CIRCUIT COURT OF COOK COUNTY, ILLINOIS CHRISTINE FARAG … · CIRCUIT COURT OF COOK COUNTY,...
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CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals, Plaintiffs, v. KIIP, INC., a Delaware corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2019-CH-01695 Hon. Celia G. Gamrath PLAINTIFFS’ MOTION AND MEMORANDUM IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT Dated: October 4, 2019 Myles McGuire Paul T. Geske Timothy P. Kingsbury MCGUIRE LAW, P.C. 55 West Wacker Drive, 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 Fax: (312) 275-7895 [email protected] [email protected] [email protected] Attorneys for Plaintiffs and Class Counsel FILED 10/4/2019 7:16 PM DOROTHY BROWN CIRCUIT CLERK COOK COUNTY, IL 2019CH01695 6846371 Return Date: No return date scheduled Hearing Date: No hearing scheduled Courtroom Number: No hearing scheduled Location: No hearing scheduled FILED DATE: 10/4/2019 7:16 PM 2019CH01695
Transcript of CIRCUIT COURT OF COOK COUNTY, ILLINOIS CHRISTINE FARAG … · CIRCUIT COURT OF COOK COUNTY,...
CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals, Plaintiffs,
v.
KIIP, INC., a Delaware corporation, Defendant.
) ) ) ) ) ) ) ) ) ) ) )
Case No. 2019-CH-01695 Hon. Celia G. Gamrath
PLAINTIFFS’ MOTION AND MEMORANDUM IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Dated: October 4, 2019 Myles McGuire Paul T. Geske Timothy P. Kingsbury MCGUIRE LAW, P.C. 55 West Wacker Drive, 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 Fax: (312) 275-7895 [email protected] [email protected] [email protected] Attorneys for Plaintiffs and Class Counsel
FILED10/4/2019 7:16 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2019CH01695
6846371
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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TABLE OF CONTENTS
Table of Authorities ....................................................................................................................... iv
I. INTRODUCTION ...............................................................................................................1
II. BACKGROUND .................................................................................................................3
A. Factual Background And Plaintiffs’ Allegations .....................................................3
B. Procedural History And The Parties’ Settlement Negotiations ...............................4
C. Class Counsel’s Continuing Efforts Since Preliminary Approval. ..........................5
III. THE SETTLEMENT ...........................................................................................................5
A. The Settlement Class................................................................................................5
B. The Settlement Provides Substantial Monetary Relief. ...........................................6 C. The Settlement Also Provides Meaningful Prospective Relief................................7
D. Notice And Settlement Administration ....................................................................7 E. Opt-Out And Objection Procedure ..........................................................................7
F. Attorneys’ Fees And Incentive Awards ...................................................................8
G. Release of Liability ..................................................................................................8 IV. THE SETTLEMENT WARRANTS FINAL APPROVAL .................................................9
A. The Notice Plan Successfully Informed Settlement Class Members About Their Rights Under The Settlement Agreement ......................................................9
B. All Factors That Illinois Courts Consider In Evaluating Class Action Settlements
Favor Final Approval Here. ...................................................................................11
1. The Settlement provides outstanding benefits to the Settlement Class, particularly given the uncertain outcome of litigation ...............................12
2. Defendant is able to satisfy its obligations under the Settlement Agreement ..................................................................................................14
3. Continued litigation would require the resolution of complex and novel issues, as well as extensive and lengthy discovery ....................................15
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4. The Settlement Class Members have overwhelmingly voiced their support
for the Settlement. ......................................................................................17
5. The Settlement was the result of arms-length negotiations overseen by an experienced mediatior, Hon. Morton Denlow (Ret.) .................................18
6. Class Counsel have significant experience in prosecuting similar class actions and believe that the Settlement is fair, reasonable, and adequate. .19
7. The stage of litigation and amount of discovery completed has ensured the Settlement is fair, reasonable, and adequate. .............................................20
C. The Single Objection To The Settlement Should Be Overruled............................21
1. Mr. Brown lacks standing to object to the Settlement because he has not
shown he is actually a Class Member. .......................................................21
2. Mr. Brown’s dissatisfaction with the relief provided under the Settlement shows that he misunderstands the nature of the claims at issue and the terms of the Settlement. .............................................................................23
3. Mr. Brown’s request that Class Counsel be denied “all fees” is
frivolous. ....................................................................................................25
V. PLAINTIFFS’ REQUESTED ATTORNEYS’ FEE AWARD AND INCENTIVE AWARDS SHOULD ALSO BE APPROVED .................................................................27
VI. CONCLUSION ..................................................................................................................28
Certificate of Service .....................................................................................................................29
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TABLE OF AUTHORITIES
Cases Page(s) Am. Civil Liberties Union v. United States Gen. Servs. Admin., 235 F. Supp. 2d 816 (N.D. Ill. 2002) ........................................................................................ 19 Armstrong v. Board of Sch. Dirs. of City of Milwaukee, 616 F.2d 305 (7th Cir. 1980) .................................................................................................... 12 Berger v. Xerox Corp. Ret. Income Guar. Plan, No. 00-584-DRH, 2004 WL 287902 (S.D. Ill. Jan. 22, 2004) .................................................. 25 Browne v. Am. Honda Motor Co., No. CV 09-06750, 2010 WL 9499072 (C.D. Cal. July 29, 2010) ...................................... 19, 27 City of Chicago v. Korshak, 206 Ill. App. 3d 968 (1st Dist. 1990) ............................ 12, 17, 18, 22 Coy v. CCN Managed Care, Inc., 2011 IL App (5th) 100068-U ........................................... 15, 20 Epstein v. Epstein, 843 F.3d 1147 (7th Cir. 2016) ........................................................................ 14 In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330 (N.D. Ill. 2010) ................................................................................................ 23 In re Carrier IQ, Inc., 78 F. Supp. 3d 1051 (N.D. Cal. 2015) ...................................................... 28 In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001)........................ 14, 30 In re First Capital Holdings Corp. Fin. Prods. Sec. Litig., 33 F.3d 29 (9th Cir. 1994) ........................................................................................................ 25 In re Google Buzz Privacy Litig., No. 10-cv-00672, 2011 WL 7460099 (N.D. Cal. June 2, 2011) ................................................. 7 In re Google Referrer Header Privacy Litig., 87 F. Supp. 3d 1122 (N.D. Cal. 2015) ...................................................................................... 26 In re Initial Pub. Offering Sec. Litig., 728 F. Supp. 2d 289 (S.D.N.Y. 2010) .............................. 19 In re Mexico Money Transfer Litig., 164 F.Supp.2d 1002 (N.D. Ill. 2000) ................................. 19 In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, 910 F. Supp. 2d 891 (E.D. La. 2012) ........................................................................................ 24 Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) ................................................................. 12, 17, 23, 27 Kaplan v. Houlihan Smith & Co., No. 12 C 5134, 2014 WL 2808801 (N.D. Ill. June 20, 2014) .................................................. 23 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) .................................................................... 7
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Lebanon Chiropractic Clinic, P.C. v. Liberty Mut. Ins. Co., 2016 IL App (5th) 150111-U .............................................................................................. 12, 26 Lewis v. Collective Brands, Inc., No. 13-12702-GAO, 2014 WL 4924413 (D. Mass. Sept. 29, 2014) ........................................ 14 Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) ................................................ 27 Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298 (S.D. Fla. 2005)............................................ 17 Opperman v. Path, Inc., 87 F. Supp. 3d 1018 (N.D. Cal. 2014)................................................... 28 People ex rel. Wilcox v. Equity Funding Life Ins. Co., 61 Ill. 2d 303 (1975) ................................................................................................................. 26 Quick v. Shell Oil Co., 404 Ill. App. 3d 277 (3d Dist. 2010) ........................................................ 12 Shaun Fauley, Sabon, Inc. v. Metro. Life Ins. Co., 2016 IL App (2d) 150236 ......................................................................................................... 20 Standard Iron Works v. ArcelorMittal, No. 08 C 5214, 2015 WL 6165024 (N.D. Ill. Oct. 20, 2015) ................................................... 24 Steinberg v. Sys. Software Assocs., Inc., 306 Ill. App. 3d 157 (1st Dist. 1999) .................................................................................. 12, 13 Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) .................................................................................................... 13 Todt v. Ameritech Corp., 327 Ill. App. 3d 359 (5th Dist. 2002) ............................................. 23, 24 Statutes 735 ILCS 5/2-801 ........................................................................................................................... 1 735 ILCS 5/2-803 ........................................................................................................................... 9 Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. ........................................................... 4 Federal Wiretap Act, 18 U.S.C. § 2510, et seq. ........................................................................ 4, 12 Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq. ............................................................... 4 Treatises A. Conte & H. Newberg, Newberg on Class Actions, § 11.42 (4th ed. 2002).............................. 18
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I. INTRODUCTION
Plaintiffs, Christine Farag and Jessica Vasil, as Class Representatives of the Settlement
Class, and pursuant to 735 ILCS 5/2-801, respectfully request that the Court grant final approval
of the Parties’ Class Action Settlement Agreement.1 Upon final approval, the Settlement will
provide Settlement Class Members with substantial financial compensation and meaningful
prospective relief that they otherwise could not have achieved on their own. As explained in detail
below, the terms of the Settlement that Class Counsel and the Class Representatives have obtained
on behalf of the Settlement Class Members are fair, reasonable, and adequate, and have been met
with tremendous support from the Settlement Class Members.
Through a combination of direct notice by email and publication notice disseminated
online, notice of the Settlement has reached numerous potential Settlement Class Members. By
the close of the claims period, more than 30,000 putative Settlement Class Members had submitted
claims seeking to participate in the Settlement. (Declaration of Brian Young, hereinafter “Young
Decl.,” ¶ 15; Declaration of Paul T. Geske, hereinafter “Geske Decl.,” ¶ 19). This strong level of
participation demonstrates overwhelming support for the Settlement among the Settlement Class
Members. Indeed, none of the Settlement Class Members have elected to opt-out or be excluded
from the Settlement.
The Settlement Class Members’ favorable response to the Settlement is not unexpected,
because the Settlement that Plaintiffs and Class Counsel achieved in this case is an exceptional
result. Under the Settlement, Defendant Kiip, Inc. (“Kiip” or “Defendant”) has agreed to create a
settlement fund of $1,000,000 that will be fully distributed to Settlement Class Members who
1 Unless stated otherwise, capitalized terms that are not defined herein are intended to have the meanings given to them in the Parties’ Settlement Agreement, a true and accurate copy of which is attached hereto as Exhibit A.
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submitted valid and compensable claims, with each such individual receiving a pro rata share
following deductions for fees, costs, and expenses under the Settlement. In addition to the
monetary benefit to the Settlement Class Members, the Settlement also provides significant
prospective relief designed to ensure that consumers’ personal information is only transmitted or
collected with their informed consent, enabling consumers to make fully-informed decisions about
which apps they use and what information they share online.
The Settlement and the relief it provides are an excellent outcome for the Settlement Class
Members given the significant risks involved in continued litigation. Class Counsel and the Class
Representatives filed this data privacy action amidst uncertainty in the law and faced difficult legal
hurdles due to adverse case precedent. Moreover, Defendant Kiip is a company with substantial
resources, strong legal defenses, and a willingness to litigate through trial and appeal. Had
Defendant prevailed either on the merits or in defeating class certification, the Settlement Class
Members would have recovered nothing whatsoever.
Although more than 30,000 putative Settlement Class Members have filed claims and
chosen to support the settlement, Class Counsel did receive one objection. However, as explained
below, this sole objector has not shown that he is actually a member of the Settlement Class, and
he therefore lacks standing to object to the Settlement’s approval. Indeed, he chose not to file a
claim, and the Settlement Administrator has no record showing that he is a Class Member. In any
event, the objector misunderstands the Settlement, his objection is factually inaccurate and legally
without merit, and the Settlement warrants approval over the objection.
In short, this Settlement favorably resolves nearly three years of contentious litigation,
bringing certainty, closure, and valuable relief for consumers nationwide. The Settlement has
received overwhelming support from the Settlement Class Members and will result in significant
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monetary and non-monetary relief if finally approved. Accordingly, Plaintiffs respectfully request
that the Court (1) grant final approval to the Settlement; (2) find that adequate notice was provided
to the Settlement Class Members; and (3) approve the Plaintiffs’ request for attorney’s fees, costs,
and incentive awards.
II. BACKGROUND
A. Factual Background & Plaintiffs’ Allegations.
Defendant is a mobile marketing company that develops and provides advertising software
for mobile devices like smartphones. Once implemented, Defendant’s software displays
advertisements within mobile applications, or “apps,” installed on individuals’ smartphones.
Defendant’s ad software also gathers information about smartphone users.
Defendant’s software is a type of a “third-party tracker.” By design, third-party trackers
can gather extensive user information in order to customize ads based on user preferences,
behavior, and demographics, and they monetize aggregate user information by selling it to other
third-parties. With this information, advertisers have the capability to tailor advertisements based
on their clients’ target market.
On May 10, 2016, the Norwegian Consumer Council (“NCC”)—a Norwegian government
agency and consumer protection organization—filed a complaint regarding Kiip with the
Norwegian Data Protection Authority. The NCC found that Kiip’s software, through its integration
with a mobile app called “Runkeeper,”2 extracted and collected users’ geographic locations,
cellphone device identifiers, and other personal information without the users’ consent and even
when users’ cellphones were not in use. After the NCC’s complaint became public, Runkeeper
2 Runkeeper is a health and fitness app that allows runners to use their smartphones to monitor the time, distance, and routes of their runs in order to record how fast and how far they have run and to set fitness goals for themselves. Kiip’s advertisements were designed to appear in the Runkeeper app at the moment when an app user met a fitness goal, so as to make the user feel as though they’re being rewarded.
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terminated its relationship with Defendant and issued a public apology to users.
Plaintiffs allege that Defendant’s advertising platform unlawfully caused the collection,
transmission, and interception of their private electronic communications without their permission,
in violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. (the “CFAA”), and
the Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq. Additionally, Plaintiffs bring common
law claims for negligence, negligence per se, breach of implied contract, and unjust enrichment.
B. Procedural History and the Parties’ Settlement Negotiations.
Plaintiffs initially filed this action on October 21, 2016 in the United States District Court
for the Northern District of Illinois (the “Federal Action”). Over the course of the proceedings of
the Federal Action, the Parties engaged in lengthy motion practice, including Defendant’s two
Federal Rule 12(b)(6) motions to dismiss. The court presiding over the Federal Action granted
Defendant’s first motion to dismiss in part and dismissed Plaintiffs’ claims under the Federal
Wiretap Act, 18 U.S.C. § 2510, et seq., as well as Plaintiffs’ other claims to the extent they were
predicated on the interception of geolocational data.
After Plaintiffs filed an amended complaint, Defendant filed a second 12(b)(6) motion to
dismiss. While that motion was pending, and as the Parties were contemplating a lengthy, complex
and expensive discovery process—including the difficulty and expense of obtaining discovery
from various third parties—they decided to explore the possibility of settlement.
On January 10, 2019, the Parties participated in a formal, full-day mediation session with
the Honorable Morton Denlow (Ret.) of JAMS Chicago. Counsel for Plaintiffs and for Defendant
expended significant efforts to reach a settlement, including exchanging information regarding
Defendant’s advertising platform, participating in arms-length negotiations, and discussing the
appropriate remedies for potential class members. After a full day of adversarial and arms-length
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negotiations, the Parties reached an agreement in principal as to the terms of the Settlement before
the Court. In light of Plaintiffs’ success in the Federal Action in stating a claim under Illinois law,
but the court’s dismissal of their Federal Wiretap Act count, the Parties agreed as part of the
Settlement that Plaintiffs would voluntarily dismiss the Federal Action and re-file their lawsuit in
the Circuit Court of Cook County, Chancery Division.
C. Class Counsel’s Continuing Efforts Since Preliminary Approval.
Class Counsel have continued to invest significant time and effort in this action following
preliminary approval. Class Counsel have been actively involved in supervising and managing all
aspects of the Settlement Administrator’s implementation of the notice program and claims
process, and have regularly communicated with the Settlement Administrator to ensure a smooth
claims process. To that end, Class Counsel reviewed the language and content of the settlement
website, reviewed and edited the claim forms to make them easier to understand, responded to
Settlement Class Members who contacted Class Counsel directly, communicated with opposing
counsel regarding notice issues, and prepared the present Motion. Class Counsel will continue to
devote their time and effort to the claims process, including by responding to inquiries from
Settlement Class Members and monitoring the distribution of settlement payments by the
Settlement Administrator.
III. THE SETTLEMENT
A. The Settlement Class.
In its Preliminary Approval Order, this Court certified the Settlement Class defined as
follows:
All individuals in the United States who used a mobile software app integrated with the Kiip advertising platform between January 1, 2010 and [June 13, 2019].
(Preliminary Approval Order ¶ 3, a true and accurate copy of which is attached as Exhibit B).
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B. The Settlement Provides Substantial Monetary Relief.
The Settlement provides for creation of a Settlement Fund totaling $1,000,000 (Exh. A ¶
30(d)). Each Settlement Class Member who timely filed a valid and compensable claim will be
entitled to a pro rata share of the Settlement Fund after payments are first deducted for notice and
administration costs, attorneys’ fees and costs, and incentive award payments to Plaintiffs. The
amount of individual payments to each Settlement Class Member who submits a valid Claim Form
will depend on the total number of valid Claim Forms submitted and the number of valid claims.
As of the claims deadline, there were 30,319 claims submitted by individuals with a U.S.
address. (Young Decl. ¶ 15). Because the Settlement Fund is to be distributed to Settlement Class
Members pro rata, the amount of each individual payment will ultimately depend on the number
of valid and compensable claims. Assuming that all of the submitted claims are valid and
compensable, Class Counsel conservatively estimate that each claimant will receive an individual
payment of just under $12 following subtractions for the costs of notice and administration, court
awarded attorneys’ fees and costs, and Incentive Awards. However, Class Counsel believe that a
significant number of claims may be invalid or otherwise ineligible for compensation, and as such,
the final amount of individual payments may be higher once the Settlement Administrator
completes its review and validates the submitted claims information.
This result is outstanding and particularly notable for privacy cases like this one. In recent
years, a number of high-profile privacy class action settlements have provided zero monetary relief
to class members whatsoever. See, e.g., Lane v. Facebook, Inc., 696 F.3d 811, 820–22 (9th Cir.
2012) (creating cy pres only fund); In re Google Buzz Privacy Litig., No. 10-cv-00672, 2011 WL
7460099, at *3–5 (N.D. Cal. June 2, 2011) (same). Additionally, the $1,000,000 Settlement Fund
will be fully paid out—no part of the Settlement Fund will revert to Defendant. If any Settlement
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Class Members’ checks remain uncashed following disbursement, the remainder of the Settlement
Fund shall be paid to a cy pres recipient(s) approved by the Court. (Exh. A ¶ 32).
C. The Settlement Also Provides Meaningful Prospective Relief.
The Settlement also provides significant prospective relief to every Settlement Class
Member, regardless of whether they chose to submit a claim form. Defendant has implemented
prospective measures to ensure that its app developer partners obtain permission from app users
to transmit users’ information to third-parties, disclose when and how user information will be
transmitted, and confirm that apps will only transmit such information to Defendant when app
users are using the app or would otherwise expect such information to be transmitted. (Id. ¶ 34).
This prospective relief meaningfully benefits the Settlement Class Members by enabling them to
make fully-informed decisions about how they use apps and share their personal information.
D. Notice And Settlement Administration.
The Parties agreed to retain Epiq Systems Class Action and Claims Solutions (“Epiq”) as
the Settlement Administrator. Epiq has been responsible for effectuating class notice, receiving
claim forms submitted by Settlement Class Members, and determining whether all submitted
information is complete and accurate. (Young Decl. ¶ 3). Defendant has agreed to pay from the
Settlement Fund the costs of effectuating the Court-approved notice plan, processing and paying
valid claims, and all other expenses incurred by the Settlement Administrator in administering the
Settlement. The results of the notice plan are described in greater detail below.
E. Opt-Out And Objection Procedure.
Putative Settlement Class Members were notified of their opportunity to exclude
themselves from the Settlement or object to its approval. (Exh. A ¶¶ 46–52). The procedures and
deadlines for filing opt-out requests and objections were referenced in all forms of the notice and
on the Settlement Website. (See Exhs. 2–3 to Exh. A). As to objecting, the notices informed
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Settlement Class Members that they would have an opportunity to appear and have their objections
heard at the Final Approval Hearing. (Id.). The notices also informed putative Settlement Class
Members that they will be bound by the Settlement’s Release unless they timely exercised their
right to be excluded. (Id.). At the conclusion of the claims period and objection deadline, no
putative class members have elected to opt-out, and at present there is only one pending objection
to the Settlement. (Young Decl. ¶ 18).
F. Attorneys’ Fees And Incentive Awards.
Subject to Court approval, attorney’s fees and incentive awards are to be paid out of the
Settlement fund. (Exh. A ¶ 30(e)). Class Counsel’s requested fees, costs, and incentive awards are
detailed in Plaintiffs’ separately-filed Motion for Approval of Attorneys’ Fees, Expenses, and
Incentive Awards (the “Fee Award Motion”) filed on September 4, 2019. As explained in that
Motion, Class Counsel agreed as part of the Settlement to limit their request for attorney’s fees to
no more than 40% of the total Settlement Fund, or $400,000. (Id. ¶ 63). Class Counsel ultimately
sought less than this amount, requesting a risk-adjusted fee award of $380,000. Class Counsel also
requested that the Court approve Incentive Awards to the named Plaintiffs of $5,000 each, and
Class Counsel’s reasonable litigation expenses of $15,015.36. Defendant does not oppose any of
these requests.
G. Release of Liability.
In exchange for the monetary and prospective relief described above, each Settlement Class
Member who has not excluded himself or herself will be deemed to have released and forever
discharged Defendant and the other “Releasees” (e.g. Defendant’s affiliates) from any claims
related to or arising out of Defendant’s alleged collection, transmission, and interception of their
private electronic communications without their permission. (Id. ¶ 35).
