Case Document 28-1 Filed 03/12/15 Page 1 of 69 Exhibit 1 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 2 of 69 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HOLLY YENCHA, individually and on behalf of all others similarly situated, Plaintiff, Case No. 14-cv-00578 v. ZeoBIT LLC, a California limited liability company, Defendant. STIPULATION OF CLASS ACTION SETTLEMENT This Stipulation of Class Action Settlement (the “Agreement” or “Settlement”) is entered into by and among Plaintiff Holly Yencha (“Yencha”), for herself individually and on behalf of the Settlement Class, and Defendant ZeoBIT, LLC (“ZeoBIT”; and Yencha and ZeoBIT are referred to collectively as the “Parties” or individually as a “Party”). This Agreement is intended by the Parties to fully, finally and forever resolve, discharge and settle the Released Claims upon and subject to the terms and conditions hereof, and subject to the approval of the Court. RECITALS WHEREAS, on May 6, 2014, this action was filed in the United States District Court for the Western District of Pennsylvania by Yencha, who alleged claims for damages, injunctive, and declaratory relief against ZeoBIT, (see Dkt. 1); WHEREAS, on July 14, 2014, ZeoBIT filed its answer and affirmative defenses to Yencha’s complaint, (Dkt. 8); WHEREAS, on September 29, 2014, the Parties appeared before the Court for an initial scheduling conference. The Court entered the Parties’ proposed discovery plan (see Dkt. 15) and Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 3 of 69 advised the Parties to designate a neutral to conduct an early neutral evaluation (“ENE”) conference and discuss class certification; WHEREAS, following the scheduling conference, the Parties met and conferred regarding their respective views of the claims and defenses asserted in the Action, and Plaintiff’s counsel presented the underlying forensics investigation their expert performed into the software at issue; WHEREAS, the Parties selected the Honorable Edward A. Infante (ret.) of JAMS as the early neutral evaluator in this Action; WHEREAS, on October 22, 2014, the Court appointed Judge Infante as the early neutral evaluator in this Action (see Dkt. 20); WHEREAS, on January 6, 2015, the Parties convened the ENE before Judge Infante at JAMS in San Francisco, California; WHEREAS, as the ENE proceeded, the Parties also discussed the potential to resolve the Action on a class-wide basis; WHEREAS, as a result of their discussions at the ENE and with Judge Infante’s assistance, the Parties were able to reach a proposed class-wide resolution of the Action, as outlined in this Agreement; WHEREAS, Yencha and Class Counsel have conducted a comprehensive examination of the law and facts relating to the matters at issue in the Action regarding Yencha’s claims and ZeoBIT’s potential defenses; WHEREAS, the Parties engaged in extensive arms-length settlement negotiations, including with the assistance of a third-party neutral appointed by the Court; WHEREAS, based on an analysis of the facts and the law applicable to Yencha’s claims 2 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 4 of 69 in the Action, and taking into account the burdens and expense of such litigation, including the risks and uncertainties associated with protracted trials and appeals, as well as the fair, costeffective and assured method of resolving the claims of the Settlement Class, Yencha and Class Counsel have concluded that this settlement provides substantial benefits to the Settlement Class and the public as a whole, and is fair, reasonable, adequate, and in the best interest of Yencha and the Settlement Class; and WHEREAS, ZeoBIT denies any liability or wrongdoing, but has similarly concluded that this Agreement is desirable in order to avoid the time, risk and expense of defending protracted litigation, and to resolve finally and completely the pending and potential claims of Yencha and the Settlement Class; NOW, THEREFORE, the Parties stipulate and agree that any and all Released Claims against ZeoBIT and all other Released Parties, shall be finally settled and resolved on the terms and conditions set forth in this Agreement, subject to Court approval, as a fair, reasonable and adequate settlement. AGREEMENT 1. DEFINITIONS Unless otherwise defined above, the following definitions shall define these terms for purposes of this Agreement: 1.1 “Action” means the case captioned Yencha v. ZeoBIT, LLC, No. 14-cv-00578, currently pending in the United States District Court for the Western District of Pennsylvania. 1.2 “Approved Claim” means a Claim Form, submitted by a Settlement Class Member that (a) is submitted timely and in accordance with the directions on the Claim Form and the provisions of this Agreement; (b) is fully and truthfully completed and executed, with all 3 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 5 of 69 of the information requested in the Claim Form by a Settlement Class Member; (c) is signed by the Settlement Class Member, physically or electronically; and (d) is verified by the Settlement Administrator pursuant to Section 5. 1.3 “Claim Form” means the form attached hereto as Exhibit A, as approved by the Court. The Claim Form, to be completed by Settlement Class Members who wish to file a claim for a payment pursuant to this Agreement, shall be available for submission in electronic and paper format. 1.4 “Claims Deadline” means the date by which all Claim Forms must be postmarked or received to be considered timely and shall be set as a date no later than forty-five (45) days after the Final Approval Hearing. The date of the Claims Deadline shall be clearly set forth in the Preliminary Approval Order as well as in the Notice and the Claim Form. 1.5 “Class Counsel” means attorneys Rafey S. Balabanian, Benjamin H. Richman, and Courtney C. Booth of Edelson PC. 1.6 “Class Representative” means the named plaintiff in the Action, Holly Yencha. 1.7 “Court” means the United States District Court for the Western District of Pennsylvania, the Honorable Joy Flowers Conti presiding, or any judge of this court who shall succeed her as the Judge assigned to this Action. 1.8 “Cy Pres Recipients” means the Carnegie Mellon CyLab Usable Privacy and Security Laboratory, and the National Consumer Law Center 1.9 “Defendant” means Defendant ZeoBIT, LLC. 1.10 “Defendant’s Counsel” means Barbara A. Scheib of Cohen and Grigsby P.C., and Matthew D. Brown and Matthew D. Caplan of Cooley LLP. 4 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 6 of 69 1.11 “Email Notice” means the legal notice summarizing the terms of this Settlement Agreement, as approved by Class Counsel, Defendant’s Counsel, and the Court, to be provided to the Settlement Class via electronic mail (as further provided for in Section 4 below). The Email Notice shall be substantially similar to the form attached hereto as Exhibit B. 1.12 “Escrow Account” means the separate, interest-bearing escrow account to be established by the Settlement Administrator under terms acceptable to Class Counsel and Defendant at a depository institution insured by the Federal Deposit Insurance Corporation. The money in the Escrow Account shall be invested in the following types of accounts and/or instruments and no other: (i) demand deposit accounts and/or (ii) time deposit accounts and certificates of deposit, in either case with maturities of forty-five (45) days or less. The costs of establishing and maintaining the Escrow Account shall be paid from the Settlement Fund. 1.13 “Fee Award” means the amount of attorneys’ fees and reimbursement of costs awarded by the Court to Class Counsel, which will be paid out of the Settlement Fund. 1.14 “Final Approval Hearing” means the hearing before the Court where the Parties will request that the Final Judgment be entered by the Court approving this Settlement Agreement, the Fee Award, and any incentive award to the Class Representative. The Final Approval Hearing shall be no earlier than seventy (70) days after the Notice Date or such other time as the Court shall set. 1.15 “Final Judgment” means the final judgment to be entered by the Court approving the class settlement of the Action in accordance with this Agreement after the Final Approval Hearing. 1.16 “Final Settlement Date” means one business day after the Final Judgment becomes “Final.” For purposes of this Section, “Final” means that all of the following have 5 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 7 of 69 occurred: (i) the time expires for filing or noticing any appeal of the Court’s Final Judgment approving this Agreement; (ii) if there is an appeal or appeals, other than an appeal or appeals solely with respect to the Fee Award, completion, in a manner that finally affirms and leaves in place the Final Judgment without any material modification, of all proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all deadlines for motions for reconsideration, rehearing en banc, or petitions for review and/or certiorari, all proceedings ordered on remand, and all proceedings arising out of any subsequent appeal or appeals following decisions on remand); or (iii) final dismissal of any appeal or the final dismissal of any proceeding on certiorari. 1.17 “MacKeeper” means any version of MacKeeper software, whether partial or complete, including all updates thereto, sold by ZeoBIT or by any other entity on or before the date of entry of the Preliminary Approval Order. 1.18 “Notice” means notice of this proposed settlement and the Final Approval Hearing, consisting of Email Notice and Website Notice. 1.19 “Notice Date” means the day by which the Notice set forth in Section 4, other than the second “final notice” email, is complete, which shall be a date no later than twenty-eight (28) days after entry of the Preliminary Approval Order. 1.20 “Objection/Exclusion Deadline” means the date by which a written objection to this Agreement must be filed with the Court or a request for exclusion by a Person within the Settlement Class must be postmarked or delivered to the Settlement Administrator, which shall be designated as a date forty-five (45) days after the Notice Date, or such other date as ordered by the Court. 6 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 8 of 69 1.21 “Person” means, without limitation, any individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, association, joint stock company, estate, legal representative, trust, unincorporated association, and any business or legal entity and their spouses, heirs, predecessors, successors, representatives, or assigns. 1.22 “Plaintiffs” (singular “Plaintiff”) means Holly Yencha and the Settlement Class Members, collectively. 1.23 “Preliminary Approval Order” means the order preliminarily approving the Settlement Agreement, certifying the Settlement Class for settlement purposes, and approving the form and manner of the Notice, a proposed version of which will be agreed upon by the Parties and submitted to the Court in conjunction with Plaintiff’s motion for preliminary approval of the Agreement. 1.24 “Released Claims” means any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, damages (including but not limited to punitive, exemplary or multiple damages), charges, penalties, losses, rights, actions, causes of action, claims, contracts or agreements, expenses, costs, attorneys’ fees and/or obligations (including “Unknown Claims” as defined below), whether in law or in equity, accrued or unaccrued, direct, individual or representative, of every nature and description whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including the law of any jurisdiction outside the United States (including both direct and derivative claims) against the Released Parties, or any of them, arising out of the facts, transactions, events, matters, occurrences, acts, disclosures, statements, misrepresentations, omissions, or failures to act regarding the design, use, marketing, advertising, functionality, operation, and/or performance of MacKeeper, including all claims that were 7 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 9 of 69 brought or could have been brought in the Action, belonging to any and all Plaintiffs and Releasing Parties. 1.25 “Released Parties” means ZeoBIT and any and all of its present or former heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliated and related entities, employers, employees, agents, representatives, consultants, independent contractors, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, investment bankers, insurers, underwriters, shareholders, lenders, auditors, investment advisors, and any and all present and former companies, firms, trusts, corporations, officers, directors, other individuals or entities in which ZeoBIT has a controlling interest or which is affiliated with any of them, or any other representatives of any of these Persons and entities. The definition of Released Parties specifically excludes Kromtech Alliance Corp. 1.26 “Releasing Parties” means Plaintiff Yencha and the Settlement Class Members who do not validly and timely request to be excluded from the proposed settlement (whether or not such Settlement Class Members submit claims) and all of the their present, former, and future heirs, executors, administrators, representatives, agents, attorneys, partners, predecessorsin-interest, successors, assigns, and legatees. To the extent a Settlement Class Member is not an individual, Releasing Parties also includes all of its present, former, and future direct and indirect parent companies, affiliates, subsidiaries, divisions, agents, franchisees, successors, and predecessors-in-interest. 1.27 “Settlement Administration Expenses” means the expenses incurred by the Settlement Administrator in providing Notice, processing claims, objections, and requests for exclusion, establishing and maintaining the settlement website and Escrow Account, 8 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 10 of 69 administering payments for Approved Claims (including costs of mailing checks), and any costs incurred in sending the CAFA notices described in Section 4.2 below. 1.28 “Settlement Administrator” means Rust Consulting, a third-party settlement administrator selected by the Parties, subject to the Court’s approval, to oversee the distribution of Notice, oversee the distribution of the CAFA notices, and conduct the processing and payment of Approved Claims to Settlement Class Members as set forth in this Agreement. 1.29 “Settlement Class” means all Persons in the United States and its territories who purchased MacKeeper on or before the date of entry of the Preliminary Approval Order. Excluded from the Settlement Class are: (1) the Judge presiding over the Action and members of her family; (2) ZeoBIT, ZeoBIT's subsidiaries, parent companies, successors, predecessors, and any entity in which ZeoBIT or its parents have a controlling interest and their current or former officers, directors, and employees; (3) Persons who properly execute and file a timely request for exclusion from the Settlement Class in accordance with Section 4.5 below; (4) Class Counsel and Defendant’s counsel; (5) any Person whose claims in the Action have been finally adjudicated or otherwise released; and (6) the legal representatives, successors or assigns of any such excluded Persons. 1.30 “Settlement Class Member(s)” means a Person who falls within the definition of the Settlement Class as set forth above. 1.31 “Settlement Fund” means a non-reversionary cash settlement fund to be established by Defendant in the amount of two-million dollars ($2,000,000.00), which shall be paid into the escrow account in two equal installments of one-million dollars ($1,000,000) each as follows: the first installment to be paid within twenty-eight (28) days after entry of the Preliminary Approval Order, and the second installment to be paid within twenty-eight (28) days 9 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 11 of 69 after the Final Settlement Date. The Settlement Fund shall be used for payments to Settlement Class Members, including Approved Claims and any payment to Cy Pres Recipients, all Settlement Administration Expenses, the Fee Award, and any incentive award to the Class Representative. The Settlement Fund includes all interest that shall accrue on the sums deposited in the Escrow Account. The Settlement Administrator shall be responsible for all tax filings with respect to any earnings on the Settlement Fund and the payment of all taxes that may be due on such earnings. 