"The Apple iPod iTunes Anti-Trust Litigation"

Filing 703

Declaration of Alexandra S. Bernay in Support of 702 Brief, Renoticed Joint Propsal Regarding Notice Plan filed bySomtai Troy Charoensak, Mariana Rosen, Melanie Tucker. (Attachments: # 1 Exhibit 1-6)(Related document(s) 702 ) (Bernay, Alexandra) (Filed on 3/23/2012)

EXHIBIT 1

Legal Notice

If You Purchased an Apple iPod
Directly from Apple Inc.
Between September 12, 2006
and March 31, 2009
You could be affected by a class-action lawsuit against
Apple Inc. The Court ordered this notice, allowed the
case to proceed as a class action on behalf of a “Class,”
and has appointed attorneys as Class Counsel. The
Court has not decided that Apple did anything wrong.
Apple has not been ordered to pay any money. There
has been no settlement. There is no money available
now and no guarantee that there will be.
What is this case about?
The lawsuit claims that Apple violated state and federal
laws by issuing certain software updates in 2006 for
its iPods that prevented iPods from playing songs not
purchased from iTunes, and that these updates caused
prices for iPods to be higher than they would have
been. Apple denies it did anything wrong and asserts
that the updates improved its products, were good
for consumers, and had no effect on iPod prices. The
lawyers for the Class will have to prove their claims in
Court.
Are you included?
You are a member of the Class if you purchased an iPod
directly from Apple (through an Apple retail store or
Apple online store or as a reseller) between September
12, 2006 and March 31, 2009. A list of included iPod
models is available at www.ipodlawsuit.com.
What are your options?
To stay in the Class, you do not have to do anything
now. If you do nothing, you will be bound by the
Court’s orders and will lose any right you may have
to sue Apple over the claims in this case. If you do
not want to be a Class Member or to be bound by
what the Court does and want to keep any rights you
may have to sue Apple over the claims in this case,
you need to exclude yourself. To be excluded, you
must send a letter to Apple iPod iTunes Antitrust
Litigation, PO Box 8083, Faribault, MN 550219438 that includes your name, address and a request
to be excluded from In re Apple iPod iTunes Antitrust
Litigation, 05cv00037 (N.D. Cal). If excluded, you
cannot get money or benefits that Plaintiffs may obtain
if any are awarded. The deadline to exclude yourself is
MONTH 00, 2012.
Where to get more information?
This notice is only a summary. For more information
visit the website or call the toll-free number listed
below.

For more information: 1-877-760-8875
www.ipodlawsuit.com

EXHIBIT 2

United States District Court
for the Northern District of California
In re Apple iPod iTunes Antitrust Litigation,
Case No. C 05-00037 JW

NOTICE OF PENDENCY OF CLASS ACTION
TO:

ALL PERSONS OR ENTITIES IN THE UNITED STATES WHO PURCHASED
ONE OF THE LISTED IPOD MODELS DIRECTLY FROM APPLE BETWEEN
SEPTEMBER 12, 2006 AND MARCH 31, 2009 (THE “CLASS”).
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR
RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THIS LITIGATION.

This Notice has been sent to you pursuant to an Order of the United States District Court for
the Northern District of California. The purpose of this Notice is to inform you that you have been
identified as a potential member of the Class described above so that you can decide whether to
remain a Class Member or to exclude yourself or your company from the Class. If you want to stay
in this Class Action, you need not do anything now, and you will be bound by the Court’s rulings in
the lawsuit. If you do not want to participate in this Class Action or have your rights affected by it,
you must request exclusion as described in this notice by [Month xx, 2012].
This is not a solicitation from a lawyer.
This Notice is not an expression of any opinion by the Court about the merits of any of
the claims or defenses asserted by any party to this litigation. The Court has not decided whether
Defendant Apple Inc. (“Apple”) has done anything wrong. Apple has not been ordered to pay
any money. There has been no settlement.
I.

SUMMARY OF THE LITIGATION

Apple sells iPods directly to customers through its online and retail stores and directly to
Apple authorized resellers. The lawsuit claims that Apple violated federal and state laws by issuing
software updates in 2006 for its iPod that prevented iPods from playing songs not purchased on
iTunes. The lawsuit claims that the software updates caused iPod prices to be higher than they
otherwise would have been. Apple denies that it did anything wrong and asserts that the software
updates challenged by Plaintiffs improved its products, were good for consumers, and had no effect
on iPod prices. The Court has not yet decided whether Plaintiffs or Apple is correct.
On November 22, 2010, the Court allowed the case to proceed as a class action for all
persons and entities that purchased certain iPod models between September 12, 2006 and March 31,
2009. The specific models of iPods covered by the Class Definition can be found at
www.ipodlawsuit.com.

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The Court appointed Plaintiffs as Class representatives, appointed Robbins Geller Rudman &
Dowd LLP as Class Counsel, and directed that this Notice be sent to potential Class Members
informing them of the pending litigation.
II.

EXAMINATION OF PAPERS

This Notice is just a summary and does not describe all of the details of the litigation. For
more details about the matters discussed in this Notice, you may desire to review certain documents
related to the litigation. Several documents, including the Complaint, Apple’s Answer to the
Complaint and the Court’s Order certifying the class are available for review at
www.ipodlawsuit.com. The documents filed in the case may also be inspected during business hours
at the office of the Clerk of the United States District Court for the Northern District of California,
San Francisco Division, 450 Golden Gate Avenue, San Francisco, CA 94102, or by visiting the
Court’s Public Access to Court Electronic Records (“PACER”) website at
https://ecf.cand.uscourts.gov/cand/index.html.
Additional information can also be obtained from the Notice Administrator, Rust Consulting,
Inc. by calling 1-877-760-8875.
III.

TO REQUEST EXCLUSION FROM THE LITIGATION
You have to decide whether to stay in the Class or ask to be excluded by [DATE].

You do not need to do anything to be a member of the Class and to participate in any
recovery the Plaintiffs may obtain for the Class and you will not incur any cost for doing so. As a
Class Member, you will be represented by Plaintiffs and Class Counsel. However, if you choose,
you may enter an appearance through your own counsel, at your expense. If you remain a member
of the Class, you may not be permitted to pursue an individual action against Apple regarding the
subject matter of this litigation.
If you do not want to remain a Class Member, if you do not want to be bound by what the
Court does, or if you want to retain your right to pursue your own independent action against Apple
for the claims in this case at your own expense, you must ask to be excluded from this Class Action.
To ask to be excluded (which is the same as removing yourself from the Class or “opting-out”), you
must send an “Exclusion Request” in the form of a letter sent by mail, to the Notice Administrator at
Apple iPod iTunes Antitrust Litigation, P.O. Box 8083, Faribault, MN 55021-9438 stating that you
want to be excluded from In re Apple iPod iTunes Antitrust Litigation. Your “Exclusion Request”
should include your name and address. To be valid, your letter asking to be excluded from the Class
must be signed and postmarked no later than [DATE].

