In Re Quantcast Advertising Cookie Litigation

Filing 45

NOTICE OF MOTION AND MOTION to Certify Class (Preliminary Approval of Class action Settlement) filed by plaintiffs Alan Bonebrake, Byron Griffith, Mary Huebner, Jose Marquez, Austin Muhs, Brittany Sanchez, Edward Valdez, Gerardo Valdez, Kayla Valdez. Motion set for hearing on 12/16/2010 at 08:30 AM before Judge George H Wu. (Attachments: #1 Declaration of David A. Stampley, #2 Exhibit A (Settlement Agreement), #3 Exhibit B (Firm Resume))(Parisi, David)

Edward Valdez et al v. Quantcast Corporation et al

Doc. 45

1 [e-mail]

SCOTT A. KAMBER (admitted pro hac vice) DAVID A. STAMPLEY (admitted pro hac vice) KAMBERlaw, LLC New York, New York 10005 Facsimile: [phone] Interim Class Counsel DAVID C. PARISI (SBN 162248) SUZANNE HAVENS BECKMAN (SBN 188814) PARISI & HAVENS LLP Sherman Oaks, California 91403

2 [e-mail] 3 100 Wall street, 23rd Floor

4 Telephone: [phone]

7 [e-mail]

8 [e-mail] 9 15233 Valleyheart Drive

10 Telephone: [phone]

Facsimile: [phone] Additional counsel listed on signature page 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA
14

In Re QUANTCAST ADVERTISING 15 COOKIE LITIGATION, and
16 17

No. 2:10-cv-05484-GW-JCG No. 2:10-cv-05948-GW-JCG [Assigned to the Hon. George H. Wu] PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: December 16, 2010 Location: Courtroom 10 312 N. Spring Street Los Angeles, CA 90012 Time: 8:30 a.m.

In Re CLEARSPRING FLASH COOKIE 18 LITIGATION
19 20 21 22 23 24 25 26 27 28
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Plaintiffs' Motion for Preliminary Approval of Class Action Settlement

Case No. 08-cv-3845 RS

Dockets.Justia.com

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NOTICE OF MOTION NOTICE IS HEREBY GIVEN that the plaintiffs in the above-captioned mat-

3 ters ("Plaintiffs") will, pursuant to Federal Rule of Civil Procedure 23(e), move that 4 the above-named Court grant preliminary approval of a proposed settlement (the 5 "Settlement"), including a settlement agreement (the "Settlement Agreement") in 6 these class action matters, before the Honorable George H. Wu on December 16, 7 2010 at 8:30 a.m. or at such other time as may be set by the Court.. 8

Plaintiffs seek preliminary approval of this class action Settlement, certifica-

9 tion of the proposed class for the purposes of the Settlement, provision of notice to 10 the Settlement class, and appointment of Plaintiffs as class representatives and their 11 counsel as class counsel. The Motion is based on this Notice of Motion, Plaintiffs' 12 Brief in Support of the Motion and the authorities cited therein, oral argument of 13 counsel, and any other matter that may be submitted at the hearing or at the request 14 of the Court. 15 DATED: December 3, 2010 16 17 18 19 20 21 22 23 24

KAMBERLAW, LLC s/Scott A. Kamber_________ Scott A. Kamber (pro hac vice) [e-mail] David A. Stampley (pro hac vice) [e-mail] KamberLaw, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] Interim Counsel for the Class

Avi Kreitenberg (SBN 266571) 1180 South Beverly Drive, Suite 601

25 [e-mail] 26 KamberLaw, LLP

27 Los Angeles, California 90035 28

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Telephone: [phone] Facsimile: [phone] Joseph H. Malley (not admitted) 1045 North Zang Blvd Dallas, TX 75208 Telephone: [phone]

3 [e-mail] 5

4 Law Office of Joseph H. Malley

6 David Parisi (SBN 162248) 7 [e-mail] 9 Parisi & Havens LLP 8 [e-mail]

Suzanne Havens Beckman (SBN 188814) 15233 Valleyheart Drive

10 Sherman Oaks, California 91403 11 Telephone: [phone] Majed Nachawati

13 Fears Nachawati Law Firm 14 4925 Greenville Ave, Suite 715 15 Telephone: [phone] 18 19 20 21 22 23 24 25 26 27 28
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[e-mail] Dallas, Texas 75206

Jeremy Wilson [e-mail] Kenneth P. Trosclair [e-mail] Wilson Trosclair & Lovins, P.L.L.C. 302 N. Market St., Suite 510 Dallas, Texas 75202 Telephone: [phone]

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1 2 I. 3 4 5 6 7 8 9

TABLE OF CONTENTS NATURE OF THE LITIGATION................................................................... 6
A. B. C. The Complaints at Issue ............................................................................................ 6 Mediation and Settlement.......................................................................................... 7 Defendants' Position.................................................................................................. 7

II.

TERMS OF THE SETTLEMENT .................................................................. 8
A. B. C. D. Definitions ................................................................................................................. 8 General Relief ......................................................................................................... 10 Additional Relief ..................................................................................................... 10 Release .................................................................................................................... 14

10 III. THE PROPOSED SETTLEMENT CLASS SHOULD BE 11 12 13 14 15 A. B. C. D. E.

CERTIFIED ................................................................................................... 14
The Requirement of Numerosity Is Satisfied .......................................................... 15 The Requirement of Commonality is Satisfied ....................................................... 15 The Requirement of Typicality is Satisfied ............................................................. 16 The Requirement of Adequate Representation is Satisfied ..................................... 17 The Proposed Settlement Class Meets the Requirements of Rule 23(b)(3) ............ 18

16 IV. THE COURT SHOULD APPOINT SCOTT A. KAMBER AND 17 18

DAVID STAMPLEY OF KAMBERLAW AS CLASS COUNSEL........... 19

V.