1.32 “Unknown Claims” means claims that could have been raised in the Action and that Plaintiff and/or the Settlement Class Members do not know or suspect to exist, which, if known by him, her, or it, might affect his, her or its agreement to release the Released Parties of the claims specified herein or might affect his, her or its decision to agree, object, or not object to the settlement. Upon the Final Settlement Date, for the purpose of the Released Claims, Settlement Class Members and Plaintiff shall be deemed to have, and shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil Code, and any law or legal principle of similar effect in any jurisdiction, whether federal or state. Section 1542 of the California Civil Code provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 1.33 “Website Notice” means the legal notice of terms of this Settlement Agreement, as approved by Class Counsel, Defendant’s Counsel, and the Court, to be provided to Settlement Class Members on a website to be established by the Settlement Administrator (as further 10 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 12 of 69 provided for in Section 4.1(b) below). The Website Notice shall be substantially similar to the form attached hereto as Exhibit C. 2. SETTLEMENT RELIEF 2.1 Monetary Payments to Settlement Class Members (a) Settlement Class Members shall have until the Claims Deadline to submit an Approved Claim. Each Settlement Class Member with an Approved Claim will be paid a pro rata share of the amount in the Settlement Fund, after payment of Settlement Administration Expenses, the Fee Award, and any incentive award to the Class Representative, up to a maximum payment of thirty nine dollars and ninety five cents ($39.95) per Settlement Class Member with an Approved Claim. (b) To the extent that any funds remain in the Settlement Fund after all payments to Settlement Class Members with Approved Claims have been made, such funds shall be distributed to the Cy Pres Recipients pro rata. (c) Within fifty-six (56) days after the Final Settlement Date, or such other date as the Court may set, the Settlement Administrator shall pay from the Settlement Fund all Approved Claims by check, which will be mailed to the claimants of the Settlement Class via first-class mail. All cash payments issued to Settlement Class Members via check will state on the face of the check that the check will expire and become null and void unless cashed within ninety (90) days after the date of issuance. (d) To the extent that a check issued to a Settlement Class Member is not cashed within ninety (90) days after the date of issuance, the check will be void, and such funds shall revert to the Settlement Fund for distribution to the Cy Pres Recipients. In no event will the funds represented by an uncashed check constitute abandoned or unclaimed property. 11 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 13 of 69 3. RELEASES 3.1 Settlement Class Members’ Release. Upon the Final Settlement Date, the Releasing Parties, and each of them, shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims against the Released Parties. 3.2 Class Representative’s Release. Upon the Final Settlement Date, Plaintiff Yencha and her present, former, and future heirs, executors, administrators, representatives, agents, attorneys, partners, predecessors-in-interest, successors, assigns, and legatees fully, finally and forever release, relinquish, and discharge the Released Parties from all Released Claims, Unknown Claims, and any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, damages (including but not limited to punitive, exemplary or multiple damages), charges, penalties, losses, rights, actions, causes of action, claims, contracts or agreements, expenses, costs, attorneys’ fees and/or obligations, whether in law or in equity, accrued or unaccrued, direct, individual or representative, of every nature and description whatsoever, whether based on the UCL or other federal, state, local, statutory or common law or any other law, rule or regulation, including the law of any jurisdiction outside the United States (including both direct and derivative claims). Plaintiff Yencha, individually and on behalf of each of her present, former, and future heirs, executors, administrators, representatives, agents, attorneys, partners, predecessors-ininterest, successors, assigns, and legatees, fully understands that the facts upon which this Agreement is executed may hereafter be other than or different from the facts now believed by Plaintiff Yencha and/or her counsel to be true and expressly accepts and assumes the risk of such 12 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 14 of 69 possible difference in facts and agrees that this Agreement shall remain effective notwithstanding any such difference in facts. Plaintiff Yencha acknowledges and agrees that this waiver is an essential and material term of this release and the settlement that underlies it and that without such waiver the settlement would not have been accepted. 4. NOTICE TO THE CLASS 4.1 Notice to the Settlement Class will be disseminated as follows: (a) Direct Notice. The Settlement Administrator shall send Email Notice, which shall be substantially similar to the form attached as Exhibit B, which shall include an electronic link to the Claim Form, to each Person in the Settlement Class for whom ZeoBIT has a valid email address no later than the Notice Date, or on such other date determined by the Court. For emails that immediately result in a bounce-back or are otherwise undeliverable, the Settlement Administrator shall attempt to re-send the Email Notice prior to the Notice Date. Further, fourteen (14) days prior to the Objection/Exclusion Deadline, the Settlement Administrator will disseminate another copy of the Email Notice, adding to the subject line of the email “FINAL NOTICE.” All Email Notice shall inform the Settlement Class how to file claims and objections and how to request exclusion. (b) Settlement Website. Starting no later than the start of the dissemination of Email Notice to the Settlement Class, the Website Notice shall also be provided on a website, which shall be established by the Settlement Administrator and shall include the ability to electronically file Claim Forms online. The Website Notice shall be substantially similar to the form attached as Exhibit C. 4.2 CAFA Notice. Not later than ten (10) days after the Agreement is filed with the Court, the Settlement Administrator shall serve upon the relevant government officials notice of 13 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 15 of 69 the proposed settlement in accordance with 28 U.S.C. § 1715. 4.3 All objections and any papers submitted in support of such objection, shall be considered by the Court at the Final Approval Hearing only if, on or before the Objection/Exclusion Deadline approved by the Court, the Person making the objection (1) either files copies of such papers he or she proposes to submit at the Final Approval Hearing with the Clerk of the Court or, if represented by counsel, files copies of such papers through the Court’s Case Management/Electronic Case Filing (CM/ECF) system, and (2) sends copies of such papers via mail, hand, or overnight delivery service to both Class Counsel and Defendant’s counsel. Any Settlement Class Member who intends to object to this Agreement must present the objection in writing, which must be personally signed by the objector, and must include: (1) the objector’s name, address, email address, and contact phone number; (2) an explanation of the basis upon which the objector claims to be a Settlement Class Member; (3) all grounds for the objection, including all citations to legal authority and evidence supporting the objection; (4) the name and contact information of any and all attorneys representing, advising, or in any way assisting the objector in connection with the preparation or submission of the objection or who may profit from the pursuit of the objection (the “Objecting Attorneys”); and (5) a statement indicating whether the objector intends to appear at the Final Approval Hearing (either personally or through counsel who files an appearance with the Court). 4.4 Any Settlement Class Member who fails to timely mail or file a written objection with the Court and notice of his or her intent to appear at the Final Approval Hearing in accordance with the terms of Section 4.3 and as detailed in the Notice shall not be permitted to object to this Agreement at the Final Approval Hearing, and shall be foreclosed from seeking any review of this Agreement by appeal or other means and shall be deemed to have waived his, her 14 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 16 of 69 or its objections and be forever barred from making any such objections in the Action or any other action or proceeding. 4.5 A member of the Settlement Class may request to be excluded from the Settlement Class in writing by a request postmarked on or before the Objection/Exclusion Deadline approved by the Court and specified in the Notice. In order to exercise the right to be excluded, a member of the Settlement Class must timely send a written request for exclusion to the Settlement Administrator providing his or her name, address, email address, phone number, a signature, the name and number of the case, and a statement that he or she wishes to be excluded from the Settlement Class. A request to be excluded that does not include all of this information, or that is sent to an address other than that designated in the Notice, or that is not postmarked within the time specified, shall be invalid, and the Person(s) serving such a request shall be a member(s) of the Settlement Class and shall be bound as Settlement Class Members by the Agreement, if approved. Any Person in the Settlement Class who properly excludes themselves from the Settlement Class in accordance with the terms of this Agreement shall not: (i) be bound by any orders of the Final Judgment; (ii) be entitled to relief under this Settlement Agreement; (iii) gain any rights by virtue of this Agreement; or (iv) be entitled to object to any aspect of this Agreement. 5. SETTLEMENT ADMINISTRATION 5.1 The Settlement Administrator shall, under the Court’s supervision, administer the relief provided by this Settlement Agreement by processing Claim Forms in a rational, responsive, cost-effective, and timely manner. The Settlement Administrator shall maintain reasonably detailed records of its activities under this Agreement. The Settlement Administrator shall ensure that all such records will be made available to Class Counsel and Defendant’s 15 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 17 of 69 Counsel upon request. The Settlement Administrator shall also provide reports and other information to the Court as the Court may require. The Settlement Administrator shall provide Class Counsel and Defendant’s Counsel with information concerning Notice, administration, and implementation of the Settlement Agreement. Should the Court request, the Parties, in conjunction with the Settlement Administrator, shall submit a timely report to the Court summarizing the work performed by the Settlement Administrator, including a report of all amounts from the Settlement Fund paid to Settlement Class Members on account of Approved Claims. Without limiting the foregoing, the Settlement Administrator shall: (a) Receive objections, requests to be excluded from the Settlement Class, and other requests from Settlement Class Members and promptly provide to Class Counsel and Defendant’s Counsel copies thereof upon receipt. If the Settlement Administrator receives any objections, requests for exclusion, or other requests from Settlement Class Members after the deadline for the submission of such forms and requests, the Settlement Administrator shall promptly provide copies thereof to Class Counsel and Defendant’s Counsel; (b) Provide reports to Class Counsel and Defendant’s Counsel, including without limitation, reports regarding the number of Claim Forms received and the amount of the payments sought, the number thereof approved by the Settlement Administrator, and the categorization and description of Claim Forms rejected, in whole or in part, by the Settlement Administrator; and (c) Make available for inspection by Class Counsel and Defendant’s Counsel Claim Forms and any supporting documentation received by the Settlement Administrator at any time upon reasonable notice. 5.2 The Settlement Administrator may reject a Claim Form, or any part of a claim for 16 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 18 of 69 a payment reflected therein, where the Person submitting the Claim Form does not appear to be a Settlement Class Member. In addition, the Settlement Administrator shall be obliged to employ reasonable procedures to screen claims for abuse or fraud and deny Claim Forms where there is evidence of abuse or fraud. The Settlement Administrator shall determine whether a Claim Form submitted by a Settlement Class Member is an Approved Claim and shall reject Claim Forms that fail to comply with the instructions thereon or the terms of this Agreement, after giving the claimant a reasonable opportunity to provide any requested missing information. In no event shall any Settlement Class Member have more than twenty-one (21) days after being noticed by the Settlement Administrator of any question or deficiency in the submitted Claim Form to answer such question or cure such deficiency. 6. TERMINATION OF SETTLEMENT 6.1 Action Status if Settlement Not Approved. This Settlement Agreement is being entered into for settlement purposes only. If the Court conditions its approval of either the Preliminary Approval Order or the Final Judgment on any modifications of this Settlement Agreement that are not acceptable to all Parties, or if the Court does not approve the Settlement or enter the Final Judgment, or if the Final Settlement Date does not occur for any reason, then this Settlement Agreement will be deemed null and void ab initio. In that event, then (a) the Preliminary Approval Order, and the Final Judgment (if applicable) and all of its provisions will be vacated by its own terms, including, but not limited to, vacating conditional certification of the Class, vacating conditional appointment of Plaintiff Yencha as class representative, and vacating conditional appointment of Class Counsel as counsel to the class, (b) the Action will revert to the status that existed before the Settlement Agreement’s execution date, and (c)(i) no term or draft of this Settlement Agreement, (ii) nor any part of the Parties’ settlement discussions, 17 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 19 of 69 negotiations, or documentation (including any declaration or brief filed in support of the motion for preliminary approval or motion for final approval), (iii) nor any rulings regarding class certification for settlement purposes (including the Preliminary Approval Order and, if applicable, the Final Judgment), will have any effect or be admissible into evidence for any purpose in the Action or any other proceeding. If the Court does not approve the settlement or enter the Final Judgment for any reason, or if the Final Settlement Date does not occur for any reason, Defendant shall retain all its rights, for example, to object to the maintenance of the Action as a class action, to move for summary judgment, and to assert defenses at trial, and nothing in this Settlement Agreement or other papers or proceedings related to the settlement shall be used as evidence or argument by any Party concerning whether the Action may properly be maintained as a class action, or for any other purpose. 6.2 Treatment of Settlement Fund if Settlement Terminated. Unless otherwise ordered by the Court, in the event the Settlement Agreement is terminated for any reason, then within ten (10) business days after the Parties have provided the Court with notice that they are invoking this Section 6.2, the Settlement Administrator shall return the Settlement Fund (including accrued interest), less expenses and any costs which have either been disbursed or incurred, including taxes and tax expenses, to Defendant pursuant to written instructions from Defendant’s Counsel. At the request of Defendant’s Counsel, the Settlement Administrator or its designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, to Defendant. 