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IV. THE SETTLEMENT WARRANTS FINAL APPROVAL
Upon final approval, the Settlement reached in this matter will provide Settlement Class
Members with substantial benefits that they otherwise would not, or could not, have pursued:
meaningful cash payments, as well as significant prospective relief designed to better inform them
about how and when their personal information is being shared with advertisers. In addition, thanks
to the robust notice plan, which included direct email notice to many potential Settlement Class
Members as well as online publication notice, the Settlement Class Members were informed of
their rights under the Settlement. Because the Settlement reached by the Parties is fair, reasonable,
and provides meaningful cash compensation to the Settlement Class Members, and because the
notice plan effectively notified class members of their rights under the Settlement Agreement, this
Settlement warrants final approval by the Court.
A. The Notice Plan Successfully Informed Settlement Class Members About Their Rights Under the Settlement Agreement.
Because class actions by their nature involve representatives acting on behalf of a large,
absent class of persons, it is critical that class members in any class action settlement be informed
of the settlement and their rights and options thereunder. Accordingly, “[a]fter determining that a
lawsuit may proceed on a class-wide basis, through settlement or otherwise, a court may order
such notice as it deems necessary to protect the interests of the class.” 735 ILCS 5/2-803.
Here, in preliminarily approving the Settlement, the Court approved the robust notice plan
outlined in the Parties’ Settlement Agreement. (Exh. B ¶ 8). Under the Settlement’s notice plan,
Settlement Class Members were to be notified of the Settlement through a combination of direct
notice by email and publication notice appearing online. (Exh. A ¶¶ 44-45; Young Decl. ¶¶ 3-14).
As directed by the Court in its Preliminary Approval Order, the Settlement Administrator began
implementing the notice plan on July 12, 2019. (Exh. B ¶ 10; Young Decl. ¶¶ 5, 8).
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The notice plan proved to be extremely successful at reaching potential Settlement Class
Members and informing them of the Settlement. Upon implementation of the notice plan, the
Settlement Administrator sent direct notice by email to nearly 15 million email addresses. (Id. ¶
5). If any emails were returned as undeliverable, the Settlement Administrator made at least two
follow-up attempts to deliver notice by email. (Id. ¶ 6). Additionally, the online publication notice
and Settlement Website successfully reached many more individuals. As of September 26, 2019,
there have been 61,299 unique visitors to the Settlement Website and 231,271 website page views.
(Id. ¶ 10). The Settlement Administrator also placed internet banner ads on mobile devices across
the Google Display Network and Mobile Newsfeed ads on social media websites, resulting in
approximately 8.9 million “impressions.” (Id. ¶¶ 11-12). Further, the Settlement Administrator
purchased sponsored search listings on the three most popular internet search engines—Google,
Yahoo!, and Bing—so that any potential Settlement Class Members who were searching for
information about the Settlement online could more easily find the Settlement Website. (Id. ¶ 13).
In total, the sponsored search listings were displayed 3,594 times, resulting in 472 clicks that
displayed the case website. (Id. ¶ 14).
The format and language of each form of notice were carefully drafted in straightforward,
easy-to-read language, which clearly informed Settlement Class Members of all the material
aspects of the Settlement, such as the relief they are entitled to under the Settlement, their right to
challenge the Settlement or opt-out, and the amount of attorney’s fees that could be sought. (Id. ¶
6; see generally Exhs. 2-3 to the Settlement Agreement). The notices also invited Settlement Class
Members to visit the Settlement Website, where they could submit a claim or review more detailed
information. (Young Decl. ¶ 8). The Settlement Website contained all of the important information
related to the Settlement, including key dates and deadlines (e.g., claims deadline, objection
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deadline, final approval hearing date and time, etc.), all relevant court documents (e.g., the
Preliminary Approval Order and Settlement Agreement), contact information for Class Counsel,
and most importantly, an easily accessible form that Settlement Class Members could use to submit
their claim directly online. (Id.). In addition, the Settlement Website gave detailed instructions for
opting out or filing objections.
Given the success of the Settlement’s Notice Plan—in terms of the sheer number of
potential Settlement Class Members who were notified—there is little doubt that the notice plan
implemented by the Parties was more than sufficient to notify the Settlement Class Members of
the Settlement and their rights and options thereunder, and satisfied Due Process considerations.
B. All Factors That Illinois Courts Consider In Evaluating Class Action Settlements Favor Final Approval Here.
Final approval of the Settlement is warranted here because the Settlement and relief
provided thereunder meet all of the applicable criteria for final approval. There is a strong judicial
and public policy favoring the settlement of class action litigation, and a settlement should be
approved by the Court after determining that the settlement is “fair, reasonable, and adequate.”
Quick v. Shell Oil Co., 404 Ill. App. 3d 277, 282 (3d Dist. 2010); Lebanon Chiropractic Clinic,
P.C. v. Liberty Mut. Ins. Co., 2016 IL App (5th) 150111-U, ¶ 41; Isby v. Bayh, 75 F.3d 1191, 1198
(7th Cir. 1996).
In determining whether a settlement is fair, reasonable, and adequate, Illinois courts
consistently apply an eight-factor test, also known as the “Korshak factors.” City of Chicago v.
Korshak, 206 Ill. App. 3d 968, 972 (1st Dist. 1990). The factors to be considered are: “(1) the
strength of the case for the plaintiffs on the merits, balanced against the money or other relief
offered in settlement; (2) the defendant’s ability to pay; (3) the complexity, length and expense of
further litigation; (4) the amount of opposition to the settlement; (5) the presence of collusion in
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reaching a settlement; (6) the reaction of members of the class to the settlement; (7) the opinion of
competent counsel; and (8) the stage of proceedings and the amount of discovery completed.” Id.;
see also Armstrong v. Board of Sch. Dirs. of City of Milwaukee, 616 F.2d 305, 314 (7th Cir. 1980).
Of these considerations, the first is most important. Steinberg v. Sys. Software Assocs., Inc., 306
Ill. App. 3d 157, 170 (1st Dist. 1999); Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d
646, 653 (7th Cir. 2006). Here, because each of these factors supports a finding that the Parties’
Settlement is “fair, reasonable, and adequate,” the Court should grant final approval.
1. The Settlement provides outstanding benefits to the Settlement Class, particularly given the uncertain outcome of litigation.
The first Korshak factor—the strength of the Class Representatives’ case on the merits,
balanced against the relief obtained under the Settlement—“is the most important factor in
determining whether a settlement should be approved.” Steinberg, 306 Ill. App. 3d at 170.
While Plaintiffs believe that their claims against Defendant are strong, they also recognize
that Defendant has denied their allegations and raised multiple legal defenses, any of which, if
successful, would result in the Plaintiffs and the Settlement Class Members receiving no payment
through this litigation whatsoever. The Settlement in this case was reached at a time when case
law was decidedly against the Class Members’ interests. Specifically, when the Settlement
Agreement was negotiated, the federal court presiding over this matter had already dismissed
Plaintiffs’ claims under the federal Wiretap Act—their most valuable claims financially due to the
availability of statutory damages for violations of the Wiretap Act. See 18 U.S.C. § 2520(c)(2)
(providing for statutory damages of $100 a day for each day of violation or $10,000 per violation,
whichever is the greater). The federal court found that Plaintiffs had not established a claim for
unlawful interception under the Wiretap Act because Plaintiffs had not shown that Defendant
captured Plaintiffs’ information contemporaneously with when that information was sent—an
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essential element of Wiretap Act claims. See, e.g., Epstein v. Epstein, 843 F.3d 1147, 1149-50 (7th
Cir. 2016) (collecting cases).
Absent a claim for statutory damages, Plaintiffs’ potential recovery would have been
minimal, because Plaintiffs’ remaining claims only allowed for recovery of actual damages, i.e.
pecuniary losses. Many courts have expressed skepticism as to whether a defendant’s improper
collection or retention of personal information, without more, is a pecuniary harm entitling a
plaintiff to monetary recovery. See, e.g., In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d
497, 525 (S.D.N.Y. 2001) (“[W]e are unaware of any court that has held the value of this collected
information constitutes damage to consumers or unjust enrichment to collectors.”); Lewis v.
Collective Brands, Inc., No. 13-12702-GAO, 2014 WL 4924413, at *2 (D. Mass. Sept. 29, 2014)
(dismissing unjust enrichment claim that defendant could “sell for profit its customers’ identities”
because that was “not a benefit for which a reasonable person would expect compensation”).
In addition to surmounting Defendant’s merits-based defenses, Plaintiffs would also need
to prevail at class certification, which would be highly contested and for which success would not
be guaranteed. As with Defendant’s merits defenses, the Class Members would not be able to
obtain any relief unless Plaintiffs also prevailed at class certification. In light of the risks inherent
in litigating a contested class certification motion, continued litigation could very well result in the
Settlement Class receiving no payment at all.
In contrast, the Settlement achieves an excellent result for the Settlement Class Members
in obtaining $1,000,000 in compensation. A data privacy class settlement providing for a
significant cash benefit like the one here is an exceptional result, especially when compared to
other data privacy settlements, many of which have provided no cash benefit to class members.
See supra Part III.B. Moreover, in addition to monetary relief, the Settlement also provides
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significant prospective relief targeted at remedying the conduct at issue and ensuring that
Defendant’s app developer partners only collect and share app users’ personal information with
the users’ permission.
Accordingly, this Settlement provides significant relief while “allow[ing] the class to avoid
the inherent risk, complexity, time, and cost associated with continued litigation.” Schulte v. Fifth
Third Bank, 805 F. Supp. 2d 560, 586 (N.D. Ill. 2001) (internal citations omitted); see also Coy v.
CCN Managed Care, Inc., 2011 IL App (5th) 100068-U, ¶ 25 (stating that settlement allows parties
to “avoid[] a determination of sharply contested issues and dispens[es] with expensive and
wasteful litigation.”). Final Approval of the Settlement will allow Plaintiffs and the other
Settlement Class Members to receive meaningful compensation now, instead of years from now—
or perhaps never. See Schulte, 805 F. Supp. 2d at 582. Taking these realities into account, and
recognizing the risks involved in litigation, the relief provided by the Settlement represents an
excellent result for the Class Members.
In sum, weighing the strength of Plaintiffs’ claims and the potential risks inherent in
continued litigation against the significant, immediate benefit provided to the Settlement Class
Members if this Settlement is finally approved, the first Korshak factor strongly supports granting
final approval here. The Settlement in this case exceeds the applicable standards of fairness and is
substantially consistent with other consumer class settlements that have been approved in this court
and elsewhere throughout the country. Therefore, given the substantial monetary and non-
monetary relief provided under the Settlement, and the significant risk of not obtaining any
recovery whatsoever if the litigation was to proceed, the Court should find that the first Korshak
factor is satisfied here.
2. Defendant is able to satisfy its obligations under the Settlement Agreement.
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Absent settlement, Defendant would likely incur significant litigation expenses if this
matter continued through trial. Due to the technically-complex nature of Defendant’s data
collection practices, if the case were to proceed, the Parties could expect to expend tens if not
hundreds of thousands of dollars in discovery costs on merits issues alone, not to mention the
additional cost of class discovery and further litigation through trial. Resolving this matter now
preserves these financial resources for the purpose of providing immediate relief to the Settlement
Class Members and for covering the costs of notice and distribution to the class members,
including payment of claims, the Settlement Administrator’s fees and expenses in implementing
the notice plan, and the costs of reviewing submitted claims.
Although Defendant operates a profitable business, any judgment entered against
Defendant in this case would likely be much larger than its exposure from the Settlement and could
constitute a devastating loss to Defendant. The Parties have negotiated a Settlement that provides
substantial relief to the Settlement Class Members without bankrupting or crippling Defendant’s
business. And, as explained above, resolving this matter preserves these financial resources for
distribution to the class members, rather than Defendant’s costs of defense. Accordingly, this
Korshak factor also supports granting final approval.
3. Continued litigation would require the resolution of complex and novel issues, as well as extensive and lengthy discovery.
The third Korshak factor, the “complexity, length and expense of further litigation,” 206
Ill. App. 3d at 972, also weighs heavily in favor of final approval of the Settlement. As the Korshak
court observed, a “fair and reasonable settlement” is preferred over continued litigation which
would leave any potential recovery “in limbo.” Id. at 973; see also Isby, 75 F.3d at 1199–1200
(affirming the final approval of a settlement where continued litigation “would require the
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resolution of many . . . complex issues” and “entail considerable additional expense”). Indeed,
when comparing the “significance of immediate recovery” versus the “mere possibility of relief in
the future, after protracted and expensive litigation . . . [i]t has been held proper to take the bird in
the hand instead of a prospective flock in the bush.” Lipuma v. Am. Express Co., 406 F. Supp. 2d
1298, 1323 (S.D. Fla. 2005).
As explained above, litigating this matter further would require significant expense and
prolonged, complex, and costly merits discovery. Witnesses from across the country would have
to be assembled for depositions and any eventual trial. Both Parties would likely retain experts to
opine on the operation of Defendant’s advertising platform. Further, any decision on the merits
following discovery would likely be appealed by the losing party, delaying any final resolution of
the matter and significantly increasing expenses for both Parties.
Even if Plaintiffs were to ultimately succeed in defeating any further dispositive motions
brought by Defendant, they would still have to prevail on their motion for class certification. Any
motion for class certification would not only be heavily contested, but would also require
additional, extensive class discovery efforts by the Parties, which would also require complex and
expensive expert discovery relating to Defendant’s data collection and management practices.
Given the complexity of the claims at issue and the scope of the class, and the significant expenses
that would result from having this case proceed with both merits and class discovery, dispositive
motion briefing, adverse class certification, trial, and any potential appeals, this factor heavily
favors granting final approval. In contrast to the years-long course of continued litigation, final
approval will permit the Settlement Class Members to promptly receive their compensation and
allow the Parties to avoid any further expenses and reach a final resolution of their dispute. In other
words, “[i]f the Court approves the [Settlement], the present lawsuit will come to an end and
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[Settlement Class Members] will realize both immediate and future benefits as a result.” Schulte,
805 F. Supp. 2d at 586. The third Korshak factor is thus also satisfied.
4. The Settlement Class Members have overwhelmingly voiced their support for the Settlement.
Looking at the fourth and sixth Korshak factors together – as they are “closely related,”
206 Ill. App. 3d at 973 – it is apparent that final approval of the Settlement is not only in the best
interest of the Parties, but is also overwhelmingly supported by the Settlement Class Members
themselves. At the close of the claims period, more than 30,000 potential Settlement Class
Members had filed claims, and none of the Settlement Class Members chose to opt-out or exclude
themselves from the Settlement. (Geske Decl. ¶ 19; Young Decl. ¶ 15). The comprehensive scope
of the notice plan, the large number of potential Settlement Class Members notified, and the lack
of any real opposition to the Settlement all demonstrate that the Settlement Class Members
overwhelmingly support this Settlement. See Am. Civil Liberties Union v. United States Gen.
Servs. Admin., 235 F. Supp. 2d 816, 819 (N.D. Ill. 2002); In re Mexico Money Transfer Litig., 164
F. Supp. 2d 1002, 1021 (N.D. Ill. 2000) (granting final approval of settlements and finding the fact
that “99.9% of class members have neither opted out nor filed objections to the proposed
settlements . . . is strong circumstantial evidence in favor of the settlements”).
While Class Counsel did receive one lone objection, the objection is from an individual
who has not filed a claim nor shown that he is actually part of the Settlement Class. As explained
below, he therefore lacks standing to object. Moreover, the objector misunderstands the Settlement
and raises frivolous legal arguments.
In any event, “[t]he fact that there is opposition does not necessitate disapproval of the
settlement.” See Browne v. Am. Honda Motor Co., No. CV 09-06750, 2010 WL 9499072, at *15
(C.D. Cal. July 29, 2010). This is especially the case given the frequency with which “professional
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objectors” seek out such settlements and file generic objections even where there is no legitimate
basis. See In re Initial Pub. Offering Sec. Litig., 728 F. Supp. 2d 289, 295 n.37 (S.D.N.Y. 2010)
(“[r]epeat objectors to class action settlements can make a living simply by filing frivolous appeals
and thereby slowing down the execution of settlements” and “courts are increasingly weary of
professional objectors: some of [which are] obviously canned objections filed by professional
objectors”) (internal citations omitted).
Plaintiffs address the substance of the objection in greater detail below, but in short, the
objection does not raise any valid concerns that reflect on the fairness, reasonableness, or adequacy
of the Settlement; the objection therefore does not warrant denying final approval.
5. The Settlement was the result of arms-length negotiations overseen by an experienced mediator, Hon. Morton Denlow (Ret.) of JAMS Chicago.
With respect to the fifth factor, this Settlement was not reached as a result of any
“collusion” between the Parties. There is an initial presumption that a proposed settlement is fair
and reasonable when it was the result of arms-length negotiations. A. Conte & H. Newberg,
Newberg on Class Actions, § 11.42 (4th ed. 2002); see also Shaun Fauley, Sabon, Inc. v. Metro.
Life Ins. Co., 2016 IL App (2d) 150236, ¶ 21 (finding no collusion where there was “no evidence
that the proposed settlement was not the product of ‘good faith, arm’s-length negotiations’”); Coy,
2011 IL App (5th) 100068-U, ¶ 31 (finding that there was no collusion where the settlement
agreement was reached as a result of “an arms-length negotiation . . . entered into after years of
litigation and discovery, resulting in a settlement with the aid of an experienced mediator.”).
Here, the Settlement was reached as a result of highly contested, arms-length negotiations.
The Parties engaged in months of motion practice before even discussing settlement. Even after
several settlement discussions, the Parties were still unable to agree on a resolution and decided to
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engage Judge Denlow (Ret.) of JAMS Chicago to aid in mediating the Parties’ dispute. Such an
involved process underscores the non-collusive nature of the proposed Settlement.
Further evidencing the non-collusive nature of the proposed Settlement are the numerous
weeks of negotiations regarding the final form of the Settlement Agreement and attendant
documents. Even after the Parties reached an agreement in principle, the Parties still engaged in
back-and-forth negotiations regarding the final form of the Settlement Agreement and attendant
documents for weeks.
Finally, the substantial relief being made available under the Settlement is itself an
indicator that the Settlement was a result of good-faith negotiations rather than any collusion
between the Parties. It cannot be said that the Parties colluded in reaching a settlement where
Defendant is required to part with a significant sum of money and make meaningful changes to its
business operations. This Settlement was reached in good faith and in no way is the product of
collusion; as such, this factor weighs in favor of granting final approval.
6. Class Counsel have significant experience in prosecuting similar class actions and believe that the Settlement is fair, reasonable, and adequate.
Class Counsel regularly handle complex litigation on behalf of consumers and have
extensive experience in class action lawsuits, including consumer class actions relating to privacy
and emerging technologies. (Geske Decl. ¶¶ 9-11). Plaintiffs’ counsel and their firms have been
appointed as class counsel in numerous complex class actions in the Circuit Court of Cook County,
the Northern District of Illinois, and in courts throughout the country. (Id.). Accordingly, given
their extensive experience litigating and settling similar class actions, Class Counsel are competent
and qualified to provide their opinion as to the strength of the Settlement achieved.
In light of their experience in having litigated and settled numerous other class cases, Class
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Counsel strongly believe that final approval of the Settlement is in the best interests of the
Settlement Class Members here. (Id. ¶¶ 23-24). Final approval will avoid any risks and delays
associated with allowing the litigation to continue and will provide the Settlement Class Members
with immediate relief. (Id.). Moreover, the relief under this Settlement is significant compared to
other consumer privacy cases, many of which do not provide cash compensation. (Id.).
Given the defenses that Defendant would raise, and the resources that Defendant has
committed to defending and litigating this matter through appeal, Class Counsel are confident that
the Settlement is in the best interests of the Settlement Class Members. (Id.). Thus, Class Counsel
believe that the Settlement is fair, reasonable, and adequate, and warrants approval. In light of
Class Counsel’s strong support for the Settlement, as well as the numerous court decisions that
have found similar settlements worthy of final approval, this factor also strongly favors granting
final approval of the Settlement.
7. The stage of litigation and amount of discovery completed has ensured the Settlement is fair, reasonable, and adequate.
Finally, the last Korshak factor also supports final approval because this Settlement
was reached after lengthy motion practice and a thorough investigation by Class Counsel.
Through an extensive investigation that began well before filing suit and continued over
the course of the litigation, Class Counsel obtained critical information necessary to
“evaluate the merits of the case and assess the reasonableness of the settlement.” Korshak,
206 Ill. App. 3d at 974. This investigation informed Plaintiffs’ strategy during settlement
negotiations and was essential to achieving this Settlement. Isby, 75 F.3d at 1200
(“Approval of a settlement is proper where discovery and investigation conducted by class
counsel prior to entering into settlement negotiations was extensive and thorough.”).
The Parties also informally exchanged information in advance of the full-day
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mediation session Judge Denlow. Although this case settled before formal discovery
concluded, courts regularly approve settlements even prior to the commencement of formal
discovery, especially where counsel “have conducted a significant amount of informal
discovery and dedicated a significant amount of time and resources to advancing the
underlying lawsuits.” In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D.
330, 350 (N.D. Ill. 2010). Accordingly, the final Korshak factor also supports approval.
C. The Single Objection To The Settlement Should Be Overruled.
1. Mr. Brown lacks standing to object to the Settlement because he has not shown he is actually a Class Member.
The sole objector to the Settlement, Daniel Brown, has not shown that he is a Class
Member, and he thus lacks standing to object to the Settlement’s approval. “[An] individual who
is not a class member lacks standing to object to a settlement agreement to which he is not a party.”
Kaplan v. Houlihan Smith & Co., No. 12 C 5134, 2014 WL 2808801, at *3 (N.D. Ill. June 20,
2014); Todt v. Ameritech Corp., 327 Ill. App. 3d 359, 396 (5th Dist. 2002) (“None of the entities
mentioned . . . is a Class Member and, thus, none has standing to object to the proposed
settlement.”); Standard Iron Works v. ArcelorMittal, No. 08 C 5214, 2015 WL 6165024, at *1
(N.D. Ill. Oct. 20, 2015). Put differently, those who “fall[] outside the settlement class are entirely
unaffected by the Settlement, and thus lack standing to challenge it[.]” In re Oil Spill by the Oil
Rig “Deepwater Horizon” in the Gulf of Mexico, 910 F. Supp. 2d 891, 941 (E.D. La. 2012), aff’d
sub nom. In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014).
