kissmetrics settlement agreement-sept 12 final-klaw

Exhibit 1

Case3:11-cv-03796-LB Document97-2 Filed10/18/12 Page1 of 25

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SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is made and entered into by and between: (1)

John B. Kim and Dan C. Schutzman (collectively, “Named Plaintiffs”), on the one hand; and (2)

Space Pencil Inc., d/b/a KISSmetrics (“KISSmetrics” or “Defendant”), on the other hand.

Named Plaintiffs and Defendant are collectively referred to herein as the “Parties.”

I. RECITALS

WHEREAS, on or about August 1, 2011, Named Plaintiffs filed a class action complaint

for injunctive relief and damages against Defendant and various website operators (“Website

Defendants”) that had used KISSmetrics services, and which complaint was filed on behalf of all

persons in the United States who visited a Website Defendant’s website, alleging that

KISSmetrics and Website Defendants used Covered Technologies (as defined herein) and

Plaintiffs’ and Class Members’ computer resources to assign identifiers to Plaintiffs and Class

Members and retrieve information about their activities on Website Defendants’ websites. The

action was filed in the United States District Court for the Northern District of California,

thereby commencing the civil action entitled Kim, et al v. Space Pencil, Inc., et al, No. 11-cv-

03796-LB (the “Action”). Named Plaintiffs brought claims against KISSmetrics and Website

Defendants for alleged violations of the Electronic Communications Privacy Act, 18 U.S.C. §

2510 et seq.; the California Computer Crime Law, California Penal Code § 502; and California

Business & Professions Code § 17200, et seq. (“Unfair Competition Law”); and a claim for

Trespass to Personal Property/Chattel. Named Plaintiffs filed their First Amended Complaint on

September 7, 2011, asserting claims for Trespass to Personal Property/Chattel, and alleging

violations of the California Computer Crime Law, Unfair Competition Law, and the Computer

Fraud and Abuse Act, 18 U.S.C. § 1030. Named Plaintiffs filed their Second Amended

Complaint on April 2, 2012, asserting the same four claims as in the First Amended Complaint,


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as well as a right to privacy claim under the California Constitution, Article I, § 1, and for

negligence.

WHEREAS, on May 18, 2012, Named Plaintiffs voluntarily dismissed all Website

Defendants, leaving KISSmetrics as the only defendant remaining in the Action.

WHEREAS, KISSmetrics denies all liability with respect to the claims alleged in the

complaints filed by the Named Plaintiffs, and all litigation arising out of or relating to the same

or similar claims.

WHEREAS, Named Plaintiffs believe that their claims have merit and that class

certification of all claims asserted in their Second Amended Complaint referenced above is

appropriate.

WHEREAS, before and during the litigation of the Action and during negotiation of the

Settlement provided for in this Agreement, Settlement Class Counsel conducted a thorough

examination and evaluation of the relevant law and facts (including engaging in substantial

investigation and informal discovery) to assess the merits of the claims to be resolved in this

Settlement and how best to serve the interests of the putative class in the Action. Settlement

Class Counsel and Named Plaintiffs concluded that the proposed Settlement set forth in this

Agreement is fair, adequate, reasonable, and in the best interest of the Settlement Class after

considering the benefits to be obtained under the proposed Settlement, the risks associated with

the continued prosecution of this complex and time-consuming lawsuit, and the likelihood of the

success on the merits of the Action.

WHEREAS, the Parties mediated the claims with Ret. California Supreme Court Justice

Edward A. Panelli on December 19, 2011, and again on February 15, 2012. A settlement was

not concluded at these in-person mediations, but the substantive terms of the Settlement are

substantially the same as those negotiated at the mediation sessions. In the following months,

the parties continued discussing a possible settlement and participated in additional telephonic


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conferences with the focus of those discussions on insurance coverage-related matters. On

August 9, 2012, the Parties reached an agreement to settle all of the claims.