6.3 Termination Clause. If, prior to the Final Approval Hearing, any Persons who would otherwise be Settlement Class Members have timely requested exclusion from the 18 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 20 of 69 Settlement Class in accordance with the provisions of this Agreement, the Preliminary Approval Order, and the Notice given pursuant thereto, and the number of such Persons seeking exclusion exceeds one thousand (1,000), ZeoBIT shall have, in its sole and absolute discretion, the option to terminate this Settlement Agreement. ZeoBIT may terminate the Settlement Agreement by serving written notice of termination on the Court and Class Counsel by hand delivery or overnight courier within five (5) business days after being informed in writing by the Settlement Administrator that there are one thousand (1,000) or more such requests for exclusion timely filed. If this Settlement Agreement is terminated, it will be deemed null and void ab initio. In that event: (i) the Preliminary Approval Order and all of its provisions will be vacated by its own terms; (ii) the Action will revert to the status that existed before the Settlement Agreement’s execution date; and (iii) no term or draft of this Settlement Agreement, or any part or aspect of the Parties’ settlement discussions, negotiations, or documentation will have any affect or be admissible into evidence, for any purpose, in this Action or any other proceeding. 7. PRELIMINARY APPROVAL ORDER AND FINAL APPROVAL ORDER 7.1 Promptly after the execution of this Settlement Agreement, Class Counsel shall submit this Agreement together with its Exhibits to the Court and shall move the Court for entry of a Preliminary Approval Order of the settlement set forth in this Agreement, certification of the Settlement Class for settlement purposes only, appointment of Class Counsel and the Class Representative, set a Final Approval Hearing date and approve the Notice and Claim Form for dissemination, substantially in the form attached as Exhibits A, B and C. 7.2 At the time of the submission of this Agreement to the Court as described above, Class Counsel and Defendant’s Counsel shall request that, after Notice is given, the Court hold a Final Approval Hearing and approve the settlement of the Action as set forth in this Agreement. 19 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 21 of 69 7.3 After Notice is given, Class Counsel, on behalf of the Class Representative, shall request from the Court a Final Judgment. The Final Judgment will (among other things): (a) find that the Court has personal jurisdiction over all Settlement Class Members and that the Court has subject matter jurisdiction to approve the Agreement, including all attached exhibits; (b) approve the Agreement and the proposed settlement as fair, reasonable, and adequate as to, and in the best interests of, the Settlement Class Members; direct the Parties and their counsel to implement and consummate the Agreement according to its terms and provisions; and declare the Agreement to be binding on, and have res judicata and preclusive effect in all pending and future lawsuits or other proceedings maintained by or on behalf of Plaintiffs and the Releasing Parties; (c) find that the Notice implemented pursuant to the Agreement (1) constituted the best practicable notice under the circumstances; (2) constituted notice that is reasonably calculated, under the circumstances, to apprise the Settlement Class of the pendency of the Action, their right to object or exclude themselves from the proposed Agreement, and to appear at the Final Approval Hearing; (3) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to receive notice; and (4) met all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clauses of the United States Constitution, and the rules of the Court; (d) find that the Class Representative and Class Counsel adequately represented the Settlement Class for purposes of entering into and implementing the Agreement; (e) dismiss the Action (including all individual claims and class action claims presented thereby) on the merits and with prejudice, without fees or costs to any party except as 20 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 22 of 69 provided in the Settlement Agreement; (f) incorporate the releases set forth in Section 3, make the releases effective as of the Final Settlement Date, and forever discharge the Released Parties as set forth in this Agreement; (g) permanently bar and enjoin all Settlement Class Members who have not been properly excluded from the Settlement Class from filing, commencing, prosecuting, intervening in, or participating (as class members or otherwise) in, any lawsuit or other action in any jurisdiction based on the Released Claims; (h) authorize the Parties, without further approval from the Court, to agree to and adopt such amendments, modifications and expansions of the Settlement Agreement and its implementing documents (including all exhibits to this Agreement) as (1) shall be consistent in all material respects with the Final Judgment, or (2) do not limit the rights of Settlement Class Members; and (i) without affecting the finality of the Final Judgment for purposes of appeal, retain jurisdiction as to all matters relating to administration, consummation, enforcement, and interpretation of the Settlement Agreement and the Final Judgment, and for any other necessary purpose. 8. CLASS COUNSEL’S ATTORNEYS’ FEES AND REIMBURSEMENT OF EXPENSES; INCENTIVE AWARD 8.1 Class Counsel is entitled to petition the Court for reasonable attorneys’ fees and expenses from the Settlement Fund. Class Counsel shall file, and the Settlement Administrator shall post to the settlement website referenced in Section 4.1(b), its papers supporting the Fee Award fourteen (14) days before the Objection/Exclusion Deadline. Class Counsel has agreed to limit their request for attorneys’ fees and expenses to no more than one-third (1/3) of the 21 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 23 of 69 Settlement Fund. ZeoBIT may oppose Class Counsel’s petition for attorneys’ fees and expenses. 8.2 The Settlement Administrator, within five (5) days after the later of (a) the Final Settlement Date or (b) receipt of wire instructions from Class Counsel, pay Class Counsel from the Settlement Fund the Fee Award via electronic transfer to an account designated by Class Counsel. Class Counsel is solely responsible for distributing the Fee Award to any attorney that may claim entitlement to attorneys’ fees or costs in the Action. Defendant is not responsible for Class Counsel’s allocation of the Fee Award. Should the Court award less than the amount sought in the petition, the difference between the amount sought and the amount awarded shall remain in the Settlement Fund to pay Approved Claims of Settlement Class Members or be given to the Cy Pres Recipients. 8.3 Class Counsel has agreed to limit its request for any incentive award for Plaintiff Yencha to one thousand dollars ($1,000.00). ZeoBIT may oppose Class Counsel’s petition for an incentive award. Class Counsel shall file, and the Settlement Administrator shall post to the settlement website referenced in Section 4.1(b), its papers supporting any incentive award fourteen (14) days before the Objection/Exclusion Deadline. 8.4 The Settlement Administrator, within five (5) days after the Final Settlement Date, shall pay from the Settlement Fund the amount of any Court-approved incentive award for Plaintiff Yencha via check, to be sent care of Class Counsel. Should the Court award less than the amount sought in the petition, the difference between the amount sought and the amount awarded shall remain in the Settlement Fund to pay Approved Claims of Settlement Class Members or be given to the Cy Pres Recipients. 9. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION, OR TERMINATION 9.1 If the Final Settlement Date does not occur for any reason, or in the event that this 22 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 24 of 69 Agreement is not approved by the Court, or the settlement set forth in this Agreement is terminated then this Agreement shall be canceled and terminated subject to Section 9.2 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with the Agreement. Notwithstanding anything in this Agreement, the Parties agree that the Court’s failure to approve, in whole or in part, the attorneys’ fees or incentive award sought by Class Counsel shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination. 9.2 If this Agreement is terminated or fails to become effective for any reason, the Parties and the Settlement Class Members shall be restored to their respective positions in the Action as of the date of the signing of this Agreement. In such event, any Final Judgment or other order, including but not limited to certifying any class for settlement purposes, entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and the Parties and the Settlement Class Members shall be returned to the status quo ante with respect to the Action as if they had never entered into this Agreement. 10. MISCELLANEOUS PROVISIONS 10.1 The Parties (a) acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree, subject to their fiduciary and other legal obligations, to cooperate to the extent reasonably necessary to effectuate and implement all terms and conditions of this Agreement and to exercise their reasonable best efforts to accomplish the foregoing terms and conditions of this Agreement. The Parties, Class Counsel, and Defendant’s Counsel agree to cooperate with one another in seeking Court approval of the Preliminary Approval Order, the Settlement Agreement, and the Final Judgment, and promptly to agree upon and execute all such other documentation as may be reasonably required to obtain final approval of the Agreement. 23 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 25 of 69 10.2 All time periods and dates described in this Settlement Agreement are subject to the Court’s approval. These time periods and dates may be changed by the Court or by the Parties’ written agreement without notice to the Settlement Class. The Parties reserve the right, subject to the Court’s approval, to make any reasonable extensions of time that might be necessary to carry out any provisions of this Agreement. 10.3 The Parties intend this Settlement Agreement to be a final and complete resolution of all disputes between them with respect to the Released Claims by the Releasing Parties and each or any of them, on the one hand, against the Released Parties, and each or any of them, on the other hand. 10.4 The Parties executed this Settlement Agreement voluntarily and without duress or undue influence. 10.5 The Parties have relied upon the advice and representation of counsel, selected by them, concerning their respective legal liability for the claims hereby released. The Parties have read and understand fully this Agreement and have been fully advised as to the legal effect thereof by counsel of their own selection and intend to be legally bound by the same. 10.6 Whether or not the Final Settlement Date occurs or the Settlement Agreement is terminated, neither this Agreement nor the settlement contained in this Agreement, nor any act performed or document executed pursuant to or in furtherance of this Agreement or the settlement: (a) is, may be deemed, or shall be used, offered or received against the Released Parties, or each or any of them, as an admission, concession, or evidence of, the validity of any Released Claims, the truth of any fact alleged by the Plaintiffs, the deficiency of any defense that has been or could have been asserted in the Action, the violation of any law or 24 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 26 of 69 statute, the reasonableness of the settlement amount or the fee award, or of any alleged wrongdoing, liability, negligence or fault of the Released Parties, or any of them; (b) is, may be deemed, or shall be used, offered, or received against the Settlement Class as an admission, concession, or evidence of any fault, misrepresentation, or omission with respect to any statement or written document approved or made by the Released Parties, or any of them; (c) is, may be deemed, or shall be used, offered, or received against the Released Parties, or each or any of them, as an admission or concession with respect to any liability, negligence, fault or wrongdoing as against any Released Parties, in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal. However, the settlement, this Agreement, and any acts performed and/or documents executed in furtherance of or pursuant to this Agreement and/or Settlement may be used in any proceedings as may be necessary to effectuate the provisions of this Agreement. However, if this Settlement Agreement is approved by the Court and the Final Settlement Date occurs, any of the Parties or any of the Released Parties may file this Agreement and/or the Final Judgment in any action that may be brought against such Party or Parties in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim; (d) is, may be deemed, or shall be construed against Plaintiff Yencha, the Settlement Class or each or any of them, or against the Released Parties, or each or any of them, as an admission or concession that the consideration to be given hereunder represents an amount equal to, less than, or greater than that amount that could have or would have been recovered 25 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 27 of 69 after trial; and (e) is, may be deemed, or shall be construed as or received in evidence as an admission or concession against Plaintiff Yencha, the Settlement Class, or each and any of them, or against the Released Parties, or each or any of them, that any of Plaintiff Yencha’s claims are with or without merit or that damages recoverable in the Action would have exceeded or would have been less than any particular amount. 10.7 The headings used in this Agreement are used for the purpose of convenience only and are not meant to have legal effect. 10.8 The Recitals are incorporated by this reference and are part of the Settlement Agreement. 10.9 The waiver by one Party of any breach of this Agreement by any other Party shall not be deemed as a waiver of any other prior or subsequent breaches of this Agreement. 10.10 The Parties must execute and deliver any additional papers, documents, and other assurances, and must do any other acts reasonably necessary, to perform their obligations under this Settlement Agreement and to carry out this Settlement Agreement’s expressed intent. 10.11 This Agreement and its Exhibits set forth the entire agreement and understanding of the Parties with respect to the matter set forth herein, and supersede all prior negotiations, agreements, arrangements, and undertakings with respect to the matters set forth herein. No representations, warranties, or inducements have been made to any Party concerning this Settlement Agreement or its Exhibits other than the representations, warranties, and covenants contained and memorialized in such documents. This Agreement may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successorsin-interest. 26 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 28 of 69 10.12 Any inconsistency between this Settlement Agreement and the attached exhibits will be resolved in favor of this Settlement Agreement. 10.13 Except as otherwise provided in this Agreement, each Party shall bear its own fees and costs. 10.14 Plaintiff Yencha represents and warrants that she has not assigned, granted, or transferred any claim or right or interest therein as against the Released Parties to any other Person and that she is fully entitled to release the same. 10.15 Nothing in this Agreement, the negotiations, and the mediation relating thereto is intended to or shall be deemed to constitute a waiver of any applicable privilege or immunity, including without limitation the attorney-client privilege or work product immunity, by any Party. 10.16 Each counsel or other Person executing this Settlement Agreement, any of its Exhibits, or any related settlement documents on behalf of any party to this Agreement warrants and represents that such Person has the full authority to do so and has the authority to take appropriate action required or permitted to be taken pursuant to the Agreement to effectuate its terms. 10.17 This Agreement may be executed in one or more counterparts. Signature by digital, facsimile, or in PDF format will constitute sufficient execution of the Agreement. All executed counterparts and each of them shall be deemed to be one and the same instrument. A complete set of original executed counterparts shall be filed with the Court if the Court so requests. 10.18 This Settlement Agreement shall be binding on, and inure to the benefit of, the successors and assigns of the Parties to this Agreement and the Released Parties except to the extent expressly stated. 27 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 29 of 69 10.19 The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of this Agreement, and all Parties to this Agreement submit to the jurisdiction of the Court for purposes of implementing and enforcing the settlement embodied in this Agreement. 