Here, nothing indicates that Mr. Brown is a Settlement Class Member. He has chosen not
to file a claim—through which he would have certified that he is a Class Member—nor has he
adduced anything in support of his objection demonstrating his membership in the Settlement
Class. He has not submitted any affidavit, documents, or any other kind of evidence showing that
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he is a Class Member. Todt, 327 Ill. App. 3d at 396 (overruling objection where “none of the
[objectors] filed any [ ] pleadings or papers that would establish their standing to participate in the
proceedings and [ ] none of them . . . submitted any evidence by affidavit or any other documentary
evidence.”). Indeed, he does not even state in his objection that he believes he is a member of the
Settlement Class.
To the contrary, the only available evidence indicates that Mr. Brown is not a Settlement
Class Member. After receiving Mr. Brown’s objection, Class Counsel sent a copy of the objection
to the Settlement Administrator. (Geske Decl. ¶ 21). The Administrator then reviewed the original
Class Member data provided by Defendant and the list of those who received direct notice, and it
found no record of Mr. Brown. (Young Decl. ¶ 18). In other words, neither the Settlement
Administrator nor Defendant have any records showing that Mr. Brown is a Class Member.
Moreover, Mr. Brown’s decision to not file a claim further undermines any implication
that he might somehow be a Settlement Class Member.3 When Settlement Class Members
submitted claims, they were asked to certify that they downloaded one of the mobile apps
integrated with Defendant’s advertising platform and that they believed—based on the information
in the class notice—that their information was sent to Defendant without their permission. (See
Kiip Class Action Settlement Claim Form, Exh. 1 to the Settlement Agreement). Mr. Brown,
however, chose not to file a claim and thus did not make any such certification. Nor did he make
the required certification in his objection.4
3 The Settlement Administrator determined that there were no claims filed by anyone named “Daniel Brown” nor anyone with Mr. Brown’s street address or phone number. (Young Decl. ¶ 18). 4 Even if Mr. Brown were a Settlement Class Member, his decision not to file a claim makes him ineligible to receive a payment, (Exh. A ¶¶ 32-33), and he therefore lacks any financial interest or right to receive payment under the Settlement, which further undercuts any chance he has at establishing standing to object. Berger v. Xerox Corp. Ret. Income Guar. Plan, No. 00-584-DRH, 2004 WL 287902, at *1 (S.D. Ill. Jan. 22, 2004) (“the objector was not receiving additional benefits under the Court’s prior Orders and is accordingly not receiving additional benefits under the settlement; therefore, he is without standing to object
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In short, Mr. Brown has failed to satisfy his burden of establishing that he is a class
member.5 If he is not a class member, then this Settlement does not affect him or his legal rights
in any way, and he thus lacks standing to raise any legal challenge to the Settlement’s approval.
His objection can and should be overruled on this basis alone.
2. Mr. Brown’s dissatisfaction with the relief provided under the Settlement shows that he misunderstands the nature of the claims at issue and the terms of the Settlement.
Even if the Court were to consider the substance of Mr. Brown’s objection, the Settlement
would still warrant final approval because his objection has no merit. Mr. Brown attempts to find
fault with the class relief provided under the Settlement, based on his belief that if the class
members’ “claim[s] were to be proven, Kiip would likely face far greater monetary damages than
$1,000,000.” (A true and accurate copy of Mr. Brown’s Objection is attached as Exhibit C). Even
if this were true, it would not warrant rejection of the Settlement. Mr. Brown incorrectly presumes
that a complete victory is guaranteed, and he fails to account for the risks of continued litigation
and proceeding through class certification, summary judgment, trial, and potentially an appeal.
“The standard for class settlement approval is not whether the parties could have done
better—the standard is whether the compromise was fair, reasonable, and adequate” given the
relative risks and likelihood of success. Lebanon, 2016 IL App (5th) 150111-U, ¶ 50 (citing People
ex rel. Wilcox v. Equity Funding Life Ins. Co., 61 Ill. 2d 303, 317, 319 (1975)). Under this standard,
“a trial court cannot reject a settlement solely because it does not provide a complete victory to the
class members.” Id. (citing Isby, 75 F.3d at 1200). “[T]he very essence of a settlement is
or appeal.”) (citing In re First Capital Holdings Corp. Fin. Prods. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994)). 5 “[O]bjectors to a class action settlement bear the burden of proving any assertions they raise challenging the reasonableness of a class action settlement.” In re Google Referrer Header Privacy Litig., 87 F. Supp. 3d 1122, 1137 (N.D. Cal. 2015) (citing United States v. Oregon, 913 F.2d 576, 581 (9th Cir. 1990)), vacated on other grounds, Frank v. Gaos, 139 S. Ct. 1041 (2019).
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compromise, a yielding of absolutes and an abandoning of highest hopes.” Linney v. Cellular
Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998). Therefore, “[t]he fact that a proposed
settlement may only amount to a fraction of the potential recovery does not, in and of itself, mean
that the proposed settlement is grossly inadequate and should be disapproved.” Id. (internal
quotation marks omitted). As such, it is inappropriate and misleading for Mr. Brown to compare
the Settlement’s relief against what the Class Members might have recovered if there were no risks
and a 100% chance of a complete victory at trial. The theoretical value of this case or the number
of potential class members should not preclude approval here given the significant legal obstacles
to a recovery through litigation.
Further, Mr. Brown’s objection fails to recognize that the Settlement provides the
Settlement Class Members with a meaningful cash recovery that is both immediate and certain.
Absent the Settlement, continued litigation would entail significant delay and additional costs, and
any eventual recovery would be uncertain. “Estimates of what constitutes a fair settlement figure
are tempered by factors such as the risk of losing at trial, the expense of litigating the case, and the
expected delay in recovery (often measured in years).” Browne, 2010 WL 9499072, at *12.
Mr. Brown’s objection also fails to account for the fact that the Settlement fund is not the
only relief provided under the Settlement. As discussed above, Defendant has implemented
measures precisely targeted to remedy the challenged conduct in this litigation, and these changes
meaningfully benefit the Settlement Class Members. Yet, Mr. Brown makes no mention of the
prospective relief.
Mr. Brown nonetheless contends that the Settlement’s monetary relief is inadequate insofar
as it does not sufficiently compensate the Settlement Class Members for “energy costs”—the cost
of recharging their cellphones—and costs associated with “data packages,” that is, the cost of
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cellphone service. However, this case and the claims at issue have nothing to do with cellphone
battery life or data charges. Rather, the challenged conduct involves the interception of personal
information by third-parties that were not authorized to receive it. In other words, this case is not
about the size or amount of data transmitted, but the content of that data and who it was sent to.
Even assuming, for the sake of argument, that the claims at issue would allow for a recovery
based on battery depletion or data usage, Mr. Brown makes no effort to quantify those damages.
This is fatal to his damages theory, because most courts that have dealt with allegations regarding
battery depletion or data usage have held that such “harms” do not give rise to cognizable claims.
See, e.g., In re Carrier IQ, Inc., 78 F. Supp. 3d 1051, 1111 n.13 (N.D. Cal. 2015) (“Plaintiffs argue
that the [software] also renders their mobile devices unmerchantable because it depletes battery
power and life . . . . The Court rejects this argument. There are no allegations that would permit
the inference that the [software]’s impact on a mobile device's battery is so significant as to render
the device unfit for its ordinary purpose.”). In some cases, courts have held that such “harms” are
so de minimus that they do not even confer standing to sue. Opperman v. Path, Inc., 87 F. Supp.
3d 1018, 1056 (N.D. Cal. 2014) (evaluating “the alleged injury of ‘diminished mobile device
resources, such as storage, battery life, and bandwidth,’” and finding that “the diminished mobile
device resources injury was de minimis. . . . Because Plaintiffs have not quantified or otherwise
articulated the alleged resource usage, they fail to allege an injury that can serve as the basis of
standing.”). Accordingly, there is no basis to conclude that battery or data usage should have any
bearing on the amount of payments to the Settlement Class Members.
3. Mr. Brown’s request that Class Counsel be denied “all fees” is frivolous.
Finally, Mr. Brown also opposes an award of attorneys’ fees for Plaintiffs, asserting that
“Class Counsel should be denied all fees.” (Exh. C at 1). Like the other parts of his objection, Mr.
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Brown’s argument against an award of attorneys’ fees is founded on factual inaccuracies and
misunderstandings about the Settlement.
First, Mr. Brown incorrectly states that Plaintiffs have requested a fee award of 40% of the
total Settlement Fund. In actuality, Plaintiffs have not sought that amount; rather, Plaintiffs have
requested a fee award of 38%. As explained in Plaintiffs’ Fee Award Motion, the requested amount
is justified given the exceptional monetary and non-monetary relief provided under the Settlement
and is consistent with Illinois law and fee awards granted in other class action settlements within
the First District. On this point, Plaintiffs stand on the arguments in their Fee Award Motion.
Second, Mr. Brown baldly states that Class Counsel “failed to vigorously pursue Class
interests” by not implementing “remedies to the original complaint . . . which would have allowed
many of the original claims . . . to proceed.” This could not be further from the truth. As stated
above, when this case was pending in federal court, Judge Tharp granted Defendant’s motion to
dismiss in part and dismissed many of Plaintiffs’ claims, including all of the claims that allowed
for recovery of statutory damages. The claims that remained only allowed for recovery of actual
damages. Plaintiffs did file an amended complaint, but Defendant filed a second motion to dismiss.
Since the only claims that survived dismissal provided for only actual damages—as
opposed to statutory damages—the monetary value of Plaintiffs’ claims was inherently low.
Claims based on the mere interception of data—without more—are extremely difficult to quantify
and rarely give rise to monetary damages. See, e.g., In re DoubleClick, 154 F. Supp. 2d at 525
(“[W]e are unaware of any court that has held the value of this collected information constitutes
damage to consumers”). The significant value that the Settlement Class Members will receive from
the Settlement in this case is a product of the value created by Class Counsel’s vigorous and
assiduous prosecution of this case, not the size of the class or other external factors.
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Because none of Mr. Brown’s objections raise valid concerns that reflect on the fairness,
reasonableness, or adequacy of the Settlement, they pose no bar to final approval. His objections
should therefore be overruled.
V. PLAINTIFFS’ REQUESTED ATTORNEYS’ FEE AWARD AND INCENTIVE AWARDS SHOULD ALSO BE APPROVED
Because all eight Korshak factors favor granting final approval of the Settlement, the Court
should also approve Plaintiffs’ requested award of attorney’s fees, costs, and expenses, and the
incentive awards. Plaintiffs filed their Fee Award Motion on September 4, 2019, a week before
the claims deadline of September 11, and two weeks before the objection deadline of September
18. Further, each form of the class notice informed Settlement Class Members of the maximum
amount of attorney’s fees, costs, expenses, and incentive awards that could be sought. In addition,
the Settlement Administrator posted the Fee Award Motion on the Settlement Website. This gave
Settlement Class Members ample opportunity to consider the merits of the Motion Fees and raise
any concerns with the amounts requested.
Apart from the meritless Brown objection discussed above, no objections to the attorney’s
fees or incentive awards were filed, and Class Counsel have not received any correspondence or
complaints from Settlement Class Members expressing dissatisfaction with the fees, costs,
expenses, or incentive awards sought. (Geske Decl. ¶ 21). The lack of any real opposition is
unsurprising because, as discussed above, Class Counsel have worked assiduously to obtain a
tremendous cash benefit for the Settlement Class Members, and this litigation has already changed
Defendant’s practices in ways that benefit the Settlement Class Members and the public. As
explained in detail in Plaintiffs’ Fee Award Motion, Class Counsel’s requested fee award is
justified given the exceptional monetary and nonmonetary relief provided under the Settlement, is
consistent with Illinois law and fee awards granted in similar class action settlements, and is
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warranted given the time and resources Class Counsel committed to litigating this matter for the
benefit of the Class Members. For those reasons, Plaintiffs respectfully request that this Court
approve the fees, costs, expenses, and incentive awards requested in Plaintiffs’ Fee Award Motion.
VI. CONCLUSION
For the foregoing reasons, and for the reasons stated in Plaintiffs’ Motion for Approval of
Attorneys’ Fees, Expenses, and Incentive Awards, Plaintiffs respectfully request that this Court
enter an order: (1) granting final approval to this Settlement; (2) approving Plaintiffs’ request for
attorney’s fees, expenses, and incentive awards; (3) and granting such further relief as the Court
deems reasonable and just.
Dated: October 4, 2019 Respectfully submitted,
CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals By: /s/ Paul T. Geske One of Plaintiffs’ Attorneys
Myles McGuire Paul T. Geske Timothy P. Kingsbury MCGUIRE LAW, P.C. 55 West Wacker Drive, 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 Fax: (312) 275-7895 [email protected] [email protected] [email protected] Attorneys for Plaintiffs and Class Counsel
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CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on October 4, 2019, a copy of the foregoing
Plaintiffs’ Motion and Memorandum in Support of Final Approval of Class Action Settlement was
served on the following parties and/or counsel of record by electronic mail in accordance with Ill. Cir.
Ct. Cook Cnty. R. 2.1(c)(i) and Ill. Sup. Ct. R. 11.
Joseph C. Gratz Zachary Abrahamson DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, California 94111 Tel: 415-362-6666 [email protected] [email protected] Steven C. Moeller CARPENTER LIPPS & LELAND LLP 180 N. LaSalle St., Suite 2105 Chicago, IL 60601 Tel: (312) 777-4300 [email protected] Counsel for Defendant Kiip, Inc. Daniel Kennedy Brown 1843 S. Racine Ave, 2F Chicago, IL 60608 [email protected] Objector Under penalties as provided by law, pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in the above certificate of service are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
/s/ Paul T. Geske
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CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals, Plaintiffs,
v.
KIIP, INC., a Delaware corporation, Defendant.
) ) ) ) ) ) ) ) ) ) ) )
Case No. 2019-CH-01695 Hon. Celia G. Gamrath
DECLARATION OF BRIAN YOUNG
REGARDING NOTICE AND SETTLEMENT ADMINISTRATION
I, Brian Young, hereby declare and state as follows:
1. I am a Project Manager employed by Epiq Class Action & Claims Solutions, Inc.
(“Epiq”), the Settlement Administrator for the above-captioned case. Prior to joining Epiq in 2017,
I received my Bachelor of Business Administration from the University of Wisconsin. I am fully
familiar with the actions taken by Epiq with respect to the Settlement as described below, and am
competent to testify about them if called upon to do so.
2. Epiq was established in 1968 as a client services and data processing company.
Epiq has been administering bankruptcies since 1985 and settlements since 1993, including
settlements of class actions, mass tort litigations, Securities and Exchange Commission
enforcement actions, Federal Trade Commission disgorgement actions, insurance disputes,
bankruptcies, and other major litigation. Epiq has administered more than 1,000 settlements,
including some of the largest and most complex cases ever settled. Epiq’s class action case
administration services include coordination of all notice requirements, design of direct-mail
notices, establishment and implementation of notice fulfillment services, coordination with the
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United States Postal Service (“USPS”), notice website development and maintenance, dedicated
phone lines with recorded information and/or live operators, receipt and processing of opt-outs,
claims database management, claim adjudication, funds management, and award calculations and
distribution services. Epiq works with the settling parties, the Court, and the Class Members in a
neutral facilitation role to implement settlement administration services based on the negotiated
terms of a settlement.
Overview of Epiq’s Responsibilities
3. Subject to the supervision of Class Counsel and Defendant’s Counsel, Epiq is
responsible for complying with the Settlement Agreement’s requirements including, but not
limited to the following:
a) Providing direct and online publication notice to Settlement Class Members;
b) Establishing and maintaining a post office box to receive Settlement Class Member
correspondence including opt-outs and objections;
c) Establishing and maintaining a settlement website;
d) Receiving and evaluating all claims submitted;
Direct Notice to Settlement Class Members
4. On June 19, 2019, Defendant supplied Epiq a list of 15,309,807 email addresses
which they believed might belong to potential Settlement Class Members. Epiq removed 515,279
facially invalid email addresses and duplicate email addresses from the list.
5. On July 12, 2019, Epiq emailed the Settlement’s Short Form Notice to 14,794,528
email addresses. The Short Form Notice is attached as Exhibit 1.
6. The email notice was created using an embedded html text format. This format
provided easy to read text without graphics, tables, images and other elements that would increase
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the likelihood that the message could be blocked by Internet Service Providers (ISPs) and/or
SPAM filters. Each email notice was transmitted with a unique message identifier. If the receiving
e-mail server could not deliver the message, a “bounce code” was returned along with the unique
message identifier. For any email notice for which a bounce code was received indicating that the
message was undeliverable, at least two additional attempts were made to deliver notice by email.
7. After completion of the initial email notice effort, Epiq received back 4,556,022
undeliverable emails.
Online Publication Notice
8. The Settlement Website: On July 12, 2019, the Settlement Website at
www.KiipSettlement.com was established to provide Settlement Class Members access to
settlement-related information, forms, and court documents, including the Settlement Agreement
and its exhibits, a long form notice, and answers to frequently asked questions. The Settlement
Website also included an online claim filing module to allow Settlement Class Members to file
claims though the September 11, 2019 claim form deadline. The long form notice as it appears on
the Settlement Website is attached hereto as Exhibit 2.
9. Under the supervision of Class Counsel, Epiq has continued to update the
Settlement Website with new information and relevant court filings, including Plaintiffs’
Unopposed Motion & Memorandum in Support of Approval of Attorneys’ Fees, Expenses, and
Incentive Awards.
10. As of September 26, 2019, there have been 61,299 unique visitors to the Settlement
Website and 231,271 website page views presented.
11. Internet Banner Notices: Banner Notices measuring 300 x 250 pixels and 300 x 50
pixels were placed on mobile devices across the Google Display Network. Mobile Newsfeed ads
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were also placed on Instagram. All banners were distributed nationally.
12. Combined, approximately 8.9 million adult impressions were generated by the
Banner Notices, which ran from July 15, 2019 to August 15, 2019. Clicking on the Banner Notice
linked the reader to the case website where they could obtain detailed information about the
Settlement.
13. Internet Sponsored Search Listings: To facilitate locating the case website,
sponsored search listings were acquired on the three most highly-visited internet search engines:
Google, Yahoo! and Bing. When search-engine visitors search on common keyword combinations
such as “Kiip Class Action,” or “Kiip Software Settlement,” among others, the sponsored search
listing is generally displayed at the top of the page prior to the search results or in the upper right-
hand column of the web-browser screen. Sponsored search listings were also distributed nationally
and ran from July 15, 2019 through the claim filing deadline of September 11, 2019.
14. In total, the sponsored search listings were displayed 3,594 times, which resulted
in 472 clicks that displayed the case website.
Requests For Exclusion, Objections Received And Claims Received
15. The deadline to submit a Claim Form, either via mail or online, was September 11,
2019. As of September 27, 2019, Epiq has received 30,919 Claim Forms. The Claim Form is
attached hereto as Exhibit 3.
16. The deadline to opt-out from the Settlement was September 11, 2019 and as of
September 27, 2019 Epiq has received no request for exclusion.
17. The deadline to object to the Settlement was September 18, 2019 and as of
September 27, 2019 Epiq has received one objection from the Settlement Class.
18. On September 24, 2019, Epiq received an objection postmarked September 18,
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2019 from an individual named Daniel Kennedy Brown. After receiving the objection, I reviewed
the original class member data and class list provided by Defendant. I found that Mr. Brown’s
email address was not included in the original data, and that there were no claims filed by anyone
named “Daniel Brown” nor anyone with Mr. Brown’s street address or phone number.
I declare under penalty of perjury under the laws of the United States and the State of Oregon that
the foregoing is true and correct.
This declaration was executed on October 4, 2019 in Beaverton, Oregon.
__________________________________________Brian Young Project Manager Epiq Class Action & Claim Solutions, Inc.
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Exhibit 1
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From: Farag v KiipTo:
Subject:Date:
Legal Notice of Class Action SettlementTuesday, July 9, 2019 12:30:50
If you used a software application integrated with Kiip, Inc.'s advertising platform,
you may be entitled to a cash payment from a class action settlement.
A Court authorized this notice to inform you about your rights. This is not asolicitation from a lawyer.
A settlement has been reached in a class action lawsuit involving claims that Kiip, Inc.
("Kiip") violated the law by using its advertising platform to collect, intercept, or transmit
consumers' personal information through a software application without first getting
permission from those consumers. Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695
(Ill. Cir. Ct. Cook Cnty.). The proposed settlement is not an admission of wrongdoing by
Kiip. Kiip strenuously denies any wrongdoing and the Court has not decided who is right
or wrong. Rather, the parties have reached a compromise to end the lawsuit and avoid
the uncertainties and costs associated with further litigation.
Am I a Member of the Settlement Class?
You're a member of the settlement class if, between January 1, 2010 and June 13,
2019, you used a software application integrated with Kiip's advertising platform. If you
are a member of this class, you may file a claim to request a share of the settlement
funds.
What Can I Get from the Proposed Settlement?
The proposed settlement provides for a fund totaling $1,000,000, which will be used to
make payments to the class members with valid claims after first making deductions for
notice and administration costs, incentive awards to the class representatives, and
attorneys' fees for class counsel. If the Court finally approves the settlement, each
Settlement Class Member who timely submits a valid claim form will be eligible to receive
an equal payment from the Settlement Fund. The exact amount of each Settlement
Class Member's payment is unknown at this time; the final amount of each payment will
depend on the number of claims submitted and the amount available in the settlement
fund after the deductions.
What Are My Options?