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If you properly submit a timely request to be excluded from the Class, you will not be bound
by what the Court does and will not be eligible to receive any benefits that Plaintiffs may ultimately
obtain in the case through judgment or settlement. You will, however, retain whatever legal rights
you may have against Apple with regard to the claims that are the subject of this litigation.
DO NOT CALL THE COURT OR THE CLERK’S OFFICE
REGARDING THIS NOTICE.
BY ORDER OF THE COURT.
Dated: _________________________
Honorable Chief Judge James Ware
United States District Court
for the Northern District of California

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EXHIBIT 3

United States District Court for the Northern District of California

If you purchased one of the listed iPod models directly
from Apple between September 12, 2006 and
March 31, 2009, a class-action lawsuit may affect your
rights.
A court authorized this notice. This is not a solicitation from a lawyer.
•

Apple Inc. (“Apple”) sells iPods directly to customers through its online and retail
stores and directly to Apple authorized resellers. A lawsuit has been filed against
Apple claiming that software updates Apple issued in 2006 for its iPod caused iPod
prices to be higher than they otherwise would have been. Apple denies that the
software updates had any effect on iPod prices. The Court has not yet decided
whether Plaintiffs or Apple is correct. Apple has not been ordered to pay any money.
There has been no settlement.

•

The Court has allowed the lawsuit to proceed as a class action on behalf of all entities
or persons who purchased certain iPod models between September 12, 2006 and
March 31, 2009. The specific models (“Designated Apple iPods”) are listed below at
pages 3-4.

•

The Court has not decided whether Apple has in fact violated the law. The sole
purpose of this notice is to inform you of the lawsuit so that you can make an
informed decision as to whether you should remain in or opt out of this class action.
There is no money available now, and no guarantee that there will be. However,
your legal rights are affected, and you have a choice to make now:

YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
Stay in this lawsuit. Await the outcome. Give up certain
rights.

DO NOTHING

ASK TO BE
EXCLUDED

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By doing nothing, you keep the possibility of sharing in any
recovery (monetary or otherwise) that may come from a trial or
a settlement. But you give up any right you may have to sue
Apple separately about the same legal claims in this lawsuit, and
you will be bound by the outcome of this case.
Get out of this lawsuit. Get no benefits from it. Keep rights.
If you ask to be excluded you will not be bound by what the
Court does in this case and will keep any right you might have to
sue Apple separately about the same legal claims in this lawsuit.

If a recovery is later awarded in this case, you would not share in
that recovery.
•

Your options are explained in more detail in this notice. To be excluded, you must
act before [DATE].

WHAT THIS NOTICE CONTAINS
BASIC INFORMATION.............................................................................
1.
What is this lawsuit about?
2.
Why is this a class action?

PAGES 2-3

WHO IS IN THE CLASS............................................................................
3.
Who is included in the Class?
4.
What if I’m still not sure if I am included in the Class?

PAGES 3-4

THE CLAIMS IN THE LAWSUIT ...........................................................
What are Plaintiffs asking for?
5.
6.
Is there any money available now?

PAGE 4

YOUR RIGHTS AND OPTIONS...............................................................
7.
What happens if I do nothing at all?
8.
Why would I ask to be excluded?
How do I ask the Court to exclude me from the Class?
9.

PAGE 5

THE LAWYERS REPRESENTING YOU ...............................................
10.
Do I have a lawyer in this case?
11.
How will the lawyers be paid?

PAGE 5

GETTING MORE INFORMATION.........................................................
Where can I get more information?
12.

PAGE 6

BASIC INFORMATION
1. What is this lawsuit about?
The lawsuit claims that Apple violated federal and state laws by issuing software updates in 2006 for
its iPod that prevented iPods from playing songs not purchased on iTunes. The lawsuit claims that
the software updates caused iPod prices to be higher than they otherwise would have been. Apple
denies that it did anything wrong and asserts that the software updates challenged by Plaintiffs
improved its products, were good for consumers, and had no effect on iPod prices.

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The Court in charge of the case is the United States District Court for the Northern District of
California, and the case is known as In re Apple iPod iTunes Antitrust Litigation, 05cv00037 - JW.
The people who sued are called Plaintiffs, and Apple is called the Defendant.
The Court has not yet decided whether Plaintiffs or Apple is correct.
2. Why is this a class action?
Three individuals who bought iPods have sued Apple seeking to recover money for themselves and
other people who bought iPods. On November 22, 2011, the Court allowed the case to proceed as a
class action for all persons and entities that purchased one of the iPod models, listed below, directly
from Apple between September 12, 2006 and March 31, 2009. All these people are a Class or Class
Members. The Court will resolve the issues in the case for all Class Members, except for those who
choose to exclude themselves from the Class. United States District Court Chief Judge James Ware
is in charge of this class action.
More information about why the Court is allowing this lawsuit to be a class action is in the Order
Granting Plaintiffs’ Motion for Class Certification available at www.ipodlawsuit.com.
WHO IS IN THE CLASS?
3. Who is included in the Class?
The Court decided that everyone who fits the following description is a Class Member: All persons
or entities in the United States (excluding federal, state and local governmental entities, Apple, its
directors, officers and members of their families) who purchased one of the iPod models listed below
directly from Apple between September 12, 2006 and March 31, 2009 (“Class Period”).
A list of iPod models covered by the Class Definition are as follows:
•

iPod Standard, Classic, Special Models
iPod (5th generation) 30 GB
iPod (5th generation) 80 GB
iPod U2 Special Edition 30 GB
iPod Classic 120 GB
iPod Classic 80 GB
iPod Classic 160 GB
iPod (5th generation) 60 GB

•

iPod shuffle Models
iPod shuffle (2nd generation) 1 GB
iPod shuffle (2nd generation) 2 GB
iPod shuffle (3rd generation) 4 GB
iPod shuffle (1st generation) 1 GB
iPod shuffle 512 MB

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•

iPod touch Models
iPod touch 8 GB
iPod touch 16 GB
iPod touch 32 GB
iPod touch (2nd generation) 8 GB
iPod touch (2nd generation) 16 GB
iPod touch (2nd generation) 32 GB

•

iPod nano Models
iPod nano (2nd generation) 2 GB
iPod nano (2nd generation) 4 GB
iPod nano (2nd generation) 8 GB
iPod nano (3rd generation) 4 GB
iPod nano (3rd generation) 8 GB
iPod nano (4th generation) 4 GB
(Apple retail sales only during the class period).
iPod nano (4th generation) 8 GB
iPod nano (4th generation) 16 GB
iPod nano (1st generation) 1 GB
iPod nano (1st generation) 2 GB
iPod nano (1st generation) 4 GB

4. What if I’m still not sure if I am included in the Class?
If you are still not sure whether you are included, you can get more information at
www.ipodlawsuit.com, or get free help by calling or writing the lawyers in this case, at the phone
number or address listed in Question 12.
THE CLAIMS IN THE LAWSUIT
5. What are Plaintiffs asking for?
Plaintiffs are seeking to recover money for themselves and the Class based on Plaintiffs’ claim that
Apple’s software updates violated federal and state antitrust laws and caused iPod prices to be higher
than they otherwise would have been. Apple claims that Plaintiffs should recover no money because
it has not violated the law and the software updates challenged by Plaintiffs improved its products,
were good for consumers, and did not increase iPod prices.
6. Is there any money available now?
No money is available now because the Court has not yet decided whether Apple has done anything
wrong, and the two sides have not settled the case. There is no guarantee that any money will ever
be available. If it is, you will be notified about your rights regarding any recovery.

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YOUR RIGHTS AND OPTIONS
You have to decide whether to stay in the Class or ask to be excluded before the trial, and you have
to decide this prior to [DATE].
7. What happens if I do nothing at all?
If you do not do anything now you will remain a member of the Class. If you stay in the Class and
the Plaintiffs obtain benefits, either as a result of a trial or a settlement, you will be notified about
how to seek a share of those benefits (or how to ask to be excluded from any settlement). If you do
nothing, you will be bound by the Court’s orders and will lose any right you may have to sue Apple
over the claims in this case. You will also be legally bound by all of the Orders the Court issues and
judgments the Court makes in the class action, including any judgment against Plaintiffs and in favor
of Apple.
8. Why would I ask to be excluded?
If you would like to pursue your own lawsuit or claim against Apple for the claims in this case, do
not want to be bound by what the Court does in this case, or if you simply do not want to be part of
the Class pursuing claims against Apple, you need to ask to be excluded from the Class. If you
exclude yourself from the Class – which also means to remove yourself from the Class, and is
sometimes called “opting-out” of the Class – you will not be legally bound by the Court’s judgments
in this class action, and will keep any right you may have to later sue Apple for the claims being
made in the case. If you exclude yourself you also will not get any benefits from this lawsuit if there
are any.
9. How do I ask the Court to exclude me from the Class?
To ask to be excluded, you must send an “Exclusion Request” in the form of a letter sent by mail to
Apple iPod iTunes Antitrust Litigation, P.O. Box 8083, Faribault, MN 55021-9438, stating that you
want to be excluded from In re Apple iPod iTunes Antitrust Litigation. Your “Exclusion Request”
should include your name and address. To be valid, your letter asking to be excluded from the Class
must be signed and postmarked no later than [DATE].
THE LAWYERS REPRESENTING YOU
10. Do I have a lawyer in this case?
The Court has appointed Robbins Geller Rudman & Dowd LLP as Class Counsel in this case. The
Court has determined that Robbins Geller Rudman & Dowd LLP is qualified to represent you and all
other Class Members. You will not be charged for these lawyers. The lawyers handling the case are
experienced in handling similar cases. More information about the law firm is available at
www.rgrdlaw.com.
11. How will the lawyers be paid?
If Class Counsel recovers any money for the Class, they will ask the Court for payment of their fees
and reimbursement of their litigation costs. You will not have to pay these fees and expenses out of
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your own pocket. If the Court grants Class Counsel’s request, the fees and expenses will be
deducted from any money obtained for the Class or paid separately by Apple.
GETTING MORE INFORMATION
12. Where can I get more information?
If you want more detailed information, you may visit the website www.ipodlawsuit.com, where you
will find the Court’s Order Granting Plaintiffs’ Motion for Class Certification and other case-related
documents or you may call 1-877-760-8875.
Class Counsel:
Bonny E. Sweeney
Thomas R. Merrick
Alexandra S. Bernay
Carmen A. Medici
ROBBINS GELLER RUDMAN & DOWD LLP
655 W Broadway, Suite 1900
San Diego, CA 92101
Telephone: [phone]
Counsel for Defendant Apple:
Robert A. Mittelstaedt
Craig E. Stewart
David C. Kiernan
JONES DAY
555 California Street
26th Floor
San Francisco, CA 94104
Telephone: [phone]

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EXHIBIT 4

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 1 of 16

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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IN RE CLASSMATES.COM
CONSOLIDATED LITIGATION

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MASTER CASE NO. C09-45RAJ
ORDER
(APPLIES TO ALL ACTIONS)

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I. INTRODUCTION

This matter comes before the court on Plaintiffs’ motion (Dkt. # 73) for
preliminary approval of a settlement with Defendants, including preliminary certification
of a settlement class. Defendants do not oppose the motion. The court GRANTS the
motion subject to the limitations stated below, and sets a hearing on October 27, 2010, at
10:00 a.m. to determine whether the settlement should be made final.

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II. BACKGROUND

Defendants, who the court will refer to collectively as “Classmates,” operate a
website at www.classmates.com. The website contains records of millions of people
organized according to high school graduating class, college graduating class, and other
similar groupings. People gain various levels of access to the records by registering for
unpaid and paid Classmates memberships.
This consolidated class action is an amalgamation of two suits that Anthony
Michaels and Xavier Vasquez filed challenging various Classmates practices. The court
consolidated the suits, and Mr. Michaels’ counsel was appointed interim class counsel.

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ORDER – 1

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 2 of 16

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At the court’s direction, class counsel filed an amended complaint to govern all claims in

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the consolidated action. They dropped Mr. Vasquez as a Plaintiff and added David

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Catapano. The consolidated complaint asserts only Washington law causes of action,

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including claims under the Washington Consumer Protection Act (“CPA”) and the

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Washington Commercial Electronic Mail Act (“CEMA”).

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The consolidated complaint describes Classmates’ deceptive practices to induce

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users to pay for subscriptions. In one such practice, Classmates sent e-mails to unpaid

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members informing each of them that someone with whom they went to high school or

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college or the like was seeking contact with them or had visited their Classmates profile.

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Each e-mail informed the member that he could communicate with that person by

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upgrading to a paid membership. Plaintiffs allege that they paid for a membership in

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response to this practice, only to discover that no one (or at least no one known to them)

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had visited their profile or sought contact with them. Numerous variations on this

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deceptive practice are described in the consolidated complaint.

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The parties propose a settlement in which Mr. Michaels and Mr. Catapano

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(residents of California and Nevada, respectively) will serve as representatives of a

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nationwide class of all registered Classmates users since October 30, 2004. In addition,

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they will represent a subclass of approximately 3.1 million “Gold Members.” A gold

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membership is a paid classmates.com membership, and is apparently the membership

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package to which Plaintiffs subscribed because of the deceptive Classmates practices

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described above. Plaintiffs define the subclass to include only Classmates users who

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likely became Gold Members in response to one of Classmates’ deceptive practices.

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Although the court follows Plaintiffs’ lead in referring to these Gold Members as a

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“subclass,” the court notes that the class is defined so that it excludes all subclass

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members. The proposed class and subclass thus share no members in common. The

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court refers to the two mutually exclusive classes as the “main class” and the subclass.

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ORDER – 2

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 3 of 16

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When referring to all members of both classes, the court will use the generic term “class

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members.”

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The principal features of the settlement are a Classmates credit for main class

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members, a credit or cash payment to subclass members, and a three-year injunction

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targeting the challenged Classmates practices. Main class members may claim a $2

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credit to be used toward a paid Classmates membership. Subclass members may claim

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the credit, or they may claim a $3 cash payment, up to a maximum cash outlay of $9.5

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million. The injunction requires Classmates to include disclosures on its website about

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the “Guestbook” feature on which many of its allegedly deceptive practices are focused,

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and also include disclosures to enable users to better protect their personal information.

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In exchange, Classmates will receive a broad release of all claims from class

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members, including not only the Washington law claims asserted in the consolidated

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complaint, but claims under federal law or any state’s law. Classmates admits no

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wrongdoing in the settlement.

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Class counsel will seek attorney fees. They will request no more than $1.3 million

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in attorney fees, although they may also seek costs, as well as a $2500 incentive payment

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for Mr. Catapano and Mr. Michaels.

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Notice to class members will be accomplished electronically via the last e-mail

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address that each class member provided to Classmates, and also via a Wall Street

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Journal advertisement. Because of the large number of class members, Plaintiffs have

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requested at least 90 days between preliminary approval of their settlement and the

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deadline for completing notice. Main class and subclass members would then be required

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to submit a claim form (with the option to do so via e-mail) if they wish to claim either

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the credit or the cash payment.

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The court now turns to its preliminary approval analysis.

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ORDER – 3

Case 2:09-cv-00045-RAJ Document 76

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III. ANALYSIS

The parties’ agreement to settle this matter is not itself a sufficient basis for
approving the settlement. The settlement would require the court to certify a class and
dispose of the claims of its members. The court has an independent obligation to protect
class members. Silber v. Mabon, 957 F.2d 697, 701 (9th Cir. 1992). Even for a class
certified solely for purposes of settlement, the court must ensure that the class and its
proposed representatives meet the requirements of Fed. R. Civ. P. 23. Staton v. Boeing
Co., 327 F.3d 938, 952 (9th Cir. 2003). In addition, the court must ensure that the
settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2).
Both the main class and subclass satisfy the four prerequisites of Rule 23(a). The
parties estimate that there are 3.1 million subclass members. The consolidated complaint
estimates the number of main class members at about 50 million. Both the subclass and
the main class therefore satisfy the numerosity requirement of Rule 23(a)(1).
The class members’ claims satisfy the minimal commonality standard of Rule
23(a)(2). Determining whether Classmates’ inducements for paid memberships violated
the CPA or CEMA presents numerous common questions of law and fact. A single
common question suffices for purposes of Rule 23(a)(2). E.g., Haley v. Medtronic, Inc.,
169 F.R.D. 643, 648 (C.D. Cal. 1996).
Mr. Catapano and Mr. Michaels have claims that are typical of the claims of
subclass members. They allege that they paid for memberships as a result of Classmates’
deceptive practices, and the subclass is defined such that it is likely that other subclass
members did so as well. Their claims are not obviously typical of main class members,
however, because unlike them, Mr. Catapano and Mr. Michaels succumbed to deceptive
Classmates practices. All class members, however, were targets of the deceptive
practices, and Mr. Catapano and Mr. Michaels are typical main class members in at least
that regard. The court concludes that the main class and subclass satisfy the typicality
requirement of Rule 23(a)(3).

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Filed 04/19/10 Page 4 of 16

ORDER – 4

Case 2:09-cv-00045-RAJ Document 76

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Filed 04/19/10 Page 5 of 16

The court also finds that Mr. Catapano and Mr. Michaels are adequate class

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representatives, as Rule 23(a)(4) requires. To the extent that other class members have

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claims based on a sufficiently similar factual predicate, the record reflects that Mr.

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Catapano and Mr. Michaels can adequately represent them. Subject to the same

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limitation, interim class counsel are adequate to represent the main class and subclass.

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See Fed. R. Civ. P. 23(g).

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To the extent class members have sufficiently different claims against Classmates,

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however, the class representatives’ intent to force them to release all of their claims is

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suspect. See, e.g., Hesse v. Sprint Corp., No. 08-35235, 2010 U.S. App. LEXIS 5017, at

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*9-24 (9th Cir. Mar. 10, 2010) (concluding that representational inadequacy partially

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invalidated release of claims in a nationwide class action settlement). In Hesse, the court

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found that a broad release imposed on members of a nationwide class action had no

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preclusive effect on a later class action against the same defendant. Id. at *9 (“We

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conclude . . . that the release cannot preclude the Washington Plaintiffs’ claims because

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the [prior] Class Plaintiff did not adequately represent the Washington Plaintiffs and

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because the Washington Plaintiffs’ claims are based on a set of facts different from those

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underlying the claims settled in the [prior] settlement.”). The release in Hesse contained

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language much like the release Plaintiffs propose here. Id. The court makes no finding

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as to whether Plaintiffs are adequate representatives of class members for any claims

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other than those sufficiently similar, as described in Hesse, to those asserted in the

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consolidated complaint. The court need not demand a narrower release, however,

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because a future court called upon to determine the preclusive effect of this settlement

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will narrow it appropriately. To the extent the release is too broad, Classmates may

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obtain less than it bargained for.

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The court concludes that the main class and subclass meet the requirements of

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Rule 23(b)(3). Typically, Rule 23(b)(3) serves to ensure that a class action is the best

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ORDER – 5

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 6 of 16

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means of resolving a dispute. When the parties settle a class action, many of the concerns

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articulated in the rule do not apply, because a negotiated resolution moots some of the

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practical difficulties of resolving the dispute on a classwide basis. Amchem Prods., Inc.

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v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only

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class certification, a district court need not inquire whether the case, if tried, would

6

present intractable management problems.”). The common legal and factual questions

7

related to Classmates allegedly deceptive tactics predominate over any individualized

8

concerns. There is nothing in the record that suggests this court is an undesirable forum

9

for resolving those claims.

10

Plaintiffs propose to use e-mail to notify class members of class certification, this

11

settlement, and their obligations to submit a claim for either a credit or cash payment. E-

12

mail notice is an excellent option here, where every class member provided an e-mail

13

address to Classmates in the process of registering as a user. Given the large number of

14

class members, e-mail notice also avoids the substantial expense of sending notice by

15

mail. The court finds that Plaintiffs’ notice procedure satisfies the requirements of Rule

16

23(c)(2)(B) (mandating “the best notice that is practicable under the circumstances”).

17

The court also appreciates that Plaintiffs have enabled class members to return claim

18

forms via e-mail. This is an important benefit, as the cost of postage would be a large

19

portion of the relief that Classmates is offering to each class member. The court notes,

20

however, that Plaintiffs have not given class members the option to opt out of the class

21

via e-mail. The court sees no obvious reason for this. It thus orders Plaintiffs to enable

22

class members to opt out via e-mail. If this requirement presents a problem, Plaintiffs

23

shall provide a statement as soon as possible explaining why.

24

The court has reviewed Plaintiffs’ proposed forms of notice to main class and

25

subclass member. Those notices are adequate, but Plaintiffs must modify them to reflect

26

this order, including the order to permit class members to opt out via e-mail.

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28

ORDER – 6

Case 2:09-cv-00045-RAJ Document 76

1

Filed 04/19/10 Page 7 of 16

Finally, Plaintiffs must allow the court to review the notice, opt-out, and claim

2

submission features in their electronic format. Accordingly, the court directs class

3

counsel to arrange for the court to receive electronic notice as soon as the technology is

4

enabled. Counsel shall also notify the court when the settlement website they have

5

promised to create becomes “live.”

6

The court now considers whether the settlement is “fair, reasonable, and adequate”

7

as required by Rule 23(e)(2). The court begins by considering the financial relief. As to

8

main class members, Classmates’ $2 credit toward a paid membership is reasonable.

9

Indeed, main class members have suffered no apparent financial harm, and thus

10

Classmates’ agreement to offer them even modest compensation is fair. As to subclass

11

members, the record shows that they paid between $10 and $40 to become Gold

12

Members, with an average price around $24. Classmates’ offer of $3 is about an eighth

13

of what the average subclass member paid. This is a reasonable discount, given the

14

uncertainty of obtaining any recovery if this case went to trial.

15
16
17

The injunctive relief is an additional benefit to all class members. It requires
Classmates to make disclosures that would blunt future deceptive marketing practices.
The court’s final observation regarding the fairness and adequacy of the settlement

18

concerns attorney fees for class counsel. As the court just noted, the relief to class

19

members is not, standing alone, unreasonable. Collectively, however, it is not certain

20

what Classmates will pay to settle this action. There is no indication that its offer of

21

credit toward paid memberships will hurt its bottom line. To the extent that the credit

22

offer induces persons to pay for memberships that they otherwise would not, it may be a

23

financial boon to Classmates. The offer of cash to subclass members is different, but

24

perhaps not substantially so. For Classmates to pay out cash awards equaling the $9.5

25

million cap on the settlement, every one of the approximately 3.1 million subclass

26

members would have to make a claim for the $3 payment. As the parties are no doubt

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ORDER – 7

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 8 of 16

1

aware, it is exceedingly unlikely that subclass members will do so. In the court’s

2

experience, class members typically do not bother to make claims for a few dollars of

3

compensation. It is therefore highly likely that Classmates will pay only a tiny fraction of

4

$9.5 million. Class counsel has indicated that they will seek up to $1.3 million in

5

attorney fees. That amount is about 14% of $9.5 million, and perhaps not coincidentally

6

just below the 15% limit on attorney fees that class counsel agreed to in the event it

7

sought fees as a percentage of a common fund awarded to class members. The court

8

cannot forecast what counsel will request for attorney fees, and cannot forecast the

9

methodology they will use to buttress that request. The court merely notes that if counsel

10

move for an award of attorney fees that is disproportionate to the payout to class

11

members, they should acknowledge as much, and explain why such a result is justified.

12

Thus, Plaintiffs should plan on obtaining information from the settlement administrator

13

regarding the number of class members making claims for cash payments, so that they

14

may submit that information in conjunction with the final approval process.

15

For all of the reasons stated above, the court preliminarily approves this class

16

action settlement. The remainder of this order reproduces Plaintiffs’ proposed order,

17

except that it inserts dates where appropriate, and modifies paragraph 8 to provide class

18

members the option to opt out of the class via email. The preceding portion of this order

19

shall control in the event of any conflict between Plaintiffs’ language and the court’s

20

language.

21

IV. ORDER

22

This matter comes before the Court on Plaintiffs’ Motion for Preliminary

23

Approval of Class Action Settlement. The parties have agreed, subject to final approval

24

by this Court following notice to the Settlement Class and Settlement Subclass, as

25

defined below, to settle this action upon the terms and conditions set forth in the

26

Settlement Agreement. The Court has reviewed the Class Action Settlement Agreement,

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28

ORDER – 8

Case 2:09-cv-00045-RAJ Document 76

1

Filed 04/19/10 Page 9 of 16

as well as all files, records, and proceedings to date in this matter.

2

IT IS HEREBY ORDERED:

3

1.

4

Preliminary Approval of Proposed Settlement. The Settlement

Agreement is preliminarily approved as fair, reasonable and adequate. The Court also

5
6

finds that notice to members of the Settlement Class and Settlement Subclass should be

7

provided and a final fairness hearing on the Settlement Agreement should be held as set

8

forth in this Order.

9

2.

Stay of Proceedings. All proceedings in this action are hereby stayed and

10
11
12
13
14

suspended until further order of the Court, except such actions as may be necessary to
implement the Settlement Agreement and this Order.
3.

Class Findings. Solely for the purposes of the Settlement Agreement, the

Court preliminarily finds that the requirements of the Federal Rules of Civil Procedure,

15
16
17
18
19

the United States Constitution, the Rules of the Court and any other applicable law have
been met as to the Settlement Class and Settlement Subclass defined below, in that:
(a)

The Court preliminarily finds for purposes of settlement only that, as

required by FED. R. CIV. P. 23(a)(1), the Settlement Class and Settlement Subclass are

20
21

ascertainable from records maintained by Defendants, and the members of the Settlement

22

Class and Settlement Subclass are so numerous that their joinder before the Court would

23

be impracticable.

24
25
26
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28

ORDER – 9

Case 2:09-cv-00045-RAJ Document 76

1

(b)

Filed 04/19/10 Page 10 of 16

The Court preliminarily finds for purposes of settlement only that, as

2

required by FED. R. CIV. P. 23(a)(2), there are one or more questions of fact and/or law

3

common to the Settlement Class and the Settlement Subclass.

4

(c)

The Court preliminarily finds for purposes of settlement only that, as

5
6
7
8
9

required by FED. R. CIV. P. 23(a)(3), the claims of the Plaintiffs are typical of the claims
of the Settlement Class and Settlement Subclass.
(d)

The Court preliminarily finds, for purposes of settlement only, as required

by FED. R. CIV. P. 23(a)(4), that the Plaintiffs will fairly and adequately protect the

10
11

interests of the Settlement Class and the Settlement Subclass in that: (i) the interests of

12

the Plaintiffs and the nature of their alleged claims are consistent with those of the

13

members of the Settlement Class and Settlement Subclass, (ii) there appear to be no

14

conflicts between or among the Plaintiffs and the Settlement Class or Settlement

15
16

Subclass, and (iii) the Plaintiffs and the members of the Settlement Class and Settlement

17

Subclass are represented by qualified, reputable counsel who are experienced in

18

preparing and prosecuting complex consumer class actions.

19

(e)

The Court finds for purposes of settlement only that, as required by FED.

20
21
22
23
24

R. CIV. P. 23(b)(2), final injunctive relief or corresponding declaratory relief is
appropriate respecting the Settlement Class and Settlement Subclass as a whole.
(f)

The Court finds for purposes of settlement only that, as required by FED.

R. CIV. P. 23(b)(3), that questions of law or fact common to Settlement Class and

25
26

Settlement Subclass members predominate over any questions affecting only individual

27
28

ORDER – 10

Case 2:09-cv-00045-RAJ Document 76

1
2

members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.

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4

Filed 04/19/10 Page 11 of 16

(g)

The Court preliminarily finds for purposes of settlement only that, as

required by FED. R. CIV. P. 23(g), Counsel for Plaintiffs (“Class Counsel”) are capable

5
6

of fairly and adequately representing the interests of the Settlement Class and Settlement

7

Subclass, in that Class Counsel (i) have done appropriate work identifying or

8

investigating potential claims in the action; (ii) are experienced in handling class actions;

9

(iii) are knowledgeable of the applicable law; and (iv) have committed the necessary

10
11

resources to represent the Class.

12

4.

13

required by FED. R. CIV. P. 23, preliminarily certifies the following Settlement Class

14

Class Certification. The Court, in conducting the settlement approval process as

and Settlement Subclass under FED. R. CIV. P. 23(b)(2) and 23(b)(3):

15
16

“Settlement Class”
All Persons, excluding Settlement Subclass members,
residing in the United States who were registered with or
subscribed to www.classmates.com at any time between
October 30, 2004 and the date of entry of this Order.

17
18
19

“Settlement Subclass”

20

All Persons residing in the United States who registered with
or subscribed to www.classmates.com and between January
1, 2007 and the date of entry of this Order, paid for a Gold
Membership subscription to www.classmates.com (and did
not previously receive a refund of such payment) as a result
of:
1.
Upgrading to a Gold Membership through the process
on Classmates.com of seeking to see who visited their
Guestbook; or

21
22
23
24
25

2.

26
27
28

ORDER – 11

Upgrading to a Gold Membership after clicking on a
link to Classmates.com in a Guestbook email, or
Connections email that included a Guestbook subject

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 12 of 16

line, and upgrading to a Gold Membership within the
same session activated by clicking on that link or
within the same day of clicking on that link; or

1
2
3.

3
4

Upgrading to a Gold Membership within the same day
of receiving a Guestbook email or Connections email
that included a Guestbook subject line.

5

The following Persons are expressly excluded from the Settlement Class and Settlement

6

Subclass:

7

10

Defendants, all present or former officers and/or directors of Defendants,
Class Counsel, the Judge of this Court, the Judge’s family and staff,
Defendants’ counsel of record, and all Persons who make a timely and
valid election to be excluded from the Settlement Class and Settlement
Subclass in accordance with the provisions of the Individual Notice to
Settlement Class and Individual Notice to Settlement Subclass.

11

The Court appoints David Catapano and Anthony Michaels as representatives for

8
9

12
13
14
15
16

the Settlement Class and Settlement Subclass and Class Counsel as counsel for the
Settlement Class and Settlement Subclass.
4.

Final Approval Hearing. A final approval hearing (the “Settlement

Hearing” or “Final Hearing”) shall be held before this Court on October 27, 2010, at

17
10:00 a.m., to determine whether the Settlement Agreement is fair, reasonable and
18
19

adequate and should be approved. The Settlement Hearing may be postponed, adjourned,

20

or continued by order of the Court without further notice to the Settlement Class and

21

Settlement Subclass. After the Settlement Hearing, the Court may enter a Final Approval

22
Order and Judgment that will fully and finally adjudicate the rights of the Settlement
23
24
25
26

Class and Settlement Subclass members and the named parties to this lawsuit.
5.

(the “Notice Date”), the Settlement Administrator shall have a copy of the Individual

27
28

Notice. No later than ninety (90) days after the date of entry of this Order

ORDER – 12

Case 2:09-cv-00045-RAJ Document 76

1

Filed 04/19/10 Page 13 of 16

Notice to Settlement Class and Settlement Class Claim Form and the Individual Notice to

2

Settlement Subclass and Settlement Subclass Claim Form in substantially the same form

3

as Exhibits A through Exhibit D of the Settlement Agreement sent or made available via

4

electronic mail to all members of the Settlement Class and Settlement Subclass. In

5
6

addition, the Settlement Administrator shall provide publication notice to potential

7

Settlement Class members and Settlement Subclass members by a Wall Street Journal

8

newspaper classified advertisement no smaller than one-eighth of a page, and establish a

9

website with settlement and claim administration information, within 30 days of the date

10
11
12
13
14

of entry of this Order.
6.

Findings Concerning Notice. The Court finds that electronic notice,

together with the proposed form of published notice, is the best practicable notice under
the circumstances and is as likely as any other form of notice to apprise potential

15
16

Settlement Class and Settlement Subclass members of the Settlement Agreement, and

17

their rights to opt out and to object. The Court further finds that such notice is

18

reasonable, that it constitutes adequate and sufficient notice to all persons entitled to

19

receive notice, and that it meets the requirements of Due Process.

20
21

7.

Papers in Support of Settlement. The parties to the Settlement

22

Agreement may file additional papers in support of the proposed settlement seven (7)

23

calendar days prior to the Final Hearing.

24

8.

Right to Exclude. Any Settlement Class or Settlement Subclass member

25
26

may choose to be excluded from the Settlement Class or Settlement Subclass, as the case

27
28

ORDER – 13

Case 2:09-cv-00045-RAJ Document 76

1

Filed 04/19/10 Page 14 of 16

may be, by signing and submitting to the Settlement Administrator a Request For

2

Exclusion postmarked no later than thirty (30) days after the Notice Date, or by sending

3

an e-mail to the appropriate address, as set forth more fully in the Notice to Settlement

4

Class and Notice to Settlement Subclass.

5
6

9.

(a)

7
8
9
10
11
12
13
14
15
16
17

Objections and Appearances
Written Objections. Any Settlement Class or Settlement Subclass

member may object to the fairness, reasonableness or adequacy of the Settlement
Agreement. Settlement Class and Settlement Subclass members may do so either on their
own or through counsel hired at their own expense. Any Settlement Class or Settlement
Subclass member who wishes to make a written objection to the Settlement Agreement
must serve a written statement of objection as set forth in the Notice along with any other
supporting materials, papers or briefs that he or she wishes the Court to consider
postmarked no later than thirty (30) calendar days after the Notice Date. The objection
must be sent to the Clerk of the Court and he or she must also serve such papers so as to
be received by Class Counsel and counsel for Defendants, as set forth below, no later
than thirty (30) calendar days after the Notice Date:

19

Mark A. Griffin and Amy Williams-Derry
Keller Rohrback L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052

20

and to

21

Stellman K. Keehnel and Russ Wuehler
DLA Piper LLP (US)
701 Fifth Avenue, Suite, 7000
Seattle, Washington 98104-7044

18

22
23

(b)

24
25
26
27
28

Appearance at Settlement Hearing. Any Settlement Class or

Settlement Subclass member who has served an objection may appear at the Settlement
Hearing, either in person or through counsel hired at the Settlement Class or Settlement
Subclass member’s expense, and object to the fairness, reasonableness or adequacy of the
ORDER – 14

Case 2:09-cv-00045-RAJ Document 76

Filed 04/19/10 Page 15 of 16

1

Settlement Agreement. Any Settlement Class or Settlement Subclass member who

2

chooses to be heard must send a written notice of intent to appear to the Clerk of the

3

Court and on Class Counsel at the addresses listed above so as to be received no later

4

than thirty (30) calendar days after the Notice Date.

5
6

10.

Effect of Failure to Finally Approve the Settlement Agreement. If (i)

the Court does not finally approve this Settlement Agreement, (ii) the Court does not

7
8
9
10
11

enter the Final Approval Order and Judgment dismissing the Consolidated Lawsuit with
prejudice and without leave to amend, (iii) Defendants terminate the Settlement
Agreement pursuant to Section 16.4 of the Settlement Agreement, or (iv) the Settlement
Agreement does not become final for any other reason, then:

12
13

(a)

The Settlement Agreement shall automatically become null and void and

14

have no further force or effect, and all proceedings that have taken place with regard to

15

this Settlement Agreement and the settlement shall be without prejudice to the rights and

16

contentions of the Parties hereto;

17
18

(b)

The Settlement Agreement, all of its provisions (including, without

19

limitation, any provisions concerning class certification), and all negotiations, statements

20

and proceedings relating to the Settlement Agreement shall be without prejudice to the

21

rights of any of the Parties, each of whom shall be restored to their respective position as

22
23
24
25

of December 18, 2009;
(c)

(including, without limitation, the provisions concerning class certification), and the fact

26
27
28

The Settlement Agreement, any provision of the Settlement Agreement

ORDER – 15

Case 2:09-cv-00045-RAJ Document 76

1
2
3
4

Filed 04/19/10 Page 16 of 16

of the Settlement Agreement having been made, shall not be admissible or entered into
evidence for any purpose whatsoever; and
(d)

Any judgment or order entered in connection with the Settlement

Agreement, including, without limitation, any order certifying the Settlement Class

5
6

and/or Settlement Subclass, will be vacated and will be without any force or effect.

7

DATED this 19th day of April, 2010.

8

A

9
10

The Honorable Richard A. Jones
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER – 16

EXHIBIT 5

EXHIBIT 6

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 1 of 7

HONORABLE RICARDO S. MARTINEZ

1
2
3
4
5
6

THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10

HOLLY BARKER and BRIAN CARNESS,
individually and on behalf of all the
members of the class of persons similarly
situated,

11
vs.

13

SKYPE, INC., a Delaware corporation;
SKYPE DELAWARE HOLDINGS, INC., a
Delaware corporation; SKYPE
COMMUNICATIONS S.A.R.L., a
Luxembourg corporation; SKYPE
TECHNOLOGIES S.A., a Luxembourg
corporation; and EBAY INC., a California
corporation,

15
16

Case No. 2:09-cv-01364-RSM

Plaintiffs,

12

14

CLASS ACTION

17

ORDER PRELIMINARILY APPROVING
CLASS ACTION SETTLEMENT

Defendants.

18
19

WHEREAS, this Preliminary Approval Order incorporates by reference the

20

definitions in the Agreement that reflects the proposed class action settlement that

21

currently is pending for preliminary approval before this District Court, and all terms

22

used in this Preliminary Approval Order shall have the same meanings as set forth in

23

the Agreement; and

24

WHEREAS, as a condition of the Agreement, Plaintiffs, on behalf of themselves

25

and on behalf of each of the persons in the Settlement Class, have agreed to release

26

all claims arising under federal, state or common law as specified in the Agreement;
and
ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 1
(CASE NO. 09-CV-1364 RSM)

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 2 of 7

1

WHEREAS, the District Court having read and considered Plaintiffs’ Motion, the

2

Agreement and the Exhibits attached thereto, as well as all arguments and

3

submissions from the Parties;

4

NOW, THEREFORE, IT IS HEREBY ORDERED:

5

1.

6
7

For purposes of the Action only, the District Court has subject matter and

personal jurisdiction over the parties, including all persons in the Settlement Class.
2.

Pursuant to Federal Rule of Civil Procedure Rule 23(b)(3), the District

8

Court certifies, solely for purposes of effectuating the settlement, the Settlement Class

9

as follows:

10

All current and former users of Skype Communications, S.A.R.L. who are

11

residents of the United States and who purchased Skype Credit that, on at least one

12

occasion

13

Communications’ Skype Credit expiration policy.

14

3.

prior

to

the

Implementation

Date,

expired

pursuant

to

Skype

The District Court preliminarily approves the Agreement as being fair,

15

reasonable and adequate and within the range of possible approval, subject to further

16

consideration at the Final Fairness Hearing.

17

4.

The District Court preliminarily finds that Plaintiffs fairly and adequately

18

represent the interests of the Settlement Class and therefore designate Plaintiffs as

19

the representatives of the Settlement Class.

20

5.

Pursuant to Federal Rule of Civil Procedure 23(g), and after

21

consideration of the factors described therein, the District Court designates Roger

22

Townsend, Esq. and Daniel Johnson, Esq. and the law firm of Breskin, Johnson &

23

Townsend, PLLC as Lead Class Counsel, and Scott A. Burroughs, Esq. and the law

24

firm of Doniger/Burroughs APC as additional Class Counsel.

25

preliminarily finds that, based on the work Class Counsel has done in identifying,

26

investigating and prosecuting the claims in the action, Class Counsel’s experience in

ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 2
(CASE NO. 09-CV-1364 RSM)

The District Court

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 3 of 7

1

handling class actions, other complex litigation, and claims of the type asserted in this

2

action, counsel’s knowledge of the applicable law and the resources counsel have and

3

will commit to representing the class, Class Counsel have and will fairly and

4

adequately represent the interests of the Settlement Class.

5

authorizes Plaintiffs and Class Counsel to enter into the Agreement on behalf of the

6

Settlement Class, and to bind them all to the duties and obligations contained therein,

7

subject to final approval by the District Court of the settlement. Plaintiffs and Class

8

Counsel, on behalf of the Settlement Class, are authorized to take all appropriate

9

action required or permitted to be taken by the Settlement Class pursuant to the

10
11

The District Court

Agreement to effectuate its terms.
6.

The District Court preliminarily finds, solely for purposes of the

12

settlement, that the Action may be maintained as a class action on behalf of the

13

Settlement Class because: (i) the Settlement Class is so numerous that joinder of all

14

persons in the Settlement Class in the Action is impracticable; (ii) there are questions

15

of law and fact common to the Settlement Class that predominate over any individual

16

questions; (iii) Plaintiffs’ claims are typical of the claims of the Settlement Class; (iv)

17

Plaintiffs and Class Counsel have fairly and adequately represented and protected the

18

interests of the Settlement Class; and (v) a class action is superior to other available

19

methods for the fair and efficient adjudication of the controversy.

20

7.

The Final Fairness Hearing shall take place before the Honorable

21

Ricardo S. Martinez on March 12, 2010 at 9:00 a.m. at the United States District Court,

22

Western District of Washington, 700 Stewart Street, Seattle, Washington 98101, to

23

determine: whether the proposed settlement of the Action on the terms and conditions

24

provided for in the Agreement is fair, adequate and reasonable as to the Settlement

25

Class Members and should be approved; whether judgment, as provided for in the

26

Agreement, should be entered; and the amount of fees and costs that should be

ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 3
(CASE NO. 09-CV-1364 RSM)

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 4 of 7

1

awarded to Class Counsel, and the amount of the incentive awards to Plaintiffs, as

2

provided for in the Agreement.

3

8.