WHEREAS, the Parties, through their respective counsel, wish to enter into a

compromise and effect a Settlement to facilitate execution of the proposed relief, to avoid the

uncertainty and expense of litigation, and to achieve a fair, reasonable, and adequate resolution

of the pending litigation.

WHEREAS, the Parties agree that KISSmetrics is alleged to have acted or refused to act

in a manner that applies generally to the Settlement Class (as defined herein) and the relief

provided for in this Agreement applies generally to that Settlement Class.

NOW THEREFORE, in consideration of the terms, conditions and covenants herein, the

undersigned agree as follows:

II. DEFINITIONS In addition to any definitions set forth above or elsewhere in this Agreement, the

following terms, as used in the Agreement, shall have the meaning set forth below:

1. “Approval” means the order or orders of the Court approving the terms and

conditions of this Agreement.

2. “Approval Hearing” means the hearing in which the Court will determine

whether this Settlement and Agreement should be approved as fair, reasonable, and adequate;

whether the proposed Approval Order and judgment should be entered; and whether Settlement

Class Counsel’s application for attorneys’ fees, costs, and Named Plaintiffs’ Incentive Awards

should be approved.

3. “Approval Order” means the order and judgment of the Court approving the

Settlement in a manner substantially consistent with the terms and intent of this Agreement and

dismissing all claims in the Action with prejudice.


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4. “Attorney Fee/Litigation Cost Award” means the award, if any, made to

Settlement Class Counsel by the Court upon application pursuant to Section V.

5. “Class Period” means March 4, 2011 through the Settlement Date, inclusive.

6. “Court” means the United States District Court for the Northern District of

California.

7. “Covered Technologies” means browser cache, document object model (DOM)

local storage (or HTML5 web storage), Adobe Flash Local Shared Objects (LSOs), or eTags.

8. “Effective Date” means the last date on which all of the following have occurred:

a. The Court has issued all necessary orders approving the Settlement in a

manner substantially consistent with the terms and intent of this Agreement

(“Final Approval Order”);

b. The Court enters a judgment: (i) dismissing all claims in the Action with

prejudice, and (ii) approving settlement of the Action in a manner

substantially consistent with the terms and intent of this Agreement

(“Judgment”); and

c. Either: (i) Thirty (30) days have passed after entry of the judgment or order

approving settlement of the Action in a manner substantially consistent with

the terms and intent of this Agreement and no appeal is taken after the Court’s

judgment and no motion or other pleading has been filed with any Court to set

aside or in any way alter the judgment or orders of the Court finally approving

of the Settlement or toll the time for appeal of such orders; or (ii) all appeals,

reconsideration, rehearing, or other forms of review and potential review of

the Court’s orders and judgment approving the settlement of the Action are


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exhausted, and the Court’s orders and judgment are upheld, without

substantial alteration of the terms of this Agreement. “Released Claims”

means any and all actual or potential claims, actions, causes of action,

liabilities, damages (whether actual, nominal, punitive, exemplary, or

otherwise), injunctive relief, costs, fees, attorneys’ fees, or penalties of any

kind that: (i) arise in whole or in part out of, or relate to, KISSsmetrics’

technology, including but not limited to KISSmetrics’ technologies and

services; or (ii) are, have been, or could have been asserted in the Action.

9. “Released Parties” means Space Pencil Inc., d/b/a KISSmetrics, and all of

KISSmetrics’ current or former customers (including but not limited to all Website Defendants

named in the original Complaint filed in this Action but specifically excluding Hulu) and all of

their corporate parents, affiliates, subsidiaries, predecessors, successors, and assigns, as well as

the officers, directors, attorneys, insurers, vendors, agents (alleged or actual), representatives,

and employees of any such companies or divisions.

10. “Releasing Parties” means the Named Plaintiffs, and all those who claim through

them or who assert Released Claims (or could assert Released Claims) on their behalf, including

their respective heirs, executors, administrators, successors, representatives, attorneys, agents,

partners, assigns, co-obligors, co-guarantors, guarantors, sureties, and bankruptcy trustees on

behalf of their estates or creditors.

11. “Settlement” means the proposed settlement of the Action under the terms and

conditions of this Agreement or as finally approved by the Court Settlement in a manner

substantially consistent with the terms and intent of this Agreement.


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12. “Settlement Class” means all individuals and entities in the United States who

visited a website that used KISSmetrics technologies and/or services and were assigned

identifiers that were created, recognized or retrieved using the Covered Technologies. Excluded

from membership in the Settlement Class are the following: (a) Defendant, the Released Parties,

and their employees, their employees’ immediate family members, and agents; and (b) any judge

to whom the Action is assigned and the judge’s immediate family members.

13. “Settlement Class Counsel” means:

KAMBERLAW, LLC Scott A. Kamber [email protected] David A. Stampley [email protected] 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 202-6364 PARISI & HAVENS LLP David C. Parisi [email protected] Suzanne Havens Beckman [email protected] 15233 Valleyheart Drive Sherman Oaks, California 91403 Telephone: (818) 990-1299 Facsimile: (818) 501-7852 STRANGE & CARPENTER Brian R. Strange [email protected] 12100 Wilshire Blvd., Suite 1900 Los Angeles, California 90025 Telephone: (310) 207-5055 Facsimile: (310) 826-3210


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14. “Settlement Class Member” means a member of the Settlement Class.

15. “Settlement Date” means August 25, 2012.

III. INJUNCTIVE RELIEF

KISSmetrics represents that it does not now use, and agrees that it will not in the future

use the Covered Technologies to “respawn” or repopulate HTTP cookies or as an alternative

method to HTTP cookies for acquiring or storing information about a user’s web browsing

activity and history, without reasonable notice and choice. Notwithstanding the foregoing,

KISSmetrics shall not be restricted from using the Covered Technologies for any purpose and in

any manner that is generally accepted in the online services industry and in compliance with

standards set forth by applicable industry organizations, provided that, in no event, shall Covered

Technologies be used for the purpose of circumventing user privacy and security controls and

settings.

IV. SETTLEMENT PURSUANT TO FED. R. CIV. P. 23(b)(2)

1. The Parties agree to seek Approval for this Agreement pursuant to Federal Rule

of Civil Procedure 23(b)(2) by application to the Court.

2. The Parties agree that final injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole.

3. The Parties further agree, and will submit papers to Court supporting the

conclusion, that notice is not required by the Federal Rules of Civil Procedure in this Rule

23(b)(2) Settlement. This Settlement neither binds nor releases claims for any unrepresented

Settlement Class Members and therefore no notice is required under Rule 23(e) or Rule 23(b)(2).

Therefore, the Parties will propose to the Court that no notice be provided to the Settlement

Class and that Approval may be completed in a single Approval Hearing before the Court.


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4. No release is being provided by any Settlement Class Member except the Named

Plaintiffs who are each signatories of this agreement and who will release and forever discharge

the Released Parties from any and all Released Claims.

5. Named Plaintiffs, acknowledge and agree that they have read and understand the

contents of Section 1542 of the Civil Code of the State of California, and, to the fullest extent

permitted by law, Named Plaintiffs expressly, knowingly, intentionally, and irrevocably waive

any and all rights and benefits that they may have under Section 1542 or any other similar state

or federal statute, or common law or other legal principle. Section 1542 reads as follows:

6. Section 1542. (General Release - Claims Extinguished) 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.

7. The Settlement and all of the commitments and obligations it imposes on the

Parties are contingent on the Approval of the Settlement by the Court in substantially the same

form as proposed, including the notice provision set forth above. Such Approval shall include

the dismissal with prejudice of the Action against the Released Parties. If the Court does not

approve the Settlement, or if a decision of a reviewing court overturning Court Approval of the

Settlement becomes final, then this Settlement Agreement shall be void ab initio, shall have no

force and effect, and shall impose no obligations on the Parties, except that the Settlement and all

settlement discussions between the Parties will remain inadmissible, undiscoverable, and strictly

confidential to the maximum extent permitted by law.


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8. The commitments made by the Parties hereunder are, upon Approval by the Court

and exhaustion of any appeals, enforceable by a Court as a matter of contract. Upon Approval of

the proposed Settlement, the commitments made by KISSmetrics in Section III, above, shall be

deemed be reduced to an injunction, enforceable by the Court or the Named Plaintiffs. The

Court will retain jurisdiction for purposes of enforcement of this Settlement Agreement and all

other Settlement provisions, including Injunctive Relief, approved by the Court.

V. NAMED PLAINTIFFS’ AWARDS

1. Settlement Class Counsel shall petition the Court for, and Defendant shall not

oppose, undermine, or solicit others to oppose or undermine, an Incentive Award to Named

Plaintiffs in an amount of $2,500 to each of the Named Plaintiffs in the Action, in exchange for

the release being provided and in recognition of their efforts on behalf of the Proposed Class.

The Court’s award of any Named Plaintiffs’ Incentive Awards shall be separate from its

determination of whether to approve the Settlement. In the event the Court approves the

Settlement, but declines to award Named Plaintiffs’ Incentive Awards in the amount requested

by Settlement Class Counsel and agreed by the Parties, the Settlement will nevertheless be

binding on the Parties.

2. To the extent awarded by the Court, Defendant shall pay the Named Plaintiffs’

Incentive Awards to the Named Plaintiffs and shall do so within fourteen (14) days of the

Effective Date.

3. Payment by Defendant of the Named Plaintiffs’ Incentive Awards is separate

from, and in addition to, the other relief afforded in this Agreement.


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VI. PAYMENT OF ATTORNEYS’ FEES AND COSTS 1. Subject to entry of the Approval Order and Judgment of the Court, Defendant will

not oppose, undermine, or solicit others to oppose or undermine an Attorney Fee/Litigation Cost

Award in the amount of $510,000.00. Settlement Class Counsel agrees not to seek, and

Defendant shall not be obligated to pay, Settlement Class Counsel’s fees and expenses in excess

of this amount.

2. The payment by Defendant of any of Settlement Class Counsel’s fees and

expenses is separate from and in addition to the other relief afforded in this Agreement. The

Court’s award of any of Settlement Class Counsel’s fees and expenses shall be separate from its

determination of whether to approve the Settlement. In the event the Court approves the

Settlement, but declines to award Settlement Class Counsel’s fees and expenses in the amount

requested by Settlement Class Counsel, the Settlement will nevertheless be binding on the

Parties.

3. Settlement Class Counsel shall be entitled to payment of the fees and expenses

awarded by the Court, excluding the contribution by Kissmetrics set forth below, within

fourteeen (14) days of the Court’s entry of the Final Approval Order and Judgment and Attorney

Fee/Litigation Cost Award, notwithstanding any appeal, subject to adequate security for the

repayment of fees and expenses by Settlement Class Counsel should the Final Approval Order

and Judgment be reversed or materially modified or the Attorney Fee/Litigation Cost Award

reversed or reduced on appeal. Such payment shall be made by wire to an account of

KamberLaw, LLP that shall be designated within 5 days of the Effective Date Within fourteen

(14) days of the execution of this Agreement, KISSmetrics shall deposit the entire amount of its

contribution to the payment into escrow with Gibson Dunn & Crutcher LLP (“Gibson Dunn”) as


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the escrow holder. Gibson Dunn will release the escrowed contribution to KamberLaw, LLP

within 5 days of the Effective Date.

4. The Court shall retain jurisdiction of any dispute regarding any Attorney

Fee/Litigation Cost Award.

VII. NO ADMISSION OF LIABILITY 1. The Parties understand and acknowledge that this Agreement constitutes a

compromise and settlement of disputed claims. No action taken by the Parties, either previously

or in connection with the negotiations or proceedings connected with this Agreement, shall be

deemed or construed to be an admission of the truth or falsity of any claims or defenses

heretofore made or an acknowledgment or admission by any party of any fault, liability or

wrongdoing of any kind whatsoever to any other party.