To make a claim for a cash payment, you must submit a completed claim form online at
www.KiipSettlement.com by September 11, 2019. Alternatively, you can exclude
yourself from the settlement by September 11, 2019 if you do not want to be bound by it,
but you will not be able to receive a payment from the fund. If you file a claim or
otherwise choose not to exclude yourself, you will release any claims you may have
against Kiip, as more fully described in the Settlement Agreement, available at the
settlement website. You may also object to the settlement by September 18, 2019. The
detailed notice available on the website explains how to file a claim, exclude yourself, or object.
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When Will the Settlement be Approved?
The Court will hold a Hearing on October 18, 2019 to consider whether to approve the
settlement and a request by class counsel for attorneys' fees of up to 40% of the
Settlement Fund, plus their costs for their work in the case. The Court will also consider
incentive award payments in an amount up to $5,000 to the class representatives. You
can appear at the hearing, but you do not have to. You can also hire your own attorney,
at your own expense, to appear or speak for you at the hearing. For more information,
visit the website below.
For more information and for a claim form, visit www.KiipSettlement.com.
Please note: This e-mail message was sent from a notification-only address that cannotaccept incoming e-mail. Please do not reply to this message.
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Exhibit 2
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For more information and for a Claim Form, visit www.KiipSettlement.com
LEGAL NOTICE BY ORDER OF COURTFarag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.)
If you used a software application integrated with Kiip, Inc.’s advertising platform, you may be entitled to a cash payment from
a class action settlement.The Circuit Court of Cook County, Illinois authorized this Notice to inform you about your rights. This is
not a solicitation from a lawyer.
This Notice provides important information about a proposed Settlement in a class action lawsuit against Kiip, Inc. (“Kiip”). The lawsuit involves claims that certain software integrated with Kiip’s advertising platform resulted in the unauthorized collection, interception, or transmission of consumers’ personal information. Please read this Notice carefully. It summarizes your rights and options under the Settlement. You can access and read the full Settlement Agreement at www.KiipSettlement.com.
If, since January 1, 2010, you used a software application integrated with Kiip’s advertising platform, and if you fit the description of the Settlement Class (as defined below), then you have the following options under the Settlement:
• You can file a claim to receive a payment from the Settlement Fund. Under the Settlement, you may be eligible for a cash payment.
• You can exclude yourself from the Settlement. If you pursue this option, you will not receive any of the Settlement benefits described above, but you retain the right to bring your own lawsuit. Your request to exclude yourself must be submitted no later than September 11, 2019. You must follow the process described in part 8 below. If the Settlement is approved and you do not exclude yourself, you will be bound by the Settlement and will release certain claims described below.
• You can object to the Settlement. The deadline for objecting to the Settlement is September 18, 2019. All objections must be mailed to the Settlement Administrator at P.O. Box 2876, Portland, OR 97208-2876. See part 7 below for details.
NOTE: PLEASE DO NOT CALL OR WRITE THE COURT, THE COURT CLERK’S OFFICE, KIIP, OR KIIP’S COUNSEL. THEY WILL NOT BE ABLE TO ASSIST YOU. If you have questions, or you’d like more information, visit www.KiipSettlement.com or write to:
Farag v. Kiip Settlement AdministratorP.O. Box 2876Portland, OR97208-2876
BASIC INFORMATIONIn a putative class action lawsuit known as Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.), the Plaintiffs allege that Kiip violated the law by using its advertising platform to collect, intercept, or transmit consumers’ personal information through a software application without first getting permission from those consumers. Kiip denies that it did anything wrong, and the Court has not decided who is right. Rather, the parties have reached a compromise to end the lawsuit and avoid the uncertainties and costs associated with further litigation.
A settlement of the lawsuit (“Settlement”) has been negotiated which, if approved by the Court, provides the Settlement Class Members with benefits from the Settlement, including the ability to receive a cash payment.
By entering into the Settlement, Kiip has not admitted the truth or validity of any of the claims against it. Your rights and options under the Settlement—and the deadlines to exercise them—are explained below.
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For more information and for a Claim Form, visit www.KiipSettlement.com
YOUR LEGAL RIGHTS AND OPTIONS
SUBMIT A CLAIM FORMThis is the only way to receive a payment from the
Settlement. Settlement Class Members who submit a valid Claim Form by the deadline of September 11, 2019 will
be eligible to receive a payment as described below.
DO NOTHINGIf you do nothing, you will not receive any payment from the Settlement, but you will still give up your
rights to sue Kiip as described below.
EXCLUDE YOURSELF FROM THE SETTLEMENT
If you exclude yourself, you will not receive anything from the Settlement, but you can still sue Kiip on
your own and at your own expense. The deadline for excluding yourself is September 11, 2019.
OBJECTYou may file an objection if you wish to object to the Settlement. The deadline to object to the Settlement is
September 18, 2019.
GO TO A HEARINGYou may ask to speak in Court about the fairness of the Settlement. The Court has set a hearing for October 18, 2019 at 10:00 AM, subject to change.
These rights and options—and the deadlines to exercise them—are explained in this Notice. The Court in charge of this case still has to decide whether to approve the Settlement. If approved, benefits will be distributed to those who qualify. Please be patient.
WHAT THIS NOTICE CONTAINS
1. Who is part of the Settlement? ................................................................................32. What is this litigation about? ..................................................................................33. Who represents me? ................................................................................................34. What benefits can I receive from the Settlement? ..................................................35. Do I have to pay the lawyers representing me? ......................................................46. What am I agreeing to by remaining in the Settlement Class? ...............................47. What if I don’t agree with the Settlement? .............................................................48. How do I exclude myself from the Settlement Class? .............................................59. What is the difference between objecting and asking to be excluded? ...................510. What if I do nothing at all? .....................................................................................511. When will the Court finally rule on the Settlement? .......................................... 5-612. Does this Notice contain the entire Settlement Agreement? .................................613. Where can I get more information? .......................................................................6
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For more information and for a Claim Form, visit www.KiipSettlement.com
1. Who is part of the Settlement?
If you received notice of the Settlement by email, then you may be a member of the Settlement Class. However, even if you did not receive a notice, you may still be a member of the Settlement Class if you fall within the Settlement Class definition. The “Settlement Class” is defined as:
All individuals who used a software app integrated with the Kiip advertising platformbetween January 1, 2010 and June 13, 2019.
Excluded from the Settlement Class are Kiip; any entity that is a subsidiary of or is controlled by Kiip; anyone employed by Class Counsel; any judge to whom the case is assigned, his or her spouse, and members of the judge’s staff.
The Circuit Court of Cook County, Illinois (Honorable Celia G. Gamrath) has conditionally certified, for settlement purposes only, the Settlement Class.
If you are not sure whether you are in the Settlement Class, or have any other questions about the Settlement, visit www.KiipSettlement.com or write to:
Farag v. Kiip Settlement AdministratorP.O. Box 2876Portland, OR97208-2876
2. What is this litigation about?
Defendant Kiip is a mobile marketing company that displays advertisements on mobile devices through mobile applications, or “apps,” installed on individuals’ smartphones, including iPhones and Android devices. Plaintiffs brought a class action lawsuit against Kiip alleging that Kiip violated the law by secretly obtaining mobile users’ personal information without their permission and at times when they weren’t using their mobile devices. Plaintiffs have alleged that Kiip’s advertising platform, together with a certain mobile app, illegally collected, intercepted, and/or transmitted consumers’ personal data without their knowledge or consent. This is just a summary of the allegations. The complaint in the lawsuit is posted at www.KiipSettlement.com and contains all of the allegations.
Kiip denies Plaintiffs’ allegations and denies that it has violated the law. However, in order to avoid the expense, inconvenience, and distraction of continued litigation, Kiip has agreed to the settlement described in this Notice.
3. Who represents me?
In a class action, one or more people called “class representatives” sue on behalf of other people who have similar claims. In this case, Christine Farag and Jessica Vasil sued Kiip and sought to represent other consumers who similarly had claims against Kiip. The Court has appointed them for settlement purposes to be Settlement Class Representatives for all Settlement Class Members in this case.
The Court also appointed the law firm McGuire Law, P.C. as Class Counsel to represent the Settlement Class Members. If you want to be represented by your own lawyer, you may hire one at your own expense.
4. What benefits can I receive from the Settlement?
The Settlement provides for the creation of a Settlement Fund totaling $1,000,000, which will be used to make payments to the class members after first making deductions for notice and administration costs, incentive awards to the class representatives, and attorneys’ fees for class counsel. If the Court finally approves the settlement, each Settlement Class Member who timely submits a valid claim form will be eligible to receive an equal payment from the Settlement Fund. The exact amount of each Settlement Class Member’s payment is unknown at this time; the final amount of each payment will depend on the number of claims submitted and the amount available in the settlement fund after the deductions.
Kiip has also agreed to implement business practices to ensure that mobile users’ personal information isn’t collected or transmitted without their permission.
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For more information and for a Claim Form, visit www.KiipSettlement.com
5. Do I have to pay the lawyers representing me?
No. Class Counsel will ask the Court for an award of attorneys’ fees and expenses for investigating the facts, litigating the case, and negotiating the settlement. This award is subject to court approval and can be up to 40% of the Settlement Fund, or $400,000. To date, Class Counsel have not received any payment for their services in litigating the case on behalf of the Class Representatives and the Settlement Class, nor have Class Counsel been reimbursed for their costs and expenses directly relating to their representation of the Settlement Class. Class Counsel’s contact information is as follows:
Myles McGuirePaul T. Geske
Timothy P. KingsburyMCGUIRE LAW, P.C.
55 West Wacker Drive, Suite 900Chicago, Illinois [email protected]
[email protected]@mcgpc.com
Tel: (312) 893-7002
Class Counsel will also request that an Incentive Award of $5,000 be awarded to each of the Class Representatives in recognition of their service to the Settlement Class. The amount of any fee or service award will be determined by the Court.
6. What am I agreeing to by remaining in the Settlement Class?
Unless you exclude yourself, you will be part of the Settlement Class, and you will be bound by the release of claims in the Settlement. This means that if the Settlement is approved, you cannot sue, continue to sue, or be part of any lawsuit against Kiip arising out of, related to, or connected with interception, collection, or receipt of personal data that occurred in connection with software apps integrated with Kiip’s advertising platform during the Class Period. The released claims include all claims that were or could have been asserted in the Litigation, regardless of whether those claims are known or unknown, filed or unfiled, asserted or as yet un-asserted, existing or contingent.
7. What if I don’t agree with the Settlement?
If you are a member of the Settlement Class, you may object to the Settlement or any part of the Settlement that you think the Court should reject; if so, the Court will consider your views. To object, you must send your objection in writing to the Settlement Administrator, Class Counsel, and Kiip’s Counsel providing:
(a) The case name and case number of this Litigation (Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.));
(b) Your full name, current address, email address, and phone number;(c) The name of the software applications you used that you believe integrated Kiip’s advertising platform;(d) The reasons why you object to the Settlement along with any supporting materials;(e) Information about other objections you or your lawyer(s) have made in other class action cases in the last
four (4) years; and(f) Your signature.
Your objection must be postmarked no later than September 18, 2019. Objections must be mailed to:
Farag v. Kiip Settlement AdministratorP.O. Box 2876Portland, OR97208-2876
Plaintiff’s CounselMyles McGuire
McGuire Law, P.C.55 W. Wacker Drive, Suite 900
Chicago, IL 60601
Kiip’s CounselJoseph C. Gratz
Durie Tangri LLP217 Leidesdorff Street
San Francisco, CA 94111
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For more information and for a Claim Form, visit www.KiipSettlement.com
8. How do I exclude myself from the Settlement Class?
If you want to exclude yourself from the Settlement Class, sometimes referred to as “opting-out,” you will not be eligible to receive any benefits as a result of this Settlement. However, you will keep the right to sue or continue to sue Kiip on your own and at your own expense concerning any of the claims that will be released as part of this Settlement.
To exclude yourself from the Settlement Class, you must send a letter to the Settlement Administrator providing:
(a) The case name and case number of this Litigation (Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.));
(b) Your full name, current address, email address, and phone number;(c) The name of the software applications you used that you believe integrated Kiip’s advertising platform;(d) A statement that you wish to exclude yourself from the Settlement Class; and(e) Your signature.
If you wish to exclude yourself, you must submit the above information to the following address so that it is postmarked no later than September 11, 2019.
Farag v. Kiip Settlement AdministratorP.O. Box 2876, Portland, OR 97208-2876
REQUESTS FOR EXCLUSION FROM THE CLASS THAT ARE NOT POSTMARKED ON OR BEFORE SEPTEMBER 11, 2019 WILL NOT BE HONORED.
You cannot exclude yourself from the Settlement Class by telephone, email, or on the Settlement Website. You cannot exclude yourself by mailing a request to any other location or after the deadline above. Your exclusion notice must be signed by you.
9. What is the difference between objecting and asking to be excluded?
Objecting is simply telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object to the Settlement because it no longer affects you.
10. What if I do nothing at all?
You will remain a member of the Settlement Class and release your claims against Kiip. However, you must file a Claim Form to receive a benefit in this Settlement. See Part 4 above.
11. When will the Court finally rule on the Settlement?
The Court will hold a Final Approval Hearing to decide whether to approve the Settlement and any requests for fees, expenses, and incentive awards. The Final Approval Hearing is currently set for October 18, 2019 at 10:00 AM in the Chancery Division of the Circuit Court of Cook County, Illinois, Courtroom 2508 of the Richard J. Daley Center, 50 West Washington Street, Chicago, Illinois 60602. The hearing may be moved to a different date or time without additional notice, so you should check www.KiipSettlement.com and the Court’s docket for updates.
At the Final Approval Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider the request by Class Counsel for attorneys’ fees and expenses and for the Class Representatives’ incentive awards. If there are any objections, the Court will consider them at the Final Approval Hearing. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long that decision may take.
You may attend the hearing, at your own expense, but you do not have to do so.
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Y2506 v.04- 6 -
For more information and for a Claim Form, visit www.KiipSettlement.com
You may ask the Court for permission to speak at the hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your notice of intention to appear must include the following:
(a) The case name and case number of this Litigation (Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.));
(b) Your full name, current address, email address, and phone number;(c) The name of the software applications you used that you believe integrated Kiip’s advertising platform;(d) A statement that this is your “Notice of Intention to Appear” at the Final Approval Hearing in this case;(e) Copies of any papers, exhibits, or other evidence or information that you will present to the Court;(f) The reasons you want to be heard; and(g) Your signature.
You must send copies of your notice of intent to appear, postmarked by September 18, 2019, to:
Clerk of the Circuit Court of Cook CountyChancery Division
50 W. Washington Street, #802Chicago, IL 60602
Plaintiff’s CounselMyles McGuire
McGuire Law, P.C.55 W. Wacker Drive, Suite 900
Chicago, IL 60601
Kiip’s CounselJoseph C. Gratz
Durie Tangri LLP217 Leidesdorff Street
San Francisco, CA 94111
You cannot speak at the hearing if you exclude yourself from the Settlement.
12. Does this Notice contain the entire Settlement Agreement?
No. This is only a summary of the Settlement. If the Settlement is approved and you do not exclude yourself from the Settlement Class, you will be bound by the release contained in the Settlement Agreement, and not just by the terms of this Notice. Capitalized terms in this Notice are defined in the Settlement Agreement. You can view the full Settlement Agreement online at www.KiipSettlement.com, or you can write to the address below for more information.
Farag v. Kiip Settlement AdministratorP.O. Box 2876, Portland, OR 97208-2876
13. Where can I get more information?
For more information, visit www.KiipSettlement.com or write to:
Farag v. Kiip Settlement AdministratorP.O. Box 2876Portland, OR97208-2876
NOTE: PLEASE DO NOT CALL OR WRITE THE COURT, THE COURT CLERK’S OFFICE, KIIP, OR KIIP’S COUNSEL. THEY WILL NOT BE ABLE TO ASSIST YOU.
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Exhibit 3
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01-CA4584Y2511 v.02
KIIP CLASS ACTION SETTLEMENT CLAIM FORMTO RECEIVE A PAYMENT FROM THE SETTLEMENT FUND, YOU MUST SUBMIT YOUR CLAIM BY SEPTEMBER 11, 2019.
IMPORTANT NOTE: You must submit your claim by mail or online via the settlement website, www.KiipSettlement.com, by September 11, 2019 in order to be eligible to receive a payment. Please read the instructions below in Step 1; provide the requested information in Step 2; sign the certification in Step 3; and mail the completed claim to: Farag v. Kiip Settlement Administrator, P.O. Box 2876, Portland, OR 97208-2876 or visit the settlement website, www.KiipSettlement.com, to complete the claim form there. You are only allowed to submit one claim.
STEP 1 - DIRECTIONS
In the spaces below, print your (i) name, (ii) mailing address, and (iii) your email address and the smartphone application through which you believe Kiip obtained your information between January 1, 2010 – June 13, 2019.
STEP 2 - CLAIMANT INFORMATION
Name:First Name MI Last Name
Address:
City State ZIP Code
Telephone Number: – –
Email Address:
Smartphone Application:
The application you write on this line must be the one that you allege sent your information to Kiip’s advertising platform without your permission.
Device Model Used to Download Application:
iOS (iPhone or iPad) Android Other
The box you check must correspond to the device on which you downloaded the application that you allege sent your information to Kiip’s advertising platform without your permission.
STEP 3 - CERTIFICATION
I certify that the information above is true to the best of my knowledge. I understand that the Settlement Administrator has the right to dispute any claims that are based on inaccurate responses.
Signature: Date: – –MM DD YYYY
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CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals, Plaintiffs,
v.
KIIP, INC., a Delaware corporation, Defendant.
) ) ) ) ) ) ) ) ) ) ) )
Case No. 2019-CH-01695 Hon. Celia G. Gamrath
DECLARATION OF PAUL T. GESKE IN SUPPORT OF PLAINTIFFS’
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
I, Paul T. Geske, hereby aver, pursuant to 735 ILCS 5/1-109, that I am fully competent to
make this Declaration, that I have personal knowledge of all matters set forth herein unless
otherwise indicated, and that I would testify to all such matters if called as a witness.
1. I am an adult over the age of 18 and a resident of the state of Illinois.
2. I am fully competent to make this Declaration, and I do so in support of Plaintiffs’
Motion and Memorandum in Support of Final Approval of Class Action Settlement being
submitted to the Court herewith.
Background and Qualifications
3. I am an attorney licensed to practice law in the state of Illinois. I received my B.A.
cum laude from the University of Illinois at Chicago in 2011 and my J.D. magna cum laude from
the Chicago-Kent College of Law in 2015.
4. I am an associate with the law firm McGuire Law, P.C., and am one of the attorneys
representing Plaintiffs and Settlement Class in this matter. I, along with McGuire Law attorneys
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Myles McGuire and Timothy Kingsbury, have been appointed by the Court to serve as Class
Counsel and to represent the Settlement Class Members.
5. In my role as an attorney at McGuire Law, I have served as class counsel on behalf
of statewide and nationwide classes in a variety of matters, including cases involving emerging
technology, privacy issues, consumer fraud, product liability, and product mislabeling claims. In
my practice, I have developed significant experience prosecuting class actions and consumer
litigation, and I frequently handle cases involving matters of first impression and issues of national
significance. For example, I was a member of McGuire Law’s litigation team that obtained a 6-3
victory before the U.S. Supreme Court in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016),
resulting in a precedent-setting decision regarding the doctrine of mootness in class actions.
6. More recently, I successfully briefed and argued an appeal before the Sixth Circuit
Court of Appeals in Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019) reh’g en banc denied, 924
F.3d 309, one of the lead cases in the Flint Water Crisis litigation. Guertin was the first Flint Water
Crisis case to successfully state a claim for violation of the substantive due process right to bodily
integrity. On appeal, the Sixth Circuit sustained the plaintiffs’ due process claims, held that the
City of Flint was not entitled to sovereign immunity under the 11th Amendment, and rejected an
attempt by a number of Michigan and Flint government officials to assert a qualified immunity
defense. Id. I also briefed and successfully opposed two petitions for rehearing en banc filed by
the Guertin defendants, and am now defending the Sixth Circuit’s ruling before the U.S. Supreme
Court.
7. I have served as lead counsel or class counsel in numerous successful class actions
and putative class action lawsuits across the country, including many in the Circuit Court of Cook
County and many that are currently pending in the Federal District Court for the Northern District
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of Illinois, such as Vergara v. Uber Techs., Inc., 15-cv-6942 (N.D. Ill.), where I was appointed to
represent three nationwide classes asserting TCPA claims against Uber, resulting in a $20 million
nationwide settlement. I have also recently obtained favorable class settlements on behalf of
consumers in Sheeley v. Wilson Sporting Goods, Co., 18-CH-04770 (Ill. Cir. Ct. Cook Cnty.),
Flahive v. Inventurus Knowledge Solutions, Inc., 17-CH-07570 (Ill. Cir. Ct. Cook Cnty.), Seal v.
RCN Telecom Servs., LLC, 16-CH-07073 (Ill. Cir. Ct. Cook Cnty.), and Valladares v. Blackboard,
Inc., 16 CH 06482 (Ill. Cir. Ct. Cook Cnty.), among many others. I am currently serving on the
Plaintiffs Steering Committee, Law & Briefing Committee, and Consumer Class Committee of the
plaintiffs’ counsel leadership group appointed in In re: Valsartan Products Liability Litigation,
MDL No. 19-2875 (D. N.J.), a large pharmaceutical drug MDL.
McGuire Law, P.C.
8. McGuire Law, P.C. is a litigation firm based in Chicago, Illinois that focuses on
class action litigation, representing clients in state and national class actions in both state and
federal trial and appellate courts throughout the country.
9. McGuire Law attorneys regularly handle complex litigation on behalf of consumers
and have extensive experience in class action lawsuits similar in size and complexity to the instant
case, including many cases involving consumer privacy and consumer protection. I, along with
other McGuire Law attorneys, have successfully prosecuted claims on behalf of our clients in both
state and federal trial and appellate courts throughout the country, including claims involving
allegations of consumer fraud; unfair competition; invasion of privacy; data breach; false
advertising; breach of contract; and various statutory violations, including violations of the federal
Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. and Illinois’ Biometric Information
Privacy Act, 740 ILCS 14/1 et seq.