10.20 This Settlement Agreement and any claim, cause of action, or dispute among the Parties arising out of or relating to this Settlement Agreement shall be governed by, interpreted under, and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to any conflict-of-law principles that may otherwise provide for the application of the law of another jurisdiction. 10.21 This Agreement is deemed to have been prepared by counsel for all Parties, as a result of arms’-length negotiations among the Parties with the aid of a neutral mediator. Whereas all Parties have contributed substantially and materially to the preparation of this Agreement, it shall not be construed more strictly against one party than another. 10.22 Where this Settlement Agreement requires notice to the Parties, such notice shall be sent to Class Counsel and Defendant’s Counsel. IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed on its behalf by its duly authorized counsel of record, all as of the day set forth below. [SIGNATURES APPEAR ON FOLLOWING PAGE] 28 Case Document 28-1 Filed 03/12/15 Page 30 of 69 HOLLY YENCHA Dated: By (signature): 1 1 r" l- in?.le . 5:4; *1 Name (printed): Holly Yencha ZEOBIT, LLC Dated: Name (printed): (title): APPROVED AS TO FORM BY COUNSEL: Dated: March lg, 2015 Dated: March 2015 By (signature): 29 EDELSON PC Attorneys for Plaintiff Yencha and the Settlement Class {l ilk Rafey Es/q. Benjamin H. Richman, Esq. Courtney C. Booth, Esq. COOLEY LLP Attorneys for ZeoBlT, LLC By: Matthew D. Brown, Esq. Matthew D. Caplan, Esq. Case Document 28-1 Filed 03/12/15 Page 31 of 69 Dated: Dated: 315?; HOLLY YENCHA By (signature): Name (printed): ZEOBIT, LLC By (signature): Name (printed): ?81> l/k. Sadie Its (title): LOW CWM 6 APPROVED AS TO FORM BY COUNSEL: Dated: March 2015 Dated: March 2 2015 29 EDELSON PC Attorneys for Plaintiff Yencha and the Settlement Class By: Rafey S. Balabanian, Esq. Benjamin H. Richman, Esq. Courtney C. Booth, Esq. COOLEY LLP Attorneys Ifor/gZeoBITqLL i/ a A Matthiew D. Brown, Esq. Matthew D. Caplan, Esq. Case Document 28-1 Filed 03/12/15 Page 32 of 69 Exhibit A Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 33 of 69 MacKeeper Settlement Claim Form Name (First, M.I., Last): ________________________ _ _ __________________ ______ Street Address: ________________________________________________________________ City: _______________________________ State: ___ ___ Zip Code: ___ ___ ___ ___ ___ Email Address (that was used in connection with purchase): Phone Number (Optional. The Settlement Administrator may call you for additional information to process your claim, if necessary): The Parties have the right to audit all claims for accuracy, truthfulness, and compliance with the terms and conditions of the Settlement Agreement. Class Member Affirmation: By submitting this Claim Form and checking the box below, I declare that I believe I am a member of the Settlement Class and that the following statement is true (each box must be checked to receive payment): I purchased MacKeeper software or before [date of preliminary approval]. I have not received a full refund for my purchase of MacKeeper. Dated: , 20 . All Claim Forms must be submitted or postmarked by [claims deadline] Your claim will be submitted to the Settlement Administrator for review. Any payments will be made after the Court approves the Settlement and, if there are any appeals, after the appeals are resolved in favor of the Settlement. Please be patient. The amount of any payment, not to exceed $39.95, will depend upon the number of valid claims submitted. For more detail, please see the notice located on the settlement website at [www.website.com]. Questions, visit [www.website.com] or call [toll free number]. Case Document 28-1 Filed 03/12/15 Page 34 of 69 Exhibit Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 35 of 69 FROM: MACKEEPERSETTLEMENT@[SETTLEMENTADMIN].COM TO: JOHNQCLASSMEMBER@GMAIL.COM RE: LEGAL NOTICE OF CLASS ACTION SETTLEMENT IF YOU PURCHASED MACKEEPER SOFTW ARE BEFORE [DATE], A CLASS ACTION SETTLEMENT MAY AFFECT YOUR RIGHTS. A Federal Court authorized this notice. You are not being sued. This is not a solicitation from a lawyer. A settlement has been reached in a class action lawsuit against ZeoBIT LLC, the makers of MacKeeper software. The lawsuit alleges that ZeoBIT deceptively advertised and sold MacKeeper as capable of enhancing a Macintosh computer’s speed, performance, and security by detecting and eliminating harmful errors and threats, but that it does not and cannot perform all of the functions advertised. ZeoBIT denies any wrongdoing, and the settlement does not establish that any law has been broken. The lawsuit is called Yencha v. ZeoBIT LLC, No. 14-cv-0057 and is in U.S. District Court for the Western District of Pennsylvania. You need not live in Pennsylvania to participate. • Why Am I Being Contacted? Our records show you may be a “Settlement Class Member” entitled to payment under the Settlement. Settlement Class Members are those people who live in the United States or its territories and purchased MacKeeper on or before [the date of entry of the Preliminary Approval Order]. • What Can I Get From the Settlement? Settlement Class Members can submit a valid claim by [date] to receive a payment of up to $39.95 from a $2,000,000 Settlement Fund, after payment of the costs of administering the settlement, the attorneys’ fee award, and any incentive award to the plaintiff. The amount of the payment to Settlement Class Members depends upon the number of valid claims filed. If there is still money left in the Settlement Fund after all payments are made, the money will be donated to nonprofit organizations. File your claim online here at [www.website.com] by [date]. To request a paper copy, call toll-free [1-800-0000000]. • How Do I Get My Payment? Just click here and complete the short and simple Claim Form. More information is available at www.website.com. You can also call [settlement admin phone number] to request a paper copy of the Claim Form. All Claim Forms must be received by [claims deadline]. • What Are My Options? You can do nothing, submit a Claim Form, comment on or object to any of the Settlement terms, or exclude yourself from the Settlement. If you do nothing or submit a Claim Form, you won’t be able to sue ZeoBIT in a future lawsuit about the claims addressed in the Settlement. If you exclude yourself, you won’t get a payment—but you’ll keep your right to sue ZeoBIT on the issues the settlement concerns. You must contact the settlement administrator by mail to exclude yourself. You can also object to the settlement if you disagree with any of its terms. All Requests for Exclusion and Objections must be received by [exclusion/objection deadline]. • Do I Have a Lawyer? Yes. The Court has appointed lawyers from Edelson PC to represent you as “Class Counsel.” You will not be charged for these lawyers. You can hire your own lawyer, but you’ll need to pay your own legal fees. The Court has also chosen Holly Yencha —a class member like you—to represent the Class. • When Will the Court Consider the Proposed Settlement? The Court will hold a hearing to determine the fairness of the settlement at [time] on [date] at the United States Courthouse, Pittsburgh Division, 700 Grant Street, Pittsburgh, Pennsylvania 15219 in Courtroom 5A before Judge Joy Flowers Conti. At that hearing, the Court will hear objections, determine if the Settlement is fair, and consider Class Counsel’s request for fees and expenses up to one-third (1/3) of the Settlement Fund and an award for the Class Representative of up to $1,000. The Court may award less than these amounts. The hearing may be postponed to a different date or time without notice, so check [www.website.com] for updates. You are not required to come to this hearing. • Want More Information? This notice is a summary. For a detailed notice or to see the Settlement Agreement and other court documents, go to [www.website.com], call the settlement administrator at [Toll-free-number] or call Class Counsel at 1-866354-3015. The Agreement and all other pleadings and papers filed in the case are available for inspection and copying during regular business hours at the office of the Clerk of the U.S. District Court of the Western District of Pennsylvania, Pittsburgh Division, located at the United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania 15219. Do not contact the Court or MacKeeper with questions. By Order of the Court Dated: [Date] Case Document 28-1 Filed 03/12/15 Page 36 of 69 Exhibit Case Document 28-1 Filed 03/12/15 Page 37 of 69 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF If you live in the United States or its territories and purchased MacKeeper Software on or before [date of preliminary approval], a class action settlement may affect your rights. A Federal Court authorized this notice. You are n_ot being sued. This is n_ot a solicitation from a lawyer. A settlement has been reached in a class action lawsuit against software developer LLC. The class action lawsuit involves whether or not MacKeeper software performed certain functions as advertised. 0 You are included if you live in the United States or its territories and purchased MacKeeper software on or before [date of preliminary approval]. 0 If you are included in the settlement, you are eligible to submit a claim to receive a payment of up to $39.95 from a $2,000,000 settlement fund, after the payment of the costs of administering the settlement, the attorneys? fee award, and any incentive award to the plaintiff. The amount of the payment will depend on the ninnber of claims received. 0 Please read this notice carefully. Your legal rights are affected whether you act or don?t act. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT SUBMIT A CLAIM FORM The only way to receive a payment. BY EXCLUDE YOURSELF BY You will receive no payment, but you will retain any rights you crurently have to sue about the claims in this case. OBJECT BY Write to the Court explaining why you don?t like the Settlement. ATTEND A HEARING Ask to speak in orut about the fairness of the settlement. DO NOTHING You won?t get a Share of the settlement bene?ts and will give up yoru? rights to sue ZeoBit about the claims in this case. These rights and options?and the deadlines to exercise them?are explained in this notice. The 01m in charge of this case still has to decide whether to approve the settlement. Payments will be provided only after any issues with the settlement are resolved. Please be patient. BASIC INFORMATION I 1. What is this notice? I A corut authorized this notice to let you know about a proposed settlement of a class action lawsuit with LLC. You have legal rights and options that you may act on before the orut decides CALL 1-800-000-0000 TOLL FREE. OR VISIT Case Document 28-1 Filed 03/12/15 Page 38 of 69 whether to approve the proposed settlement. This notice explains the lawsuit, the settlement, and yoru' legal rights. Judge Joy Flowers Conti of the US. District Corut for the Western District of is overseeing this class action. The case is known as Yencha v. LLC, No. 14-cv-00578 (the ?Action?). The person who sued is called the ?Plaintiff.? The company she sued, LLC, is called the ?Defendant.? You need not live in to participate. I 2. What is a class action lawsuit? I In a class action, one or more people called ?Class Representatives? sue on behalf of a group of people who have similar claims. Together, these people are called a ?Class? or ?Class Members.? In a class action, the court resolves the issues for all Class Members, except for those who exclude themselves from the Class. After the parties reached an agreement to settle this case, the Court recognized it as a case that should be treated as a class action for settlement pruposes. THE CLAIMS IN THE LAWSUIT AND THE SETTLEMENT I 3. What is this lawsuit about? I The lawsuit alleges that deceptively advertised and sold MacKeeper software as capable of enhancing an Apple Macintosh computer?s speed, performance, and secru?ity by detecting and eliminating harmful errors and threats, but that it does not and cannot perform all of the functions advertised. The lawsuit seeks damages for violation of the Consumer Protection Law, fraud, and breach of contract. denies Plaintist claims of wrongdoing or liability against it and asserts that its conduct was lawful. More information about Plaintiffs complaint and Defendant?s answer to the claim are available in the ?Court Documents? section of the settlement website at I 4. Why is there a Settlement? I The Court has not decided whether the Plaintiff or the Defendant should win this case. Instead, the parties have agreed to settle the claims against Defendant?that is, reach a compromise?by entering into a written settlement agreement. That way, they avoid the uncertainties and expenses associated with ongoing litigation, and Class Members will get compensation now rather than, if at all, years from now. The Class Representative and her attorneys (?Class Counsel?) believe that the settlement is in the best interest of the Class Members. INCLUDED know if I am in the Settlement Class? The Court decided that everyone who ?ts this description is a member of the Settlement Class: All Persons in the United States and its territories who pru?chased MacKeeper on or before [the date of entry of the Preliminary Approval Order]. CALL 1-800-000-0000 TOLL FREE. OR VISIT 2 Case Document 28-1 Filed 03/12/15 Page 39 of 69 If you meet that de?nition, you are a member of the Settlement Class. THE SETTLEMENT BENEFITS I 6. What does the Settlement provide? I Defendant has agreed to create a $2,000,000 Settlement Fund. Settlement Class Members can submit a claim for 11p to $39.95 for their purchase of MacKeeper. In addition to paying for valid claims of Class Members, the Settlement Fluid will be used to pay the costs to administer the settlement, any orut-ordered award to Class Counsel for reasonable fees and expenses, and any incentive award to the Class Representative. The amormt each claimant will be paid depends upon the number of valid claims submitted. If there is still money left in the Settlement Fund after providing payments to every Settlement Class Member with a valid claim, paying the costs to administer the Settlement, the award of attorneys? fees and expenses, and any incentive award to the Class Representative, the remaining money will be donated to the following nonpro?t organizations: 0 Carnegie Mellon CyLab: Carnegie Mellon University?s CyLab establishes public-private partnerships to develop new technologies for measm'able, available, secru'e, trustworthy, and sustainable computing and communications systems, as well as to educate individuals at all levels equipping them to meet the demands and challenges of being responsible computer users and cybercitizens. For more information Visit 0 National Consumer Law Center: The NCLC has dedicated itself to consumer justice issues since its formding in 1969 and has taken a leadership role in the development of laws aimed at protecting consumers, such as the Credit CARD Act of 2009. The NCLC also works closely with nonpro?t organizations, legal service organizations, attorneys, policymakers, and state and federal governments to stop exploitive consumer practices, help consmners build and retain wealth, and advance economic fairness. The expertise has focused on a broad range of consumer issues, including deceptive acts and practices, and privacy rights. For more information visit On the other hand, if the amount required to pay each class member with a valid claim exceeds the amount of the Settlement Fund (after paying fees and expenses), then each Settlement Class Member who ?led a valid claim will receive a proportionally reduced share of the Settlement Frmd. HOW TO GET BENEFITS I 7. How do I get bene?ts? I If you are a Class Member and you want to participate in the settlement, you must complete and submit a Claim Form online or by mail postmarked by [claims deadline]. You can submit an electronic Claim Form online at or obtain a copy of the lairn Form by downloading it from by writing to the Settlement Administrator at [address], or by calling CALL 1-800-000-0000 TOLL FREE. OR VISIT 3 Case Document 28-1 Filed 03/12/15 Page 40 of 69 toll-free [phone number]. You cannot submit a claim if you ah?eady received a reflmd for the MacKeeper software you purchased. I 8. When will I get my payment? I If you submitted a valid and approved claim, you should receive a check from the Settlement Administrator within approximately 60-90 days after the Settlement has been fmally approved and/or after any appeals have been