Advanced Internet Technologies, Inc. v. Google, Inc.

Filing 43

Advanced Internet Technologies, Inc. v. Google, Inc.

Doc. 43 Att. 1

Case 5:05-cv-02579-RMW

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EXHIBIT A

Dockets.Justia.com

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roe Eo G~IlIdge
Milar County COurlO\se . Tt'xarki, ArkAiilWS 7185

COUNl'lE: LAPAYE1"
MlU,HR

Ph. (870) ?74-4ii
Pax [phone]

OFFICB OP THE CIRCU COURT
EIGH JUOrCJAL ()lST.Rcr . SOUT SrATB OF ARNSAS . DMsrON ONE

RECEIVED
JUL 2 ~ 200B

July 27, 2006
All Counsel of

GLM

Record

MlC.
FILE
P sNC, w

RA

RE: Final Order and Judgment Approving Settlement, Certfying Glass for Settlement Purposes, Awardjng Class Counsel Attornoys' Fees and Dismssig Action with Prejudice as to the Defendant) Googlo Inc., in Lane's Gift and Collectibles, L.L.C. et aI vs. Yahoollnc.. and Google Inc.. et a1; Miller County Circuit No. CV-2005~052-1
Dear Counsel:
the argicnts or cOUnfòel, the pleadings and al other

After due c(lnsideration of

maters submited to.the CoUt, it is the Cour's opinion that the Plaitiffs' and Defcndånt, Google Inc. 'S, Joint Motion for Final Approval of Settlement and for Entr of Order, Judgment and Rule 54(b) Certficate should be granted.
The C(JUn finds that al of the rcquirement~ for cerfication of ths class puruant to Rule 23 of the Arkansas Rules of Civi Procedure have been met as it relates to this

settlement prçposal; tbat the settement is fair) rea.c;nal1le and adequae for al member of tho class pursuat to tbe fatorS specified in the Ballard decjsjon; that the notice. . provisibns a.~ specified -by the Cour have beon met and that those provisions meet the

necessar le8,al requ¡reJl~nts for !lotice and due proce"cls; that tbis Cour has jursdiction
over' the subj~l matter of and the partes to ths cause t)f action; that the objectons. fied and arued to the Court sl'lould be rejected; that those requests timely presented for

eXclusion h~eín should be granted; that the requests for Atii',meys' fee and cost should
be graned ~d that the pTovisians of

the Stipulations and Proposed Settement should be

approved by this Cour. The Cour's preoedents approving the Settlement, Attorneys' fees and Rule S4(b) Certfication ar attached hereto for your convenencc.

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IN TH CIRCUT COURT OF MILLER COUNTY, ARSAS
LANE'S GIFTS AN COLLECTIBLES, L.L.Coo §

AN MAX CAULFIELD d//a CAULFIELD §
INSTIGATTONS, INDIVIDUALLY AND AS § CLASS REPRESENTATIVES ON BEHALF OF §

ALL SIMILARY SITUATED PERSONS. §

Plaint!'
vs.
YAHOO I

§
§

§
§ §

CASE NO. CV-2005-52-1

INC., OVERTURB SERVlCES, INC,)

TIME WARR INC., AMERICA ONLINE, INC., NETS CAPE COMMICA TrONS
CORPORATION. ASK JEEVES. INC., BUENA VISTAlNTERNT,GROUP D/B/A GO.COM, GODGLE INC., L YCOS) INC.) LOOKSMAT, L TO., and FINDWHA'l.COM, INC.

§ §
§ § § §

§
§

Dejèndnts.

§

NATIONAL CI,ASS ACTION

FINAL ORDER AN JUGMENT APPROVING SETTLEMENT, CERTIFYIG CLAS FOR SETTMENT PUROSES. AWARDING CLASS COUNSEL ATTORNEYS' FEES AN DISMISSING ACTION WITH PREDICE

On this 24m and 25th day of July, 2006, the Cour considered the Joint Motion for Final

Approval of

Stipulation and Settlement ("Joint Motion for Final Approval") and Class Cowisel's

Application for Attorneys' Fees and Reimbursement of Costs Related to the Google Stipulation
and Settlement (UClass Counsel's Application for Feestl).

Fl'AI. ORnER AND JlIDGM.~NT ApPROVING SEITEMENT, CERTIFYING CLA FOR SE'IMI PUIUOSE,
A W4\ROING CLASS COUNSELATrRNEYS' FEE' AN DISMlING ACTIONWITI PREJICE - PAGE i

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The Joint Motion for Final Approval requests (a) certi11eation of

the class for settlement

puroses only; (b) fial approval of the Proposed Settement preliminarly approved by this

Court on April 20, 2006 and memoriali~d in the Stipulation and Settlement Agreement and
Order PrfJliminarily Approving Class Settlement; and (c) dismissal with prejudice otPlaintiffs'
clais agaist Defendat Google~ lne. ("Googlc"). Class Counsel's Application for Fees

requests that ths Court award attorneys. lees and reimbursement of expenses to Class Counsel in
connection with ths Action. III cormection with the Joint Motion for Final Approval and Class

CounseP s Application for Fees, the Court consjdered) among other thngs, said pleadings, all
exhibits and affdavits thereto, Plaintis' and Google's Briefin Support of Joint Motion for Final

Approval of Stipulation of Settlement, aU exhbits and attchments thereto, the report of
Alexander Tuzhlin, Ph.D. ("Dr. Tuziilin")~ the Affidavit of

United States Distct Judge Layn R.

