NNSquad - Network Neutrality Squad
[ NNSquad ] RCN P2P Class Action Lawsuit Settlement
> From: RCN Corporation <donotreply@rcn.com> > Subject: NOTICE OF PENDENCY AND SETTLEMENT OF CLASS ACTION > > NOTICE OF PENDENCY AND SETTLEMENT OF CLASS ACTION > > Sabrina Chin v. RCN Corporation, U.S. District Court, S.D.N.Y., Civil > Action No. 08 Civ. 7349 (RJS) > > To: All persons in the United States who subscribed for RCN broadband > Internet service (“RCN Broadband Internet”) from August 19, 2003 > through July 31, 2009 (the “Settlement Class Period”) (such persons are > hereinafter referred to as “Settlement Class Members”): > PLEASE READ THIS NOTICE CAREFULLY. IF YOU ARE A SETTLEMENT CLASS MEMBER, > YOUR RIGHTS MAY BE AFFECTED BY THE TERMS OF THIS PROPOSED SETTLEMENT > > I. EXPLANATION OF THE CASE > The parties in the above-referenced lawsuit have reached a settlement > (“Settlement”), subject to the final approval of the Court. In this > lawsuit, the plaintiff claims that RCN Corporation (“RCN”), without the > knowledge or awareness of RCN broadband Internet subscribers, > intentionally interfered with the subscribers’ ability to use the > Internet by delaying or blocking their Internet use and transmissions. > Specifically, plaintiff alleges that RCN engaged in certain Internet > network management practices (“Network Management Practices”) which > hindered or barred RCN broadband Internet subscribers’ ability to engage > in peer-to-peer (“P2P”) transmissions through the use of P2P programs > and protocols. Plaintiff further claims that these alleged practices > materially and adversely affected RCN broadband Internet subscribers. > RCN vigorously denies plaintiff’s allegations. The Court has made no > determination of the merits of the parties’ claims. > > II. SETTLEMENT TERMS > In the Settlement, without admitting any liability or wrongdoing, RCN > has agreed to cease and desist all Network Management Practices which > specifically affect P2P Internet traffic (“P2P Network Management > Practices”) for a period of 18 months, starting on May 1, 2009 (the “P2P > Cessation Period”). RCN also agrees not to engage in Network Management > Practices intended to curb or control congestion of the RCN Broadband > Internet network and which do not specifically target P2P transmissions > (“Non-P2P Network Management Practices”) for a period of 18 months, > starting on April 1, 2008 (the “Non-P2P Cessation Period”). RCN also > confirms pursuant to the Settlement that it has not engaged in any > Non-P2P Network Management Practices from April 1, 2008 to the present. > > RCN also agrees that six months, twelve months and eighteen months after > the commencement of the P2P Cessation Period, it will provide > plaintiff’s counsel with written certification from an appropriate RCN > officer or executive stating that RCN has ceased all P2P Network > Management Practices and has not resumed the use of any P2P Network > Management Practices during the preceding six months. > > RCN also agrees to pay for and subject itself to independent monitoring > to confirm that RCN has ceased all P2P Network Management Practices and > Non-P2P Network Management Practices, as described above, during the > respective cessation periods. > > RCN also agrees that in the event it implements any Network Management > Practice at any time after the Non-P2P Cessation Period which causes, > or potentially could cause, a materially adverse impact to any RCN > broadband Internet subscriber (a “New Network Management Practice”), > such implementation is subject to the terms and conditions set forth in > detail in the Class Action Settlement Agreement, dated July 31, 2009 > (as amended, January 12, 2010), available at > http://www.rcn.com/official-notice. In addition, except in the case of > emergency circumstances involving imminent harm to its network, RCN > agrees that in the event it implements a New Network Management Practice > prior to the end of the P2P Cessation Period, it will provide notice to > RCN’s broadband Internet subscribers no less than sixty (60) days prior > to the implementation of such practice, and permit any RCN broadband > Internet subscribers who object to RCN’s implementation of the New > Network Management Practice to opt-! out of their subscription for such > service, without penalty, within thirty (30) days after notice of the > New Network Management Practice is provided. Such notice is subject to > the terms and conditions set forth in detail in the Class Action > Settlement Agreement. > > RCN has also agreed that it will not object to an application by Class > Counsel for an award of attorney’s fees of up to $520,000, and an award > of expenses of up to $20,000, for services performed on behalf of the > plaintiff and the proposed settlement class. RCN has agreed that, if > approved by the Court, it will makes a single payment of $3,000 to the > named plaintiff as an incentive award for representing the proposed > settlement class. > > In exchange for these agreements and other consideration, the > Settlement, if approved by the Court, will preclude Settlement Class > Members who do not exclude themselves as described below from bringing > similar lawsuits related to their purchase of RCN broadband Internet > service during the Settlement Class Period. > > III. YOUR RIGHTS > If you fit within the definition of a Settlement Class Member (as > defined above), do not wish to participate in this proposed settlement > and wish to exclude yourself from the benefits of this proposed > settlement, you must submit a written Request for Exclusion by > first-class mail to Class Counsel (Michael R. Reese, Reese Richman LLP, > 875 Avenue of the Americas, New York, NY 10001) and RCN’s Counsel (Peter > C. Neger, Bingham McCutchen LLP, 399 Park Avenue, New York, NY 10022). > Your written Request for Exclusion must state the following: (a) an > identification of the action, e.g., Chin v. RCN Corporation; (b) your > full name, address, dates of subscription to RCN broadband Internet > service and RCN account number; and (c) a statement that you wish to be > excluded from the settlement class. Your written Request for Exclusion > must be postmarked not later than May 14, 2010. > > As a Settlement Class Member, you may also, but are not required to, > enter an appearance through counsel of your own choosing at your own > expense. If you do not do so, you will be represented at no expense to > you by Class Counsel. If you do not file a Request for Exclusion, you > may object to the settlement or to the application of Class Counsel for > an award of attorneys’ fees and costs, in the manner set forth in the > Class Action Settlement Agreement (see below). If your objection is > rejected, you will be bound by the settlement and judgment as if you had > not objected. > > IV. MORE INFORMATION > This notice is only a summary of the terms of the settlement. As noted > above, you may view the full Class Action Settlement Agreement at > http://www.rcn.com/official-notice. > > V. FINAL APPROVAL HEARING > A final approval hearing, at which time the Court will consider the > adequacy, fairness and reasonableness of the settlement, whether the > settlement should be finally approved by the Court and judgment should > be entered dismissing the lawsuit on the merits and with prejudice, and > the amount of attorney’s fees and costs that should be awarded to Class > Counsel, is scheduled for June 4, 2010, at 9:30 a.m. in Courtroom 21C > of the United States District Court, Southern District of New York, 500 > Pearl Street, New York, NY 100071312. > > DO NOT CALL THE COURT OR DEFENDANT’S COUNSEL. PLEASE NOTE THAT > DEFENDANT’S EMPLOYEES AND TELEPHONE REPRESENTATIVES ARE NOT AUTHORIZED > TO PROVIDE ANY INFORMATION RELATING TO THIS NOTICE, THE SETTLEMENT OR > ANY CLAIMS YOU MAY HAVE. > > Dated: April 19, 2010 > BY ORDER OF THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK.