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HomeMy WebLinkAboutRes1994-034 . . . Sponsored by: Tones CITY OF SEWARD, ALASKA RESOLUTION NO. 94-034 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE XEROX CLASS ACTION CLAIM FORM AND ACCEPT THE TERMS AND CONDITIONS OF THE SETILEMENT AS OUTLINED IN COURT DOCUMENTS WHEREAS, the city received a Notice of Pendency of Class action, Proposed Settlement and Settlement Hearing, in the case of R&D Business Systems, et al., Plaintiffs, vs. Xerox Corporation, defendant, as filed in the United States District Court for the Eastern District of Texas; and WHEREAS, the city of Seward, as a purchaser of Xerox equipment, is entitled to participate in any settlement received as a result of this class action suit; and WHEREAS, in order to preserve the city's rights under the suit, a Claim Form signed by the city manager must be submitted to the court by April 8, 1994; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The city manager is hereby authorized to execute the Claim Form, a copy of which is attached and incorporated herein by reference, and accept the terms and conditions of the settlement as outlined in the attached court documents in the matter of R&D Business Systems, et al. vs. Xerox Corporation, as filed in the U. S. District Court for the Eastern District of Texas, Marshall Division. Section 2. A copy of this resolution and the executed Claim Form shall be submitted to the U. S. District Court no later than April 8, 1994. Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of March, 1994. THE CITY OF SEWARD, ALASKA ~.{{: L~. O'''-(\'''-C / I Dave W. Crane, Mayor . . . Claim Form OF SEWARD CITY 5TH & ADA:\1S STREET SEWARD AK 99664 Change of Address Company ','ame Street .-\ddress City State ZlpCode _..____._ [ accept the Terms and ConrlitlOns of this settlement, as outlined in the enclosed documents. [also certify that the entlt\ listed above is the Direct Purchaser of the equIpment listed below. Print :\ame: Award :\umber: H29939100 Customer # Senal "umber 685900086 M08051946 685900086 M08026775 Sign Here: X Customer # Serial ~umber Customer # Serial \"umber . . . ;-) I' ,j :/0 C ' '- -------- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION R&D BUSINESS SYSTEMS. ET AL. Plaintiffs, V XEROX CORPORATION. CIVIL ACTION NO 292-CV-042 Defendant. NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT AND SETTLEMENT HEARING Pursuant to Rules 23 (c) (2) and 23 (e) of the Federal Rules of Civil Procedure and order of the United States District Court. this is to advise you that there is now pending in the United States District Court for the Eastern District of Texas a class action for alleged violations of the antitrust laws by Xerox Corporation ("Xerox") regarding the sale, lease, rental and service of Xerox high volume copiers and printers The lawsuit Involves the following Xerox high volume copier models 1075. 1090. 5090, 5090S, 5100. 8200. 9200, 9210, 9400. 9400AlR, 9500. 9500rvR, 9900. 5380. 5385. 5388. 5390. DocuTech 135, and DocuTech 90. The lawsuit Involves the following Xerox high volume printer models 4050, 4060. 4075. 4090. 4135. 4450. 4650, 4850. 4890. 8700 Model V, 8790 Model V. 8790. 8790 MICR 9700 Model V. 9790. 9790 Model IV, and 9790 MICR and Docuprint BACKGROUND OF THE LITIGATION This lawsuit was filed by (1) certain Independent service organizations (ISOs) which have been actual or potential competitors of Xerox for the sale, lease. rental or service of high volume copiers and printers (the "ISO Plaintiffs"). and (2) certain end users of Xerox high volume copiers and printers which have (a) purchased. leased or rented high volume copiers or printers from Xerox. and/or (b) purchased service and parts for high volume copiers and printers from Xerox (the "End User Plainliffs") The State of Texas is also a plaintiff in the lawsuit asserting claims against Xerox based on the State's own purchases, leases, or rentals of Xerox high volume copiers and printers or service and parts for such equipment . . . The lawsuit charges that Xerox has (1) monopolized markets for high volume copiers and printers. service and parts through its conduct directed at ISOs and other competitors: (2) entered into a group boycott by arranging with parts manufacturers that sell parts to Xerox not to sell parts to ISOs, (3) tied the sale of Xerox parts to the sale of Xerox service by forcing customers that need parts from Xerox to buy their service from Xerox The lawsuit asserts that as a result of such conduct the prices end users paid to Xerox for the purchase. lease or rental of high volume copiers and printers or the purchase of service and parts for such equipment were higher than they otherwise would have been The lawsuit also charges that as a result of such conduct the prices ISOs paid to Xerox for parts for high volume copiers and printers were higher than they otherwise would have been. The lawsuit seeks treble damages. Injunctive relief. attorneys' fees and costs from Xerox. The plaintiffs counsel have conducted an investigation Into, and have engaged In extensive discovery with respect to the facts and the law relevant to the lawsuit The plaintiffs and their counsel have concluded that a settlement with Xerox according to the terms of the Settlement Agreement entered into between plaintiffs and Xerox is in the best interests of the members of the classes represented by the ISO Plaintiffs and the End User Plaintiffs. Xerox denies that It has acted unlawfully in any respect and has contested the plaintiffs' claims. The Court has not yet decided whether the plaintiffs have a meritorious claim. and this Notice should not be understood as an expression of any opinion by the Court as to the merits of any of the claims or defenses asserted by the plaintiffs or Xerox. II CLASS ACTION RULING By order dated February 23. 