Phillps) Retired ("Judge PIùIlpst)), the Affdavit otLisa Poncia, Google's Omnbus Response to

Objections and the Afdavits in support thereof, including the Affdavit of Joseph Fisher, and
arguments of counseL. Appearng on behalf of

Plaintiffs and the Settlement Class were George

McWillams and Richard Adams ot the law firm of PATTON, ROBERTS, MCWILf.JAMS &

CAPSHAW, L.L.P., John Goodson and Matt Keil of the law firm KBIL & GOODSON P.A... Joel
M. Fineberg and R. Dean Gresham of

the LAW OFFICES OF JOEL M. FINEBERG, p.e., Stephen

F. Malouf of

the LAW OFFICES OF STßPHBN P. MALOUF, P.C., Kevin A. Crass of

the law f-lrin

of FRIDA Y, ELDREDGE & CLARK and James M. Pratt, Jr. ("Class Counsel")~ and appearing on

behalf of Defendant Google were Jennifer Haltom boan of the law fir of HALTOM & DOAN,
L.L.P. and David Silbert and Daralyn J. Dure of the law firm of KEKER & VAN NEST L.L.P.

WlffREAS Plaitiffs and Coogle have executed and fied a Stipulation and Settlement
Agreement (the "Stipulation") with the Cour on Apnll9, 2006; and

FIL OnDER AN)) JUDGMENT APPROVING SETlLEMENT, C£lllU'VING ClASS IIC)1l S..:n"'~MEN'r POR.POSU, AWARnlNC O.ARqCnTlNRFI. ATrORNF.VR' FF...q ANn m~MlR.alN~ AfflONWllll 'PRF.TIDlf:F.- 'PAGF. 2

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WHEREAS the Stipulation is hereby incorporated by reference in ths Order and aU

tenus defuied iii the Stipulation win have the same meanings in ths Order; and
WHRES the Cour on April

20, 2006, entered the Order Preliminarly Approving Clas

Settlement C.Prcliminary Approval OrderU), preliminarly. approving the Stipulation3
conditionally certifYing, for settlement puroses only, tls Action agaist GoogIe as a class
acton, and scheduling a hearing for July 24-25, 2006 at 9:00 a.m. ("Settement Approval
Iieainit? in order to: (a) determine whether Oie Proposed Settlement on the terms and

conditions provided for in the Stipulation is fai. reasonable and adequate, and should be finally

approved by the Cour; (b) determie whether a fmal judgment should be entered herein; and (c)
consider Class Counsel's Application for Fees; and

WHREAS, the Court ordered th~t the Notice of Pendency of Settlement of Class
Action. Settement Hearg and Clais Procedti'c (IiereÌ1iafler relered (0 as "Individual

Noticen)~ in the form attched to the Prelim Approval Order as Exhbit "I." be e-mailed by

the Google and/or the Third .Par Admnistator, Gilardi & Co., LLC, on or before May 20,
2005 (the "Notice E-MailngDate..)toallpotentiaIClassMemberswhosenamcsande.mail
addresses were ascertained by 000g18 though a reasonable search of its own records; and

WHBREAS the Plaintiffs and Google have satisfactorily demonstrated that. sueh
Iiidividual Notice wa e-mailed in accordance with the tenns of

the Prelimnai Approval Order;

and
WHEREAS, in accordance with

the Individual Notice, the Settement Approval

Hearing was duly held before this Cour on July 24~25, 2006; and

WHEREAS, at the Settlement Approval Hear, the Cowt considered: (a) whether

certjiicatjon fol' settlement puroses only was appropriate under Arkan Rule of Civil
FlAL oaDIR ANI) JIJDGMEN'I' ApPROVING SETEMENT. CERTIFYING CLASS FOR SETILEMET PURPOSE, AWA.RDlNG CI.i\SS COUNSELATInNEYS' FEES AND DISMIG AcrON wmi PREJICE - PACE 3

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Procedure 23; (b) the fainess, reaonableness, and adequacy of the Stipulation; and (c) the
fairness and reasonableness of Class Counsel's Application for Fees under applicable Arkansas
law; and

WHEREAS. at the Setteinent Approval Hearg, the Court fufiled its duty to
independently evaluate the fairness, reásonableness. and adquacy of the Stipulation and Cla.qs
Counsel's AppJication for Fees by considering not only the pleadings and argumentci of

Plaintiffs, Class Counsel, and GoogJe, but also by rlgorol1s1y and independently evauatig the

Stipulation and ClaSs Counsel) s Application for Fees on behalf of tbe absent Class Members, and
as such, the Cour considered any arguent that could reaonably be made against approval of

. tho Stipulation and Class Counsel's Application for Fees, even if such argument was not actually

presented to the Court by pleadg or oral argument; and

WHEREAS, by performing this independent analysis of the Joint Motion for Final
Approval and Class Counsel's Application for Fees, the COurt has considered and protected the
interests of all absent Class Members pursuant to Arkanas Rule of Civil Procedure 23; and
WHREAS, the Individual Notice advised Class Members of

the method by wmch a Class

Member could reuest exclusion from the Settement Class and pursue an independent legal remedy
against Ooogle; and

WHREAS, all Class Members had the absolute right (0 exclude tliemselves ("opt out") and
pursue 31i individua

lawsuit against Google; and

WHREAS, any Class Member who faied to request exclusion under the ters of the

Individual Notice volwitaily waved the right to pursue an independent remed agaist Google; and

FINAL ORDEn AND JUDGMENT APPR.OVIC SElME, CER'IG Cus"q FOR S~'l'IU:M":N'J' PlIRPOSJr.s,
A WARÐfNn Cr.ÄillI COllNRF.T. A'rrtulNF.'VA' llJi~~q ANn n'llM'AAlN~ At"lnlv WITH 'PRll.ninrrr. _ P4r."."

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WHRESt the Individua Notice advise Class Members of the method by which a Class
Member could file proper and vald objections to the Stipulation and request to be heard at the July
2425, 2006 Settlement Approval Heaing.

NOW. THREFORE, the Coui having read aiid considered all subnussions made in
connection witIi the Joint Motion for Final Approval and Class Counsel's Application for Fees,
and having reviewed and considered tIie fies and records here~ and al other evidence submitt~
fids Q.id concludes as follows:

1. The defitions and terms set fort in the Stipulation are hereby adopted and

incorporated into this Order.
2.. The Complaint fied in this Action alleges that Ooogle was unjustly enriched by

collecting revenue for invad clicks. Google denies those allegations.

3. On or about July 24-25, 2006, Plaintiffs and Google applied to the Cour for
final approval of the Stipulation and the Proposed Settlement embodied therein and for the

entry of this Final Order and Judgment. In support of such application) Plaintiffs submittd,

among other things, evidence concerning the dissemiation and adequacy of the Individual
Notice, evidence regarding the names of potential Class Members who have submitted requests

for exclusion from the Settement Class, evidence regarding the negotiation of the Stipulation,

ovidence regaring th fainess, reasonableness. and adequacy of the substative tenns of the
Stipulation and the Proposed Settlement embodied therein. and evidence regaring the fainesst

reasonableness, and adequacy of Class Counel's Application for Fees. In Support of the Joint
Motion for Final Approval, Plaintiffs and Google submitted a Brief in Support of Joint Motion
for Final Apprval, settg fort extensive argument and authority along with varous Exhbits

attched thereto, and Googlc submitted a Respons to Objections with supporting Affdavits.

FlAL ORDER AND JUDGMENT AP~R.OVINO SEnUMENT, CERTIFYING CLSS POR SETn PUoSE,
AWARDING CI.¡\$S COUNSii1. A.TIRNEV~' FEis AND DISMISSING Ac."IION WITH PRI!~UDICJo- P AGio 5

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Class Counsel's Application for Fees contaned both extensive argwent and authority and

various Exhbits attched thereto.
4. Plaitis offered into evidence at the Settement Approval Hearng the followig

evidence: the Stipulation and all Exlbits thereto, all Exhibits attched to the Joint Motion for
Finl Approval, aU Exhibits attached to Plaitifs' Brief in Support of Joint Motion f01' Final

Approval, and all Exhibits attached to Class Counsel's Application for Fees. The Cour admitted
such Exhbits into evidence for all puroses. The Court also reviewed the Amdavits of Dr. Alex

TUzHn, Judge Layn Phillps, Lisa Poncj~ and Joseph Fisher.
5. As par of its Preliminar Approval Order, the Cour certfied, for settement

puroses only, a Settement Clas defmed as follows:

All Persons together with any offcer. employee or agent of the
same that have purchased Online Advertisig frm Ooogle in the

Class Period, regardless where the ad was displayed.

6. The Cour hereby afnns Uiis definition of the Settement Class for purposes of
this Final Order and Judgment and certes tl~ Action against Google, for settlement pmposes

only. as a class action. In so doing, the Cour fidst for settement puroses only" that this

Action

meets all the requiements of Arkanas Rule of Civi Procedure 23 and due process under the
Arkansas and United States Consituions, and can therefore be certfied as a class action becuse:
(a) the Settlement Class is so numerous thatjolnder of

all members is impracticable; (b) there are

questions of law and fact - i.e., whether Ooogle eoUeeted revenues .:'om its advertsers that was
derived froin invalid clicks durng the Class P~riod, that arc common to the Settlement Class and

predomiate over any individua questions - i. e., whether advertisers have been charged for
invald clicks durin the Class Period; (c) the claims of

the representative PIaintifts are typical of

the clais of

the Settlement Class; (d) the representative Plaitiffs and Class Counsel will fairly

FINAl. QRD£R. AND JlIDGM¡;N'I' APPROVING SR'l'I'I.f:M.~NT, CER'lING cu.s.c¡ FOR SETTMENT PtRPOSE AWARDING CLss COtlNSELATTRNIYS. FEES AND DISMISSING ACT10NWl1H PREUDICE - PAGE 6

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anù adequately protect the interest of the Settlement Class; and (e) a class action is superior to
aU other avaiable methods for the fair and efcient adjudication of1his controversy.
7. Plaintiffs and Google have entered into the Stipulation, which has been fied

with the Cour and is incorporated herein by reference. The Stipulation provides for the
settlement of this Action with Google on behalf of the representatve Plaitifs and the members of

the Settement Class. subject to final apprval by the Courl The Stipulation provides that, in
exchange for the releases described in the Stipulation and ths Final Order and Judgment, Google

wil provide a tota Settlemeiit Consideration consistig of: (8) advertising credits to all
quaJitying members of

the Settement Class, (b) in the cvent tht a minimui of $30,000,000 in

advertsing credits is not claied by the Settlement Class, Google wil make the difference

between the claimed advertising ercdits and $30.000,000 available to Section 501(0)(3)

charitable organtions who timely make application; (c) an independent technology audit by
Dr. Tuiiln to evaluate the reasonableness of Google's olick fraud detectioilefTorts; and (d) an

amount not to excoed $30,000,000 in attorneys' fees, costs, and expenses payable to Class
Counel; and (e) Googie~s agreement to pay the costs of notice and .

admistation of the

Settement.
8. On April 20, 2006, the Court held a Prelimnary Approva.i Hearing and

considered whether to preliminary approve the Stipulation, approved the Individua Notice and
method of noticaon for

the Settlement Clas, and diected tht Individua Notice ofthe Proposed

Settlement and notice of the Settlement Approval Hearing be dissemiated in accordanoe with the

terms of the Stipulation and the Preliai Approval Order.
9. On July 24-25,2006, the pares provided evidence that the Individual Notioe,

which inonned the Settlement Class of thc terms of the Proposed Settementi of Uieir
:FINAL ORDER AND JUDGMENT APPROVING SETILEMEN'I, C.:R'IWkNG CUSS JOOll SElTMENT PURPOsir