resolved in favor of the Settlement. The hearing to consider the ?nal fairness of the Settlement is scheduled for [Fairness Hearing Date]. All checks will expire and become void 90 days after they are issued. THE LAWYERS REPRESENTING YOU I 9. Do I have a lawyer in this case? I Yes, the omt has appointed lawyers Rafey S. Balabanian, Benjamin H. Richman, and Courtney C. Booth of Edelson PC as Class Counsel. You will not be separately charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at yoru? own expense. I 10. How will the lawyers be paid? I Class Cormsel will ask the Comt for attorneys? fees and expenses of up to one-third of the Settlement thd. The omt will determine the proper amormt of any attorneys? fees and expenses to award Class Counsel. The Court may award less than the amormt requested. Class ormsel will also request a service award (also known as an ?incentive? award) for the Class Representative of 11p to $1,000 from the Settlement Fund for her services as Class Representative and her efforts in bringing this case. The Court will determine what amormt will be paid to the Class Representative. The Court may award less than the amormt requested. Class ormsel will ?le with the Court and post on the settlement website their request for attorneys? fees and expenses and request for an incentive award to the Class Representative two weeks before the objection deadline of [date 2 weeks before objection deadline]. YOUR RIGHTS AND OPTIONS I 11. What happens if I do nothing at all? I If you do nothing, you will receive no payment under the Settlement, you Will be in the Settlement Class, and if the omt approves the settlement, you will also be bormd by all orders and judgments of the orut. Also, unless you exclude yom?self, you won?t be able to start a lawsuit or be part of any other lawsuit against the Defendant for the claims being resolved by this Settlement. I 12. What happens if I ask to be excluded? I If you exclude yom?self ??om the Settlement, you can?t claim any money or receive any bene?ts as a result of the Settlement. You will keep yom? right to start yoru? own lawsuit against Defendant for the CALL 1-800-000-0000 TOLL FREE. OR VISIT 4 Case Document 28-1 Filed 03/12/15 Page 41 of 69 same legal claims made in this lawsuit. You will not be legally borurd by the Court?s judgments related to the Settlement Class and Defendant in this class actionexcluded? I To exclude yoru?self from the Settlement Class, you must send a letter saying that you want to be excluded ?'om the Settlement Class in Yencha v. LLC, Case No., 14-cv-00578. Your letter must also include your name, address, the e-mail address you used in connection with your purchase of MacKeeper, yoru? phone number, and yom? signature. You must mail yoru? exclusion request no later than [objection exclusion deadline], to: MacKeeper Settlement Administrator Box 0000] ity, ST 00000-0000] You cannot exclude yoru?self by phone or email. I 14. If I don?t exclude myself, can I sue the Defendant for the same thing later? I No. Unless you exclude yourself, you give up any right to sue the Defendant for the claims being resolved by this Settlement. I 15. If I exclude myself, can I get anything from this Settlement? I No, if you exclude yourself, do not submit a Claim Form to ask for a payment. I 16. How do I object to the Settlement? I If you do not exclude yoru'self from the Settlement Class, you can object to the Settlement if you like or don?t like any part of it. You can give reasons why you think the omt should not approve it by ?ling an objection. The omt will consider your views. Your objection must be ?led with the Court or postmarked to the orut?s address below no later than [date]. You must also send a copy to attorneys for the Parties at the addresses below. If you are represented by an attorney, your objection must be ?led through the Court?s Case Management/Electronic Case Filing (C F) system. Court Class Counsel Defendant?s Counsel Clerk of the Court Benjamin H. Richman Matthew D. Brown United States oruthouse EDELSON PC Cooley LLP W.D. of 350 North LaSalle, Suite 1300 101 California Street, 5th Floor Division Chicago, Illinois 60654 San Francisco, California 941 11 700 Grant Street 1 52 19 The objection must be in writing and include the case name Yenclm v. LLC, Case No. l4-cv- 00578. It must also include yom? name, yom? address, the e-mail address that you used in connection with yoru? plu?chase of MacKeeper, yoru? phone number, an explanation of the basis upon which you claim to be a Settlement Class Member, the speci?c grormds for the objection (including all arguments, citations, and evidence supporting the objection), the name CALL 1-800-000-0000 TOLL FREE. OR VISIT 5 Case Document 28-1 Filed 03/12/15 Page 42 of 69 and contact information of any and all attorneys representing, advising, or in any way assisting you in connection with the preparation or submission of your objection or who may pro?t from the ptu?suit of yoru? objection, a statement indicating whether you intend to appear at the hearing about the fairness of the settlement (either personally or through counsel who ?les an appearance with the Court), and yoru? physical signature. The orut will consider all properly ?led objections from Settlement Class Members. If, in addition to submitting a written objection to the settlement, you wish to appear and be heard at the hearing on the fairness of the settlement, you or yoru' attorney must say so in your written objection. I 17. What?s the difference between objecting and excluding myself from the Settlement? I Objecting simply means telling the orut that you don?t like something about the settlement. You can object only if you stay in the Settlement Class. Excluding yourself from the Settlement Class is telling the orut that you don?t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you. THE FAIRNESS HEARING I 18. When and where will the Court hold a hearing on the fairness of the Settlement? I A hearing has been set for [date] at [time], before The Honorable Joy Flowers Conti at the United States Courthouse, Pittsburgh Division, 700 Grant Street, Pittsburgh, 15219 in Courtroom 5A. At the hearing, the Court will hear any objections, and arguments concerning the fairness of the proposed settlement, including the amount requested by Class Counsel for attorneys? fees and expenses and the incentive award to the Class Representative. You do not need to attend this hearing. You also do not need to attend to have an objection considered by the orut. Note: The date and time of the fairness hearing are subject to change by orut Order, but any changes will be posted at or through the orut?s Public Access to orut Electronic Records (PACER) system. I 19. Do I have to come to the hearing? I No. Class C01msel will answer any questions the Court may have, but you are welcome to come at your own expense. If you send an objection, you don?t have to come to Court to talk about it. As long as your written objection was ?led and mailed on time and meets the other criteria described in the Settlement, the orut will consider it. You may also pay another lawyer to attend, but you don?t have to. I 20. May I speak at the hearing? I If you do not exclude yoru'self from the Settlement Class, you may ask the orut for permission to speak at the hearing concerning any part of the proposed Settlement by following the instructions in Question No. 16 above. CALL 1-800-000-0000 TOLL FREE. OR VISIT 6 Case Document 28-1 Filed 03/12/15 Page 43 of 69 GETTING MORE INFORMATION I 21. Where can I get additional information? I This notice suimnarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the Settlement Agreement available at by contacting Class Comisel at 1-866-354-3015, by accessing the Comt docket in this case through the Court?s PACER system, or by writing to the Settlement Administrator at [address] or calling toll-free [number].The Settlement Agreement and all other pleadings and papers ?led in the case are available for inspection and copying dining regular business hours at the of?ce of the Clerk of the US. District Comt of the Western District of Pittsbin'gh Division, located at the United States Oiuthouse, 700 Grant Street, Pittsbin'gh, 15219. PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT OR CLAIMS PROCESS. CALL 1-800-000-0000 TOLL FREE. OR VISIT 7 Case Document 28-1 Filed 03/12/15 Page 44 of 69 Exhibit 2 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 45 of 69 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICIT OF PENNSYLVANIA HOLLY YENCHA, individually and on behalf of all others similarly situated, Plaintiff, Case No. 2-14-cv-00578-JFC Judge: Joy Flowers Conti v. ZeoBIT LLC, a California limited liability company, Defendant. DECLARATION OF BENJAMIN H. RICHMAN Pursuant to 28 U.S.C. § 1746, I hereby declare and state as follows: 1. I am an attorney admitted pro hac vice in the United States District Court for the Western District of Pennsylvania. I am entering this declaration in support of Plaintiff Holly Yencha’s Motion for Preliminary Approval of Proposed Class Action Settlement. This declaration is based upon my personal knowledge, except where expressly noted otherwise. If called upon to testify to the matters stated herein, I could and would competently do so. 2. I am a partner in the law firm of Edelson PC, which has been retained to represent the named Plaintiff in this matter, Holly Yencha, and act as proposed Class Counsel on behalf of the Settlement Class. Settlement Negotiations 3. On January 6, 2015, Plaintiff Holly Yencha (“Yencha” or “Plaintiff”) and Defendant ZeoBIT LLC (“ZeoBIT” or “Defendant”) (Plaintiff and Defendant together, the “Parties”) proceeded with an early neutral evaluation conference and mediation with the Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 46 of 69 Honorable Edward A. Infante (ret.) of JAMS to discuss their respective positions on the claims and defenses at issue as well as their suitability for class certification. 4. The early neutral evaluation and mediation proved informative for both sides and ultimately resulted in the settlement of this action. Indeed, after a full day of discussions and negotiation with the assistance of Judge Infante, the Parties were able to reach an agreement in principle on the key terms of a class-wide settlement. 5. After months of further negotiations, exchanges of a draft settlement agreement, and communications, the Parties were able to finalize their settlement in the form of the Stipulation of Class Action Settlement now before this Court. Certification of the Settlement Class is Appropriate. 6. It is proposed Class Counsel’s position that Rule 23’s requisites to conditionally certifying the proposed Settlement Class for settlement purposes are satisfied here. 7. With respect to Rule 23(a)’s numerosity requirement, Defendant’s records indicate that approximately 650,000 individuals and entities purchased the MacKeeper Software at issue here. 8. As to the adequacy requirement, Plaintiff Yencha’s interests directly align with the Settlement Class members, as each has an interest in recouping the monies she, he or it paid for the Software that allegedly failed to function as promised. In addition to having virtually the same interests as other Settlement Class members, Yencha does not have any individual interests in this case that would be antagonistic to those of the Settlement Class, and her pursuit of this action demonstrates as much. 9. For our part, proposed Class Counsel are well respected members of the legal community and have significant experience litigating class actions of similar size, scope, and 2 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 47 of 69 complexity to the instant action. We have regularly engaged in major complex litigation involving consumer technology issues, have the resources necessary to conduct litigation of this nature, and have frequently been appointed lead class counsel by courts throughout the country. We also have experience prosecuting and settling numerous class actions related to the alleged fraudulent design and marketing of software products similar to those at issue here. 10. In this case specifically, we have identified the claims at issue, diligently investigated, prosecuted, and dedicated substantial resources to this Action, and ultimately negotiated a settlement providing up to full refunds for the proposed Settlement Class. We will continue to put forth such effort and dedicate the resources necessary to appropriately represent the Settlement Class’s interests throughout the pendency of the Action. The Proposed Settlement is Well Within the Range of Possible Approval. 11. We are of the opinion that the proposed settlement is fair, reasonable and adequate and well within the range of possible approval. 12. First, we believe the settlement is entitled to a presumption of fairness because it is the product of arm’s-length negotiations. Indeed, at the outset of the case, the Parties began a dialogue regarding their respective views of the claims and defenses in question, which led the Parties to convene a meeting between their counsel and a representative of ZeoBIT in Pittsburgh, Pennsylvania on September 29, 2014. During that meeting, Plaintiff’s counsel presented the findings of our forensic investigation into the Software and related marketing materials, and the Parties continued their dialogue regarding their views on the merits of the case. The Parties also discussed potential neutrals to preside over the Early Neutral Evaluation ordered by the Court. 13. Ultimately, the Parties selected (and the Court endorsed) Judge Infante—a former Magistrate Judge for the Northern District of California who has extensive experience mediating 3 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 48 of 69 complex class actions—as the early neutral evaluator and proceeded with a full-day ENE and mediation before him on January 6, 2015. During the ENE/mediation, Judge Infante led substantive discussions on the strengths and weaknesses of the Parties’ respective claims and defenses, the likelihood of obtaining class certification, and the settlements and dispositions in similar actions against ZeoBIT’s industry competitors. 14. With the benefit of those discussions (and Judge Infante’s views) as well as an exchange of certain additional information (e.g., information regarding ZeoBIT’s sales of the Software and the fact that the company no longer owns nor markets it), the Parties also discussed the potential resolution of the Action. 15. Ultimately, it was only with Judge Infante’s assistance that the Parties were able to reach a settlement in principle on a class-wide basis that is consistent with the other settlements reached with ZeoBIT’s industry competitors. And after the conclusion of the ENE, the Parties spent several weeks’ time exchanging drafts of their proposed Settlement Agreement and negotiating the specific terms of that Agreement. 16. We also believe that a presumption of fairness is warranted based on our substantial experience in consumer class actions generally, and cases against Defendant’s industry competitors specifically. That experience—coupled with our investigation and information uncovered in this case—have allowed us to gain a superior understanding of the factual and legal bases of the claims at issue, rendering us best equipped to ensure that the Settlement Class receives the best relief possible under the circumstances. As a result, we were able to fully weigh the risks and rewards of further litigation as compared to the proposed Settlement, and we believe that the Agreement represents the best option for obtaining a meaningful recovery for the Settlement Class. 4 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 49 of 69 17. We further believe that the Settlement is fair and reasonable because it provides substantial—if not full—relief to the Settlement Class, as Yencha’s theory of this case has always been that while any design flaws in MacKeeper’s ability to diagnose, report and repair various errors and problems on users’ Macs reduced the Software’s value, it was not that the Software lacked utility all together. Thus, the potential to obtain up to a full refund of the purchase price they paid for the Software under the terms of the Settlement represents as good (if not better) a result as Settlement Class members could hope to achieve in this case. 18. We also believe that the result for the Settlement Class is especially beneficial in light of the risks associated with continued litigation of the Action. Even though we are confident in the strength of Yencha’s claims, litigation is inherently uncertain. Indeed, the potential for a battle over class certification, the future availability of witnesses (many of whom are likely located in Europe, where the Software was developed, and thus outside of the subpoena power of this Court), the preservation of evidence, and the depreciated value of future recovery compared to immediate relief, all present risks to obtaining a full recovery for the Settlement Class after trial. 