IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Transcription

1 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 1 of 42 Pg ID 479 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ELIZABETH MOELLER and NICOLE BRISSON, individually and on behalf of all others similarly situated, Plaintiffs, Case No. 2:16-cv JEL-EAS [Hon. Judith E. Levy] v. AMERICAN MEDIA, INC., a Delaware corporation, and ODYSSEY MAGAZINE PUBLISHING GROUP, INC., a Delaware corporation, Defendants. PLAINTIFFS MOTION FOR AND BRIEF IN SUPPORT OF ATTORNEYS FEES, EXPENSES, AND INCENTIVE AWARD Respectfully submitted by: Jay Edelson jedelson@edelson.com Rafey S. Balabanian rbalabanian@edelson.com Eve-Lynn Rapp erapp@edelson.com Ari J. Scharg ascharg@edelson.com Benjamin S. Thomassen bthomassen@edelson.com EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654

2 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 2 of 42 Pg ID 480 Tel: Henry M. Scharg hmsattyatlaw@aol.com LAW OFFICE OF HENRY M. SCHARG 718 Ford Building Detroit, Michigan Tel: Fax: Scott A. Bursor scott@bursor.com Joseph I. Marchese jmarchese@bursor.com Philip L. Fraietta pfraietta@bursor.com BURSOR & FISHER, P.A. 888 Seventh Avenue New York, New York Tel: Fax: Counsel for the Plaintiffs and the Settlement Class

3 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 3 of 42 Pg ID 481 PLAINTIFFS MOTION FOR ATTORNEYS FEES, EXPENSES, AND INCENTIVE AWARD Plaintiffs Elizabeth Moeller and Nicole Brisson hereby move the Court to grant their Motion for Attorneys Fees, Expenses, and Incentive Awards. Specifically, Class Counsel respectfully requests that the Court grant $2,660,000 in attorneys fees and expenses and an incentive award of $10,000, divided equally between the Plaintiffs. In accordance with Local Rule 7.1(a), Plaintiffs have ascertained that counsel for Defendants American Media, Inc. and Odyssey Magazine Publishing Group, Inc. will not oppose the relief sought by this Motion. (See Parties Class Action Settlement Agreement 8.1, 8.3.) 1 granted. For the reasons discussed in the accompanying brief, the Motion should be 1 A copy of the Parties Class Action Settlement Agreement is attached hereto as Exhibit A.

4 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 4 of 42 Pg ID 482 PLAINTIFFS BRIEF IN SUPPORT OF MOTION FOR ATTORNEYS FEES, EXPENSES, AND INCENTIVE AWARD STATEMENT OF THE ISSUES PRESENTED 1. Whether this Court should award Class Counsel attorneys fees and expenses in the amount of $2,660,000 35% of the $7,600,000 common fund created for the benefit of the class to compensate them for achieving a substantial benefit for a class of consumers under Michigan s Preservation of Personal Privacy Act, M.C.L , et seq? Plaintiffs Answer: Yes. 2. Whether this Court should award Plaintiffs Elizabeth Moeller and Nicole Brisson an incentive award of $10,000, divided equally between the Plaintiffs, in recognition of their zealous efforts on behalf of the class, which have demanded active involvement in this case for over a year? Plaintiffs Answer: Yes. i

5 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 5 of 42 Pg ID 483 CONTROLLING AND MOST IMPORTANT AUTHORITY UNITED STATES SUPREME COURT CASES: Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) UNITED STATES COURT OF APPEALS CASES: Gascho v. Glob. Fitness Holdings, LLC, No , 2016 WL (6th Cir. May 13, 2016) Hadix v. Johnson, 322 F.3d 895 (6th Cir. 2003) In re Pampers Dry Max Litig., 724 F.3d 713 (6th Cir. 2013) Isabel v. City of Memphis, 404 F.3d 404 (6th Cir. 2005) Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir. 1974) Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513 (6th Cir. 1993) Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. App x 496 (6th Cir. 2011) UNITED STATES DISTRICT COURT CASES: Coulter-Owens v. Rodale, Inc., No. 14-cv (E.D. Mich. Sep. 29, 2016) Halaburda v. Bauer Publ g Co., LP, No. 12-cv (E.D. Mich. 2013) ii

6 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 6 of 42 Pg ID 484 In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003) In re Delphi Corp. Sec., Derivative & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008) In re Rio Hair Naturalizer Prods. Liab. Litig., 1996 WL (E.D. Mich. Dec. 20, 1996) Kinder v. Meredith Corp., No. 13-cv (E.D. Mich. May 18, 2016) Kogan v. AIMCO Fox, L.P., 193 F.R.D. 496 (E.D. Mich. 2000) Shane Grp., Inc. v. BCBS of Mich., 2015 WL (E.D. Mich. Mar. 31, 2015) MISCELLANEOUS: Fed. R. Civ. P. 23 iii

7 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 7 of 42 Pg ID 485 TABLE OF CONTENTS I. INTRODUCTION... 1 II. FACTUAL BACKGROUND AND UNDERLYING LAW... 2 A. Plaintiffs Allegations under the PPPA... 3 B. The Litigation and Work Performed to Benefit the Class... 5 C. The Terms of the Settlement Agreement... 8 III. THE REQUESTED ATTORNEYS FEES ARE REASONABLE AND SHOULD BE APPROVED A. The percentage method should be used to calculate fees B. The reasonableness of the requested fees is supported by this Circuit s six-factor test Class Counsel have secured a valuable benefit for the class Society has a stake in incentivizing the pursuit of complex consumer privacy litigation Class Counsel took the case on a contingent basis, confronting a significant risk of nonpayment The complexity of the litigation supports the requested fees The Parties are both represented by skilled counsel The value of the legal services performed on an hourly basis is reasonable C. The Requested Incentive Awards Reflect Ms. Moeller and Ms. Brisson s Active Involvement in this Action and Should be Approved IV. CONCLUSION iv

8 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 8 of 42 Pg ID 486 United States Supreme Court Cases: TABLE OF AUTHORITIES Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) Hensley v. Eckerhart, 461 U.S. 424 (1983) Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) Spokeo, Inc. v. Robins, 136 S. Ct (2016) Stanley v. Georgia, 394 U.S. 557 (1969)... 3 United States Court of Appeals Cases: Brian A. v. Hattaway, 83 F. App x 692 (6th Cir. 2003) Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996) Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) Coulter-Owens v. Time Inc., 2017 WL , at *6 (6th Cir. June 26, 2017) Gascho v. Glob. Fitness Holdings, LLC, 822 F.3d 269 (6th Cir. 2016)... 9, 12, 13, 16 v

9 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 9 of 42 Pg ID 487 Geier v. Sundquist, 372 F.3d 784 (6th Cir. 2004) Hadix v. Johnson, 322 F.3d 895 (6th Cir. 2003)... 25, 26 In re Pampers Dry Max Litig., 724 F.3d 713 (6th Cir. 2013) Isabel v. City of Memphis, 404 F.3d 404 (6th Cir. 2005) Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672 (7th Cir. 2003) Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir. 1974) Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513 (6th Cir. 1993)... 9 Van Horn v. Nationwide Property & Cas. Ins. Co., 436 F. App x 496 (6th Cir. 2011)... 23, 24 United States District Court Cases: Appoloni v. United States, 218 F.R.D. 556 (W.D. Mich. 2003) Connectivity Sys. Inc. v. Nat l City Bank, 2011 WL (S.D. Ohio Jan. 26, 2011) vi

10 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 10 of 42 Pg ID 488 Coulter-Owens v. Rodale, Inc., No. 14-cv (E.D. Mich. Sep. 29, 2016)... 10, 12, 13 Dick v. Sprint Commc ns Co., L.P., 297 F.R.D. 283 (W.D. Ky. 2014) Ebin v. Kangadis Food, Inc., 297 F.R.D. 561 (S.D.N.Y. Feb. 25, 2014) Fournier v. PFS Invs., Inc., 997 F. Supp. 828 (E.D. Mich. 1998) Halaburda v. Bauer Publ g Co., LP, No. 12-cv-12381, 2013 WL (E.D. Mich. 2015)... passim Harris v. comscore, Inc., No. 11-cv (N.D. Ill. 2014) In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003)... passim In re CMS Energy ERISA Litig., 2006 WL (E.D. Mich. June 27, 2006) In re Delphi Corp. Securities, Derivative & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008)... 9, 12, 21 In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) In re Facebook Privacy Litig., No. 10-cv (N.D. Cal. 2010) In re Google Buzz Privacy Litig., No. C JW, 2011 WL (N.D. Cal. June 2, 2011) In re Michaels Stores Pin Pad Litig., No. 11-cv (N.D. Ill. June 8, 2011) vii

11 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 11 of 42 Pg ID 489 In re Netflix Privacy Litig., 2013 WL (N.D. Cal. Mar. 18, 2013) In re Netflix Privacy Litig., No. 11-cv (N.D. Cal. Aug. 12, 2011) In re Rio Hair Naturalizer Prods. Liab. Litig., No. MDL 1055, 1996 WL (E.D. Mich. Dec. 20, 1996)... 17, 18, 20 In Re Se. Milk Antitrust Litig., 2013 WL (E.D. Tenn. May 17, 2013) In re S. Ohio Corr. Facility, 173 F.R.D. 205 (S.D. Ohio 1997), rev d on other grounds, 24 F App x 520 (6th Cir. 2001) Kelly v. Corrigan, 890 F. Supp. 2d 778 (E.D. Mich. 2012) Kinder v. Meredith Corp., No. 13-cv (E.D. Mich. 2016)... passim Kogan v. AIMCO Fox Chase L.P., 193 F.R.D. 496 (E.D. Mich. 2000)... 18, 23 Lasalle Town Houses Coop. Assoc. v. City of Detroit, No. 4:12-cv-13747, 2016 WL (E.D. Mich. Mar. 29, 2016) Leonhardt v. ArvinMeritor, Inc., 581 F. Supp. 2d 818, 836 (E.D. Mich. 2008) Shane Grp., Inc. v. BCBS of Mich., 2015 WL (E.D. Mich. Mar. 31, 2015)... 11, 26, 27 Stanley v. U.S. Steel Co., 2009 WL (E.D. Mich. Dec. 8, 2009)... 9, 18 Wise v. Popoff, 385 F. Supp. 977 (E.D. Mich. 1993) viii

12 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 12 of 42 Pg ID 490 State Court Cases Beaumont v. Brown, 257 N.W. 2d 522 (Mich. 1977)... 3 Bradley v. Saranac Cmty. Sch. Bd. Of Educ., 565 N.W. 2d 650 (Mich. 1997)... 3 Hawley v. Prof l Credit Bureau, Inc., 76 N.W. 2d 835 (Mich. 1956)... 3 Other Authorities: 2016 Mich. Pub. Acts Fed. R. Civ. P , 8, 9 George D. Hornstein, Legal Therapeutics: The Salvage Factor in Counsel Fee Awards, 69 Harv. L. Rev. 658 (1956) 5331 (Jan. 20, 1989) M.C.L , et seq.... 1, 3, 4, 16 Privacy: Sales, Rentals of Videos, etc., House Legislative Analysis Section, H.B (Jan. 20, 1989)... 3 ix

13 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 13 of 42 Pg ID 491 I. INTRODUCTION The class action settlement between Plaintiffs Elizabeth Moeller and Nicole Brisson (the Plaintiffs ) and Defendants American Media, Inc. ( AMI ) and Odyssey Magazine Publishing Group, Inc. ( Odyssey, together, Defendants ), which, if finally approved, resolves Plaintiffs and the Class s claims against Defendants under Michigan s Preservation of Personal Privacy Act ( PPPA ), M.C.L , is the fourth and strongest yet to be reached. The settlement preliminarily approved by this Court on June 8, 2017 creates a $7.6 million non-reversionary common fund from which class members will receive pro rata cash payments estimated to be around $100. Both the overall dollar amount and, more importantly, the per class member recovery, exceed each of the three previous PPPA settlements with other magazine publishers and dwarfs the recovery typically obtained in a statutory privacy class action. Equally important, the Settlement also puts an end to Defendants practice of disclosing their customers personal reading information to third parties. While resolution was achieved in a relatively short period of time, obtaining this exceptional relief did not come easily. Rather, Plaintiffs battled through more than a year of hard-fought litigation, which involved complex factual investigation into the Defendants disclosure practices, case-dispositive motion practice on issues then pending in the Sixth Circuit, and discovery. When the Parties thought 1

14 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 14 of 42 Pg ID 492 that there was a potential for resolution, they sought the assistance of the wellrespected formal federal judge now at JAMS. And, while they ultimately achieved a settlement, it was only after the first mediation session failed, and the Parties returned to litigation. After several additional months of further negotiations, they finally reached a deal. In light of this exceptional result, Plaintiffs respectfully request pursuant to Federal Rule of Civil Procedure 23(e) that the Court approve attorneys fees and expenses of 35% of the settlement fund, or $2,660,000, as well as an incentive award of $5,000 for each Plaintiff for their service as class representatives. Even though this settlement is more favorable to the class, the requested fee is the same percentage as was approved by Judge Ludington in Kinder v. Meredith Corp., No. 13-cv-11284, dkt. 81 (E.D. Mich. 2016). In addition, the requested incentive award is equal to that approved in Kinder, but will be split between the two representative Plaintiffs. For these reasons, and as explained further below, this Court should approve the requested fee and incentive award. II. FACTUAL BACKGROUND AND UNDERLYING LAW A brief summary of the PPPA, the litigation performed by Class Counsel for the Settlement Class s benefit, and the beneficial terms of the settlement itself 2

15 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 15 of 42 Pg ID 493 provide necessary context to the reasonableness of the requested fees and incentive award. A. Plaintiffs Allegations under the PPPA. Michigan was one of the first jurisdictions to acknowledge the concept of [a] right to privacy. Beaumont v. Brown, 257 N.W.2d 522, 526 (Mich. 1977), overruled on other grounds by Bradley v. Saranac Cmty. Sch. Bd. of Educ., 565 N.W.2d 650 (Mich. 1997). This right protects against the unreasonable and serious interference with [a citizen s] interest in not having his affairs known to others. Hawley v. Prof l Credit Bureau, Inc., 76 N.W.2d 835, 841 (Mich. 1956) (Smith, J. dissenting). The PPPA follows this tradition and prohibits retailers, publishers, and other entities engaged in the business of selling written materials at retail from disclosing records or information concerning the purchase... of those materials by a customer that indicates the identity of the customer. M.C.L The legislature recognized that a person s choice in reading materials is nobody s business but one s own, and passed the statute to explicitly protect a consumer s privacy in buying and borrowing such materials. Privacy: Sales, Rentals of Videos, etc., House Legislative Analysis Section, H.B. 5331, Jan. 20, At its core, the PPPA protects Plaintiffs right to read or observe what [they] please the right to satisfy [their] intellectual and emotional needs in the privacy of [their] own home. Stanley v. Georgia, 394 U.S. 557, 565 (1969). Given 3

16 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 16 of 42 Pg ID 494 the importance of reader privacy, the version of the PPPA at issue here, dkt. 23, provides for statutory damages. M.C.L Defendants AMI and Odyssey publish some of the most widely circulated magazines in the United States, such as the National Inquirer, the Globe, OK!, and Men s Fitness. (See Plaintiffs Class Action Complaint, Dkt. 1 [ Compl. ], 1.) Plaintiffs allege that Defendants supplement their sales and advertising revenues by selling information related to their customers magazine subscription histories and personal reading habits. (Id. 2, 24, 26 27, 62 64, 72). But they don t just sell lists of names that subscribe to certain magazines. Rather, to increase the value of such information, Plaintiffs allege that Defendants trade their customers protected reading information with certain data miners and other third parties in exchange for other demographic and lifestyle data that such companies have already gathered (or mined ) on each subscriber. (Id. 2, 21, 24, 27, 35 36, ) Defendants thereafter enhance their own customer profiles with this additional data (e.g., their income levels, religion, ages, race, political affiliations, travel habits, medical conditions, etc.), and then sell the enhanced information to other unrelated third parties for a massive profit. (Id. 2, 21, 27, 38, 48, 66, 72.) Plaintiffs further allege that no matter how they subscribe, customers never provide consent to disclose information to third parties related to their magazine subscriptions. (Id. 3, 28, 33 36, 43 46, 68, 69.) This is because Plaintiffs 4

17 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 17 of 42 Pg ID 495 allege that during the subscription process customers are never presented with or required to consent to any terms or policies informing them of Defendants information disclosure practices. (Id.) Likewise, even after subscribing, Plaintiffs allege that Defendants fail to notify customers that they will disclose any information to third parties, let alone their protected reading information. (Id. 3, 28, 33 36, 43 46, 68, 69.) Nonetheless, Plaintiffs claim Defendants are in the business of disclosing all of their customers protected reading information to various third parties without any consent. (Id. 2, 3, 27.) B. The Litigation and Work Performed to Benefit the Class. In June 2015, Class Counsel began what would be an eight-month pre-suit investigation into Defendants alleged data-sharing practices. (Declaration of Joseph I. Marchese 2, attached as Exhibit C.) While that investigation was ongoing, the Michigan legislature voted to amend the PPPA and Spokeo v. Robins a case regarding Article III standing in statutory cases was then pending before the Supreme Court. Id Knowing both of these events would impact the litigation, Plaintiffs filed their class action lawsuit on April 14, 2016, dkt. 1, and Defendants have vigorously defended themselves from the outset, seizing on both issues. On May 16, 2016, the Supreme Court issued its opinion in Spokeo and on June 13, 2016, Defendants argued that Spokeo stripped Plaintiffs of standing under 5

18 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 18 of 42 Pg ID 496 Article III and that the recent amendments to the PPPA applied retroactively to end this case. (Dkt. 8.) Plaintiffs opposed that motion on July 5, (Dkt. 21.) After Plaintiffs filed their opposition, but before Defendants replied in support of their motion to dismiss, the Parties decided to explore the potential of an early resolution of the matter. (Declaration of Rafey S. Balabanian, 3, attached as Exhibit B; Marchese Decl ) To that end, they sought and received a stay of the Court s ruling on the pending motion to dismiss. (See Dkts ) In the meantime, the Parties agreed to engage in private mediation with the Honorable Wayne R. Andersen (ret.). (See Balabanian Decl. 4; Marchese Decl. 12.) In preparation for the mediation, Class Counsel prepared a detailed mediation statement detailing the strength of the Plaintiffs case and proposals for resolution. (Marchese Decl. 11.) Counsel for the Parties met at JAMS in Chicago on October 6, (Balabanian Decl. 4; Marchese Decl. 12.) Despite a full day of mediation, which included numerous rounds of arm s-length negotiations, the Parties were unable to make any real progress toward a resolution. (Id.) Further, at the conclusion of the mediation, Judge Andersen made a mediator s proposal to settle the case for a certain dollar amount, which was not accepted. (Id.) Having failed to reach a settlement or even make much progress, the Parties returned to litigation. 6

19 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 19 of 42 Pg ID 497 Defendants filed their reply in support of their Motion to Dismiss and then, on January 27, 2017, after full briefing, the Court denied Defendants Motion to Dismiss in its entirety. (Dkt. 23.) Defendants then Answered on February 9, 2017, denying the substantive allegations and raising seventeen (17) affirmative defenses. (Dkt. 24.) On March 9, 2017, the Parties filed a Joint Case Management Statement, which outlined the extensive discovery and legal issues ahead. (Dkt. 25.) The Court accepted the proposed case management schedule and the Parties embarked on discovery, with Plaintiffs propounding their first sets of interrogatories and document requests. (Marchese Decl. 12.) As litigation continued, however, the Parties kept-up their dialogue regarding settlement, and decided to re-engage Judge Andersen to see if the decision on the Motion to Dismiss and the fact that similar issues were then pending in the Sixth Circuit would impact the Parties settlement positions. (Id. 15.) Turns out it did. Over the course of several weeks, Judge Andersen separately caucused with the Parties at least a dozen times (including on nights and weekends) and eventually succeeded in getting both sides to narrow their negotiating positions such that he was able to make another mediator s proposal. (Balabanian Decl. 7; Marchese Decl. 15.) That second mediator s proposal was ultimately accepted by all Parties on March 28, (Id.) The Parties then 7

20 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 20 of 42 Pg ID 498 diligently prepared and executed a written settlement agreement. The Court granted preliminary approval to that Settlement on June 8, (Dkt. 34.) C. The Terms of the Settlement Agreement. Class Counsel s effort resulted in the largest settlement in terms of both total sum and anticipated $100 per member relief ever achieved under the PPPA. (Balabanian Decl. 9; Marchese Decl. 16.) The Settlement provides an exceptional result for the class, delivering both immediate cash and significant prospective relief to approximately 415,000 magazine subscribers in Michigan. (Id.) The Settlement creates a non-reversionary $7,600,000 settlement fund, (Agreement 1.32), from which class members will receive a pro rata cash payment. (Id. 2.1.) The Settlement also achieves one the primary purposes of the lawsuit: prohibiting Defendant from disclosing its Michigan customers subscription information to any third-party companies for marketing purposes, without first obtaining prior express written consent. (Id. 2.2.) As further explained in detail below, the requested attorneys fees and incentive awards are reasonable. III. THE REQUESTED ATTORNEYS FEES ARE REASONABLE AND SHOULD BE APPROVED. The requested fee award of $2,660,000, representing 35% of the common fund, is reasonable and merits approval. Under Federal Rule of Civil Procedure 23(h), courts may award reasonable attorney s fees and nontaxable costs that are 8