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opportty to request exclusion from the Settement Clas. and of

thei opportunity to object to the

tenns of the Stipulation and the Proposed Settement embodied therein, was dissemiated in

accordance with the Prelimar Approval Order.
10. Specifioally, the Court received and admitted an Affdavit from Lisa Poncia, an

employee of the Third Par Adminstator, Gilardi & Co. LLC, setg forth the scope and
results of the Individual Notice campaign.
11. Based on the Court's review of the evidence admittd and arguent of counsel,

the Court finds and concludes that the Individual Notice, as disseminated to members of the
Settlement Class in accordance with provisions of the Preliminarily Approval Order. was the best

notice practicable under the cirumsces to al members of the Settement Clas. Accordinly,
the Individual Notice as disseminate is fmally approved as fair, reonable, and adequate notice

under the circumstces. The Cour finds and concludes that due and adequate nolice of the

pendency of this Action, the Stipulation, and Lhe Final Settlement Hearing has been
provided to members of the Settlement Class, a.nd the Court further finds and concludes
that the Indiyidual Notice campaign described in the Prelinar Approval Ordpr and

coiipJeled by the Paries complied fulIy with the requirements of Arkanas Rule of Civil
Proced\Ue 23 and the requirements of due process under the Arkanas and United States
Constitutions. The Cour futher finds thauhe Jndividual Notice campaign widerten conci~eiy
and clealy states in plain, easily understood language:
a) the nature of lhe action;

b) the dejjnition of the class certified;

c) the class clais, issues or defenses;

FIAL ORDER AND JUDGMIo~NT A.PJ'ROVING. SETIME, CER11NC ClASS "'OR SE1TLEMENT PUlUOS,
AWAllØING CLASS COUNSELATIRNEYS' FEES AND DLtiMIS$ING A(.'TION WITHP1\UDICE - PAGE 8

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d) that a Class Member may enter an appearance counel if

and parcipate in person or though

the member so desies;

e) that the Cour wil exclude from the class any member who requests exclusion,

stating when and how members may elect to be excluded; and
f) the binding effect of

the Final Order and Judgment on Class Members.

i 2. Havig admitted and reviewed the Afdavit of Lisa Poncia concerning the

success of the notice campaign, including the fat that it resulted in an observed error rate of less
than 5%, the Court fids that it is unecessar to aford a new opportty to reques exclusion to

Individual Class Members who had an earlier opportunity to request exclusion, but failed to do
so, The: Cour also concludes that the lack of valid objections to the Stipulation and Proposed

Settement embodied therein supports the Cour's decision to not offer a second exclusion

widow.
13. The Settement Approval Hearing and the evidence before the Cour clealy

support a finding that the Stipulation was entered into in good tàith between the Plaititts and
Google.

14. The Cour finds tht the Stipulation is the result of a good"faith arm's length
negotiation by the Pares hereto. In addition, the Cour fmds tht approval of the Stipulation and

the Ploposed Settement embodied therein wil result in substatial savings in tie and resources
to the Cour and the litigants and wil futher the interests of justice. Further, the Court finds that
the Stipulation and the Proposed Settement embodied therein is fai, reasonable and adequate to
members of the SetUement Class based on informal discovery, due diligence, and the
absence of material objections suffcient to deny approval.

15. The settlement of the Action on the terms and conditions set forth in the
Stipulation is approved and confinned in all respects as fair, reasonable. and adequate under
FINAl. ORDKR AND JUDGMENT APrRoVINc SET'MENT, CER....fllNG ClASS lo'On SETtLMET PURPOSFS,
AWAoRDING CLASS COUNSELATfnNEVS' F£t: ANI) DISMISSING ACTION w~n¡ PRia - :PACE'

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Arkan Ru1e of Civil Procedure 23, and in the best interest of the Settlement Clmis and
Settlement Class Member~, especially in light of the benefits to the Settement Class and the

co~ts and risks associated with the complex proceedings necessar to achieve a favorable result

thgh pre-trial proceedings, class certification proceedings, tral, and appeals, .

16. A review of the followig factors support a rmding tht the Stipulation and
Proposed Settement embodied therein is fai, rcasonable~ and adequate:
a) the stren of

the case for the Plaintif1~ on the merits, balanced against the amount offered in the Proposed Settemeiit;

b) the Defendant's overall financial condition and abilty to pay;

c) the complexity, leng and expense offurter litigation; and
d) the amount of opposition to the Proposed Settlement.

Ballard v. Advance America, 349 Ark. 545, 574; 79 S. W.3d 835 (2002), cerl, denied, 538 U.S.
906. 123 S. Ct 1484, i 55 L. Ed.. 2d 226 (2003).
17. The Indívidual Notice was sent to Class Members whose naes were ascertained

by 000g10 though a reasonable search of its own records. The Individual Notice campaign was
highly successful, with an observed eror rate of only approximately 5%.
18. With respect to the obJections lodged by Settleinent Class Members. the Couit in

its evaluation of the fainess, reasonableness and adequacy of the Stipulation and Class
Counsel's Application for Fees) considered not only the objections that were before the Cour,

but those that could have been raised by any absent Class Members. With regard to these
objeotions~ the Court finds that, for the reasons stated in ths Order, said objections are

OVERRULED.