19. Finally, we also believe that the Settlement is fair and reasonable because it was negotiated by Parties’ who have a solid understanding of the factual allegations, claims, and defenses at issue. As it relates to Plaintiff, she and her counsel conducted substantial factual investigation into the bases of the Settlement Class’s claims and ZeoBIT’s likely defenses by, inter alia, having a computer forensic analysis performed on the Software and receiving and reviewing information from members of the proposed Settlement Class about their experiences with the Software. The Parties also exchanged information regarding the Software, pricing, and size of the proposed Settlement Class, and had the benefit of an early neutral evaluation of their 5 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 50 of 69 respective positions from a well-respected former Magistrate Judge. Drawing on all of that, the Parties negotiated a valuable Settlement for the proposed Settlement Class, which is consistent with others previously approved by courts throughout the country. 20. For all of these reasons, we and Yencha firmly believe that both the relief obtained for the Settlement Class through the Settlement, as well as the manner in which it was attained, weigh heavily in favor of a finding that the Settlement is fair, reasonable and adequate, and well within the range of approval. The Proposed Notice Plan Should Be Approved. 21. Finally, we are also of the opinion that the proposed notice plan constitutes the best notice practicable under the circumstances. The Parties have agreed to a two-part notice plan that provides both direct email notice and publication notice on a settlement website. We expect the direct email notice to be particularly effective in this case—as it has been in similar cases— given that Settlement Class members who purchased MacKeeper were required to provide their email addresses before they could complete their purchases of the Software, and indeed, that was the method by which they communicated with ZeoBIT. Attachments. 22. Attached to Plaintiff's Memorandum in Support of Motion for Preliminary Approval as Exhibit 1 is a true and accurate copy of the Parties' Stipulation of Class Action Settlement. 23. Attached hereto as Exhibit 2-A is a true and accurate copy of the Firm Resume of Edelson PC. * * 6 * Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 51 of 69 I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of March 2015 at Chicago, Illinois. /s/ Benjamin H. Richman 7 Case Document 28-1 Filed 03/12/15 Page 52 of 69 Exhibit A Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 53 of 69 EDELSON PC FIRM RESUME EDELSON PC is a plaintiffs’ class action and commercial litigation firm with attorneys in Illinois and California. Our attorneys have been recognized as leaders in these fields by state and federal legislatures, national and international media groups, the courts, and our peers. Our reputation for leadership in class action litigation has led state and federal courts to appoint us lead counsel in many high-profile class actions, including privacy suits against comScore, Netflix, Time, Microsoft, and Facebook; numerous Telephone Consumer Protection Act (“TCPA”) cases against companies such as Google, Twentieth Century Fox, and Simon & Schuster; class actions against Citibank, Wells Fargo, and JP Morgan Chase related to reductions in home equity lines of credit; fraudulent marketing cases against software companies such as Symantec; mobile content class actions against all major cellular telephone carriers; the Thomas the Tank Engine lead paint class actions; and the tainted pet food litigation. We have testified before the United States Senate on class action issues and have repeatedly been asked to work on federal and state legislation involving cellular telephony, privacy, and other issues. Our attorneys have appeared on dozens of national and international television and radio programs to discuss our cases and class action and consumer protection issues more generally. Our attorneys speak regularly at seminars on consumer protection and class action issues, lecture on class actions at law schools, and are asked to serve as testifying experts in cases involving class action and consumer issues. PLAINTIFFS’ CLASS AND MASS ACTION PRACTICE GROUP EDELSON PC is a leader in plaintiffs’ class and mass action litigation, with a particular emphasis on consumer technology class actions, and has been called a “class action ‘super firm.’” (Decalogue Society of Lawyers, Spring 2010.) As recognized by federal courts nationwide, our firm has an “extensive histor[y] of experience in complex class action litigation, and [is a] well-respected law firm[] in the plaintiffs’ class action bar.” In re Pet Food Prod. Liab. Litig., MDL Dkt. No. 1850, No. 07-2867 (NLH) (D.N.J. Nov. 18, 2008). A leading arbitrator concurred, finding that Edelson was “extraordinarily experienced” in “consumer protection class actions generally,” including “technology consumer protection class action[s].” In appointing our firm interim co-lead in one of the most high profile cases in the country, a federal court pointed to our ability to be “vigorous advocates, constructive problemsolvers, and civil with their adversaries.” In Re JPMorgan Chase Home Equity Line of Credit Litig., No. 10 C 3647 (N.D. Ill. July 16, 2010). After hard fought litigation, that case settled, resulting in the reinstatement of between $3.2 billion and $4.7 billion in home credit lines. We have been specifically recognized as “pioneers in the electronic privacy class action field, having litigated some of the largest consumer class actions in the country on this issue.” In re Facebook Privacy Litig., No. C 10-02389, Dkt. 69 at 5 (N.D. Cal. Dec. 10, 2010) (order appointing the firm interim co-lead of privacy class action); see also In re Netflix Privacy Litig., No. 11-cv-00379, Dkt. 59 at 5 (N.D. Cal. Aug. 12, 2011) (appointing us the sole lead counsel due, in part, to our “significant and particularly specialized expertise in electronic privacy litigation and class actions[.]”). Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 54 of 69 Similarly, as recognized by a recent federal court, our firm has “pioneered the application of the TCPA to text-messaging technology, litigating some of the largest consumer class actions in the country on this issue.” Ellison v Steve Madden, Ltd., No. 11-cv-5935 PSG, Dkt. 73 at 9 (C.D. Cal. May 7, 2013). We have several sub-specialties within our plaintiffs’ class action practice: PRIVACY/DATA LOSS Data Loss/Unauthorized Disclosure of Data We have litigated numerous class actions involving issues of first impression against Facebook, Apple, Netflix, Sony, Redbox, Pandora, Sears, Storm 8, Google, T-Mobile, Microsoft, and others involving failures to protect customers’ private information, security breaches, and unauthorized sharing of personal information with third parties. Representative settlements and ongoing cases include: • Dunstan v. comScore, Inc., No. 11-cv-5807 (N.D. Ill.): Lead counsel in certified class action accusing Internet analytics company of improper data collection practices. The court has finally approved a $14 million settlement. • Resnick v. Avmed, No. 10-cv-24513 (S.D. Fla.): Lead counsel in data breach case filed against health insurance company. Obtained landmark appellate decision endorsing common law unjust enrichment theory, irrespective of whether identity theft occurred. Case also resulted in the first class action settlement in the country to provide data breach victims with monetary payments irrespective of identity theft. • In re Netflix Privacy Litigation, No. 11-cv-00379 (N.D. Cal.): Sole lead counsel in suit alleging that defendant violated the Video Privacy Protection Act by illegally retaining customer viewing information. Case resulted in a $9 million dollar cy pres settlement that has been finally approved (pending appeal). • Halaburda v. Bauer Publishing Co., No. 12-cv-12831 (E.D. Mich.); Grenke v. Hearst Communications, Inc., No. 12-cv-14221 (E.D. Mich.); Fox v. Time, Inc., No. 12-cv-14390 (E.D. Mich.): Consolidated actions brought under Michigan’s Video Rental Privacy Act, alleging unlawful disclosure of subscribers’ personal information. In a ground-breaking decision, the court denied three motions to dismiss finding that the magazine publishers were covered by the act and that the illegal sale of personal information triggers an automatic $5,000 award to each aggrieved consumer. EDELSON PC Firm Resume as of March 2015 2 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 55 of 69 • Standiford v. Palm, No. 09-cv-05719-LHK (N.D. Cal.): Sole lead counsel in data loss class action, resulting in $640,000 settlement. • In re Zynga Privacy Litig., No. 10-cv-04680 (N.D. Cal.): Appointed colead counsel in suit against gaming application designer for the alleged unlawful disclosure of its users' personally identifiable information to advertisers and other third parties. • In re Facebook Privacy Litigation, No. 10-cv-02389 (N.D. Cal.): Appointed co-lead counsel in suit alleging that Facebook unlawfully shared its users’ sensitive personally identifiable information with Facebook’s advertising partners. • In re Sidekick Litigation, No. C 09-04854-JW (N.D. Cal.): Co-lead counsel in cloud computing data loss case against T-Mobile and Microsoft. Settlement provided the class with potential settlement benefits valued at over $12 million. • Desantis v. Sears, No. 08 CH 00448 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in injunctive settlement alleging national retailer allowed purchase information to be publicly available through the Internet. Telephone Consumer Protection Act Edelson has been at the forefront of TCPA litigation for over six years, having secured the groundbreaking Satterfield ruling in the Ninth Circuit applying the TCPA to text messages. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). In addition to numerous settlements totaling over $100 million in relief to consumers, we have over two dozen putative TCPA class actions pending against companies including Santander Consumer USA, Inc., Walgreen Co., Path, Inc., Nuance Communications, Inc., Stonebridge Life Insurance, Inc., GEICO, DirectBuy, Inc., and RCI, Inc. Representative settlements and ongoing cases include: • Rojas v CEC, No. 10-cv-05260 (N.D. Ill.): Lead counsel in text spam class action that settled for $19,999,400. • In re Jiffy Lube Int’l Text Spam Litigation, No. 11-md-2261, 2012 WL 762888 (S.D. Cal.): Co-lead counsel in $35 million text spam settlement. • Ellison v Steve Madden, Ltd., No. cv 11-5935 PSG (C.D. Cal.): Lead counsel in $10 million text spam settlement. • Kramer v. B2Mobile, No. 0-cv-02722-CW (N.D. Cal.): Lead counsel in $12.2 million text spam settlement. EDELSON PC Firm Resume as of March 2015 3 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 56 of 69 • Pimental v. Google, Inc., No. 11-cv-02585 (N.D. Cal.): Lead counsel in class action alleging that defendant co-opted group text messaging lists to send unsolicited text messages. $6 million settlement provides class members with an unprecedented $500 recovery. • Robles v. Lucky Brand Dungarees, Inc., No. 10-cv-04846 (N.D. Cal.): Lead counsel in $10 million text spam settlement. • Miller v. Red Bull, No. 12-CV-04961 (N.D. Ill.): Lead counsel in $6 million text spam settlement. • Woodman v. ADP Dealer Services, No. 2013 CH 10169 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in $7.5 million text spam settlement. • Lockett v. Mogreet, Inc., No 2013 CH 21352 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in $16 million text spam settlement. • Lozano v. 20th Century Fox, No. 09-cv-05344 (N.D. Ill.): Lead counsel in class action alleging that defendants violated federal law by sending unsolicited text messages to cellular telephones of consumers. Case settled for $16 million. • Satterfield v. Simon & Schuster, No. C 06 2893 CW (N.D. Cal.): Co-lead counsel in in $10 million text spam settlement. • Weinstein v. Airit2me, Inc., No. 06 C 0484 (N.D. Ill): Co-lead counsel in $7 million text spam settlement. CONSUMER TECHNOLOGY Fraudulent Software In addition to the settlements listed below, EDELSON PC has consumer fraud cases pending in courts nationwide against companies such as McAfee, Inc., Avanquest North America Inc., PC Cleaner, AVG, iolo Technologies, LLC, among others. Representative settlements include: • Drymon v. Cyberdefender, No. 11 CH 16779 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $9.75 million. • Gross v. Symantec Corp., No. 12-cv-00154-CRB (N.D. Cal.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $11 million. EDELSON PC Firm Resume as of March 2015 4 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 57 of 69 • LaGarde v. Support.com, Inc., No. 12-cv-00609-JSC (N.D. Cal.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $8.59 million. • Ledet v. Ascentive LLC, No. 11-CV-294-PBT (E.D. Pa.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $9.6 million. • Webb v. Cleverbridge, Inc., No. 1:11-cv-04141 (N.D. Ill.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $5.5 million. Video Games EDELSON PC has litigated cases video-game related cases against Activision Blizzard Inc., Electronic Arts, Inc., Google, and Zenimax Media, Inc., and has active litigation pending, including: • Locke v. Sega of America, No. 13-cv-01962-MEJ (N.D. Cal.): Pending putative class action alleging that Sega of America and Gearbox Software released video game trailer that falsely represented the actual content of the game. MORTGAGE & BANKING EDELSON PC has been at the forefront of class action litigation arising in the aftermath of the federal bailouts of the banks. Our suits include claims that certain banks unlawfully suspended home credit lines based on pre-textual reasons, and that certain banks have failed to honor loan modification programs. We achieved the first federal appellate decision in the country recognizing the right of borrowers to enforce HAMP trial plans under state law. The court noted that “[p]rompt resolution of this matter is necessary not only for the good of the litigants but for the good of the Country.