21 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 21 of 42 Pg ID 499 authorized by law or by the parties agreement. 2 Fed. R. Civ. P. 23(h); Stanley v. U.S. Steel Co., 2009 WL , at *1 (E.D. Mich. Dec. 8, 2009). Here, the Class Action Settlement Agreement between the parties provides that Class Counsel may petition the Court for an award up to 35% of the Settlement Fund. (Class Action Settlement Agreement 8.1). In common-fund cases such as this one, courts in the Sixth Circuit apply one of two fee calculation methods percentage-of-the-fund or lodestar and the fees need only be reasonable under the circumstances. Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, (6th Cir. 1993). While the Court has discretion in deciding whether to apply the percentage-of-the-fund calculation or the lodestar method, Gascho v. Glob. Fitness Holdings, LLC, 822 F.3d 269, 280 (6th Cir. 2016), whichever method it ultimately selects must be justified by a clear statement of the reasoning used in adopting a particular methodology and the factors considered in arriving at that fee, keeping the unique circumstances of each case in mind. Id. (quoting Rawlings, 9 F.3d at 516). 2 The requested fee award also encompasses unreimbursed litigation expenses. (Agreement 8.1.) Reasonable litigation-related expenses are customarily awarded in common-fund cases and include costs such as document preparation and travel. In re Delphi Corp. Securities, Derivative & ERISA Litig., 248 F.R.D. 483, 504 (E.D. Mich. 2008) (citations omitted). Thus, included in the requested fee award, Class Counsel respectfully seeks reimbursement of $15, for out-of-pocket expenses in these standard categories. (See Balabanian Decl. 16; Marchese Decl. 23.) 9

22 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 22 of 42 Pg ID 500 A. The percentage method should be used to calculate fees. Despite the ability to select a fee computation method, there is a preference for using the percentage-of-the-fund method in common fund cases such as this. See, e.g., In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 532 (E.D. Mich. 2003) ( This Court s decision to apply the percentage-of-the-fund method is consistent with the majority trend. ); Fournier v. PFS Invs., Inc., 997 F. Supp. 828, (E.D. Mich. 1998) ( [M]any courts have strayed from using lodestar in common fund cases and moved towards the percentage of the fund method which allows for a more accurate approximation of a reasonable award for fees. ); Wise v. Popoff, 835 F. Supp. 977, 980 (E.D. Mich. 1993) (same). Indeed, the percentage method has been used to calculate fees for three other major PPPA class action settlements in this district. Halaburda v. Bauer Publ g Co., LP, No. 12-cv-12831, dkt. 68 (E.D. Mich. 2015); Kinder v. Meredith Corp., No. 13-cv-11284, dkt. 81 (E.D. Mich. 2016); Coulter-Owens v. Rodale, Inc., No. 14-cv-12688, dkt. 54 (E.D. Mich. Sep. 29, 2016). 3 In contrast, the lodestar approach is most often applied in federal fee-shifting cases, particularly civil rights actions. See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010); see also Kelly v. Corrigan, 890 F. Supp. 2d 778, 787 (E.D. Mich. 2012). 3 Despite the district court s dicta regarding hourly rates in Rodale, it ultimately followed the weight of authority to grant fees based on a percentage of the settlement fund and used the hourly rates and summaries provided as part of a lodestar cross-check. 10

23 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 23 of 42 Pg ID 501 B. The reasonableness of the requested fees is supported by this Circuit s six-factor test. The Sixth Circuit has articulated six factors that should be considered when determining the reasonableness of a requested percentage to award as attorneys fees: (1) the value of the benefit to the class; (2) society s stake in rewarding attorneys who produce the settlement s benefits, to maintain an incentive to others; (3) whether the work was performed on a contingent fee basis; (4) the complexity of the litigation; (5) the skill and standing of counsel on both sides; and (6) the value of the legal services performed on an hourly basis. Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974); Bowling, 102 F.3d at 780; In re Cardizem, 218 F.R.D. at 533. A reasonable fee in common-fund cases typically ranges from 20 to 50 percent. Shane Grp., Inc. v. BCBS of Mich., 2015 WL , at *15 (E.D. Mich. Mar. 31, 2015); In re S. Ohio Corr. Facility, 173 F.R.D. 205, 217 (S.D.Ohio 1997), rev'd on other grounds, 24 F. App'x 520 (6th Cir. 2001) ( [t]ypically, the percentage awarded ranges from 20 to 50 percent of the common fund ); see also Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 677 (7th Cir. 2003) (Posner, J.) (referring to the usual percent contingent fee charged by plaintiff s lawyers). The percentages awarded in the three other PPPA cases that have settled have ranged from the 35% requested here, Kinder, No. 13-cv-11284, dkt. 81, to 30% awarded in Halaburda, No. 12-cv-12381, dkt. 68, to a low of 25% in Coulter- 11

24 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 24 of 42 Pg ID 502 Owens v. Rodale, Inc., No. 14-cv-12688, dkt. 54. The amount awarded is calculated as percentage from the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Gascho, 822 F.3d at 282 (calculating the percentage, as [a]ttorney s fees are the numerator and the dollar amount of the Total Benefit to the class (including the benefit to class members, attorney s fees, and [potentially] the costs of administration) is the denominator). In this case, the relevant factors compel the conclusion that the requested 35% fee award is reasonable in light of the exceptional result obtained. 1. Class Counsel have secured a valuable benefit for the class. The value of the benefit to the class is the most important factor in assessing the reasonableness of fees. Dick v. Sprint Commc ns Co. L.P., 297 F.R.D. 283, 299 (W.D. Ky. 2014) (citation omitted); In re Delphi, 248 F.R.D. at 503 (describing result achieved as primary factor ). Assessing the overall value includes consideration of both tangible and intangible benefits. See Gascho, 822 F.3d at 282 (requiring appropriate consideration of cash and noncash settlement components in assessing the total benefits to the class). The risk of continued litigation can also be considered in relation to the value of the benefit to the class under this factor. Dick, 297 F.R.D. at 299. The Settlement here creates a larger settlement fund for fewer class members resulting in higher per class member recovery than the three other PPPA 12

25 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 25 of 42 Pg ID 503 settlements out there. Specifically, the Settlement creates a $7.6 million settlement fund for the benefit of 415,000 potential class members who, based on anticipated claims rates, 4 should expect to recover approximately $100 per person. This is a 26% to 64% greater individual recovery than the other PPPA settlements. See Halaburda, No. 12-cv-12831, dkt. 68 (securing a $775,000 fund for a class of 40,000 subscribers with claiming class members getting an estimated $74 pro rata payment); Coulter-Owens v. Rodale, No. 14-cv dkt. 54 (securing a $4.5 million fund for a class of approximately 580,000 subscribers with claiming class members getting an estimated $44 pro rata payment); Kinder, No. 13-cv dkt. 81(securing a $7.5 million fund for a class of approximately 980,000 subscribers with claiming class members getting an estimated $50 pro rata payment). And when compared to the typical privacy class action settlement, the anticipated $100 pro rata payments are truly remarkable especially considering these cases often have enormous class sizes yet only receive cy pres relief with no individual payments to class members. See, e.g., Lane v. Facebook, Inc., 696 F.3d 4 The anticipated $100 per class member award is based on slightly more than 10% of the class filing claims, consistent with the prior three PPPA settlements. This is at the high end of the normal rate of claims for a consumer class action. See Gascho, 822 F.3d at 290 (crediting expert testimony that response rates in class actions generally range from 1 to 12 percent, with a median response rate of 5 to 8 percent. ) 13

26 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 26 of 42 Pg ID , (9th Cir. 2012) (affirming $9.5 million settlement providing cy pres payment as sole monetary relief in case where statutory damages of up to $10,000 per claim were available in class of millions), cert. denied 134 U.S. 8 (Nov. 4, 2013); In re Google Buzz Privacy Litig., No. C JW, 2011 WL , at *3-5 (N.D. Cal. June 2, 2011) (approving $8.5 settlement providing cy pres payment as sole monetary relief in case where statutory damages of up to $10,000 per claim were available in a class of millions); In re Netflix Privacy Litig., No. 11- cv-00379, 2013 WL , at *6-7 (N.D. Cal. Mar. 18, 2013) (approving $9 million settlement providing cy pres payment as sole monetary relief in case where statutory damages of $2,500 per claim were available to class of millions). Moreover, in light of the risks that were and are associated with continuing litigation, the Settlement is an outstanding result. Before the case was filed, the United States Supreme Court granted certiorari in Spokeo, which could have changed the law on Article III standing and deprived Plaintiffs their day in court. A decision in Spokeo was still pending when the case was filed. (Marchese Decl. 3, 6-7). Also before the case was filed, both Houses of the Michigan Legislature voted to amend the PPPA to remove the statutory damages provision. (Id. 4-5). And more recently, on June 26, 2017, the Sixth Circuit agreed with this Court s analysis in its ruling on the Motion to Dismiss and affirmatively put to rest the arguments that the Plaintiffs lacked Article III standing under Spokeo and the 14

27 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 27 of 42 Pg ID 505 PPPA amendments retroactively applied. Coulter-Owens v. Time Inc., 2017 WL (6th Cir. June 26, 2017). That said, it did find that under the facts of that case the subscribers who purchased their magazine subscriptions through thirdparty online subscription agents did not purchase at retail, as required by the PPPA. Id. at *6. This Settlement was reached approximately 3 months prior the Sixth Circuit s opinion, which certainly would have altered the course of the litigation and may have even ultimately barred recovery to members of the Settlement Class who subscribed to Defendants publications through third parties. See, e.g., Leonhardt v. ArvinMeritor, Inc., 581 F. Supp. 2d 818, 836 (E.D. Mich. 2008) ( absent settlement, all class members would be subject to the uncertainty, risk, hardship and delay attendant to continued litigation which ultimately might leave them with absolutely nothing. ). Although Class Counsel do not assign a monetary value to the prospective relief the Settlement affords, there is no doubt that this relief is valuable to the class as well it was one of the main purposes of the lawsuit. See, e.g., In re Se. Milk Antitrust Litig., 2013 WL , at *3 (E.D. Tenn. May 17, 2013) (considering structural changes to industry practices in assessing value of benefit); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373 (S.D. Ohio 1990) (considering non-monetary benefits requiring changes in defendant s operating procedures in assessing value of benefit). Here, the Settlement s 15

28 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 28 of 42 Pg ID 506 prospective relief provides additional value to the class by ensuring that, for a period of four years, Defendants will not disclose their Michigan customers subscriber information to third parties without prior express written consent. (Agreement 2.2(a).) Such relief is particularly valuable in light of recent amendments to the PPPA, which no longer prohibits disclosure of such information when it is incident to the ordinary course of business of the person disclosing the information Mich. Pub. Acts 92, M.C.L Weighed against the risks of continued litigation the Court s eventual decision regarding class certification, the expert testimony and additional discovery necessary for trial, the Sixth Circuit s opinion, and potentially other obstacles that could strip the class of any recovery the value of the immediate cash and prospective relief that the Settlement affords thus supports the reasonableness of the requested attorneys fees. The first factor is well satisfied. 2. Society has a stake in incentivizing the pursuit of complex consumer privacy litigation. Society has a strong stake in rewarding attorneys who produce the type of benefits achieved by the settlement here. See In re Cardizem, 218 F.R.D. at 533; see also Gascho, 822 F.3d at 287 ( Consumer class actions have value to society more broadly, both as deterrents to unlawful behavior... and as private law enforcement regimes that free public sector resources. ). It is therefore in society s interest to encourage litigation that protects important consumer privacy rights that 16

29 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 29 of 42 Pg ID 507 would not otherwise be safeguarded. See In re Rio Hair Naturalizer Prods. Liab. Litig., 1996 WL , at *17 (E.D. Mich. Dec. 20, 1996). ( Without compensation to those who are willing to undertake the inherent complexities and unknowns of consumer class action litigation, enforcement of the federal and state consumer protection laws would be jeopardized. ); In re Cardizem, 218 F.R.D. at 534 ( Encouraging qualified counsel to bring inherently difficult and risky but beneficial class actions... benefits society. ) Further, when individual class members seek a relatively small amount of statutory damages, economic reality dictates that [their] suit proceed as a class action or not at all. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974); Appoloni v. United States, 218 F.R.D. 556, 563 (W.D. Mich. 2003), amended, 219 F.R.D Society undoubtedly has a strong interest in incentivizing lawyers to bring complex litigation that is necessary to protect the privacy of Michiganders personal reading choices. In fact, class action litigation in this area is the most realistic means of safeguarding the privacy of readers and viewers under the PPPA, especially given the fact that consumers are generally unaware that their privacy rights are being violated (here, Plaintiffs alleged Defendants secretly disclosed their customers personal reading information behind their backs). Thus, the alternative to a class action in this case would have been no enforcement at all, and Defendant s allegedly unlawful conduct would have continued unabated. 17

30 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 30 of 42 Pg ID 508 This factor thus supports the requested award. 3. Class Counsel took the case on a contingent basis, confronting a significant risk of nonpayment. Undertaking an action on a contingency basis lends additional support to the reasonableness of a requested fee award. See In re Cardizem, 218 F.R.D. at 533; Stanley, 2009 WL , at *3 ( Numerous cases recognize that the contingent fee risk is an important factor in determining the fee award. ). When attorneys invest significant time and resources in pursuing the litigation, in spite of the risk they will not be compensated, this factor is generally satisfied. In re Rio, 1996 WL , at *18; Kogan v. AIMCO Fox Chase L.P., 193 F.R.D. 496, 504 (E.D. Mich. 2000). The contingent nature of the case is amplified where class counsel face a formidable defendant. See In re Cardizem, 218 F.R.D. at 533. As reflected in their retainer agreements with Plaintiffs, Class Counsel pursued the action purely on a contingency basis. (Marchese Decl. 1; Balabanian Decl. 11.) For over a year, Class Counsel invested significant time, effort, and resources to the litigation without any compensation. (Marchese Decl. 2; Balabanian Decl. 11.) Cognizant of the risk of nonpayment, Class Counsel nonetheless embarked on a fact-intensive investigation of Defendants practices, engaged in dispositive motion practice, and exchanged written discovery. (Marchese Decl. 14; Balabanian Decl. 11.) Class Counsel also paid for and participated in not only a full day of private mediation, but weeks of discussions 18

31 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 31 of 42 Pg ID 509 and engagement with the mediator in order to try and resolve the action. (Marchese Decl. 12, 15; Balabanian Decl. 11.) Class Counsel fronted this investment of time and resources, despite the significant risk of nonpayment inherent in this case. (Marchese Decl. 2, 22; Balabanian Decl. 12.) And given the defenses mounted by Defendants, as well as the fairly limited history of PPPA litigation, success on the legal issues presented by this case was far from certain. (Balabanian Decl. 12.) In addition, Class Counsel faced highly qualified defense counsel, who themselves represent leading magazine publishers in related PPPA litigation. (Id. 14.) Defense counsel has been successful in defeating other PPPA cases, further underscoring the risks Class Counsel faced in pursuing this litigation. Given the contingent nature of the litigation and the significant risk of nonpayment, the third factor also supports the reasonableness of the fee award. 4. The complexity of the litigation supports the requested fees. The complexity of the litigation reinforces the reasonableness of a requested fee award. In re Cardizem, 218 F.R.D. at 533. This case involved multiple layers of factual complexity, much of which was obscured at the outset due to Defendants alleged concealment of their practices from consumers. As a result, this required extensive preliminary investigation into Defendants business practices, their methods of data collection and aggregation, and the nature of their relationships with various third-party companies. 19

32 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 32 of 42 Pg ID 510 The case involved complex legal issues as well. Defendants challenged the basis of the lawsuit on constitutional grounds, based on new case law that did not even exist at the time of filing, before moving on to challenge the merits of Plaintiffs claims, raising 17 affirmative defenses, including: (i) that AMI is not engaged in the business of selling at retail as is required under the PPPA, (ii) that magazine subscriptions were not written material under the PPPA, and (iii) that the PPPA, as alleged in this case, violated the freedom of speech clauses under the U.S. and Michigan Constitutions. (Dkt. 24.) In the end, because this case involved complex factual and legal questions under the PPPA its application to magazines and magazine publishing, the constitutionality of the underlying statute, and defining the scope of what it means to sell a magazine at retail, an issue decided unfavorably for Plaintiffs by the Sixth Circuit the complexity of the litigation further supports the reasonableness of the requested fees. 5. The Parties are both represented by skilled counsel. The skill and standing of counsel on both sides, including their experience and professionalism, also validates the reasonableness of a requested fee award. In re Rio, 1996 WL , at *18. When counsel for both parties have significant experience, the ability of [counsel] to negotiate a favorable settlement in the face 20

33 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 33 of 42 Pg ID 511 of formidable legal opposition further evidences the reasonableness of the fee award requested. In re Delphi, 248 F.R.D. at 504. Class Counsel are well-respected attorneys with significant experience litigating consumer class actions of similar size, scope, and complexity. (Marchese Decl ; Balabanian Decl. 13.) In addition to being at the forefront of PPPA litigation, see, e.g., Halaburda, No. 12-cv-12831, dkt. 68, Edelson PC is widely known for its work in the area of consumer privacy litigation. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct (2016); In re Facebook Privacy Litig., No. 10-cv-02389, dkt. 69 (N.D. Cal. 2010) (recognizing Edelson PC as pioneers in the electronic privacy class action field ); see also In re Netflix Privacy Litig., No. 11- cv-00379, dkt. 59 (N.D. Cal. Aug. 12, 2011) (noting Edelson PC s significant and particularly specialized expertise in electronic privacy litigation and class actions ); see also Harris v. comscore, No. 11-cv-05807, dkt. 369 (N.D. Ill. 2014) (granting final approval to one of the largest consumer class actions ever brought under federal electronic privacy laws, in which Edelson PC served as sole lead counsel). The law firm of Bursor & Fisher, P.A. has also been recognized for the efforts it has made on behalf of consumer classes. Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 566 (S.D.N.Y. Feb. 25, 2014) ( Bursor & Fisher, P.A., are class action lawyers who have experience litigating consumer claims. The firm has been appointed class counsel in dozens of cases in both federal and state courts, and has 21

34 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 34 of 42 Pg ID 512 won multi-million dollar verdicts or recoveries in five class action jury trials since ); In re Michaels Stores Pin Pad Litigation, Civil Action No. 11-cv-03350, dkt. 22 (N.D. Ill. June 8, 2011) (appointing Bursor & Fisher class counsel to represent a putative nationwide class of consumers who made in-store purchases at Michaels using a debit or credit card and had their private financial information stolen as a result). As mentioned above, Class Counsel faced formidable defense counsel in this action. Defendants were represented by two notable defense firms ZwillGen PLLC and Wilson Elser Moskowitz Edelman & Dicker LLP. ZwillGen has a strong track record defending class actions under the PPPA, having secured appellate victories in Deacon v. Pandora and Coulter-Owens v. Time. Defendants have made clear that, but for the Settlement, they would dispute their liability, assert multiple defenses on their behalf, and even challenge the constitutionality of the PPPA itself through appeal. Given the skill and standing of counsel on both sides, the reasonableness of the requested fee award is apparent. 6. The value of the legal services performed on an hourly basis is reasonable. The sixth and final factor assesses the value of the legal services performed on an hourly basis. In re Cardizem, 218 F.R.D. at 533. The value of the legal services performed essentially amounts to a lodestar, which involves multiplying 22

35 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 35 of 42 Pg ID 513 the number of hours reasonably expended by counsel by their reasonable hourly rate. Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005) (citing Hensley v Eckerhart, 461 U.S. 424, 433 n.7 (1983)). 5 A good-faith effort must be made to exclude hours that are excessive or otherwise unnecessary. Hensley, 461 U.S. at 434; Brian A. v. Hattaway, 83 F. App x 692, 695 (6th Cir. 2003). To date, Class Counsel have expended hours litigating this case. ((Marchese Decl. 22; Balabanian Decl. 15.) The value of Class Counsel s services at their current hourly rates amounts to $524,069 (Marchese Decl ; Balabanian Decl. 16.) Therefore, the value of the time spent litigating Plaintiffs claims and securing the Agreement, including reimbursable expenses of $15,605.02, totals $539, (Marchese Decl. 22, 23, 28; Balabanian Decl. 16.) This figure does not include the additional $35,000 to $50,000 in fees that Class Counsel will likely incur in connection with proceeding through final approval of the Settlement and the claims administration process and dealing with any potential objections. (Marchese 22, 23, 28; Balabanian Decl. 16.) Of course, this number does not account for the Court s discretion to increase the base value of Class Counsel s services based on certain factors, known 5 Although this factor may be viewed as a lodestar cross-check, see Kogan, 193 F.R.D. at 504, a cross-check is entirely optional. See Van Horn v. Nationwide Property & Cas. Ins. Co., 436 F. App x 496, 501 (6th Cir. 2011) (finding that district courts have complete discretion when deciding to calculate attorneys fees based on the percentage-of-the-fund or lodestar methods, and thus a cross-check analysis is optional.) 23

36 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 36 of 42 Pg ID 514 as a multiplier. Van Horn v. Nationwide Property & Cas. Ins. Co., 436 F. App x 496, (6th Cir. 2011) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, (5th Cir. 1974)). Salient factors include the results achieved, the risk of not prevailing in the action, the skill and experience of the attorneys, and awards in similar cases. See Geier v. Sundquist, 372 F.3d 784, 793 (6th Cir. 2004); see also Van Horn, 436 F. App x at 500. These factors closely track the Ramey criteria used to assess reasonableness, discussed in detail above. (See supra III.B.) Just as results, risk, and skill support the reasonableness of the fees under the percentage method, they also justify a multiplier of the base value of Class Counsel s services. Here, the requested fee of $2,660,000 represents a multiplier of between 4.8 and 4.9 (depending on the amount of work going forward), which although on the higher end of the spectrum, is nonetheless more than justified given that this settlement is the best result yet for a class on claims brought under the PPPA. See Connectivity Sys. Inc. v. Nat l City Bank, 2011 WL , at *13 (S.D. Ohio Jan. 26, 2011). That this case settled relatively quickly should not result in a lower fee award than what would otherwise be a reasonable result. As one commentator has put it: Where success is a condition precedent to compensation, hours of time expended is a nebulous, highly variable standard, of limited significance. One thousand plodding hours may be far less productive than one imaginative, brilliant hour. A surgeon who skillfully 24

37 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 37 of 42 Pg ID 515 performs an appendectomy in seven minutes is entitled to no smaller fee than one who takes an hour; many a patient would think he is entitled to more. George D. Hornstein, Legal Therapeutics: The Salvage Factor in Counsel Fee Awards, 69 HARV. L. REV. 658, 660 (1956). Nevertheless, the value of Class Counsel s services on an hourly basis supports the reasonableness of the requested fees here, and should be approved. C. The Requested Incentive Awards Reflect Ms. Moeller and Ms. Brisson s Active Involvement in this Action and Should be Approved. Incentive awards are frequently awarded in common-fund cases within this Circuit. See Hadix v. Johnson, 322 F.3d 895, 898 (6th Cir. 2003) (collecting cases). The approval of an incentive award is examined through the following factors: (1) the class representative s actions in protecting the class s interests and whether those actions resulted in a substantial benefit to the class; (2) any direct or indirect financial risk the class representative assumed; and (3) the time and effort the class representative dedicated to the action. Lasalle Town Houses Coop Assoc. v. City of Detroit, No. 4:12-cv-13747, 2016 WL , at *7 (E.D. Mich. Mar. 29, 2016) (citing Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)). Based on these factors, an incentive award of $5,000 for each of the Plaintiffs is reasonable. It s equal to the amount awarded to the class representative in Halaburda v. Bauer, No. 12-cv-12831, dkt. 69, and half the amount awarded in Kinder v. Meredith, No

38 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 38 of 42 Pg ID 516 cv-11284, dkt. 81. It s also a fraction of amounts often awarded in comparable settlements. See, e.g., Shane Grp., 2015 WL , at *18 (approving incentive awards for several named plaintiffs totaling $165,000, with individual awards ranging up to $45,000); In re CMS Energy ERISA Litig., 2006 WL , at *3 (E.D. Mich. June 27, 2006) (awarding three class representatives $15,000 each for contributions to the case, including providing information to class counsel, reviewing documents, assisting with discovery, and participating in settlement discussions). That said, the Sixth Circuit continues to express concern that incentive awards unjustly disproportionate to the named plaintiff s work and effort can create an incentive to act against the class s best interests. See In re Pampers Dry Max Litig., 724 F.3d 713, 718 (6th Cir. 2013). This problem is most acute where paltry settlements are made functionally unavailable to a class, or where a settlement contains no common fund at all. See, e.g., Id. at (denying an incentive award where unnamed class members could not opt out of the settlement, and the likelihood of class members actually being able to take advantage of the monetary or injunctive relief was highly unlikely); Hadix, 322 F.3d at 898 (describing it as plainly inappropriate to grant an incentive award without a common fund). To avoid situations where a named plaintiff s receipt of a bounty acts as a disincentive for the class representative to act fairly, [class] counsel must 26

39 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 39 of 42 Pg ID 517 provide the district court with specific documentation of the time actually spent on the case by each recipient of an award so that the court can be sure that the award is designed as compensation, not a windfall. Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 311 (6th Cir. 2016). As documented in their declarations, Ms. Moeller and Ms. Brisson both spent approximately 25 hours protecting the interests of the class through their involvement in this case. (Declaration of Nicole Brisson, 10, attached as Exhibit E; Declaration of Elizabeth Moeller, 10, attached as Exhibit D.) Both Plaintiffs assisted Class Counsel in investigating their claims, by detailing their magazine subscription histories and aiding in drafting the complaint. (Brisson Decl. 3; Moeller Decl. 3). Further, both Plaintiffs preserved and produced documents that would need to be turned over to the Defendants in discovery. (Brisson Decl. 6; Moeller Decl. 6.) Finally, the Plaintiffs were actively consulted during the settlement process. (Brisson Decl. 7-8; Moeller Decl. 7-8.) As such, their $5,000 incentive payments is hardly a bounty and should be approved. IV. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court (1) approve attorneys fees in the amount of $2,660,000, (2) grant Ms. Moeller and Ms. Brisson an incentive award of $5,000 each in recognition of their efforts on 27

40 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 40 of 42 Pg ID 518 behalf of the class, and (3) award such other and further relief as the Court deems reasonable and just. Dated: July 31, 2017 Respectfully submitted, ELIZABETH MOELLER AND NICOLE BRISSON, individually and on behalf of the settlement class, By: /s/ Rafey S. Balabanian One of Plaintiffs Attorneys Jay Edelson jedelson@edelson.com Ari J. Scharg ascharg@edelson.com Benjamin S. Thomassen bthomassen@edelson.com Eve-Lynn Rapp erapp@edelson.com EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois Tel: Fax: Henry M. Scharg hmsattyatlaw@aol.com LAW OFFICE OF HENRY M. SCHARG 718 Ford Building Detroit, Michigan Tel: (248) Fax: (248) Scott A. Bursor scott@bursor.com Joseph I. Marchese jmarchese@bursor.com Philip L. Fraietta 28

41 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 41 of 42 Pg ID 519 pfraietta@bursor.com BURSOR & FISHER, PA 888 Seventh Avenue New York, New York Tel: Fax: Counsel for the Plaintiffs and the Settlement Class 29

42 5:16-cv JEL-EAS Doc # 37 Filed 07/31/17 Pg 42 of 42 Pg ID 520 CERTIFICATE OF SERVICE I, Rafey S. Balabanian, an attorney, hereby certify that on July 31, 2017 I served the above and foregoing Plaintiffs Motion for Attorneys Fees, Expenses, and Incentive Award on all counsel of record by filing it electronically with the Clerk of the Court using the CM/ECF system. /s/ Rafey S. Balabanian

43 5:16-cv JEL-EAS Doc # 37-1 Filed 07/31/17 Pg 1 of 1 Pg ID 521 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ELIZABETH MOELLER and NICOLE BRISSON, individually and on behalf of all others similarly situated, Plaintiffs, Case No. 2:16-cv JEL-EAS [Hon. Judith E. Levy] v. AMERICAN MEDIA, INC., a Delaware corporation, and ODYSSEY MAGAZINE PUBLISHING GROUP, INC., a Delaware corporation, Defendants. INDEX OF EXHIBITS A Class Action Settlement Agreement B Declaration of Rafey S. Balabanian C Declaration of Joseph I. Marchese D Declaration of Elizabeth Moeller E Declaration of Nicole Brisson

44 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 1 of 59 Pg ID 522 Exhibit A

45 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 2 of 59 Pg ID 523 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ELIZABETH MOELLER and NICOLE BRISSON, individually and on behalf of all others similarly situated, Case No. 2:16-cv JEL-EAS [Hon. Judith E. Levy] Plaintiffs, v. AMERICAN MEDIA, INC., a Delaware corporation, and ODYSSEY MAGAZINE PUBLISHING GROUP, INC., a Delaware corporation, Defendants. CLASS ACTION SETTLEMENT AGREEMENT This Agreement ( Agreement or Settlement Agreement ) is entered into by and among (i) Plaintiffs, Elizabeth Moeller and Nicole Brisson ( Plaintiffs ); (ii) the Settlement Class (as defined herein); and (iii) Defendants, American Media, Inc. (AMI ), and Odyssey Magazine Publishing Group, Inc., now known as AMI Celebrity Publications, LLC 1 ( Odyssey, and together, Defendants ). The Settlement Class and Plaintiffs are collectively referred to as the Plaintiffs unless otherwise noted. The Plaintiffs and the Defendants are collectively referred to herein as the Parties. This Agreement is intended by the Parties to fully, finally and forever resolve, discharge, and settle the Released Claims (as defined herein), upon and subject to the terms and conditions of this Agreement, and subject to the final approval of the Court. RECITALS 1 Odyssey Magazine Publishing Group, Inc. was merged out of existence on March 31, It merged into AMI Celebrity Publications, LLC, a wholly-owned subsidiary of Defendant American Media. Wherever this settlement agreement refers to Odyssey, the parties agree that those provisions will apply with equal force to AMI Celebrity Publications, LLC.

46 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 3 of 59 Pg ID 524 A. This putative class action was filed on April 14, 2016, in the United States District Court for the Eastern District of Michigan. The material allegations of the complaint center on Defendants alleged disclosure of their customers personal information and magazine choices to third parties without permission in violation of Michigan s Preservation of Personal Privacy Act, M.C.L ( PPPA ) and in breach of their alleged contracts with the putative class members. (Dkt. 1.) B. In response to the complaint, on June 13, 2016, Defendants filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), arguing, inter alia, that Plaintiffs lacked Article III standing and failed to state a claim upon which relief could be granted. (Dkt. 8.) Plaintiffs filed their opposition brief on July 5, 2016 (Dkt. 12), and Defendants filed their reply brief on October 20, (Dkt. 21.) C. From the outset of the case, and including during the pendency of the motion to dismiss, the Parties engaged in direct communications, and as part of their obligations under Fed. R. Civ. P. 26, discussed the prospect of an early resolution. Those discussions led to an agreement between the Parties to engage in early mediation, which the Parties agreed would be take place before retired district judge, Wayne R. Andersen (formerly of the Northern District of Illinois), who was a neutral at JAMS Chicago. D. As part of the mediation, and in order to competently assess their relative negotiating positions, the Parties exchanged informal discovery, including on issues such as the size and scope of the putative class, and certain facts related to the strength of Defendants defenses. Given that the information exchanged would have been, in large part, the same information sought in formal discovery related to the issues of class certification and summary judgment, the Parties had sufficient information to assess the strengths and weaknesses of the claims and defenses. 2

47 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 4 of 59 Pg ID 525 E. The mediation took place on October 6, 2016 at JAMS s offices in Chicago and took the entire day. While the Parties engaged in good faith negotiations, which at all times were at arms length, they viewed the case very differently, and as a result, failed to make substantial progress toward an ultimate resolution. Consequently, at the conclusion of the mediation, Judge Andersen made a mediator s proposal to settle the case. The Parties did not accept Judge Andersen proposal and returned to litigation. F. On January 27, 2017, after considering all of the briefing on the matter, the Court denied Defendants motion to dismiss. (Dkt. 23.) G. Defendants thereafter answered Plaintiffs Complaint on February 9, 2017 by denying the allegations generally and raising seventeen (17) affirmative defenses. (Dkt. 24.) H. Soon after entry of the Court s Order on the motion to dismiss, the Parties agreed to restart settlement talks with the assistance of Judge Andersen. To that end, Defendants increased their offer to settle the case, which Plaintiffs countered, and engaged in several additional rounds of arms length negotiations facilitated by Judge Andersen over the course of a four-week period. Having been unable to reach an agreement on their own, on March 22, 2017, Judge Andersen made another mediator s proposal to settle the case, which the Parties accepted. I. At all times, Defendants have denied and continue to deny any wrongdoing whatsoever and have denied and continue to deny that they committed, or threatened or attempted to commit, any wrongful act or violation of law or duty alleged in the Action. Nonetheless, taking into account the uncertainty and risks inherent in any litigation, Defendants have concluded it is desirable and beneficial that the Action be fully and finally settled and terminated in the manner and upon the terms and conditions set forth in this Agreement. This Agreement is a compromise, and the Agreement, any related documents, and any negotiations resulting in it shall not be construed as or deemed to be evidence of or an admission or 3

48 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 5 of 59 Pg ID 526 concession of liability or wrongdoing on the part of Defendants, or any of the Released Parties (defined below), with respect to any claim of any fault or liability or wrongdoing or damage whatsoever. J. Plaintiffs believe that the claims asserted in the Action against Defendants have merit and that they would have prevailed at summary judgment and/or trial. Nonetheless, Plaintiffs and Class Counsel recognize that Defendants have raised factual and legal defenses that present a risk that Plaintiffs may not prevail. Plaintiffs and Class Counsel also recognize the expense and delay associated with continued prosecution of the Action against Defendants through class certification, summary judgment, trial, and any subsequent appeals. Plaintiffs and Class Counsel have also taken into account the uncertain outcome and risks of litigation, especially in complex class actions, as well as the difficulties inherent in such litigation. Therefore, Plaintiffs believe it is desirable that the Released Claims be fully and finally compromised, settled, and resolved with prejudice. Based on their evaluation, Class Counsel have concluded that the terms and conditions of this Agreement are fair, reasonable, and adequate to the Settlement Class, and that it is in the best interests of the Settlement Class to settle the claims raised in the Action pursuant to the terms and provisions of this Agreement. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among Plaintiffs, the Settlement Class, and each of them, and Defendants, by and through its undersigned counsel that, subject to final approval of the Court after a hearing or hearings as provided for in this Settlement Agreement, in consideration of the benefits flowing to the Parties from the Agreement set forth herein, that the Action and the Released Claims shall be finally and fully compromised, settled, and released, and the Action shall be dismissed with prejudice, upon and subject to the terms and conditions of this Agreement. 4

49 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 6 of 59 Pg ID 527 AGREEMENT 1. DEFINITIONS. As used in this Settlement Agreement, the following terms have the meanings specified below: 1.1 Action means Moeller et al. v. American Media, Inc. et al., Case No. 2:16-cv JEL-EAS, pending in the United States District Court for the Eastern District of Michigan. 1.2 AMI Publication means a magazine owned or operated by Defendants, including but not limited to, any one of the following: Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. 1.3 Approved Claim means a Claim Form submitted by a Settlement Class Member that: (a) is submitted timely and in accordance with the directions on the Claim Form and the provisions of the Settlement Agreement; (b) is fully and truthfully completed by a Settlement Class Member with all of the information requested in the Claim Form; (c) is signed by the Settlement Class Member, physically or electronically; and (d) is approved by the Settlement Administrator pursuant to the provisions of this Agreement. 1.4 Claim Form means the document substantially in the form attached hereto as Exhibit A, as approved by the Court. The Claim Form, to be completed by Settlement Class Members who wish to file a Claim for a payment, shall be available in electronic and paper format in the manner described below. 1.5 Claims Deadline means the date by which all Claim Forms must be postmarked or received to be considered timely and shall be set as a date no later than forty-five 5

50 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 7 of 59 Pg ID 528 (45) days after entry of the Final Approval Hearing. The Claims Deadline shall be clearly set forth in the Preliminary Approval Order as well as in the Notice and the Claim Form. 1.6 Class Counsel means Jay Edelson of Edelson PC and Scott A. Bursor of Bursor & Fisher, P.A. 1.7 Class Representatives means the named Plaintiffs in this Action, Elizabeth Moeller and Nicole Brisson. 1.8 Court means the United States District Court for the Eastern District of Michigan, the Honorable Judith E. Levy presiding, or any judge who shall succeed her as the Judge in this Action. 1.9 Defendants means American Media, Inc., a Delaware Corporation, and Odyssey Magazine Publishing Group, Inc., a Delaware Corporation Defendants Counsel means Jacob Sommer of ZwillGen PLLC Effective Date means the date ten (10) days after which all of the events and conditions specified in Paragraph 9.1 have been met and have occurred Escrow Account means the separate, interest-bearing escrow account to be established by the Settlement Administrator under terms acceptable to all Parties at a depository institution insured by the Federal Deposit Insurance Corporation. The Settlement Fund shall be deposited by Defendants into the Escrow Account in accordance with the terms of this Agreement and the money in the Escrow Account shall be invested in the following types of accounts and/or instruments and no other: (i) demand deposit accounts and/or (ii) time deposit accounts and certificates of deposit, in either case with maturities of forty -five (45) days or less. The costs of establishing and maintaining the Escrow Account shall be paid from the Settlement Fund. 6

51 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 8 of 59 Pg ID Fee Award means the amount of attorneys fees and reimbursement of expenses awarded by the Court to Class Counsel, which will be paid out of the Settlement Fund Final means one business day following the latest of the following events: (i) the date upon which the time expires for filing or noticing any appeal of the Court s Final Judgment approving the Settlement Agreement; (ii) if there is an appeal or appeals, other than an appeal or appeals solely with respect to the Fee Award, the date of completion, in a manner that finally affirms and leaves in place the Final Judgment without any material modification, of all proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all deadlines for motions for reconsideration or petitions for review and/or certiorari, all proceedings ordered on remand, and all proceedings arising out of any subsequent appeal or appeals following decisions on remand); or (iii) the date of final dismissal of any appeal or the final dismissal of any proceeding on certiorari Final Approval Hearing means the hearing before the Court where the Parties will request the Final Judgment to be entered by the Court approving the Settlement Agreement, the Fee Award, and the incentive award to the Class Representatives Final Judgment means the Final Judgment and Order to be entered by the Court approving the Agreement after the Final Approval Hearing Michigan Subscriber Information means the combination of a Person s name and the title(s) and/or interest information derived solely from the title of an AMI Publication to which such Person currently subscribes and/or has previously subscribed to, where the Person s street address provided to AMI for the subscription is in the state of Michigan Notice means the notice of this proposed Class Action Settlement Agreement and Final Approval Hearing, which is to be sent to the Settlement Class substantially in the 7

52 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 9 of 59 Pg ID 530 manner set forth in this Agreement, is consistent with the requirements of Due Process, Rule 23, and is substantially in the form of Exhibits B, C, and D hereto Notice Date means the date by which the Notice set forth in Paragraph 4.1 is complete, which shall be no later than twenty-one (21) days after Preliminary Approval Objection/Exclusion Deadline means the date by which a written objection to this Settlement Agreement or a request for exclusion submitted by a Person within the Settlement Class must be made, which shall be designated as a date no later than forty-five (45) days after the Notice Date and no sooner than fourteen (14) days after papers supporting the Fee Award are filed with the Court and posted to the settlement website listed in Paragraph 4.1(d), or such other date as ordered by the Court Person shall mean, without limitation, any individual, corporation, partnership, limited partnership, limited liability company, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity and their spouses, heirs, predecessors, successors, representatives, or assigns. Person is not intended to include any governmental agencies or governmental actors, including, without limitation, any state Attorney General office Plaintiffs means Elizabeth Moeller, Nicole Brisson and the Settlement Class Members Preliminary Approval means the Court s certification of the Settlement Class for settlement purposes, preliminary approval of this Settlement Agreement, and approval of the form and manner of the Notice Preliminary Approval Order means the order preliminarily approving the Settlement Agreement, certifying the Settlement Class for settlement purposes, and directing 8

53 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 10 of 59 Pg ID 531 notice thereof to the Settlement Class, which will be agreed upon by the Parties and submitted to the Court in conjunction with Plaintiffs motion for preliminary approval of the Agreement Released Claims means any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, rights, causes of action, contracts or agreements, extra contractual claims, damages, punitive, exemplary or multiplied damages, expenses, costs, attorneys fees and or obligations (including Unknown Claims, as defined below), whether in law or in equity, accrued or unaccrued, direct, individual or representative, of every nature and description whatsoever, whether based on the PPPA or other state, federal, local, statutory or common law or any other law, rule or regulation, against the Released Parties, or any of them, arising out of any facts, transactions, events, matters, occurrences, acts, disclosures, statements, representations, omissions or failures to act regarding the alleged disclosure of the Settlement Class Members Michigan Subscriber Information, including all claims that were brought or could have been brought in the Action relating to the disclosure of such information belonging to any and all Releasing Parties. Nothing herein is intended to release any claims any governmental agency or governmental actor has against Defendants Released Parties means Defendants American Media, Inc., Odyssey Magazine Publishing Group, Inc., as well as any and all of its respective present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parent companies, subsidiaries, licensors, licensees, associates, affiliates, employers, employees, agents, consultants, independent contractors, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal representatives, successors in interest, assigns and companies, firms, trusts, and corporations. 9

54 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 11 of 59 Pg ID Releasing Parties means Plaintiffs, those Settlement Class Members who do not timely opt out of the Settlement Class, and all of their respective present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parent companies, subsidiaries, associates, affiliates, employers, employees, agents, consultants, independent contractors, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal representatives, successors in interest, assigns and companies, firms, trusts, and corporations Settlement Administration Expenses means the expenses incurred by the Settlement Administrator in providing Notice (including CAFA notice), processing claims, responding to inquiries from members of the Settlement Class, mailing checks for Approved Claims, and related services Settlement Administrator means Kurtzman Carson Consultants, LLC or such other reputable administration company that has been selected by the Parties and approved by the Court to oversee the distribution of Notice, as well as the processing and payment of Approved Claims to the Settlement Class as set forth in this Agreement Settlement Class means the approximately 415,000 Persons with Michigan street addresses who obtained a subscription to an AMI Publication between April 14, 2010 and July 31, Excluded from the Settlement Class are (1) any Judge or Magistrate presiding over this Action and members of their families; (2) the Defendants, Defendants subsidiaries, parent companies, successors, predecessors, and any entity in which the Defendants or its parents have a controlling interest and their current or former officers, directors, agents, attorneys, and employees; (3) persons who properly execute and file a timely request for exclusion from the class; and (4) the legal representatives, successors or assigns of any such excluded persons. 10

55 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 12 of 59 Pg ID Settlement Class Member means a Person who falls within the definition of the Settlement Class as set forth above and who has not submitted a valid request for exclusion Settlement Fund means the non-reversionary cash fund that shall be established by Defendants in the total amount of seven million six hundred thousand dollars ($7,600, USD) to be deposited into the Escrow Account, according to the schedule set forth herein, plus all interest earned thereon. From the Settlement Fund, the Settlement Administrator shall pay all Approved Claims made by Settlement Class Members, Settlement Administration Expenses, any incentive award to the Class Representative, and any Fee Award to Class Counsel. Payment into the Settlement Fund will be made in three (3) separate installments on the following schedule: (i) four million dollars ($4,000,000.00) shall be paid within fourteen (14) days after entry of the Preliminary Approval Order; (ii) one million eight hundred thousand dollars ($1,800,000.00) within twelve (12) months after entry of the Final Judgment; and (iii) one million eight hundred thousand dollars ($1,800,000.00) within twentyfour (24) months after entry of the Final Judgment. To the extent Defendants fail to timely make any installment payment, Defendants agree that the full amount of the Settlement Fund shall be immediately due and payable (less any amounts previously deposited), with interest earned thereon at the rate of PRIME + 1%. The Settlement Fund shall be kept in the Escrow Account with permissions granted to the Settlement Administrator to access said funds until such time as the above-listed payments are made. The Settlement Fund includes all interest that shall accrue on the sums deposited in the Escrow Account. The Settlement Administrator shall be responsible for all tax filings with respect to any earnings on the Settlement Fund and the payment of all taxes that may be due on such earnings. The Settlement Fund represents the total extent of Defendants monetary obligations under this Agreement. In no event shall Defendants total 11

56 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 13 of 59 Pg ID 534 monetary obligation with respect to this Agreement exceed or be less than seven million six hundred thousand dollars ($7,600,000.00), plus the interest earned on such sum Unknown Claims means claims that could have been raised in the Action and that any or all of the Releasing Parties do not know or suspect to exist, which, if known by him or her, might affect his or her agreement to release the Released Parties or the Released Claims or might affect his or her decision to agree, object or not to object to the Settlement. Upon the Effective Date, the Releasing Parties shall be deemed to have, and shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of 1542 of the California Civil Code, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Upon the Effective Date, the Releasing Parties also shall be deemed to have, and shall have, waived any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, or the law of any jurisdiction outside of the United States, which is similar, comparable or equivalent to 1542 of the California Civil Code. The Releasing Parties acknowledge that they may discover facts in addition to or different from those that they now know or believe to be true with respect to the subject matter of this release, but that it is their intention to finally and forever settle and release the Released Claims, notwithstanding any Unknown Claims they may have, as that term is defined in this Paragraph. 2. SETTLEMENT RELIEF. 2.1 Payments to Settlement Class Members. (a) Defendants shall pay or cause to be paid into the Escrow Account the amount of the Settlement Fund ($7,600,000.00), as specified in Section 1.32 of this Agreement. 12

57 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 14 of 59 Pg ID 535 (b) Settlement Class Members shall have until the Claims Deadline to submit an Approved Claim. Each Settlement Class Member with an Approved Claim shall be entitled to a pro rata portion of the Settlement Fund by check after deducting the Settlement Administration Expenses, any Fee Award, and any incentive award. (c) The Settlement Administrator shall pay from the Settlement Fund all Approved Claims by check with said checks being sent via first class U.S. mail to the Settlement Class Members who submitted all such Approved Claims. Payments to all Settlement Class Members with Approved Claims shall be made within twenty-eight (28) days after the final installment payment into the Settlement Fund. (d) All cash payments issued to Settlement Class Members via check will state on the face of the check that it will expire and become null and void unless cashed within ninety (90) days after the date of issuance. To the extent that a check issued to a Settlement Class Member is not cashed within ninety (90) days after the date of issuance, such funds shall, subject to Court approval, revert to the Michigan Bar Foundation s Access to Justice Fund. 2.2 Prospective Relief. (a) For a period of four (4) years following Preliminary Approval, except as provided in paragraphs 2.2(b)-(c) below, Defendants agree not to disclose any Michigan Subscriber Information to any third-party companies without the prior express written consent of the affected subscribers. (b) Nothing in this Settlement Agreement shall prevent Defendants from disclosing Michigan Subscriber Information to third parties as may be reasonably required to produce, deliver, bill, collect payment for, renew, and otherwise manage, market, and fulfill orders for the AMI Publications. 13

58 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 15 of 59 Pg ID 536 (c) Nothing in this Settlement Agreement shall prohibit the transfer by Defendants of Michigan Subscriber Information to a third party in connection with a sale, merger, licensing agreement (or termination of a licensing agreement) or other transaction that transfers control over all or substantially all of the assets of an AMI Publication or operating division that collects or processes Michigan Subscriber Information in the ordinary course of its business to such a third party, or to any third party with which AMI publishes and/or operates an AMI Publication, provided that such third party agrees to treat any Michigan Subscriber Information it acquires in accordance with Defendants obligations under Section 2.2 of this Agreement. 3. RELEASE. 3.1 The obligations incurred pursuant to this Settlement Agreement shall be a full and final disposition of the Action and any and all Released Claims, as against all Released Parties. 3.2 Upon the Effective Date, the Releasing Parties, and each of them, shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims against the Released Parties, and each of them. 4. NOTICE TO THE CLASS. 4.1 The Notice Plan shall consist of the following: (a) Settlement Class List. No later than fourteen (14) days after the execution of this Agreement, Defendants shall produce an electronic list from its records that includes the names, last known U.S. Mail addresses, and addresses, to the extent available, belonging to Persons within the Settlement Class. Class Counsel s assent to this Agreement shall constitute consent on behalf of the Settlement Class to disclose this information, consistent with the written consent provisions of the PPPA. This electronic document shall be called the Class List, and shall be provided to the Settlement Administrator with a copy to Class Counsel. 14

59 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 16 of 59 Pg ID 537 (b) Direct Notice via . No later than fourteen (14) days from entry of the Preliminary Approval Order, the Settlement Administrator shall send Notice via substantially in the form attached as Exhibit B, along with an electronic link to the Claim Form, to all Settlement Class Members for whom a valid address is in the Class List. In the event transmission of notice results in any bounce-backs, the Settlement Administrator shall, if possible, correct any issues that may have caused the bounce-back to occur and make a second attempt to re-send the notice. (c) Direct Notice via U.S. Mail. No later than the twenty-one (21) days from entry of the Preliminary Approval Order, the Settlement Administrator shall send notice substantially in the form attached as Exhibit C and a postcard Claim Form with return postage prepaid via First Class U.S. Mail to all Settlement Class Members who did not receive an pursuant to Paragraph 4.1(b), above. (d) Settlement Website. Within ten (10) days from entry of the Preliminary Approval Order, Notice shall be provided on a website at which shall be administered and maintained by the Settlement Administrator and shall include the ability to file Claim Forms on-line. The Notice provided on the Settlement Website shall be substantially in the form of Exhibit D hereto. (e) CAFA Notice. Pursuant to 28 U.S.C. 1715, not later than ten (10) days after the Agreement is filed with the Court, the Settlement Administrator shall cause to be served upon the Attorneys General of each U.S. State in which Settlement Class members reside, the Attorney General of the United States, and other required government officials, notice of the proposed settlement as required by law. 15

60 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 17 of 59 Pg ID The Notice shall advise the Settlement Class of their rights, including the right to be excluded from, comment upon, and/or object to the Settlement Agreement or any of its terms. The Notice shall specify that any objection to the Settlement Agreement, and any papers submitted in support of said objection, shall be considered by the Court at the Final Approval Hearing only if, on or before the Objection/Exclusion Deadline approved by the Court and specified in the Notice, the Person making the objection files notice of an intention to do so and at the same time (a) files copies of such papers he or she proposes to be submitted at the Final Approval Hearing with the Clerk of the Court, or alternatively, if the objection is from a Class Member represented by counsel, files any objection through the Court s CM/ECF system, and (b) sends copies of such papers by mail, hand, or overnight delivery service to Class Counsel and Defendants Counsel. 4.3 Any Settlement Class Member who intends to object to this Agreement must present the objection in writing, which must be personally signed by the objector, and must include: (1) the objector s name and address; (2) an explanation of the basis upon which the objector claims to be a Settlement Class Member, including the AMI Publication(s) to which he or she is or was a subscriber; (3) all grounds for the objection, including all citations to legal authority and evidence supporting the objection; (4) the name and contact information of any and all attorneys representing, advising, or in any way assisting the objector in connection with the preparation or submission of the objection or who may profit from the pursuit of the objection (the Objecting Attorneys ); and (5) a statement indicating whether the objector intends to appear at the Final Approval Hearing (either personally or through counsel who files an appearance with the Court in accordance with the Local Rules). 4.4 If a Settlement Class Member or any of the Objecting Attorneys has objected to any class action settlement where the objector or the Objecting Attorneys asked for or received 16

61 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 18 of 59 Pg ID 539 any payment in exchange for dismissal of the objection, or any related appeal, without any modification to the settlement, then the objection must include a statement identifying each such case by full case caption and amount of payment received. 4.5 A Settlement Class Member may request to be excluded from the Settlement Class by sending a written request postmarked on or before the Objection/Exclusion Deadline approved by the Court and specified in the Notice. To exercise the right to be excluded, a Person in the Settlement Class must timely send a written request for exclusion to the Settlement Administrator providing his/her name and address, the name of the American Media, Inc. and/or Odyssey Magazine Publishing Group, Inc. Publication(s) to which he or she is a subscriber, a signature, the name and number of the case, and a statement that he or she wishes to be excluded from the Settlement Class for purposes of this Settlement. A request to be excluded that does not include all of this information, or that is sent to an address other than that designated in the Notice, or that is not postmarked within the time specified, shall be invalid, and the Person(s) serving such a request shall be a member(s) of the Settlement Class and shall be bound as a Settlement Class Member by this Agreement, if approved. Any member of the Settlement Class who validly elects to be excluded from this Agreement shall not: (i) be bound by any orders or the Final Judgment; (ii) be entitled to relief under this Settlement Agreement; (iii) gain any rights by virtue of this Agreement; or (iv) be entitled to object to any aspect of this Agreement. The request for exclusion must be personally signed by the Person requesting exclusion. So-called mass or class opt-outs shall not be allowed. To be valid, a request for exclusion must be postmarked or received by the date specified in the Notice. 4.6 The Final Approval Hearing shall be no earlier than ninety (90) days after the Notice described in Paragraph 4.1(e) is provided. 17

62 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 19 of 59 Pg ID Any Settlement Class Member who does not, in accordance with the terms and conditions of this Agreement, seek exclusion from the Settlement Class or timely file a valid Claim Form shall not be entitled to receive any payment or benefits pursuant to this Agreement, but will otherwise be bound by all of the terms of this Agreement, including the terms of the Final Judgment to be entered in the Action and the Releases provided for in the Agreement, and will be barred from bringing any action against any of the Released Parties concerning the Released Claims. 5. SETTLEMENT ADMINISTRATION. 5.1 The Settlement Administrator shall, under the supervision of the Court, administer the relief provided by this Settlement Agreement by processing Claim Forms in a rational, responsive, cost effective, and timely manner. The Settlement Administrator shall maintain reasonably detailed records of its activities under this Agreement. The Settlement Administrator shall maintain all such records as are required by applicable law in accordance with its normal business practices and such records will be made available to Class Counsel and Defendants Counsel upon request. The Settlement Administrator shall also provide reports and other information to the Court as the Court may require. The Settlement Administrator shall provide Class Counsel and Defendants Counsel with information concerning Notice, administration, and implementation of the Settlement Agreement. Should the Court request, the Parties shall submit a timely report to the Court summarizing the work performed by the Settlement Administrator, including a report of all amounts from the Settlement Fund paid to Settlement Class Members on account of Approved Claims. Without limiting the foregoing, the Settlement Administrator shall: (a) Forward to Defendants Counsel, with copies to Class Counsel, all original documents and other materials received in connection with the administration of the Settlement, 18

63 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 20 of 59 Pg ID 541 and all copies thereof, within thirty (30) days after the date on which all Claim Forms have been finally approved or disallowed in accordance with the terms of this Agreement; (b) Receive requests to be excluded from the Settlement Class and other requests and promptly provide to Class Counsel and Defendants Counsel copies thereof. If the Settlement Administrator receives any exclusion forms or other requests after the deadline for the submission of such forms and requests, the Settlement Administrator shall promptly provide copies thereof to Class Counsel and Defendants Counsel; (c) Provide weekly reports to Class Counsel and Defendants Counsel, including without limitation, reports regarding the number of Claim Forms received, the number approved by the Settlement Administrator, and the categorization and description of Claim Forms rejected, in whole or in part, by the Settlement Administrator; and (d) Make available for inspection by Class Counsel or Defendants Counsel the Claim Forms received by the Settlement Administrator at any time upon reasonable notice. 5.2 The Settlement Administrator shall be obliged to employ reasonable procedures to screen claims for abuse or fraud and deny Claim Forms where there is evidence of abuse or fraud. The Settlement Administrator shall determine whether a Claim Form submitted by a Settlement Class Member is an Approved Claim by determining if the Person is on the Class List and shall reject Claim Forms that fail to (a) comply with the instructions on the Claim Form or the terms of this Agreement, or (b) provide full and complete information as requested on the Claim Form. In the event a Person submits a timely Claim Form by the Claims Deadline where the Person appears on the Class List but the Claim Form is not otherwise complete, then the Settlement Administrator shall give such Person one (1) reasonable opportunity to provide any requested missing information, which information must be received by the Settlement Administrator no later than thirty (30) calendar days after the Claims Deadline. In the event the 19

64 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 21 of 59 Pg ID 542 Settlement Administrator receives such information more than thirty (30) days after the Claims Deadline, then any such claim shall be denied. The Settlement Administrator may contact any Person who has submitted a Claim Form to obtain additional information necessary to verify the Claim Form. 5.3 Defendants Counsel and Class Counsel shall have the right to challenge the acceptance or rejection of a Claim Form submitted by Settlement Class Members. The Settlement Administrator shall follow any agreed decisions of Class Counsel and Defendants Counsel as to the validity of any disputed submitted Claim Form. To the extent Class Counsel and Defendants Counsel are not able to agree on the disposition of a challenge, the disputed claim shall be submitted to Wayne R. Andersen of JAMS for binding determination. 5.4 In the exercise of its duties outlined in this Agreement, the Settlement Administrator shall have the right to reasonably request additional information from the Parties or any Settlement Class Member. 6. TERMINATION OF SETTLEMENT. 6.1 Subject to Paragraphs below, Defendants or the Class Representatives on behalf of the Settlement Class, shall have the right to terminate this Agreement by providing written notice of the election to do so ( Termination Notice ) to all other Parties hereto within twenty-one (21) days of any of the following events: (i) the Court s refusal to grant Preliminary Approval of this Agreement in any material respect; (ii) the Court s refusal to grant final approval of this Agreement in any material respect; (iii) the Court s refusal to enter the Final Judgment in this Action in any material respect; (iv) the date upon which the Final Judgment is modified or reversed in any material respect by the Court of Appeals or the Supreme Court; or (v) the date upon which an Alternative Judgment, as defined in Paragraph 9.1(d) of this 20

65 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 22 of 59 Pg ID 543 Agreement is modified or reversed in any material respect by the Court of Appeals or the Supreme Court. 6.2 If prior to the Final Approval Hearing Persons who otherwise would be members of the Settlement Class have timely requested exclusion from the Settlement Class in accordance with the provisions of the Notice Order and the notice given pursuant thereto, and such Persons in the aggregate constitute more than three percent (3%) of the Settlement Class, Defendants shall have, in their sole and absolute discretion, the option to terminate this settlement in accordance with the procedures set forth in paragraph PRELIMINARY APPROVAL ORDER AND FINAL APPROVAL ORDER. 7.1 Promptly after the execution of this Settlement Agreement, Class Counsel shall submit this Agreement together with its Exhibits to the Court and shall move the Court for Preliminary Approval of the settlement set forth in this Agreement; certification of the Settlement Class for settlement purposes only; appointment of Class Counsel and the Class Representative; and entry of a Preliminary Approval Order, which order shall set a Final Approval Hearing date and approve the Notice and Claim Form for dissemination substantially in the form of Exhibits A, B, C, and D hereto. The Preliminary Approval Order shall also authorize the Parties, without further approval from the Court, to agree to and adopt such amendments, modifications and expansions of the Settlement Agreement and its implementing documents (including all exhibits to this Agreement) so long as they are consistent in all material respects with the terms of the Settlement Agreement and do not limit or impair the rights of the Settlement Class. 7.2 At the time of the submission of this Agreement to the Court as described above, Class Counsel shall request that, after Notice is given, the Court hold a Final Approval Hearing and approve the settlement of the Action as set forth herein. 21

66 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 23 of 59 Pg ID After Notice is given, the Parties shall request and seek to obtain from the Court a Final Judgment, which will (among other things): (a) find that the Court has personal jurisdiction over all Settlement Class Members and that the Court has subject matter jurisdiction to approve the Agreement, including all exhibits thereto; (b) approve the Settlement Agreement and the proposed settlement as fair, reasonable, and adequate as to, and in the best interests of, the Settlement Class Members; direct the Parties and their counsel to implement and consummate the Agreement according to its terms and provisions; and declare the Agreement to be binding on, and have res judicata and preclusive effect in all pending and future lawsuits or other proceedings maintained by or on behalf of Plaintiffs and Releasing Parties; (c) find that the Notice implemented pursuant to the Agreement (1) constitutes the best practicable notice under the circumstances; (2) constitutes notice that is reasonably calculated, under the circumstances, to apprise the Settlement Class of the pendency of the Action, their right to object to or exclude themselves from the proposed Agreement, and to appear at the Final Approval Hearing; (3) is reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice; and (4) meets all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause of the United States Constitution, and the rules of the Court; (d) find that the Class Representatives and Class Counsel adequately represent the Settlement Class for purposes of entering into and implementing the Agreement; (e) dismiss the Action (including all individual claims and Settlement Class Claims presented thereby) on the merits and with prejudice, without fees or costs to any party except as provided in the Settlement Agreement; 22

67 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 24 of 59 Pg ID 545 (f) incorporate the Release set forth above, make the Release effective as of the date of the Effective Date, and forever discharge the Released Parties as set forth herein; (g) permanently bar and enjoin all Settlement Class Members who have not been properly excluded from the respective Settlement Class from filing, commencing, prosecuting, intervening in, or participating (as class members or otherwise) in, any lawsuit or other action in any jurisdiction based on the Released Claims; (h) without affecting the finality of the Final Judgment for purposes of appeal, retain jurisdiction as to all matters relating to administration, consummation, enforcement, and interpretation of the Settlement Agreement and the Final Judgment, and for any other necessary purpose; and (i) incorporate any other provisions, as the Court deems necessary and just. 8. CLASS COUNSEL S ATTORNEYS FEES AND REIMBURSEMENT OF EXPENSES; INCENTIVE AWARD. 8.1 Defendants agree to pay to Class Counsel from the Settlement Fund, subject to Court approval, an amount not to exceed thirty-five percent (35%) of the Settlement Fund (or two million six hundred sixty thousand dollars ($2,660,000.00)), plus reimbursement of costs and expenses associated with the Action. Plaintiffs will petition the Court for an award of such attorneys fees and Defendants agree to not object to or otherwise challenge, directly or indirectly, Class Counsel s petition for reasonable attorneys fees and for reimbursement of expenses if limited to this amount. Class Counsel, in turn, agrees to seek no more than this amount from the Court in attorneys fees and for reimbursement of expenses. Payment of the Fee Award shall be made from the Settlement Fund and should the Court award less than the amount sought by Class Counsel, the difference in the amount sought and the amount ultimately awarded pursuant to this Paragraph shall remain in the Settlement Fund. 23

68 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 25 of 59 Pg ID The Fee Award shall be payable within seven (7) days after entry of the Court s Final Judgment, subject to Class Counsel executing the Undertaking Regarding Attorneys Fees and Costs (the Undertaking ) attached hereto as Exhibit E, and providing all payment routing information and tax I.D. numbers for Class Counsel. Payment of the Fee Award shall be made by wire transfer to Bursor & Fisher, P.A., as agent for Co-Lead Class Counsel, for distribution to and among counsel for Plaintiffs and the Class, in accordance with wire instructions to be provided to the Settlement Administrator by Bursor & Fisher, P.A., and completion of necessary forms, including but not limited to W-9 forms. Notwithstanding the foregoing, if for any reason the Final Judgment is reversed or rendered void as a result of an appeal(s) then any Persons or firms who shall have received such funds shall be severally liable for payments made pursuant to this subparagraph, and shall return such funds to the Settlement Fund. Additionally, should any parties to the Undertaking dissolve, merge, declare bankruptcy, become insolvent, or cease to exist prior to the final payment to Class Members, those parties shall execute a new undertaking guaranteeing repayment of funds within 14 days of such an occurrence. 8.3 Defendants agree to pay to the Class Representatives from the Settlement Fund, in addition to any settlement payment as a result of an Approved Claim pursuant to this Agreement, and in recognition of their efforts on behalf of the Settlement Class, subject to Court approval, an incentive award in the amount of ten thousand dollars ($10,000.00) to be divided between them equally. Defendants shall not object to or otherwise challenge, directly or indirectly, Class Counsel s application for the incentive award to the Class Representatives if limited to this amount. Class Counsel, in turn, agrees to seek no more than this amount from the Court as the incentive award for the Class Representatives. Should the Court award less than this amount, the difference in the amount sought and the amount ultimately awarded pursuant to this Paragraph shall remain in the Settlement Fund. Such award shall be paid from the Settlement Fund (in the 24

69 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 26 of 59 Pg ID 547 form of a check to each Class Representative that is sent care of Class Counsel), within five (5) business days after entry of the Final Judgment if there have been no objections to the Settlement Agreement, and, if there have been such objections, within five (5) business days after the Effective Date. 9. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 9.1 The Effective Date of this Settlement Agreement shall not occur unless and until each of the following events occurs and shall be the date upon which the last (in time) of the following events occurs: (a) (b) (c) The Parties and their counsel have executed this Agreement; The Court has entered the Preliminary Approval Order; The Court has entered an order finally approving the Agreement, following Notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and (d) The Final Judgment has become Final, as defined above, or, in the event that the Court enters an order and final judgment in a form other than that provided above ( Alternative Judgment ) and that has the consent of the Parties, such Alternative Judgment becomes Final. 9.2 If some or all of the conditions specified in Paragraph 9.1 are not met, or in the event that this Agreement is not approved by the Court, or the settlement set forth in this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendants Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in 25

70 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 27 of 59 Pg ID 548 substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court s failure to approve, in whole or in part, the attorneys fees payment to Class Counsel and/or the incentive award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination. 9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1 and above, the Parties shall be restored to their respective positions in the Action as of the date of the signing of this Agreement. In such event, any Final Judgment or other order entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and the Parties shall be returned to the status quo ante with respect to the Action as if this Agreement had never been entered into. 10. MISCELLANEOUS PROVISIONS The Parties (a) acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree, subject to their fiduciary and other legal obligations, to cooperate to the extent reasonably necessary to effectuate and implement all terms and conditions of this Agreement, to exercise their reasonable best efforts to accomplish the foregoing terms and conditions of this Agreement, to secure final approval, and to defend the Final Judgment through any and all appeals. Class Counsel and Defendants Counsel agree to cooperate with one another in seeking Court approval of the Settlement Agreement, entry of the Preliminary Approval Order, and the Final Judgment, and promptly to agree upon and execute all such other documentation as may be reasonably required to obtain final approval of the Agreement The Parties intend this Settlement Agreement to be a final and complete resolution of all disputes between them with respect to the Released Claims by Plaintiffs, the Settlement Class and each or any of them, on the one hand, against the Released Parties, and 26

71 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 28 of 59 Pg ID 549 each or any of the Released Parties, on the other hand. Accordingly, the Parties agree not to assert in any forum that the Action was brought by Plaintiffs or defended by Defendants, or each or any of them, in bad faith or without a reasonable basis The Parties have relied upon the advice and representation of counsel, selected by them, concerning their respective legal liability for the claims hereby released. The Parties have read and understand fully the above and foregoing agreement and have been fully advised as to the legal effect thereof by counsel of their own selection and intend to be legally bound by the same Whether or not the Effective Date occurs or the Settlement Agreement is terminated, neither this Agreement nor the settlement contained herein, nor any act performed or document executed pursuant to or in furtherance of this Agreement or the settlement: (a) is, may be deemed, or shall be used, offered or received against the Released Parties, or each or any of them, as an admission, concession or evidence of, the validity of any Released Claims, the truth of any fact alleged by the Plaintiffs, the deficiency of any defense that has been or could have been asserted in the Action, the violation of any law or statute, the reasonableness of the settlement amount or the Fee Award, or of any alleged wrongdoing, liability, negligence, or fault of the Released Parties, or any of them; (b) is, may be deemed, or shall be used, offered or received against Defendants, as an admission, concession or evidence of any fault, misrepresentation or omission with respect to any statement or written document approved or made by the Released Parties, or any of them; (c) is, may be deemed, or shall be used, offered or received against the Released Parties, or each or any of them, as an admission or concession with respect to any liability, negligence, fault or wrongdoing as against any Released Parties, in any civil, criminal 27

72 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 29 of 59 Pg ID 550 or administrative proceeding in any court, administrative agency or other tribunal. However, the settlement, this Agreement, and any acts performed and/or documents executed in furtherance of or pursuant to this Agreement and/or Settlement may be used in any proceedings as may be necessary to effectuate the provisions of this Agreement. Further, if this Settlement Agreement is approved by the Court, any Party or any of the Released Parties may file this Agreement and/or the Final Judgment in any action that may be brought against such Party or Parties in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim; (d) is, may be deemed, or shall be construed against Plaintiffs, the Settlement Class, the Releasing Parties, or each or any of them, or against the Released Parties, or each or any of them, as an admission or concession that the consideration to be given hereunder represents an amount equal to, less than or greater than that amount that could have or would have been recovered after trial; and (e) is, may be deemed, or shall be construed as or received in evidence as an admission or concession against Plaintiffs, the Settlement Class, the Releasing Parties, or each and any of them, or against the Released Parties, or each or any of them, that any of Plaintiffs claims are with or without merit or that damages recoverable in the Action would have exceeded or would have been less than any particular amount The headings used herein are used for the purpose of convenience only and are not meant to have legal effect The waiver by one Party of any breach of this Agreement by any other Party shall not be deemed as a waiver of any other prior or subsequent breaches of this Agreement. 28

73 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 30 of 59 Pg ID All of the Exhibits to this Agreement are material and integral parts thereof and are fully incorporated herein by this reference This Agreement and its Exhibits set forth the entire agreement and understanding of the Parties with respect to the matters set forth herein, and supersede all prior negotiations, agreements, arrangements and undertakings with respect to the matters set forth herein. No representations, warranties or inducements have been made to any Party concerning this Settlement Agreement or its Exhibits other than the representations, warranties and covenants contained and memorialized in such documents. This Agreement may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successorsin-interest Except as otherwise provided herein, each Party shall bear its own costs Plaintiffs represent and warrant that they have not assigned any claim or right or interest therein as against the Released Parties to any other Person or Party and that they are fully entitled to release the same Each counsel or other Person executing this Settlement Agreement, any of its Exhibits, or any related settlement documents on behalf of any Party hereto, hereby warrants and represents that such Person has the full authority to do so and has the authority to take appropriate action required or permitted to be taken pursuant to the Agreement to effectuate its terms This Agreement may be executed in one or more counterparts. Signature by digital means, facsimile, or in PDF format will constitute sufficient execution of this Agreement. All executed counterparts and each of them shall be deemed to be one and the same instrument. A complete set of original executed counterparts shall be filed with the Court if the Court so requests. 29

74 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 31 of 59 Pg ID This Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties hereto and the Released Parties The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of this Agreement, and all Parties hereto submit to the jurisdiction of the Court for purposes of implementing and enforcing the settlement embodied in this Agreement This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of Michigan This Agreement is deemed to have been prepared by counsel for all Parties, as a result of arm s-length negotiations among the Parties. Because all Parties have contributed substantially and materially to the preparation of this Agreement, it shall not be construed more strictly against one Party than another Where this Agreement requires notice to the Parties, such notice shall be sent to the undersigned counsel: Benjamin Thomassen, Edelson PC, 350 North LaSalle Street, Suite 1300, Chicago, Illinois 60654; Jacob Sommer, ZwillGen PLLC, 1900 M Street NW, Suite 250, Washington, D.C [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS] 30

75 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 32 of 59 Pg ID 553

76 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 33 of 59 Pg ID 554

77 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 34 of 59 Pg ID 555

78 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 35 of 59 Pg ID 556

79 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 36 of 59 Pg ID 557

80 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 37 of 59 Pg ID 558 Exhibit A

81 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 38 of 59 Pg ID 559 MAGAZINE SUBSCRIBER PRIVACY SETTLEMENT CLAIM FORM THIS CLAIM FORM MUST BE SUBMITTED ONLINE BY [CLAIMS DEADLINE] AND MUST BE FULLY COMPLETED, BE SIGNED, AND MEET ALL CONDITIONS OF THE SETTLEMENT AGREEMENT. Instructions: Fill out each section of this form and sign where indicated. Name (First, M.I., Last): Street Address: City: State: Zip Code: Address (optional): Contact Phone #: ( ) (You may be contacted if further information is required.) Class Member Verification: By submitting this claim form and checking the boxes below, I declare that I believe I am a member of the Settlement Class and that the following statements are true (each box must be checked to receive a payment): I had a Michigan street address and obtained a subscription to an American Media Inc. Publication between April 14, 2010 and July 31, American Media Inc. Publications include: Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. Under penalty of perjury, all information provided in this Claim Form is true and correct to the best of my knowledge and belief. Signature: Date: / / Print Name: The Settlement Administrator will review your Claim Form; if accepted you will be mailed a check for a pro rata share of the Settlement Fund depending on the number of valid claim forms received. This process takes time, please be patient. Questions, visit or call [toll free number]

82 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 39 of 59 Pg ID 560 Exhibit B

83 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 40 of 59 Pg ID 561 From: MagazineSettlement@americanmediaincsettlement.com To: JonQClassMember@domain.com Re: Legal Notice of Class Action Settlement NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Moeller et al. v. American Media Inc. et al.., Case No. 2:16-cv JEL-EAS (United States District Court for the Eastern District of Michigan) Our Records Indicate You Have Subscribed to an American Media Inc. and / or Odyssey Magazine Publishing Group Inc. Magazine and are Entitled to a Payment From a Class Action Settlement. This notice is to inform you that a settlement has been reached in a class action lawsuit claiming that Defendants, magazine publishers American Media Inc. and Odyssey Magazine Publishing Group Inc., disclosed its customers subscription information to third parties in violation of Michigan privacy law. The Defendants deny they violated any law, but have agreed to the settlement to avoid the uncertainties and expenses associated with continuing the case. Am I a Class Member? Our records indicate you may be a Class Member. Class Members are approximately 415,000 persons with Michigan street addresses who between April 14, 2010 and July 31, 2016 obtained a subscription to an AMI Publication, including Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. What Can I Get? If approved by the Court, Defendants will establish a Settlement Fund of $7,600, paid over two years to pay all valid claims submitted by the Settlement Class, together with notice and administration expenses, attorneys fees and costs, and an incentive award. If you are entitled to relief, you may submit a claim to receive a pro rata share of the Settlement Fund, estimated at $100 per class member. The Settlement also requires Defendants to not disclose their Michigan customers subscription information to third-party companies without the prior express written consent of the affected subscribers for a four-year period. How Do I Get a Payment? You must submit a timely and complete Claim Form no later than [claims deadline]. You can file a claim by clicking [here.] Your payment will come by check in two installments. What are My Other Options? You may exclude yourself from the Class by sending a letter to the settlement administrator no later than [objection/exclusion deadline]. If you exclude yourself, you cannot get a settlement payment, but you keep any rights you may have to sue the Defendants over the legal issues in the lawsuit. You and/or your lawyer have the right to appear before the Court and/or object to the proposed settlement. Your written objection must be filed no later than [objection/exclusion deadline]. Specific instructions about how to object to, or exclude yourself from, the Settlement are available at If you file a claim or do nothing, and the Court approves the Settlement, you will be bound by all of the Court s orders and judgments. In

84 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 41 of 59 Pg ID 562 addition, your claims relating to the alleged disclosure or subscriber information in this case against the Defendants will be released. Who Represents Me? The Court has appointed lawyers Jay Edelson of Edelson P.C. and Scott A. Bursor of Bursor & Fisher, P.A to represent the class. These attorneys are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer in this case, you may hire one at your expense. When Will the Court Consider the Proposed Settlement? The Court will hold the Final Approval Hearing at.m. on [date] at the Federal Building, Room 100, 200 East Liberty Street, Ann Arbor, Michigan. At that hearing, the Court will: hear any objections concerning the fairness of the settlement; determine the fairness of the settlement; decide whether to approve Class Counsel s request for attorneys fees and costs; and decide whether to award each of the two Class Representatives $5,000 from the Settlement Fund for their services in helping to bring and settle this case. Defendants have agreed to pay Class Counsel reasonable attorneys fees in an amount to be determined by the Court. Class Counsel is entitled to seek no more than 35% of the Settlement Fund, but the Court may award less than this amount. How Do I Get More Information? For more information, including the full Notice, Claim Form and Settlement Agreement go to contact the settlement administrator at or Magazine Subscriber Privacy Settlement Administrator, [address], or call Class Counsel at

85 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 42 of 59 Pg ID 563 Exhibit C

86 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 43 of 59 Pg ID 564 COURT AUTHORIZED NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT OUR RECORDS INDICATE YOU HAVE SUBSCRIBED TO AN AMERICAN MEDIA INC. AND/OR ODYSSEY MAGAZINE PUBLISHING GROUP INC. MAGAZINE AND ARE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT. Magazine Subscriber Privacy Settlement Settlement Administrator P.O. Box 0000 City, ST Postal Service: Please do not mark barcode XXX «ClaimID» «MailRec» «First1» «Last1» «C/O» «Addr1» «Addr2» «City», «St» «Zip» «Country» By Order of the Court Dated: [date]

87 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 44 of 59 Pg ID 565 MAGAZINE SUBSCRIBER PRIVACY SETTLEMENT CLAIM FORM THIS CLAIM FORM MUST BE POSTMARKED BY [CLAIMS DEADLINE] AND MUST BE FULLY COMPLETED, BE SIGNED, AND MEET ALL CONDITIONS OF THE SETTLEMENT AGREEMENT. Instructions: Fill out each section of this form and sign where indicated. Name (First, M.I., Last): Street Address: City: State: Zip Code: Address (optional): Contact Phone #: ( ) (You may be contacted if further information is required.) Class Member Verification: By submitting this claim form and checking the boxes below, I declare that I believe I am a member of the Settlement Class and that the following statements are true (each box must be checked to receive a payment): I had a Michigan street address and obtained a subscription to an American Media Inc. Publication between April 14, 2010 and July 31, American Media Inc. Publications include: Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. Under penalty of perjury, all information provided in this Claim Form is true and correct to the best of my knowledge and belief. Signature: Date: / / Print Name: The Settlement Administrator will review your Claim Form, if accepted you will be mailed a check for a pro rata share depending on the number of valid claim forms received. This process takes time, please be patient. Questions, visit or call [toll free number] A settlement has been reached in a class action lawsuit claiming that Defendants, magazine publishers American Media Inc. and Odyssey Magazine Publishing Group Inc., disclosed its customers subscription information to third parties in violation of Michigan privacy law. The Defendants deny it violated any law, but has agreed to the settlement to avoid the uncertainties and expenses associated with continuing the case. Am I a Class Member? Our records indicate you may be a Class Member. Class Members are approximately 415,000 persons with Michigan street addresses who between April 14, 2010 and July 31, 2016 obtained a subscription to an AMI Magazine including Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. What Can I Get? If approved by the Court, Defendants will establish a Settlement Fund of $7,600, paid over two years to pay all valid claims submitted by the Settlement Class, together with notice and administration expenses, attorneys fees and costs, and an incentive award. If you are entitled to relief, you may submit a claim to receive a pro rata share of the Settlement Fund, estimated at $100 per class member. The Settlement also requires Defendants to not disclose its Michigan customers subscription information to third-party companies without the prior express written consent of the affected subscribers for a four-year period. How Do I Get a Payment? You must submit a timely and complete Claim Form no later than [claims deadline]. A Claim Form is attached to this Notice or you can file online at [ Your payment will come after Defendants make the final installment payment. What are My Other Options? You may exclude yourself from the Class by sending a letter to the settlement administrator no later than [objection/exclusion deadline]. If you exclude yourself, you cannot get a settlement payment, but you keep any rights you may have to sue the Defendants over the legal issues in the lawsuit. You and/or your lawyer have the right to appear before the Court and/or object to the proposed settlement. Your written objection must be filed no later than [objection/exclusion deadline]. Specific instructions about how to object to, or exclude yourself from, the Settlement are available at [ If you file a claim or do nothing, and the Court approves the Settlement, you will be bound by all of the Court s orders and judgments. In addition, your claims relating to the alleged disclosure or subscriber information in this case against the Defendants will be released. Who Represents Me? The Court has appointed lawyers Jay Edelson and Scott A. Bursor to represent the class. These attorneys are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer in this case, you may hire one at your expense. When Will the Court Consider the Proposed Settlement? The Court will hold the Final Approval Hearing at.m. on [date] at the Federal Building, Room 100, 200 East Liberty Street, Ann Arbor, Michigan. At that hearing, the Court will: hear any objections concerning the fairness of the settlement; determine the fairness of the settlement; decide whether to approve Class Counsel s request for attorneys fees and costs; and decide whether to award each of the two Class Representatives $5,000 from the Settlement Fund for their services in helping to bring and settle this case. Defendants have agreed to pay Class Counsel reasonable attorneys fees in an amount to be determined by the Court. Class Counsel is entitled to seek no more than 35% of the Settlement Fund, but the Court may award less than this amount. How Do I Get More Information? For more information, including the full Notice, Claim Form and Settlement Agreement go to contact the settlement administrator at or Magazine Subscriber Privacy Settlement Administrator, [address], or call Class Counsel at

88 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 45 of 59 Pg ID 566 Magazine Subscriber Privacy Settlement Administrator c/o [Settlement Administrator] PO Box 0000 City, ST XXX

89 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 46 of 59 Pg ID 567 Exhibit D

90 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 47 of 59 Pg ID 568 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Moeller et al. v. American Media Inc. et al., Case No. 2:16-cv JEL-EAS IF YOU SUBSCRIBED TO AN AMERICAN MEDIA INC. AND / OR ODYSSEY PUBLISHING GROUP INC. MAGAZINE YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT. A court authorized this notice. You are not being sued. This is not a solicitation from a lawyer. A settlement has been reached in a class action lawsuit against magazine publishers American Media Inc. and Odyssey Magazine Publishing Group Inc. The class action lawsuit accuses American Media Inc. and Odyssey Magazine Publishing Group Inc. of disclosing their customers subscription information to third parties in violation Michigan privacy law. You are included if you had a Michigan street address and obtained a subscription to an American Media Inc. and/or Odyssey Magazine Publishing Group Inc. magazine between April 14, 2010 and July 31, American Media and Odyssey Publications include Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. Persons included in the Settlement will be eligible to receive a pro rata (meaning equal) portion of the Settlement Fund, which Class Counsel anticipates to be approximately $100. American Media Inc. and Odyssey Magazine Publishing Group Inc. have also agreed that, for a period of four (4) years following Preliminary Approval, they will not disclose any of its Michigan customers Subscriber Information to any third-party companies without the prior express written consent of the affected subscribers. Read this notice carefully. Your legal rights are affected whether you act, or don t act. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT SUBMIT A CLAIM This is the only way to receive a payment. FORM EXCLUDE You will receive no benefits, but you will retain any rights you currently YOURSELF have to sue the Defendants about the claims in this case. OBJECT GO TO THE HEARING DO NOTHING Write to the Court explaining why you don t like the Settlement. Ask to speak in Court about your opinion of the Settlement. You won t get a share of the Settlement benefits and will give up your rights to sue the Defendants about the claims in this case. Your rights and options and the deadlines to exercise them are explained in this Notice. QUESTIONS? CALL TOLL FREE, OR VISIT

91 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 48 of 59 Pg ID Why was this Notice issued? BASIC INFORMATION A Court authorized this notice because you have a right to know about a proposed Settlement of this class action lawsuit and about all of your options, before the Court decides whether to give final approval to the Settlement. This Notice explains the lawsuit, the Settlement, and your legal rights. The Honorable Judith E. Levy, of the U.S. District Court for the Eastern District of Michigan, is overseeing this case. The case is called Moeller et al. v. American Media, Inc. et al., Case No. 2:16-cv JEL-EAS. The persons who have sued are called the Plaintiffs. The Defendants are American Media Inc. and Odyssey Magazine Publishing Group, Inc. 2. What is a class action? In a class action, one or more people called class representatives (in this case, Elizabeth Moeller and Nicole Brisson) sue on behalf of a group or a class of people who have similar claims. In a class action, the court resolves the issues for all class members, except for those who exclude themselves from the Class. 3. What is this lawsuit about? This lawsuit claims that Defendants violated Michigan s Preservation of Personal Privacy Act, M.C.L ( PPPA ) by disclosing information related to its customers magazine subscriptions to third parties. The Defendants deny they violated any law. The Court has not determined who is right. Rather, the Parties have agreed to settle the lawsuit to avoid the uncertainties and expenses associated with ongoing litigation. 4. Why is there a Settlement? The Court has not decided whether the Plaintiffs or the Defendants should win this case. Instead, both sides agreed to a Settlement. That way, they avoid the uncertainties and expenses associated with ongoing litigation, and Class Members will get compensation sooner rather than, if at all, after the completion of a trial. WHO S INCLUDED IN THE SETTLEMENT?5. How do I know if I am in the Settlement Class? QUESTIONS? CALL TOLL FREE, OR VISIT

92 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 49 of 59 Pg ID 570 The Court decided that the approximately 415,000 people who fit the following description are members of the Settlement Class: Persons that had Michigan street addresses who obtained a subscription to an American Media Inc. and/or Odyssey Magazine Publishing Group Inc. Publication between April 14, 2010, and July 31, The covered magazines include: Country Weekly, Men s Fitness, Muscle & Fitness, Fit Pregnancy, Flex, Muscle & Fitness Hers, Natural Health, National Examiner, Shape, Star, OK!, Radar, Soap Opera Digest, National Enquirer, and Globe. 6. What does the Settlement provide? THE SETTLEMENT BENEFITS Monetary Relief: Defendants have created a Settlement Fund totaling $7,600,000.00, which they will pay in installments over two years. Class Member payments, and the cost to administer the Settlement, the cost to inform people about the Settlement, attorneys fees, and an award to the Class Representatives will also come out of this fund (see Question 13). Privacy Protections: In addition to this monetary relief, for a period of four (4) years following Preliminary Approval, the Defendants have agreed not to disclose any Michigan Subscriber Information to any third-party companies without the prior express written consent of the affected subscribers. A detailed description of the settlement benefits can be found in the Settlement Agreement. [insert hyperlink] 7. How much will my payment be? If you are member of the Settlement Class you may submit a Claim Form to receive a portion of the Settlement Fund. The amount of this payment will depend on how many of the Class Members file valid claims. Each Class Member who files a valid claim will receive a proportionate share of the Settlement Fund, which Class Counsel anticipates will be approximately $100. You can contact Class Counsel at to inquire as to the number of claims filed. 8. When will I get my payment? The hearing to consider the fairness of the settlement is scheduled for [Final Approval Hearing Date]. If the Court approves the settlement, eligible Class Members whose claims were approved by the Settlement Administrator will receive their payment 28 days after Defendants make their QUESTIONS? CALL TOLL FREE, OR VISIT

93 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 50 of 59 Pg ID 571 last installment payment into the settlement fund. The payment will be made in the form of a check, and all checks will expire and become void 90 days after they are issued. HOW TO GET BENEFITS 9. How do I get a payment? If you are a Class Member and you want to get a payment, you must complete and submit a Claim Form by [Claims Deadline]. Claim Forms can be found and submitted on-line or you may have received a Claim Form in the mail as a postcard attached to a summary of this notice. To submit a Claim Form on-line or to request a paper copy, go to [ or call toll free, We also encourage you to submit your claim on-line. Not only is it easier and more secure, but it is completely free and takes only minutes! REMAINING IN THE SETTLEMENT 10. What am I giving up if I stay in the Class? If the Settlement becomes final, you will give up your right to sue Defendants for the claims this Settlement resolve. The Settlement Agreement describes the specific claims you are giving up against the Defendants. You will be releasing the Defendants and certain of its affiliates described in Section 1.26 of the Settlement Agreement. Unless you exclude yourself (see Question 14), you are releasing the claims, regardless of whether you submit a claim or not. The Settlement Agreement is available through the court documents link on the website. The Settlement Agreement describes the released claims with specific descriptions, so read it carefully. If you have any questions you can talk to the lawyers listed in Question 12 for free or you can, of course, talk to your own lawyer if you have questions about what this means. 11. What happens if I do nothing at all? If you do nothing, you won t get any benefits from this Settlement. But, unless you exclude yourself, you won t be able to start a lawsuit or be part of any other lawsuit against the Defendants for the claims being resolved by this Settlement. 12. Do I have a lawyer in the case? THE LAWYERS REPRESENTING YOU QUESTIONS? CALL TOLL FREE, OR VISIT

94 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 51 of 59 Pg ID 572 The Court has appointed Jay Edelson of Edelson PC and Scott A. Bursor of Bursor & Fisher, P.A to be the attorneys representing the Settlement Class. They are called Class Counsel. They believe, after conducting an extensive investigation, that the Settlement Agreement is fair, reasonable, and in the best interests of the Settlement Class. You will not be charged for these lawyers. If you want to be represented by your own lawyer in this case, you may hire one at your expense. 13. How will the lawyers be paid? The Defendants have agreed to pay Class Counsel attorneys fees and costs in an amount to be determined by the Court. The fee petition will seek no more than thirtyfive percent (35%) of the Settlement Fund, plus reimbursement of their costs and expenses; the Court may award less than this amount. Under the Settlement Agreement, any amount awarded to Class Counsel will be paid out of the Settlement Fund. Subject to approval by the Court, Defendants have agreed to pay the two Class Representatives $5,000 each from the Settlement Fund for their services in helping to bring and settle this case. EXCLUDING YOURSELF FROM THE SETTLEMENT 14. How do I get out of the Settlement? To exclude yourself from the Settlement, you must mail or otherwise deliver a letter (or request for exclusion) stating that you want to be excluded from the Moeller et al. v. American Media Inc. et al., Case No. 2:16-cv JEL-EAS settlement. Your letter or request for exclusion must also include your name, your address, the name of the American Media Inc. and/or Odyssey Magazine Publishing Group Inc. publication(s) to which you subscribed, your signature, the name and number of this case, and a statement that you wish to be excluded. You must mail or deliver your exclusion request no later than [objection/exclusion deadline] to: Magazine Subscriber Privacy Settlement 0000 Street City, ST If I don t exclude myself, can I sue the Defendant for the same thing later? No. Unless you exclude yourself, you give up any right to sue the Defendants for the claims being resolved by this Settlement. 16. If I exclude myself, can I get anything from this Settlement? No. If you exclude yourself, do not submit a Claim Form to ask for benefits. QUESTIONS? CALL TOLL FREE, OR VISIT

95 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 52 of 59 Pg ID How do I object to the Settlement? OBJECTING TO THE SETTLEMENT If you re a Class Member, you can object to the Settlement if you don t like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must file with the Court a letter or brief stating that you object to the Settlement in Moeller et al. v. American Media Inc. et al., Case No. 2:16-cv JEL-EAS and identify all your reasons for your objections (including citations and supporting evidence) and attach any materials you rely on for your objections. Your letter or brief must also include your name, your address, the basis upon which you claim to be a Class Member (including the name of the American Media Inc., and/or Odyssey Magazine Publishing Group, Inc. magazine(s) to which you are or were a subscriber), the name and contact information of any and all attorneys representing, advising, or in any way assisting you in connection with your objection, and your signature. If you, or an attorney assisting you with your objection, have ever objected to any class action settlement where you or the objecting attorney has asked for or received payment in exchange for dismissal of the objection (or any related appeal) without modification to the settlement, you must include a statement in your objection identifying each such case by full case caption. You must also mail or deliver a copy of your letter or brief to Class Counsel and Defendants Counsel listed below. Class Counsel will file with the Court and post on this website its request for attorneys fees by [two weeks prior to objection deadline]. If you want to appear and speak at the Final Approval Hearing to object to the Settlement, with or without a lawyer (explained below in answer to Question Number 21), you must say so in your letter or brief. File the objection with the Court and mail a copy to these two different places postmarked no later than [objection deadline]. Court The Hon Judith E. Levy Federal Building, Suite East Liberty Street Ann Arbor, Michigan Class Counsel Jay Edelson Edelson PC 350 North LaSalle St Suite 1300 Chicago, IL Scott A. Bursor Bursor & Fisher PA 888 Seventh Avenue New York, NY Defendants Counsel Jacob Sommer ZwillGen PLLC 1900 M St NW Suite 250 Washington, DC What s the difference between objecting and excluding myself from the Settlement? QUESTIONS? CALL TOLL FREE, OR VISIT

96 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 53 of 59 Pg ID 574 Objecting simply means telling the Court that you don t like something about the Settlement. You can object only if you stay in the Class. Excluding yourself from the Class is telling the Court that you don t want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you. THE COURT S FINAL APPROVAL HEARING 19. When and where will the Court decide whether to approve the Settlement? The Court will hold the Final Approval Hearing at [time] on Month 00, 2017 in Courtroom 100 at the Federal Building, 200 East Liberty Street, Ann Arbor, Michigan. The purpose of the hearing will be for the Court to determine whether to approve the Settlement as fair, reasonable, adequate, and in the best interests of the Class; to consider the Class Counsel s request for attorneys fees and expenses; and to consider the request for an incentive award to the Class Representative. At that hearing, the Court will be available to hear any objections and arguments concerning the fairness of the Settlement. The hearing may be postponed to a different date or time without notice, so it is a good idea to check [ or call If, however, you timely objected to the Settlement and advised the Court that you intend to appear and speak at the Final Approval Hearing, you will receive notice of any change in the date of such Final Approval Hearing. 20. Do I have to come to the hearing? No. Class Counsel will answer any questions the Court may have. But, you are welcome to come at your own expense. If you send an objection or comment, you don t have to come to Court to talk about it. As long as you filed and mailed your written objection on time, the Court will consider it. You may also pay another lawyer to attend, but it s not required. 21. May I speak at the hearing? Yes. You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must include in your letter or brief objecting to the settlement a statement saying that it is your Notice of Intent to Appear in Moeller et al. v. American Media Inc. et al., Case No. 2:16-cv JEL-EAS. It must include your name, address, telephone number and signature as well as the name and address of your lawyer, if one is appearing for you. Your objection and notice of intent to appear must be filed with the Court and postmarked no later than [objection deadline], and be sent to the addresses listed in Question 17. GETTING MORE INFORMATION QUESTIONS? CALL TOLL FREE, OR VISIT

97 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 54 of 59 Pg ID Where do I get more information? This Notice summarizes the Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement at You may also write with questions to Magazine Subscriber Privacy Settlement, P.O. Box 0000, City, ST You can call the Settlement Administrator at or Class Counsel at , if you have any questions. Before doing so, however, please read this full Notice carefully. You may also find additional information elsewhere on the case website. QUESTIONS? CALL TOLL FREE, OR VISIT

98 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 55 of 59 Pg ID 576 Exhibit E

99 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 56 of 59 Pg ID 577 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ELIZABETH MOELLER and NICOLE BRISSON, individually and on behalf of all others similarly situated, Plaintiffs, Case No. 2:16-cv JEL-EAS [Hon. Judith E. Levy] v. AMERICAN MEDIA, INC., a Delaware corporation, and ODYSSEY MAGAZINE PUBLISHING GROUP, INC., a Delaware corporation, Defendants. STIPULATION REGARDING UNDERTAKING RE: ATTORNEYS FEES AND COSTS Plaintiffs Elizabeth Moeller and Nicole Brisson and Defendants, American Media, Inc. ( AMI ), and Odyssey Magazine Publishing Group, Inc., now known as AMI Celebrity Publications, LLC 1 ( Odyssey, and together, Defendants ) (collectively, the Parties ), by and through and including their undersigned counsel, stipulate and agree as follows: WHEREAS, Class Counsel and their law firms Bursor & Fisher P.A. and Edelson PC desire to give an undertaking (the Undertaking ) for repayment of their award of attorney fees and costs, approved by the Court, and WHEREAS, the Parties agree that this Undertaking is in the interests of all Parties and in service of judicial economy and efficiency. NOW, THEREFORE, each of the undersigned Class Counsel, on behalf of themselves as individuals and as agents for their law firm, hereby submit themselves and their respective law 1 Odyssey Magazine Publishing Group, Inc. was merged out of existence on March 31, It merged into AMI Celebrity Publications, LLC, a wholly-owned subsidiary of Defendant American Media. Wherever this Undertaking refers to Odyssey, the parties agree that those provisions will apply with equal force to AMI Celebrity Publications, LLC.

100 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 57 of 59 Pg ID 578 firms to the jurisdiction of the Court for the purpose of enforcing the provisions of this Undertaking. Capitalized terms used herein without definition have the meanings given to them in the Settlement Agreement. By receiving any payments pursuant to the Settlement Agreement, Bursor & Fisher, P.A. and Edelson PC and their shareholders, members, and/or partners submit to the jurisdiction of the United States District Court for the Eastern District of Michigan for the enforcement of and any and all disputes relating to or arising out of the reimbursement obligation set forth herein and the Settlement Agreement. In the event that the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendants the full amount of the attorneys fees and costs paid by Defendants to Class Counsel, including any accrued interest. In the event the attorney fees and costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Defendants the attorneys fees and costs paid by Defendants to Class Counsel and/or Representative Plaintiffs in the amount vacated or modified, including any accrued interest. This Undertaking and all obligations set forth herein shall expire upon finality of all direct appeals of the Final Settlement Order and Judgment. In the event Class Counsel fails to repay to Defendants any of attorneys fees and costs that are owed to it pursuant to this Undertaking, the Court shall, upon application of Defendants, 2

101 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 58 of 59 Pg ID 579 and notice to Class Counsel, summarily issue orders, including but not limited to judgments and attachment orders against each of Class Counsel, and may make appropriate findings for sanctions for contempt of court. The undersigned stipulate, warrant, and represent that they have both actual and apparent authority to enter into this stipulation, agreement, and undertaking on behalf of Bursor & Fisher, P.A. and Edelson PC. This Undertaking may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Signatures by facsimile shall be as effective as original signatures. The undersigned declare under penalty of perjury under the laws of the United States that they have read and understand the foregoing and that it is true and correct. IT IS SO STIPULATED THROUGH COUNSEL OF RECORD: [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS] 3

102 5:16-cv JEL-EAS Doc # 37-2 Filed 07/31/17 Pg 59 of 59 Pg ID 580

103 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 1 of 33 Pg ID 581 Exhibit B

104 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 2 of 33 Pg ID 582 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ELIZABETH MOELLER and NICOLE BRISSON, individually and on behalf of all others similarly situated, Plaintiffs, Case No. 2:16-cv JEL-EAS [Hon. Judith E. Levy] v. AMERICAN MEDIA, INC., a Delaware corporation, and ODYSSEY MAGAZINE PUBLISHING GROUP, INC., a Delaware corporation, Defendants. DECLARATION OF RAFEY S. BALABANIAN IN SUPPORT OF PLAINTIFFS MOTION FOR ATTORNEYS FEES, EXPENSES, AND INCENTIVE AWARD Pursuant to 28 U.S.C. 1746, I hereby declare and state as follows: 1. I am an adult over the age of 18 and a resident of the State of Illinois. I am the Managing Partner of Edelson PC, which, along with co-counsel, has been retained to represent Plaintiffs Elizabeth Moeller and Nicole Brisson ( Plaintiffs ) in this matter and I am admitted to practice before this Court. I make this Declaration in support of Plaintiffs Motion for and Brief in Support of Attorneys Fees, Expenses, and Incentive Award, and am fully competent to do so. I have 1

105 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 3 of 33 Pg ID 583 personal knowledge of all matters set forth herein unless otherwise indicated, and if called upon to testify, I could and would competently do so. 2. My law firm was the first to bring claims against various magazine publishers under Michigan s Preservation of Personal Privacy Act, M.C.L , et seq. As a result of that experience, my firm has a sophisticated understanding of the industry, as well as the practices of some of the other major actors we have come across in the space. Taking that experience, and working with co-counsel leading the investigation of the Plaintiffs claims, my firm assisted in the preparation of the lawsuit. And, once the litigation got under way, my firm led the effort researching and drafting Plaintiffs opposition to the motion to dismiss filed by Defendants American Media, Inc. and Odyssey Magazine Publishing Group, Inc. (collectively, Defendants ). 3. In the course of briefing Defendants motion to dismiss shortly after Plaintiffs filed their opposition but before Defendants filed their reply the Parties began discussing the possibility of early resolution, and agreed to jointly move to stay the remainder of the briefing on Defendants motion, so they could mediate the case. 4. On October 6, 2016, the Parties attended a full-day, in-person mediation with Judge Wayne Andersen (ret.) at JAMS (Chicago), where they engaged in multiple rounds of arm s-length negotiations. My partner, Jay Edelson, 2

106 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 4 of 33 Pg ID 584 led the mediation on behalf of Plaintiffs, and was assisted in his efforts by our cocounsel, Scott Bursor and Joseph Marchese, who brought their investigatory knowledge to the mediation. Though they exchanged several offers and counter offers, and despite their best efforts, the Parties were unable to make substantial progress toward a resolution at the initial mediation. To underscore how differently they saw the case, following the mediation, Judge Andersen made a mediator s proposal to settle the case for a certain dollar amount, but the proposal was not accepted. 5. With the mediation having failed to result in a settlement, the Parties returned to litigation. Defendants filed their reply brief in support of their motion to dismiss and the Court held oral argument on the motion, which my firm argued on behalf of Plaintiffs. 6. Following argument, on January 27, 2017, the Court denied Defendants Motion to Dismiss, (dkt. 23), the Defendants eventually filed their Answer, (dkt. 24), and the Court entered its Scheduling Order, (dkt. 25). Thereafter, the Parties embarked on discovery, exchanging initial disclosures under Rule 26(a)(1), and Plaintiffs propounded written discovery, including interrogatories and document requests, which my firm drafted in collaboration with our co-counsel. 3

107 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 5 of 33 Pg ID As the case progressed, the Parties continued to discuss the possibility of settlement, and re-engaged Judge Andersen to help resolve the dispute as they continued to litigate the case. Over the next several weeks, Judge Andersen separately caucused with the Parties at least a dozen times, including through phone calls on nights and weekends. I led the negotiations on behalf of Plaintiffs that took place through caucusing with Judge Andersen over the phone. Ultimately, Judge Andersen made a second mediator s proposal on March 22, 2017, which the Parties accepted on March 28, Over the following days, my firm, in collaboration with our cocounsel, drafted, revised, and finalized the Class Action Settlement Agreement that was ultimately presented to the Court. My firm then took the lead in drafting Plaintiff s motion for preliminary approval, and the lead associate on the case, Benjamin Thomassen, appeared for oral argument on the motion. 9. The resulting Settlement secures substantial relief for the class, delivering both immediate cash benefits and significant prospective changes with respect to Defendant s practices. The Class approximates 415,000 magazine subscribers across the state of Michigan who purchased a AMI and/or Odyssey magazine subscription between April 14, 2010 and July 31, With a $7.6 million non-reversionary Settlement Fund, and based on typical class action claims rates, including in the PPPA context, Class Counsel estimates that each claimant 4

108 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 6 of 33 Pg ID 586 should receive approximately $100. Thus, and whether on an absolute or perclaimant basis, the instant settlement is the largest PPPA settlement in this District. The settlement therefore yields substantial value for the Class, and that s especially so when weighed against the risk of continued litigation, including the likelihood of appeals by the Defendants and other obstacles that could prevent class-wide resolution. 10. My firm, as well attorneys from Bursor & Fisher, have worked, and will continued to work, with the Court-appointed Settlement Administrator, Kurtzman Carson Consultants, LLC ( KCC ), so as to ensure the efficient and timely dissemination of notice to Class members. We have closely monitored the claims rate of the Settlement and, as of this submission, still believe the $100 per claimant payout is an accurate estimate. 11. Class Counsel undertook this litigation on a purely contingent basis. For over a year, my law firm has devoted significant time, effort, and resources to the litigation. This involved, inter alia, investigating the claims, including Defendant s business practices, engaging in dispositive and other motion practice, exchanging written discovery, and ultimately taking part in not only a full day of private mediation, but weeks of discussions and engagement with the mediator in order to try and resolve the action. 5

109 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 7 of 33 Pg ID Class Counsel fronted this investment of time and resources, despite the significant risk of nonpayment inherent in the case. Given the defenses mounted by Defendants, as well as the fairly limited history of PPPA litigation, success on the legal issues presented by the case was far from certain. This was especially true in the context of this litigation, given the substantial uncertainty surrounding the Supreme Court s decision in Spokeo v. Robins, the Michigan Legislature s amendments to the PPPA, and the Sixth Circuit s decision in Coulter-Owens v. Time, Inc. 13. Class Counsel are well-respected attorneys with significant experience litigating consumer class actions of similar size, scope, and complexity. (See also Edelson PC Resume, a true and accurate copy of which is attached hereto as Exhibit 1.) 14. Class Counsel also faced formidable defense counsel in this action. Defendants attorneys are highly qualified, representing leading magazine publishers in related PPPA litigation. These same attorneys have been successful in defeating two other lawsuits brought by my firm under the PPPA. Unsurprisingly, opposing counsel vigorously defended their clients throughout the litigation and made clear that, absent a settlement, they would continue to do so. 15. To date, my firm has expended a total of hours litigating this case. This total has been adjusted for time that has been deemed unnecessary or 6

110 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 8 of 33 Pg ID 588 duplicative. It is the firm policy of Edelson PC that each of the attorneys and student law clerks/summer associates are responsible for keeping track of their billable time by at least the tenth of the hour through a billing management software program known as FreshBooks. The time incurred by Edelson PC is reflected the chart included below, which I have reviewed and attest represents the hours submitted by the Edelson PC attorneys listed therein. ATTORNEY (POSITION) YEARS OF EXPERIENCE HOURS HOURLY RATE TOTAL Jay Edelson (Founder & CEO) $750 $72, Rafey S. Balabanian (Managing Partner) $650 $102, Eve-Lynn Rapp (Hiring Partner) $550 $29, Ryan Andrews (Partner) $610 $25, Ari Scharg (Partner) $540 $35, Benjamin Thomassen (Associate) $425 $65, Dillon Brozyna (Associate) $425 $31, Law Clerks N/A 93.7 $215 $20, TOTAL $383, My firm s total attorney time incurred in this matter, at our current hourly billing rates, amounts to $383,187. These are the same billing rates that Edelson PC charges to clients that retain its services and are billed on an hourly 7

111 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 9 of 33 Pg ID 589 basis. The above figure does not include the additional $35,000 to $50,000 in attorneys fees that Class Counsel will likely incur in connection with proceeding through final approval, the claims administration process, and dealing with any potential objections. The figure does not include Class Counsel s out-of-pocket expenses for compensable categories such as document preparation and travel, which amounts to $7,985.08, but the attorneys fees requested herein are inclusive of Class Counsels expenses. A breakdown of these expenses is reflected in Exhibit 2, attached hereto. 17. I am of the opinion that Ms. Moeller s and Ms. Brisson s active involvement in this case was critical to its ultimate resolution. They took their role as class representatives seriously, devoting significant amounts of time and effort to protecting the interests of the class. Without their willingness to assume the risks and responsibilities of serving as class representatives, I do not believe such a strong result could have been achieved. 18. Plaintiffs equipped Class Counsel with critical details regarding their experiences with Defendants. They assisted Class Counsel in investigating their claims, detailing their subscription histories and aiding in drafting the complaint. Plaintiffs were also actively consulted during the settlement process. 8

112 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 10 of 33 Pg ID In short, Plaintiffs have assisted Class Counsel in pursuing this action on behalf of the class, and their involvement in this case has been nothing short of essential. * * * I declare, under penalty of perjury that the foregoing is true and correct. Executed July 31, 2017 at San Francisco, California. /s/ Rafey S. Balabanian 9

113 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 11 of 33 Pg ID 591 Exhibit 1

114 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 12 of 33 Pg ID 592 EDELSON PC FIRM RESUME EDELSON PC is a plaintiffs class action and commercial litigation firm with attorneys in Illinois and California. Our attorneys have been recognized as leaders in these fields by state and federal courts, legislatures, national and international media groups, and our peers. Our reputation has led state and federal courts across the country to appoint us lead counsel in many high-profile cases, including in cutting-edge privacy class actions against comscore, Netflix, Time, Microsoft, and Facebook; Telephone Consumer Protection Act class actions against technology, media, and retail companies such as Google, Twentieth Century Fox, Simon & Schuster, and Steve Madden; data security class actions against LinkedIn, Advocate Hospitals, and AvMed; banking cases against Citibank, Wells Fargo, and JP Morgan Chase related to reductions in home equity lines of credit; fraudulent marketing cases against software companies such as Symantec, AVG and Ascentive; mobile content class actions against all major cellular telephone carriers; and product liability cases, including the Thomas the Tank Engine lead paint class actions and the tainted pet food litigation. We have testified before the United States Senate on class action issues and have repeatedly been asked to work on federal and state legislation involving cellular telephony, privacy, and other consumer issues. Our attorneys have appeared on dozens of national and international television and radio programs, and in numerous national and international publications, discussing our cases and class action and consumer protection issues more generally. Our attorneys speak regularly at seminars on consumer protection and class action issues, and also lecture on class actions at law schools. PLAINTIFFS CLASS AND MASS ACTION PRACTICE GROUP EDELSON PC is a leader in plaintiffs class and mass action litigation, with a focus on consumer technology. Our firm is known for securing multi-million dollar settlements against tech giants (Chicago Daily Law Bulletin, September 2013), and has been specifically recognized as pioneers in the electronic privacy class action field, having litigated some of the largest consumer class actions in the country on this issue. See In re Facebook Privacy Litig., No. C (N.D. Cal. Dec. 10, 2010) (order appointing us interim co-lead of privacy class action); see also In re Netflix Privacy Litig., No. 11-cv (N.D. Cal. Aug. 12, 2011) (appointing us sole lead counsel due, in part, to our significant and particularly specialized expertise in electronic privacy litigation and class actions.... ). Law360 has called us a Titan of the Plaintiffs Bar, a Plaintiffs Class Action powerhouse and a Privacy Litigation Heavyweight. We have also been recognized by courts for our uniquely zealous and efficient approach to litigation, which led the then-chief Judge of the United States Court for the Northern District of Illinois to praise our work as consistent with the highest standards of the profession and a model of what the profession should be.... In re Kentucky Fried Chicken Coupon Marketing & Sales Practices Litig., No. 09-cv-7670, MDL 2103 (N.D. Ill. Nov. 30, 2011). Likewise, in appointing our firm interim co-lead in one of the most high profile banking cases in the country, a federal court pointed to our ability to be vigorous advocates, constructive problem-solvers, and civil with their adversaries. In Re JPMorgan Chase Home Equity Line of Credit Litig., No. 10 C 3647 (N.D. Ill. July 16, 2010). After hard fought litigation, that case

115 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 13 of 33 Pg ID 593 settled, resulting in the reinstatement of between $3.2 billion and $4.7 billion in home credit lines. We have several sub-specialties within our plaintiffs class action practice: Telephone Consumer Protection Act EDELSON PC has been at the forefront of TCPA litigation for nearly a decade, having secured the groundbreaking Satterfield ruling in the Ninth Circuit applying the TCPA to text messages, Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), and the largest (up to $76 million in total monetary relief) TCPA settlement to date. See Birchmeier v. Caribbean Cruise Line, Inc., et al., No. 12-cv-4069 (N.D. Ill.). In addition to numerous settlements collectively providing over $200 million to consumers we have over two dozen putative TCPA class actions pending against companies including Santander Consumer USA, Inc., GrubHub, United Student Aid Funds, NCO Financial Systems, and NRG Energy. Representative settlements and ongoing cases include: Birchmeier v. Caribbean Cruise Line, Inc., et al., No. 12-cv-4069 (N.D. Ill.): Co-lead counsel in class action alleging that defendant violated federal law by making unsolicited telemarketing calls. Obtained adversarial class certification of nationwide class of approximately 1 million consumers. On the eve of trial, case resulted in the largest TCPA settlement to date, totaling up to $76 million in monetary relief. Kolinek v. Walgreen Co., No. 13-cv-4806 (N.D. Ill.): Lead counsel in class action alleging that defendant violated federal law by making unsolicited prescription reminder calls. Won reconsideration of dismissal based upon whether provision of telephone number constituted consent to call. Case settled for $11 million. Hopwood v. Nuance Communications, Inc., et al., No. 13-cv-2132 (N.D. Cal.): Lead counsel in class action alleging that defendants violated federal law by making unsolicited marketing calls to consumers nationwide. $9.245 million settlement provided class members option to claim unprecedented relief based upon total number of calls they received. Settlement resulted in some class members receiving in excess of $10,000 each. Rojas v CEC, No. 10-cv (N.D. Ill.): Lead counsel in text spam class action that settled for $19,999,400. In re Jiffy Lube Int l Text Spam Litigation, No. 11-md-2261, 2012 WL (S.D. Cal.): Co-lead counsel in $35 million text spam settlement. Ellison v Steve Madden, Ltd., No. cv PSG (C.D. Cal.): Lead counsel in $10 million text spam settlement. EDELSON PC Firm Resume as of July

116 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 14 of 33 Pg ID 594 PRIVACY/DATA LOSS Kramer v. B2Mobile, No. 10-cv CW (N.D. Cal.): Lead counsel in $12.2 million text spam settlement. Wright, et al. v. Nationstar Mortgage, LLC, No. 14-cv (N.D. Ill.): Co-lead counsel in $12.1 million debt collection call settlement. Pimental v. Google, Inc., No. 11-cv (N.D. Cal.): Lead counsel in class action alleging that defendant co-opted group text messaging lists to send unsolicited text messages. $6 million settlement provides class members with an unprecedented $500 recovery. Robles v. Lucky Brand Dungarees, Inc., No. 10-cv (N.D. Cal.): Lead counsel in $10 million text spam settlement. Miller v. Red Bull, No. 12-CV (N.D. Ill.): Lead counsel in $6 million text spam settlement. Woodman v. ADP Dealer Services, No CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in $7.5 million text spam settlement. Lockett v. Mogreet, Inc., No 2013 CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in $16 million text spam settlement. Lozano v. 20th Century Fox, No. 09-cv (N.D. Ill.): Lead counsel in class action alleging that defendants violated federal law by sending unsolicited text messages to cellular telephones of consumers. Case settled for $16 million. Satterfield v. Simon & Schuster, No. C CW (N.D. Cal.): Co-lead counsel in in $10 million text spam settlement. Weinstein v. Airit2me, Inc., No. 06 C 0484 (N.D. Ill): Co-lead counsel in $7 million text spam settlement. Data Loss/Unauthorized Disclosure of Data We have litigated numerous class actions involving issues of first impression against Facebook, Apple, Netflix, Sony, Gannett, Redbox, Pandora, Sears, Storm 8, Google, T- Mobile, Microsoft, and others involving failures to protect customers private information, security breaches, and unauthorized sharing of personal information with third parties. Representative settlements and ongoing cases include: Dunstan v. comscore, Inc., No. 11-cv-5807 (N.D. Ill.): Lead counsel in certified class action accusing Internet analytics company of improper data EDELSON PC Firm Resume as of July

117 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 15 of 33 Pg ID 595 collection practices. The court has finally approved a $14 million settlement. Resnick v. Avmed, No. 10-cv (S.D. Fla.): Lead counsel in data breach case filed against health insurance company. Obtained landmark appellate decision endorsing common law unjust enrichment theory, irrespective of whether identity theft occurred. Case also resulted in the first class action settlement in the country to provide data breach victims with monetary payments irrespective of identity theft. In re Netflix Privacy Litig., No. 11-cv (N.D. Cal.): Sole lead counsel in suit alleging that defendant violated the Video Privacy Protection Act by illegally retaining customer viewing information. Case resulted in a $9 million dollar cy pres settlement that has been finally approved. Halaburda v. Bauer Publishing Co., No. 12-cv (E.D. Mich.); Grenke v. Hearst Communications, Inc., No. 12-cv (E.D. Mich.); Fox v. Time, Inc., No. 12-cv (E.D. Mich.): Consolidated actions brought under Michigan s Preservation of Personal Privacy Act, alleging unlawful disclosure of subscribers personal information. In a groundbreaking decision, the court denied three motions to dismiss finding that the magazine publishers were covered by the act and that the illegal sale of personal information triggers an automatic $5,000 award to each aggrieved consumer. In January and July of 2015, final approval was granted to a settlement reached in the Bauer Publishing matter and an adversarial class was certified in the Time case, respectively. Standiford v. Palm, No. 09-cv LHK (N.D. Cal.): Sole lead counsel in data loss class action, resulting in $640,000 settlement. In re Zynga Privacy Litig., No. 10-cv (N.D. Cal.): Appointed colead counsel in suit against gaming application designer for the alleged unlawful disclosure of its users' personally identifiable information to advertisers and other third parties. In re Facebook Privacy Litig., No. 10-cv (N.D. Cal.): Appointed co-lead counsel in suit alleging that Facebook unlawfully shared its users sensitive personally identifiable information with Facebook s advertising partners. In re Sidekick Litig., No. C JW (N.D. Cal.): Co-lead counsel in cloud computing data loss case against T-Mobile and Microsoft. Settlement provided the class with potential settlement benefits valued at over $12 million. EDELSON PC Firm Resume as of July

118 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 16 of 33 Pg ID 596 CONSUMER TECHNOLOGY Desantis v. Sears, No. 08 CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in injunctive settlement alleging national retailer allowed purchase information to be publicly available through the Internet. Fraudulent Software In addition to the settlements listed below, EDELSON PC has consumer fraud cases pending in courts nationwide against companies such as McAfee, Inc., Avanquest North America Inc., PC Cleaner, AVG, iolo Technologies, LLC, among others. Representative settlements include: Video Games Drymon v. Cyberdefender, No. 11 CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $9.75 million. Gross v. Symantec Corp., No. 12-cv CRB (N.D. Cal.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $11 million. LaGarde v. Support.com, Inc., No. 12-cv JSC (N.D. Cal.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $8.59 million. Ledet v. Ascentive LLC, No. 11-CV-294-PBT (E.D. Pa.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $9.6 million. Webb v. Cleverbridge, Inc., No. 1:11-cv (N.D. Ill.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $5.5 million. EDELSON PC has litigated cases video-game related cases against Activision Blizzard Inc., Electronic Arts, Inc., Google, and Zenimax Media, Inc. MORTGAGE & BANKING EDELSON PC has been at the forefront of class action litigation arising in the aftermath of the federal bailouts of the banks. Our suits include claims that certain banks unlawfully suspended home credit lines based on pre-textual reasons, and that certain banks have failed to honor loan modification programs. We achieved the first federal appellate decision in the country recognizing the right of borrowers to enforce HAMP trial plans under state law. The court noted that [p]rompt resolution of this matter is necessary not EDELSON PC Firm Resume as of July

119 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 17 of 33 Pg ID 597 only for the good of the litigants but for the good of the Country. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 586 (7th Cir. 2012) (Ripple, J., concurring). Our settlements have restored billions of dollars in home credit lines to people throughout the country. Representative cases and settlements include: In re JP Morgan Chase Bank Home Equity Line of Credit Litig., No. 10- cv-3647 (N.D. Ill.): Court appointed interim co-lead counsel in nationwide putative class action alleging illegal suspensions of home credit lines. Settlement restored between $3.2 billion and $4.7 billion in credit to the class. Hamilton v. Wells Fargo Bank, N.A., No. 09-cv CW (N.D. Cal.): Lead counsel in class actions challenging Wells Fargo s suspensions of home equity lines of credit. Nationwide settlement restores access to over $1 billion in credit and provides industry leading service enhancements and injunctive relief. In re Citibank HELOC Reduction Litig., No. 09-cv-0350-MMC (N.D. Cal.): Lead counsel in class actions challenging Citibank s suspensions of home equity lines of credit. The settlement restored up to $653,920,000 worth of credit to affected borrowers. Wigod v. Wells Fargo, No. 10-cv-2348 (N.D. Ill.): In ongoing putative class action, obtained first appellate decision in the country recognizing the right of private litigants to sue to enforce HAMP trial plans. GENERAL CONSUMER PROTECTION CLASS ACTIONS We have successfully prosecuted countless class actions against computer software companies, technology companies, health clubs, dating agencies, phone companies, debt collectors, and other businesses on behalf of consumers. In addition to the settlements listed below, EDELSON PC have litigated consumer fraud cases in courts nationwide against companies such as Motorola Mobility, Stonebridge Benefit Services, J.C. Penney, Sempris LLC, and Plimus, LLC. Representative settlements include: Mobile Content We have prosecuted over 100 cases involving mobile content, settling numerous nationwide class actions, including against industry leader AT&T Mobility, collectively worth over a hundred million dollars. McFerren v. AT&T Mobility, LLC, No. 08-CV (Fulton Cnty. Super. Ct., Ga.): Lead counsel class action settlement involving 16 related cases against largest wireless service provider in the nation. No cap settlement provided virtually full refunds to a nationwide class of EDELSON PC Firm Resume as of July

120 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 18 of 33 Pg ID 598 consumers who alleged that unauthorized charges for mobile content were placed on their cell phone bills. Paluzzi v. Cellco Partnership, No. 07 CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving 27 related cases alleging unauthorized mobile content charges. Case settled for $36 million. Gray v. Mobile Messenger Americas, Inc., No. 08-CV (S.D. Fla.): Lead counsel in case alleging unauthorized charges were placed on cell phone bills. Case settled for $12 million. Parone v. m-qube, Inc., No. 08 CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving over 2 dozen cases alleging the imposition of unauthorized mobile content charges. Case settled for $ million. Williams v. Motricity, Inc., No. 09 CH (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving 24 cases alleging the imposition of unauthorized mobile content charges. Case settled for $9 million. VanDyke v. Media Breakaway, LLC, No. 08 CV (S.D. Fla.): Lead counsel in class action settlement alleging unauthorized mobile content charges. Case settled for $7.6 million. Gresham v. Cellco Partnership, No. BC (L.A. Super. Ct., Cal.): Lead counsel in case alleging unauthorized charges were placed on cell phone bills. Settlement provided class members with full refunds. Abrams v. Facebook, Inc., No (N.D. Cal.): Lead counsel in injunctive settlement concerning the transmission of allegedly unauthorized mobile content. Deceptive Marketing Van Tassell v. UMG, No. 1:10-cv-2675 (N.D. Ill.): Lead counsel in negative option marketing class action. Case settled for $2.85 million. McK Sales Inc. v. Discover Bank, No. 10-cv (N.D. Ill.): Lead counsel in class action alleging deceptive marketing aimed at small businesses. Case settled for $6 million. Farrell v. OpenTable, No. 11-cv (N.D. Cal.): Lead counsel in gift certificate expiration case. Settlement netted class over $3 million in benefits. EDELSON PC Firm Resume as of July

121 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 19 of 33 Pg ID 599 Ducharme v. Lexington Law, No. 10-cv-2763 (N.D. Cal): Lead counsel in CROA class action. Settlement resulted in over $6 million of benefits to the class. Pulcini v. Bally Total Fitness Corp., No. 05 CH (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in four class action lawsuits brought against two health clubs and three debt collection companies. A global settlement provided the class with over $40 million in benefits, including cash payments, debt relief, and free health club services. Kozubik v. Capital Fitness, Inc., 04 CH 627 (Cir. Ct. Cook Cnty., Ill.): Colead counsel in state-wide suit against a leading health club chain, which settled in 2004, providing the over 150,000 class members with between $11 million and $14 million in benefits, consisting of cash refunds, full debt relief, and months of free health club membership. Kim v. Riscuity, No. 06 C (N.D. Ill.): Co-lead counsel in suit against a debt collection company accused of attempting to collect on illegal contracts. The case settled in 2007, providing the class with full debt relief and return of all money collected. Jones v. TrueLogic Financial Corp., No. 05 C 5937 (N.D. Ill.): Co-lead counsel in suit against two debt collectors accused of attempting to collect on illegal contracts. The case settled in 2007, providing the class with approximately $2 million in debt relief. Fertelmeyster v. Match.com, No. 02 CH (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in a state-wide class action suit brought under Illinois consumer protection statutes. The settlement provided the class with a collective award with a face value in excess of $3 million. Cioe v. Yahoo!, Inc., No. 02 CH (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in a state-wide class action suit brought under state consumer protection statutes. The settlement provided the class with a collective award with a face value between $1.6 million and $4.8 million. Zurakov v. Register.com, No (N.Y. Sup. Ct., N.Y. Cnty.): Colead counsel in a class action brought on behalf of an international class of over one million members against Register.com for its allegedly deceptive practices in advertising on coming soon pages of newly registered Internet domain names. Settlement required Register.com to fully disclose its practices and provided the class with relief valued in excess of $17 million. EDELSON PC Firm Resume as of July

122 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 20 of 33 Pg ID 600 PRODUCTS LIABILITY CLASS ACTIONS We have been appointed lead counsel in state and federal products liability class settlements, including a $30 million settlement resolving the Thomas the Tank Engine lead paint recall cases and a $32 million settlement involving the largest pet food recall in the history of the United States and Canada. Representative settlements include: INSURANCE CLASS ACTIONS Barrett v. RC2 Corp., No. 07 CH (Cir. Ct. Cook Cnty., Ill.): Colead counsel in lead paint recall case involving Thomas the Tank toy trains. Settlement is valued at over $30 million and provided class with full cash refunds and reimbursement of certain costs related to blood testing. In re Pet Food Products Liability Litig., No (D.N.J.): Part of mediation team in class action involving largest pet food recall in United States history. Settlement provided $24 million common fund and $8 million in charge backs. We have prosecuted and settled multi-million dollar suits against J.C. Penney Life Insurance for allegedly illegally denying life insurance benefits under an unenforceable policy exclusion and against a Wisconsin insurance company for terminating the health insurance policies of groups of self-insureds. Representative settlements include: MASS/CLASS TORT CASES Holloway v. J.C. Penney, No. 97 C 4555 (N.D. Ill.): One of the primary attorneys in a multi-state class action suit alleging that the defendant illegally denied life insurance benefits to the class. The case settled in or around December 2000, resulting in a multi-million dollar cash award to the class. Ramlow v. Family Health Plan (Wisc. Cir. Ct., WI): Co-lead counsel in a class action suit challenging defendant s termination of health insurance to groups of self-insureds. The plaintiff won a temporary injunction, which was sustained on appeal, prohibiting such termination and eventually settled the case ensuring that each class member would remain insured. Our attorneys are representing classes of student athletes suffering from the long-term effects of concussive and sub-concussive injuries, and were a part of a team of lawyers representing a group of public housing residents in a suit based upon contamination related injuries, a group of employees exposed to second-hand smoke on a riverboat casino, and a class of individuals suing a hospital and national association of blood banks for failure to warn of risks related to blood transfusions. Representative cases and settlements include: EDELSON PC Firm Resume as of July