2. Neither the Agreement nor any act performed or document executed pursuant to

or in furtherance of the Agreement or the Settlement: (a) is or may be deemed to be or may be

used as an admission of, or evidence of, the validity of any claim made by the Settlement Class

Members or Settlement Class Counsel, or of any wrongdoing or liability of the persons or

entities released under this Agreement, or (b) is or may be deemed to be or may be used as an

admission of, or evidence of, any fault or omission of any of the persons or entities released

under this Agreement, in any proceeding in any court, administrative agency, or other tribunal.

3. This Agreement is a settlement document and shall be inadmissible in evidence in

any proceeding, except an action or proceeding to approve, interpret, or enforce this Agreement.

4. To the extent permitted by law, the Agreement may be pleaded as a full and

complete defense to, and may be used as the basis for an injunction against, any action, suit, or


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other proceeding that may be instituted, prosecuted, or attempted against Defendant or in breach

of this Agreement.

VIII. REPRESENTATIONS AND WARRANTIES

1. In addition to the provisions hereof, this Agreement and the Settlement shall be

subject to the ordinary and customary judicial approval procedures under Federal Rule of Civil

Procedure 23. Until and unless this Agreement is dissolved or becomes null and void by its own

terms, or unless otherwise ordered by the Court, or if the Effective Date is not achieved, Named

Plaintiffs, Settlement Class Counsel, and Defendant represent and warrant that they shall take all

appropriate steps in the Action necessary to preserve the jurisdiction of the Court, use their best

efforts to cause the Court to grant Approval of this Agreement as promptly as possible, and take

or join in such other steps as may be necessary to implement this Agreement and to effectuate

the Settlement, and will not attempt to void this Agreement in any way, except as expressly set

forth herein. This includes the obligations (a) to seek Approval of this Agreement and of the

Settlement by the Court; (b) to defend the Agreement and the Settlement before the Court and on

appeal, if any; (c) to join in the entry of such other orders or revisions of orders, as are required

by Defendant, subject to Named Plaintiffs’ consent, not to be unreasonably withheld or delayed;

this also includes (d) not soliciting or encouraging any effort by any person to object to the

Settlement.

2. Named Plaintiffs and Settlement Class Counsel represent and warrant that any

award of attorneys’ fees and litigation costs they may seek upon application to the Court

pursuant to Section V above shall include all attorneys’ fees and litigation costs that Named

Plaintiffs and Settlement Class Counsel seek in connection with the Action.


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3. Named Plaintiffs and Settlement Class Counsel represent and warrant that the

term “Settlement Class Counsel,” as defined in Section II(2) of this Agreement, includes all

persons (natural or legal) having any interest in any Attorney Fee/Litigation Cost Award in

connection with the Action. Named Plaintiffs and Settlement Class Counsel represent and

warrant that any motion or application that they file requesting an award of attorneys’ fees and

litigation costs shall include within its scope all attorneys, law firms, or any other person or

entity whom they believe to have a financial interest in any such award.

4. Named Plaintiffs, Settlement Class Counsel, and Defendant represent and warrant

that they are fully authorized to enter into this Agreement and to carry out the obligations

provided for herein. Each person executing this Agreement on behalf of a Party, entity, or other

person covenants, warrants, and represents that he/she is and has been fully authorized to do so

by that Party, entity, or other person. Named Plaintiffs, Settlement Class Counsel, and

Defendant represent and warrant that they intend to be bound fully by the terms of this

Agreement.

5. If any person, legal or natural, breaches the terms of any of the representations

and warranties in this Section VIII, the Court shall retain jurisdiction over this matter to entertain

action by a Party against such person for breach or any Party’s request for a remedy for such

breach.

6. Counsel for the Defendant and Settlement Class Counsel will work diligently and

cooperatively to obtain a date for Approval that will allow the Settlement to be completed at the

earliest practicable date.