THE COURT SHOULD PRELIMINARILY APPROVE THE PROPOSED SETTLEMENT....................................................................... 19

19 VI. THE PROPOSED PLAN OF CLASS NOTICE .......................................... 22 20 VII. CONCLUSION ............................................................................................... 23 21 22 23 24 25 26 27 28
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TABLE OF AUTHORITIES Cases Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) ........................................ 14, 18 Armstrong v. Bd. of Schl. Dirs. of City of Mil., 616 F.2d 305 (7th Cir. 1980) ........... 20 Celano v. Marriot Int'l, Inc., 242 F.R.D. 544 (N.D. Cal. 2007) ................................ 15 Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007) ................................ 15, 16, 17 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ................................................. 15 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ......................................... 20 In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 359 (N.D. Ohio 2001). ........ 21 In re Syncor ERISA Litig., 516 F.3d 1095 (9th Cir. 2008) ................................... 20, 21 In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ................. 20 Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir. 1982) ................. 20 Pierce v. County of Orange, 519 F.3d 985 (9th Cir. 2008) ........................................ 18 Other Authorities DeLise v. Fahrenheit Entm't, Civ. Action No. CV-014297 (Cal. Sup. Ct. Marin Cty. Sept. 2001) ............................................................................................................. 21 In Re DoubleClick, Inc. Privacy Litigation, No. 00 Civ. 0641 (NRB) (S.D.N.Y. 2001) ....................................................................................................................... 21 Rules Federal Rule of Civil Procedure 23(a) ....................................................................... 15 Federal Rule of Civil Procedure 23(a)(1) .................................................................. 15 Federal Rule of Civil Procedure 23(a)(2) .................................................................. 15 Federal Rule of Civil Procedure 23(a)(3) ............................................................ 16, 17 Federal Rule of Civil Procedure 23(a)(4) .................................................................. 17 Federal Rule of Civil Procedure 23(b)(3) ............................................................ 15, 18 Federal Rule of Civil Procedure 23(c)(2)(B)............................................................. 22 Federal Rule of Civil Procedure 23(e) ........................................................... 19, 21, 22 Federal Rule of Civil Procedure 23(e)(1) .................................................................. 22
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1 Federal Rule of Civil Procedure 23(g)(1) .................................................................. 19 2

Treatises

3 Alba & Conte, 4 Newberg on Class Actions, §11.25 (4th Ed. 2002) ........................ 20 4 Alba & Conte, 4 Newberg on Class Actions, §11.53 (4th Ed. 2002) ........................ 22 5 Manual for Complex Litigation § 21.632 (4th ed. 2004) .......................................... 14 6 Manual for Complex Litigation § 30.41 (3rd ed. 1995) ............................................ 20 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT In this putative class action, Plaintiffs seek relief based on their allegations

3 that Defendants Quantcast and Clearspring bypassed class members' browser priva4 cy controls in order to track class members' Internet activities in a way that class 5 members would not expect or detect. Plaintiffs allege that Adobe Flash local shared 6 objects ("LSOs," sometimes referred to as "Flash cookies") were used to track their 7 web activities without their knowledge or consent, that they did not receive adequate 8 notice or choice about the use of LSOs, and that the Defendants' actions violated the 9 Plaintiffs' privacy rights, implicating a number of state and federal statutes. 10

As explained more fully below, as a result of the proposed settlement, De-

11 fendants Quantcast and Clearspring have stated that they will stop the offending ac12 tivities alleged by Plaintiffs, by not "respawning" deleted cookies or using Adobe 13 Flash capabilities in certain undisclosed ways, including ways that would tend to 14 circumvent users' browser controls on uses of browser cookies1. Other Defendants 15 named in the actions, which provide web-based content to consumers, will take 16 measures to implement and encourage the further development of industry standards 17 restricting the complained of use of LSO's and encouraging the development of user 18 tools to promote user awareness and control of certain types of online interactions 19 and information collection. 20

Further, the Settlement provides for 2.4 million dollars in cy pres payments to

21 one or more non-profit organizations identified by plaintiffs to fund research and 22 education projects and activities to promote consumer awareness and choice regard23 ing the privacy, safety, and security of electronic information from and about con24 sumers. 25

In settling the case and agreeing to the injunctive relief, Defendants do not admit to the allegations of the Complaints and Quantcast and Clearspring deny that 27 they presently use LSO's in the offending manner.
26 28
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The two consolidated actions, each comprising three cases, that would be re-

2 solved by the proposed Settlement are: In Re Quantcast Advertising Cookie Litiga3 tion, Case No. 2:10-cv-05484-GW-JCG, and In Re Clearspring Flash Cookie Litiga4 tion, Case No. 2:10-cv-05948-GW-JCG. The two defendants named in the captions 5 of the consolidated cases, Quantcast Corporation ("Quantcast") and Clearspring 6 Technologies, Inc. ("Clearspring"), are online third-party service providers. They 7 provide ad delivery and web traffic analysis services on consumer-facing websites, 8 such as those of the other Defendants. 9

The other Defendants, American Broadcasting Companies, Inc., Demand Me-

10 dia, Inc., ESPN, Inc., Fox Entertainment Group, Inc., Hulu, LLC, JibJab Media, 11 Inc., MTV Networks, a division of Viacom International Inc., MySpace, Inc., NBC 12 Universal, Inc, Scribd, Inc., Soapnet, LLC, Walt Disney Internet Group, and Warner 13 Bros. Records Inc. ("Defendants"); and certain Defendants' affiliated Undertaking 14 Parties (as defined below and in the Settlement Agreement), are the owners or spon15 sors of consumer-facing websites whose websites were allegedly visited by the rep16 resentative plaintiffs in the lawsuits. Some of these Defendants, along with the par17 ent companies of other Defendants (are referred to as the "Undertaking Parties" in 18 the Settlement Agreement. The Undertaking Parties have many customers, subsidi19 aries and affiliates in the United States, and the steps being taken in the settlement 20 apply to all of them. 21

Quantcast and Clearspring provide services to many websites, including some

22 of those owned or sponsored by the Undertaking Parties. Quantcast and 23 Clearspring's services include displaying targeted advertisements to website visitors, 24 analyzing website traffic, and providing technology that other companies can use to 25 interact with consumers browsing the web. For consumers visiting a website, 26 Quantcast and Clearspring are considered "third parties" that provide services to the 27 websites. Many of the websites are supported by advertising and many of them 28
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1 monitor visitor activity to assess the popularity of their web pages. Because 2 Quantcast and Clearspring provide advertising and measurement services to those 3 websites, consumers who visit those websites are brought into direct contact with 4 Quantcast and Clearspring, even though the consumers may not be aware of it. 5

Like many other online, third-party service providers, Quantcast and

6 Clearspring store and read browser cookies on the computers of website visitors, as 7 part of the process of serving advertisements and collecting information for web an8 alytics. Users who do not want third parties' cookies can set their browser controls 9 to block third-party cookies. Users can also delete previously stored, third-party 10 cookies. 11