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 586 (7th Cir. 2012) (Ripple, J., concurring). Our settlements have restored billions of dollars in home credit lines to people throughout the country. Representative cases and settlements include: • In re JP Morgan Chase Bank Home Equity Line of Credit Litig., No. 10cv-3647 (N.D. Ill.): Court appointed interim co-lead counsel in nationwide putative class action alleging illegal suspensions of home credit lines. Settlement restored between $3.2 billion and $4.7 billion in credit to the class. • Hamilton v. Wells Fargo Bank, N.A., No. 09-cv-04152-CW (N.D. Cal.): Lead counsel in class actions challenging Wells Fargo’s suspensions of home equity lines of credit. Nationwide settlement restores access to over EDELSON PC Firm Resume as of March 2015 5 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 58 of 69 $1 billion in credit and provides industry leading service enhancements and injunctive relief. • In re Citibank HELOC Reduction Litig., No. 09-cv-0350-MMC (N.D. Cal.): Lead counsel in class actions challenging Citibank’s suspensions of home equity lines of credit. The settlement restored up to $653,920,000 worth of credit to affected borrowers. • Wigod v. Wells Fargo, No. 10-cv-2348 (N.D. Ill.): In ongoing putative class action, obtained first appellate decision in the country recognizing the right of private litigants to sue to enforce HAMP trial plans. GENERAL CONSUMER PROTECTION CLASS ACTIONS We have successfully prosecuted countless class actions against computer software companies, technology companies, health clubs, dating agencies, phone companies, debt collectors, and other businesses on behalf of consumers. In addition to the settlements listed below, EDELSON PC have litigated consumer fraud cases in courts nationwide against companies such as Motorola Mobility, Stonebridge Benefit Services, J.C. Penney, Sempris LLC, and Plimus, LLC. Representative settlements include: Mobile Content We have prosecuted over 100 cases involving mobile content, settling numerous nationwide class actions, including against industry leader AT&T Mobility, collectively worth over a hundred million dollars. • McFerren v. AT&T Mobility, LLC, No. 08-CV-151322 (Fulton Cnty. Super. Ct., Ga.): Lead counsel class action settlement involving 16 related cases against largest wireless service provider in the nation. “No cap” settlement provided virtually full refunds to a nationwide class of consumers who alleged that unauthorized charges for mobile content were placed on their cell phone bills. • Paluzzi v. Cellco Partnership, No. 07 CH 37213 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving 27 related cases alleging unauthorized mobile content charges. Case settled for $36 million. • Gray v. Mobile Messenger Americas, Inc., No. 08-CV-61089 (S.D. Fla.): Lead counsel in case alleging unauthorized charges were placed on cell phone bills. Case settled for $12 million. • Parone v. m-Qube, Inc., No. 08 CH 15834 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving over 2 dozen cases alleging EDELSON PC Firm Resume as of March 2015 6 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 59 of 69 the imposition of unauthorized mobile content charges. Case settled for $12.254 million. • Williams v. Motricity, Inc., No. 09 CH 19089 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving 24 cases alleging the imposition of unauthorized mobile content charges. Case settled for $9 million. • VanDyke v. Media Breakaway, LLC, No. 08 CV 22131 (S.D. Fla.): Lead counsel in class action settlement alleging unauthorized mobile content charges. Case settled for $7.6 million. • Gresham v. Cellco Partnership, No. BC 387729 (L.A. Super. Ct., Cal.): Lead counsel in case alleging unauthorized charges were placed on cell phone bills. Settlement provided class members with full refunds. • Abrams v. Facebook, Inc., No. 07-05378 (N.D. Cal.): Lead counsel in injunctive settlement concerning the transmission of allegedly unauthorized mobile content. Deceptive Marketing • Van Tassell v. UMG, No. 1:10-cv-2675 (N.D. Ill.): Lead counsel in negative option marketing class action. Case settled for $2.85 million. • McK Sales Inc. v. Discover Bank, No. 10-cv-02964 (N.D. Ill.): Lead counsel in class action alleging deceptive marketing aimed at small businesses. Case settled for $6 million. • Farrell v. OpenTable, No. 11-cv-01785 (N.D. Cal.): Lead counsel in gift certificate expiration case. Settlement netted class over $3 million in benefits. • Ducharme v. Lexington Law, No. 10-cv-2763 (N.D. Cal): Lead counsel in CROA class action. Settlement resulted in over $6 million of benefits to the class. • Pulcini v. Bally Total Fitness Corp., No. 05 CH 10649 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in four class action lawsuits brought against two health clubs and three debt collection companies. A global settlement provided the class with over $40 million in benefits, including cash payments, debt relief, and free health club services. • Kozubik v. Capital Fitness, Inc., 04 CH 627 (Cir. Ct. Cook Cnty., Ill.): Colead counsel in state-wide suit against a leading health club chain, which settled in 2004, providing the over 150,000 class members with between EDELSON PC Firm Resume as of March 2015 7 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 60 of 69 $11 million and $14 million in benefits, consisting of cash refunds, full debt relief, and months of free health club membership. • Kim v. Riscuity, No. 06 C 01585 (N.D. Ill.): Co-lead counsel in suit against a debt collection company accused of attempting to collect on illegal contracts. The case settled in 2007, providing the class with full debt relief and return of all money collected. • Jones v. TrueLogic Financial Corp., No. 05 C 5937 (N.D. Ill.): Co-lead counsel in suit against two debt collectors accused of attempting to collect on illegal contracts. The case settled in 2007, providing the class with approximately $2 million in debt relief. • Fertelmeyster v. Match.com, No. 02 CH 11534 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in a state-wide class action suit brought under Illinois consumer protection statutes. The settlement provided the class with a collective award with a face value in excess of $3 million. • Cioe v. Yahoo!, Inc., No. 02 CH 21458 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in a state-wide class action suit brought under state consumer protection statutes. The settlement provided the class with a collective award with a face value between $1.6 million and $4.8 million. • Zurakov v. Register.com, No. 01-600703 (N.Y. Sup. Ct., N.Y. Cnty.): Colead counsel in a class action brought on behalf of an international class of over one million members against Register.com for its allegedly deceptive practices in advertising on “coming soon” pages of newly registered Internet domain names. Settlement required Register.com to fully disclose its practices and provided the class with relief valued in excess of $17 million. PRODUCTS LIABILITY CLASS ACTIONS We have been appointed lead counsel in state and federal products liability class settlements, including a $30 million settlement resolving the “Thomas the Tank Engine” lead paint recall cases and a $32 million settlement involving the largest pet food recall in the history of the United States and Canada. Representative settlements include: • Barrett v. RC2 Corp., No. 07 CH 20924 (Cir. Ct. Cook Cnty., Ill.): Colead counsel in lead paint recall case involving Thomas the Tank toy trains. Settlement is valued at over $30 million and provided class with full cash refunds and reimbursement of certain costs related to blood testing. • In re Pet Food Products Liability Litig., No. 07-2867 (D.N.J.): Part of mediation team in class action involving largest pet food recall in United EDELSON PC Firm Resume as of March 2015 8 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 61 of 69 States history. Settlement provided $24 million common fund and $8 million in charge backs. INSURANCE CLASS ACTIONS We have prosecuted and settled multi-million dollar suits against J.C. Penney Life Insurance for allegedly illegally denying life insurance benefits under an unenforceable policy exclusion and against a Wisconsin insurance company for terminating the health insurance policies of groups of self-insureds. Representative settlements include: • Holloway v. J.C. Penney, No. 97 C 4555 (N.D. Ill.): One of the primary attorneys in a multi-state class action suit alleging that the defendant illegally denied life insurance benefits to the class. The case settled in or around December 2000, resulting in a multi-million dollar cash award to the class. • Ramlow v. Family Health Plan (Wisc. Cir. Ct., WI): Co-lead counsel in a class action suit challenging defendant’s termination of health insurance to groups of self-insureds. The plaintiff won a temporary injunction, which was sustained on appeal, prohibiting such termination and eventually settled the case ensuring that each class member would remain insured. MASS/CLASS TORT CASES Our attorneys were part of a team of lawyers representing a group of public housing residents in a suit based upon contamination related injuries, a group of employees exposed to second-hand smoke on a riverboat casino, and a class of individuals suing a hospital and national association of blood banks for failure to warn of risks related to blood transfusions. Representative settlements include: • Aaron v. Chicago Housing Authority, No. 99 L 11738 (Cir. Ct. Cook Cnty., Ill.): Part of team representing a group of public housing residents bringing suit over contamination-related injuries. Case settled on a mass basis for over $10 million. • Januszewski v. Horseshoe Hammond, No. 2:00CV352JM (N.D. Ind.): Part of team of attorneys in mass suit alleging that defendant riverboat casino caused injuries to its employees arising from exposure to second-hand smoke. The firm’s cases regularly receive attention from local, national, and international media. Our cases and attorneys have been reported in the Chicago Tribune, USA Today, the Wall Street Journal, the New York Times, the LA Times, by the Reuters and UPI news services, and BBC International. Our attorneys have appeared on numerous national television and radio programs, including ABC World News, CNN, Fox News, NPR, and CBS Radio, as well as television and EDELSON PC Firm Resume as of March 2015 9 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 62 of 69 radio programs outside of the United States. We have also been called upon to give congressional testimony and other assistance in hearings involving our cases. GENERAL COMMERCIAL LITIGATION Our attorneys have handled a wide range of general commercial litigation matters, from partnership and business-to-business disputes, to litigation involving corporate takeovers. We have handled cases involving tens of thousands of dollars to “bet the company” cases involving up to hundreds of millions of dollars. Our attorneys have collectively tried hundreds of cases, as well as scores of arbitrations and mediations. OUR ATTORNEYS JAY EDELSON is the founder and Managing Partner of EDELSON PC. He has been recognized as a leader in class actions, technology law, corporate compliance issues, and consumer advocacy by his peers, the media, state and federal legislators, academia, and courts throughout the country. Jay has been appointed lead counsel in numerous state, federal, and international class actions, resulting in hundreds of millions of dollars for his clients. He is regularly asked to weigh in on federal and state legislation involving his cases. He testified to the U.S. Senate about the largest pet food recall in the country’s history and is advising state and federal politicians on consumer issues relating to the recent federal bailouts, as well as technology issues, such as those involving mobile marketing. Jay also counsels companies on legal compliance and legislative issues in addition to handling all types of complex commercial litigation. Jay has litigated class actions that have established precedent concerning the ownership rights of domain name registrants, the applicability of consumer protection statutes to Internet businesses, and the interpretation of numerous other state and federal statutes including the Telephone Consumer Protection Act and the Video Privacy Protection Act. As lead counsel, he has also secured settlement in cases of first impression involving Facebook, Microsoft, AT&T, and countless others, collectively worth hundreds of millions of dollars. In addition to technology based litigation, Jay has been involved in a number of high-profile “mass tort” class actions and product recall cases, including cases against Menu Foods for selling contaminated pet food, a $30 million class action settlement involving the Thomas the Tank Engine toy train recall, and suits involving damages arising from second-hand smoke. In 2009, Jay was named one of the top 40 Illinois attorneys under 40 by the Chicago Daily Law Bulletin. In giving Jay that award, he was heralded for his history of bringing and winning landmark cases and for his “reputation for integrity” in the “rough and tumble class action arena.” In the same award, he was called “one of the best in the country” when it “comes to legal strategy and execution.” Also in 2009, Jay was included in the American Bar Association’s “24 hours of Legal Rebels” program, where he was dubbed one of “the most creative minds in the legal profession” for his views of associate training and firm management. In 2010, he was presented with the Annual Humanitarian Award in recognition of his “personal integrity, EDELSON PC Firm Resume as of March 2015 10 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 63 of 69 professional achievements, and charitable contributions” by the Hope Presbyterian Church. Starting in 2011, he has been selected as an Illinois Super Lawyer and, separately, as a top Illinois class action lawyer by Benchmark Plaintiff. Jay is frequently asked to participate in legal seminars and discussions regarding the cases he is prosecuting, including serving as panelist on national symposium on tort reform and, separately, serving as a panelist on litigating high-profile cases. He has also appeared on dozens of television and radio programs to discuss his cases. He has taught classes on class action law at Northwestern Law School and The John Marshall Law School, and has co-chaired a 2-day national symposium on class action issues. He has been an adjunct professor, teaching a seminar on class action litigation at the Chicago-Kent College of Law since 2010. Jay is a graduate of Brandeis University and the University of Michigan Law School. RYAN D. ANDREWS is a Partner at Edelson PC. He presently leads the firm’s complex case resolution and appellate practice group, which oversees the firm’s class settlements, class notice programs, and briefing on issues of first impression. Ryan has been appointed class counsel in numerous federal and state class actions nationwide that have resulted in over $100 million dollars in refunds to consumers, including: Satterfield v. Simon & Schuster, No. C 06 2893 CW (N.D. Cal.): Ellison v Steve Madden, Ltd., No. cv 11-5935 PSG (C.D. Cal.); Robles v. Lucky Brand Dungarees, Inc., No. 10-cv-04846 (N.D. Cal.); Lozano v. 20th Century Fox, No. 09-cv-05344 (N.D. Ill.): Paluzzi v. Cellco Partnership, No. 07 CH 37213 (Cir. Ct. Cook Cnty., Ill.); and Lofton v. Bank of America Corp., No. 07-5892 (N.D. Cal.). Representative reported decisions include: Lozano v. Twentieth Century Fox, 702 F. Supp. 2d 999 (N.D. Ill. 2010), Satterfield v. Simon & Schuster, Inc. 569 F.3d 946 (9th Cir. 2009), Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010); In re Jiffy Lube Int’l Text Spam Litig., 847 F. Supp. 2d 1253 (S.D. Cal. 2012); Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292 (N.D. Cal. 2013); and Kristensen v. Credit Payment Servs., No. 2:12-CV-00528-APG, --- F. Supp. 2d --, 2014 WL 1256035 (D. Nev. Mar. 26, 2014). Ryan graduated from the University of Michigan, earning his B.A., with distinction, in Political Science and Communications. Ryan received his J.D. with High Honors from the Chicago-Kent College of Law and was named Order of the Coif. Ryan has served as an Adjunct Professor of Law at Chicago-Kent, teaching a third-year seminar on class actions. While in law school, Ryan was a Notes & Comments Editor for The Chicago-Kent Law Review, earned CALI awards for the highest grade in five classes, and was a teaching assistant for both Property Law and Legal Writing courses. Ryan externed for the Honorable Joan B. Gottschall in the United State District Court for the Northern District of Illinois. Ryan is licensed to practice in Illinois state courts, the United States District Court for the Northern District of Illinois, the U.S. Court of Appeals for the Seventh Circuit, and the U.S. Court of Appeals for the Ninth Circuit. EDELSON PC Firm Resume as of March 2015 11 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 64 of 69 RAFEY S. BALABANIAN is a Partner and the Chair of the Corporate Governance and Business Litigation Practice Group. Rafey’s practice focuses upon a wide range of complex consumer class action litigation, as well as general business litigation. On the plaintiff’s side, Rafey has been appointed lead counsel in numerous class actions, including landmark settlements involving the telecom industry worth hundreds of millions of dollars. Rafey has been appointed Class Counsel in nationwide class action settlements against the major wireless carriers, aggregators, and providers of “mobile content,” including Van Dyke v. Media Breakaway, LLC, No. 08-cv-22131 (S.D. Fla.); Parone v. m-Qube, Inc., No. 08 CH 15834 (Cir. Ct. Cook County, Ill.); Williams v. Motricity, Inc., et al., No. 09 CH 19089 (Cir. Ct. Cook Cnty., Ill.); and Walker v. OpenMarket, Inc., et al., No. 08 CH 40592 (Cir. Ct. Cook Cnty., Ill.). On the business side, Rafey has counseled clients ranging from “emerging technology” companies, real estate developers, hotels, insurance companies, lenders, shareholders and attorneys. He has successful litigated numerous multi-million dollar cases, including several “bet the company” cases. Rafey has first chaired jury and bench trials, mediations, and national and international arbitrations. Rafey received his J.D. from the DePaul University College of Law in 2005. While in law school, he received a certificate in international and comparative law. Rafey received his B.A. in History, with distinction, from the University of Colorado – Boulder in 2002. CHRISTOPHER L. DORE is a Partner at Edelson and a member of the Technology and Fraudulent Marketing Group. Chris focuses his practice on emerging consumer technology issues, with his cases relating to online fraud, deceptive marketing, consumer privacy, negative option membership