Unites States of America v. Apple, Inc. et al

Filing 479

NOTICE OF APPEAL from (685 in 1:11-md-02293-DLC) Order, (684 in 1:11-md-02293-DLC) Order. Document filed by Dianne Young Erwin. Filing fee $ 505.00, receipt number 0208-10421257. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A - Attorney Fee Award, # 2 Exhibit B - Final Judgment)Filed In Associated Cases: 1:11-md-02293-DLC et al.(Stein, David)

EXHIBIT

''B''

Case 1:11-md-02293-DLC Document 683-1 Filed 11/19/14 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORI<.

No. 11-md-02293 (DLC)

IN RE ELECTRONIC BOOKS ANTITRUST
LITIGATION

ECF Case

This Document Relates to:
ALL ACTIONS

THE STATE OF TEXAS, et al.,
No. 12-cv-3394 (DLC)

Plaintiffs,

ECF Case

v.
PENGUIN GROUP (USA) INC., et al.,
Defendants.

This matter came for a duly-noticed hearing on November 21, 2014, upon Motion by
Plaintiff States and Settlement Class ("Plaintiffs") for Final Approval of Settlement with Apple
Inc. ("Apple") in the above-captioned actions (Plaintiffs and Apple are hereafter referred to
collectively as "Parties"). Plaintiffs' Motion was consented to by Apple. Having reviewed the
Motion and the Memorandum in Support filed therewith, any objections filed thereto, and upon
all pleadings and proceedings had herein, this Comt finds as follows:
Plaintiff States and Settlement Class filed separate complaints in this Court against Apple
and others, alleging an unlawful agreement to inflate, fix, maintain or stabilize the prices ofEbooks in violation offederal antitrust laws ("Complaints");

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Plaintiff States seek damages and injunctive relief in their sovereign capacity and as

parens patriae on behalf of Eligible Consumers residing in Plaintiff States who have purchased
eligible E-books from a Named Publisher;
Class Plaintiffs seek damages and injunctive relief on behalf of Eligible Consumers in the
Settlement Class (as defined below) who have purchased eligible E-books from a Named
Publisher;
In order to resolve any and all disputes arising from the Complaints as to Apple (except
for Plaintiff States' claims for injunctive relief against Apple, which are currently under appeal
in the Liability Appeal) the parties executed a Settlement Agreement by and among Apple Inc.,
Plaintiff States and Class Plaintiffs ("Settlement Agreement") dated July 10, 2014, which is
incorporated by reference herein;
The Settlement Agreement does not constitute an admission of liability or of any issue of
fact or law by Apple;
In full and final settlement of the claims set forth in the Complaints, Apple will pay
compensatory damages, costs of notice and settlement administration, payments to Plaintiff
States, and attorneys' fees and costs to Class Counsel as outlined in the Settlement Agreement
and as awarded by the Cowi;
Any payments made by Apple for Eligible Consumer compensation pursuant to Section
III.A.l of the Settlement Agreement do not constitute, nor shall they be treated as, payments in
lieu of fines, penalties, punitive recoveries or forfeitures. Any payments made by Apple for
Eligible Consumer compensation pursuant to Section III.B.l of the Settlement Agreement do not
constitute, nor shall they be treated as, payments in lieu of treble damages, fines, penalties,
punitive recoveries or forfeitures;

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The Parties and their respective counsel at all times complied with the requirements of
Federal Rule of Civil Procedure II; and
Pursuant to this Court's Preliminary Approval Order, notice of the Settlement Agreement
was given and an opportunity to be heard was given to all persons requesting to be heard in
accordance with this Court's orders. The Court has reviewed the terms of the Settlement
Agreement, the submissions of the Parties in support of it, and the comments and objections
received in response to the notice.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

I.

DEFINITIONS

All capitalized terms in this Final Judgment shall have the same meaning as defined in
the Settlement. Agreement.

II.

JURISDICTION

This Court has jurisdiction over the subject matter of this action and over Apple. The
Complaints state a claim upon which relief may be granted against Apple pursuant to I5 U.S.C.
§§IS, I5c and 26. Jurisdiction lies in this CoUit pursuant to 28 U.S.C. § I5 and 28 U.S.C.
§ I332(d).

III.
A.

APPLICABILITY

This Final Judgment shall apply to Plaintiff States, Settlement Class, Apple and

Consumers who did not file with the Court valid and timely requests for exclusion from the
Settlement Agreement. The Court finds that the persons listed on Attachment A to this Final
Judgment submitted valid and timely exclusion requests.

IV.

SETTLEMENT AGREEMENT APPROVAL

The Court has determined that the Settlement Agreement is, in all respects, fair,
reasonable, and adequate and in the best interests of Consumers, and that notice thereof comports

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in all respects with 15 U.S.C. §§ 15 and 15c, Federal Rule of Civil Procedure 23 and due process.
This CoU1i further fmds the Settlement set forth in the Settlement Agreement is the result of
arm's-length negotiations between experienced counsel representing the interests of Consumers
and Apple. Accordingly, the Settlement embodied in the Settlement Agreement is hereby
approved in all respects and shall be consummated in accordance with their terms and
provisions. Any and all objections thereto are overruled.

