTICE CAREFULLY. It contains
important information about your legal rights and a Settlement Hearing
at which the Court will be asked to approve a Settlement.
To receive the benefits of the proposed settlement,
you must ensure that MyFamily.com, Inc. and Ancestry.com are able to contact
you by e mail. See Section I.
I. Summary of Settlement and this Notice
This Notice describes a proposed Settlement of a class action lawsuit
(the “Lawsuit”) for the benefit of certain subscribers to
MyFamily.com, Inc.’s genealogical services through its Ancestry.com
website. The Representative Plaintiffs in the Lawsuit allege that MyFamily.com,
Inc., and Ancestry.com (the “Defendants”) failed to make certain
mandatory disclosures regarding finance charges. The Defendants deny the
Plaintiffs’ allegations but have agreed to this Settlement in order
to avoid the expense and uncertainties of litigation.
This Notice describes the Lawsuit. It also explains who is a Class Member,
the terms of the proposed Settlement and Class Members’ rights and
options regarding the Settlement.
The Settlement has an estimated current value in excess of $3,000,000
to the entire Class. As described in greater detail below, Class Members
will receive a free 31 day subscription to Defendants’ full range
of services at the Ancestry.com website (the “Subscription”).
The Subscription will allow each Class Member unlimited access to all
of Defendants’ subscription databases available through the Ancestry.com
website during the 31 day period. In addition, Defendants have agreed
that any person subscribing to any of Defendants’ annual subscriptions
through the Ancestry.com website payable in monthly installments may terminate
the subscriptions as if they were monthly subscriptions.
Defendants have also agreed to pay for the cost of Notices, the administrative
expenses of the Settlement, and the reasonable attorney fees and costs
of Class Counsel.
No Proof of Claim Is Necessary. A Class Member
is not required to do anything to obtain the benefits of the proposed
Settlement, if it is approved by the Court, except to ensure that Defendants
have a current, valid email address which the Class Member will maintain
through the end of the Subscription period, so Defendants can provide
the information necessary to access Defendants’ Ancestry.com website.
To update your e mail address with MyFamily.com, please call the MyFamily.com,
Inc. customer services group at 1 877 283-9504. Inform them that you are
calling in connection with the Truth in Lending settlement. They will
confirm your identity and record your current email address.
Exclusion and Objection Deadline. If you do
not wish to be part of the Settlement Class and be bound by any judgment
entered in this case, you must file a “Request for Exclusion”
(as described below), which must be received no later than January 24,
2006. If you want to remain part of the Settlement Class but wish to object
to the Settlement or any part of it, including the provisions providing
for Class Counsel’s attorneys’ fees and expenses, you must
file an Objection (as described below), which must be received no later
than January 24, 2006. See Section VI.D. below for further instructions
on these matters.
The following paragraphs describe the Lawsuit and Settlement in more detail
as well as your rights under the Settlement. A complete description of
the Settlement terms is set forth in the Stipulation of Settlement (“Settlement
Agreement”) on file with the Court. In case of a conflict with this
Notice, the terms in the Settlement Agreement will govern. The proposed
Settlement must be approved in a Settlement Hearing by the United States
District Court for the District of Utah (the “Court”) where
the Lawsuit is pending. The Settlement Hearing is scheduled for February
13, 2006, at 2:00 p.m. before Judge Dee V. Benson. See Section VI.B. below
for more details.
II. Description of this Lawsuit and Related Matters
The Lawsuit was filed on July 23, 2004 by the Representative Plaintiffs,
Cynthia Ramer and Ricci Neer, as a class action on behalf of themselves
and all others similarly situated. The Court has preliminarily certified
the following Class for settlement purposes:
All persons who at any time prior to November 3, 2006, entered into
one or more annual subscription agreements with MyFamily.com, Inc. through
its Ancestry.com website payable in monthly installments.
The Plaintiffs allege that the Class is entitled
to statutory damages under the Truth in Lending Act (“TILA”)
arising from the Defendants’ failure to advise Class Members that
the difference in price between annual subscriptions paid on a monthly
basis and those paid with a one time payment constituted the cost of credit
extended by the Defendants on their monthly payment plans. In addition
to requesting statutory damages under TILA, Plaintiffs also have requested
reasonable attorneys’ fees and costs.