FIL OIlOl:1l "ND JUDGME APPROVIG S~':I'I'I..:M'ENr, CERTJFING CLss FOR SEnuM.~N'I' PURPOSES
AWARING CLss COUNSELA'I'fORNEYS' FIES AND DisMISSC ACTION WITH PRUUDICE - PAGE 10

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19. The Settlenient Class is not required under the Stipulation to submit records or
documents tht they simply do 110t possess. The Settement Clas is not burdened or discouraged
from fil claim because they arc required only to provide inormation to the best of their

knowledge in submittg a Claim Form Additionally, the maner in which documents in
Google'S possession are used to evaluate and process claims is fair and reasonable based upon

the terms of the Stipulation and evidence presented at the Settlement Approval Hear. - The
clais process as set fort in the Stipulation Is fai, reasonable, and adequate to both Class

Members and Ooogle. / _. J '\ ~_ _ _A \

20. The Cour finds that S!oi tiJ~" a 10 attorneys' fees and ~
expenses, to be paid by Coogle, is fai, reasonable, and adequate..- ll--

ult~ tliuJØI ~ J

NOW, THEREFORE, OOOD CAUSE APPEARG, IT is ORDERED, ADJUDGED
AND DECREED 'fRAT:

1. rhc Co1; possesses jurisdiction over the subjeot matter of ths Aetion, the
Plaitiffs, Google, members of

the Settement Class, and the Released Persons.

2. The Court certifes the Settement Class, for settlement puioses only, under

Arkansas Rule ofCívil Procedure 23.,
3. Timely requests for exclusion were submitted by 556 potential members of the

Settlement Class and those potential Class Members (who arc identifed in Exhbit "I" hereto)
are excluded from the Settement Class. All other potential members oftha Settlement Class ar

adjudged 10 be members otthe Semement Class and are bound by ths Final Order and Judgmenl

ånd by the Stipulation and the Proposed Settement embodied therein, including the releaes
provided for in the Stipulation and tl Final Order and Judgmeiit.

FIAL ORDER AND JUI)GMJoN'C APPROVING SETIMENT, CERTIPVC CLA FOR SE1TL~MEN"r PURI'OSfo.s,
AW¡\~U)ING CLASSCOUNSELATIRN\'S. FEE AND DI$MI$$ING A(.'TION WITH PREJtlDlCE- PAGE 11

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4. All provisions and terms of the Stipulation are hereby finaIly approved in all

respects. The pares to the Stipulation are hereby directed to consummate the Stipulation iu

accordance with its term
5. As it relates to Ooogle only, this Action is dismissed in its entircty on the

merits, with prejudice and without leave to amend, and all members of

the Settlement Class are

forever bared and permanently enjoined from starting, continuing, or paricipating in.

litigatig or receiving any benefits or other relief from any other lawsuit arbitration, or
admsttive or regulatory proceeding or order based on or i'elatin to the clais, facts or
circumstances alleged in ths Action and/or th Released Clais against the Released Persons,.

6. Class Counel agees, and the Cour finds, that any . representatiollJ
encouragement, solicitation or other assistance, including but iiot limited to referral to other
counel, to any person seeking exclusion from the Settlement Class, or auy other pei'son seeking

to litigate with GoogIe over any of the Released Clais in this matter, prior to the Fînal
Settement Approval Hearg, could place Class Counel in a contliet of interest with the

Settlement Class. Accordigly, Class Counsel and their respective fimis shall not represent,

encourage, solicit or otherwse assist, in any way whatsoever, ineJudjng but not linuted to
retèrrs to other counsel, any person requesting exclusion from the Set1lement Class.

7. Upon the entry of this Final Order and Judgment, each Class Member shall be

conclusively deemed to have fully released and discharged, to thc fullest extent pemiitted by
law, any and all of the Released Persons from all of

the Released Claims.

8. .'Released Claims" means and includes all claims, demands, rights, liabilties,

and causes of aetioii that were asserted or might have been asserted, whether sounding in tort,

contract, any state unfai competition or consumer protection law, or any other law of an slate
FIAL ORDER AND JUDGMt:N't APPROVING SErnMENT, C.~Rn"'VING CLASS FOR SETIMENT PURlOSLfl,
AWAROING CLASS COUNSELATIRNYS' FEES AND DISMIs,ING ACTION wim PREUDICIl- PAGJo~ 12

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or jurisdictioll and whether for ceonomic daages, non-economic damages, resitution~

penalties, 01' any other relief, SO long as the clai demand, dght, liabilty, or call.'~e of action
arises out o( relates to, or is in connection with:
a) the causes of action asserted against Ooogle in the Action, including but

not limted to any and all claims that Ooogle breached any contract

between it and any Class Member, or otherwise violated any law
whatsoever, by overcharging Class Persons f"(r Online Advertisig as a

result of Challenged Clicks¡
b) aiiy facts, transactons, events, poHcies, occurrences, acts, disclosures,

statements, omissions or tàilures to act, which ar or could be the basis of
claims that the monies Ooogle received for Online Advertising should not

have been charged, received or held by Google as a result of Challenged
Clicks;
c) the caUSes of action asserted in Oie Complaint agait Google's Ad

Parers inofar as they relate to Google Ads, including but not limited to
any and all claims that the monies they received for publishing Google
Ads shòuid not have been received or held by them as a result of

Challenged Clicks; or
d) any facts, traactions, events, policies, occurences, acts, disclosures,

statements, omissions or failures to act, which are or could be the basis of
clai that the monies that Google Ad Parers received for publishig

GoogJe Ads should not have been received or held by them as a result of
Challenged Clicks.
FINAL OJUER AND JUDGM&NT APPROVIC SEn'i.F:M~NT, CEimlNG CLs.~ tOR Sf.TrEMENT PuRPOSE.Cf,
AWARINC CLASS COUNSELATIORNYS' F¡.¡.:s AND DISMISSG ACTION WITHP.RVDICE- PAGE 13