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10. McGuire Law attorneys have been appointed as class counsel in numerous complex
consumer class actions, including similar class actions involving data privacy rights, in state and
federal courts across the country, including many cases in the Circuit Court of Cook County. See,
e.g., Gray et al. v. Mobile Messenger Americas, Inc. et al. (S.D. Fla. 2008); Gresham et al. v.
Keppler & Associates, LLC et al. (Sup. Ct. Los Angeles County, Cal. 2008); Sims et al. v. Cellco
Partnership et al. (N.D. Cal. 2009); Van Dyke et al. v. Media Breakaway, LLC (S.D. Fla. 2009);
Paluzzi, et al. v. mBlox, Inc., et al. (Cir. Ct. Cook County, Ill. 2009); Ryan et al. v. Snackable
Media, LLC (Cir. Ct. Cook County, Ill. 2011); Parone et al. v. m-Qube, Inc. et al. (Cir. Ct. Cook
County, Ill. 2010); Valdez et al. v. Sprint Nextel Corporation et al. (N.D. Cal. 2010); Lozano et al.
v. Twentieth Century Fox (N.D. Ill. 2011); Kramer et al. v. Autobytel (N.D. Cal. 2011); Walker et
al. v. OpenMarket, Inc. et al. (Cir. Ct. Cook County, Ill. 2011); Schulken at al. v. Washington
Mutual Bank (N.D. Cal. 2011); In re Citibank HELOC Reduction Litigation (N.D. Cal 2012);
Murray et al. v. Bill Me Later, Inc. (N.D. Ill. 2014); Valladares et al. v. Blackboard, Inc. et al.
(Cir. Ct. Cook County, Ill. 2016); Hooker et al v. Sirius XM Radio, Inc. (E.D. Va. 2017); Flahive
et al. v. Inventurus Knowledge Solutions, Inc. (Cir. Ct. Cook County, Ill. 2017); Serrano et al. v.
A&M (2015) LLC (N.D. Ill. 2017); Seal et al. v. RCN Telecom Servs., LLC (Cir. Ct. Cook County,
Ill. 2017); Vergara et. al. v. Uber Technologies, Inc. (N.D. Ill. 2018); Zepeda v. International
Hotels Group, Inc. et. al. (Cir. Ct. Cook County, Ill 2018); Kovach et al v. Compass Bank (Cir. Ct.
Jefferson County, AL 2018); Svagdis v. Alro Steel Corp. (Cir. Ct. Cook County, Ill. 2018);
Zhirovetskiy v. Zayo Group, LLC, (Cir. Ct. Cook County, Ill. 2019).
11. The attorneys of McGuire Law have extensive knowledge of the law in the fields
of technology and privacy. Recognized as pioneers in the field of consumer class actions, McGuire
Law attorneys have also served as counsel of record for groundbreaking rulings involving
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technology at the state and federal district and appellate court levels, including at the U.S. Supreme
Court. See, e.g., Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016); Lee v. Stonebridge Life
Ins. Co. (N.D. Cal. 2013); In re Jiffy Lube Spam Text Litig. (S.D. Cal. 2013); Pimental v. Google,
Inc. (N.D. Cal. 2013); Robles v. Lucky Brand Dungarees, Inc. (N.D. Cal. 2013); Ellison v. Steven
Madden, Ltd. (C.D. Cal. 2013); Rojas v. Career Educ. Co. (N.D. Ill. 2012); Lozano v. Twentieth
Century Fox (N.D. Ill. 2011); Kramer v. Autobytel (N.D. Cal. 2011); Espinal v. Burger King
Corporation (S.D. Fla. 2010); Satterfield v. Simon & Schuster (N.D. Cal. 2010); Weinstein v. The
Timberland Co. (N.D. Ill. 2008); Shen v. Distributive Networks, Inc. (N.D. Ill. 2007).
12. Myles McGuire is the Managing Partner of McGuire Law. Mr. McGuire has been
recognized as a leader in class actions and technology law by his peers and courts around the
country and has been appointed lead counsel in numerous state and federal class actions. Mr.
McGuire has successfully prosecuted claims on behalf of his clients in numerous trial and appellate
courts at both the state and federal levels throughout the country involving consumer fraud, unfair
competition, invasion of privacy, false advertising and breach of contract, among others. Mr.
McGuire is a graduate of Marquette University and Marquette University Law School and is
admitted to practice in the Illinois Supreme Court, Wisconsin Supreme Court, and the U.S.
Supreme Court, where he was co-lead counsel in the Campbell-Ewald Co. v. Gomez matter. Prior
to founding McGuire Law, P.C. in 2013, Mr. McGuire was a managing member of Edelson
McGuire, LLC.
The Parties’ Negotiations
13. In this litigation, after engaging in lengthy motion practice over the course of the
proceedings, the Parties agreed to explore the possibility of settlement. Facing significant
discovery expenses, as well as the uncertainty of any potential class certification decision, the
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Parties began conducting informal negotiations to determine if they could reach a settlement. After
several contentious settlement discussions, no settlement agreement was reached, but there was an
agreement to continue to explore the possibility of resolving the litigation.
14. The Parties then agreed to attend a mediation in an attempt to reach an early,
practical resolution with the Hon. Morton Denlow (Ret.) of JAMS, a former United States
Magistrate Judge for the United States District Court for the Northern District of Illinois, who
possesses significant expertise in class settlements. Following a day-long settlement conference
conducted on January 24, 2019, which was adversarial and at times contentious, the Parties were
able to agree upon the terms of a settlement.
15. Even after the mediation, the Parties engaged in several weeks of further
negotiations regarding the specifics of the Settlement Agreement and attendant documents,
including the relief provided to the Settlement Class Members, the notice plan, and the scope of
the release, before executing the Settlement Agreement. The Parties did not agree upon an amount
of attorneys’ fees or incentive awards until after first agreeing upon the relief to be provided to the
Settlement Class.
16. Prior to and continuing after the mediation, the Parties investigated Defendant’s
data-collection practices and the scope and identity of the potential Settlement Class. This
investigation led to the filing of Plaintiffs’ lawsuit and ultimately to the Settlement Agreement
submitted herewith.
Implementation of the Settlement
17. On June 13, 2019, this Court granted preliminary approval of the Settlement
Agreement. In accordance with the Court’s Preliminary Approval Order, the Parties and the
Settlement Administrator Epiq Systems Class Action and Claims Solutions (“Epiq”), began the
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process of effectuating the Notice Plan approved by the Court, the details of which I am aware
based on direct communications between myself and Epiq’s Project Manager, Brian Young.
18. Pursuant to the Settlement Agreement and the Court’s Preliminary Approval Order,
Epiq began implementing the Settlement’s notice plan on July 12, 2019. That day, Epiq emailed
the short form notice to 14,794,528 email addresses, disseminated the publication notice, and
established the Settlement Website at www.KiipSettlement.com, which provides access to
settlement-related information and forms, including the Settlement Agreement and its exhibits, a
long form notice, and answers to frequently asked questions. The Settlement Website also included
an online claim filing module to allow Settlement Class Members to file claims online.
19. The Settlement Class has overwhelmingly approved and supported the Settlement
Agreement reached in this matter. Based on communications with, and written reports provided
by, the Settlement Administrator, 30,319 claims had been submitted by individuals with a U.S.
address as of the claims filing deadline.
20. The exclusion deadline was September 11, 2019, and the deadline to object to the
Settlement was September 18, 2019. The Settlement Administrator has informed me that, as of the
September 18, 2019 objection deadline, no Settlement Class Members have elected to exclude
themselves from the Settlement. I have not received any exclusion or opt-out requests from any
Settlement Class Members.
21. On September 23, 2019, my firm received a copy of an objection by Mr. Daniel
Kennedy Brown. I subsequently sent a copy of Mr. Brown’s objection to the Settlement
Administrator. I have not received any other objections or complaints about the Settlement, and
the Settlement Administrator has informed me that it, likewise, has not received any other
objections. Class Counsel has reviewed Mr. Brown’s objection and determined that it is premised
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on inaccurate assumptions about Defendant’s technology and unfounded conjecture regarding
Plaintiffs’ claims, and therefore poses no barriers to final approval of the Settlement.
Class Counsel’s Opinion on the Fairness and Adequacy of the Settlement
22. I and the other attorneys appointed as Class Counsel have diligently investigated
the facts and claims in this matter and have dedicated substantial resources to this matter. McGuire
Law has expended significant resources on diligently prosecuting this action, including, among
other things, investigating the extent of Defendant’s data collection practices; evaluating the facts
giving rise to the claims asserted by the Plaintiffs, including potential defenses thereto;
participating in the negotiations that led to the Parties reaching a settlement agreement in principle;
and reviewing and editing the final executed settlement agreement and related documents,
including participating in communications and negotiations involving, among others things, the
claims administration process, the scope of release, and the compensation provided to putative
Settlement Class Members. I believe the Settlement reached in this matter is fair and in the best
interests of the class.
23. I, along with the other attorneys of my firm, have concluded that the Settlement
Agreement reached in this matter is fair, reasonable, and adequate in light of the attendant risks of
protracted litigation, including the resources Defendant is committed to devote to ongoing
litigation and its defenses to Plaintiffs’ claims and class certification, and warrants final approval.
While I believe that the merit of Plaintiffs’ claims could and would be proven at trial, I recognize
the substantial risk and inherent uncertainty that continued litigation imposes on Plaintiffs and the
Settlement Class Members. Based on the investigation and informal discovery that has occurred
in this litigation, together with the still-uncertain state of the law relating to Plaintiffs’ claims, and
my experience prosecuting similar litigation in courts nationwide, I believe that the Settlement
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Agreement reached in this matter is in the best interests of Plaintiffs and the other Settlement Class
Members involved.
24. Class Counsel’s opinion that the Settlement Agreement should be finally approved
is based not only on the favorable terms of the Settlement, but also on the overwhelming support
for the Settlement Agreement expressed by the Settlement Class Members themselves. No
Settlement Class Member has requested to be excluded from the Settlement, and Class Counsel
has received only one objection. The lack of exclusion requests and any real opposition to the
Settlement demonstrates that final approval of the Settlement Agreement is appropriate.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October 4, 2010 in Chicago, Illinois.
/s/ Paul T. Geske Paul T. Geske, Esq.
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Exhibit A
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SETTLEMENT AGREEMENT
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1
TABLE OF CONTENTS Page
I. BACKGROUND .......................................................................................... 1 II. DEFINITIONS ............................................................................................................3 III. SETTLEMENT CLASS CERTIFICATION ......................................................... 6 IV. SETTLEMENT OF LITIGATION AND ALL CLAIMS AGAINST RELEASEES ............................................................................. 6 V. SETTLEMENT FUND ................................................................................ 6 VI. PROSPECTIVE RELIEF ............................................................................. 9 VII. RELEASE .................................................................................................... 9 VIII. CERTIFICATION OF THE SETTLEMENT CLASS AND RELATED MOTIONS ................................................................................................. 10 IX. NOTICE TO PROPOSED CLASS MEMBERS......................................... 11 X. OPT-OUTS ................................................................................................ 11 XI. OBJECTIONS............................................................................................ 12 XII. FINAL APPROVAL HEARING ............................................................... 13 XIII. FINAL APPROVAL ORDER .................................................................... 13 XIV. BAR ORDER ............................................................................................. 14 XV. TERMINATION OF THE AGREEMENT ................................................ 14 XVI. ATTORNEYS’ FEES AND INCENTIVE AWARDS ............................... 15 XVII. REPRESENTATIONS ............................................................................... 16 XVIII. MISCELLANEOUS ................................................................................. 17
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2
SETTLEMENT AGREEMENT
This settlement agreement (“Agreement or “Settlement Agreement”) is entered into by and between Kiip, Inc. (“Kiip”) and Christine Farag and Jessica Vasil (“Plaintiffs”), both individually and on behalf of the Settlement Class. I. BACKGROUND
WHEREAS, on October 21, 2016, Plaintiffs Christine Farag and Jessica Vasil filed a putative class action lawsuit against Kiip in the United States District Court for the Northern District of Illinois (the “Federal Action”).
WHEREAS, in the Federal Action, Plaintiffs alleged that Kiip’s advertising platform and
software were unlawfully causing the collection, transmission, and/or interception of their personal information without their permission in violation of the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq., among other things.
WHEREAS, over the course of the proceedings in the Federal Action, the Parties engaged
in lengthy motion practice, including a Rule 12(b)(6) motion to dismiss filed by Kiip. The court presiding over the Federal Action granted Kiip’s motion to dismiss in part, dismissing most of Plaintiffs’ claims. Plaintiffs filed an amended complaint, reasserting claims. The Parties also exchanged written discovery requests, and Plaintiff propounded third-party discovery.
WHEREAS, after the ruling on Kiip’s motion to dismiss, and while the Parties were
beginning to conduct discovery, the Parties decided to explore the possibility of settlement. The Parties engaged in arms’ length settlement negotiations, including a full-day mediation before retired United States Magistrate Judge Morton Denlow of JAMS Chicago, an experienced mediator.
WHEREAS, following the mediation with Judge Denlow (ret.), the Parties reached an
agreement in principle to resolve Plaintiffs’ claims on a class basis. WHEREAS, following such negotiations, the Parties now seek to enter into this Settlement
Agreement. Plaintiffs and Class Counsel have conducted an investigation into the facts and the law underlying their claims and have concluded that a settlement according to the terms set forth below is fair, reasonable, and adequate, and beneficial to and in the best interests of Plaintiffs and the Settlement Class in light of (1) the existence of complex and contested issues of law and fact, (2) the risks inherent in litigation, (3) the likelihood that future proceedings will be unduly protracted and expensive if the proceeding is not settled by voluntary agreement, (4) the magnitude of the benefits derived from the contemplated settlement in light of both the maximum potential and likely range of recovery to be obtained through further litigation and the expense thereof, as well as the potential of no recovery whatsoever, and (5) the Plaintiffs’ determination that the settlement is fair, reasonable, adequate, and will substantially benefit the Settlement Class Members.
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WHEREAS, due to Plaintiffs’ concerns regarding jurisdictional issues in the Federal Action, Plaintiffs voluntarily dismissed the Federal Action and refiled their lawsuit in Illinois state court in order to effectuate the Settlement.
WHEREAS, on February 8, 2019, in order to effectuate the Parties’ settlement, Plaintiffs
refiled their lawsuit against Kiip in the Chancery Division of the Circuit Court of Cook County, Illinois, in an action styled Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.) (the “State Court Action”).
WHEREAS, Plaintiffs did not file a motion for class certification in the Federal Action,
and by agreement of the Parties, have yet to do so in the State Court Action. WHEREAS, the Parties shall use their best efforts to effectuate this Agreement, including,
but not limited to, cooperating in promptly seeking court approval of this Agreement, certification of the Settlement Class, and release of the Released Claims.
WHEREAS, in consideration of the covenants, agreements, and releases set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed by and among the undersigned that the Litigation be settled and compromised, and that the Releasors release the Releasees of the Released Claims, without costs as to Releasees, Plaintiffs, Class Counsel, or the Settlement Class, except as explicitly provided for in this Agreement, subject to the approval of the Court, on the following terms and conditions.
II. DEFINITIONS The following terms, as used in this Agreement, have the following meanings:
1. “Administrative Expenses” shall mean expenses associated with the Settlement Administrator, including but not limited to costs in providing notice, communicating with Settlement Class Members, and disbursing payments to the proposed Settlement Class Members.
2. “Admiral” shall mean Admiral Insurance Company.
3. “Approved Claims” shall mean complete and timely claims, submitted by Settlement Class Members, that have been approved for payment by the Settlement Administrator.
4. “Class,” “Settlement Class,” “Class Member,” or “Settlement Class Member” shall mean each member of the settlement class, as defined in Section III of this Agreement, who does not timely elect to be excluded from the Settlement Class, and includes, but is not limited to, Plaintiffs.
5. “Class Counsel” shall refer to Myles McGuire, Paul T. Geske, Timothy P. Kingsbury of MCGUIRE LAW, P.C.
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4
6. “Class Period” shall mean the period from and including January 1, 2010 up to and including the date of the order granting preliminary approval of the Settlement Agreement.
7. “Class Release” shall have the meaning set forth in Section VII of this Agreement. 8. “Class Relief” means those benefits awarded to Settlement Class Members by the
Settlement Agreement, including without limitation the right to submit a Claim Form.
9. “Counsel” means both Class Counsel and Kiip’s Counsel, as defined in paragraphs
5 and 13. 10. “Court” shall mean the judge appointed to preside over this matter in the Circuit
Court of Cook County, Illinois. 11. “Effective Date” shall mean the date when the Settlement Agreement becomes
Final.
a. “Final” means the Final Approval Order has been entered on the docket, and (a) the time to appeal from such order has expired and no appeal has been timely filed; (b) if such an appeal has been filed, it has been finally resolved and has resulted in an affirmance of the Final Approval Order; or (c) the Court following the resolution of the appeal enters a further order or orders approving settlement on the material terms set forth herein, and either no further appeal is taken from such order(s) or any such appeal has been finally resolved and has resulted in affirmance of such order(s).
b. “Final Approval Order” shall mean an order entered by the Court that:
i. Certifies the Settlement Class pursuant to 735 ILCS 5/2-801;
ii. Finds that the Settlement Agreement is fair, reasonable, and
adequate, was entered into in good faith and without collusion, and approves and directs consummation of this Agreement;
iii. Dismisses Plaintiffs’ claims pending before it with prejudice and without costs, except as explicitly provided for in this Agreement;
iv. Approves the Release provided in Section VII and orders that, as of the Effective Date, the Released Claims will be released as to Releasees; and
v. Finds that, pursuant to 735 ILCS 5/2-1301, there is no just reason for delay of entry of final judgment with respect to the foregoing.
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12. “Execution Date” shall mean the date on which this Agreement is fully executed by all parties.
13. “Kiip” shall refer to Kiip, Inc., its past and present parents, predecessors,
successors, affiliates, holding companies, subsidiaries, partners, employees, agents, attorneys, assigns, board members, contractors, and insurers.
14. “Kiip’s Counsel” shall refer to Joseph C. Gratz of DURIE TANGRI LLP.
15. “Litigation” shall mean both the Federal Action and State Court Action.
16. “Opt-Out” shall mean a written request for exclusion from a Settlement Class as provided in Section X of this Settlement Agreement.
17. “Parties” shall mean Plaintiffs, Kiip Inc., and the proposed Settlement Class.
18. “Plaintiffs” or “Class Representatives” shall mean the named class representatives, Christine Farag and Jessica Vasil.
19. “Preliminary Approval Order” shall mean an order preliminarily approving the Settlement Agreement.
20. “Claim Form” shall mean the form that Settlement Class Members may submit to obtain compensation under this Settlement.
21. “Released Claims” shall mean any and all claims against Releasees whatsoever arising out of, related to, or connected with interception, collection, or receipt of personal data that occurred in connection with software apps integrated with Kiip’s advertising platform during the Class Period.
22. “Releasees” shall refer, jointly and severally, and individually and collectively, to Kiip, ASICS Digital Inc., their past and present parents, predecessors, successors, affiliates, holding companies, subsidiaries, employees, agents, managers, directors, owners, attorneys, board members, assigns, partners, contractors, joint venturers, customers, insurers or third-party agents with which it has or had contracts or their affiliates.
23. “Releasors” shall refer, jointly and severally, and individually and collectively, to Plaintiffs, the Settlement Class Members, and to each of their predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing, and anyone claiming by, through, or on behalf of them.
24. “Incentive Award” shall have the meaning ascribed to it as set forth in Section XVI of this Agreement.
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25. “Settlement Administrator” means Epiq Systems, Inc., the entity mutually selected and supervised by the Parties to administer the settlement.
III. SETTLEMENT CLASS CERTIFICATION
26. Subject to Court approval, the following Settlement Class shall be certified:
All individuals who used a software app integrated with the Kiip advertising platform during the Class Period.
27. Excluded from the Settlement Class are Kiip; any entity that is a subsidiary of or is
controlled by Kiip; anyone employed by Class Counsel; any judge to whom the case is assigned, his or her spouse, and members of the judge’s staff; and any persons who opt out pursuant to Section X hereof.
28. If for any reason the settlement is not granted preliminary and final approval, Kiip’s agreement to certification of the Settlement Class shall not be used for any purpose, including in any request for class certification in the Litigation or any other proceeding.
IV. SETTLEMENT OF LITIGATION AND ALL CLAIMS AGAINST RELEASEES
29. Final approval of this Settlement Agreement will settle and resolve with finality, on behalf of the Plaintiffs and the Settlement Class, the Litigation and the Released Claims and any other claims that have been brought, could have been brought, or could be brought now or at any time in the future against Releasees by the Plaintiffs, Settlement Class Members, and their predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing, in the Litigation or in any other proceeding arising out of, in any manner related to, or connected in any way with the Released Claims.
V. SETTLEMENT FUND
30. Establishment of Settlement Fund a. Within thirty (30) days of Preliminary Approval of the Settlement
Agreement Admiral shall deposit $125,000.00 in the Settlement Fund for Administration Expenses. The Settlement Fund account shall be opened and maintained by Epiq.
b. If Administrative Expenses to be paid before the Effective Date exceed the funds in the Settlement Fund, Admiral shall deposit such additional funds as are necessary to pay Administrative Expenses.
c. If the Settlement Agreement is not finally approved, the Administration Expenses in the Settlement Fund belong to Admiral, less any
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Administrative Expenses paid to date. Plaintiffs shall have no financial responsibility for any Administrative Expenses paid out of the Settlement Fund in the event that the Settlement Agreement is not finally approved.
d. Within thirty (30) days of the Effective Date, Admiral shall deposit funds in the Settlement Fund in an amount such that the total amount disbursed by Admiral for the Settlement Fund, inclusive of all Administrative Expenses, totals one million dollars ($1,000,000.00). The Settlement Fund will be used to satisfy Approved Claims for Settlement Class Members in exchange for a mutual release and covenants set forth in this Agreement, including, without limitation, a full, fair and complete release of all Releasees from Released Claims, and dismissal of the Litigation with prejudice. No portion of the Settlement Fund shall revert or escheat, except as may be ordered by the Court.
e. The Settlement Fund shall be used to pay (i) Settlement Class Members’ benefits; (ii) Incentive awards to the Plaintiffs; (iii) attorneys’ fees, costs, and expenses of Class Counsel, as provided for in Section XVI hereof; and (iv) Administrative Expenses to be paid after the Effective Date.
f. Any award of attorneys’ fees, administrative costs, or any other fees, costs, or benefits otherwise awarded in connection with the Settlement Agreement shall be payable solely out of the Settlement Fund.
g. Neither Kiip nor its insurer shall have any obligation to make further payments into the Settlement Fund, and shall have no financial responsibility or obligation relating to the settlement beyond the Settlement Fund.
h. Settlement benefits shall be allocated to the Settlement Class Members via a claims process set forth in paragraphs 32 and 33.
31. The Court may require changes to the method of allocation to Settlement Class Members without invalidating this Settlement Agreement, provided that the other material terms of the Settlement Agreement are not altered, including but not limited to the scope of the Release as set forth in paragraphs 35-40, the Class Period as set forth in paragraph 6, and the provisions regarding the Settlement Fund as set forth in Paragraph 30.
32. A Settlement Class Member who timely submits a valid Claim Form shall share in the Settlement Fund pro rata (less Administrative Expenses, attorneys’ fees and expenses, and Incentive awards to Plaintiff Class Representatives). Each Settlement Class Member who submits a valid Claim Form shall receive an individual payment from the Settlement Fund in the same amount as each other Settlement Class Member who submits a valid Claim Form. If the foregoing payment obligations do
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not exhaust the Settlement Fund, the remainder of the Settlement Fund shall be paid to cy pres recipient(s) designated by the Parties and approved by the Court. All Settlement Class Members who do not submit a valid Claim Form will not receive an individual payment from the Settlement Fund and instead will be limited to receiving the prospective relief set forth in Section VI herein.
33. Submission and Evaluation of Claims a. All claims must be submitted by a Claim Form. The Claim Form will
require the Settlement Class Member to provide his or her full name, mailing address, and contact telephone number. Each claimant must also provide their email address, the name of the application that is associated with the allegedly unlawful transmission of their information to Kiip, and the model of the device on which he or she downloaded such application.
b. The Claim Form must be submitted on or before the Claim Form deadline, which shall be ninety (90) days after the Preliminary Approval Order, or other date set by the Court (“Claim Form Deadline”). The Claim Form shall be substantially in the form attached hereto as Exhibit 1.
c. Completed Claim Forms shall be submitted directly to the Settlement Administrator for processing, assessment, and payment. The Claim Form may be mailed or electronically transmitted.
d. Any Claim Form that lacks the requisite information will be deemed to be incomplete and ineligible for payment.
e. A Settlement Class Member is not entitled to settlement benefits if he/she submits a Claim Form after the Claim Form Deadline; if the Claim Form is incomplete after completion of the procedure set forth in paragraph 33(d); or if the Claim Form contains false information.
f. The Settlement Administrator shall have sole and final authority for determining if Settlement Class Members’ Claim Forms are complete and timely, in which case they will be accepted as Approved Claims. However, no Claim Form shall be approved by the Settlement Administrator which fails to identify use of a software app that, based on the investigation of Plaintiffs’ counsel, was subject to allegedly unlawful information transmission. The Settlement Administrator may thereafter reject or accept any Claim Form submitted.
g. Within fourteen (14) days of completion of its review of the Claim Forms, the Settlement Administrator will submit to the Parties a report listing all Approved Claims.
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h. The funds provided to the Settlement Administrator will be maintained by an escrow agent as a Court-approved Qualified Settlement Fund pursuant to Section 1.468B-1 et seq. of the Treasury Regulations promulgated under Section 468B of the Internal Revenue Code of 1986, as amended, and shall be deposited in an interest-bearing account.
i. Prompt payment shall be made by the Settlement Administrator on Approved Claims after the Effective Date of the settlement. Checks will be mailed to Settlement Class Members with Approved Claims. The Settlement Administrator shall use the addresses provided by the Settlement Class Members on the Claim Forms.
j. The Settlement Administrator shall notify the Parties that all Approved Claims have been paid within 10 days of the last such payment.
k. In the event that checks sent to Settlement Class Members are not cashed within one (1) year of their mailing date, whether because the checks were not received or otherwise, those checks will become null and void. The amount of the uncashed checks after the expiration date, less any funds necessary for settlement administration, will be paid through cy pres to one or more recipients selected by the Parties and approved by the Court. The Court may revise this cy pres provision as necessary without terminating or otherwise impacting this settlement, provided the Court’s revision does not increase the amount that Kiip or its insurer would otherwise pay under this Settlement Agreement.
VI. PROSPECTIVE RELIEF
34. Without admitting any liability or that it is required by law to do so, Kiip agrees to implement and/or continue the following practices: including notices in its SDK documentation indicating a. that SDK calls are to be made only at times when users have provided
permission and would expect information to be transmitted to Kiip;
b. that SDK users should continue to disclose to consumers that information will be transmitted to third parties such as Kiip.
VII. RELEASE
35. In addition to the effect of any final judgment entered in accordance with this Agreement, upon final approval of this Agreement, and for other valuable consideration as described herein, Releasees shall be completely released, acquitted, and forever discharged from any and all Released Claims (“Class Release”).
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36. As of the Effective Date, and with the approval of the Court, all Releasors hereby fully, finally, and forever release, waive, discharge, surrender, forego, give up, abandon, and cancel any and all Released Claims against Releasees. As of the Effective Date, all Releasors will be forever barred and enjoined from prosecuting any action against the Releasees asserting any and/or all Released Claims.
37. Each Releasor waives California Civil Code Section 1542 and similar provisions in other states. Each Releasor hereby certifies that he, she, or it is aware of and has read and reviewed the following provision of California Civil Code Section 1542 (“Section 1542”):
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.
38. The provisions of the Class Release shall apply according to their terms, regardless of the provisions of Section 1542 or any equivalent, similar, or comparable present or future law or principle of law of any jurisdiction.
39. Each Releasor waives any and all defenses, rights, and benefits that may be derived from the provisions of applicable law in any jurisdiction that, absent such waiver, may limit the extent or effect of the release contained in this Agreement.
40. The Parties and each member of the proposed Settlement Class agree that the amounts to be paid under this Settlement Agreement to each Settlement Class Member represent the satisfaction of that Settlement Class Member’s claims for the Released Claims. No portion of such settlement represents the payment of punitive or exemplary damages. Nonetheless, in consideration for the satisfaction of each Settlement Class Member’s claim for compensatory damages, claims for punitive or exemplary damages shall be released.
VIII. CERTIFICATION OF THE SETTLEMENT CLASS AND RELATED MOTIONS
41. Plaintiffs shall submit to the Court a motion (the “Motion”): (a) for certification of
the Settlement Class; and (b) for preliminary approval of the Agreement, and authorization to disseminate notice of class certification, the Settlement Agreement, and the final judgment contemplated by this Settlement Agreement to all potential Settlement Class Members. The Motion shall include: (i) the definition of the Settlement Class for settlement purposes as set forth in Section III of this Agreement; (ii) a proposed form of, method for, and date of dissemination of notice; (iii) a proposed form of preliminary approval, (iv) a proposed Claim Form; and (v) a date for the final approval hearing. The text of the items referred to in clauses (i) through (v) above shall be agreed upon by the Parties before submission of the
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Motion. The Motion shall be accompanied by a proposed order for preliminary approval of the settlement substantially in the form attached hereto as Exhibit 4.
IX. NOTICE TO PROPOSED SETTLEMENT CLASS MEMBERS
42. Notice to the Settlement Class Members shall be supervised and certified by a third-party Settlement Administrator approved by all parties.
43. Within thirty (30) days of Preliminary Approval of the Settlement Agreement, the
Settlement Administrator shall establish the Settlement Website and effectuate notice to the Settlement Class Members as described in this Section IX.
44. Direct Notice a. Kiip, with the assistance of the Settlement Administrator as appropriate,
shall create a list of email addresses belonging to potential Settlement Class Members, based on readily available information already within Kiip’s possession.
b. To the extent practicable and mutually acceptable, the Settlement Administrator shall provide direct email notice to potential Settlement Class Members whose identities are reasonably ascertainable. Direct email notice shall consist of the form attached hereto as Exhibit 2 (the “Short Form Notice”) or be substantially in the form of the Short Form Notice.
45. Online Publication Notice
a. Settlement Class Members shall be notified of the Settlement via online
publication notice, including the establishment of a Settlement Website. The Settlement Website shall be established by the Settlement Administrator and shall contain information about the Settlement, including electronic copies of this Agreement as well as the Exhibits, including a long form notice of the Settlement substantially in the form attached hereto as Exhibit 3 (the “Long Form Notice”). The URL of the Settlement Website shall be www.[site name].com or such other URL as Class Counsel and Kiip may subsequently agree on in writing.
b. Separately, the Settlement Administrator shall disseminate notice of the Settlement via online “banner” advertisements, in a form and featuring language to be mutually agreed upon by the Parties.
X. OPT-OUTS
46. Opt-Out Period
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a. Settlement Class Members will have up to and including Ninety (90) days following the Preliminary Approval Order to opt out of the settlement in accordance with this Section (the “Opt-Out Period”). If the settlement is finally approved by the Court, all Settlement Class Members who have not opted out by the end of the Opt-Out Period will be bound by the Settlement and the Class Release, and the relief provided by the Settlement will be their sole and exclusive remedy for the Released Claims, including without limitation the claims alleged by the Settlement Class.
47. Opt-Out Process a. Any potential Settlement Class Member who wishes to be excluded from
the settlement must provide a request for exclusion to the Settlement Administrator, known as an “Opt-Out.”
b. In order to be valid, the Opt-Out must be mailed to the Settlement Administrator and state the following in writing: (a) the Settlement Class Member’s name, mailing address, email, telephone number, and the name of the smartphone application that he or she used and believes is associated with the transmission of their information to Kiip; and (b) that the Settlement Class Member wishes to be excluded from the Settlement Class. An Opt-Out must be signed by the Settlement Class Member and must be mailed to the address provided in the Long Form Notice. The Opt-Out request must be postmarked within the Opt-Out Period and received within five (5) business days after the Opt-Out Period.
c. Within ten (10) business days after the Opt-Out Period, the Settlement Administrator shall provide Counsel a written list reflecting all timely and valid Opt-Outs from the Settlement Class.
d. A list reflecting all timely and valid Opt-Outs shall also be filed with the Court at the time of the motion for final approval of the settlement.
XI. OBJECTIONS
48. Settlement Class Members may object to this Agreement up to and including the date ordered by the Court in the Preliminary Approval Order.
49. The Parties will request that the Court order that any Settlement Class Member who has any objection to certification of the Settlement Class, to approval of this Settlement Agreement or any of its terms, or to the approval process, must send his or her objection to the Settlement Administrator, Class Counsel, and Kiip’s Counsel providing: a. the case name and case number(s) of the Litigation;
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b. the objector’s full name, current address, email and phone number;
c. the name of the smartphone application that he or she used and believes is associated with the transmission of his or her information to Kiip;
d. the reasons why the objector objects to the Settlement along with any supporting materials;
e. information about other objections the objector or his or her lawyer(s) have made in other class action cases in the last four (4) years; and
f. the objector’s signature.
50. The Parties will request that the Court set the Objection Deadline 30 days before the Final Approval Hearing. The Parties will request that the Court order that failure to comply timely and fully with these procedures shall result in the invalidity and rejection of an objection. The Parties will request that the Court order that no Settlement Class Member shall be entitled to be heard at the Final Approval Hearing (whether individually or through the objector’s counsel), or to object to certification of the Settlement Class or to the Settlement Agreement, and no written objections or briefs submitted by any Settlement Class Member shall be received or considered by the Court at the Final Approval Hearing, unless written notice of the Settlement Class Member’s objection and any brief in support of the objection have been served upon all Counsel not later than 30 days before the date of the Final Approval Hearing
51. In the event the Parties determine that an objection is frivolous or otherwise without merit, the Parties may request that the Court, within its discretion, award appropriate costs and fees to the Parties opposing such objection(s).
52. The Parties will request that the Court order that Settlement Class Members who fail to file and serve timely written objections in accordance with this Section shall be deemed to have waived any objections and shall be foreclosed from making any objection to the certification of the Settlement Class or to the Settlement Agreement.
XII. FINAL APPROVAL HEARING
53. The Parties will jointly request that the Court hold a Final Approval Hearing.
54. At the Final Approval Hearing, the Parties will request the Court to consider whether the Settlement Class should be certified for settlement, and, if so, (1) to consider any properly filed objections to the Settlement Agreement, (2) to determine whether the Settlement Agreement is fair, reasonable, and adequate, was entered into in good faith and without collusion, and should be approved, and (3) to provide findings in connection therewith, and (4) to enter the Final Approval
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Order, including final approval of the Settlement Class and the Settlement Agreement and an award of Attorneys’ Fees and expenses.
XIII. FINAL APPROVAL ORDER
55. Plaintiffs and Kiip shall jointly seek entry of a Final Approval Order, the text of which Plaintiffs and Kiip shall agree upon. The dismissal order, motions or stipulation to implement this Section shall, among other things, seek or provide for a dismissal with prejudice and waiving any rights of appeal.
56. The Parties shall jointly submit to the Court a proposed order, substantially in the form attached hereto as Exhibit 5 that, without limitation: a. Approves finally this Agreement and its terms as being a fair, reasonable,
and adequate settlement as to the Settlement Class Members and directing its consummation according to its terms;
b. Dismisses, with prejudice, all claims of the Settlement Class against Kiip in the Litigation, without costs and fees except as explicitly provided for in this Agreement; and
c. Reserves continuing and exclusive jurisdiction over the settlement and this Agreement, including but not limited to the Litigation, the Settlement Class, the Settlement Class Members, Kiip and the settlement for the purposes of administering, consummating, supervising, construing and enforcing the Settlement Agreement and the Settlement Fund.
57. Class Counsel shall use their best efforts to assist Kiip in obtaining dismissal with prejudice of the Litigation and take all steps necessary and appropriate to otherwise effectuate all aspects of this Agreement.
XIV. BAR ORDER
58. As part of the Final Approval Order, the Court shall issue a bar order and permanent injunction against any and all pending or future claims by Settlement Class Members against Releasees raising or arising out of a Released Claim.
59. The bar order and permanent injunction shall enjoin and forever bar any and all Settlement Class Members from commencing and/or maintaining any action, legal or otherwise, against Releasees raising or arising out of a Released Claim.
60. This provision is not intended to prevent or impede the enforcement of claims or entitlement to benefits under this Settlement Agreement.
XV. TERMINATION OF THE AGREEMENT
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61. The settlement is conditioned upon preliminary and final approval of the Parties’ written Settlement Agreement, and all terms and conditions thereof without material change, amendments, or modifications by the Court (except to the extent such changes, amendments or modifications are agreed to in writing between the Parties). All Exhibits attached hereto are incorporated into this Settlement Agreement. Accordingly, this Settlement Agreement shall be terminated and cancelled, at the option of any Party, upon any of the following events: a. This Settlement Agreement is changed in any material respect to which the
Parties have not agreed in writing;
b. The Court declines to enter the Preliminary Approval Order;
c. The Final Approval Order approving the Settlement and certifying the Settlement Class for the Class Period as provided in this Agreement is not entered by the Court or is reversed by a higher court; or
d. Another party to this Settlement Agreement materially breaches the Settlement Agreement and such breach materially frustrates the purposes of this Agreement.
62. In the event the Settlement Agreement is not approved or does not become final, or is terminated consistent with this Settlement Agreement, the Parties, pleadings, and proceedings will return to the status quo ante as if no settlement approval had been sought, and the Parties will negotiate in good faith to establish a new schedule for the Litigation.
XVI. ATTORNEY’S FEES AND INCENTIVE AWARDS
63. Class Counsel shall petition the Court for an award of attorneys’ fees not to exceed 40% of the Settlement Fund plus costs and expenses.
64. Kiip agrees not to oppose an application for attorney’s fees by Class Counsel in an amount not more than 40% of the Settlement Fund plus their reasonable costs and expenses.
65. In no event will Kiip’s or Admiral’s liability for attorney’s fees, expenses, and costs exceed their funding obligations set out in this Agreement. Kiip shall have no financial responsibility for this Settlement Agreement outside of the Settlement Fund. Kiip shall have no further obligation for attorney’s fees and costs to any counsel representing or working on behalf of either one or more individual Settlement Class Members or the Settlement Class. Kiip will have no responsibility, obligation or liability for allocation of fees and costs among Class Counsel.
66. Prior to or at the same time as Plaintiffs seek final approval of the Settlement Agreement, Class Counsel may petition the Court for Incentive Awards for Plaintiff
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Class Representatives in an amount not to exceed Five Thousand Dollars ($5,000.00) each, and Kiip agrees that it will not oppose such a request. The Incentive Awards shall be paid solely from the Settlement Fund.
67. The administrator shall cause Plaintiffs’ incentive award and attorney’s fees
payments to be paid by wire transfer to accounts designated by Plaintiff’s counsel seven (7) business days following the Effective Date.
XVII. REPRESENTATIONS
68. The Parties agree that the Settlement Agreement provides fair, equitable and just compensation, and a fair, equitable, and just process for determining eligibility for compensation for any given Settlement Class Member related to the Released Claims.
69. The Parties represent that they have obtained the requisite authority to enter this Settlement Agreement in a manner that binds each party to its terms.
70. The Parties shall use their best efforts to conclude the settlement and obtain the Final Approval Order, including affirmatively supporting the settlement in the event of an appeal.
71. Should the Parties be required to submit any information or documentation to the Court to obtain preliminary approval, such information shall be, to the fullest extent permitted, for review by the Court in camera only, to the extent that Plaintiffs and/or Kiip request that information to remain confidential and the Court grants any such request.
72. The Parties specifically acknowledge, agree and admit that this Settlement Agreement and its exhibits, along with all related drafts, motions, pleadings, conversations, negotiations, correspondence, orders or other documents shall be considered a compromise within the meaning of Ill. R. Evid. 408 and Fed. R. Evid. 408, and any other equivalent or similar rule of evidence of any state, and shall not (1) constitute, be construed as, be offered as, or received into evidence as an admission of the validity of any claim or defense, or the truth of any fact alleged or other allegation in the Litigation or in any other pending or subsequently filed action, or of any wrongdoing, fault, violation of law, or liability of any kind on the part of any Party, or (2) be used to establish a waiver of any defense or right, or to establish or contest jurisdiction or venue.
73. The Parties also agree that this Settlement Agreement and its exhibits, along with all related drafts, motions, pleadings, conversations, negotiations, correspondence, orders or other documents entered in furtherance of this Settlement Agreement, and any acts in the performance of this Settlement Agreement are not intended to establish grounds for certification of any class involving any Settlement Class Member other than for certification of the Settlement Class for settlement purposes.
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74. The provisions of this Settlement Agreement, and any orders, pleadings or other
documents entered in furtherance of this Settlement Agreement, may be offered or received in evidence solely (1) to enforce the terms and provisions hereof or thereof, (2) as may be specifically authorized by a court of competent jurisdiction after an adversary hearing upon application of a Party hereto, (3) in order to establish payment, or an affirmative defense of preclusion or bar in a subsequent case, (4) in connection with any motion to enjoin, stay or dismiss any other action, or (5) to obtain Court approval of the Settlement Agreement.
75. No Party may release any information relating to the Litigation that is not already publicly available. Parties (including their attorneys or agents) may, however, respond to media inquiries regarding the terms of the Settlement Agreement. If preliminary Court approval for the settlement is denied, the Parties and their attorneys and agents shall not make any negative or disparaging comments to the media or other third parties regarding the proposed settlement. However, if the settlement agreement is not preliminarily or finally approved, this provision shall not prohibit the parties from commenting about the litigation to any third parties. Nothing in this provision shall be interpreted to limit representations that the Parties or their attorneys may make to the Court to assist it in its evaluation of the proposed Settlement; nor shall this provision prohibit Class Counsel from having attorney-client communications directly with Settlement Class Members, including postings of the Settlement on Class Counsel’s law firms’ websites; nor shall this provision prohibit the Parties and their counsel from expressing favorable opinions regarding the settlement. If a party is required by a valid, enforceable subpoena or government information request to disclose information about the settlement, such party shall provide reasonable prior notice (to the extent permitted by applicable law) to the other party to allow the other party to seek to prevent such disclosure. A party may also provide necessary and accurate information about the settlement to its shareholders and other persons or entities as required by securities laws or other applicable laws or regulations.
76. This agreement shall be deemed executed as of the date that the last party signatory signs the agreement. This agreement shall fully supersede any previous agreement entered into by the parties.
XVIII. MISCELLANEOUS
77. No party shall be deemed the drafter of this Agreement or any provision thereof. No presumption shall be deemed to exist in favor of or against any party as a result of the preparation or negotiation of this Agreement.
78. This Agreement may not be modified or amended unless such modification or
amendment is in writing executed by the Parties, except as specifically permitted by this Agreement. An electronic signature will be considered an original signature for purposes of execution of this Agreement.
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79. Where this Agreement requires any party to provide notice or any other
communication or document to any other party, such notice, communication, or document shall be provided by email or letter by overnight delivery to their counsel in the Litigation.
80. Nothing express or implied in this Agreement is intended or shall be construed to
confer upon or give any person or entity other than the Parties, Releasees, and Settlement Class Members any right or remedy under or by reason of this Agreement. Each of the Releasees is an intended third-party beneficiary of this Agreement with respect to the Released Claims and shall have the right and power to enforce the release of the Released Claims in his, her or its favor against all Releasors.
81. This Agreement may be executed in multiple counterparts, all of which taken
together shall constitute one and the same Settlement Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement by their duly authorized representatives on the dates stated below.
