Campbell et al v. Facebook Inc.
Filing
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MOTION for Preliminary Approval of Class Action Settlement filed by Matthew Campbell, Michael Hurley. Motion Hearing set for 4/12/2017 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 3/15/2017. Replies due by 3/22/2017. (Attachments: # 1 Proposed Order, # 2 Declaration of Class Counsel Hank Bates and Michael Sobol, # 3 Exhibit 1 to Declaration of Class Counsel)(Sobol, Michael) (Filed on 3/1/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MATTHEW CAMPBELL and MICHAEL
HURLEY,
Plaintiffs,
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Case No. C 13-05996 PJH-SK
CLASS ACTION
[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT
v.
FACEBOOK, INC.,
Defendant.
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No. 13-05996 PJH-SK
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WHEREAS, the above-entitled action is pending before this Court (the “Action”);
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WHEREAS, the Plaintiffs having moved, pursuant to Federal Rule of Civil Procedure 23(e),
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for an order approving the Settlement of this Action, in accordance with the Class Action Settlement
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Agreement (“Settlement Agreement”) attached as Exhibit 1 to the Declaration of Class Counsel in
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Support of Plaintiffs’ Motion for Preliminary Approval of Class Settlement filed on March 1, 2017,
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which sets forth the terms and conditions for a proposed settlement of the Action and for dismissal of
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the Action with prejudice upon the terms and conditions set forth therein; and the Court having read
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and considered the Settlement Agreement and having heard any argument of counsel; and
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WHEREAS, all defined terms herein have the same meanings as set forth in the Settlement
Agreement.
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NOW, THEREFORE, IT IS HEREBY FOUND AND ORDERED:
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1.
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the Action, including all Settlement Class Members.
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This Court has jurisdiction over the subject matter of the Action and over all Parties to
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The Court does hereby preliminarily approve the Settlement Agreement and the
Settlement set forth therein, subject to further consideration at the Fairness Hearing described below.
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3.
The Court finds on a preliminary basis that the Settlement as set forth in the
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Settlement Agreement falls within the range of reasonableness and therefore meets the requirements
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for preliminary approval.
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4.
The Court conditionally certifies, for settlement purposes only (and for no other
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purpose and with no other effect upon the Action, including no effect upon the Action should the
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Settlement Agreement not receive final approval or should the Effective Date not occur), a class
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defined as all natural-person Facebook users located within the United States and its territories who
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have sent, or received from a Facebook user, private messages that included URLs in their content
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(and from which Facebook generated a URL attachment), from December 30, 2011 to March 1, 2017.
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The only changes between the Settlement Class and the class certified by the Court on May 18, 2016,
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are (1) the explicit inclusion of Facebook users located in United States territories, and (2) bringing
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the end of the class period current to the date of settlement. Excluded from the Settlement Class are
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(i) all Persons who are directors, officers, and agents of Facebook or its subsidiaries and affiliated
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No. 13-05996 PJH-SK
1340836.1
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companies or are designated by Facebook as employees of Facebook or its subsidiaries and affiliated
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companies; and (ii) the Court, the Court’s immediate family, and Court staff, as well as any appellate
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court to which this matter is ever assigned, and its immediate family and staff.
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The Court finds, for settlement purposes only, that the expansion of the certified class
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to include all Settlement Class Members is appropriate under Federal Rule of Civil Procedure
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23(b)(2) in the settlement context because (1): the Defendant is alleged to have acted or refused to act
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on grounds that apply generally to the Settlement Class, so that the described injunctive and non-
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monetary relief is appropriate with respect to the Settlement Class as a whole; and (2): (a) the
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Settlement Class Members are so numerous that joinder of all Class Members in the class action is
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impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims
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of the Class Representatives are typical of the claims of the Class; (d) the Class Representatives and
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their counsel will fairly and adequately represent and protect the interests of the Class Members; and
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(e) a class action is superior to other available methods for the fair and efficient adjudication of the
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controversy.
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6.
The Court finds that, subject to the Fairness Hearing, the Settlement Agreement is fair,
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reasonable, adequate, and in the best interests of the Settlement Class. The Court further finds that
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the Settlement Agreement substantially fulfills the purposes and objectives of the class action and
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provides beneficial relief to the Settlement Class. The Court also finds that the Settlement
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Agreement: (a) is the result of serious, informed, non-collusive arms’-length negotiations, involving
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experienced counsel familiar with the legal and factual issues of this case and made with the
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assistance and supervision of a mediator; (b) meets all applicable requirements of law, including
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Federal Rule of Civil Procedure 23, and the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715;
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and (c) is not a finding or admission of liability by Defendant.
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Notice of the settlement is not required here. See Fed. R. Civ. P. 23(c)(2)(A) (stating
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that under Rule 23(b)(2) the court “may direct appropriate notice to the class”) (emphasis added).
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The Court finds that notice also is not required because the Settlement Agreement only releases
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claims for injunctive and/or declaratory relief and does not release the monetary or damages claims of
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the Class (see Settlement Agreement, ¶ 49), and thus the settlement expressly preserves the individual
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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rights of class members to pursue monetary claims against the defendant. See, e.g., Lilly v. Jamba
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Juice Co., No. 13-cv-02998-JST, 2015 WL 1248027, at *8–9 (N.D. Cal. Mar. 18, 2015); Kim v.
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Space Pencil, Inc., No. 11-cv-03796-LB, 2012 WL 5948951, at *4, 17 (N.D. Cal. Nov. 28, 2012).