V.
A.

CLASS CERTIFICATION

The Court finally certifies the following Settlement Class:
[a]ll persons in the Non-Litigating Jurisdictions who purchased Ebooks between Aprill, 2010 and May 21,2012, published by
Hachette Book Group, Inc. ("Hachette"), HarperCollins Publishers
L.L.C. ("HarperCollins"), Holtzbrinck Publishers, LLC d/b/a
Macmillan ("Macmillan"), Penguin Group (USA) Inc.
("Penguin"), or Simon & Schuster, Inc. ("Simon & Schuster")
directly from that publisher (including any of its imprints) after the
adoption ofthe agency model by that publisher. The "NonLitigating Jurisdictions" are American Samoa, California, Florida,
Georgia, Guam, Hawaii, Kentucky, Maine, Minnesota,
Mississippi, Montana, Nevada, New Hampshire, New Jersey,
North Carolina, Nmthern Mariana Islands, Oklahoma, Oregon,
Rhode Island, South Carolina, U.S. Virgin Islands, Washington,
and Wyoming. Excluded from the Class are Defendants, their
employees, co-conspirators, officers, directors, legal
representatives, heirs, successors, and wholly or partly owned
subsidiaries of affiliated companies, as well as the Honorable
Denise L. Cote and persons described in 28 U.S.C. § 455(b)(4)-(5).

B.

This certification is for settlement purposes only and shall not constitute, nor be

construed as, an admission on the part of Apple that this Action, or any other proposed or
certified class action, is appropriate for any other purpose, including, without limitation, for trial
class treatment.
C.

The Com1 appoints the following as the named plaintiffs for this Settlement Class:

Anthony Petru, Thomas Friedman, and Shane S. Davis.

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D.

The Comt designates Hagens Berman Sobol Shapiro LLP and Cohen Milstein

Sellers & Toll PLLC as Counsel for the Settlement Class.
E.

This Court finds and concludes that the applicable requirements of Federal Rule

of Civil Procedure 23 have been satisfied with respect to the Settlement Class and Settlement,
and specifically, that: (a) the number of members of the Settlement Class are so numerous that
joinder of all members thereof is impracticable; (b) there are questions of law and fact common
to the Settlement Class; (c) named plaintiffs' claims are typical ofthe claims of the Settlement
Class they seek to represent; (d) named plaintiffs and Class Counsel have fairly and adequately
represented and protected the interests of the Settlement Class and will continue to do so; and
(e) common questions of law and fact predominate over individual questions with respect to the
Settlement Class and Settlement.
F.

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, this Court hereby

approves the Settlement set forth in the Settlement Agreement and finds that said Settlement is,
in all respects, fair, reasonable and adequate to, and are in the best interests of, the named
plaintiffs, the Settlement Class and each of the Settlement Class Members.

VI.

CONSUMER DISTRIBUTION PLAN

Plaintiffs' Consumer Distribution Plan ("Distribution Plan"), as set forth in Exhibit J to
the Memorandum in Support ofPlaintiffs' Motion for Final Approval of Apple Settlement and
Distribution Plan, is fair, reasonable and adequate and is hereby approved. Plaintiffs are directed
to cause the Consumer Compensation funds, if any, be distributed in accordance with said
Distribution Plan as soon as practicable after the Effective Date of this Settlement.

VII.

STATE PAYMENTS

The Court hereby approves the distribution to Plaintiff States of the State Compensation
funds, if any, provided by Section V.B of the Settlement Agreement. Plaintiff States may allocate

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and distribute these funds at their discretion as set out in Section V.B of the Settlement
Agreement any time after the Effective Date, and without fwther order of this Court. 1
VIII. NO ADMISSION OF LIABILITY
Neither this Final Judgment nor the Settlement Agreement shall be used or construed by
any person as an admission of liability by Apple to any pmty or person, or be deemed evidence
of any violation of any statute or law or admission of any liability or wrongdoing by Apple or of
the truth of any of the claims or allegations contained in the Complaints. Neither this Final
Judgment nor the Settlement Agreement shall be offered in evidence or used for any other
purpose in this or any other matter or proceeding other than as may be necessary to consummate
or enforce the Settlement Agreement or the terms of this Final Judgment or by Apple in
connection with any action asserting Released Claims.
IX.

DISMISSAL OF ACTIONS AND RELEASE

Upon the Effective Date, and subject to the provisions of Section XI ofthis Final
Judgment, Plaintiff States' and Settlement Class's Complaints are dismissed as against Apple
with prejudice, except for Plaintiff States' claims for injunctive relief against Apple, which are
currently under appeal in the Liability Appeal. Plaintiffs and Consumers who did not file with
the Court valid and timely requests for exclusion from the Settlement Agreement are barred from
fwther prosecution of the Released Claims, and Releasees are released and forever discharged
from liability for the Released Claims.
X.