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IX. MISCELLANEOUS PROVISIONS

1. This Agreement is entered into only for purposes of settlement. If the Effective

Date of this Agreement and this Settlement does not occur for any reason, this Agreement and

any orders entered in connection herewith shall become null and void. In that event, the Parties

shall be absolved from all obligations under this Agreement, and this Agreement, any draft

thereof, and any discussion, negotiation, documentation, or other part or aspect of the Parties’

settlement discussions leading up to the execution of this Agreement shall have no effect and

shall not be admissible evidence for any purpose. In addition, the Parties shall revert to their

respective positions prior to settlement, and the agreements contained herein shall be null and

void and shall not be cited or relied upon as an admission to the propriety of class certification or

any other issue, and the Parties shall have all claims and defenses that they had or were asserting

as of the date which the Parties agreed to settle the Action. If the Effective Date does not occur

for any reason, nothing herein is intended or should be construed as an admission sufficient to

estop the Parties from asserting such claims or defenses as were available to them before they

entered into this Agreement.

2. Unless otherwise ordered by the Court, the Parties may jointly agree to reasonable

extensions of time to carry out any of the provisions of this Agreement.

3. This Agreement constitutes a single, integrated written contract expressing the

entire agreement of the Parties relative to the subject matter hereof. No covenants, agreements,

representations, or warranties of any kind whatsoever have been made by any party hereto,

except as provided for herein.

4. The Agreement shall be construed in accordance with, and be governed by, the

laws of California, without regard to the principles thereof regarding choice of law.


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5. As used in this Agreement, the masculine, feminine or neuter gender, and the

singular or plural number, shall each be deemed to include the others wherever the context so

indicates.

6. This Agreement may be executed in any number of counterparts, each of which

shall be deemed an original, but all of which together shall constitute one and the same

instrument, even though all Parties do not sign the same counterparts.

7. The Parties agree to fully cooperate with each other to accomplish the terms of

this Agreement, including but not limited to executing such documents and taking such other

action as may reasonably be necessary to implement the terms of this Agreement. The parties to

this Agreement shall use their best efforts, including all efforts contemplated by this Agreement

and any efforts that become necessary by order of the Court, or otherwise, to effectuate this

Agreement and the terms set forth herein. As soon as practicable after execution of this

Agreement, Settlement Class Counsel and Defendant shall take all necessary steps to assure the

Court’s Approval of this Agreement.

8. Paragraph titles or captions contained herein are inserted as a matter of

convenience and for reference, and in no way define, limit, extend, or describe the scope of this

Agreement or any provision hereof. Each term of this Agreement is contractual and not merely a

recital.

9. The Parties waive the application of any applicable law, regulation, holding, or

any rule of construction providing that ambiguities in an agreement shall be construed against the

party drafting such agreement.

10. Except as otherwise set forth herein, this Agreement may not be changed, altered,

or modified, except in writing and signed by the Parties hereto, and approved by the Court. This


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Agreement may not be discharged except by performance in accordance with its terms or by a

writing signed by the Parties hereto.

11. This Agreement shall be binding upon and inure to the benefit of the Parties

hereto and their respective heirs, trustees, executors, administrators, successors, and assigns.

12. This Agreement is executed voluntarily by each of the Parties without any duress

or undue influences on the part, or on behalf, of any of them. The Parties represent and warrant

to each other that they have read and fully understand the provisions of this Agreement and have

relied on the advice and representation of legal counsel of their own choosing. Each of the

Parties has cooperated in the drafting and preparation of this Agreement and has been advised by

counsel regarding the terms, effects, and consequences of this Agreement. Accordingly, in any

construction to be made of this Agreement, this Agreement shall not be construed as having been

drafted solely by any one or more of the Parties.

13. All correspondence to Settlement Class Counsel shall be sent by email or mail to

(a) Scott A. Kamber or David A. Stampley, KamberLaw LLC, 100 Wall Street, 23rd Floor, New

York, NY 10005, Telephone: (212) 920-3072, Email: [email protected]; or (c) Brian R.