1993, the United States District Court for the Eastern District of Texas ruled that this case may proceed as a class action on behalf of the following classes or subclasses. 1 All persons in the United States which. since anytime after March 24, 1988. have been actual or potential competitors of Xerox for the sale, lease or service of Xerox high volume copiers or printers (which are the models described above in this Notice) (the "ISO Injunctive Class"). 2. All persons in the United States which. since anytime after March 24. 1988. purchased directly from Xerox parts for high volume copiers or printers (which are the models described above in this Notice) (the "ISO Damage Class") 3. All persons in the United States which, since anytime after March 24, 1988, purchased maintenance or restoration services and parts directly from Xerox for Xerox high volume copiers or printers (which are the models described above in this Notice) (the "End User Service Subclass") 2 . . . 4 All persons In the United States which. since anytime after March 24. 1988. purchased, leased or rented Xerox high volume copiers or printers directly from Xerox (which are the models described above In this Notice) (the "End User Equipment Subclass") The ISO Plaintiffs that are the class representatives of the ISO Injunctive Class are R & D Business Systems, Quality Copy Service, Inc.. Marcon Services. Ltd . Network Office Products and Computer Output Printing, Inc. The same ISO Plaintiffs. with the exception of R & D Business Systems, are the class representatives of the ISO Damage Class. The End User Plaintiffs which are the class representatives of the End User Equipment and Service Subclasses are Blair Graphics, Inc , Computer Output Printing Inc and Blue Print Service Co III. THE PROPOSED SETTLEMENT The class representatives on behalf of the classes and subclasses defined above have entered Into a proposed Settlement Agreement with Xerox In this lawsuit providing for monetary and non-monetary relief. The following is a summary of the terms of the Settlement Agreement. Complete details regarding the terms of the settlement can be found In the Settlement Agreement. which has been filed of record with the Clerk of the Court at the address listed in this Notice. PLEASE DO NOT TELEPHONE THE COURT REGARDING ANY INQUIRIES CONCERNING THE PROPOSED SETTLEMENT. The Settlement Agreement provides for monetary relief In the amount of $225 million in transferable awards or certificates (hereinafter "Awards") usable toward the purchase of any equipment. supplies and parts sold, leased or rented by Xerox. The awards have been allocated to the classes and subclasses defined above as follows (1) $167.75 million is allocated to the End User Service Subclass: (2) $55.25 million IS allocated to the End User Equipment Subclass; and (3) $2 million is allocated to the ISO Damage Class. Each member of these classes or subclasses who files a claim form Will receive a pro rata share of the settlement amount based upon the class member's expenditures with Xerox for high volume copiers and printers and/or service or parts for such equipment. The amount of the Award each class member receives pursuant to the Settlement Agreement will be administered by Xerox through an electronic Award Account End users may draw on the Award Account to redeem their award under the following terms and conditions (1) the Award may be redeemed for the purchase from Xerox of any equipment. supplies and parts sold, leased or rented by Xerox, but may not be used to pay for Xerox Full Service Maintenance Agreements or Time and Materials Service; (2) the Award may be used to pay up to 55% of the purchase price or base rental price for each item purchased: (3) a minimum of $100 of the Award amount must be used each time an Award IS used, (4) the Award amounts are freely transferable and (5) the Awards shall be effective for a period of 3 years. 3 . . . l Enclosed with this Notice is a Claim Procedure Summary and a Claim Form which identifies the Xerox customer numbers and serial numbers of high volume copiers and printers Xerox believes you purchased, leased or rented from Xerox or had serviced by Xerox and your unique Award Account Number. To submit a claim, please follow the instructions on the Claim Procedure Summary and return the Claim Form In the enclosed envelope to Xerox by April 8 1994 The Settlement Agreement also provides for the payment by Xerox to the ISO Plaintiffs of $5,000.000 cash as compensation for lost profits claims asserted by the ISO Plaintiffs individually on their own behalf and not on behalf of any of the classes or subclasses. The following is a summary of the non-monetary relief provided in the Settlement Agreement. Xerox agrees to sell parts, service manuals and tools for high volume copiers and printers (which are the models described above in this Notice) to ISOs and buying cooperatives acting on behalf of ISOs. ISOs may purchase parts In bulk quantities from Xerox pursuant to specified terms and conditions, and Xerox will provide quantity discounts to 180s that make contractual commitments to purchase parts from Xerox. Xerox has also agreed to limit the amount by which It can Increase its prices for parts for high volume equipment during any 12 month period. Xerox has also agreed to license end users, at their request. the right to use Xerox's diagnostic and operating software in connection with the end users' specific equipment with no restriction on access or use of such diagnostic or operating software by ISOs for the purpose of maintaining the end users' specific equipment pursuant to end user licenses. The term of the agreements made by Xerox is 6 1/2 years regarding parts and 4 1/2 years regarding software. The Settlement Agreement also provides for a release of claims as described below In Section VI of this Notice. The complete terms of the proposed Settlement Agreement are on file and may be examined or copied during regular business hours at the office of the Clerk of the United States District Court for the Eastern District of Texas. Marshall Division, 100 East Houston Street, Marshall, Texas 75670. The proposed Settlement Agreement does not reflect any admission of liability or wrongdOing by Xerox Xerox asserts that It has agreed to the proposed Settlement Agreement to aVOid the burden. risk and expense connected with thiS lawsuit. IV CONSEQUENCES OF CLASS MEMBERSHIP -- OPTION TO REQUEST EXCLUSION FROM THE CLASSES If you come within the definition of the ISO Injunctive Class, ISO Damage Class the End User Equipment Subclass and/or the End User Service Subclass, you are a member of that class or subclass and have the following options 4 . . . 1. You May Do Nothlnq and Remain A Member of the Class or Subclass If you are a member of any of these classes or subclasses and wish to remain a member of the class or subclass. you do not have to do anything. If you choose to take no action, your Interests as a member of the class or subclass will be represented by the class representatives and their counsel. You will be bound by the terms of the Settlement Agreement and any final judgment that may be entered. As a member of any of the classes or subclasses. you will not be responsible for attorneys' fees or litigation expenses Xerox has agreed to fund separately the payment of such attorneys' fees and expenses of litigation as described below in Section V of this Notice. If you do not exclude yourself from any class or subclass of which you are a member, you must file the Claim Form described above by April 8, 1994, in order to obtain your share of the settlement proceeds. In addition. if the Court grants final approval of the Settlement Agreement, you will be bound by the terms of that agreement and by any judgment entered in accordance with that agreement In the event of final approval of the Settlement Agreement, you will be deemed to have entered into the release described in Section VI of this Notice. whether or not you submit a claim. 2 You May Remain A Member of the Class and Hire Your Own Attorney to Represent You. If you are a member of any of these classes or subclasses and do not wish to be represented by the class representatives and their counsel. you may enter an appearance through your own attorney To do so. you must file an Entry of Appearance with the Clerk of the Court for the United States District Court for the Eastern District of Texas. Marshall DivIsion, 100 East Houston Street Marshall, Texas 75670, and send a copy of the Entry of Appearance to counsel for the class representatives and Xerox identified at the end of this Notice. Such Entry of Appearance must be filed with the Court no later than March 4. 1994. You will then continue as a member of the class or subclass with representation by your own attorney. and you will be responsible for the fees and costs of that attorney You may prepare and file the attached Claim Form yourself and do not have to retain an attorney to file a claim. If you do not exclude yourself from any class or subclass of which you are a member, you must file the claim form described above by April 8, 1994, in order to obtain your share of the settlement proceeds If you need assistance In the preparation of your claim. you may retain any professional or other services you desire at your own expense 5 . . . 3 You Mav Request Exclusion from the Class or Subclass If you are a member of any of these classes or subclasses you may elect to exclude yourself from any of these classes or subclasses If you wish to exclude yourself from any of these classes or subclasses, you must mail a written request to be excluded from the class or subclass to the Clerk of the Court at the following address Xerox Antitrust Litigation, PO. Box 0, Marshall, Texas 75671. The written request for exclusion must Include your name and address and specifically state that you request exclusion from the class and/or subclass. The written request for exclusion must be received and filed with the Court no later than March 4, 1994 If you elect to be excluded from any class or subclass in which you are a member and the proposed Settlement Agreement IS finally approved, you will not be entitled to share In the proceeds of the settlement and Will remain free to pursue any legal rights you may have against Xerox. but the class representatives and their lawyers will not represent you as to any claims against Xerox 4 You Mav Obiect to the Settlement If you are a member of any of these classes or subclasses and do not elect exclusion from the class or subclass, you may object to the terms of the Settlement Agreement prior to final approval. If you wish to object to the Settlement Agreement, you must mail such written objection, Including a statement of the nature and grounds for your objection, to the Clerk of the Court at the following address Xerox Antitrust Litigation, P O. Box 0, Marshall, Texas 75671. The written objection must be received and filed with the Court no later than March 4. 1994. Copies of any objections should be sent to counsel for the class representatives and Xerox identified at the end of this Notice. If you do not exclude yourself from any class or subclass of which you are a member, you must file the claim form described above by April 8. 1994 in order to obtain your share of the settlement proceeds. v. CLASS COUNSEL The counsel for the members of the classes and subclasses believe that the proposed settlement is fair, reasonable, and adequate. Counsel for the classes and subclasses have entered into the proposed settlement after weighing the substantial benefits against the probabilities of success or failure and the long delays that would be likely if the case proceeded to trial. If the Court approves the settlement of the case, the Court will determine an award of attorneys' fees and reimbursement of costs and expenses. which would be paid solely by Xerox and would not reduce, directly or indirectly, any of the settlement fund benefiting class members. 6 . . . Plaintiffs' attorneys will apply to the Court for an award of reasonable attorneys fees and for reimbursement of the costs and expenses of the litigation to be paid from the cash portion of the settlements The Application for Attorneys' Fees will be filed with the Clerk of Court on or before February 11. 1994, and may be examined at any time thereafter during regular office hours at the office of the Clerk of the United States District Court for the Eastern District of Texas. Marshall Division. 100 East Houston Street, Marshall. Texas 75670. VI. EFFECT OF THE SETTLEMENT The proposed Settlement Agreement is Intended to settle and contains a release of all claims against Xerox under federal or state law that members of the classes and subclasses have asserted or could have asserted in the lawsuit arising out of any act or omission that is the subject matter of the lawsuIt. with the exception of any claims relating to lost profits of members of the ISO Injunctive Class or the ISO Damage Class (other than those claims of the ISO Plaintiffs). which are not released. The release will extend to Xerox and to any of its past or present officers, directors, agents. employees. parents, affiliates. subsidiaries, or divisions. or any other successors, assigns, or legal representatives. If you do not exclude yourself from the classes or subclasses of which you are a member, you will be deemed to have entered Into this release, whether or not you file a claim If the settlement is approved by the Court and the approval becomes final the settlement will be consummated If the proposed settlement is not approved by the Court, or does not become final for some other reason, the litigation will continue against Xerox on behalf of the classes and subclasses The above is only a summary of the basic terms of the proposed settlement. You are referred to the Settlement Agreement which is on file with the Clerk of the Court for the precise terms and conditions of the settlements. VII. HEARING The Court will hold a hearing at the United States District Court for the Eastern District of Texas, Marshall Division, 100 East Houston Street Marshall, Texas 75670. on March 11. 1994 at 1000 am., to determine whether the proposed settlement should be approved as fair, adequate and reasonable. and the amount of attorneys' fees and litigation costs and expenses that should be awarded to plaintiffs' counsel The hearing may be continued without further notice It is not necessary for you to appear at the settlement hearing. 