circuit court of cook county, illinois county department, chancery division for... ·...
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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.
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Case No. 2019-CH-01695
Hon. Celia G. Gamrath
PLAINTIFFS’ UNOPPOSED MOTION & MEMORANDUM IN SUPPORT OF APPROVAL OF ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARDS
Plaintiffs, Christine Farag and Jessica Vasil, by and through their undersigned attorneys,
and pursuant to the Parties’ Settlement Agreement and this Court’s Preliminary Approval Order
dated June 13, 2019, hereby move for an award of attorneys’ fees and expenses for Class Counsel,
as well as incentive awards for Plaintiffs as the Class Representatives in connection with the class
action settlement with Defendant, Kiip, Inc. Defendant does not object to the relief sought herein.
In support of this Motion, Plaintiffs submit the following memorandum of law.
Dated: September 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
Tel: (312) 893-7002
Fax: (312) 275-7895
Attorneys for Plaintiffs and Class Counsel
FILED9/4/2019 11:56 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2019CH01695
6446831
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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TABLE OF AUTHORITIES
Cases
Baksinski v. Northwestern Univ., 231 Ill. App. 3d 7 (1st Dist. 1992) ............................................ 8
Beesley v. Int’l Paper Co., No. 06-cv-703, 2014 U.S. Dist. LEXIS 12037 (S.D. Ill. Jan 31, 2014) ............................. 15, 16
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980)...................................................................... 8, 16
Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235 (1995) ...................................... 9, 10
City of Greenville v. Syngenta Crop Prot., Inc., 904 F. Supp. 2d 902 (S.D. Ill. 2012) ......................................................................................... 17
Craftwood Lumber Co v. Interline Brands, Inc., No. 11–cv–4462, 2015 WL 1399367 (N.D. Ill. March 23, 2015) ............................................ 19
Epstein v. Epstein, 843 F.3d 1147 (7th Cir. 2016) ........................................................................ 13
Fiorito v. Jones, 72 Ill. 2d 73 (1978) .............................................................................................. 8
Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) .......................................................................... 11
GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill. App. 3d 486 (1st Dist. 1992) .......................... 18
Hall v. Cole, 412 U.S. 1 (1973) .................................................................................................... 15
In re Capital One Telephone Consumer Protection Act Litig., 80 F. Supp. 3d 781 (N.D. Ill. 2015) ...................................................................................... 9, 10
In re Cont’l Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) ............................................................. 16
In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001).............................. 13
In re Synthroid Marketing Litig., 264 F.3d 712 (7th Cir. 2001) ................................................... 16
Kaplan v. Houlihan Smith & Co., No. 12 C 5134, 2014 WL 2808801 (N.D. Ill. June 20, 2014) .................................................. 17
Kolinek v. Walgreen Co., 311 F.R.D. 483 (N.D. Ill. 2015) ............................................................ 9
Lewis v. Collective Brands, Inc., No. 13-12702-GAO, 2014 WL 4924413 (D. Mass. Sept. 29, 2014) ........................................ 13
Meyenburg v. Exxon Mobil Corp., No. 3:05-CV-15-DGW, 2006 WL 2191422 (S.D. Ill. July 31, 2006) ...................................... 11
Retsky Family Ltd. P’ship v. Price Waterhouse LLP, No. 97 C 7694, 2001 WL 1568856 (N.D. Ill. Dec. 10, 2001) .................................................. 11
Ryan v. City of Chicago, 274 Ill. App. 3d 913 (1st Dist. 1995) .............................................. 10, 12
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Sawyer v. Stericycle, Inc., No. 2015-CH-07190 (Cir. Ct. Cook Cnty, Ill.) (Martin, Jr., J.) ........... 9 Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011) ............................................... 18
Shaun Fauley, Sabon, Inc. v. Metro. Life Ins. Co., 2016 IL App (2d) 150236 ................... 9, 12, 16
Skelton v. Gen. Motors Corp., 860 F.2d 250 (7th Cir. 1988) ......................................................... 8
Spano v. Boeing Co., No. 06-CV-743-NJR-DGW, 2016 WL 3791123 (S.D. Ill. Mar. 31, 2016) .................... 9, 15, 17
Spicer v. Chi. Bd. Options Exch., Inc., 844 F. Supp. 1226 (N.D. Ill. 1993) ........................... 16, 17
Sutton v. Bernard, 504 F.3d 688 (7th Cir. 2007) ...................................................................... 8, 10
Svagdis v. Alro Steel Corp., 17-CH-12566 (Ill. Cir. Ct. Cook Cnty. 2018) (Larsen, J.) ........................................................ 12
United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) ................................................... 13
Wendling v. S. Ill. Hosp. Servs., 242 Ill. 2d 261 (2011).................................................................. 8
Williams v. Rohm and Haas Pens. Plan, 658 F.3d 629 (7th Cir. 2011) ......................................... 9
Willis v. iHeartMedia Inc., No. 16-CH-02455 (Ill. Cir. Ct. Cook Cnty.) ..................................... 12
Zepeda et al v. Intercontinental Hotels Group, Inc., 18-CH-02140 (Ill. Cir. Ct. Cook Cnty. 2018) (Atkins, J.) ........................................................ 12
Zhirovetskiy v. Zayo Group, LLC, 17-CH-09323 (Ill. Cir. Ct. Cook Cnty. 2019) (Flynn, J.) ......................................................... 12
Statutes
Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. ........................................................... 3
Federal Wiretap Act, 18 U.S.C. § 2510, et seq. ........................................................................ 4, 13
Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq. ......................................................... 3, 11
Treatises
Herbert Newberg & Alba Conte, Newberg on Class Actions § 15.83 (5th ed.) ........................... 11
Manual for Complex Litigation, Fourth, § 21.71 (2004) .............................................................. 15
Other Authorities
Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237 (3d. Cir. 1985) ................................................................................................. 10
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I. INTRODUCTION
This Court preliminarily approved the Parties’ class action Settlement Agreement1 on June
13, 2019, bringing to a close nearly three years of contested litigation.2 In advance of the Final
Approval Hearing scheduled for October 18, 2019, Plaintiffs now move for approval of the agreed-
upon Incentive Awards and an award of attorneys’ fees and expenses for Class Counsel.
To date, the Settlement has been met with overwhelming approval from Settlement Class
Members. Notice to the Settlement Class Members commenced on July 15, 2019, through a
combination of direct notice by email and publication notice through online banner ads and a
settlement website that hosts documents and information about the Settlement. As of this filing,
nearly 24,000 claims have been filed, and there has not been a single opt-out request or
objection to the Settlement received by Class Counsel or the Settlement Administrator.
(Declaration of Paul T. Geske, hereinafter “Geske Decl.,” ¶¶ 21-22).
The Settlement Class Members’ positive response to the Settlement is not unexpected,
because the Class Action Settlement that 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 with
valid compensable claims, with each such Class Member receiving a pro rata share following
subtractions for the costs of notice and administration, court awarded attorneys’ fees and costs,
and the Incentive Awards to Plaintiffs. In addition to the monetary benefit to the Settlement Class
Members, the Settlement also provides significant prospective relief designed to safeguard
1 Unless stated otherwise, capitalized terms that are not defined herein are intend to have the meanings assigned to them in the Parties’ Settlement Agreement, a true and accurate copy of which is attached hereto
as Exhibit A.
2 A true and accurate copy of the Court’s Preliminary Approval Order dated June 13, 2019 is attached hereto as Exhibit B.
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consumers’ privacy by ensuring that their personal information is only transmitted or collected
with their consent.
With this Motion, Plaintiffs request a fee award of $380,000 plus reimbursable litigation
expenses—an amount less than the figure the Parties agreed to in the Settlement Agreement. As
explained in detail below, Plaintiffs’ requested fee award is justified given the exceptional
monetary and non-monetary relief provided under the Settlement, is consistent with Illinois law
and fee awards granted in other class action settlements within the First District, and is reasonable
given the time and costs Class Counsel have committed to resolving this litigation for the benefit
of the Settlement Class Members.
Both Class Counsel and the Class Representatives devoted significant time and effort to
prosecuting the Settlement Class Members’ claims in the face of staunch defenses and significant
challenges. Class Counsel’s efforts have yielded an extraordinary benefit for consumers
nationwide. The requested attorneys’ fees and costs and Incentive Awards are amply justified in
light of the investment, risks, and excellent results obtained for the Settlement Class Members.
Plaintiffs and Class Counsel respectfully request that the Court approve their request for an award
of $380,000, plus $15,015.36 in litigation costs incurred, and the agreed-upon Incentive Awards
of $5,000.00 for each Class Representative.
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.
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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,”3 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
terminated its relationship with Defendant and issued a public apology to users.
Plaintiffs allege that Defendant’s advertising platform and software 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.
Plaintiffs were unaware that Defendant was intercepting and collecting their geolocation
and other personal information while their phones were not in use, and allege that they would never
3 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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have downloaded or used the subject apps had they known Defendant would secretly extract their
information.
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
negotiations, the Parties reached an agreement in principal as to the terms of the Settlement now
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
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the Circuit Court of Cook County, Chancery Division. On February 8, 2019, Plaintiffs re-filed the
matter now before the Court.
C. Class Counsel’s Continuing Efforts Since Preliminary Approval.
Class Counsel has continued to invest significant time and effort in this action following
preliminary approval. (Geske Decl. ¶¶ 19-23). The Parties selected Epiq Systems Class Action and
Claims Solutions (“Epiq”) as Settlement Administrator, and Class Counsel have been actively
involved in supervising and managing all aspects of Epiq’s administration of the notice program
and claims process. (Id.). Class Counsel have regularly communicated with the Settlement
Administrator to ensure a smooth notice process following preliminary approval. (Id.). To that
end, Class Counsel have 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. (Id.). Class Counsel will continue to devote their
time and effort as the claims process continues, as well as appear at the final approval hearing,
respond to ongoing inquiries from Settlement Class Members, and monitor the distribution of
settlement payments by the Settlement Administrator. (Id.).
III. THE SETTLEMENT APPROVED BY THE COURT
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 beteen January 1, 2010 and [June 13, 2019].
(Exh. B at 2).
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B. The Settlement Class Members Will Receive 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 files 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. (Id. ¶
32). The amount of individual payments to Settlement Class Members with valid and compensable
claims will depend on the total number of valid Claim Forms submitted and the number of valid
claims.
To date, there have been more than 23,941 claims submitted. (Geske Decl. ¶ 21). Assuming
that all of these claims are valid and compensable, Class Counsel conservatively estimate that each
claimant will receive an individual payment of approximately $15-$20. (Id.). However, the final
amount of individual payments will likely be higher once the Settlement Administrator reviews
and validates the submitted claims information. In any event, this amount is an exceptional result
given that the claims at issue in this litigation only provide for recovery of pecuniary damages,
which are typically small and difficult to quantify in cases involving purely informational harms.
No part of the Settlement Fund will revert to Defendant. If the disbursements do not exhaust
the Settlement Fund, the remainder of the Settlement Fund shall be paid to a cy pres recipient(s)
designated by the Parties and 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 agreed to
implement practices designed to ensure that its app developer partners will disclose to users that
their information will be transmitted to Defendant, and that such apps will only transmit user
information to Defendant when users are actually using an app and would expect their information
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to be transmitted. (Id. ¶ 34).
D. The Settlement’s Notice Plan Has Succeeded In Notifying The Settlement
Class Members Of The Settlement.
Epiq, as Settlement Administrator, was responsible for effectuating notice of the
Settlement, establishing the settlement website, receiving claim forms submitted by Settlement
Class Members, and determining whether submitted claim information is complete and accurate.
(Id. ¶¶ 25, 33; Geske Decl. ¶ 20).
To reach as many potential Settlement Class Members as possible, Epiq carried out a two-
part notice plan: (i) direct notice by electronic email to all Settlement Class Members for whom
Defendant has an email address, and (ii) publication notice for all Settlement Class Members
whose identities are not readily ascertainable. Epiq also launched a settlement website. (Exh. A ¶¶
42-45). The settlement website is presently active and has received more than 192,600 page hits.
(Geske Decl. ¶ 21). On the settlement website, Settlement Class Members are able to review
relevant case documents and submit claim forms directly to the Settlement Administrator. All
forms of notice and the documents published on the settlement website informed Settlement Class
Members of the amount of the fee award Class Counsel was eligible to seek under the Settlement.
E. The Settlement Class Members’ Response To The Settlement Has Been
Overwhelmingly Positive.
The Settlement Class Members were notified of their opportunity to exclude themselves
from the Settlement or object to the Settlement’s terms. (Exh. A ¶¶ 46-47). Further, the procedures
and deadlines for filing opt-out requests and objections were referenced in all forms of the notice
and on the settlement website. (Id. ¶¶ 48-49). With respect to objections, the notices also informed
Settlement Class Members that they had the right to object in writing and to be heard at a final
approval hearing. (Id.). Although there is a week left in the objection period as of the date of this
filing, to date there have been no opt-outs or objections, (Geske Decl. ¶ 22), demonstrating the
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Settlement Class Members’ universal support of the Settlement.
IV. DISCUSSION
Plaintiffs seek an award of attorneys’ fees for Class Counsel in the amount of $380,000,
which equates to 38% of the Settlement Fund. This request is within the range of fees approved in
other consumer class actions and is fair and reasonable in light of the work performed by Class
Counsel and the recovery secured on behalf of the Settlement Class Members.
A. Plaintiffs’ Requested Fee Award For Class Counsel Is Reasonable And
Appropriate Given The Excellent Result Obtained For The Settlement Class
Members.
i. The Court Should Apply The Percentage-Of-The-Fund Method For
Calculating Class Counsel’s Attorney Fee Award, Because It Is The
Preferred Method In Consumer Class Actions.
It is well settled that attorneys who, by their efforts, create a common fund for the benefit
of a class are entitled to reasonable compensation for their services. See Wendling v. S. Ill. Hosp.
Servs., 242 Ill. 2d 261, 265 (2011) (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980))
(“a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself
or his client is entitled to a reasonable attorney’s fee from the fund as a whole.”). That is, where
“an equitable fund has been created, attorneys for the successful plaintiff may directly petition the
court for the reasonable value of those of their services which benefited the class.” Baksinski v.
Northwestern Univ., 231 Ill. App. 3d 7, 13-14 (1st Dist. 1992) (citing Fiorito v. Jones, 72 Ill. 2d
73 (1978)). This rule “is based on the equitable notion that those who have benefited from
litigation should share in its costs.” Sutton v. Bernard, 504 F.3d 688, 691 (7th Cir. 2007) (citing
Skelton v. Gen. Motors Corp., 860 F.2d 250, 252 (7th Cir. 1988)).
The preferred method for calculating class counsel’s attorney fee award in common fund
cases like this one is the percentage-of-the-fund method. In re Capital One Telephone Consumer
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Protection Act Litig., 80 F. Supp. 3d 781, 794-95 (N.D. Ill. 2015) (holding that the percentage-of-
the-fund method is “the normal practice,” because “such an approach is more efficient for the court
and more likely to yield an accurate approximation of the market rate.”). Under the percentage-of-
the-fund approach, the attorneys’ fees awarded are “based upon a percentage of the amount
recovered on behalf of the plaintiff class.” Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill.
2d 235, 238 (1995).
Although courts also have discretion to calculate class counsel’s fee award based on the
lodestar method, see Shaun Fauley, Sabon, Inc. v. Metro. Life Ins. Co., 2016 IL App (2d) 150236,
¶ 58, the weight of authority supports using the percentage-of-the-fund method for awarding
attorneys’ fees in consumer class actions. Spano v. Boeing Co., No. 06-CV-743-NJR-DGW, 2016
WL 3791123, at *3 (S.D. Ill. Mar. 31, 2016) (“The use of a lodestar cross-check is no longer
recommended in the Seventh Circuit”); Williams v. Rohm and Haas Pens. Plan, 658 F.3d 629, 636
(7th Cir. 2011) (“consideration of a lodestar check is not an issue of required methodology”). Here,
Plaintiffs submit that the Court should apply the percentage-of-the-fund approach—the approach
used in the vast majority of courts presiding over common fund class actions. Capital One, 80 F.
Supp. 3d at 794 (finding that even though “in common fund cases like this one, district courts have
discretion to choose either the lodestar or a percentage approach to calculating fees . . . [T]he court
agrees with Class Counsel that the fee award . . . should be calculated as a percentage of the money
recovered for the class”); Sawyer v. Stericycle, Inc., No. 2015-CH-07190 (Cir. Ct. Cook Cnty, Ill.)
(Martin, Jr., J.) (granting final approval awarding class counsel attorneys’ fees based on
percentage-of-the-fund); Kolinek v. Walgreen Co., 311 F.R.D. 483, 500 (N.D. Ill. 2015) (“[t]he
Court agrees with [plaintiff’s] counsel that the fee award in this case should be calculated based
on a percentage-of-the-fund method”).
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The use of the percentage-of-the-fund approach in common fund class settlements flows
from, and is supported by, the fact that the percentage-of-the-fund approach promotes early
resolution, and it disincentivizes protracted litigation driven solely by counsel’s efforts to increase
their lodestar. Brundidge, 168 Ill. 2d at 242. For this reason, a percentage-of-the-fund method best
aligns the interests of the class and its counsel, as class counsel are encouraged to seek the greatest
amount of relief possible for the class rather than simply expending the greatest possible amount
of attorney time regardless of the ultimate recovery obtained for the class. Indeed, a lodestar
approach encourages significant inefficiencies and further litigation as the parties and the court
have to review extensive billing records and individual time entries. Ryan v. City of Chicago, 274
Ill. App. 3d 913, 924 (1st Dist. 1995) (“Percentage analysis approach eliminates the need for
additional major litigation . . . as a result of plaintiffs’ request for attorneys’ fees . . . nearly half of
the 11,000 page record in this case is devoted to fee litigation.”).
Applying a percentage-of-the-fund approach is also generally more appropriate in cases
like this one because it best reflects the fair market price for the legal services provided by the
class counsel. See Ryan, 274 Ill. App. 3d at 923 (noting that “a percentage fee was the best
determinant of the reasonable value of services rendered by counsel in common fund cases”)
(citing Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237,
255–56 (3d. Cir. 1985)); Sutton, 504 F.3d at 693 (directing district court on remand to consult the
market for legal services so as to arrive at a reasonable percentage of the common fund recovered).4
Here, the percentage-of-the-fund method would most fairly compensate Class Counsel for
the significant time and resources expended in obtaining relief for the Settlement Class Members,
4 The percentage-of-the-fund approach also accurately reflects the contingent nature of the fees negotiated
between Class Counsel and Plaintiff, who agreed ex ante to a contingency fee arrangement. See Capital
One, 80 F. Supp. 3d at 795 (applying the percentage-of-the-fund approach and noting that class members
would typically negotiate fee arrangement based on percentage method rather than lodestar).
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while taking into account the magnitude of the recovery achieved for the Settlement Class
Members and the substantial risk of non-payment in bringing this litigation, particularly in light of
the novelty of Plaintiffs’ claims and the uncertainty in the law surrounding the Illinois
Eavesdropping Statute, 720 ILCS 5/14-1, et seq. Accordingly, the Court should adopt and apply
the percentage-of-the-fund approach here. As explained in more detail below, under this approach,
Class Counsel’s requested attorney fees are reasonable in light of the work performed, the recovery
secured for the Settlement Class Members, and the percentages approved in similar cases.
ii. The requested attorney fees award equates to 38% of the Settlement
Fund—a percentage that is reasonable and within the range approved
in similar cases.
Plaintiffs’ requested fee award is within the range of attorneys’ fee awards that courts,
including numerous judges within the Circuit Court of Cook County, have found reasonable. Both
state and federal courts in Illinois have observed that “[t]he typical contingent fee is between 33
and 40 percent.” Gaskill v. Gordon, 160 F.3d 361, 362 (7th Cir. 1998)); Retsky Family Ltd. P’ship
v. Price Waterhouse LLP, No. 97 C 7694, 2001 WL 1568856, at *4 (N.D. Ill. Dec. 10, 2001)
(noting that a “customary contingency fee” ranges “from 33 1/3% to 40% of the amount
recovered”) (citing Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir. 1986)); Meyenburg v. Exxon
Mobil Corp., No. 3:05-CV-15-DGW, 2006 WL 2191422, at *2 (S.D. Ill. July 31, 2006) (“33 1/3%
to 40% (plus the cost of litigation) is the standard contingent fee percentages in this legal
marketplace for comparable commercial litigation”); see also Herbert Newberg & Alba Conte,
Newberg on Class Actions § 15.83 (5th ed.) (noting that fifty percent of the fund appears to be an
approximate upper limit on fees and expenses).
In novel consumer privacy class actions like this one, it is not uncommon for courts to
award percentage based fees that are even higher than the one Plaintiffs seek here. For example,
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in Willis v. iHeartMedia Inc., this Court recently awarded attorneys’ fees and costs of 40% of an
$8,500,000 common fund in a class settlement. See Willis, No. 16-CH-02455 (Ill. Cir. Ct. Cook
Cnty.), August 11, 2016 Final Judgment and Order of Dismissal, at 5. Willis is just one of many
examples where judges in the Circuit Court of Cook County approved a 40% attorneys’ fee award
based on a percentage-of-the-fund analysis in consumer privacy class action. See, e.g., Zepeda et
al v. Intercontinental Hotels Group, Inc., 18-CH-02140 (Ill. Cir. Ct. Cook Cnty. 2018) (Atkins,
J.); Svagdis v. Alro Steel Corp., 17-CH-12566 (Ill. Cir. Ct. Cook Cnty. 2018) (Larsen, J.);
Zhirovetskiy v. Zayo Group, LLC, 17-CH-09323 (Ill. Cir. Ct. Cook Cnty. 2019) (Flynn, J.).
Accordingly, Plaintiffs’ requested percentage is well-grounded in case precedent. The requested
fee award of $380,000—or 38% of the Settlement Fund—is consistent with the market rate and
well within the range of attorneys’ fees awarded by numerous other Illinois state and federal courts,
including in consumer privacy settlements in the Circuit Court of Cook County.
iii. The requested percentage of attorneys’ fees is warranted given the
significant risks involved in continued litigation.
The attorneys’ fees sought in this case are particularly justified due to the legal challenges
facing Plaintiffs and the risks of continued litigation. See Sabon, Inc., 2016 IL App (2d) 150236,
at ¶ 59 (upholding fee award based on percentage-of-the-fund in light of the “substantial risk in
prosecuting this case under a contingency fee agreement given the vigorous defense of the case
and defenses asserted by [the defendant]”); Ryan, 274 Ill. App. 3d at 924 (noting that the trial
court’s fee award was reasonable given the funds recovered for the class and the contingency risk).
This Settlement was reached at a time when case law was decidedly against the Class
Members’ interests. Specifically, at the time 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
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violations of the federal 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).
Specifically, the federal court found that Plaintiffs had not established a claim for unlawful
interception under the Wiretap Act because Plaintiffs had not alleged that Defendant captured
Plaintiffs’ information contemporaneously when the information was sent—an essential element
of Wiretap Act claims. See, e.g., Epstein v. Epstein, 843 F.3d 1147, 1149-50 (7th Cir. 2016)
(collecting cases); United States v. Szymuszkiewicz, 622 F.3d 701, 705-06 (7th Cir. 2010) (same).
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 constitutes a monetary benefit entitling a plaintiff
to 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”).
Given the existence of unfavorable authority, there was a distinct possibility that the Class
Members would recover nothing absent settlement. Class Counsel therefore undertook significant
risk in proceeding with this litigation. (Geske Decl. ¶¶ 13-15). Although Class Counsel believe in
the ultimate merit of Plaintiffs’ claims, they recognize that Defendant’s liability to Plaintiffs was
far from certain, and Class Counsel agreed to commence this litigation knowing they would
assuredly face significant opposition from a defendant with the financial resources to mount a
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vigorous defense. (Id.). Indeed, shortly after filing their initial appearance, Defendant promptly
moved for dismissal and indicated that they would further challenge Plaintiffs’ claims through
summary judgment and the class certification stage. Had this case not settled, there would have
been significant discovery, and Defendant would have proceeded not only with further motion
practice but also would have vigorously opposed Plaintiffs’ efforts to certify any class.
Had Defendant prevailed either on the merits or in defeating class certification, the
Settlement Class Members would have received nothing. Notwithstanding the many risks of
proceeding and staunch opposition from Defendant, Class Counsel achieved an excellent result for
the Settlement Class Members in obtaining $1,000,000 in monetary relief and the ability to receive
cash compensation for valid claims. Class Counsel were also able to obtain significant prospective
relief to materially alter Defendant’s practices regarding how its app developer partners collect
and share app users’ personal information.
Class Counsel were able to achieve these results solely due to their experience and
extensive efforts in prosecuting this litigation through filing multiple pleadings; fully briefing a
motion to dismiss; engaging in settlement communications; identifying potential Settlement Class
Members; and productively mediating this case and negotiating the final Settlement Agreement.
(Id. ¶¶ 16-17). As such, a settlement providing for a significant cash benefit like the one here is an
exceptional result. Given the challenges and significant efforts needed to secure the Settlement in
this litigation, the attorney’s fee award sought by Class Counsel is reasonable and justified.
iv. The substantial monetary and non-monetary relief obtained on behalf
of the Settlement Class Members further justify the requested
percentage of attorneys’ fees.
Despite the significant risks inherent in any further litigation, Class Counsel were able to
obtain an excellent result for the Settlement Class Members. As stated above, the Settlement
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Agreement provides for the creation of a $1,000,000.00 Settlement Fund, from which Settlement
Class Members can submit claims for a cash payment. Although the Claims Deadline is not for
another week, nearly 24,000 individuals have filed claims and the size of the Settlement Fund
makes it very likely that Settlement Class Members with valid claims will receive substantial
individual payments. (Geske Decl. ¶ 21).
In addition to the monetary compensation that Class Counsel have obtained for the
Settlement Class Members, the Settlement also provides for meaningful prospective relief. Under
the terms of the Settlement Agreement negotiated by Class Counsel, Defendant has agreed to
implement material changes to its business practices to ensure that its app developer partners will
disclose to users that their information will be transmitted to Defendant, and that such apps will
only transmit user information to Defendant when they are using the app and would expect their
information to be transmitted. (Exh. A ¶ 34). These changes are designed to ensure that apps only
collect users’ information after obtaining informed consent from the app users, thus safeguarding
individuals’ privacy rights.
Therefore, the non-monetary relief obtained by Class Counsel in this case further justifies
the reasonableness of the attorneys’ fee being sought here. See Spano, 2016 WL 3791123, at *1
(“A court must also consider the overall benefit to the Class, including non-monetary benefits,
when evaluating the fee request. . . . This is important so as to encourage attorneys to obtain
meaningful affirmative relief”) (citing Beesley v. Int’l Paper Co., No. 06-cv-703, 2014 U.S. Dist.
LEXIS 12037, at *5 (S.D. Ill. Jan 31, 2014)); Manual for Complex Litigation, Fourth, § 21.71, at
337 (2004)); see also Hall v. Cole, 412 U.S. 1, 5 n.7 (1973) (awarding attorneys’ fees when relief
is obtained for the class “must logically extend, not only to litigation that confers a monetary
benefit to others, but also litigation which corrects or prevents an abuse which would be prejudicial
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to the rights and interests of those others.”).
Given the significant monetary compensation obtained for the Settlement Class Members
and the changes in Defendant’s business practices implemented as a result of the Settlement, an
attorneys’ fee award of 38% of the Settlement Fund is reasonable and fair—particularly, as
discussed above, in light of the significant uncertainty in the relevant law, the “substantial risk in
prosecuting this case under a contingency fee agreement,” and the “defenses asserted by
[Defendant].” Sabon, Inc., 2016 IL App (2d) 150236, ¶ 59.
B. Class Counsel Should Also Be Awarded Their Reasonable Litigation Expenses
Incurred In Prosecuting This Litigation.
It is well established that counsel who create a common fund like the one in this case are
entitled to the reimbursement of their litigation costs and expenses. Beesley, 2014 WL 375432, *3
(citing Boeing, 444 U.S. at 478). Courts have held that costs and expenses should be awarded
based on the types of “expenses private clients in large class actions (auctions and otherwise) pay.”
In re Synthroid Marketing Litig., 264 F.3d 712, 722 (7th Cir. 2001); see also Spicer v. Chi. Bd.
Options Exch., Inc., 844 F. Supp. 1226, 1256 (N.D. Ill. 1993) (noting that courts regularly award
reimbursement of those expenses that are reasonable and necessarily incurred in the course of
litigation).
Accordingly, reimbursable expenses include expert fees; travel; long distance and
conference telephone; postage; delivery services; and computerized legal research. See, e.g., In re
Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir. 1992) (“clear error” to deny reimbursement of
Lexis and Westlaw expenses because “the arms’ length market reimburses” such expenses);
Beesley, 2014 WL 375432, *3 (granting reimbursement from common fund for litigation expenses
including “expert witness costs; computerized research; court reports; travel expense; copy, phone
and facsimile expenses and mediation.”); City of Greenville v. Syngenta Crop Prot., Inc., 904 F.
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Supp. 2d 902, 910 (S.D. Ill. 2012) (granting reimbursement of expenses including “experts’ fees,
other consulting fees, deposition expenses, travel, and photocopying costs”).
Here, Class Counsel’s expenses here all fall into the categories outlined above, and were
all reasonably incurred in pursuing this litigation. (Geske Decl. ¶ 18). Class Counsel have
expended $15,015.36 in reimbursable litigation expenses related to filing fees, copying, the
mediator’s fee, and case administration, with the potential of more expenses yet to come. (Id.).
Such expenses are routinely incurred in prosecuting class litigation and regularly awarded. See,
e.g., Kaplan v. Houlihan Smith & Co., No. 12 C 5134, 2014 WL 2808801, at *4 (N.D. Ill. June 20,
2014) (awarding expenses “for which a paying client would reimburse its lawyer”); Spicer, 844 F.
Supp. at 1256 (detailing and awarding expenses incurred during litigation). Class Counsel has
reviewed their expense records carefully and determined that the expenses were necessary to the
successful prosecution of this case. (Geske Decl. ¶ 18). These expenses were necessary to
prosecute litigation of this size and complexity on behalf of the Settlement Classes, and they are
typical of expenses regularly awarded in consumer class actions. Accordingly, Plaintiffs request
that the Court approve as reasonable Class Counsel’s reimbursable litigation expenses—a request
which Defendant does not oppose.
C. The Agreed-Upon Incentive Awards For Plaintiffs Are Reasonable And Are
In Line With Other Incentive Awards Approved By Other Courts.
The requested $5,000 Incentive Awards to Plaintiffs are reasonable and very modest
compared to other incentive awards granted to class representatives in similar consumer class
actions. Because a named plaintiff is essential to any class action, “[i]ncentive awards are justified
when necessary to induce individuals to become named representatives.” Spano, 2016 WL
3791123, at *4 (internal citation omitted) (approving incentive awards of $25,000 and $10,000 for
class representatives); GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill. App. 3d 486, 497 (1st Dist.
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1992) (noting that incentive awards “are not atypical in class action cases . . . and serve to
encourage the filing of class actions suits.”).
Here, Plaintiffs’ efforts and participation in prosecuting this case justify the $5,000
Incentive Awards sought. Even though no award of any sort was promised to Plaintiffs prior to the
commencement of the litigation or at any time thereafter, Plaintiffs nonetheless contributed their
time and effort in pursuing their own claims, as well as by serving as representatives on behalf of
the Settlement Class Members—exhibiting a willingness to participate and undertake the
responsibilities and risks attendant with bringing a representative action. (Geske Decl. ¶¶ 24-28).
Plaintiffs participated in the initial investigation of their claims and provided information
to Class Counsel to aid in preparing the initial pleadings, reviewed the pleadings prior to filing,
consulted with Class Counsel on numerous occasions, and provided feedback on a number of other
filings including, most importantly, the Settlement Agreement. (Id.).
Further, agreeing to serve as the Class Representatives meant that Plaintiffs publicly placed
their names on this suit and opened themselves to “scrutiny and attention” which, in and of itself,
“is certainly worthy of some type of remuneration.” See Schulte v. Fifth Third Bank, 805 F. Supp.
2d 560, 600–01 (N.D. Ill. 2011). Were it not for Plaintiffs’ willingness to bring this action on a
classwide basis, their efforts and contributions to the litigation by assisting Class Counsel with
their investigation and filing of this suit, and their continued participation and monitoring of the
case up through settlement, the substantial benefit to the Settlement Class Members afforded under
the Settlement Agreement would not exist.
The amount of the requested Incentive Awards is also well in line with typical incentive
awards in other, similar class actions. Indeed, numerous courts that have granted final approval in
similar consumer class action settlements have awarded significantly larger incentive awards than
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the one sought here. See, e.g., Craftwood Lumber Co v. Interline Brands, Inc., No. 11–cv–4462,
2015 WL 1399367, at **6-7 (N.D. Ill. March 23, 2015) (awarding $25,000 incentive award);
Satterfield v. Simon & Schuster, No. 06-cv-2893, Dkt. 131, at 4 (awarding incentive awards
totaling $30,000, including a $20,000 award to one of the class representatives); Lozano v.
Twentieth Century Fox Film Corp., No. 09-cv-6344, Dkt. 65, at 5 (awarding $15,000 incentive
award to the plaintiff); Murray et al v. Bill Me Later, Inc., No. 12-cv-04789, Dkt. 78 (awarding
$30,000 incentive awards to both class representatives).
Compensating Plaintiffs for the risks and efforts they undertook to benefit the Settlement
Class Members is reasonable under the circumstances of this case, especially in light of the
exceptional results obtained. As shown above, courts have regularly approved incentive awards in
similar class action litigation consistent with and greater than the agreed-upon $5,000 Incentive
Awards here. Moreover, no Settlement Class Members have raised an objection to the incentive
awards to date. Accordingly, incentive awards of $5,000 to Plaintiffs are reasonable, justified by
Plaintiffs’ time and effort in this case, and should be approved.
V. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court enter an order
approving Plaintiffs’ request for attorney’s fees, expenses, and incentive awards, and granting such
further relief as the Court deems reasonable and just.
Dated: September 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
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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
Attorneys for Plaintiffs and
Class Counsel
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CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on September 4, 2019, a copy of the
foregoing Plaintiffs’ Unopposed Motion & Memorandum in Support of Approval of Attorneys’
Fees, Expenses, and Incentive Awards was served on all 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.
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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Exhibit A
FILED9/4/2019 11:56 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2019CH01695
6446831
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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SETTLEMENT AGREEMENT
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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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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 aputative 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 undulyprotracted and expensive if the proceeding is not settled by voluntary agreement, (4) the magnitudeof the benefits derived from the contemplated settlement in light of both the maximum potentialand likely range of recovery to be obtained through further litigation and the expense thereof, aswell as the potential of no recovery whatsoever, and (5) the Plaintiffs’ determination that thesettlement is fair, reasonable, adequate, and will substantially benefit the Settlement ClassMembers.
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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 SettlementAdministrator, including but not limited to costs in providing notice,communicating with Settlement Class Members, and disbursing payments to theproposed Settlement Class Members.
2. “Admiral” shall mean Admiral Insurance Company.
3. “Approved Claims” shall mean complete and timely claims, submitted bySettlement Class Members, that have been approved for payment by the SettlementAdministrator.
4. “Class,” “Settlement Class,” “Class Member,” or “Settlement Class Member” shallmean each member of the settlement class, as defined in Section III of thisAgreement, 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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6. “Class Period” shall mean the period from and including January 1, 2010 up to andincluding the date of the order granting preliminary approval of the SettlementAgreement.
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 theSettlement Agreement, including without limitation the right to submit a ClaimForm.
9. “Counsel” means both Class Counsel and Kiip’s Counsel, as defined in paragraphs5 and 13.
10. “Court” shall mean the judge appointed to preside over this matter in the CircuitCourt of Cook County, Illinois.
11. “Effective Date” shall mean the date when the Settlement Agreement becomesFinal.
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 hasbeen timely filed; (b) if such an appeal has been filed, it has been finallyresolved 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 ororders approving settlement on the material terms set forth herein, and eitherno further appeal is taken from such order(s) or any such appeal has beenfinally 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, andadequate, was entered into in good faith and without collusion, andapproves and directs consummation of this Agreement;
iii. Dismisses Plaintiffs’ claims pending before it with prejudice andwithout costs, except as explicitly provided for in this Agreement;
iv. Approves the Release provided in Section VII and orders that, as ofthe Effective Date, the Released Claims will be released as toReleasees; and
v. Finds that, pursuant to 735 ILCS 5/2-1301, there is no just reasonfor 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 executedby 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 asprovided 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 theSettlement Agreement.
20. “Claim Form” shall mean the form that Settlement Class Members may submit toobtain compensation under this Settlement.
21. “Released Claims” shall mean any and all claims against Releasees whatsoeverarising out of, related to, or connected with interception, collection, or receipt ofpersonal data that occurred in connection with software apps integrated with Kiip’sadvertising platform during the Class Period.
22. “Releasees” shall refer, jointly and severally, and individually and collectively, toKiip, 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 theiraffiliates.
23. “Releasors” shall refer, jointly and severally, and individually and collectively, toPlaintiffs, 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 XVIof this Agreement.
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25. “Settlement Administrator” means Epiq Systems, Inc., the entity mutually selectedand 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 iscontrolled by Kiip; anyone employed by Class Counsel; any judge to whom thecase is assigned, his or her spouse, and members of the judge’s staff; and anypersons who opt out pursuant to Section X hereof.
28. If for any reason the settlement is not granted preliminary and final approval, Kiip’sagreement 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 otherproceeding.
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 ReleasedClaims and any other claims that have been brought, could have been brought, orcould 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 otherproceeding arising out of, in any manner related to, or connected in any way withthe Released Claims.
V. SETTLEMENT FUND
30. Establishment of Settlement Fund
a. Within thirty (30) days of Preliminary Approval of the SettlementAgreement Admiral shall deposit $125,000.00 in the Settlement Fund forAdministration Expenses. The Settlement Fund account shall be opened andmaintained by Epiq.
b. If Administrative Expenses to be paid before the Effective Date exceed thefunds in the Settlement Fund, Admiral shall deposit such additional fundsas are necessary to pay Administrative Expenses.
c. If the Settlement Agreement is not finally approved, the AdministrationExpenses 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 fundsin the Settlement Fund in an amount such that the total amount disbursedby Admiral for the Settlement Fund, inclusive of all AdministrativeExpenses, totals one million dollars ($1,000,000.00). The Settlement Fundwill be used to satisfy Approved Claims for Settlement Class Members inexchange for a mutual release and covenants set forth in this Agreement,including, without limitation, a full, fair and complete release of allReleasees from Released Claims, and dismissal of the Litigation withprejudice. No portion of the Settlement Fund shall revert or escheat, exceptas 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 Agreementshall be payable solely out of the Settlement Fund.
g. Neither Kiip nor its insurer shall have any obligation to make furtherpayments into the Settlement Fund, and shall have no financialresponsibility or obligation relating to the settlement beyond the SettlementFund.
h. Settlement benefits shall be allocated to the Settlement Class Members viaa claims process set forth in paragraphs 32 and 33.
31. The Court may require changes to the method of allocation to Settlement ClassMembers without invalidating this Settlement Agreement, provided that the othermaterial terms of the Settlement Agreement are not altered, including but notlimited to the scope of the Release as set forth in paragraphs 35-40, the Class Periodas set forth in paragraph 6, and the provisions regarding the Settlement Fund as setforth in Paragraph 30.
32. A Settlement Class Member who timely submits a valid Claim Form shall share inthe Settlement Fund pro rata (less Administrative Expenses, attorneys’ fees andexpenses, and Incentive awards to Plaintiff Class Representatives). Each SettlementClass Member who submits a valid Claim Form shall receive an individual paymentfrom the Settlement Fund in the same amount as each other Settlement ClassMember 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 willrequire the Settlement Class Member to provide his or her full name,mailing address, and contact telephone number. Each claimant must alsoprovide their email address, the name of the application that is associatedwith the allegedly unlawful transmission of their information to Kiip, andthe 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, orother date set by the Court (“Claim Form Deadline”). The Claim Formshall be substantially in the form attached hereto as Exhibit 1.
c. Completed Claim Forms shall be submitted directly to the SettlementAdministrator for processing, assessment, and payment. The Claim Formmay be mailed or electronically transmitted.
d. Any Claim Form that lacks the requisite information will be deemed to beincomplete and ineligible for payment.
e. A Settlement Class Member is not entitled to settlement benefits if he/shesubmits a Claim Form after the Claim Form Deadline; if the Claim Form isincomplete 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 fordetermining if Settlement Class Members’ Claim Forms are complete andtimely, in which case they will be accepted as Approved Claims. However,no Claim Form shall be approved by the Settlement Administrator whichfails to identify use of a software app that, based on the investigation ofPlaintiffs’ counsel, was subject to allegedly unlawful informationtransmission. The Settlement Administrator may thereafter reject or acceptany 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 allApproved Claims.
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h. The funds provided to the Settlement Administrator will be maintained byan escrow agent as a Court-approved Qualified Settlement Fund pursuantto Section 1.468B-1 et seq. of the Treasury Regulations promulgated underSection 468B of the Internal Revenue Code of 1986, as amended, and shallbe deposited in an interest-bearing account.
i. Prompt payment shall be made by the Settlement Administrator onApproved Claims after the Effective Date of the settlement. Checks will bemailed to Settlement Class Members with Approved Claims. TheSettlement Administrator shall use the addresses provided by the SettlementClass Members on the Claim Forms.
j. The Settlement Administrator shall notify the Parties that all ApprovedClaims have been paid within 10 days of the last such payment.
k. In the event that checks sent to Settlement Class Members are not cashedwithin one (1) year of their mailing date, whether because the checks werenot received or otherwise, those checks will become null and void. Theamount of the uncashed checks after the expiration date, less any fundsnecessary for settlement administration, will be paid through cy pres to oneor more recipients selected by the Parties and approved by the Court. TheCourt may revise this cy pres provision as necessary without terminating orotherwise impacting this settlement, provided the Court’s revision does notincrease the amount that Kiip or its insurer would otherwise pay under thisSettlement Agreement.
VI. PROSPECTIVE RELIEF
34. Without admitting any liability or that it is required by law to do so, Kiip agrees toimplement and/or continue the following practices: including notices in its SDKdocumentation indicating
a. that SDK calls are to be made only at times when users have providedpermission and would expect information to be transmitted to Kiip;
b. that SDK users should continue to disclose to consumers that informationwill be transmitted to third parties such as Kiip.
VII. RELEASE
35. In addition to the effect of any final judgment entered in accordance with thisAgreement, upon final approval of this Agreement, and for other valuableconsideration as described herein, Releasees shall be completely released,acquitted, and forever discharged from any and all Released Claims (“ClassRelease”).
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36. As of the Effective Date, and with the approval of the Court, all Releasors herebyfully, finally, and forever release, waive, discharge, surrender, forego, give up,abandon, and cancel any and all Released Claims against Releasees. As of theEffective Date, all Releasors will be forever barred and enjoined from prosecutingany action against the Releasees asserting any and/or all Released Claims.
37. Each Releasor waives California Civil Code Section 1542 and similar provisions inother states. Each Releasor hereby certifies that he, she, or it is aware of and hasread 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, regardlessof the provisions of Section 1542 or any equivalent, similar, or comparable presentor future law or principle of law of any jurisdiction.
39. Each Releasor waives any and all defenses, rights, and benefits that may be derivedfrom 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 theamounts to be paid under this Settlement Agreement to each Settlement ClassMember represent the satisfaction of that Settlement Class Member’s claims for theReleased Claims. No portion of such settlement represents the payment of punitiveor exemplary damages. Nonetheless, in consideration for the satisfaction of eachSettlement Class Member’s claim for compensatory damages, claims for punitiveor exemplary damages shall be released.
VIII. CERTIFICATION OF THE SETTLEMENT CLASS AND RELATEDMOTIONS
41. Plaintiffs shall submit to the Court a motion (the “Motion”): (a) for certification ofthe Settlement Class; and (b) for preliminary approval of the Agreement, andauthorization to disseminate notice of class certification, the Settlement Agreement,and the final judgment contemplated by this Settlement Agreement to all potentialSettlement Class Members. The Motion shall include: (i) the definition of theSettlement Class for settlement purposes as set forth in Section III of thisAgreement; (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, theSettlement Administrator shall establish the Settlement Website and effectuatenotice 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 ClassMembers, based on readily available information already within Kiip’spossession.
b. To the extent practicable and mutually acceptable, the SettlementAdministrator shall provide direct email notice to potential Settlement ClassMembers whose identities are reasonably ascertainable. Direct email noticeshall consist of the form attached hereto as Exhibit 2 (the “Short FormNotice”) 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 onlinepublication notice, including the establishment of a Settlement Website.The Settlement Website shall be established by the SettlementAdministrator and shall contain information about the Settlement, includingelectronic copies of this Agreement as well as the Exhibits, including a longform notice of the Settlement substantially in the form attached hereto asExhibit 3 (the “Long Form Notice”). The URL of the Settlement Websiteshall be www.[site name].com or such other URL as Class Counsel and Kiipmay subsequently agree on in writing.
b. Separately, the Settlement Administrator shall disseminate notice of theSettlement via online “banner” advertisements, in a form and featuringlanguage 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) daysfollowing the Preliminary Approval Order to opt out of the settlement inaccordance with this Section (the “Opt-Out Period”). If the settlement isfinally approved by the Court, all Settlement Class Members who have notopted out by the end of the Opt-Out Period will be bound by the Settlementand the Class Release, and the relief provided by the Settlement will be theirsole and exclusive remedy for the Released Claims, including withoutlimitation the claims alleged by the Settlement Class.
47. Opt-Out Process
a. Any potential Settlement Class Member who wishes to be excluded fromthe settlement must provide a request for exclusion to the SettlementAdministrator, known as an “Opt-Out.”
b. In order to be valid, the Opt-Out must be mailed to the SettlementAdministrator and state the following in writing: (a) the Settlement ClassMember’s name, mailing address, email, telephone number, and the nameof the smartphone application that he or she used and believes is associatedwith the transmission of their information to Kiip; and (b) that theSettlement Class Member wishes to be excluded from the Settlement Class.An Opt-Out must be signed by the Settlement Class Member and must bemailed to the address provided in the Long Form Notice. The Opt-Outrequest must be postmarked within the Opt-Out Period and received withinfive (5) business days after the Opt-Out Period.
c. Within ten (10) business days after the Opt-Out Period, the SettlementAdministrator shall provide Counsel a written list reflecting all timely andvalid Opt-Outs from the Settlement Class.
d. A list reflecting all timely and valid Opt-Outs shall also be filed with theCourt 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 thedate ordered by the Court in the Preliminary Approval Order.
49. The Parties will request that the Court order that any Settlement Class Member whohas any objection to certification of the Settlement Class, to approval of thisSettlement Agreement or any of its terms, or to the approval process, must send hisor her objection to the Settlement Administrator, Class Counsel, and Kiip’s Counselproviding:
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 ofwhich Plaintiffs and Kiip shall agree upon. The dismissal order, motions orstipulation to implement this Section shall, among other things, seek or provide fora dismissal with prejudice and waiving any rights of appeal.
56. The Parties shall jointly submit to the Court a proposed order, substantially in theform 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 directingits consummation according to its terms;
b. Dismisses, with prejudice, all claims of the Settlement Class against Kiip inthe Litigation, without costs and fees except as explicitly provided for inthis Agreement; and
c. Reserves continuing and exclusive jurisdiction over the settlement and thisAgreement, including but not limited to the Litigation, the Settlement Class,the Settlement Class Members, Kiip and the settlement for the purposes ofadministering, consummating, supervising, construing and enforcing theSettlement Agreement and the Settlement Fund.