For Plaintiffs and the Proposed Settlement Class:
By: ________________________________
Print Name: Jessica Vasil
Date: ______________________________
By: ________________________________
Myles McGuire Paul T. Geske Timothy P. Kingsbury MCGUIRE LAW, P.C. 55. W. Wacker Drive, 9th Floor Chicago, IL 60601 Counsel for Plaintiffs Date: ______________________________
By: ________________________________
Print Name: Christine Farag
Date: _______________________________
For Kiip, Inc.
By: ___________________________ Print Name: ________________________ Date: ______________________________
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EXHIBIT 1
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KIIP CLASS ACTION SETTLEMENT CLAIM FORM
TO RECEIVE A PAYMENT FROM THE SETTLEMENT FUND, YOU MUST COMPLETE THIS CLAIM FORM AND SUBMIT IT BY ____, 2019.
IMPORTANT NOTE: You must complete this form and submit it online by [Date] in order to receive a payment. Please read the instructions below in Step 1; provide the requested information in Step 2; sign the certification in Step 3; and submit the claim form on the settlement website. You are only allowed to submit one claim.
STEP 1 - DIRECTIONS
In the spaces below, print your (i) name, (ii) mailing address, and (iii) your email address and the smartphone application through which you believe Kiip obtained your information between January 1, 2010 - [DATE OF PRELIMINARY APPROVAL].
STEP 2 – CLAIMANT INFORMATION Name: _____________________ ____________ ____________________________ (First) (Middle Initial) (Last) Address: ___________________________________________________________________ _ (Street) __________________________________ ____ ____ ____ ____ ____ ____ ____ (City) (State) (Zip Code) Telephone Number: ______________________. Email Address: _________________________. Smartphone Application: ____________________________. The application you write on this line must be the one that you allege sent your information to Kiip’s advertising platform without your permission. Device Model Used to Download Application: __________________________. The model you write on this line must be the device on which you downloaded the application that you allege sent your information to Kiip’s advertising platform without your permission.
STEP 3 – CERTIFICATION I certify that the information above is true to the best of my knowledge. I understand that the settlement administrator has the right to dispute any claims that are based on inaccurate responses. ___________________________ ____________________ Signature Date
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EXHIBIT 2
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EXHIBIT 2
If you used a software application integrated with Kiip, Inc.’s advertising platform, you may be entitled to a cash payment from a
class action settlement. ______________________________________________________________________________ A court authorized this notice to inform you about your rights. This is not a solicitation from a lawyer.
Para una notificacion en Espanol, visitar www.website.com
A settlement has been reached in a class action lawsuit involving claims that Kiip, Inc. (“Kiip”) violated the law by using its advertising platform to collect, intercept, or transmit consumers’ personal information through a software application without first getting permission from those consumers. Farag et al. v. Kiip, Inc., Case No. 2019 CH 01695 (Ill. Cir. Ct. Cook Cnty.). The proposed settlement is not an admission of wrongdoing by Kiip. Kiip strenuously denies any wrongdoing and the court has not decided who is right or wrong. Rather, the parties have reached a compromise to end the lawsuit and avoid the uncertainties and costs associated with further litigation.
Am I a Member of the Settlement Class?
You’re a member of the settlement class if, between January 1, 2010 and [DATE OF PRELIMINARY APPROVAL], 2019, you used a software application integrated with Kiip’s advertising platform. If you are a member of this class, you may file a claim to request a share of the settlement funds.
What Can I Get From the Proposed Settlement?
The proposed settlement provides for a fund totaling $1,000,000, which will be used to make payments to the class members with valid claims after first making deductions for notice and administration costs, incentive awards to the class representatives, and attorneys’ fees for class counsel. If the court finally approves the settlement, each settlement class member who timely submits a valid claim form will be eligible to receive an equal payment from the Settlement Fund. The exact amount of each settlement class member’s payment is unknown at this time; the final amount of each payment will depend on the number of claims submitted and the amount available in the settlement fund after the deductions.
What are my Options?
To make a claim for a cash payment, you must submit a completed claim form online at www.website.com by Month/Day, 2019. Alternatively, you can exclude yourself from the settlement by Month DD, 2019 if you do not want to be bound by it, but you will not be able to receive a payment from the fund. If you file a claim or otherwise choose not to exclude yourself, you will release any claims you may have against Kiip, as more fully described in the Settlement Agreement, available at the settlement website. You may also object to the settlement by Month DD, 2019. The detailed notice available on the website explains how to file a claim, exclude yourself, or object.
When will the Settlement be Approved? The Court will hold a Hearing on Month/DD, 2019 to consider whether to approve the settlement and a request by class counsel for attorneys’ fees of up to 40% of the Settlement Fund, plus their costs for their work in the case. The court will also consider incentive award payments in an amount up to $5,000 to the class representatives. You can appear at the hearing, but you do not have to. You can also hire your own attorney, at your own expense, to appear or speak for you at the hearing. For more information, call or visit the website below.
For more information and for a claim form, visit www.website.com or call 1-999-999-9999.
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EXHIBIT 3
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For more information and for a Claim Form, visit www.[website].com
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EXHIBIT 3
LEGAL NOTICE BY ORDER OF COURT Farag et al. v. Kiip, Inc., Case No. 2019-CH-01695 (Ill. Cir. Ct. Cook Cnty.)
If you used a software application integrated with Kiip, Inc.’s
advertising platform, you may be entitled to a cash payment from a class action settlement.
The Circuit Court of Cook County, Illinois authorized this Notice to inform you about your rights. This is
not a solicitation from a lawyer.
This Notice provides important information about a proposed Settlement in a class action lawsuit against Kiip, Inc. (“Kiip”). The lawsuit involves claims that certain software integrated with Kiip’s advertising platform resulted in the unauthorized collection, interception, or transmission of consumers’ personal information. Please read this notice carefully. It summarizes your rights and options under the Settlement. You can access and read the full Settlement Agreement at www.[Website].com. If, since January 1, 2010, you used a software application integrated with Kiip’s advertising platform, and if you fit the description of the Settlement Class (as defined below), then you have the following options under the Settlement:
• You can file a claim to receive a payment from the Settlement Fund. Under the Settlement, you may be eligible for a cash payment.
• You can exclude yourself from the Settlement. If you pursue this option, you will not receive any of the Settlement benefits described above, but you retain the right to bring your own lawsuit. Your request to exclude yourself must be submitted no later than [date]. You must follow the process described in part 8 below. If the Settlement is approved and you do not exclude yourself, you will be bound by the Settlement and will release certain claims described below.
• You can object to the Settlement. The deadline for objecting to the Settlement is [date]. All objections must be mailed to the Settlement Administrator at [address]. See part 7 below for details.
NOTE: PLEASE DO NOT CALL OR WRITE THE COURT, THE COURT CLERK’S OFFICE, KIIP, OR KIIP’S COUNSEL. THEY WILL NOT BE ABLE TO ASSIST YOU. If you have questions, or you’d like more information please call [number] or visit www.[website].com
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BASIC INFORMATION
In a putative class action lawsuit known as Farag et al. v. Kiip, Inc., No. 2019 CH 01695 (Ill. Cir. Ct. Cook Cnty.), the Plaintiffs allege that Kiip violated the law by using its advertising platform to collect, intercept, or transmit consumers’ personal information through a software application without first getting permission from those consumers. Kiip denies that it did anything wrong, and the Court has not decided who is right. Rather, the parties have reached a compromise to end the lawsuit and avoid the uncertainties and costs associated with further litigation. A settlement of the lawsuit (“Settlement”) has been negotiated which, if approved by the Court, provides the Settlement Class Members with benefits from the Settlement, including the ability to receive a cash payment. By entering into the Settlement, Kiip has not admitted the truth or validity of any of the claims against it. Your rights and options under the Settlement—and the deadlines to exercise them—are explained below.
YOUR LEGAL RIGHTS AND OPTIONS
SUBMIT A CLAIM FORM
This is the only way to receive a payment from the Settlement. Settlement Class Members who
submit a valid Claim Form by the deadline of [date] will be eligible to receive a payment as
described below.
DO NOTHING If you do nothing, you will not receive any
payment from the Settlement, but you will still give up your rights to sue Kiip as described below.
EXCLUDE YOURSELF FROM THE SETTLEMENT
If you exclude yourself, you will not receive anything from the Settlement, but you can still sue Kiip on your own and at your own expense. The
deadline for excluding yourself is [date].
OBJECT You may file an objection if you wish to object to
the Settlement. The deadline to object to the Settlement is [date].
GO TO A HEARING You may ask to speak in Court about the fairness of the Settlement. The Court has set a hearing for
[date] at [time], subject to change.
These rights and options—and the deadlines to exercise them—are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement. If approved, benefits will be distributed to those who qualify. Please be patient.
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WHAT THIS NOTICE CONTAINS
1. Who’s part of the Settlement? .......................................................................... 4
2. What is this litigation about? ............................................................................ 4
3. Who represents me? ......................................................................................... 4
4. What benefits can I receive from the Settlement? ............................................. 4
5. Do I have to pay the lawyers representing me?................................................. 5
6. What am I agreeing to by remaining in the Settlement Class in this case? ........ 5
7. What if I don’t agree with the Settlement? ....................................................... 5
8. How do I exclude myself from the Settlement Class? ....................................... 6
9. What is the difference between objecting and asking to be excluded? .............. 7
10. What if I do nothing at all? ............................................................................... 7
11. What will be decided at the Final Approval Hearing? ...................................... 7
12. Is this the entire Settlement Agreement? ......................................................... 8
13. Where can I get more information? ................................................................. 8
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1. Who’s part of the Settlement? If you received notice of the Settlement by email, then you may be a member of the Settlement Class. But even if you did not receive a notice, you may still be a member of the Settlement Class if you fall within the Settlement Class definition. The “Settlement Class” is defined as:
All individuals who used a software app integrated with the Kiip advertising platform between January 1, 2010 and [preliminary approval].
Excluded from the Settlement Class are Kiip; any entity that is a subsidiary of or is controlled by Kiip; anyone employed by Class Counsel; any judge to whom the case is assigned, his or her spouse, and members of the judge’s staff. The Circuit Court of Cook County, Illinois (Honorable Celia G. Gamrath) has conditionally certified, for settlement purposes only, the Settlement Class. If you are not sure whether you are in the Settlement Class, or have any other questions about the Settlement, visit the Settlement Website at www.[insert].com or call toll free number at [number]. 2. What is this litigation about? Defendant Kiip is a mobile marketing company that displays advertisements on mobile devices through mobile applications, or “apps,” installed on individuals’ smartphones, including iPhones and Android devices. Plaintiffs brought a class action lawsuit against Kiip alleging that Kiip violated the law by secretly obtaining mobile users’ personal information without their permission and at times when they weren’t using their mobile devices. Plaintiffs have alleged that Kiip’s advertising platform, together with a certain mobile app, illegally collected, intercepted, and/or transmitted consumers’ personal data without their knowledge or consent. This is just a summary of the allegations. The complaint in the lawsuit is posted at www.[insert].com and contains all of the allegations. Kiip denies Plaintiffs’ allegations and denies that it has violated the law. However, in order to avoid the expense, inconvenience, and distraction of continued litigation, Kiip has agreed to the settlement described in this Notice. 3. Who represents me? In a class action, one or more people called “class representatives” sue on behalf of other people who have similar claims. In this case, Christine Farag and Jessica Vasil sued Kiip and sought to represent other consumers who similarly had claims against Kiip. The Court has appointed them for settlement purposes to be Settlement Class Representatives for all Settlement Class Members in this case. The Court also appointed the law firm McGuire Law, P.C. as Class Counsel to represent the Settlement Class Members. If you want to be represented by your own lawyer, you may hire one at your own expense. 4. What benefits can I receive from the Settlement?
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The Settlement provides for creation of a Settlement Fund totaling $1,000,000, which will be used to make payments to the class members after first making deductions for notice and administration costs, incentive awards to the class representatives, and attorneys’ fees for class counsel. If the court finally approves the settlement, each Settlement Class Member who timely submits a valid claim form will be eligible to receive an equal payment from the Settlement Fund. The exact amount of each Settlement Class Member’s payment is unknown at this time; the final amount of each payment will depend on the number of claims submitted and the amount available in the settlement fund after the deductions. Kiip has also agreed to implement business practices to ensure that mobile users’ personal information isn’t collected or transmitted without their permission. 5. Do I have to pay the lawyers representing me? No. Class Counsel will ask the Court for an award of attorneys’ fees and expenses for investigating the facts, litigating the case, and negotiating the settlement. This award is subject to court approval and can be up to 40% of the Settlement Fund, or $400,000. To date, Class Counsel have not received any payment for their services in litigating the case on behalf of the Class Representatives and the Settlement Class, nor have Class Counsel been reimbursed for their costs and expenses directly relating to their representation of the Settlement Class. Class Counsel’s contact information is as follows: Myles McGuire Paul T. Geske Timothy P. Kingsbury MCGUIRE LAW, P.C. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 [email protected] [email protected] [email protected] Tel: (312) 893-7002 Class Counsel will also request that an Incentive Award of $5,000 be awarded to each of the Class Representatives in recognition of their service to the Settlement Class. The amount of any fee or service award will be determined by the Court. 6. What am I agreeing to by remaining in the Settlement Class in this case? Unless you exclude yourself, you will be part of the Settlement Class, and you will be bound by the release of claims in the Settlement. This means that if the Settlement is approved, you cannot sue, continue to sue, or be part of any lawsuit against Kiip arising out of, related to, or connected with interception, collection, or receipt of personal data that occurred in connection with software apps integrated with Kiip’s advertising platform during the Class Period. The released claims include all claims that were or could have been asserted in the Litigation, regardless of whether those claims are known or unknown, filed or unfiled, asserted or as yet unasserted, existing or contingent. 7. What if I don’t agree with the Settlement?
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If you are a member of the Settlement Class, you may object to the Settlement or any part of the Settlement that you think the Court should reject; if so, the Court will consider your views. To object, you must send your objection in writing to the Settlement Administrator, Class Counsel, and Kiip’s Counsel providing:
a) The case name and case number of this Litigation (Farag et al. v. Kiip, Inc., No. 2019 CH 01695 (Ill. Cir. Ct. Cook Cnty.)).
b) Your full name, current address, email address and phone number;c) The name of the software applications you used that you believe integrated Kiip’s advertising
platform;d) The reasons why you object to the Settlement along with any supporting materials;e) Information about other objections you or your lawyer(s) have made in other class action cases in
the last four (4) years; andf) Your signature.
Your objection must be postmarked no later than [date]. Objections must be mailed to:
Epiq Systems, Inc. [Address]
Plaintiff’s Counsel Kiip Counsel
Myles McGuire Joseph C. Gratz MCGUIRE LAW, P.C. DURIE TANGRI LLP 55 W. Wacker Drive, 9th Fl. 217 Leidesdorff Street Chicago, IL 60601 San Francisco, California 94111
8. How do I exclude myself from the Settlement Class?If you want to exclude yourself from the Settlement Class, sometimes referred to as “opting-out,” you will not be eligible to receive any benefits as a result of this Settlement. However, you will keep the right to sue or continue to sue Kiip on your own and at your own expense concerning any of the claims that will be released as part of this Settlement.
To exclude yourself from the Settlement Class, you must send a letter to the Settlement Administrator providing:
a) The case name and case number of this Litigation (Farag et al. v. Kiip, Inc., No. 2019 CH 01695(Ill. Cir. Ct. Cook Cnty.)).
b) Your full name, current address, email address, and phone number;c) The name of the software applications you used that you believe integrated Kiip’s advertising
platform;d) A statement that you wish to exclude yourself from the Settlement Class; ande) Your signature.
If you wish to exclude yourself, you must submit the above information to the following address so that it is postmarked no later than [date].
Settlement Administrator: Epiq Systems, Inc.
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REQUESTS FOR EXCLUSION FROM THE CLASS THAT ARE NOT POSTMARKED ON OR BEFORE [date] WILL NOT BE HONORED.
You cannot exclude yourself from the Settlement Class by telephone, email or on the Settlement Website. You cannot exclude yourself by mailing a request to any other location or after the deadline above. Your exclusion notice must be signed by you.
9. What is the difference between objecting and asking to be excluded?
Objecting is simply telling the Court that you do not like something about the Settlement. You can object to the Settlement only if you do not exclude yourself. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object to the Settlement because it no longer affects you.
10. What if I do nothing at all?You will remain a member of the Settlement Class and release your claims against Kiip. However, you must file a Claim Form to receive a benefit in this Settlement. See Part 4 above.
11. When will the court finally rule on the Settlement?The Court will hold a Final Approval Hearing to decide whether to approve the Settlement and any requests for fees, expenses, and incentive awards. The Final Approval Hearing is currently set for [date] at [time] in the Chancery Division of the Circuit Court of Cook County, Illinois, Courtroom 2508 of the Richard J. Daley Center, 50 West Washington Street, Chicago, Illinois 60602. The hearing may be moved to a different date or time without additional notice, so you should check www.[insert].com and the Court’s docket for updates.
At the Final Approval Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider the request by Class Counsel for attorneys’ fees and expenses and for the Class Representatives’ incentive awards. If there are any objections, the Court will consider them at the Final Approval Hearing. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long that decision may take.
You may attend the hearing, at your own expense, but you do not have to do so.
You may ask the Court for permission to speak at the hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your notice of intention to appear must include the following:
a) The case name and case number of this Litigation (Farag et al. v. Kiip, Inc., No. 2019 CH 01695 (Ill. Cir. Ct. Cook Cnty.)).
b) Your full name, current address, email address, and phone number;c) The name of the software applications you used that you believe integrated Kiip’s advertising
platform;d) A statement that this is your “Notice of Intention to Appear” at the Final Approval Hearing in
this case;e) Copies of any papers, exhibits, or other evidence or information that you will present to the
Court;f) The reasons you want to be heard; andg) Your signature.
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You must send copies of your notice of intent to appear, postmarked by [date], to:
Clerk of the Circuit Court of Cook County Chancery Division 50 W. Washington Street, #802 Chicago, IL 60602 Plaintiff’s Counsel Kiip Counsel Myles McGuire Joseph C. Gratz MCGUIRE LAW, P.C. DURIE TANGRI LLP 55 W. Wacker Drive, 9th Fl. 217 Leidesdorff Street Chicago, IL 60601 San Francisco, California 94111 You cannot speak at the hearing if you exclude yourself from the Settlement. 12. Does this Notice contain the entire Settlement Agreement? No. This is only a summary of the Settlement. If the Settlement is approved and you do not exclude yourself from the Settlement Class, you will be bound by the release contained in the Settlement Agreement, and not just by the terms of this Notice. Capitalized terms in this Notice are defined in the Settlement Agreement. You can view the full Settlement Agreement online at www.[insert].com, or you can write to the address below for more information.
13. Where can I get more information? For more information, visit www.[insert].com or call the Settlement Administrator at Number. NOTE: PLEASE DO NOT CALL OR WRITE THE COURT, THE COURT CLERK’S OFFICE, KIIP, OR KIIP’S COUNSEL. THEY WILL NOT BE ABLE TO ASSIST YOU.
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EXHIBIT 4
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CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals,
Plaintiffs,
v.
KIIP, INC., a Delaware corporation,
Defendant.
) ) ) ) ) ) ) ) ) ) ) )
Case No. 19-CH-01695 Hon. Celia G. Gamrath
[PROPOSED] PRELIMINARY APPROVAL ORDER
This matter having come before the Court for hearing on Plaintiffs’ Unopposed Motion for
Preliminary Approval of Class Action Settlement (the “Motion”), the Court having considered and
reviewed in detail Plaintiffs’ Motion and memorandum in support of the Motion, the Parties’ Class
Action Settlement Agreement (“Settlement Agreement”), and all other papers that have been filed
with the Court related to the Settlement Agreement, including all exhibits and attachments to the
Motion and the Settlement Agreement, and the Court being fully advised in the premises,
IT IS HEREBY ORDERED:
1. Capitalized terms used in this Order that are not otherwise defined herein have the
same meanings assigned to them in the Parties’ Settlement Agreement.
2. Subject to further consideration by the Court at the time of the Final Approval
Hearing, the Court preliminarily approves the Settlement as fair, reasonable, and adequate to the
Settlement Classes, as falling within the range of possible final approval, and as meriting
submission to the Settlement Class for their consideration. The Parties are represented by
experienced counsel, and there is good cause to find that the Settlement Agreement, which was
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reached following a mediation with the assistance of the Hon. Morton Denlow (Ret.) of JAMS
Chicago, was negotiated at arms-length between the Parties.
3. Pursuant to Section 2-801 of the Illinois Code of Civil Procedure, and for the
purpose of settlement only, the Court hereby certifies the Settlement Class defined as:
All individuals in the United States who used a mobile software app integrated with Kiip’s advertising platform between January 1, 2010 and the date of entry of this Order.
Excluded from the Settlement Class are all persons who elect to exclude themselves from the
Settlement Class, the Court and staff to whom this case is assigned, Kiip, any entity that is a
subsidiary of or is controlled by Kiip, anyone employed by Class Counsel, and any member of the
Court’s or staff’s immediate family.
4. For settlement purposes only, the Court preliminarily finds that the Parties’
Settlement Agreement and the proposed Settlement Class satisfy all of the prerequisites for the
maintenance of a class action listed Section 2-801 of the Illinois Code of Civil Procedure, including
numerosity, commonality and predominance, adequacy of representation, and appropriateness of
class treatment as a method for fair and efficient adjudication of this controversy. 735 ILCS 5/2-
801.
5. Plaintiffs Christine Farag and Jessica Vasil are appointed as Class Representatives
of the Settlement Class.
6. The following counsel are appointed as Class Counsel for the Settlement Class:
Myles McGuire Paul T. Geske Timothy Kingsbury MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601
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7. The Court preliminarily finds that the Plaintiffs and Class Counsel have and will
fairly and adequately represent and protect the interests of the absent members of the Settlement
Class in accordance with 735 ILCS 5/2-801(3).
8. The Court approves, in form and content, the notice plan set forth in the Settlement
Agreement, including the Short Form Notice, the Long Form Notice, and the Publication Notice
attached to the Settlement Agreement, and finds that they meet the requirements of Section 2-803
of the Illinois Code of Civil Procedure and satisfy Due Process.