The District Court approves the form and content of the E-mail Notice

4

(attached as Exhibit A hereto), which will be available on the Administration Site

5

described in paragraph 6(c) of the Agreement. Skype Communications and/or the

6

Settlement Administrator shall administer the settlement and provide notice as follows:

7
8
9

(i)

Skype Communications, on behalf of itself and Defendants, shall

implement the Reactivation Policy on the Implementation Date.
(ii)

Within fifteen (15) days after the Implementation Date, the Settlement

10

Administrator will establish the Administration Site, which shall make available to

11

Settlement Class Members the E-mail Notice, the claim form and relevant court

12

documents and contact information for Plaintiffs’ Counsel.

13

(iii)

Within fifteen (15) days after the Implementation Date, Defendants or

14

their designee shall provide notice of the settlement by disseminating the E-mail

15

Notice to the Settlement Class.

16

9.

Due to the unique nature of the User Accounts, which are internet based

17

accounts that typically are not tied to a postal address, mailed notice would not be

18

effective and would unnecessarily deplete potentially available settlement funds, to the

19

detriment of the Settlement Class. The District Court therefore preliminarily finds that

20

the notice program set forth above in paragraph 8 is the only notice required, and that

21

such E-mail Notice satisfies the requirements of Due Process, the Federal Rules of

22

Civil Procedure and any other applicable laws, and constitutes the best notice

23

practicable under the circumstances and shall constitute due and sufficient notice to all

24

persons entitled thereto.

25
26

10.

The Administration Site shall be the sole mechanism for Settlement

Class Members’ submission of claims for benefits relating to this settlement as

ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 4
(CASE NO. 09-CV-1364 RSM)

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 5 of 7

1

described in the Agreement. The Internet claim form shall contain substantially all the

2

information set forth in Exhibit B hereto notwithstanding that the format of the claim

3

form is subject to change as may be necessitated by the technical limitations and

4

security requirements of the Administration Site or the computers used by the

5

Settlement Class Members.

6

11.

All Settlement Class Members shall be bound by all determinations and

7

judgments in the Action concerning the settlement, including, but not limited to, the

8

validity, binding nature and effectiveness of the Releases set forth in the Agreement.

9

12.

Any person in the Settlement Class who wishes to opt out shall submit to

10

the Settlement Administrator by mail, with a postmark no later than thirty (30) days

11

after dissemination of the E-mail Notice, an appropriate written request for exclusion,

12

personally signed and including: (i) the person’s name, address, telephone number;

13

(ii) the person’s Skype ID and/or User Account number(s); (iii) a sentence confirming,

14

under penalty of perjury, that he or she is a Settlement Class Member; and (iv) the

15

following statement: “I request to be excluded from the class settlement in Barker v.

16

Skype, Inc. et al., United States District Court for the Western District of Washington,

17

Case No. 2:09-cv-01364-RSM.” No person in the Settlement Class, or any person

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acting on behalf of or in concert or participation with that person in the Settlement

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Class, may exclude any other person.

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13.

Any Settlement Class Member may appear and show cause if he or she

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has any reason why the proposed settlement of the Action should or should not be

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approved as fair, adequate and reasonable, why judgment should not be entered, why

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attorneys’ fees and costs should not be awarded to Class Counsel, or why incentive

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awards to Plaintiffs should not be allowed; provided, however, that no Settlement

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Class Member shall be heard, and no objection may be considered, unless,

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postmarked by no later than thirty (30) days after dissemination of the E-mail Notice,

ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 5
(CASE NO. 09-CV-1364 RSM)

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 6 of 7

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the Settlement Class Member files with the District Court a written statement of the

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objection.

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Counsel: Daniel Johnson, Esq. and Roger Townsend, Esq., Breskin Townsend &

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Johnson PLLC, 1111 Third Avenue, Suite 2230, Seattle, Washington 98101; and

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counsel for Defendants: Julia B. Strickland, Esq., Stroock & Stroock & Lavan LLP,

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2029 Century Park East, Los Angeles, California 90067. All objections must include:

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(i) the objector’s name, address and telephone number; (ii) the objector’s Skype ID

8

and/or User Account number(s); (iii) a sentence confirming, under penalty of perjury,

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that the objector is a Settlement Class Member; (iv) the factual basis and legal

10

grounds for the objection to the settlement; (v) the identity of witnesses whom the

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objector may call to testify at the Final Fairness Hearing; and (vi) copies of exhibits

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intended to be offered into evidence at the Final Fairness Hearing. Any Settlement

13

Class Member who does not make his or her objection within the time and manner set

14

forth in this paragraph shall be deemed to have waived such objection and shall be

15

foreclosed forever from making any objection to the fairness, adequacy or

16

reasonableness of the proposed settlement, to the award of attorneys’ fees and

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expenses to Class Counsel and to the incentive awards to Plaintiffs.

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14.

Copies of all objection papers must also be served on:

Lead Class

Pursuant to the Settlement Agreement, within one week of entry of this

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Order, Defendants shall deposit 25% of the principle Settlement Amount (i.e.,

20

$462,500) into the Escrow Account.

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15.

All proceedings in the Action are stayed pending final approval of this

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settlement, except as may be necessary to implement the settlement or comply with

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the terms of the Agreement.

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16.

Pending final determination of whether the settlement should be finally

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approved, Plaintiffs, all persons in the Settlement Class, and any person or entity

26

allegedly acting on behalf of persons in the Settlement Class, either directly or in a

ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 6
(CASE NO. 09-CV-1364 RSM)

Case 2:09-cv-01364-RSM Document 11

Filed 11/17/09 Page 7 of 7

1

representative or other capacity, are enjoined from commencing or prosecuting

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against Defendants, or against any of the other Released Parties, any action or

3

proceeding in any court or tribunal asserting any of the Released Claims as described

4

in the Agreement, provided, however, that this injunction shall not apply to individual

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claims of any persons in the Settlement Class who timely exclude themselves in a

6

manner that complies with paragraph 12 of this Preliminary Approval Order. This

7

injunction applies to, without limitation, all plaintiffs and plaintiffs’ counsel in the

8

following matters:

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Washington, King County, Case No. 08-2-41937-1 SEA.; and (ii) Carness v. Skype, et

10

al., Superior Court of the State of California for the County of Los Angeles, Case No.

11

BC 406723. This injunction is necessary to protect and effectuate the settlement, this

12

Preliminary Approval Order, and the District Court’s flexibility and authority to

13

effectuate this settlement and to enter judgment when appropriate, and is ordered in

14

aid of the District Court’s jurisdiction and to protect its judgments pursuant to 28 U.S.C.

15

section 1651(a).

16

17.

(i) Barker v. Skype Inc., et al., Superior Court of the State of

The District Court reserves the right to adjourn or continue the date of

17

the Final Fairness Hearing without further notice to the Settlement Class, and retains

18

jurisdiction to consider all further applications arising out of or connected with the

19

settlement. The District Court may approve or modify the settlement without further

20

notice to the Settlement Class.

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Dated this 17 day of November 2009.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT - 7
(CASE NO. 09-CV-1364 RSM)