The Defendants have at all times asserted that their conduct respecting
the matters complained of in this Lawsuit has been and was in all respects
entirely proper and lawful. The Defendants assert that the Plaintiffs’
claims are meritless and deny all allegations of wrongdoing. The Defendants
further assert they entered into this Settlement solely to avoid costs
and other burdens of continued litigation. The Defendants contend that,
other than for Settlement purposes, this case is inappropriate for class
treatment.
Facts Underlying the Lawsuit.
Defendants provide genealogical subscription services over the Ancestry.com
Internet website. In the past, a number of the subscriptions were offered
on an annual basis, payable in either monthly payments or by a single
one time payment. In each instance, the sum of the monthly payments was
greater than the one time payment. The maximum amount of statutory damages
recoverable in this class action is the lesser of $500,000 or 1% of the
Defendants’ net worth. 15 U.S.C. § 1640(a)(2)(B). As set forth
below, that is less than one sixth (1/6) the estimated value of the Settlement
Benefits under the proposed Settlement.
III.. Terms of the Proposed Settlement
Free 31 Day Subscription
Subject to the Court’s approval of the Settlement, and in consideration
for the release and compromise of all claims by Class Members, Defendants
will provide each Class Member, at no cost, access to all of the Defendants’
subscription databases available through the Ancestry.com website for
a 31 day period. Those Class Members who have one or more current subscriptions
with the Defendants through the Ancestry.com website will have those subscriptions
automatically extended for one month at no additional cost. The cumulative
current market value of this benefit to the Class exceeds $3,000,000.
Equitable Benefit
In addition to the 31 day free access to the Ancestry.com subscription
databases, the Defendants have agreed that any person, now or hereafter,
subscribing to and paying on a monthly basis for any of the Defendants’
annual subscriptions may terminate such subscriptions as though they were
monthly subscriptions. Accordingly, any of the Defendants’ subscribers
who are billed on a monthly basis will be allowed to terminate their subscriptions
on no more than one month’s notice.
Assumption of Administrative Costs
In addition, Defendants have agreed to pay the costs of notice and of
administering the Settlement. Class Counsel estimate that the Defendants’
administrative service will save the Class in excess of $150,000 compared
to the cost of using an outside settlement administrator.
Attorneys’ Fees and Expenses
The Defendants have agreed to pay Class Counsel’s attorneys’
fees and expenses as follows:
Class Counsel will file with the Court a fee and expenses application
outlining and justifying their request for an award of fees and expenses
and the Defendants and Class Members will have an opportunity to respond
to Class Counsel’s application. Class Counsel has agreed that they
will not seek an award in excess of $150,000, and the Defendants have
agreed that they will not appeal an order awarding Class Counsel fees
and expenses up to $150,000. After considering the positions of the parties,
the Court will award reasonable attorneys’ fees and expenses.
Regardless of the amount of the fee and expense award eventually granted
by the Court, Class Members will not be responsible, individually or as
a group, for the payment of any of Class Counsel’s fees or expenses.
IV. Additional Settlement Terms
Final Approval. The Settlement will not become
effective until the date on which an Approval Order entered by the Court
becomes final because no appeals have been taken, or all appeals have
been favorably resolved or withdrawn with all rights to further appeal
expired (the “Effective Date”).
Release. Except as provided in the Settlement
and Final Order, upon the Effective Date, all Class Members who do not
opt out (including the Representative Plaintiffs) shall, on behalf of
themselves and their executors, administrators, personal representatives,
agents, attorneys, and heirs, and to the extent applicable, their spouses,
ex spouses and family members (the “Releasing Parties”), forever
release and discharge the Defendants, their affiliates, assignors, assignees,
subsidiaries, predecessors, successors, present and former officers, directors,
shareholders, employees, attorneys, accountants, agents, and representatives
(the “Released Parties”) from any and all claims, liens, suits,
obligations, demands, liabilities, damages (whether compensatory, punitive
or otherwise), rights and causes of action, and regulatory requirements
and remedies, known or unknown, that such Class Members now have, may
have or have ever had based upon the violation of any state or federal
law or other regulation, or statutory or common law, including without
limitation claims for negligence, gross negligence, fraud, negligent misrepresentation,
and/or breach of fiduciary duty, which arise out of, relate to, or are
based in any way upon the matters alleged in this Lawsuit, or which could
have been alleged in this Lawsuit relating to annual subscriptions paid
for by Class Members on a monthly basis (the “Released Claims”).
