Winston v. Peacock TV LLC

Filing 47

FINAL APPROVAL ORDER AND JUDGMENT. The Court, having considered all matters submitted to it at the hearing and otherwise, and it appearing that the Class Notice substantially in the form approved by the Court was given in the manner that the Cou rt ordered to persons who purchased the Peacock Subscriptions at issue, as ordered by the Court, and having considered and determined that the proposed settlement of the claims of the Settlement Class Members against Defendant, as well as the rele ase of Defendant and the Released Parties, and the awards of attorneys' fees, costs, and expenses and incentive award requested, are fair, reasonable and adequate, hereby ORDERS THAT: The definitions in the Settlement Agreement and the Court& #039;s Preliminary Approval Order are hereby incorporated herein as though fully set forth in this Order, and all other terms and phrases in this Order shall have the same meaning as ascribed to them in the Settlement Agreement and in the Court&# 039;s Preliminary Approval Order, and/or in any Order of this Court prior to the entry of final Judgment. The Court finds that the prerequisites for a settlement class under Federal Rules of Civil Procedure ("Fed. R. Civ. P.") 23(a) and (b)(3) have been satisfied, for purposes of settlement only, in that: (a) the number of Settlement Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the Settlemen t Class; (c) the claims of the Class Representative are typical of the claims of the Settlement Class she seeks to represent; (d) the Class Representative has and will fairly and adequately represent the interests of the Settlement Class; (e) the questions of law and fact common to the Settlement Class Members predominate over any questions affecting any individual Settlement Class Member; and (f) a class action is superior to the other available methods for the fair and efficient adjudic ation of the controversy. The Court finds that the requirements of Rule 23(e) of the Federal Rule of Civil Procedure and other laws and rules applicable to final settlement approval of class actions have been satisfied, and the Court approves the settlement of this Action as memorialized in the Settlement Agreement as being fair, just reasonable and adequate to the Settlement Class and its members. The Court further finds that the Settlement Agreement substantially fulfills the purposes and objectives of the class action, and provides substantial relief to the Settlement Class without the risks, burdens, costs or delays associated with continued litigation, trial and/or appeal. The Settlement is not a finding or admission of li ability by the Defendant or any other person, nor a finding of the validity of any claims asserted in the Action or of any wrongdoing or any violation of law. Pursuant to Fed. R. Civ. P. 23, this Court hereby finally certifies this action, for p urposes of settlement, a class action on behalf of all Persons who, from September 15, 2019, to and through February 27, 2024, enrolled in an automatically renewing Peacock Subscription directly through Peacock using a California billing and/or de livery address, and who were charged and paid an automatic renewal fee(s) in connection with such subscription. Excluded from this definition are the Released Parties. Settlement Class Members who exclude themselves from the Settlement, pursuant to the procedures set forth in Paragraph 4.5 of the Settlement Agreement, shall no longer thereafter be Settlement Class Members and shall not be bound by the Settlement Agreement and shall not be eligible to make a claim for any benefit under th e terms of this Settlement Agreement. The Court appoints the law firms of Bursor & Fisher, P.A. and Gucovschi Rozenshteyn, PLLC as Class Counsel for the Settlement Class. The Court designates Plaintiff Holly Winston as the Class Representative . Epiq Class Action & Claims Solutions, Inc. ("Epiq") is finally appointed to continue to serve as the Claims Administrator as provided in the Settlement Agreement. The Claims Administrator is directed to process all Authorized Claims i n accordance with the Settlement Agreement. Class Counsel and Counsel for Defendant are hereby authorized to employ all reasonable procedures in connection with administration of the Settlement Agreement that are not materially inconsistent wit h this Order or the Settlement Agreement. Pursuant to Fed. R. Civ. P. 23(h), the Court hereby awards Class Counsel attorneys' fees, costs, and expenses in the amount of 1,247,545.71. The Court also orders payment of an incentive award(s) in the amount(s) of $5,000.00 to Plaintiff Holly Winston. These amounts are to be paid in the time and manner described in the Settlement Agreement. he Action is hereby dismissed with prejudice and without costs as against Defendant and the Rel eased Parties. Class Representative and all Settlement Class Members (except any such person who has filed a proper and timely request for exclusion) and all persons acting on behalf of or in concert with any of the above, are hereby permanently b arred and enjoined from instituting, commencing or prosecuting, either directly or in any other capacity, any and all of the Released Claims against any of the Released Parties. The Court finds that issuance of the permanent injunction describe d in this paragraph is necessary and appropriate in aid of the Court's jurisdiction over this Action and to protect and effectuate this Order. Effective as of the Final Settlement Approval Date, each and all of the Settlement Class Members (e xcept any such person who has filed a proper and timely request for exclusion) shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever released, relinquished, and discharged, and shall be forever bar red from asserting, instituting, or maintaining against any or all of the Released Parties, any and all causes of action or claims for relief, whether in law or equity, including but not limited to injunctive relief, actual damages, nominal damage s, statutory damages, punitive damages, exemplary or multiplied damages, restitution, disgorgement, expenses, attorneys' fees and costs, and/or any other form of consideration whatsoever (including Unknown Claims), whether in law or in equity , accrued or n-accrued, direct, individual or representative, of every nature and description whatsoever, that were brought or could have been brought in the Action relating to any and all Releasing Parties, any Peacock Subscription associated wi th any of them, or that in any way relate to or arise out of Defendant's automatic renewal and/or continuous service programs in California from September 15, 2019, to and through February 27, 2024, including but not limited to any of the fa cts, transactions, events, matters, occurrences, acts, disclosures, statements, representations, omissions or failures to act related thereto. Plaintiff, the Settlement Class and the Releasing Parties each individually covenant not to bring any R eleased Claim and expressly agree that this Release will be, and may be raised as, a complete defense to and will preclude any action or proceeding encompassed by the release(s) contained herein in respect to any Peacock Subscription associated wi th a Class Member. his Settlement Approval Order and Final Judgment constitutes a judgment within the meaning and for purposes of Rule 54 of the Federal Rules of Civil Procedure. Without affecting the finality of the Settlement Approval Order and Final Judgment in any way this Court hereby retains continuing jurisdiction over: (a) the disposition of the settlement benefits; (b) the settling parties for purposes of construing, enforcing and administering the Settlement Agreement; and (c) enforcement of the Stipulation and Order Regarding Unde1iaking Re: Attorneys' Fees and Costs., Motions terminated: 35 MOTION for Settlement Final Approval of Class Action Settlement. filed by Holly Winston, 31 MOTION for Attorney Fees Costs, Expenses, and Incentive Award. filed by Holly Winston. (Signed by Judge Andrew L. Carter, Jr on 11/21/24) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