FINALITY OF JUDGMENT

Except for the Order addressing Class Plaintiffs Motion for Award of Attorneys' Fees
and Reimbursement of Expenses Related to the Apple Settlement, and except for Plaintiff States'
1

With respect to the State of Colorado, its apportionment shall be used first for reimbursement of
Colorado's actual costs and attorneys' fees, second, to be held, along with any interest thereon, in trust by
the Attorney General for future consumer education, consumer fraud, or antitrust enforcement efforts.

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Case 1:11-md-02293-DLC Document 683-1 Filed 11/19/14 Page 7 of 7

claims for injunctive relief against Apple, which are currently under appeal in the Liability
Appeal, the Comt finds that this Final Judgment adjudicates all the claims, rights and liabilities
of the Parties, and is final and shall be immediately appealable.

XI.

RETENTION OF JURISDICTION

Without affecting the finality of this Final Judgment, the Court retains jurisdiction for the
purpose of enforcing the terms of the Settlement Agreement and enabling any patty hereto to
apply for such further orders and directions as may be necessary or appropriate for the
construction or carrying out of this Final Judgment, the modification of any of the provisions
hereto to the extent such modification is permitted, and to remedy a violation of any ofthe
provisions contained herein. This Court shall have the authority to specifically enforce the
provisions of this Final Judgment.

SO ORDERED:

1ol-k

Dated: New York, New York

a1 , zoi4.
Hon. DE
United S

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Attachmen~ARequests for Exclusion

Requests For Exclusion

1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
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47

Postm!!rk Date
Claimant Name
9/10/2014
ANN C EVANGELISTA
9/10/2014
JEFFERY UTIELL
9/10/2014
JOSEPH SMITHWICK
9/10/2014
RIZRASHOI
9/10/2014
SUSAN RUTHERFORD
9/11/2014
ANDREW WAHL
9/11/2014
BRADLEY MOHR
9/11/2014
DAVID ENDAHL
9/11/2014
EDWARD DEVLIN
9/11/2014
FIN NUALA KELLEHER TESSIER
9/11/2014
JAMES SHELDON
9/11/2014
JEFF BOLES
9/11/2014
KARL GIBSON
9/11/2014
KEVIN HOANG
9/11/2014
KRISTINE ENDERLE
9/11/2014
MEREDITH WORLEY
9/11/2014
RYAN DIONNE
9/12/2014
AMYLAMBES
9/12/2014
GENEGAREZ
9/12/2014
PAOLA MORENO
9/12/2014
ROBERTO WAGNER FERRIRA MALTA
9/12/2014
RUSSELL MADSEN
9/12/2014
THE MARTIN FAMILY
9/13/2014
BONNIE FOWLER
9/13/2014
KEVIN PAULl
9/13/2014
WOODY DEAN COOK
9/15/2014
CARL GALLOZZI
9/15/2014
CHRISTOPHER J CASEBOLT
9/15/2014
DENISE COTE
9/15/2014
JOSEPH CILLUFFO
9/15/2014
JOYCE WEINER
9/15/2014
MARGARET JONES
MICHAEL SANJONGCO
9/15/2014
9/15/2014
NANCY A HUGHES
9/16/2014
DAVID SUTTON
9/16/2014
FIONA SCOTT MORTON
9/16/2014
JODIEAREHA
9/16/2014
KENNETH M FUSARO
9/16/2014
KURT RUSSELL BURNUM
9/16/2014
MELINDA MARTIN
9/16/2014
PATRICK BROOKS
9/18/2014
ANNWPARKER
9/18/2014
SCOTIFLOYD
9/18/2014
WADE TREGASKIS
9/17/2014
BONNIE A CRIST
9/17/2014
DAN KLEIN
9/19/2014
ROGER HICKMAN

Requests For Exclusion
Claimant Name

48 DENISE JONES
49 DAVID BARNES
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76

JOSH SCHOENWALD
CARRIESYME
SASHA VIZCARRONDO
PARTICIA SIERER
JONATHAN GREASLEY
AWVAN BREEN
LESLIE GNANT
ALTHEA LOGAN
ELLYN BROWN
PATRICIA HAGEN
GWENDOLYN F BOLE
ROBERT J WIGGERS
DAVID SEIDMAN
NICOLE VALLONE
NICOLE BLAIR
DAVIDKULLY
ETHAN GLASS
JOHN READ
JOHN ROBERT KRAMER II
KTHERINE LEONG SUITON
MARY BETH MCGEE
NATHAN P SUTION
SALLY M MARKS
PATRIS TONEY
ADAM SPEEGLE
MICHAEL COLLARD
WILLIAM D HETZEL

Postmark Datg

9/20/2014
9/21/2014
9/25/2014
9/25/2014
9/26/2014
9/26/2014
9/30/2014
9/30/2014
10/1/2014
10/2/2014
10/3/2014
10/8/2014
10/11/2014
10/11/2014
10/13/2014
10/15/2014
10/17/2014
10/20/2014
10/20/2014
10/20/2014
10/20/2014
10/20/2014
10/20/2014
10/20/2014
10/20/2014
10/22/2014
10/27/2014
10/27/2014
10/27/2014