The Releasing Parties will be forever barred from instituting maintaining
or prosecuting against any of the Released Parties any of the Released
Claims.
The Representative Plaintiffs, on their own behalf and on behalf of all
Class Members, expressly waive the provisions of Section 1542 of the California
Civil Code (and all other like provisions of law in any other jurisdiction)
which provides: “A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time
of executing the release, which if then known by him must have materially
affected his settlement with the debtor.”
Notwithstanding the above, Class Members specifically reserve the right
to enforce any rights they may have against Defendants which are not related
to the claims covered by the Settlement Agreement.
V. Reasons for the Settlement.
The Representative Plaintiffs and Class Counsel, after taking into account
the risks of litigation, the possible results (including the fact that
under this Settlement the Class Members will receive Settlement Benefits
with an estimated value more than six times greater than the maximum amount
they could receive in damages if they went to trial) and the likelihood
that this Lawsuit, if not settled now, will be protracted and expensive,
are satisfied that the terms and conditions of the Settlement are fair,
reasonable, and adequate. The Settlement Agreement has been entered into
after arm’s length negotiations with the Defendants in good faith.
The Defendants deny any and all liability to the Class. While denying
any and all liability, the Defendants nevertheless recognize that the
results of further litigation are uncertain and, should the Lawsuit proceed
through trial and appeal, substantial and burdensome additional expense
would be incurred.
Class Counsel warrant that, after full assessment of all the facts and
circumstances of the Lawsuit, to the best of their knowledge, information
and belief, the Settlement represents fair, adequate and reasonable consideration
for the Class Members’ claims. This is supported by the fact that
the approval of the Settlement is not contingent on the Court’s
approval of a specific award of attorneys’ fees and expenses.
VI. Your Rights as a Class Member
A. Appearance by Counsel or on Your Own. If
you are a Class Member, you may enter an appearance in these proceedings
on your own behalf or, at your own expense, by your own attorney. Otherwise,
your interests are represented by the following Court designated Class
Counsel:
Michael P. Malakoff, Esquire
Bradley S. Gelder, Esquire
Malakoff Doyle & Finberg, P.C.
Suite 200, The Frick Building
Pittsburgh, PA 15222
Phone: (412) 281 8400
Fax: (412) 281 3262
e mail: bgelder@mdfpc.com
If you have questions concerning the class action or proposed settlement
that are not answered by this notice, you may contact Class Counsel.
B. The Settlement Hearing.
A court hearing (the “Settlement Hearing”) to determine whether
the Settlement (including the provisions dealing with the determination
of attorneys’ fees, costs, and expenses to be awarded to Class Counsel)
should be approved as fair, reasonable, and adequate to the Class will
be held on February 13, 2006 at 2:00 p.m. before Judge Dee V. Benson at
350 South Main Street, Room 246, Salt Lake City, Utah. Class Counsel’s
papers in support of the Settlement and responding to any objections that
may be filed must be on file with the Court by February 3, 2006. Defendant’s
papers in support of the Settlement and responding to objections that
may be filed must be on file with the Court by February 8, 2006.
You are not required to attend, but are welcome to do so. If you have
filed an objection, you should attend at that time, in person or by counsel,
to present such objection.
C. If You Are Satisfied with the Settlement:
If you are satisfied with the Settlement (including the provisions dealing
with the determination of attorneys fees, costs, and expenses to be awarded
to Class Counsel), you do not need to do anything to be included except
to ensure that the Defendants have your current email on file. See Section
I. You will automatically receive the benefits if the Settlement is approved.
Notification of the approval of the Settlement and the information you
need to take advantage of the free 31 day subscription to the Defendants’
website will be provided to you by e mail sent to the e mail address that
you have on file with the Defendants.
D. If You Are Not Satisfied with the Settlement:
If you are not satisfied with the Settlement (including the provisions
dealing with the determination of attorneys’ fees, costs, and expenses
to be awarded to Class Counsel), you may choose either of two courses
of action.