HOLLY WINSTON, on behalf of herself and all
others similarly situated,
Plaintiff,

v.

Civil Action No.: 1:23-cv-08191-ALC
Hon. Andrew L. Carter, Jr.

PEACOCK TV LLC,
Defendant.

[PROPOSED] FINAL APPROVAL ORDER AND JUDGMENT
On August 1, 2024, this Court granted preliminary approval of the proposed class action
settlement agreement between the parties (the “Settlement Agreement” or “Settlement”).
The Court also provisionally certified a Settlement Class for settlement purposes,
approved the procedure for giving notice and forms of Notice, and set a final approval hearing to
take place on November 21, 2024, at 11:00 a.m. in Courtroom 1306 at the Thurgood Marshall
United States Courthouse, 40 Foley Square, New York, New York. The Settlement Class is
defined as: all Persons who, from September 15, 2019, to and through February 27, 2024,
enrolled in an automatically renewing Peacock Subscription directly through Peacock using a
California billing and/or delivery address, and who were charged and paid an automatic renewal
fee(s) in connection with such subscription. Excluded from this definition are the Released
Parties. Settlement Class Members who exclude themselves from the Settlement, pursuant to the
procedures set forth in Paragraph 4.5 of the Settlement, shall no longer thereafter be Settlement
Class Members and shall not be bound by the Settlement and shall not be eligible to make a
claim for any benefit under the terms of the Settlement.