57. Class Counsel shall use their best efforts to assist Kiip in obtaining dismissal withprejudice of the Litigation and take all steps necessary and appropriate to otherwiseeffectuate all aspects of this Agreement.
XIV. BAR ORDER
58. As part of the Final Approval Order, the Court shall issue a bar order and permanentinjunction against any and all pending or future claims by Settlement ClassMembers against Releasees raising or arising out of a Released Claim.
59. The bar order and permanent injunction shall enjoin and forever bar any and allSettlement Class Members from commencing and/or maintaining any action, legalor 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 orentitlement 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 withoutmaterial change, amendments, or modifications by the Court (except to the extentsuch changes, amendments or modifications are agreed to in writing between theParties). All Exhibits attached hereto are incorporated into this SettlementAgreement. Accordingly, this Settlement Agreement shall be terminated andcancelled, at the option of any Party, upon any of the following events:
a. This Settlement Agreement is changed in any material respect to which theParties 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 theSettlement Class for the Class Period as provided in this Agreement is notentered by the Court or is reversed by a higher court; or
d. Another party to this Settlement Agreement materially breaches theSettlement Agreement and such breach materially frustrates the purposes ofthis Agreement.
62. In the event the Settlement Agreement is not approved or does not become final, oris terminated consistent with this Settlement Agreement, the Parties, pleadings, andproceedings will return to the status quo ante as if no settlement approval had beensought, and the Parties will negotiate in good faith to establish a new schedule forthe Litigation.
XVI. ATTORNEY’S FEES AND INCENTIVE AWARDS
63. Class Counsel shall petition the Court for an award of attorneys’ fees not to exceed40% of the Settlement Fund plus costs and expenses.
64. Kiip agrees not to oppose an application for attorney’s fees by Class Counsel in anamount not more than 40% of the Settlement Fund plus their reasonable costs andexpenses.
65. In no event will Kiip’s or Admiral’s liability for attorney’s fees, expenses, and costsexceed their funding obligations set out in this Agreement. Kiip shall have nofinancial responsibility for this Settlement Agreement outside of the SettlementFund. Kiip shall have no further obligation for attorney’s fees and costs to anycounsel representing or working on behalf of either one or more individualSettlement 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 SettlementAgreement, 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 feespayments to be paid by wire transfer to accounts designated by Plaintiff’s counselseven (7) business days following the Effective Date.
XVII. REPRESENTATIONS
68. The Parties agree that the Settlement Agreement provides fair, equitable and justcompensation, and a fair, equitable, and just process for determining eligibility forcompensation for any given Settlement Class Member related to the ReleasedClaims.
69. The Parties represent that they have obtained the requisite authority to enter thisSettlement 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 FinalApproval Order, including affirmatively supporting the settlement in the event of anappeal.
71. Should the Parties be required to submit any information or documentation to theCourt to obtain preliminary approval, such information shall be, to the fullest extentpermitted, for review by the Court in camera only, to the extent that Plaintiffs and/orKiip request that information to remain confidential and the Court grants any suchrequest.
72. The Parties specifically acknowledge, agree and admit that this SettlementAgreement and its exhibits, along with all related drafts, motions, pleadings,conversations, negotiations, correspondence, orders or other documents shall beconsidered 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 anadmission of the validity of any claim or defense, or the truth of any fact alleged orother 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 ofany Party, or (2) be used to establish a waiver of any defense or right, or to establishor contest jurisdiction or venue.
73. The Parties also agree that this Settlement Agreement and its exhibits, along with allrelated drafts, motions, pleadings, conversations, negotiations, correspondence,orders or other documents entered in furtherance of this Settlement Agreement, andany acts in the performance of this Settlement Agreement are not intended toestablish grounds for certification of any class involving any Settlement ClassMember 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 otherdocuments entered in furtherance of this Settlement Agreement, may be offered orreceived 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 anadversary hearing upon application of a Party hereto, (3) in order to establishpayment, or an affirmative defense of preclusion or bar in a subsequent case, (4) inconnection with any motion to enjoin, stay or dismiss any other action, or (5) toobtain Court approval of the Settlement Agreement.
75. No Party may release any information relating to the Litigation that is not alreadypublicly available. Parties (including their attorneys or agents) may, however,respond to media inquiries regarding the terms of the Settlement Agreement. Ifpreliminary Court approval for the settlement is denied, the Parties and theirattorneys and agents shall not make any negative or disparaging comments to themedia or other third parties regarding the proposed settlement. However, if thesettlement agreement is not preliminarily or finally approved, this provision shallnot prohibit the parties from commenting about the litigation to any third parties.Nothing in this provision shall be interpreted to limit representations that the Partiesor their attorneys may make to the Court to assist it in its evaluation of the proposedSettlement; nor shall this provision prohibit Class Counsel from having attorney-client communications directly with Settlement Class Members, including postingsof the Settlement on Class Counsel’s law firms’ websites; nor shall this provisionprohibit the Parties and their counsel from expressing favorable opinions regardingthe settlement. If a party is required by a valid, enforceable subpoena or governmentinformation request to disclose information about the settlement, such party shallprovide reasonable prior notice (to the extent permitted by applicable law) to theother party to allow the other party to seek to prevent such disclosure. A party mayalso provide necessary and accurate information about the settlement to itsshareholders and other persons or entities as required by securities laws or otherapplicable laws or regulations.
76. This agreement shall be deemed executed as of the date that the last party signatorysigns the agreement. This agreement shall fully supersede any previous agreemententered into by the parties.
XVIII. MISCELLANEOUS
77. No party shall be deemed the drafter of this Agreement or any provision thereof. Nopresumption shall be deemed to exist in favor of or against any party as a result ofthe preparation or negotiation of this Agreement.
78. This Agreement may not be modified or amended unless such modification oramendment is in writing executed by the Parties, except as specifically permitted bythis Agreement. An electronic signature will be considered an original signature forpurposes of execution of this Agreement.
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79. Where this Agreement requires any party to provide notice or any othercommunication or document to any other party, such notice, communication, ordocument shall be provided by email or letter by overnight delivery to their counselin the Litigation.
80. Nothing express or implied in this Agreement is intended or shall be construed toconfer upon or give any person or entity other than the Parties, Releasees, andSettlement Class Members any right or remedy under or by reason of thisAgreement. Each of the Releasees is an intended third-party beneficiary of thisAgreement with respect to the Released Claims and shall have the right and powerto enforce the release of the Released Claims in his, her or its favor against allReleasors.
81. This Agreement may be executed in multiple counterparts, all of which takentogether 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 FloorChicago, IL 60601Counsel 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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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 maybe eligible for a cash payment.
• You can exclude yourself from the Settlement. If you pursue this option, you will not receive any ofthe Settlement benefits described above, but you retain the right to bring your own lawsuit. Yourrequest to exclude yourself must be submitted no later than [date]. You must follow the processdescribed in part 8 below. If the Settlement is approved and you do not exclude yourself, you will bebound 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 objectionsmust 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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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
FILED9/4/2019 11:56 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2019CH01695
6446831
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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