1. Objecting to the Settlement. First, you may
object to the Settlement. Any Class Member wishing to object to the Settlement
shall file with the Court, Class Counsel, and Defendants’ counsel
(at the addresses shown below) a written statement of the objection(s),
as well as the specific reasons, if any, for each objection, including
any legal support the Class Member wishes to bring to the Court’s
attention and any evidence the Class Member wishes to introduce in support
of his or her objections. All such objections shall be received no later
than January 24, 2006. All written objections must (1) be signed by the
Class Member or his attorney; (2) include a reference to “Ramer
v. MyFamily.com, Inc., Case No. 2:05cv359 DB,”; and (3) include
the name, address, and telephone number of the Class Member. Objections
shall be sent to each of the following:
Clerk of the Court
United States District Court for the District of Utah
350 South Main Street
Salt Lake City, Utah 84101
Bradley S. Gelder, Esq.
Malakoff Doyle & Finberg, P.C.
Suite 200, The Frick Building
Pittsburgh, PA 15222
(412) 281 8400
Class Counsel
Barnard N. Madsen, Esq.
Fillmore Spencer, LLC
3301 North University Avenue
Provo, Utah 84604
Counsel for Defendants
Any attorney hired by a Class Member for any purpose relating to the proposed
Settlement, including objecting to the Settlement, shall be at the expense
of the Class Member. Objections filed by any such attorney on behalf of
a Class Member, together with a notice of the attorney’s appearance,
shall be filed with the Clerk of the Court and provided to Class Counsel
and Defendants’ Counsel (at the addresses listed above) no later
than January 24, 2006.
Any Class Member who files and serves a written objection and who intends
to make an appearance at the Settlement Hearing, either in person or through
personal counsel hired at the expense of the Class Member, shall file
with the Clerk of the Court and provide to Class Counsel and Defendants’
counsel (at the addresses listed above) a written notice of intention
to appear that is received no later than January 24, 2006. The notice
of intention to appear must include an identification of witnesses the
Class Member intends to call at the Settlement Hearing and any exhibits
the Class Member intends to introduce into evidence at the Settlement
Hearing.
Objections not received by January 24, 2006, may not be considered by
the Court. The Court will consider all timely filed objections before
deciding whether to approve the Settlement.
2. Excluding Yourself from the Class. Alternatively,
if you do not wish to be included in the Settlement and do not wish to
receive the Settlement benefits, you may exclude yourself from the Class.
Each Class Member who wishes to exclude himself or herself from the Class
shall submit a written request for exclusion to the Court, Class Counsel,
and Defendants’ counsel at the addresses listed in the preceding
paragraph. The request for exclusion must (a) contain a reference to “Ramer
v. MyFamily.com, Inc., Case No. 2:05cv359 DB”; (b) include the name,
address, and telephone number of the person seeking to be excluded; (c)
include a statement that the person wishes to be excluded from the Class;
(d) be signed personally by the person who seeks to be excluded from the
Class; and (e) be received no later than January 24, 2006. No request
for exclusion may be made on behalf of a group of Class Members.
Any Class Member who does not submit a timely, written request for exclusion
from the Class, consistent with the terms of the Settlement Agreement
and the preceding paragraph, shall, upon final approval of the Settlement,
be bound by all proceedings, orders and judgments in the Lawsuit, even
if such Class Member has previously initiated or subsequently initiates
individual litigation against Defendants or other proceedings encompassed
by the Released Claims defined in the Settlement Agreement.
E. Right to Examine Court Papers.
As noted, this Notice describing the Lawsuit and Settlement is only a
summary. The complete Settlement Agreement and other Court filings are
available for inspection by you or your attorney or other representative
during regular office hours at the office of the Clerk of the Court at
the address shown above. If there is any inconsistency between this Notice
and the Court filings, the Court filings will control. Copies of the complete
Settlement Agreement will be provided by Class Counsel, upon request.
PLEASE DO NOT CALL OR WRITE TO THE COURT DIRECTLY. IF YOU HAVE
ANY QUESTIONS, PLEASE CONTACT CLASS COUNSEL AT THE ABOVE ADDRESS.
/s/____________________
Clerk of the Court