enrollment, and unsolicited text messaging. Chris is also a member of the firm’s Incubation and Startup Development Group wherein he consults with emergent businesses. Chris has been appointed class counsel in multiple class actions, including one of the largest textspam settlements under the Telephone Consumer Protection Act, ground breaking issues in the mobile phone industry and fraudulent marketing, as well as consumer privacy. See Pimental v. Google, Inc., No. 11-cv-02585 (N.D. Cal.); Turner v. Storm8, LLC, No. 09-cv-05234 (N.D. Cal.); Standiford v Palm, Inc., No. 09-cv-05719-LHK (N.D. Cal.); and Espinal v. Burger King Corp., No. 09-cv-20982 (S.D. Fla.). In addition, Chris has achieved groundbreaking court decisions protecting consumer rights. Representative reported decisions include: Claridge v. RockYou, Inc., 785 F. Supp. 2d 855 (N.D. Cal. 2011); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010); and Van Tassell v. United Marketing Group, LLC, 795 F. Supp. 2d 770 (N.D. Ill. 2011). In total, his suits have resulted in hundreds of millions of dollars to consumers. Prior to joining Edelson, Chris worked for two large defense firms in the areas of employment and products liability. Chris graduated magna cum laude from The John Marshall Law School, where he served as the Executive Lead Articles for the Law Review, as well as a team member EDELSON PC Firm Resume as of March 2015 12 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 65 of 69 for the D.M. Harish International Moot Court Competition in Mumbai, India. Chris has since returned to his alma mater to lecture on current issues in class action litigation and negations. Before entering law school, Chris received his Masters degree in Legal Sociology, graduating magna cum laude from the International Institute for the Sociology of Law, located in Onati, Spain. Chris received his B.A. in Legal Sociology from the University of California, Santa Barbara. BENJAMIN H. RICHMAN is a Partner at EDELSON PC and is a member of the firm’s Corporate Governance and Business Litigation Practice Group. He handles plaintiffs’-side consumer class actions, focusing mainly on technology-related cases, represents corporate defendants in class actions, and handles general commercial litigation matters. On the plaintiff’s side, Ben has brought industry-changing lawsuits involving the marketing practices of the mobile industry, print and online direct advertisers, and Internet companies. He has successfully prosecuted cases involving privacy claims and the negligent storage of consumer data. His suits have also uncovered complex fraudulent methodologies of Web 2.0 companies, including the use of automated bots to distort the value of consumer goods and services. In total, his suits have resulted in hundreds of millions of dollars to consumers. On the defense side, Ben has represented large institutional lenders in the defense of employment class actions. He also routinely represents technology companies in a wide variety of both class action defense and general commercial litigation matters. Ben received his J.D. from The John Marshall Law School, where he was an Executive Editor of the Law Review and earned a Certificate in Trial Advocacy. While in law school, Ben served as a judicial extern to the Honorable John W. Darrah of the United States District Court for the Northern District of Illinois, in addition to acting as a teaching assistant for Prof. Rogelio Lasso in several torts courses. Ben has since returned to the classroom as a guest-lecturer on issues related to class actions, complex litigation and negotiation. He also lectures incoming law students on the core first year curriculums. Before entering law school, Ben graduated from Colorado State University with a B.S. in Psychology. Ben is also the director of EDELSON PC’S Summer Associate Program. ARI J. SCHARG is a Partner at EDELSON PC. He handles technology-related class actions, focusing mainly on cases involving the unlawful geo-locational tracking of consumers through their mobile devices, the illegal collection, storage, and disclosure of personal information, fraudulent software products, data breaches, and text message spam. His settlements have resulted in tens of millions of dollars to consumers, as well as industry-changing injunctive relief. Ari has been appointed class counsel by state and federal courts in several nationwide class action settlements, including Webb v. Cleverbridge, No. 11-cv-4141 (N.D. Ill.); Ledet v. Ascentive, No. 11-cv-294 (E.D. Penn.); and Drymon v. CyberDefender, No. 11 CH 16779 (Cir. Ct. Cook Cnty., Ill.); and was appointed sole-lead class counsel in Loewy v. Live Nation, No. 11cv-4872 (N.D. Ill.), where the court praised his work as “impressive” and noted that he EDELSON PC Firm Resume as of March 2015 13 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 66 of 69 “understand[s] what it means to be on a team that’s working toward justice.” Ari was selected as an Illinois Rising Star (2013) by Super Lawyers. Prior to joining the firm, Ari worked as a litigation associate at a large Chicago firm, where he represented a wide range of clients including Fortune 500 companies and local municipalities. His work included representing the Cook County Sheriff’s Office in several civil rights cases and he was part of the litigation team that forced Craigslist to remove its “Adult Services” section from its website. Ari is very active in community groups and legal industry associations. He is a member of the Board of Directors of the Chicago Legal Clinic, an organization that provides legal services to low-income families in the Chicago area. Ari acts as Outreach Chair of the Young Adult Division of American Committee for the Shaare Zedek Medical Center in Jerusalem, and is actively involved with the Anti-Defamation League. He is also a member of the Standard Club Associates Committee. Ari received his B.A. in Sociology from the University of Michigan – Ann Arbor and graduated magna cum laude from The John Marshall Law School where he served as a Staff Editor for The John Marshall Law Review and competed nationally in trial competitions. During law school, he also served as a judicial extern to The Honorable Bruce W. Black of the U.S. Bankruptcy Court for the Northern District of Illinois. COURTNEY BOOTH is an Associate at EDELSON PC. Courtney focuses her practice on consumer class actions. Courtney received her J.D., magna cum laude, from The John Marshall Law School. While in law school, she was a staff editor of The John Marshall Law Review, a teaching assistant for Legal Writing and Civil Procedure, and a member of the Moot Court Honor Society. Courtney represented John Marshall at the Mercer Legal Ethics and Professionalism Competition where she was a semi-finalist and won Best Respondent’s Brief and at the Cardozo/BMI Entertainment and Communications Law Competition where she placed in the top three oralists. Courtney was recently nominated as a 2013 Member of the National Order of Scribes. Prior to law school, Courtney attended Saint Louis University where she earned a B.A. in Communication. While there, she was a community relations intern for the St. Louis Blues. ALICIA HWANG is an Associate at EDELSON PC. Alicia practices in the area of consumer class action and general litigation. Alicia received her J.D. from the Northwestern University School of Law in May 2012, where she was an articles editor for the Journal of Law and Social Policy. During law school, Alicia was a legal intern for the Chinese American Service League, served as president of the Asian Pacific American Law Student Association and the Student Animal Legal Defense Fund, and was Chair of the Student Services Committee. She also worked as a student in the Northwestern Entrepreneurship Law Clinic and Complex Civil Litigation and Investor Protection Clinic. EDELSON PC Firm Resume as of March 2015 14 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 67 of 69 Prior to joining EDELSON PC, Alicia worked as an Executive Team Leader for the Target Corporation, as well as a public relations intern for a tourism-marketing agency in London. Alicia graduated magna cum laude from the University of Southern California, earning her B.A. in Communication in 2007. She is a member of the Phi Beta Kappa honor society. NICK LARRY is an Associate at EDELSON PC. Nick practices in the area of consumer class action and general litigation. Nick received his J.D., cum laude, from Northwestern University School of Law, where he was a senior editor of the Northwestern University Journal of International Law and Business. Nick attended Michigan State University, where he graduated with a B.A. in General Business Administration/Pre-law in 2008 and played on the school’s rugby team. DAVID I. MINDELL is an Associate at EDELSON PC. David practices in the area of technology and privacy class actions. David helps direct a team of attorneys and engineers in investigating and litigating cases involving complex tech fraud and privacy violations. His team’s research has led to lawsuits involving the fraudulent development, marketing and sale of computer software, unlawful tracking of consumers through mobile-devices and computers, unlawful collection, storage, and dissemination of consumer data, mobile-device privacy violations, large-scale data breaches, and the Bitcoin industry. On the other side, David also serves as a consultant to a variety of emerging technology companies. Prior to joining EDELSON PC, David co-founded several technology companies that reached multi-million dollar valuations within 12 months of launch. David has advised or created strategic development and exit plans for a variety of other technology companies. While in law school, David was a research assistant for University of Chicago Law School Kauffman and Bigelow Fellow, Matthew Tokson, and for the preeminent cyber-security professor, Hank Perritt at the Chicago-Kent College of Law. David’s research included cyberattack and denial of service vulnerabilities of the Internet, intellectual property rights, and privacy issues. David has given speeches related to his research to a wide-range of audiences. AMIR MISSAGHI is an Associate at Edelson, where he focuses on technology and privacy class actions. Amir received his J.D. from the Chicago-Kent College of Law, where he was a member of the Moot Court Honor Society and a teaching assistant in Property. Before law school, he attended the University of Minnesota, where he received his B.S. and M.S. in Applied Economics. He then began working at a Fortune 50 company as a programmer and data analyst. During that time EDELSON PC Firm Resume as of March 2015 15 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 68 of 69 Amir started working on his graduate studies in Applied Economics where he focused on analyzing consumer choice in healthcare markets. JOHN OCHOA is an associate at EDELSON PC, focusing his practice on protecting consumers with a special emphasis on plaintiffs' privacy class action litigation, including cases brought under the Telephone Consumer Protection Act. John prosecutes cases in both state and federal courts at the trial and appellate levels. John has secured important court decisions protecting the rights of consumers, including Elder v. Pacific Bell Telephone Co, 205 Cal. App. 4th 841 (2012), where the California Court of Appeal held that consumers may pursue claims against telecommunications companies for placing unauthorized charges on consumers’ telephone bills, a practice known as “cramming.” John was also appointed class counsel in Lee v. Stonebridge Life Insurance Co, 289 F.R.D. 292 (N.D. Cal. 2013), a case where the defendants are alleged to have caused the transmission of unauthorized text messages to the cellular telephones of thousands of consumers. He graduated magna cum laude from The John Marshall Law School in May 2010 and served as Managing Editor for The John Marshall Law Review. His student Comment, which examines bicycling and government tort immunity in Illinois, appears in Vol. 43, No. 1 of The John Marshall Law Review. While in law school, John externed with Judge Thomas Hoffman at the Illinois Appellate Court, and competed in the ABA National Appellate Advocacy Competition. John is active in the Illinois legal community, and serves as Co-Chair of the Membership Committee on the Young Professionals Board of Illinois Legal Aid Online (ILAO). ILAO is a non-profit organization committed to using technology to increase access to free and pro bono legal services for underserved communities throughout Illinois. He received his B.A. with Honors in Political Science from the University of Iowa in 2004. ROGER PERLSTADT is an Associate at EDELSON PC, where he concentrates on appellate and complex litigation advocacy. Roger graduated from the University of Chicago Law School, where he was a member of the University of Chicago Law Review. After law school, he served as a clerk to the Honorable Elaine E. Bucklo of the United States District Court for the Northern District of Illinois. Prior to joining the firm, Roger spent several years at a litigation boutique in Chicago where his practice included employment and housing discrimination claims, constitutional litigation, and general commercial matters. In 2011, he was named a Rising Star by Illinois Super Lawyers Magazine. Roger also spent time as a Visiting Assistant Professor at the University of Florida Law School where he taught Arbitration, Conflict of Laws, and Employment Discrimination, and has published articles on the Federal Arbitration Act in various law reviews. EVE-LYNN J. RAPP is an Associate at EDELSON PC. Eve-Lynn focuses her practice in the areas of consumer and technology class action litigation. EDELSON PC Firm Resume as of March 2015 16 Case 2:14-cv-00578-JFC Document 28-1 Filed 03/12/15 Page 69 of 69 Prior to joining EDELSON PC, Eve-Lynn was involved in numerous class action cases in the areas of consumer and securities fraud, debt collection abuses and public interest litigation. Eve-Lynn has substantial experience in both state and federal courts, including successfully briefing issues in both the United States and Illinois Supreme Courts. Eve-Lynn received her J.D. from Loyola University of Chicago-School of Law, graduating cum laude, with a Certificate in Trial Advocacy. During law school, Eve-Lynn was an Associate Editor of Loyola’s International Law Review and externed as a “711” at both the Cook County State’s Attorney’s Office and for Cook County Commissioner Larry Suffredin. Eve-Lynn also clerked for both civil and criminal judges (Honorable Yvonne Lewis and Plummer Lott) in the Supreme Court of New York. Eve-Lynn graduated from the University of Colorado, Boulder, with distinction and Phi Beta Kappa honors, receiving a B.A. in Political Science. BEN THOMASSEN is an Associate at EDELSON PC. At the firm, Ben’s practice centers on the prosecution of class actions cases that address federally protected privacy rights and issues of consumer fraud—several of which have established industry-changing precedent. Among other high profile cases, Ben recently played key roles in delivering the winning oral argument before the United States Court of Appeals for the Eleventh Circuit in Curry v. AvMed, 693 F.3d 1317 (11th Cir. 2012) (a data breach case that has, following the Eleventh Circuit’s decision, garnered national attention both within and without the legal profession) and securing certification of a massive consumer class in Dunstan v. comScore, No. 11 C 5807, 2013 WL 1339262 (N.D. Ill. Apr. 2, 2013) (estimated by several sources as the largest privacy case ever certified on an adversarial basis). Ben received his J.D., magna cum laude, from the Chicago-Kent College of Law, where he also earned his certificate in Litigation and Alternative Dispute Resolution and was named Order of the Coif. At Chicago-Kent, Ben was Vice President of the Moot Court Honor Society and earned (a currently unbroken firm record of) seven CALI awards for receiving the highest grade in Appellate Advocacy, Business Organizations, Conflict of Laws, Family Law, Personal Income Tax, Property, and Torts. Before settling into his legal career, Ben worked in and around the Chicago and Washington, D.C. areas in a number of capacities, including stints as a website designer/developer, a regular contributor to a monthly Capitol Hill newspaper, and a film projectionist and media technician (with many years experience) for commercial theatres, museums, and educational institutions. Ben received his Bachelor of Arts, summa cum laude, from St. Mary’s College of Maryland and his Master of Arts from the University of Chicago. EDELSON PC Firm Resume as of March 2015 17