In addition to using browser cookies, Quantcast and Clearspring, like some

12 other third-party service providers, used Adobe Flash local shared objects ("LSOs," 13 which have also been called "Flash Cookies") in their interactions with website visi14 tors. Adobe Corporation has stated that LSOs were designed to support consumers' 15 ability to experience "rich Internet application" content using the Adobe Flash Play16 er. Plaintiffs allege that Quantcast and Clearspring stored LSOs on users' computers 17 to collect information from and about users--even users who had set their browser 18 privacy settings to block third-party cookies. Plaintiffs also allege that, in some cas19 es, if users had deleted third-party cookies, the use of LSOs resulted in the recrea20 tion (sometimes referred to as "respawning") of the deleted cookies. Quantcast and 21 Clearspring do not concede that Plaintiffs' factual contentions are accurate. 22

The class action complaints filed by the Plaintiffs alleged the Defendants used

23 LSOs to circumvent users' blocking or deleting Quantcast and Clearspring browser 24 cookies. The Plaintiffs claimed they did not receive adequate notice or choice about 25 the use of LSOs and that the Defendants' actions violated the Plaintiffs' privacy 26 rights. The complaints, taken together, alleged the Defendants' practices violated the 27 following federal statutes, California statutes, and common-law legal rights: the 28
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1 Computer Fraud and Abuse Act, Title 18, United States Code 1030; the Electronic 2 Communications Privacy Act, Title 18, United States Code, Section 2510; the Video 3 Privacy Protection Act, Title 18, United States Code, Section 2710; the Computer 4 Crime Law, California Penal Code, Section 502; the Invasion of Privacy Act, Cali5 fornia Penal Code, Section 630; the Unfair Competition Law, California Business 6 and Professions, Section 17200; the Consumer Legal Remedies Act, California Civil 7 Code, Section 1750; the California Uniform Trade Secrets Act, California Civil 8 Code, Section 3426; Trespass to Personal Property/Chattels; and Unjust Enrichment. 9

Representatives of the parties met and engaged in substantial private settle-

10 ment mediation discussions before Mr. Rodney Max on October 19, 2010. This ef11 fort enabled the parties to reach an agreement in principle in connection with these 12 mediations and through extensive, ongoing negotiations between the principal law13 yers for the Class (Mr. Kamber), Clearspring (Mr. Rhodes), Quantcast (Mr. Page), 14 Warner Bros. Records Inc. and Warner Music Inc. (Mr. Kahn), Demand Media, Inc. 15 (Mr. Ballon), and American Broadcasting Companies, Inc., ESPN, Inc., Fox Enter16 tainment Group, Inc., MTV Networks, MySpace, Inc., Walt Disney Internet Group, 17 Soapnet, LLC and Defendants/Undertaking Parties Hulu, LLC, JibJab Media, Inc., 18 NBC Universal, Inc. and Scribd, Inc. (Mr. Jacobson). A true copy of the stipulated 19 Settlement Agreement (the "Settlement Agreement") is attached hereto as Exhibit A. 20

Under the Settlement Agreement, Quantcast and Clearspring represent that

21 they will not "employ LSOs to: (i) "respawn" HTTP cookies; and/or (ii) serve as an 22 alternative method to HTTP cookies for storing information about a user's web 23 browsing history, unrelated to the delivery of content through the Flash Player or the 24 performance of the Flash Player in delivering such content, without adequate disclo25 sure; and/or (iii) otherwise counteract any computer user's decision to either prevent 26 the use of or to delete previously created HTTP cookies." (Settlement Agreement, 27 sec. 4.19.) Further, the Undertaking Parties, inter alia, agree to "send a request to at 28
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1 least one of the industry groups charged with receiving comments to the Self2 Regulatory Principles that those Self-Regulatory Principles should be amended to 3 include express prohibitions on the use of LSOs or any similar technology to regen4 erate, without disclosure, HTTP cookies that a user affirmatively deleted," and each 5 Undertaking Parties shall "(i) in its online Privacy Policy or an opt-out page clearly 6 linked thereto: maintain a link to the Network Advertising Initiative "Opt Out of 7 Behavioral

Advertising"

tool,

presently

located

at

8 http://www.network¬advertising.org/manag¬ing/opt_out.asp or, once it is fully im9 plement¬ed for consumers, to the industry-developed website page currently repre10 sented by http://www.about-ads.info/consumers/; or, on the Undertaking Party's own 11 internet home page, maintain a link to a page with substantially the same infor12 ma¬tion and consumer options; or (ii) once it is fully implemented for consumers, 13 display the "Advertising Option Icon" discussed in the Self-Regulatory Principles, 14 which links to an OBA disclosure statement and opt-out mechanism." (Settlement 15 Agreement, secs. 4.20.1 and 4.20.3.) 16

Given the challenges and uncertainties facing Plaintiffs if they were to litigate

17 this matter, the results achieved through the settlement are well beyond those re18 quired to satisfy preliminary approval standards. Accordingly, Plaintiffs move the 19 Court to preliminarily approve the instant settlement; certify the settlement class; 20 appoint Jennifer Aguirre; A.A., a minor, by and through her parent Guardian Ad Li21 tem, Jose Aguirre; Alan Bonebrake; Alejandro Godoy; Byron Griffith; J.H., a mi22 nor, by and through his parent, Guardian Ad Litem, Jeff Hall; R.H., a minor by and 23 through her parent Guardian Ad Litem, Jeff Hall; Mary Huebner; Erica Intzekostas; 24 Jose Marquez; Kira Miles; Toni Miles; Terrie J. Moore; Austin Muhs; David Rona; 25 Brittany Sanchez; Edward Valdez; Gerardo Valdez ; Kayla Valdez, and Brian White 26 as class representatives; and Scott A. Kamber and David A. Stampley of Kamber27 Law, LLC as class counsel. 28
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NATURE OF THE LITIGATION A. The Complaints at Issue Quantcast Corporation: On July 23, 2010 and July 30, 2010, the Valdez, et

al. v. Quantcast Corporation, et al. and Aguirre v. Quantcast Corporation, et al. complaints were filed against Quantcast (and other defendants). Collectively, these Complaints alleged violations of (i) the Computer Fraud and Abuse Act, 18 U.S.C. 1030; (ii) the Electronic Communications Privacy Act, 18 U.S.C. § 2510; (iii) the Video Privacy Protection Act, 18 U.S.C. § 2710; (iv) California's Computer Crime Law, Penal Code § 502; (v) California's Invasion of Privacy Act, California Penal Code § 630; (vi) the California Unfair Competition Law, Cal. Bus. and Prof. Code § 17200; (vii) the California Consumer Legal Remedies Act; (viii) Unjust Enrichment; and (ix) California Uniform Trade Secrets Act, California Civil Code § 3426. On September 21, 2010, the Valdez, et al. v. Quantcast Corporation, et al. and Aguirre v. Quantcast Corporation, et al. actions were consolidated by order of the court in the Central District of California as In Re Quantcast Advertising Cookie Litig., No. 2:10-cv-05484-GW-JCG. The Complaint in Godoy v. Quantcast Corporation, filed October 13, 2010, was determined by the Court to be related to the foregoing matters. Clearspring Technologies, Inc.: The Complaints in White, et al. v. Clearspring Technologies, Inc., et al., Intzekostas v. Fox Entertainment Group, Inc., et al., and Rona v. Clearspring Technologies, Inc. were filed respectively on August 10, 2010, September 10, 2010, and October 18, 2010 alleging claims against Clearspring (and other defendants). Collectively these Complaints alleged violations of (i) the Computer Fraud and Abuse Act, 18 U.S.C. 1030; (ii) California's Computer Crime Law, Penal Code § 502; (iii) California's Invasion of Privacy Act, California Penal Code § 630; (iv) the California Consumer Legal Remedies Act, California Civil Code § 1750; (v) the California Unfair Competition Law, Cal. Bus. and Prof. Code § 17200; (vi) Trespass to Personal Property/Chattels; (vii) Unjust Enrichment;
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1 and (viii) the Electronic Communications Privacy Act, 18 U.S.C. § 2510. On Octo2 ber 13, 2010, the White, et al. v. Clearspring Technologies, Inc., et al. and Intze3 kostas v. Fox Entertainment Group, Inc., et al. actions were consolidated by order of 4 the court in the Central District of California as In Re Clearspring Flash Cookie 5 Litig., No. 2:10-cv-05948-GW-JCG. 6

Concurrent with the filing of this Motion for Prelminiary Approval, Plaintiffs

7 are filing consolidated and amended complaints in In re Clearspring Flash Cookie 8 Litig. and In re Quantcast Advertising Cookie Litig. The amended complaint does 9 not include all of the allegations Plaintiffs leveled in the White complaint. 10 11

B.

Mediation and Settlement

Commencing in October 2010, representatives of Plaintiffs and Defendants

12 initiated settlement negotiations that included, among other things, in-person media13 tion conducted by the Mediator on October 19, 2010, during which the participants 14 candidly aired the strengths and weaknesses in their respective litigation positions. 15 (Stampley Decl., ¶ 6.) 16

The October 19, 2010 mediation resulted in a tentative accord on an agree-

17 ment in principal for the resolution of all claims alleged against Defendants in the 18 Litigation, subject to additional negotiations and the Parties' thereafter reaching 19 agreement on final settlement documentation, including this Settlement Agreement. 20 The product at the end of the mediation session was a memoralized agreement on all 21 substantive relief. (Stampley Decl. ¶ 6.) The parties did not discuss the amount of 22 any incentive fee or payment to class counsel until after reaching agreement on the 23 other terms of settlement. (Stampley Decl. ¶ 6b.) The parties now seek preliminary 24 approval of this long-negotiated settlement. 25 26

C.

Defendants' Position

At all times, all Defendants have denied and continue to deny any wrongdo-

27 ing whatsoever or that they, or any of them, committed or have threatened or at28
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1 tempted to commit, any wrongful acts or violations of law or duty, including, but not 2 limited to, those alleged in the Complaint. (Stampley Decl. ¶ 5.) Defendants contend 3 that they have acted properly and therefore deny that the plaintiffs and putative class 4 are entitled to any form of damages based on the conduct alleged in the Complaint. 5 (Stampley Decl. ¶ 5.) In addition, Defendants have maintained and continue to 6 maintain that they have meritorious defenses to all claims alleged in the Complaint 7 and that Defendants were and are prepared to vigorously defend against all claims 8 asserted in this litigation. (Stampley Decl. ¶ 5.) 9 II. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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TERMS OF THE SETTLEMENT The key terms of the settlement are detailed below. A. Definitions 1. Section 1.1 of the Settlement Agreement defines "Class" as: All persons in the United States who, during the Class Period, used any web browsing program on any device to access one or more web sites or online content controlled, operated, or sponsored by Defendants or the Undertaking Parties, or any other website employing any of Clearspring's or Quantcast's technologies involving the use of HTTP cookies ("Cookies") or local shared objects stored in Adobe Flash Player local storage ("LSOs").Section 1.10 of the Settlement Agreement defines "Facebook" as "defendant Facebook, Inc. and its successors, representatives, and assignees." 2. Section 1.19 of the Settlement Agreement defines "Preliminary Approval Date" as "the date entered by the Court on the Preliminary Approval and Notice Order." 3. Section 1.21 of the Settlement Agreement defines "Protected Persons" as: Defendants and the Undertaking Parties, and each of their respective past and present officers, directors, employees, insurers, agents, representatives, investors, customers, partners, jointventurers, parents, subsidiaries (defined as any entity in which a Defendant or Undertaking Party owns or controls, directly or indirectly, at least 50% of the voting securities or the right to elect a majority of the members of the board of directors, or by contract or otherwise controls such entity, or has the right to direct the management of such entity), affiliates, attorneys, successors and assigns; as well as all Persons that used, deployed or caused

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the deployment of, in online interactions with Class Members, Clearspring's Launchpad and/or Add This products; and all Persons in connection with whom defendants Quantcast, Clearspring, or an Undertaking Party deposited a Cookie or an LSO on a computer or device owned, controlled, or used by a Class Member. 4. Section 1.27 of the Settlement Agreement defines "Undertaking Parties" as: Defendants Demand Media, Inc.; Hulu, LLC; JibJab Media, Inc.; NBC Universal, Inc.; and Scribd, Inc.; News Corporation, an affiliate and the ultimate parent of Defendants Fox Entertainment Group, Inc. and MySpace, Inc.; Viacom Inc., of which Defendant MTV Networks is a division of a subsidiary, Viacom International Inc.; and The Walt Disney Company, of which Defendants American Broadcasting Companies, Inc., ESPN, Inc., Soapnet, LLC and Walt Disney Internet Group are subsidiaries, and Warner Music Inc., of which Warner Brothers Records Inc. is an affiliate. 5. Section 1.22 of the Settlement Agreement defines "Released Claims" as: Any and all claims for payment, non-economic or injunctive relief of any kind or nature and any and all liabilities, demands, obligations, losses, actions, causes of action, damages, costs, expenses, attorneys' fees and any and all other claims of any nature whatsoever, based on any of the laws, regulations, statutes or rules cited, evidenced or referenced by such allegations and statements, or any other claims, including but not limited to: all claims, including unknown claims, as set forth in Section 5.3 below, arising from or relating to (i) any of the allegations, facts or statements set out in, or to any claim that was or could have been brought in any of the Complaints; (ii) Defendants', the Undertaking Parties' and their subsidiaries' and affiliates' use of LSOs; alleged depositing of Cookies or LSOs on the computers of persons who accessed one or more of Defendants', the Undertaking Parties' or their subsidiaries' or affiliates' websites or other online content (in the case of the Undertaking Parties, their subsidiaries and affiliates, whether such Cookies or LSOs were deposited by or through an Undertaking Party, a subsidiary or affiliate thereof, Quantcast, Clearspring or any other Person); the regeneration or redeposit of Cookies after a user deleted those Cookies; or the alleged obtaining or provision of information from or about a user contrary to either the user's consent or intent; and (iii) claims that Defendants, the Undertaking Parties or their subsidiaries or affiliates allegedly tracked users, shared their information or displayed advertising to them without sufficient notice. Without limiting the foregoing, for avoidance of doubt, the definition of Released Claims is intended to provide any Protected Person that is an Undertaking Party or a subsidiary or afPlaintiffs' Motion for Preliminary Approval of Class Action Settlement

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filiate thereof with a full release from all claims Class Counsel presently is pursuing involving LSOs and similar technologies in other cases, specifically: Davis v. VideoEgg, Inc., No. CV 10 7112 (C.D. Cal.); La Court v. Specific Media, Inc., No. 10-CV1256 JVS (C.D. Cal.); Aughenbaugh v. Ringleader Digital, Inc., No. 10-CV-1407-CJC-RNB (C.D. Cal.); and Hillman v. Ringleader Digital, Inc., No. 10-CV-8315 (S.D.N.Y.); and such other similar case(s) as to which the Parties may agree in writing from time to time prior to the date approved by the Court for persons to object to or exclude themselves from the Settlement, which agreement shall not be unreasonably withheld by any Party and which writing(s) shall be deemed as amending and incorporated into this section 1.22. Notwithstanding the foregoing, excluded from Released Claims are all claims related to the use or deployment of non-Quantcast and non-Clearspring LSOs by any Person other than the Defendants or the Undertaking Parties. General Relief

Defendants Quantcast and Clearspring will establish a cash settlement fund of two million, four hundred thousand dollars ($2,400,000), the net value of which which will be distributed to one or more non-profit organizations to fund research and education projects and activities to promote consumer awareness and choice regarding the privacy, safety, and security of electronic information from and about consumers, and which projects and activities shall exclude the sponsorship or funding of litigation or lobbying efforts regarding specific legislation. Individual class members will not receive direct compensation. Out of the $2.4 million fund, all attorneys' fees, costs, any enhanced awards to the named Plaintiffs, settlement administration costs, and notice and administration costs will be paid as provided for under the Settlement Agreement and described below. C. Additional Relief In addition to the payments and credits discussed above, the defendants will 1. Quantcast and Clearspring will not employ LSOs to: (i) "respawn" HTTP cookies; and/or (ii) serve as an alternative method to HTTP cookies for storing information about a user's web browsing history, unrelated to the delivery of content through the
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23 provide the following relief. 24 25 26 27 28

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Flash Player or the performance of the Flash Player in delivering such content, without adequate disclosure; and/or (iii) otherwise counteract any computer user's decision to either prevent the use of or to delete previously created HTTP cookies. (Settlement Agreement, sec. 4.19.) 2. Within thirty (30) days of entry of the Preliminary Approval and Notice Orders, the Undertaking Parties shall send a request to at least one of the industry groups charged with receiving comments to the Self-Regulatory Principles that those SelfRegulatory Principles should be amended to include express prohibitions on the use of LSOs or any similar technology to regenerate, without disclosure, HTTP cookies that a user affirmatively deleted. Additionally, the Undertaking Parties shall request that the Self-Regulatory Principles be amended to include guidance to member firms that LSOs should not be used without disclosure as an alternative method to HTTP cookies for storing information about a user's web browsing history across unaffiliated domains, unrelated to the delivery of content through the Flash Player or the performance of the Flash Player in delivering such content. If an Undertaking Party is a member of the Network Advertising Initiative, the Undertaking Party also shall inform the Network Advertising Initiative of its preference that the NAI Principles be similarly amended. (Settlement Agreement, sec. 4.20.1.) 3. The Undertaking Party agree that they shall not, in an official capacity in any public or industry forum, take a position contrary to those stated above. (Settlement Agreement, sec. 4.20.2.)
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4.

Each Undertaking Party shall, (i) in its online Privacy Policy or an opt-out page clearly linked thereto: maintain a link to the Network Advertising Initiative "Opt Out of Behavioral Advertising" tool, presently located at or, by http://www.network¬advertising.org/manag-ing/opt_out.asp developed website page currently represented

once it is fully implement¬ed for consumers, to the industryhttp://www.about¬ads.info/consumers/; or, on the Undertaking Party's own internet home page, maintain a link to a page with substantially the same informa¬tion and consumer options; or (ii) once it is fully implemented for consumers, display the "Advertising Option Icon" discussed in the Self-Regulatory Principles, which links to an OBA disclosure statement and opt-out mechanism. A link to the Undertaking Party's online Privacy Policy or the Advertising Option Icon shall be displayed on the home page of each Undertaking Party's U.S. consumer-oriented website(s) and on at least a significant number of those consumer-oriented web pages of the Undertaking Party's U.S. consumer-oriented website(s) on which consumer data is collected or used for advertising. (Settlement Agreement, sec. 4.20.3.) 5. If, after the Settlement becomes Final, an Undertaking Party or its agents deposit LSOs on the computers of users who visit one or more of its U.S. consumer-oriented websites or interact with its widgets or other applications on such websites, the Undertaking Party shall include, in its online Privacy Policy, a disclosure of its use of LSOs and a link to at least one website or utility offering users the ability to manage LSOs, if such website or utility
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is available. By linking to such a third-party website or utility in order to comply with this Agreement, the Undertaking Party will not assume responsibility for the functionality or any other aspect of such website or utility. If one or more of the Undertaking Party's websites, widgets, or application components may not maintain its or their full user functionality unless the user's settings permit full acceptance of LSOs, the Undertaking Party shall so disclose in its Privacy Policy. (Settlement Agreement, sec. 4.20.4.) 6. An Undertaking Party's Privacy Policy, links to which shall appear as specified above, shall include an email address or other online reporting mechanism to which members of the public can send any privacy-related concerns respecting the operation of the Undertaking Party's websites. The Undertaking Party will regularly review messages sent to this address or mechanism, but need not individually review duplicative or cumulative messages appearing to have emanated from or at the behest of the same source. (Settlement Agreement, sec. 4.20.5.) 7. 8. These provisions shall remain in effect until June 30, 2010. (Settlement Agreement, sec. 4.20.6.) Payment of Notice and Administrative Fees: The full cost of notice and administration and effectuation of the Settlement Agreement shall be paid out of the settlement fund. 9. Compensation of Class Representatives: In addition to any benefits afforded under the settlement, and in recognition of their efforts on behalf of the class, subject to Court approval, representative Plaintiffs shall each receive $1,500 as appropriate compensaPlaintiffs' Motion for Preliminary Approval of Class Action Settlement
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D.

tion for their time and effort serving as the class representatives in the litigation against Defendants. 10. Payment of Attorneys' Fees and Expenses: Defendants have agreed that a payment out of the Settlement Fund to Class Counsel, subject to Court approval, of up to twenty five percent of the settlement fund in attorneys' fees and for the reimbursement of Class Counsel's costs is fair and reasonable, and Defendants will not object to or otherwise challenge Class Counsels' application for payment of fees from the Settlement Fund if limited to such an amount. Proposed Class Counsel has, in turn, agreed not to seek more than said amount from the Court. Release

Upon the entry of a final order approving this settlement and following the expiration of the time for appeal or the entry of a decision on such appeal, class representatives and each and every member of the settlement class who have not timely filed a request to be excluded from the settlement class will release and forever discharge Quantcast, Clearspring, any of their customers which deployed the technology at issue in this case, as well as the other Defendants, the Undertaking Parties and their subsidiaries and affiliates,for their deployment of Quantcast and Clearspring technologies in any of their online content, as well as their deployment of similar technologies not provided by Quantcast or Clearspring in any of their online content, as further explained for in the attached Settlement Agreement.
III.

THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED Prior to granting preliminary approval of a settlement, the Court should de-

termine that the proposed settlement class is a proper class for settlement purposes. Manual for Complex Litigation § 21.632 (4th ed. 2004); Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997). The Court may certify a class when the plaintiffs demonstrate that the proposed class and proposed class representatives meet the
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1 following prerequisites of Rule 23(a): numerosity, commonality, typicality, and ade2 quacy of representation. Fed. R. Civ. P. 23(a)(1)­(4). After meeting the strictures of 3 Rule 23(a), the plaintiffs must then demonstrate that common questions of law or 4 fact predominate and that maintaining the suit as a class action is superior to other 5 methods of adjudication. Fed. R. Civ. P. 23(b)(3). 6

In determining whether to certify a class, courts do not inquire into the merits

7 of the plaintiffs' claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 8 (1974). As such, a court accepts the allegations of the plaintiffs' complaint as true, 9 but may consider matters beyond the pleadings to determine if the claims are suita10 ble for resolution on a class-wide basis. Celano v. Marriot Int'l, Inc., 242 F.R.D. 11 544, 548 (N.D. Cal. 2007). 12 13

A.

The Requirement of Numerosity Is Satisfied

The numerosity prerequisite is met when "the class is so numerous that join-

14 der of all members is impractical. Fed. R. Civ. P. 23(a)(1). To satisfy this require15 ment there is no specific number required, nor are plaintiffs required to state the ex16 act number of potential class members. Celano, 242 F.R.D. at 548. Generally, the 17 numerosity requirement is satisfied when the class comprises 40 or more members. 18 See id., 242 F.R.D. at 549. In this case, based on Quantcast's and Clearspring's rep19 resentations embodied in the Settlement Agreement notice provisions and in the 20 class notices themselves, the class is estimated to include most Internet users in the 21 United States, easily enough to satisfy the numerosity requirement. 22 23

B.

The Requirement of Commonality is Satisfied

The second threshold to certification requires that there be questions of law or

24 fact common to the class. Fed. R. Civ. P. 23(a)(2). "[P]laintiffs may demonstrate 25 commonality by showing that class members have shared legal issues by divergent 26 facts or that they share a common core of facts but base their claims for relief on dif27 ferent legal theories." Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir. 2007). 28
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1 "[O]ne significant issue common to the class may be sufficient to warrant certifica2 tion." Id. As alleged in this case, all class members share the common issue of hav3 ing had LSOs downloaded onto their computers, in Plaintiffs' view without disclo4 sure or consent. . 5

These common issues among class members results in common factual and (1) whether Defendants, without authorization, created

6 legal questions such as:

7 and/or manipulated Adobe Flash Player local stored objects on computers to which 8 Class Members' enjoyed rights of possession superior to those of Defendants; (2) for 9 what purposes Defendants created and/or manipulated Adobe Flash Player local 10 stored objects on Class Members' computers; (3) whether Defendants violated (i) 11 the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; (ii) the California Uniform 12 Trade Secrets Act, Civil Code § 3426; (iii) the California Computer Crime Law, Pe13 nal Code § 502; (iv) the California Unfair Competition Law, Business and Profes14 sions Code § 17200; (v) the California Consumer Legal Remedies Act, Civil Code § 15 1750; (4) whether Defendants misappropriated valuable information assets of Class 16 Members; (5) whether Defendants continue to retain valuable information assets 17 from and about Class Members; (6) what uses of such information were exercised 18 and continue to be exercised by Defendants; and (7) whether Defendants have been 19 unjustly enriched. 20

In addition, such common questions for the settlement include whether the

21 settlement is fair, and what is the proper form of notice. Accordingly, the commonal22 ity requirement is satisfied. 23 24

C.

The Requirement of Typicality is Satisfied

Rule 23 next requires that a plaintiff's claims be typical of those of the class.

25 Fed. R. Civ. P. 23(a)(3). "[T]ypicality focuses on the relationship of facts and issues 26 between the class and its representatives." Dukes, 509 F.3d at 1184 fn.12 (citation 27 omitted) ("[u]nder the rule's permissive standards, representative claims are `typical' 28
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1 if they are reasonably coextensive with those of absent class members; they need not 2 be substantially identical[;] some degree of individuality is to be expected in all cas3 es, but that specificity does not necessarily defeat typicality"). Here, Defendants' al4 leged practice of using LSOs to circumvent users' blocking or deleting of Quantcast 5 and Clearspring browser cookies and failure to provide adequate notice or choice 6 about the use of LSOs is alleged to have resulted in Plaintiffs and the proposed set7 tlement class having their privacy rights violated in breach of the state and federal 8 law. It is alleged that Plaintiffs and each proposed class member were all subjected 9 to Defendants' identical wrongful conduct in a nearly identical manner. As such, 10 Plaintiffs' claims are typical of those of the proposed class and Fed. R. Civ. P. 11 23(a)(3) is met. 12 13

D.