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9. "Unknown Claim" mcrcls any clai arsing out of newly discovered facts and/or
facts Jòwid hereafer to be other th or different from the facts now believed to be true. The

Released Clainis defmed in Paragraph 8 above, include aU Unknown Claims arsing trom or in
any way related to any acts which have been alleged or which could have been aleged in the
Action by the Plainti11S7 by the Settlement Class, and/or by any Class Member arising from or in

an way related to the Released Clai. Tho Court finds and concludes that Plaintiffs, on behalf
of

themselves and all members oftha Settlement Class, ha.ve expressly, knowingly, voluntary.

and valìdly wâÌved thc provisions of any state, federal, mwiicipal. local or territorial law or
statute (including, but not limitèd to, that of the District of Columbia) providing in substance that
releases shll not extend to claims. demands. injuries, and/or damages that are winowl1 or

unsuspected to exist at the time a settement agreement is executed and/or approved by a cour
Without limiting the foregoing in any waY7 the CoW't fUids ëUd concludes that Plaintiffs, on
behalf of themelves and all members of tbe Settlement Class. have expressly, knowingly,
voluntaily, and validly waived all rights under Section 1542 of

the California Civil Code7 which

provides as follows: .

A GENERA REEASE DOBS NOT EXTND TO CLAIMS WICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN IDS FAVOR AT THE TI OF EXECUTING TH RELEASE, WHCH IF KNOWN BY HlM MUST HAVE MATERIALLY AFFECTED ¡.ns SETTEMENT WITH THE
DEBTOR.

10. The names, addresses. policy numbers, and other data concerning potential Class

Members compiled by Google in effectuating the Proposed Settlement, the electronic data
processing and other record keeping procedures and materials utilzed by Google in identifying

the potential Class Members and effectutig Google's other obligations wider the Stipulation

FINAL OnDER AND JUDGME A....ROVING SE1TNT, CERTJING CI..il "'OR SE'IEMENT ~URlos.
AWAlJNC CLASS CO\JN$t:L AnORNEYS' Ii AND DISMISSING A

(''TlON WITH PiuICE- PACE 14

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and the Proposed Settlement enibodied therein, constitute highly confdential and propnetai
business information. The confdentialty of all such inormation (the "Proprietar Information")
shall be protected frm disolosure to any Persons other than those described in Pal'agrapl1 12,

below.

1 L No Persons other than Google's counsel and clericaladmistative personnel
employed by Google. Class Counsel and clerical/adminstative personnel cniployed by Class
Counsel, and such other Persons as the Court may order, àfter hearng on notice to all counsel of

record, shall be allowed access to any Proprieta hiormtion.
12. The Stipulation and Proposed Settement embodied therein and this Final Order

aiid Judgment are not deemed adssions of liabilty or fault by Google, or a finding otthe validity
of any clai Di the Action or of any wrngdoing or violation of law by Google. The Stipulation

and Propose Settement embodied thel'eiJ) are not a concession by the Pares and, to the extent

pemutted by law, neither this Final Judgment nor the Stipulation or any other documents,
exhibits or materals submitted in furerance of the settemeht shaH be offerd or received in
evidence in any action or proceeding in any coui adstative panel or proceeding,

or other

trbun, as au admission or concession of liabilty or wrongdoing of any nature on the par of

Google.

jointly awads Class
()~ 13. Pusuant to Class Counsel's Applicatioii for Fees, the Cour

(JII Counsel the su of $.:~ /)D) ODD.!C - in attrneys' fcss and costs. Google shall pay
such fees to Class Cowisel pursuat to the terms of

the Stipulation.

14. The Cour appoints the following Third P$'ty Admstrtor to carry out the duties

and responsibilties set fort in the Stipulation: Gilardi & Co. LLC. The Thid Par Administrator
shal be discharged upon the Court's approval of the Final Report of Distrbution. Neither

FINAL ORDER AND JUDGMt:'l APPROVING SETIMENT, CERTIFYING CLASS FOR SETlEME PUROSES AWARDING CMS' COtlNSEAlTORNEYS' .F£SANI) DISMlSSINGAcrioNWml.PiCE- PACK J5

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PJaintitls, nor Google. nor the Partes~ counsel shll be liable for any act or omission of

the Third

Pary Admini&1rtor.

.15. As soon as reasonably possible alter the completion of all payments to Class
Members eligibJe tbr payment pursuant to the Stipulation) the Paries shall file with the Court a

Final Report (together with a. proposed order approving such report ard discharging the Third

Party Administrator indicatig that distribution in accordance with the terms of the Stipulation
an the Cour)s prior Orders have been completed.

i 6. Without in any way affecti the fllalty of ths Final Order and Judgment, ths
Court sbaU retain contimÚligjursdictioii over ths Action for purposes of:

a) Bnforcìig the Stipulation and the Proposed Settlement embodjed therein;

. b) Heain and determing any application by any Paity to the Stipulaton for a
settlement bar order; and

e) Any other matters related or ancilar to any of the foregoing.
It is so ORDERED.

,.,.. SIGNED this ~~~y of July. 2006.

