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

Filing 43

Attachment 1
STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION by Google, Inc.. (Attachments: # 1 Exhibit A)(Silbert, David) (Filed on 11/28/2006)

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Advanced Internet Technologies, Inc. v. Google, Inc. Doc. 43 Att. 1 Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 Page 1 of 25 EXHIBIT A Dockets.Justia.com l IIUI.". Case 5:05-cv-02579-RMW LVUII IV.,:iMM Document 43-2 Filed 11/28/2006 nil, i l.' I Page 2 of 25L't r. i i roe Eo G~IlIdge Milar County COurlO\se . Tt'xarki, ArkAiilWS 7185 COUNl'lE: LAPAYE1" MlU,HR Ph. (870) ?74-4ii Pax (810) 772-4680 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 cOUnfel, 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 Defcndnt, 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 prposal; 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 requreJl~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~en 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. \ Case 5:05-cv-02579-RMW i, V\lI"" l-UUU IV'UiJnir Document 43-2 Filed 11/28/2006 I\IPage ' r' LI L't I'ILII 3 of 25 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. Dejndnts. 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 ., V\lll(.'. ase 5:05-cv-02579-RMW C '-uuv IU'V~nli Document 43-2 Filed 11/28/2006 11 V . I (. V i r. VI (. 't Page 4 of 25 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 PIIlpst)), 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 STPHBN 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, ClllU'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 . \I U I . L. I' L. V V II I V . 't U nlY Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 I1V'IL.\I' r, "t1L."t Page 5 of 25 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 (Iiere1iafler 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 "\l I . (.,. ,v v U i U i 'T V nni Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 11V"LI6I of 25 Page l r, iJIL't 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, resonableness. 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 WARfNn Cr.illI COllNRF.T. A'rrtulNF.'VA' llJi~~q ANn n'llM'AAlN~ At"lnlv WITH 'PRll.ninrrr. _ P4r."." \iV/,L.I. L.UUII IU''tV~1Y Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 J~Page 7 of 25 V'IL.1l1 r. V/I.'t 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 ., v....'-,. l.VVY ,v."fir"" Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 U'I. I l-V'8I' If25 Page of Co-i 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. QRDR. 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 , V 'I I . ~.. ~ v v V I"".l I r UII Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 Page 9 of 25 an 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 AWAR~lNa CLASS COUNSEATTRNl'S' FE AND DISMIING ACTION wim PREUDIC.: - PAOlo: 7 ,,\I I . L I' 'V se 5:05-cv-02579-RMW Ca v U i V . 't I niii Document 43-2 Filed 11/28/2006 11 U . . '" v, I. VI.... Page 10 of 25 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, AWAllING CLASS COUNSELATIRNEYS' FEES AND DLtiMIS$ING A(.'TION WITHP1\UDICE - PAGE 8 II V I . l- I. l- V e II I II ' 't l- nlll Cas V 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 11V'Il-111 r. IV/l-" Page I1 of 25 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 tith 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' Ft: ANI) DISMISSING ACTION w~n PRia - :PACE' \J ~ I i C. asev5:05-cv-02579-RMW C I. ,V u . U i" L nm Document 43-2 Filed 11/28/2006 I1V'ILIII r. II/Lot Page 12 of 25 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 Indvidual 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 . \iUI.,I. L.VUII IV''ll.l'lri Case 5:05-cv-02579-RMW Document 43-2 v . i '- 13 i 25 Filed 11/28/2006 n PageIII r.ofLI '- 't 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~ tliuJI ~ 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 ofCvil 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 nd 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 uv 1"./' ,"VuV I v .'tiinir Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 nPagevl r. IIIIL't U'lL 14 of 25 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 Fnal 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 retrrs 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 . IIUI"',Case IU.'t"l\ln 'UUU 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 Page I' of 25 I~V.I'\15r.I'I/,'I 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 tilures 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 shuid 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 . IIUI.L.I. 'UVII IV.'l'lMM Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 Page I r. III/L." nv.ILIJ16 of 25 9. "Unknown Claim" mcrcls any clai arsing out of newly discovered facts and/or facts Jwid 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 valdly wved thc provisions of any state, federal, mwiicipal. local or territorial law or statute (including, but not limitd 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 Ud 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 . IIUI.". LVVU 5:05-cv-02579-RMW Case IV.'t'l~M Document 43-2 Filed 11/28/2006 i~ U . i 'i) i r. i VI L. 't Page 17 of 25 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, fter 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' .FSANI) DISMlSSINGAcrioNWml.PiCE- PACK J5 \JUI.L./' L.VVV IV.....MM Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 Page )I t".IIIL'l I~U.",18 of 25 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 contimligjursdictioii over ths Action for purposes of: a) Bnforcig 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. .. :~ ":1 ~ o i,.: 0' '''0 ..' (. i t:, F ~.'.. N . '' ~ -c .. '" 5:;:i ~~ ~ ~. \~. w ~~ i l r~. tpE \" 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 \lV"L" L.UUV IV''lVtllYl Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 Page I of IOIL'l I~U'IL.'19 r. 25 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 lndjngs, 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 tr 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. c . .. ~l;~ ;?J_~ c:' :ii.i' 0f C I=~ t- I..... ~...: . ~; f: \ i.::. ~ . r~ ~ :,~i ~~J ~.. F N en se ~ ~ FIAL ORER AND JUDME APPRO SF.1T, CEIl CUSSI'R SEt t/ ~.. AWARDING Cuss COUNSELA1TKNKYS' FEES AN DISMr~ING ACTION WIll PiVDICE - P A* : . II U I . 'I' L U V II r V . 'l UMM Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 I1V' I Page 20 i iJl lo 't loll f r' of 25 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 ConsePs 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.g 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 . 1.1111.". ase 5:05-cv-02579-RMW C'VVU IV''lVf\nl Document 43-2 Filed 11/28/2006 I1V' I i-v r ,. '-VI &. Page 21 of 25 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 ounseL 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 . \iUI'LI' L.UUU IU.'t\JI'iI Case 5:05-cv-02579-RMW Document 43-2 ' 11.111 C. l' Filed 11/28/2006 nvPage 22I'of 25c.. 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 Fn~ Order and Judgment. In support of such applicatiol1, Plaint. ITs submitedi rong 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 timess. 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 Fnal 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 . IIUI,L.I'aLVVU IV''lUnM C se 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 nil' I i. II I r. i. 1.1 1.'T Page 23 of 25 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 nds 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 nds 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.CTS TO CLASS COUN- PA(;~: 4 II U i . L. I. L. U V V I V . 't II 1\1Y1 Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 IlV' i t.IJI r. t.1J1 t."t Page 24 of 25 is. Under applicable Arkanas law, the Coiirt has the discretion to award fees based on a prcetagc of the common fud or common benelt 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 Courlnds 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' 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 , \J U I . L. I. L V V I) I V ; i I l\M Case 5:05-cv-02579-RMW Document 43-2 Filed 11/28/2006 I~Pagel r'l.'l/L'l V'll. 25 of 25 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 Curt 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. .. g- c,~j ~I:: ~.:~: ..0; I i i '~... .. J" ro-. i :::: t.,: ~ ~ N Cl 0 : ~ ~ ..r . W .- FINDINGS OF FAC AND CONCLUSIONS OF LAw IN SUPPORT 01: AWARO OF ATTORNEYS' i:IlES ANi) RHIMRURSHMENT OF COSTS TO CLASS COUNSBL- PAG": G

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