The Requirement of Adequate Representation is Satisfied

The final Rule 23(a) prerequisite requires that the proposed class representa-

14 tives have and will continue to "fairly and adequately protect the interests of the 15 class." Fed. R. Civ. P. 23(a)(4). "This factor requires: (1) that the proposed repre16 sentative Plaintiffs do not have conflicts of interest with the proposed class, and (2) 17 that Plaintiffs are represented by qualified and competent counsel." Dukes, 509 F.3d 18 at 1185. 19

In this case, Plaintiffs have the same interests as the proposed class mem-

20 bers--all have allegedly been wrongfully harmed by Defendants' alleged use of 21 tracking devices. Therefore, Plaintiffs have no interests antagonistic to the interests 22 of the proposed class. Further, class counsel are well respected members of the legal 23 community, have regularly engaged in major complex litigation, and have had ex24 tensive experience in consumer class action lawsuits that are similar in size, scope 25 and complexity to the present case. (See Firm Resume of KamberLaw, LLC, a copy 26 of which is attached hereto as Exhibit B.) Accordingly, both Plaintiffs and their 27 counsel have and will adequately represent the class. 28
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1 2 3

E.

The Proposed Settlement Class Meets the Requirements of Rule 23(b)(3)

Once the subsection (a) prerequisites are satisfied, Federal Rule of Civil Pro-

4 cedure 23(b)(3) provides that a class action can be maintained where the questions 5 of law and fact common to members of the class predominate over any questions af6 fecting only individuals, and the class action mechanism is superior to the other 7 available methods for the fair and efficient adjudication of the controversy. Fed. R. 8 Civ. P 23(b)(3); Pierce v. County of Orange, 519 F.3d 985, 991 n.5 (9th Cir. 2008). 9 In this case and in the context of the proposed settlement, common issues of fact and 10 law predominate. Defendants' alleged practice of using LSO's to circumvent users' 11 blocking or deleting of Quantcast and Clearspring browser cookies and failure to 12 provide adequate notice or choice about the use of LSOs is alleged to have resulted 13 in Plaintiffs and the proposed settlement class having their privacy rights violated in 14 breach of the state and federal law and is common to the class members' claims and 15 their damages and predominates over any issues applicable to any individual mem16 bers of the class. 17

In addition, the instant class action is superior to any other method available

18 to fairly, adequately, and efficiently resolve the class members' claims. Absent a 19 class action, most members of the class would find the cost of litigating their claims 20 to be prohibitive, and such multiple individual actions would be judicially ineffi21 cient. Also, because the action, with the Court's permission, will now settle, the 22 Court need not consider issues of manageability relating to trial. See Amchem, 521 23 U.S. at 620 (citation omitted) ("[c]onfronted with a request for settlement-only class 24 certification, a district court need not inquire whether the case, if tried, would pre25 sent intractable management problems, for the proposal is that there be no trial"). 26 Accordingly, common questions predominate and a class action is the superior 27 method of adjudicating this controversy. 28
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1 IV. 2 3

THE COURT SHOULD APPOINT SCOTT A. KAMBER AND DAVID STAMPLEY OF KAMBERLAW AS CLASS COUNSEL Under Rule 23, "a court that certifies a class must appoint class counsel . . .

4 [who] must fairly and adequately represent the interests of the class." Fed. R. Civ. P. 5 23(g)(1)(B). In making this determination, the Court must consider counsel's: (1) 6 work in identifying or investigating potential claims; (2) experience in handling 7 class actions or other complex litigation, and the types of claims asserted in the case; 8 (3) knowledge of the applicable law; and (4) resources committed to representing 9 the class. Fed. R. Civ. P. 23(g)(1)(A)(i­iv). 10

As discussed above, proposed class counsel have extensive experience in

11 prosecuting class actions and other complex litigation. (Stampley Decl. ¶ 9; see also 12 Exhibit B.) Further, proposed class counsel have diligently investigated and prose13 cuted this matter, dedicating substantial resources to the investigation of the claims 14 at issue in the action, and have successfully negotiated the settlement of this matter 15 to the benefit of the class. (Stampley Decl. ¶ 3.) Counsel and class representatives, 16 assisted by non-legal experts, spent over many months considering legal theories as 17 well as investigating factual and technology-related issues regarding Defendants' 18 use of LSO's to circumvent users' blocking or deleting of Quantcast and Clearspring 19 browser cookies and their related lack of adequate notice or choice about the use of 20 LSO's. (Stampley Decl. ¶ 3-4.) Accordingly, the Court should appoint Plaintiffs' 21 counsel to serve as class counsel for the proposed class pursuant to Rule 23(g) and 22 Scott A. Kamber and David Stampley of KamberLaw, LLC as class counsel. 23 V. 24 25

THE COURT SHOULD PRELIMINARILY APPROVE THE PROPOSED SETTLEMENT After certifying the settlement class, the Court should preliminarily approve

26 the settlement. The procedure for review of a proposed class action settlement is a 27 well-established two-step process. Fed. R. Civ. P. 23(e); see also Alba & Conte, 4 28
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1 Newberg on Class Actions, §11.25, at 38-39 (4th Ed. 2002). The first step is a pre2 liminary, pre-notification hearing to determine whether the proposed settlement is 3 "within the range of possible approval." Newberg, §11.25, at 38-39 (quoting Manual 4 for Complex Litigation § 30.41 (3rd ed. 1995)); In re Syncor ERISA Litig., 516 F.3d 5 1095, 1110 (9th Cir. 2008). This hearing is not a fairness hearing; its purpose, rather, 6 is to ascertain whether there is any reason to notify the class members of the pro7 posed settlement and to proceed with a fairness hearing. In re Syncor ERISA Litig., 8 516 F.3d at 1110. Notice of a settlement should be sent where "the proposed settle9 ment appears to be the product of serious, informed, non-collusive negotiations, has 10 no obvious deficiencies, does not improperly grant preferential treatment to class 11 representatives or segments of the class, and falls within the range of possible ap12 proval." In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 13 2007). The Manual for Complex Litigation characterizes the preliminary approval 14 stage as an "initial evaluation" of the fairness of the proposed settlement made by 15 the court on the basis of written submissions and informal presentation from the set16 tling parties. Manual for Complex Litigation § 21.632 (4th ed. 2004). If the court 17 finds a settlement proposal "within the range of possible approval," it then proceeds 18 to the second step in the review process--the final approval hearing. Newberg, 19 §11.25, at 38-39. The standard of scrutiny for preliminary approval is more relaxed 20 than for final approval. Armstrong v. Bd. of Schl. Dirs. of City of Milwaukee, 616 21 F.2d 305, 314 (7th Cir. 1980). 22