On November 21, 2024, the Court held a duly noticed final approval hearing to consider:
(1) whether the terms and conditions of the Settlement are fair, reasonable and adequate; (2)
whether a judgment should be entered dismissing the complaint on the merits and with prejudice
in favor of Defendant and against all persons or entities who are Settlement Class members
herein who have not requested exclusion from the Settlement Class; and (3) whether and in what
amount to award attorneys’ fees, costs and expenses to Class Counsel and whether and in what
amount to make an incentive award to Plaintiff Holly Winston.
The Court, having considered all matters submitted to it at the hearing and otherwise, and
it appearing that the Class Notice substantially in the form approved by the Court was given in
the manner that the Court ordered to persons who purchased the Peacock Subscriptions at issue,
as ordered by the Court, and having considered and determined that the proposed settlement of
the claims of the Settlement Class Members against Defendant, as well as the release of
Defendant and the Released Parties, and the awards of attorneys’ fees, costs, and expenses and
incentive award requested, are fair, reasonable and adequate, hereby ORDERS THAT:
1.

The definitions in the Settlement Agreement and the Court’s Preliminary

Approval Order are hereby incorporated herein as though fully set forth in this Order, and all
other terms and phrases in this Order shall have the same meaning as ascribed to them in the
Settlement Agreement and in the Court’s Preliminary Approval Order, and/or in any Order of
this Court prior to the entry of final Judgment.
2.

The Court finds that the prerequisites for a settlement class under Federal Rules of

Civil Procedure (“Fed. R. Civ. P.”) 23(a) and (b)(3) have been satisfied, for purposes of
settlement only, in that: (a) the number of Settlement Class Members is so numerous that joinder
of all members thereof is impracticable; (b) there are questions of law and fact common to the
Settlement Class; (c) the claims of the Class Representative are typical of the claims of the

2

Settlement Class she seeks to represent; (d) the Class Representative has and will fairly and
adequately represent the interests of the Settlement Class; (e) the questions of law and fact
common to the Settlement Class Members predominate over any questions affecting any
individual Settlement Class Member; and (f) a class action is superior to the other available
methods for the fair and efficient adjudication of the controversy.
3.

The Court finds that the requirements of Rule 23(e) of the Federal Rule of Civil

Procedure and other laws and rules applicable to final settlement approval of class actions have
been satisfied, and the Court approves the settlement of this Action as memorialized in the
Settlement Agreement as being fair, just reasonable and adequate to the Settlement Class and its
members. The Court further finds that the Settlement Agreement substantially fulfills the
purposes and objectives of the class action, and provides substantial relief to the Settlement Class
without the risks, burdens, costs or delays associated with continued litigation, trial and/or
appeal. The Settlement is not a finding or admission of liability by the Defendant or any other
person, nor a finding of the validity of any claims asserted in the Action or of any wrongdoing or
any violation of law.
4.

Pursuant to Fed. R. Civ. P. 23, this Court hereby finally certifies this action, for

purposes of settlement, a class action on behalf of all Persons who, from September 15, 2019, to
and through February 27, 2024, enrolled in an automatically renewing Peacock Subscription
directly through Peacock using a California billing and/or delivery address, and who were
charged and paid an automatic renewal fee(s) in connection with such subscription. Excluded
from this definition are the Released Parties. Settlement Class Members who exclude
themselves from the Settlement, pursuant to the procedures set forth in Paragraph 4.5 of the
Settlement Agreement, shall no longer thereafter be Settlement Class Members and shall not be

3

bound by the Settlement Agreement and shall not be eligible to make a claim for any benefit
under the terms of this Settlement Agreement.
5.

The Court appoints the law firms of Bursor & Fisher, P.A. and Gucovschi

Rozenshteyn, PLLC as Class Counsel for the Settlement Class. The Court designates Plaintiff
Holly Winston as the Class Representative.
6.

Notice of the pendency of this action as a class action and of the proposed

settlement was given to Settlement Class Members in a manner reasonably calculated to provide
the best notice practicable under the circumstances. The form and method of notifying the
Settlement Class of the pendency of the Action as a class action and of the terms and conditions
of the proposed Settlement met the requirements of Fed. R. Civ. P. 23, due process, and any
other applicable law, and constituted due and sufficient notice to all persons and entities entitled
thereto. In addition, the Court finds that Defendant fully satisfied any obligation to provide
Notice of the proposed Settlement Agreement to the public officials designated under the Class
Action Fairness Act, 28 U.S.C. § 1715, to receive such notice, as set forth in the Defendant’s
Notice of Compliance with 28 U.S.C. § 1715.
7.

