Ferrington et al v. McAfee, Inc.

Filing 101

Order by Hon. Lucy H. Koh conditionally granting 86 Motion for Certification of Settlement Class in case 5:10-cv-01455-LHK. Associated Cases: 5:10-cv-01455-LHK, 5:11-cv-00721-LHK. (lhklc1, COURT STAFF) (Filed on 8/16/2011)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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MELISSA FERRINGTON, CHERYL
SCHMIDT, CHRISTOPHER BENNETT
AND CHRISTI HALL,

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Case No. CV-10-01455 LHK (HRL)
[PROPOSED] CONDITIONAL CLASS
CERTIFICATION ORDER

Plaintiffs,
Complaint Filed: April 6, 2010
Trial Date: None
Judge:
Hon. Lucy H. Koh

v.
MCAFEE, INC., ARPU, INC., D/B/A
TRYANDBUY.COM,
Defendants.

WHEREAS, Plaintiffs Melissa Ferrington, Cheryl Schmidt, Christopher Bennett
and Christi Hall (“Plaintiffs”) and Defendants McAfee, Inc. (“McAfee”) and Arpu, Inc., d/b/a
TryandBuy.com. (“Arpu”) (collectively, “Defendants”) have entered into a Settlement Agreement
(“Agreement”) with respect to this matter; and
WHEREAS, the Court has reviewed the Agreement and the parties’ papers in
support of preliminary approval of the Agreement and in support of conditional certification of a
Plaintiff Settlement Class; and
GOOD CAUSE APPEARING AND SOLELY FOR THE PURPOSE OF
SETTLEMENT IN ACCORDANCE WITH THE AGREEMENT, THE COURT FINDS AND

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CONDITIONAL CLASS CERTIFICATION ORDER

Case No. CV 10-1455-LHK (HRL)

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ORDERS AS FOLLOWS:

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1.

The Court hereby certifies a Plaintiff Settlement Class consisting of all

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persons in the United States who during the Class Period purchased software from McAfee’s

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website and subsequently accepted an Arpu pop-up advertisement offer presented at the

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conclusion of the McAfee transaction and were charged by Arpu for the product, service or

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software sold in the Arpu pop-up. The Plaintiff Settlement Class excludes McAfee, Arpu, any

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entity in which McAfee or Arpu has a controlling interest, any of McAfee’s or Arpu’s

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subsidiaries, affiliates, officers, directors, or employees, and any legal representative, heir,

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successor, or assignee of McAfee or Arpu, and any persons and entities that timely opt-out of the

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Plaintiff Settlement Class.

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2.

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of all members is impracticable.

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3.

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Settlement Class.

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4.

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The above-described Plaintiff Settlement Class is so numerous that joinder

There are questions of law or fact common to the above-described Plaintiff

The claims advanced by Plaintiffs are typical of the claims of the above-

described Plaintiff Settlement Class.

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5.

The Plaintiffs will fairly and adequately protect the interests of the above-

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described Plaintiff Settlement Class, and are conditionally appointed as representatives of the

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Plaintiff Settlement Class for the purpose of implementing the settlement in accordance with the

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Agreement. Cohen Milstein Sellers & Toll PLLC are conditionally appointed as counsel for the

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Plaintiff Settlement Class.

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6.

The questions of law or fact common to the members of the above-

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described Plaintiff Settlement Class predominate over the questions affecting only individual

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members.

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7.

Certification of the above-described Plaintiff Settlement Class by the Court

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in this matter is superior to other available methods for the fair and efficient adjudication of the

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controversy.

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8.

Notice of the pendency of this case and the proposed settlement shall be
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Case No. CV 10-1455-LHK (HRL)
CONDITIONAL CLASS CERTIFICATION ORDER

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provided to the Plaintiff Settlement Class as specified in the Court’s Order Granting Preliminary

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Approval of Class Action Settlement, filed herewith. Any Plaintiff Settlement Class member may

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elect not to be a part of the Plaintiff Settlement Class and not to be bound by the Agreement, as

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set forth in the Summary Published Notice, Summary Email Notice and Long Form Notice.

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9.

In the event that Final Approval of the settlement does not occur for any

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reason, or in the event of termination of the Agreement for any reason, this Order, and all of its

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provisions, shall be deemed null and void ab initio, shall have no force or effect whatsoever, shall

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not be used in this or in any other proceeding for any purpose, and this action shall revert to its

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status as existed prior to the date of this Order. Nothing in this Order is, or may be construed as,

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an admission or concession by or against any of the parties on any point of fact or law.

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IT IS SO ORDERED.

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Dated:

August 16, 2011
Honorable Lucy H. Koh
Judge of the United States District Court

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CONDITIONAL CLASS CERTIFICATION ORDER

Case No. CV 10-1455-LHK (HRL)