A strong judicial policy exists that favors the voluntary conciliation and set-

23 tlement of complex class action litigation. In re Syncor, 516 F.3d at 1101 (citing Of24 ficers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir. 1982). While the dis25 trict court has discretion regarding the approval of a proposed settlement, it should 26 give "proper deference to the private consensual decision of the parties." Hanlon v. 27 Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998). In fact, when a settlement is 28
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1 negotiated at arms' length by experienced counsel, there is a presumption that it is 2 fair and reasonable. In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 359, 380 3 (N.D. Ohio 2001). Ultimately, the Court's role is to ensure that the settlement is fun4 damentally fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2); In re Syncor, 516 5 F.3d at 1100. 6

In this case, there is no question that the proposed settlement is at least "with-

7 in the range of possible approval." Only after extended arms-length negotiations, 8 conducted under the supervision of Mr. Rodney Max, were the parties able to reach 9 an agreement as to relief for the class. (Stampley Decl. ¶ 6.) Under that agreement, 10 class members will benefit from Defendants' agreement not to employ LSOs as al11 leged in the Complaints and to provide proper notice about the use of browser cook12 ies. The settlement's formulation for allocating settlement resources, which does 13 not include compensation to members of the at-large class, is consistent with other 14 settlements resolving claims that a defendant's insufficient online notice and choice 15 resulted in violation of class members' privacy. See, e.g., In Re DoubleClick, Inc. 16 Privacy Litigation, No. 00 Civ. 0641 (NRB) (S.D.N.Y. 2001) (DoubleClick, an In17 ternet ad-serving company, revised its notice, choice, and data collection practices 18 and conducted a privacy-oriented public information campaign by distributing 300 19 million Internet banner ads); DeLise v. Fahrenheit Entm't, Civ. Action No. CV20 014297 (Cal. Sup. Ct. Marin Cty. Sept. 2001) (sellers of interactive music CD up21 dated privacy policies, added warning labels to CDs, and purged previously collect22 ed data). 23

A comparison of the potential costs and benefits of consummating the Settle-

24 ment Agreement versus continuing to prosecute this matter requires consideration of 25 a number of factors. These factors include the strengths of the Plaintiffs' claims and 26 ability to prevail at trial--in which class counsel remain confident--and the relief 27 Plaintiffs anticipate from a successful trial outcome. Countervailing considerations 28
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1 include the legal and factual burdens Plaintiffs would bear in bringing the matter to 2 trial, the defenses Defendants would assert--in which Defendants have expressed 3 continued confidence (Stampley Decl. ¶ 5), the complexities of class action practice, 4 and the risks that inevitably attend litigation, including the risk that Plaintiffs will 5 not ultimately prevail and so will not secure any post-trial relief. Even if successful 6 in prosecuting this matter, Plaintiffs would have forfeited the valuable, additional re7 lief now being offered at Defendants' discretion, and which could not be compelled 8 from Defendants following trial. 9

In advocating for approval of the Settlement Agreement, class counsel are

10 aided by their collective experience and awareness of the costs and risks described 11 above and are mindful of the interests of Plaintiffs and the putative class, particular12 ly given the proposed settlement's substantial and prompt relief and meaningful 13 long-term benefits. It is apparent that the proposed settlement serves the best inter14 ests of class members. Accordingly, this settlement easily falls well "within the 15 range of possible approval" and merits the Court's preliminary approval. 16 VI. 17

THE PROPOSED PLAN OF CLASS NOTICE Rule 23(c)(2)(B) provides that, "[f]or any class certified under Rule 23(b)(3),

18 the court must direct to class members the best notice practicable under the circum19 stances, including individual notice to all members who can be identified through 20 reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). Rule 23(e)(1) similarly says, "The 21 court must direct notice in a reasonable manner to all class members who would be 22 bound by a proposed settlement, voluntary dismissal, or compromise." Fed. R. Civ. 23 P. 23(e)(1). Notice is "adequate if it may be understood by the average class mem24 ber." Newberg on Class Actions, §11.53, at 167 (4th Ed. 2002). 25

The proposed settlement includes the parties agreement on providing notice

26 through publication as well as a dedicated website. (Settlement Agreement, secs. 27 28
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1 4.1-4.3.) A notice plan will be submitted to the Court prior to the hearing on this 2 Motion. 3 VII. 4

CONCLUSION For the foregoing reasons, Plaintiffs respectfully ask that the Court grant pre-

5 liminary approval of the proposed Settlement Agreement and enter the proposed or6 der separately submitted herewith (a copy of which is Exhibit A.1 to the Settlement 7 Agreement), and grant such further relief the Court deems reasonable and just. 8 9 DATED: December 3, 2010 10 11 12 13 14 15 16 17 18 19 Avi Kreitenberg (SBN 266571) 20 [e-mail] 21 1180 South Beverly Drive, Suite 601 22 Los Angeles, California 90035 23 Facsimile: 24

KAMBERLAW, LLC s/Scott A. Kamber_________ Scott A. Kamber (pro hac vice) Scott A. Kamber (pro hac vice) [e-mail] David A. Stampley (pro hac vice) [e-mail] KamberLaw, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] Interim Counsel for the Class

KamberLaw, LLP

Telephone: [phone] [phone]

Joseph H. Malley (not admitted) 25 [e-mail] Law Office of Joseph H. Malley 26 1045 North Zang Blvd Dallas, TX 75208 27 Telephone: [phone]
28
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David Parisi (SBN 162248) [e-mail] Suzanne Havens Beckman (SBN 188814) [e-mail] Parisi & Havens LLP 15233 Valleyheart Drive Sherman Oaks, California 91403 Telephone: [phone]

10

Majed Nachawati 7 [e-mail] Fears Nachawati Law Firm 8 4925 Greenville Ave, Suite 715 9 Dallas, Texas 75206 Telephone: [phone] [e-mail] Wilson Trosclair & Lovins, P.L.L.C. Telephone: [phone]

11 Jeremy Wilson

12 Kenneth P. Trosclair

13 [e-mail]

14 302 N. Market St., Suite 510 15 Dallas, Texas 75202 16 17 18 19 20 21 22 23 24 25 26 27 28

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