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FINAl. ORDER AND JUDGMENT ApPROVJNG SE71MET. CERTIiilNG CLhSS FOR SETJMEN P(JRPOS.;S,
AW¡\ROING CLss

COUNSEL A rrnNEYS' lE AND DISMISSING A(.,'ION WIDI l'lUICE- PAG.: 16

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Rule 54th) CERTIFICATE
Witl1 respect to the issues determied by tho above Final Order and Judgment, the Cour
tinds:
1. Nothing in this Fiiial Order and Judgment is duplicative of any other issue in ths Action. The.re is therefore no possibilty of piecemeal appeais.
2. There is a stong lielihood of injustice should there be any delay in the

disbursement of payments to qualifying Settement Class Members as provided
for in the Settement Such disbursement canot occur until a final judgment is issued.
3. There is a strong likelihood of inustice should there be any delay in the

resolution, and resultig judicial peace, brought about by this Settement. Such

resolution, and resultig judicial peace, cannot be realized until a fmal judgment
is issued.
Upon the basis of the foregoing factual líndjngs, the Cour hereby certes, in accordance

with Arkansas Rule of Civil Proceure 54(b)(1) that it has determined that there is no jusl reason
tòr delay of the entl of a final judgment aiid that the Cour has and does hereby direct the

judgment shal be a flnaljudgment for all puroses,

Certified this ~ day of July, 2006.
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FIAL ORER AND JUDME APPRO SF.1T, CEIl CUSSI'R SEt t/ ~..
AWARDING Cuss COUNSELA1TKNKYS' FEES AN DISMr~ING ACTION WIll PiVDICE - P A* :

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INTI'IE CmCUIT COURT OF MILLER COUNY, ARKANSAS
LANE'S GIFTS AND COLLECTffLES, L.L.C. §

AN MAX CAULFIELD d/b/a CAULFIELD §
INVESTIGATIONS, JNDIVIOUALL Y AND AS § CLASS REPRESENT A TrVES ON BEHAF OF §

ALL SIMILARY SITUATED PERSONS, §
§

Plaintif.
vs.
YAHOO! INC., OVERTURE SERVICES, INC.~

§
§

rIME WARNER INC., AMRICA ONLIN,
INC., NETS

§ § § §

CASE NO. CV -2005-52-1

CAPE COMMCATIONS

§
§ § §

CORPORATION, ASK JBEVES, INC., BUENA VISTA INTERNT GROUP D/B/A GO.COM, GOOGLE INC., L YCOS, INC., LOOKSMART, L TO,.) and FINDWHT.COM, INC.
Defendants.

§
§ §

NA TIQNAL CLASS ACTION

FINDINGS OF FACT AN CONCLUSIONS OF LAW IN SUPPORT OF AWAR OF ATTORNYS' FEES AND RElMURSltMENT OF COSTS TO CLASS COUNSEL

Conimenciiig on the 24th day of July, 2006, the Cour considered Class CoùnsePs
Application for Attorneys' Fees and Reimbursement of Costs Related to the Google Stipulation
,.

and Settlement ("Class Counsel's Application fot' Fees"). Having read and considered all
submissions made in oonnectioii with Class Counsel's Application for Fees~ hav.íg reviewed and

considered the files and records herein, and all other evidence submited1 ~ and puruant to Rule 54

of the Arkasa Rules of Civil Procedure, the Cour fids and concludes as follows:

1. Plaitis and Ooogle have executed and filed a Stipulation and Settement

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Agreement (th "Stipulation") with the Court on April

19) 2006.

2. The Court ordered that the Notice of Pendency of Settlement of Class Action.

Settement Hearg and Clais Procedure ("Individual Notice"), in the form attched to the
Prelimnar Approval Order as Exhbit "P', be c-mailed by the Googlc and/or the Thid Par
Admstator, Gilardi & Co.~ LLC, on or before May 20, 2006 (the uNotice E-Mailig Date") to

all potential Class Members whose names and e-mail addresses were asceained by Ooogle
though a reasonable search of its own records.
3. In accordance with the Individual Notiec and the Settlement Approval Hearing
was duly hold before tls Court begiiug on July 24, 2006.

4. At the Settlement Approval Hearng, the Court considered, among others, the

fairness and reasonableness of Class Counsel's Application for Fees under applicable Arkansas
law.
S. At the Settement Approval Hearing, the Cour fulfilled its duty to independently

evaluate the fairness, reasonableness, and adequacy of the Stipulation and Class Counsel.s
Application for Fees by considedng not only the" pleadings and arguments of Plaintiff, Class
Counsel and 00081e, but also by rigorously and independently evaluating the Stipulation and

Class CounsePs Application for Fees on behalf of tlie absent Class Members, and as suchi the

Cour considered any arguent tht could reaonably be made agait approval of the
Stipulation Dnd Class Counsel's Applicaion for Fees, even if such argument was not actually

presented to the Court by pleag or oral argument.

1 Including, but not limited to, all exhibIts and attchments thereto, pleadings, the report of Alexander Tuiln,
Ph.D. C'Dr. Tuzhilin"), the Afdavit of

United States District Judge Layn R. Philips, Retired ("Judge Philips", the Affdiivit of Lisa Poncia, and arguments of çounseL

FINDlNGS OF FACT AND CONCI.USIONS ()P J..A WIN SUPl'ORT OF A W AM OF ATTORNEYS' PBBS AN REIMDURBMIT
OF COSTS TO CLASS COQN$HI.- PAC.: 2

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6. By performing this independent analysis of the Joint Motion for Final Approval

and Class COl.nscl~ Application tbr Fees, the Court considered and protect.ed the interests or all
absent Class Members pursuant to Arkansas Rule of Civil Procedure 23.
7. The defitions and teis set forth in the Stipulaton are hereby adopted and
incorporated into these Findings of Fact and Conclusions of

Law.