7 . . . Any member of the classes or subclasses that has not elected to be excluded from the classes or subclasses may object to approval of the proposed settlement or to the application for attorneys' fees and reimbursement of litigation costs and expenses. and may appear at the hearing, Individually or through the member's own counsel. If the class member has submitted a wntten objection and notice of Intention to appear VIII. NOTICE TO ATTORNEYS OF RECORD Copies of all documents filed With the Clerk of the Court (other than a written request for exclUSion from a class or subclass) should be sent to each of the follOWing counsel on behalf of the class representatives Mike McKool, Jr. Esq Eric W Buether. Esq. McKOOL SMITH, P C 300 Crescent Court, Suite 1500 Dallas. Texas 75201 Franklin Jones, Jr , Esq. Samuel F Baxter. Esq JONES, JONES & CURRY, INC P 0 Drawer 1249 Marshall, Texas 75671 and to the following counsel on behalf of Xerox Peter K. Bleakley, Esq ARNOLD & PORTER 1200 New Hampshire Ave, N W. Washington, DC 20036 Peter W Marshall, Esq Senior Counsel XEROX CORPORATION 800 Long Ridge Road Stamford, Connecticut 06904 8 . . . Xerox National Customer Administration Center legal Department RE R&D Business Systems, et al v Xerox Corporation CLAIM PROCEDURE SUMMARY A. Who may participate in the distribution of the settlement award? Xerox has determined that you may be a member of the End User Equipment Subclass or the End User Service Subclass as defined in the attached Notice of Pendency of Class Action. Proposed Settlement and Settlement Hearing ("Notice"). In accordance with an order from the United States Distnct Court for the Eastern District of Texas. only persons who remain members of the Class or Classes may participate in the distribution of the settlement award. If you wish to participate in the distribution of the settlement award. you must file an Award Claim Form. B. What is the process for filinq an Award Claim Form? Enclosed is your Award Account Number for the listed Xerox customer numbers and the senal numbers of the Xerox high volume copiers and/or pnnters (hereinafter "equipment") that Xerox believes you purchased, leased. or rented from Xerox or had serViced by Xerox ("Claim Form") Other divisions and/or sites where Xerox equipment IS installed may also have received a Notice with a Claim Form listing additional customer numbers and serial numbers for your entity To file an Award Claim Form you must: 1) Review the attached Claim Form and indicate whether you were a Direct Purchaser of the equipment or service for the equipment A Direct Purchaser IS any Person who is contractually responsible to pay Xerox for the equipment or service and who actually paid Xerox. 2) If Xerox has not identified equipment for which you were the Direct Purchaser of the equipment or service, you must submit one of the following as documentation of direct payment to Xerox for purchase or service of the equipment during the class period a) a Xerox Invoice reflecting the purchase of equipment or service for such equipment (either FSMA or Time and Materials) and identifying the serial number of the unit and the customer number: or 9 . b) a tracing of the serial number of the unit (ie. an impression of the raised senal number on the equipment) and the Xerox Order Agreement or Xerox Full Service Maintenance Agreement for the unit. Xerox reserves the nght to request additional supporting documentation . 3) The Award Claim Form must be postmarked no later than Apnl 8. 1994 for you to be eligible for an award pursuant to this Settlement. Please send the claim form to us in the enclosed envelope to help us process your claim as qUickly as possible. The Award Claim Form should be sent to: Xerox Corporation NCAC 0870-07B PO Box 20425 Rochester. New York 14602-9888 4) You must sign the Award Claim Form. Your signature indicates that the Information provided by you IS accurate to the best of your company's knowledge. C. Statement of Award After the period for filing claims has ended. you will be mailed a statement reflecting the amount of your award. The Award Account Number will be used to keep track of your redemption of the award and is required when placing an order using an award. One Award Account Will be assigned for all the customer numbers Identified on the enclosed Claim Form You may transfer your award amount after you receive the Statement of Award The Statement will explain the procedure for transfernng any portion of your Award Account to another person. Upon wntten request. Xerox will provide you with the revenue Information which forms a basis for the Award. If you dispute the award amount determined by Xerox, you must notify Xerox in writing Including a statement regarding the nature and grounds for your dispute and any documentation supporting your position. The written notice of your dispute must be post marked no later than 30 days from the date the Statement of the Award was Issued. Should you have any questions. please call the NCAC at 800-913-3337 You will be asked to provide your Award Account Number. . 10 CITY OF SEWARD, ALASKA RESOLUTION NO. 94-034 . AYES: NOES: ABSENT: ABSTAIN: Anderson, Bencardino, Crane, Darling, Krasnansky, O'Brien & Sieminski None None None ATTEST: APPROVED AS TO FORM: Wohlforth, Argetsinger, Johnson & Brecht, Attorneys for the city of Seward, Alaska \)L~;;h~~0AA~~ r'~ City Clerk . (City Seal) ~f~ City Attorney .