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The Court finds that the CAFA Notice sent by Facebook complied with 28 U.S.C.
§ 1715 and all other provisions of the Class Action Fairness Act of 2005.
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Each Settlement Class Member shall be given a full opportunity to comment on or
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object to the Settlement Agreement, and to participate at a Fairness Hearing. Comments or
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objections must be in writing, and must include (1) the name and case number of the Action
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(Campbell et al. v. Facebook, Inc., Case No. 13-5996-PJH); (2) the Settlement Class Member’s full
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legal name and mailing address; (3) the personal signature of the Settlement Class member; (4) the
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grounds for any objection; (5) the name and contact information of any and all attorneys representing,
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advising, or assisting with the comment or objection, or who may profit from pursuing any objection;
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and (6) a statement indicating whether the Settlement Class Member intends to appear at the Final
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Approval Hearing, either personally or through counsel.
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To be considered, written comments or objections must be submitted to the Court
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either by mailing them to Class Action Clerk, United States District Court for the Northern District of
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California, 1301 Clay Street, Oakland, California 94612, or by filing them in person at any location
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of the United States District Court for the Northern District of California, within 60 days after the
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entry of this Order. No Class Member shall be entitled to be heard at the Final Approval Hearing,
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whether individually or through counsel, unless written notice of the Class Member’s intention to
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appear at the Final Approval Hearing is timely filed, or postmarked for mail to the Court within 60
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days after date of entry of this Order.
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The date of the postmark on the envelope containing the written objection shall be the
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exclusive means used to determine whether an objection has been timely submitted. Class Members
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who fail to mail timely written objections in the manner specified above shall be deemed to have
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waived any objections and shall be forever barred from objecting to the Settlement Agreement and
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the proposed settlement by appearing at the Final Approval Hearing, appeal, collateral attack, or
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otherwise.
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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12.
The Court appoints Plaintiffs Michael Hurley and Matthew Campbell as the Class
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Representatives, and the law firms of Lieff Cabraser Heimann & Bernstein, LLP and Carney Bates &
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Pulliam, PLLC as Class Counsel.
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A hearing (the “Fairness Hearing”) shall be held before this Court on __________,
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2017, at _____.m., at the United States District Court for the Northern District of California, Oakland
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Courthouse, Courtroom 3 – 3rd Floor, 1301 Clay Street, Oakland, California 94612, to determine
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whether the proposed settlement of the Action on the terms and conditions provided for in the
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Settlement Agreement is fair, reasonable, and adequate to the Settlement Class and should be finally
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approved by the Court; whether a Final Approval Order and Final Judgment as provided in the
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Settlement Agreement should be entered; and to determine any amount of fees, costs, and expenses
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that should be awarded to Class Counsel and any award to the Class Representatives for their
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representation of, or service on behalf of, the Settlement Class. All Settlement Class Members will
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be bound by any Final Approval Order and Final Judgment dismissing the Action with prejudice.
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Class Counsel’s application for attorneys’ fees, costs and expenses shall be filed and
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served no later than thirty (30) days after the Court’s order of preliminary approval. Any opposition,
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comment, or objection shall be filed no later than sixty (60) days after the Court’s order of
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preliminary approval. Any reply shall be filed no later than seventy-four (74) days after the Court’s
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order of preliminary approval.
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The motion in support of final approval of the settlement shall be filed and served no
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later than thirty (30) days after the Court’s order of preliminary approval. Any opposition or
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objection shall be filed no later than sixty (60) days after the Court’s order of preliminary approval.
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Any reply shall be filed no later than seventy-four (74) days after the Court’s order of preliminary
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approval.
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At or after the Fairness Hearing, the Court shall determine whether any application for
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attorneys’ fees, costs and expenses, and any award to the Class Representatives for their
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representation of, and service to, the Class, should be approved.
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Neither this order, the fact that a settlement was reached and filed, the Settlement
Agreement, nor any related negotiations, statements, or proceedings shall be construed as, offered as,
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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admitted as, received as, used as, or deemed to be an admission or concession of liability or
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wrongdoing whatsoever or breach of any duty on the part of Defendant. This order is not a finding of
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the validity or invalidity of any of the claims asserted or defenses raised in the Action. In no event
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shall this order, the fact that a settlement was reached, the Settlement Agreement, or any of its
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provisions or any negotiations, statements, or proceedings relating to it in any way be used, offered,
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admitted, or referred to in the Action except by the settling Parties and only the settling Parties in a
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proceeding to enforce the Settlement Agreement.
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The Court reserves the right to adjourn the date of the Fairness Hearing and retains
jurisdiction to consider all further applications arising out of or connected with the proposed
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Settlement. The Court may approve the Settlement, with such modifications as may be agreed to by
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the settling Parties, if appropriate, without further notice.
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All discovery and proceedings in this Action are stayed until further order of this
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Court, except as may be necessary to implement the Settlement or comply with the terms of the
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Settlement Agreement. Settlement Class Members and their Legally Authorized Representatives are
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preliminarily enjoined from filing or otherwise participating in any other suit based on the Released
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Claims in the Settlement Agreement.
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The Court retains jurisdiction over the Action to consider all further matters arising
out of or connected with the Settlement Agreement and the Settlement described therein.
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IT IS SO ORDERED.
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DATED: _____________
HONORABLE PHYLLIS J. HAMILTON
UNITED STATES DISTRICT JUDGE
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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