8. The Complaint filed in this Action alleges that Google was unjustly enriched by
collecting revenue for invalid clicks and Google denies those allegations.
9. On or about July 24, 2006, Plaintis and Google applied to the Cour for fmal
approval of the Stipulation and the Proposed Settlement embodied therein and for the entr of

ths Fìn~ Order and Judgment. In support of such applicatiol1, Plaint.í ITs submitedi ârong other
thgs, evidence concer.lg the dissemination and adequacy of the Individual Notice, evidence

regarding the naes of potential Class Members who have submitted request for exclusion from

the Settlement Classi evidence regarg the negotiation of the Stipulation, evidence regarding
the tàimess. reasonablenessi aiid adequacy of the substtive. terms of the Stipulation and the

Proposed Settlement embodied therein.and evidence regarding the fairness, reasonableness. and

adequacy of Class CounsePs Application for Fees. In Support of the Joint Motion for Final
Approval, Plaitiffs submitted a Brief in Support of Joint Motion for Fìnal Approval, settg
fort cxtensive argument and authority along with various ExhbitS attched thereto. Class

Counelts Application for Fees contained both extensve arguent and authority and varous

Exhbits attched thereto.
10. Plaintiffs offered into evidence at the Settlement Approval Hearng the followig

evidence: the Stipulation and all Exhbits thereto, aU Exhibits attached to the Joint Motion for
Final Approval, al Exhbits attched to Plaintils' Brief in Support of Joint Motion for Final
PmolNOS OF FAC' ANI) CONCLUSIONS OF LAW IN SUPPOR't OP A WAIU OF ATIORNEYS' FEBS AND REIMBURS~M6NT

OF COSTS TO CLs COUNSI.I. - 'PAGE 3

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Approval, and all Exhibits attaclied to Class Counsel's Application for Fees. The Court admited
such Ex1bits into evidence for all purposes. The Court also accepted the testimony of
Dr. Tuzhiln, Judse Philips. and Lisa Poneia.

1 L The Settement Approval Hearng and the evidence before the Cour clearly
support a findig that the Stipulation wa entered into in good faith between the Plaitiffs apd
Google.

12. TIie Cour ñnds that the Stipl.uation is the result of a good faith arm's length
negotiation by the pares hereto. In addition, the Court finds that approval of

the Stipulation and

the Proposed Settement embodied therein will result in substantial savings in time and resources
to the Court and the Htigants and will fuer th interests of jusice. Further, the Court ñnds that

the Stipulation is fair, reasonable and adequate to members of the Settement Class based on
informal discovery, due dilgence, and the absence of

material objections suffcient to deny

approval.

13. The settement of the Action on the terms and conditions set forth in the
Stipulation is fair, reasonable,,,and adequate under Arkansa Rule of Civil Procedure 23, and in
the best interest of the Settlement Class and Settement Class Members, especialy in light of the
benefits to the Settement Class and the costs and risk associated with the complex proceedings

necessar to achieve a favorable result though pre-trial proceedings, class certification
proceedings, tral, and appeals.

fJ 14. The Cour find ila! $ 8A 001 a'2.~ m atrneys' fee an
expenses, to be paid by Google, is fair, reaonable, and adequate under the Cour's analysis of
the Chrisco factors applied to a percentage of the common fund or common benefit approach.
See Chrisco v. Sun indu.'l., Inc.i 304 Ark. 227, 800 S.W.2d 717 (1990).
FINDINGS OF FACT AN CONCLUSIONS OF LAw IN SUPPORT OF AWARD OF AnoRNBYS' FHH$ ANO REIMBURSEMENT
OF Co.C¡TS TO CLASS COUN- PA(;~: 4

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is. Under applicable Arkanas law, the Coiirt has the discretion to award fees based

on a pèrcetagc of the common fud or common benelìt made available to the Class afer
considering the following Chrisco factors: "(a) the experience and abilty of

the attorncys; (b)

the tiiie and labor required to perform the legal services properly; (c) the amount involved in the
case and the reSits obUucd; (d) the novelty and difficulty of tbe issues involved; (e) the fee

customarily charged in the locality for similar legal services; (f) whether the fee is fixed or
contingent; (g) the time limitations imposed upon the client or by the eirC1UIstances; and (h) the

1iketihoo~ if apparent to the client, that the acceptace of the particular einploymenl wil
preclude other employment by the lawyer." ChrisCQ '\. Sun Indus.. In()~ 304 Ai'k 227~ 800
S.W.2d 717 (1990).

16. The Cour adopts Class Counsel's analysis of the Chrisco factors as set fort in

,

Sections iv through ix of

Class Counsel's Application for Fees to support the Cour's award of

$ !5 0, OO~. (!/:D. !! in attorneys' fces and expenses to Class Counsel.

17. Arkansas law regardig attorneys' fees in a elass action agait a private entity)
such as Ooogle, does

not require or madate that the Court deteine and award attorneys~ fees '-,.

based on a lodes analysis when the defendant has agreed to pay attorneys' fees as par of a
common fund or common benefit settlement. Furier~ Arkanas law allows the Cour to consider
the tota value of th comnion fund or COnuion benefit made avaiable to the Class for puroses

of awarding attorneys' fees.

!" 18. The Courlìnds its awa of $ g~ D(/)i_~ atys' tees and exs

to Class Counsel is fa and reasonable and fuJly supported by ths. Cour's anysis of the

Chrisco factors. The Cour adopts Clas Counsel's analysis of thc Chrisco factors contaed in

FINDINGS OF F Ac'ï AND CONCLUSIONS OF LA WIN SUPPOR.T OIL A w tu OP ATIORNBYS' FI:B.1J AND REIMBURSMET OF Co,':i'lS TO Ci.ASS COUNSEL- PAGE 5

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Clas Counsel's Application for Fees, and finds that this analysis oJ' the Chrisco factors supports
the Cour's awa of

attorneys' fees and costs.

i 9. The Cóurt hereby incorporates by reference the Final Order and Judgment

Approving Settlement, Certifying Class for Settement Puroses, Awarding Clas Counsel

Attorneys' Fees aiid Dismissi,! Action with Prejudice into these Findings of' Fact and
ConcluSons of Law in Support of Award of Attorneys' Fees and Reimb\Usement of Costi$ to
Class CounseL.

SIGNED thi z.¡, day of July, 2006.
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