The Court has considered and finds Class Counsel and the Class Representative

have adequately represented the Class. Plaintiff, by and through her counsel, has investigated
the pertinent facts and law, and has evaluated the risks associated with continued litigation, class
certification, trial, and/or appeal. The Court finds that the Settlement Agreement was reached in
the absence of collusion, is the product of informed, good-faith, arms-length negotiations
between the parties and their capable and experienced counsel.
8.

The Court finds that the Settlement is effective in appropriately distributing relief

to the Settlement Class in light of the claims and defenses asserted, that the method of processing

4

Settlement Class Member claims is reasonable and appropriate, and that the Settlement
Agreement treats all Settlement Class Members equitably relative to each other.
9.

The Court has evaluated this overall reaction of the Class to the Settlement, and

finds that the overall acceptance of the Settlement Agreement by Settlement Class Members
supports the Court’s conclusion that the Settlement Agreement is in all respects fair, reasonable,
adequate, and in the best interests of the Class.
10.

The Parties are directed to consummate the Settlement Agreement in accordance

with its terms and conditions.
11.

As set forth at Paragraph 2.2 of the Settlement Agreement, Defendant has agreed

to provide automatic renewal terms on its checkout pages in a manner that is consistent with the
requirements of California’s Automatic Renewal Law (“ARL”), Cal. Bus. & Prof. Code §§
17600, et seq. Specifically, Defendant agrees to present to California subscribers on the
checkout page for any Peacock Subscription that will automatically renew, the automatic
renewal offer terms associated with such subscription (including cancellation policy) in a clear
and conspicuous manner before the subscription or purchasing agreement and in visual proximity
to the request for consent to the offer. Defendant will obtain affirmative consent to the agreement
containing the automatic renewal terms in a manner that complies with the ARL. Defendant
further agrees to disclose to subscribers with a California billing address, in a manner that
substantially complies with the ARL, how to cancel in an acknowledgment email that is capable
of being retained by consumers.
12.

Epiq Class Action & Claims Solutions, Inc. (“Epiq”) is finally appointed to

continue to serve as the Claims Administrator as provided in the Settlement Agreement. The
Claims Administrator is directed to process all Authorized Claims in accordance with the
Settlement Agreement. Class Counsel and Counsel for Defendant are hereby authorized to

5

employ all reasonable procedures in connection with administration of the Settlement Agreement
that are not materially inconsistent with this Order or the Settlement Agreement.
13.

The Claims Administrator shall administer the Escrow Account, which is a

Qualified Settlement Fund within the meaning of Treasury Regulation § 1.468B-1. The Claims
Administrator, as administrator of the fund within the meaning of Treasury Regulation § 1.468B2(k)(3), shall be solely responsible for filing or causing to be filed all informational and other tax
returns as may be necessary or appropriate (including, without limitation, the returns described in
Treasury Regulation § 1.468B-2(k)) for the Escrow Account. The Claims Administrator shall
also be responsible for causing payment to be made from the Escrow Account of any Taxes and
Tax Expenses owed. None of the Releasees, Plaintiff, Class Counsel or Counsel for Defendant
shall have any liability or responsibility for any such Taxes or Tax Expenses, or any required
filings regarding same.
14.

There shall be no recourse to any Defendant, Releasee, Released Party or their

counsel, or to the Class Representative or Class Counsel, or to the Claims Administrator or to
this Court, for any determination made by the Claims Administrator pursuant to its
responsibilities under the Settlement Agreement. In addition, notwithstanding anything else in
this Order, if the Claims Administrator or any Party has reason to believe that a false or
fraudulent Claim has been submitted in this Settlement, or that any Claim has been submitted
under false pretenses, the Claims Administrator may reject the Claim.
15.

The Court has evaluated the application for a Fee Award and Incentive Award in

connection with its consideration of the overall fairness, reasonable and adequacy of the
Settlement.
16.

Pursuant to Fed. R. Civ. P. 23(h), the Court hereby awards Class Counsel

1,247,545.71
attorneys’ fees, costs, and expenses in the amount of $________________.
The Court also

6

5,000.00 to Plaintiff Holly
orders payment of an incentive award(s) in the amount(s) of $_______
Winston. These amounts are to be paid in the time and manner described in the Settlement
Agreement.
17.

Any appeal from any Fee Award or Incentive Award or other order relating

thereto, shall not operate to terminate or cancel the Settlement Agreement, nor affect or delay the
finality of this Final Order and Judgment.
18.