9. The Court further finds that the planned notice set forth in the Settlement
Agreement meets the requirements of Section 2-803 of the Illinois Code of Civil Procedure,
constitutes the best notice practicable under the circumstances, and fully satisfies the requirements
of Due Process and any other applicable law, such that the Settlement Agreement and Final
Approval Order will be binding on all Settlement Class Members. In addition, the Court finds that
no notice other than that specifically identified in the Settlement Agreement is necessary in this
action. The Parties, by agreement, may revise the Class Notice and Claim Form in ways that are
not material, or in ways that are appropriate to update those documents for purposes of accuracy
or formatting for publication.
10. Epiq Systems Class Action and Claims Solutions is hereby appointed Settlement
Administrator to supervise and administer the notice process, as well as to oversee the claims
submission process and administration of the Settlement, as more fully set forth in the Settlement
Agreement. Pursuant to Section IX of the Settlement Agreement, Defendant shall provide the
Settlement Administrator with a list of contact information for potential Settlement Class Members
who are to receive Direct Notice. The Settlement Administrator shall proceed with the distribution
of Class Notice, including Direct Notice and Publication Notice, as set forth in the Settlement
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Agreement.
11. Settlement Class Members who wish to receive benefits under the Settlement
Agreement must timely submit a valid and completed Claim Form in accordance with the
instructions provided in the Class Notice on or before ________, 2019. The Court hereby approves
as to form and content the Claim Form attached to the Settlement Agreement as Exhibit 1.
12. All Claim Forms must be electronically submitted to the Settlement Administrator
via the Settlement Website no later than __________, 2019. Any Settlement Class Member who
does not timely submit a Claim Form deemed to be valid in accordance with the Settlement
Agreement shall not be entitled to receive any portion of the Settlement Fund.
13. Any person who would otherwise be a Settlement Class Member may request to be
excluded from the Settlement Class. In order to exercise the right to be excluded, a person within
the Settlement Class must timely send a written request for exclusion to the Settlement
Administrator providing his or her name and address, email address, the name and number of this
case, the name of the smartphone application that he or she believes is associated with the
collection, interception, or receipt of his or her information by Defendant, a signature, and a
statement that he or she wishes to be excluded from the Settlement Class. Any request for
exclusion submitted via first class mail must be personally signed by the person requesting
exclusion. Such exclusion requests must be received by the Settlement Administrator at the address
specified in the Class Notice in written form, by first class mail, postage prepaid, and postmarked
no later than _________, 2019.
14. No person within the Settlement Class, or any person acting on behalf of, in concert
with, or in participation with that person within the Settlement Class, may request exclusion from
the Settlement Class of any other person within the Settlement Class.
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15. Settlement Class Members shall be bound by all determinations and orders
pertaining to the Settlement, including the release of all claims to the extent set forth in the
Settlement Agreement, whether favorable or unfavorable, unless such persons request exclusion
from the Settlement Class in a timely and proper manner, as provided herein and in the Settlement
Agreement. Settlement Class Members who do not timely and validly request exclusion shall be
so bound even if they have previously initiated or subsequently initiate litigation or other
proceedings against the Defendant or the Releasees relating to the claims released under the terms
of the Settlement Agreement.
16. Any person in the Settlement Class who elects to be excluded shall not: (i) be bound
the Final Approval Order; (ii) be entitled to relief under the Settlement Agreement; (iii) gain any
rights by virtue of the Settlement Agreement; or (iv) be entitled to object to any aspect of the
Settlement Agreement.
17. Class Counsel may file any motion seeking an award of attorneys’ fees not to
exceed forty percent (40%) of the Settlement Fund, or four hundred thousand dollars
($400,000,00), plus their reasonable costs and expenses, as well as Incentive Awards of five
thousand dollars ($5,000) for the Class Representatives, no later than _______, 2019.
18. Any Settlement Class Member who has not requested exclusion from the
Settlement Class and who wishes to object to any aspect of the Settlement Agreement, including
to the payment of Incentive Awards for the Class Representatives or to the amount of the attorneys’
fees, costs, and expenses that Class Counsel intends to seek, may do so, either personally or
through an attorney, by filing a written objection with the Court, together with the supporting
documentation set forth below in paragraph 19 of this Order, and serving such objection upon
Class Counsel, Defendant’s Counsel, and the Settlement Administrator no later than _______,
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2019. Addresses for Class Counsel, Defendant’s Counsel, and the Settlement Administrator are as
follows:
Class Counsel Myles McGuire Paul T. Geske Timothy P. Kingsbury MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Floor Chicago, IL 60601
Defendant’s Counsel
Joseph C. Gratz DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, California 94111
Settlement Administrator Epiq Systems Class Action and Claims Solutions [ADDRESS]___ _____________
19. Any Settlement Class Member who has not requested exclusion and who intends
to object to the Settlement must state, in writing, all objections and the basis for any such
objection(s), and must also state in writing: (i) his or her full name, address, email address, and
telephone number; (ii) the case name and number of this Litigation; (iii) the name of the
smartphone application that he or she believes is associated with the collection, interception, or
receipt of his or her information by Defendant; (iv) all grounds for the objection, with factual and
legal support for the stated objection, including any supporting materials; (v) the identification of
any other objections he or she has filed, or has had filed on his or her behalf, in any other class
action cases in the last four years; and (vi) the objector’s signature. Objections not filed and served
in accordance with this Order shall not be received or considered by the Court. Any Settlement
Class Member who fails to timely file and serve a written objection in accordance with this Order
shall be deemed to have waived, and shall be forever foreclosed from raising, any objection to the
Settlement, to the fairness, reasonableness, or adequacy of the Settlement, to the payment of
attorneys’ fees, costs, and expenses, to the payment of any Incentive Awards, and to the Final
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Approval Order and the right to appeal the same.
20. A Settlement Class Member who has not requested exclusion from the Settlement
Class and who has properly submitted a written objection in compliance with this Order may
appear at the Final Approval Hearing in person or through counsel to show cause why the proposed
Settlement should not be approved as fair, reasonable, and adequate. Attendance at the hearing is
not necessary; however, persons wishing to be heard orally in opposition to the approval of the
Settlement and/or Class Counsel's Fee and Expense Application and/or the request for Incentive
Awards to the Class Representatives are required to indicate in their written objection their
intention to appear at the Final Approval Hearing on their own behalf or through counsel. For any
Settlement Class Member who files a timely written objection and who indicates his or her
intention to appear at the Final Approval Hearing on their own behalf or through counsel, such
Settlement Class Member must also include in his or her written objection the identity of any
witnesses he or she may call to testify, and all exhibits he or she intends to introduce into evidence
at the Final Approval Hearing, which shall be attached.
21. No Settlement Class Member shall be entitled to be heard, and no objection shall
be considered, unless the requirements set forth in this Order and in the Settlement Agreement are
fully satisfied. Any Settlement Class Member who does not make his or her objection to the
Settlement in the manner provided herein, or who does not also timely provide copies to the
designated counsel of record for the Parties at the addresses set forth herein, shall be deemed to
have waived any such objection by appeal, collateral attack, or otherwise, and shall be bound by
the Settlement Agreement, the releases contained therein, and all aspects of the Final Approval
Order.
22. All papers in support of final approval of the proposed Settlement shall be filed no
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later than fourteen (14) days before the Final Approval Hearing.
23. Pending final determination of the fairness, reasonableness, and adequacy of the
proposed Settlement, no Settlement Class Member may prosecute, initiate, commence, or continue
any lawsuit (individual or class action) with respect to the Released Claims against any of the
Releasees.
24. The Final Approval Hearing shall be held before the Court on _______, 2019 in
Courtroom 2508 of the Circuit Court of Cook County, Richard J. Daley Center, 50 West
Washington Street, Chicago, Illinois 60602 (or at such other time or location as the Court may
without further notice direct) for the following purposes:
a) to finally determine whether the applicable prerequisites for settlement class
action treatment under 735 ILCS 5/2-801 have been met;
b) to finally determine whether the Settlement is fair, reasonable and adequate,
and should be approved by the Court;
c) to determine whether the judgment as provided under the Settlement
Agreement should be entered, including an order prohibiting Settlement Class Members
from further pursuing claims released in the Settlement Agreement;
d) to consider the application for an award of attorneys’ fees, costs and
expenses of Class Counsel;
e) to consider the application for Incentive Awards to the Class
Representatives;
f) to consider the distribution of the Settlement Fund pursuant to the
Settlement Agreement; and
g) to rule upon such other matters as the Court may deem appropriate.
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25. The Final Approval Hearing may be postponed, adjourned, transferred, or
continued by order of the Court without further notice to the Settlement Class. At or following the
Final Approval Hearing, the Court may enter a judgment approving the Settlement Agreement and
a Final Approval Order in accordance with the Settlement Agreement that adjudicates the rights
of all Settlement Class Members.
26. Settlement Class Members do not need to appear at the Final Approval Hearing or
take any other action to indicate their approval.
27. All discovery and other proceedings in the Litigation as between Plaintiffs and
Defendant are stayed and suspended until further order of the Court except such actions as may be
necessary to implement the Settlement Agreement and this Order.
28. For clarity, the deadlines set forth above and in the Settlement Agreement are as
follows:
Notice to be issued by: _________, 2019
Notice to be completed by: _________, 2019
Fee and Expense Application: _________, 2019
Objection Deadline: _________, 2019
Exclusion Request Deadline: _________, 2019
Final Approval Submissions: _________, 2019
Final Approval Hearing: _________, 2019
Claims Deadline: _________, 2019
IT IS SO ORDERED.
ENTERED: _________________ ________________________ Hon. Celia G. Gamrath
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EXHIBIT 5
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CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
CHRISTINE FARAG and JESSICA VASIL, individually and on behalf of a class of similarly situated individuals,
Plaintiffs,
v.
KIIP, INC., a Delaware corporation,
Defendant.
) ) ) ) ) ) ) ) ) ) ) )
Case No. 19-CH-01695 Hon. Celia G. Gamrath
[PROPOSED] FINAL ORDER AND JUDGMENT
This matter having come before the Court for hearing on Plaintiffs’ Unopposed Motion for
Final Approval of Class Action Settlement and Unopposed Motion for Approval of Attorneys’
Fees, Expenses, and Incentive Awards, due and adequate notice having been given to all Parties
and the Settlement Class Members, and the Court being fully advised in the premises,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED:
1. All capitalized terms used in this Final Order and Judgment shall have the meanings
ascribed to them in the Parties’ Settlement Agreement unless stated otherwise.
2. The Court has read and considered the papers filed in support of Plaintiffs’ Motions,
including the Settlement Agreement and exhibits thereto and supporting declarations.
3. This Court has jurisdiction over the subject matter of the Litigation and all claims
raised therein, and has personal jurisdiction over all Parties to the Litigation, including all
Settlement Class Members.
4. The Court preliminarily approved the Parties’ Settlement Agreement in its
Preliminary Approval Order dated ______, 2019. Pursuant to the Preliminary Approval Order and
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the Parties’ plan for providing notice to the Settlement Classes, the Settlement Class Members
were notified of the terms of the proposed Settlement and of a Final Approval Hearing to
determine, inter alia, whether the terms and conditions of the Settlement Agreement are fair,
reasonable, and adequate for the release and dismissal of the Released Claims against the
Releasees.
5. The Court held a Final Approval Hearing on _________, 2019, at which time the
Parties and all other interested persons were afforded the opportunity to be heard in support of and
in opposition to the Settlement. Settlement Class members were notified of their right to appear at
the hearing in support of or in opposition to the proposed Settlement.
6. Based on the papers filed with the Court and presentations made to the Court by
the Parties and other interested persons at the Final Approval Hearing, the Court now grants final
approval of the Settlement and finds that the Settlement Agreement is fair, adequate, reasonable,
and in the best interests of the Settlement Class, taking into account the risks that both sides faced
with respect to the merits of the claims alleged and remedies requested, the risks of maintaining a
class action, and the expense and duration of further litigation, and therefore the Settlement is
approved. The fact that the Settlement Agreement is the result of arms-length negotiations presided
over by a neutral mediator fully supports this finding.
7. Pursuant to 735 ILCS 5/2-801 and 2-802, and solely for purposes of settlement, the
Court finally certifies the following Settlement Class:
All individuals who used a software app integrated with the Kiip advertising platform during the Class Period. 8. For settlement purposes only, the Court confirms the appointment of Plaintiffs
Christine Farag and Jessica Vasil as Class Representatives of the Settlement Class.
9. For settlement purposes only, the Court confirms the appointment of the following
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counsel as Class Counsel:
Myles McGuire Paul T. Geske Timothy Kingsbury McGuire Law, P.C. 55 W. Wacker Drive, 9th Floor Chicago, IL 60601
10. With respect to the Settlement Class, this Court finds, for settlement purposes only,
that: (a) the Settlement Class defined above is so numerous that joinder of all members is
impracticable; (b) there are questions of law or fact common to the Settlement Class, and those
common questions predominate over any questions affecting only individual members; (c) the
Class Representatives and Class Counsel have fairly and adequately protected, and will continue
to fairly and adequately protect, the interests of the Settlement Class Members; and (d) certification
of the Settlement Class is an appropriate method for the fair and efficient adjudication of this
controversy.
11. The Court finds that adequate notice was given to all Settlement Class Members
pursuant to the terms of the Preliminary Approval Order. The Court has further determined that
the Class Notice given to the Settlement Class Members in accordance with the Preliminary
Approval Order fully and accurately informed Settlement Class Members of all material elements
of the Settlement, constituted the best notice practicable under the circumstances, and fully
satisfied the requirements of 735 ILCS 5/2-803, applicable law, and the Due Process Clauses of
the Constitution of the United States and the Illinois Constitution.
12. The Court orders the Parties to the Settlement Agreement to perform their
obligations thereunder. The terms of the Settlement Agreement shall be deemed incorporated
herein as if explicitly stated and shall have the full force of an order of this Court.
13. The Court enters judgment and dismisses the Litigation with prejudice, with each
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Party to bear its own costs (except as otherwise provided herein and in the Settlement Agreement)
as to Plaintiffs’ and all Settlement Class Members’ claims against Defendant. The Court adjudges
that the Released Claims and all of the claims described in the Settlement Agreement are released
against the Releasees.
14. The Court adjudges that Plaintiffs and all Settlement Class Members who have not
opted out of the Settlement Class shall be deemed to have fully, finally, and forever released,
relinquished, and discharged all Released Claims against the Releasees.
15. The Court further adjudges that, upon entry of this Order, the Settlement
Agreement and the above-described release of the Released Claims will be binding on, and have
preclusive effect in, all pending and future lawsuits or other proceedings maintained by or on
behalf of Plaintiffs and all other Settlement Class Members who did not validly and timely opt out
of the Settlement, and their respective affiliates, assigns, heirs, executors, administrators,
successors, agents, and insurers, as set forth in the Settlement Agreement. The Releasees may file
the Settlement Agreement and/or this Final Order and Judgment in any action or proceeding that
may be brought against them 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.
16. Plaintiff and Settlement Class Members who did not validly and timely request
exclusion from the Settlement are permanently barred and enjoined from asserting, commencing,
prosecuting, or continuing any of the Released Claims or any of the claims described in the
Settlement Agreement against any of the Releasees.
17. The Court approves payment of attorneys’ fees, costs and expenses to Class
Counsel in the amount of $__________. This amount shall be paid from the Settlement Fund in
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accordance with the terms of the Settlement Agreement. The Court, having considered the
materials submitted by Class Counsel in support of final approval of the Settlement and their
request for attorneys’ fees, costs, and expenses and in response to any timely filed objections
thereto, finds the award of attorneys’ fees, costs, and expenses appropriate and reasonable for the
following reasons: First, the Court finds that the Settlement provides substantial benefits to the
Settlement Class. Second, the Court finds the payment fair and reasonable in light of the substantial
work performed by Class Counsel. Third, the Court concludes that the Settlement was negotiated
at arms-length without collusion, and that the negotiation of the attorneys’ fees only followed
agreement on the settlement benefits for the Settlement Class Members. Finally, the Court notes
that the Class Notices specifically and clearly advised the Settlement Class Members that Class
Counsel would seek an award in the amount sought.
18. The Court approves payment of Incentive Awards in the amount of $__,000 for the
Class Representatives, Christine Farag and Jessica Vasil, and specifically finds such amount to be
reasonable in light of the services performed by Plaintiff for the Settlement Class, including taking
on the risks of litigation and helping achieve the results to be made available to the Settlement
Class. This amount shall be paid from the Settlement Fund in accordance with the terms of the
Settlement Agreement.
19. The Parties are directed to distribute as cy pres funds in an amount consistent with
735 ILCS 5/2-807. All checks issued to Settlement Class Members remaining un-cashed ninety
(90) days after their issue date to the following cy pres recipient: _____________.
20. Neither this Final Order and Judgment, the Settlement Agreement, nor the payment
of any consideration in connection with the Settlement shall be construed or used as an admission
or concession by or against Defendant or any of the Releasees of any fault, omission, liability, or
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wrongdoing, or of the validity of any of the Released Claims. This Final Order and Judgment is
not a finding as to the validity or invalidity of any claims in this Litigation or a determination of
any wrongdoing by Defendant or any of the Releasees. The final approval of the Settlement
Agreement does not constitute any position, opinion, or determination of this Court as to the merits
of the claims or defenses of the Parties or the Settlement Class Members.
21. Any objections to the Settlement Agreement are overruled and denied in all
respects. The Court finds that no reason exists for delay in entering this Final Order and Judgment.
Accordingly, the Clerk is directed to enter this Final Order and Judgment.
22. The Parties, without further approval from the Court, are permitted to agree to and
adopt such amendments, modifications, and expansions of the Settlement Agreement and its
implementing documents (including all exhibits to the Settlement Agreement) so long as they are
consistent in all material respects with the Final Order and Judgment and do not limit the rights of
the Settlement Class Members.
IT IS SO ORDERED.
ENTERED: _________________ ________________________ Hon. Celia G. Gamrath
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Exhibit B
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Exhibit C
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Notice of Intention to Appear at the Final Approval Hearing for
Case Name: Farag et al. v. Kiip, Inc. Case Number: 2019-CH-01695 [Ill. Cir. Ct. Cook Cnty.] Full name: Daniel Kennedy Brown Address: 1843 S. Racine Ave, 2F, Chicago, IL 60608 Email: [email protected] Phone number: 260.573. 7752 Name of Software Application: Runkeeper
I intend to appear at court on October 18, 2019 at 10:00am and humbly request permission to speak.
I have separately filed a summary of remarks I would like to make and further explain to the court as an objection. In short, the Class Counsel seems fundamentally not to understand the harm done by Kiip, and has thus not advocated effectively for the Class. The Settlement Agreement should not be accepted, and if it is, the Class Counsel should be denied all fees.
Thank you,
\\rr- Vl---,-'\. '.--/
Daniel Brown
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Case Name: Farag et al. v. Kiip, Inc. Case Number: 2019-CH-01695 [111. Cir. Ct. Cook Cnty.] Full name: Daniel Kennedy Brown Address: 1843 S. Racine Ave, 2F, Chicago, IL 60608 Email: dbrown [email protected] Phone number: 260.573.7752 Name of Software Application: Runkeeper
Summary of Objections: 1. The Settlement Agreement should not be accepted by the court. 2. If the Settlement Agreement is accepted by the court, the court should reject Class
Counsel's request for $400,000, as they have been grossly negligent in their duties to represent the Class.
Explanation of objections: As of 2013, there were over 22.5 million users for the Runkeeper application alone, and this was simply one of many applications with which Kiip integrated their software and harvested information unlawfully (a claim which they dispute). If this claim were to be proven, Kiip would likely face far greater monetary damages than $1,000,000. Even if this claim were not proven, Kiip's costs would likely approximate $1,000,000 due to their need to robustly defend themselves.
I would argue that the greatest benefit to all of the potential Class members, given the paltry settlement, is the punitive effect that Kiip must pay for its actions. In other words, if all potential class members could only potentially benefit to the financial tune of far less than $.01, the less direct benefit of companies reconsidering deceptive, intrusive and damaging data collection would be far greater.
Separately, Class Counsel has done the Class no favors with its sub-professional representation. The Honorable John J. Tharp, Jr. clearly elucidated remedies to the original complaint filed by Class Representatives which would have allowed many of the original claims filed by Class Representatives to proceed. Class Counsel should have followed these clear instructions. They have failed to vigorously pursue Class interests, as the direct damage done by Kiip to the Class far exceed the proposed settlement. To understand this, one must consider the way the Internet works and the way the public pays for access to the Internet. Every time data is sent from one party to another, separate HTTP (or HTTPS) requests are made and the data is transmitted. The transmission of this data therefore requires resources (it cannot flow freely upon a separate, already-established connection). In short, every time Kiip surreptitiously and without consent "pulled" data from users phones, it was requiring connections to be made and data to be sent. Very little in life is free, and the creation of these connections and the transmission of this data is no exception. Most cell phone users pay for "data" packages - essentially a license to transmit a given amount of data using their phones over a certain period of time. Going over this data allowance frequently results in fees. Sometimes for "unlimited" data packages, after a prescribed amount of data is used, the speed of transmission is
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"choked", or slowed down. Sometimes, cell phone users transmit data via a separate connection - think of a wireless internet signal that is transmitted by a router in a home or at an office. In these cases, the same pricing applies: data access is either paid for in a block, or data transmission speed is choked after a particular amount of data is used.
The significance of the above is this: mobile users suffered obvious, real and unknownst-to-them damages directly because of Kiip's actions. Data usage is just one example. Another comes in the form of energy costs: the transmission of data takes energy, reducing battery life and leading to earlier-than-would-otherwise-be-needed recharging. Again, somebody needs to pay those costs.
I would urge the Court to reject the Settlement: removing this potential liability from their balance sheets for the wide-ranging harms they knowingly perpetrated would be a coup. It would also serve as a lesson to other companies: do not act ethically from the outset, just settle a quick Class Action as a cost of doing business.
Information about other objections: I have never made an objection to any form of class action lawsuit in the past, let alone in the past 4 years.
Thank you,
t>~ G-----Daniel Brown
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