Strange, Strange & Carpenter, 12100 Wilshire Blvd., Suite 1900, Los Angeles, CA 90025,

Telephone (310) 207-5055, Email: [email protected].

14. All correspondence to Defendant shall be sent by email to each of (a) Stephen W.

Cusick, Nielsen Haley & Abbott LLP, 44 Montgomery St. Suite 750, San Francisco, CA 94104,

Telephone: (415) 693-0900, Email: [email protected]; and (b) S. Ashlie Beringer,

Gibson, Dunn & Crutcher LLP, 1881 Page Mill Road, Palo Alto, CA, 94304, Telephone: (650)

849-5300, Email: [email protected].


15. The Court shall retain jurisdiction to resolve any future disputes arising out of the

tenns and conditions of this Settlement and Agreement [There are two retention of jurisdiction

clauses-this will create an ambiguity. Please combine into one.].

IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be

executed on hislher/its behalf by hislher/its duly authorized counsel of record, all as of the day

set forth below.

Dated: _Cj~/---,-( -=-Ce -f-Llf_L.--_ 7 t

Dated: _________ _ Dan C. Schutzman

Dated: _________ _ Space Pencil Inc., d/b/a KlSSmetrics

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15. The Court shall retain jurisdiction to resolve any future disputes arising out of the

tenns and conditions of this Settlement and Agreement [There are two retention of jurisdiction

clauses-this will create an ambiguity. Please combine into one.].


executed on hislher/its behalfby hislher/its duly authorized counsel of record, all as of the day

set forth below.

Dated: --------------------John B. Kim

Dated: '1-13 - Il.. ------

Dated: --------------------Space Pencil Inc., d/b/a KISSmetrics

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15. The COUli shall retain jurisdiction to resolve any future disputes arising out of the

terms and conditions of this Settlement and Agreement [There are two retention of jurisdiction

clauses-tlus will create an ambiguity. Please combine into one.].


executed on his/her/its behalf by hislher/its duly authorized counsel of record, all as of the day

set f01ih below.

Dated: JohnB. Kim

Dated: _________ _ Dan C. Schutzman

Dated: Cj /il / \<-.. Space Pencil Inc., d/b/a KlSSmetrics

17


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Dated: _______________________ KAMBERLAW, LLC ____________________________________ Scott A. Kamber

David A. Stampley

Dated: _______________________ PARISI & HAVENS LLP ____________________________________ David C. Parisi

Suzanne Havens Beckman Azita Moradmand

Dated: _______________________ STRANGE & CARPENTER ____________________________________ Brian R. Strange

Counsel for Plaintiffs and Putative Class


Dated: -------------------

Dated:

Dated: -------------------

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KAMBERLA W, LLC

Scott A. Kamber David A. Stampley

David C. Parisi Suzanne Havens Beckman Azita Moradmand

STRANGE & CARPENTER

Brian R. Strange



Dated: -------------------

Dated: __________________ _

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KAMBERLA W, LLC

Scott A. Kamber David A. Stampley

PARISI & HAVENS LLP

David C. Parisi Suzanne Havens Beckman Azita Moradmand



Dated: j~~zhL 17; J...t;/7 NIELSE I J

Stephen W. Cusick

Counselfor Space Pencil Inc., d/b/a KISSmetrics

Dated: ------------------ GIBSON, DUNN & CRUTCHERLLP

S. Ashlie Beringer

Counsel for Space Pencil Inc., d/b/a KISSmetrics

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Dated: _________ _ NIELSEN HALEY & ABBOTT LLP

Stephen W. Cusick

COllnsel forSpace Pencil Inc., d/b/a KISSmetrics

Dated: -----=qc---.:..t -,--7 _----,-~_L __ GIBSON, DrJN & CRUTCHER LLP ~

~,Jl--S. Ashlie Beringer

COllnsel for Space Pencil Inc., d/b/a KISSmetl'ics

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kissmetrics settlement agreement-sept 12 final-klaw

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