The Action is hereby dismissed with prejudice and without costs as against

Defendant and the Released Parties.
19.

Class Representative and all Settlement Class Members (except any such person

who has filed a proper and timely request for exclusion) and all persons acting on behalf of or in
concert with any of the above, are hereby permanently barred and enjoined from instituting,
commencing or prosecuting, either directly or in any other capacity, any and all of the Released
Claims against any of the Released Parties. The Court finds that issuance of the permanent
injunction described in this paragraph is necessary and appropriate in aid of the Court’s
jurisdiction over this Action and to protect and effectuate this Order.
20.

Effective as of the Final Settlement Approval Date, each and all of the Settlement

Class Members (except any such person who has filed a proper and timely request for exclusion)
shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally, and
forever released, relinquished, and discharged, and shall be forever barred from asserting,
instituting, or maintaining against any or all of the Released Parties, any and all causes of action
or claims for relief, whether in law or equity, including but not limited to injunctive relief, actual
damages, nominal damages, statutory damages, punitive damages, exemplary or multiplied
damages, restitution, disgorgement, expenses, attorneys’ fees and costs, and/or any other form of
consideration whatsoever (including Unknown Claims), whether in law or in equity, accrued or

7

un-accrued, direct, individual or representative, of every nature and description whatsoever, that
were brought or could have been brought in the Action relating to any and all Releasing Parties,
any Peacock Subscription associated with any of them, or that in any way relate to or arise out of
Defendant’s automatic renewal and/or continuous service programs in California from
September 15, 2019, to and through February 27, 2024, including but not limited to any of the
facts, transactions, events, matters, occurrences, acts, disclosures, statements, representations,
omissions or failures to act related thereto. Plaintiff, the Settlement Class and the Releasing
Parties each individually covenant not to bring any Released Claim and expressly agree that this
Release will be, and may be raised as, a complete defense to and will preclude any action or
proceeding encompassed by the release(s) contained herein in respect to any Peacock
Subscription associated with a Class Member.
21.

Neither the Settlement Agreement, nor any of its terms and provisions, nor any of

the negotiations or proceedings connected with it, nor any of the documents or statements
referred to therein shall be:
(a)

offered by any person or received against Defendant as evidence or

construed as or deemed to be evidence of any presumption, concession, or admission by
Defendant of the truth of the facts alleged by the Class Representative or any Settlement Class
Member or the validity of any claim that has been or could have been asserted in the Action or in
any litigation, or other judicial or administrative proceeding, or the deficiency of any defense that
has been or could have been asserted in the Action or in any litigation, or of any liability,
negligence, fault or wrongdoing of Defendant;
(b)

offered by any person or received against Defendant as evidence of a

presumption, concession or admission of any fault, misrepresentation or omission with respect to

8

any statement or written document approved or made by Defendant or any other wrongdoing by
Defendant;
(c)

offered by any person or received against Defendant as evidence of a

presumption, concession, or admission with respect to any liability, negligence, fault, or
wrongdoing, or in any way referred to for any other reason against any of the settling parties, in
any civil, criminal, or administrative action or proceeding; provided, however, that nothing
contained in this paragraph shall prevent the Settlement Agreement from being used, offered, or
received in evidence in any proceeding to approve, enforce, or otherwise effectuate the
Settlement or the Settlement Approval Order and Final Judgment, or in which the
reasonableness, fairness, or good faith of the parties in participating in the Settlement (or any
agreement or order relating thereto) is an issue, or to enforce or effectuate provisions of the
Settlement, the Settlement Approval Order and Final Judgment, the releases as to the Released
Parties.
22.

Claims documents in this case, and all materials and data held by the Claims

Administrator regarding the Settlement Class, including the Class List, shall be strictly confidential
and not subject to publication or disclosure, and shall not be used for any other purposes beyond
providing notice to the Settlement Class and assisting with the determination of valid claims. No
person other than the Parties and their counsel, the Claims Administrator, and the Court shall be
permitted to obtain or review any Claim Form, or any decision of the Claims Administrator with
respect to accepting or rejecting any Claim, except as provided for herein or upon Court Order for
good cause shown.
23.

This Settlement Approval Order and Final Judgment constitutes a judgment

within the meaning and for purposes of Rule 54 of the Federal Rules of Civil Procedure.
Without affecting the finality of the Settlement Approval Order and Final Judgment in any way,

9