123 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 21 of 33 Pg ID 601 In re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation, Nos. 13-cv-9116, 16-cv-8727, MDL No (N.D. Ill.): Represented lead objector in original MDL proceedings, resulting in the preservation of class members right to file class personal injury actions and alteration of class settlement from a claims-made deal worth several hundred thousand to a non-reversionary fund worth $70 million. Presently representing classes of injured NCAA student athletes in newly-created personal injury MDL track. Aaron v. Chicago Housing Authority, No. 99 L (Cir. Ct. Cook Cnty., Ill.): Part of team representing a group of public housing residents bringing suit over contamination-related injuries. Case settled on a mass basis for over $10 million. Januszewski v. Horseshoe Hammond, No. 2:00CV352JM (N.D. Ind.): Part of team of attorneys in mass suit alleging that defendant riverboat casino caused injuries to its employees arising from exposure to second-hand smoke. The firm s cases regularly receive attention from local, national, and international media. Our cases and attorneys have been reported in the Chicago Tribune, USA Today, the Wall Street Journal, the New York Times, the LA Times, by the Reuters and UPI news services, and BBC International. Our attorneys have appeared on numerous national television and radio programs, including ABC World News, CNN, Fox News, NPR, and CBS Radio, as well as television and radio programs outside of the United States. We have also been called upon to give congressional testimony and other assistance in hearings involving our cases. GENERAL COMMERCIAL LITIGATION Our attorneys have handled a wide range of general commercial litigation matters, from partnership and business-to-business disputes to litigation involving corporate takeovers. We have handled cases involving tens of thousands of dollars to bet the company cases involving up to hundreds of millions of dollars. Our attorneys have collectively tried hundreds of cases, as well as scores of arbitrations and mediations. OUR ATTORNEYS JAY EDELSON is the founder and CEO of EDELSON PC. He has been recognized as one of the nation s leading class action lawyers, especially in the areas of privacy, technology, and consumer advocacy. His notable cases include ones involving the national banks suspensions of home equity lines of credit in the aftermath of the housing collapse, which resulted in the restoration of billions of dollars of consumer credit lines. He has developed much of the positive law under the Telephone Consumer Protection Act, especially in the area of text message spam, resulting in settlements collectively worth over a hundred millions of dollars and earning him the moniker, the Spam Slammer. Jay has been recognized as a pioneer in the emerging field of electronic privacy, having established key precedent in cases throughout the country and EDELSON PC Firm Resume as of July

124 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 22 of 33 Pg ID 602 reaching some of the most important settlements in this space. Based primarily on his success in bringing consumer technology class actions, the national press has dubbed Jay and his firm the most feared litigators in Silicon Valley and, according to the New York Times, tech s babyfaced boogeyman. The international press has called Jay one of the world s profiliertesten (most prominent) privacy class action attorneys. In addition to complex defense-side litigation, which he handles only in select cases, Jay also offers strategic support to start-ups, including several that have become national brands. Jay is a frequent speaker and writer on class action issues, the practice of law more generally, and training and law firm management the latter earning him recognition by the ABA as one of the most creative minds in the legal industry. He is an adjunct professor at Chicago-Kent School of Law, where he has taught seminars on class actions and negotiation. He has written a blog for Thomson Reuters, called Pardon the Disruption, where he focused on ideas necessary to reform and reinvent the legal industry. RYAN D. ANDREWS is a Partner at EDELSON PC. He presently leads the firm s complex case resolution and appellate practice group, which oversees the firm s class settlements, class notice programs, and briefing on issues of first impression. Ryan has been appointed class counsel in numerous federal and state class actions nationwide that have resulted in over $100 million dollars in refunds to consumers, including: Satterfield v. Simon & Schuster, No. C CW (N.D. Cal.): Ellison v Steve Madden, Ltd., No. cv PSG (C.D. Cal.); Robles v. Lucky Brand Dungarees, Inc., No. 10-cv (N.D. Cal.); Lozano v. 20th Century Fox, No. 09-cv (N.D. Ill.): Paluzzi v. Cellco Partnership, No. 07 CH (Cir. Ct. Cook Cnty., Ill.); and Lofton v. Bank of America Corp., No (N.D. Cal.). Representative reported decisions include: Lozano v. Twentieth Century Fox, 702 F. Supp. 2d 999 (N.D. Ill. 2010), Satterfield v. Simon & Schuster, Inc. 569 F.3d 946 (9th Cir. 2009), Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010); In re Jiffy Lube Int l Text Spam Litig., 847 F. Supp. 2d 1253 (S.D. Cal. 2012); Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292 (N.D. Cal. 2013); and Kristensen v. Credit Payment Servs., 12 F. Supp. 3d 1292 (D. Nev. Mar. 26, 2014). Ryan graduated from the University of Michigan, earning his B.A., with distinction, in Political Science and Communications. Ryan received his J.D. with High Honors from the Chicago-Kent College of Law and was named Order of the Coif. Ryan has served as an Adjunct Professor of Law at Chicago-Kent, teaching a third-year seminar on class actions. While in law school, Ryan was a Notes & Comments Editor for The Chicago-Kent Law Review, earned CALI awards for the highest grade in five classes, and was a teaching assistant for both Property Law and Legal Writing courses. Ryan externed for the Honorable Joan B. Gottschall in the United State District Court for the Northern District of Illinois. Ryan is licensed to practice in Illinois state courts, the United States District Court for the Northern District of Illinois, the U.S. Court of Appeals for the Seventh Circuit, and the U.S. EDELSON PC Firm Resume as of July

125 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 23 of 33 Pg ID 603 Court of Appeals for the Ninth Circuit. RAFEY S. BALABANIAN is the Managing Partner of EDELSON PC. Rafey s practice focuses upon a wide range of complex consumer class action litigation, as well as general business litigation. In the class action context, Rafey has extensive experience both prosecuting and defending class actions. On the plaintiff s side, Rafey has been appointed lead counsel in numerous class actions, and has achieved landmark settlements involving the telecom industry worth hundreds of millions of dollars, including nationwide settlements in the cases Pimental, et al. v. Google, Inc., No. 11-cv (N.D. Cal.); Van Dyke v. Media Breakaway, LLC, No. 08-cv (S.D. Fla.); Williams v. Motricity, Inc., et al., No. 09 CH (Cir. Ct. Cook Cnty., Ill.); and Walker v. OpenMarket, Inc., et al., No. 08 CH (Cir. Ct. Cook Cnty., Ill.). Rafey s plaintiff s class action practice also focuses on consumer privacy issues and some of his most notable accomplishments include nationwide settlements reached with companies such as Netflix (In re Netflix Privacy Litig., No. 11-cv-379 (N.D. Cal.)) and RockYou (Claridge v. RockYou, Inc., No. 09-cv-6030 (N.D. Cal.)). Rafey also led the effort to secure adversarial class certification of what is believed to be the largest privacy class action in the history of U.S. jurisprudence in the case of Dunstan, et al. v. comscore, Inc., No. 11-cv-5807 (N.D. Ill.). On the business side, Rafey has counseled clients ranging from emerging technology companies, real estate developers, hotels, insurance companies, lenders, shareholders and attorneys. He has successfully litigated numerous multi-million dollar cases, including several bet the company cases. And, with respect to the defense of class action, Rafey s practice focuses mainly on the defense of corporate clients facing wage and hour lawsuits brought under the Fair Labor Standards Act. Rafey received his J.D. from the DePaul University College of Law in While in law school, he received a certificate in international and comparative law. A native of Colorado, Rafey received his B.A. in History, with distinction, from the University of Colorado Boulder in CHRISTOPHER L. DORE is a Partner at EDELSON PC where he focuses his practice on emerging consumer technology issues, with his cases relating to online fraud, deceptive marketing, consumer privacy, negative option membership enrollment, and unsolicited text messaging. Chris is also a member of the firm s Incubation and Startup Development Group wherein he consults with emergent businesses. Chris has been appointed class counsel in multiple class actions, including one of the largest textspam settlements under the Telephone Consumer Protection Act, groundbreaking issues in the mobile phone industry and fraudulent marketing, as well as consumer privacy. See Kramer v. Autobytel, Inc., No. 10-cv CW (N.D. Cal.); Turner v. Storm8, LLC, No. 09-cv (N.D. Cal.); Standiford v Palm, Inc., No. 09-cv LHK (N.D. Cal.); and Espinal v. Burger King Corp., No. 09-cv (S.D. Fla.). In addition, Chris has achieved groundbreaking court decisions protecting consumer rights. Representative reported decisions include: Claridge v. EDELSON PC Firm Resume as of July

126 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 24 of 33 Pg ID 604 RockYou, Inc., 785 F. Supp. 2d 855 (N.D. Cal. 2011); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010); and Van Tassell v. United Marketing Group, LLC, 795 F. Supp. 2d 770 (N.D. Ill. 2011). In total, his suits have resulted in hundreds of millions of dollars to consumers. Outside of consumer class actions, Chris actively advises technology related startups, including providing compliance and marketing guidance, as well as hands-on concept and business development. Prior to joining EDELSON PC, Chris worked for two large defense firms in the areas of employment and products liability. Chris graduated magna cum laude from The John Marshall Law School, where he served as the Executive Lead Articles for the Law Review, as well as a team member for the D.M. Harish International Moot Court Competition in Mumbai, India. Chris has since returned to his alma mater to lecture on current issues in class action litigation and negations. Before entering law school, Chris received his Masters degree in Legal Sociology, graduating magna cum laude from the International Institute for the Sociology of Law, located in Onati, Spain. Chris received his B.A. in Legal Sociology from the University of California, Santa Barbara. ROGER PERLSTADT is a Partner at EDELSON PC, where he concentrates on appellate and complex litigation advocacy. He has briefed and argued appeals and motions in both federal and state appellate courts. Prior to joining EDELSON PC, Roger was a law clerk to United States District Court Judge Elaine E. Bucklo, an associate at a litigation boutique in Chicago, and a Visiting Assistant Professor at the University of Florida Levin College of Law. He has published articles on the Federal Arbitration Act in various law reviews. Roger has been named a Rising Star by Illinois Super Lawyer Magazine four times since Roger graduated from the University of Chicago Law School, where he was a member of the University of Chicago Law Review. After law school, he served as a clerk to the Honorable Elaine E. Bucklo of the United States District Court for the Northern District of Illinois. EVE-LYNN J. RAPP is a Partner at EDELSON PC, where she focuses her practice on consumer technology class actions, with a particular emphasis on cell phone telephony and Telephone Consumer Protection Act ( TCPA ) cases and negative option enrollment consumer fraud cases. She also regularly handles plaintiff s side employment class actions, including federal Fair Labor Stands Act cases and their state law counterparts. Eve is the hiring partner for the firm s Chicago office. Eve has helped lead approximately 20 TCPA class actions, including Birchmeier v. Caribbean Cruise Line, Inc. et al., No. 12-cv (N.D. Ill.), where she secured the largest adversarial TCPA class in this nation s history. She is also lead counsel in one of the few Do Not Call TCPA cases to settle, resulting in a multi-million dollar settlement and affording class members EDELSON PC Firm Resume as of July

127 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 25 of 33 Pg ID 605 with as much as $5,000 individually. Eve has also prosecuted TCPA cases on an individual basis in arbitrations, winning six-figure settlements. She has led over a half-dozen consumer fraud and negative option enrollment cases, against a variety of industries, including e-cigarette sellers, the on-line gaming companies, and electronic and sport products distributors. Eve is also leading a series of employment class actions involving the cell tower industry, securing a six-figure settlement for the named plaintiff. In a nationally publicized products liability case, Eve help secure a reversal from the United States Supreme Court, paving the way for hundreds of thousands of people to litigate their claims of deceptive marketing. In 2015, Eve was selected as an Illinois Emerging Lawyer by Leading Lawyers. Eve received her J.D. from Loyola University of Chicago-School of Law, graduating cum laude, with a Certificate in Trial Advocacy. During law school, she was an Associate Editor of Loyola s International Law Review and externed as a 711 at both the Cook County State s Attorney s Office and for Cook County Commissioner Larry Suffredin. Eve also clerked for both civil and criminal judges (The Honorable Judge Yvonne Lewis and Plummer Lott) in the Supreme Court of New York. Eve graduated from the University of Colorado, Boulder, with distinction and Phi Beta Kappa honors, receiving a B.A. in Political Science. Eve is actively involved with the Chicago Lawyers Committee for Civil Rights Under Law, Inc. s Settlement Assistance Project where she represents a number of pro bono clients for settlement purposes. BENJAMIN H. RICHMAN is the Managing Partner of the Chicago Office of EDELSON PC. He handles plaintiffs -side consumer class actions, focusing mainly on technology-related cases, represents corporate defendants in class actions, and handles general commercial litigation matters. On the plaintiff s side, Ben has brought industry-changing lawsuits involving the marketing practices of the mobile industry, print and online direct advertisers, and Internet companies. He has successfully prosecuted cases involving privacy claims and the negligent storage of consumer data. His suits have also uncovered complex fraudulent methodologies of Web 2.0 companies, including the use of automated bots to distort the value of consumer goods and services. In total, his suits have resulted in hundreds of millions of dollars to consumers. On the defense side, Ben has represented large institutional lenders in the defense of employment class actions. He also routinely represents technology companies in a wide variety of both class action defense and general commercial litigation matters. Ben received his J.D. from The John Marshall Law School, where he was an Executive Editor of the Law Review and earned a Certificate in Trial Advocacy. While in law school, Ben served as EDELSON PC Firm Resume as of July

128 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 26 of 33 Pg ID 606 a judicial extern to the Honorable John W. Darrah of the United States District Court for the Northern District of Illinois, in addition to acting as a teaching assistant for Prof. Rogelio Lasso in several torts courses. Ben has since returned to the classroom as a guest-lecturer on issues related to class actions, complex litigation and negotiation. He also lectures incoming law students on the core first year curriculums. Before entering law school, Ben graduated from Colorado State University with a B.S. in Psychology. Ben is also the director of EDELSON PC S Summer Associate Program. ARI J. SCHARG is a Partner at EDELSON PC and leads the firm s Privacy and Data Security Litigation Group. He handles technology-related class actions, focusing mainly on cases involving privacy and data security issues, including the illegal collection, storage, and disclosure of personal information and text message spam. Ari has been appointed class counsel by state and federal courts in several nationwide class actions, including Fox v. Time, Inc., No. 12-cv (E.D. Mich. July 27, 2015); Halaburda v. Bauer Publishing Co., No. 12-cv (E.D. Mich.); Resnick v. Avmed, No. 10-cv (S.D. Fla.); In re: LinkedIn User Privacy Litigation, No. 5:12-cv (N.D. Cal.); Coffman v. Glide Talk, Ltd., No. 14 CH (Cir. Ct. Cook Cnty, Ill.); Webb v. Cleverbridge, et al., No. 11-cv-4141 (N.D. Ill.); Ledet v. Ascentive, No. 11-cv-294 (E.D. Penn.); and Grant v. Commonwealth Edison Company, No. 13-cv-8310 (N.D. Ill.), and was appointed sole-lead class counsel in Loewy v. Live Nation, No. 11-cv-4872 (N.D. Ill.), where the court praised his work as impressive and noted that he understand[s] what it means to be on a team that s working toward justice. Ari was selected as an Illinois Rising Star (2013, 2014, 2015) by Super Lawyers. Prior to joining EDELSON PC, Ari worked as a litigation associate at a large Chicago firm, where he represented a wide range of clients including Fortune 500 companies and local municipalities. His work included representing the Cook County Sheriff s Office in several civil rights cases and he was part of the litigation team that forced Craigslist to remove its Adult Services section from its website. Ari received his B.A. in Sociology from the University of Michigan Ann Arbor and graduated magna cum laude from The John Marshall Law School where he served as a Staff Editor for THE JOHN MARSHALL LAW REVIEW and competed nationally in trial competitions. During law school, he also served as a judicial extern to The Honorable Bruce W. Black of the U.S. Bankruptcy Court for the Northern District of Illinois. NINA EISENBERG is an Associate at EDELSON PC where her practice focuses on privacyrelated class actions. Nina graduated cum laude with degrees in Politics, Philosophy & Economics and Russian Literature from Pomona College and received my J.D., Order of the Coif, from the University of Virginia School of Law. During law school, Ms. Eisenberg interned for Judge Charles Breyer of the United States District Court for the Northern District of California, working primarily on habeas petitions. Ms. Eisenberg also served as a Dillard Writing Fellow, instructing first year law students in legal research and writing skills. EDELSON PC Firm Resume as of July

129 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 27 of 33 Pg ID 607 LILY HOUGH is an Associate at EDELSON PC where her practice focuses on consumer privacyrelated class actions. Lily received her J.D., cum laude, from Georgetown University Law Center. In law school, Lily served as a Law Fellow for Georgetown s first year Legal Research and Writing Program and as the Executive Editor of the Georgetown Immigration Law Journal. She participated in D.C. Law Students In Court, one of the oldest clinical programs in the District of Columbia, where she represented tenants in Landlord & Tenant Court and plaintiff consumers in civil matters in D.C. Superior Court. She also worked as an intern at the U.S. Department of State in the Office of the Legal Adviser, International Claims and Investment Disputes (L/CID). Prior to law school, Lily attended the University of Notre Dame, where she graduated magna cum laude with departmental honors and earned her B.A. in Political Science and was awarded a James F. Andrews Scholarship for commitment to social concerns. She is also a member of the Pi Sigma Alpha and Phi Beta Kappa honor societies. SYDNEY JANZEN is an Associate at EDELSON PC where her practice focuses on consumer privacy-related class actions. Sydney received her J.D., cum laude, from The John Marshall Law School. While in law school, she was Executive Justice of the Moot Court Honor Society, a staff editor of The John Marshall Law Review, and a teaching assistant for Contracts and Legal Writing and Civil Procedure. Sydney represented John Marshall at the Pepperdine National Entertainment Law Competition where she was a quarter-finalist and won Best Petitioner s Brief. Sydney was a 2016 Member of the National Order of Scribes. Prior to attending law school, Sydney attended DePaul University where she graduated, summa cum laude, with a B.A. in English and French. J. AARON LAWSON is an Associate at EDELSON PC where his practice focuses on appeals and complex motion practice. Prior to joining EDELSON PC, Aaron served for two years as a Staff Attorney for the United States Court of Appeals for the Seventh Circuit, handling appeals involving a wide variety of subject matter, including consumer-protection law, employment law, criminal law, and federal habeas corpus. While at the University of Michigan Law School, Aaron served as the Managing Editor for the Michigan Journal of Race & Law, and participated in the Federal Appellate Clinic. In the clinic, Aaron briefed a direct criminal appeal to the United States Court of Appeals for the Sixth Circuit, and successfully convinced the court to vacate his client s sentence. DAVID I. MINDELL is an Associate at EDELSON PC where he helps direct a team of attorneys and engineers in investigating and litigating cases involving complex tech fraud and privacy violations. His team s research has led to lawsuits involving the fraudulent development, marketing, and sale of computer software, unlawful tracking of consumers through mobiledevices and computers, unlawful collection, storage, and dissemination of consumer data, EDELSON PC Firm Resume as of July

130 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 28 of 33 Pg ID 608 mobile-device privacy violations, large-scale data breaches, and the Bitcoin industry. On the other side, David also serves as a consultant to a variety of emerging technology companies. Prior to joining EDELSON PC, David co-founded several tech, real estate, and hospitality related ventures, including a tech startup that was acquired by a well-known international corporation within its first three years. David has advised tech companies on a variety of legal and strategic business-related issues, including how to handle and protect consumer data. He has also consulted with startups on the formation of business plans, product development, and launch. While in law school, David was a research assistant for University of Chicago Law School Kauffman and Bigelow Fellow, Matthew Tokson, and for the preeminent cyber-security professor, Hank Perritt at the Chicago-Kent College of Law. David s research included cyberattack and denial of service vulnerabilities of the Internet, intellectual property rights, and privacy issues. David has spoken to a wide range of audiences about his investigations and practice. AMIR MISSAGHI is an Associate at EDELSON PC where he focuses on technology and privacy class actions. Amir received his J.D. from the Chicago-Kent College of Law, where he was a member of the Moot Court Honor Society and a teaching assistant in Property. Before law school, he attended the University of Minnesota, where he received his B.S. and M.S. in Applied Economics. He then began working at a Fortune 50 company as a programmer and data analyst. During that time Amir started working on his graduate studies in Applied Economics where he focused on analyzing consumer choice in healthcare markets. BEN THOMASSEN is an Associate at EDELSON PC where he focuses on consumer litigation, with an emphasis on privacy and data breach class actions. Ben s work at the firm has achieved significant results for classes of consumers. He has been appointed as class counsel in several high profile cases, including, for example, Harris v. comscore, Inc., No. 11-cv-5807 (N.D. Ill.) (appointed class counsel in case against data analytics company, which is estimated to be the largest privacy class action certified on adversarial basis and resulted in $14MM settlement). Ben has also played critical and leading roles in developing, briefing, and arguing novel legal theories on behalf of his clients, including by delivering the winning oral argument to the Eleventh Circuit in the seminal case of Resnick, et al. v. AvMed, Inc., No. 10-cv (S.D. Fla.) (appointed class counsel in industry-changing data breach case, which obtained a landmark appellate decision endorsing common law unjust enrichment theory, irrespective of whether identity theft occurred) and recently obtaining certification of a class of magazine subscribers in Coulter-Owens v. Time, Inc., No. 12-cv (E.D. Mich.) (achieved adversarial certification in privacy case brought by class of magazine subscribers against magazine publisher under Michigan s Preservation of Personal Privacy Act). His cases have resulted in millions of dollars to consumers. EDELSON PC Firm Resume as of July

131 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 29 of 33 Pg ID 609 Ben graduated magna cum laude from Chicago-Kent College of Law, where he also earned a certificate in Litigation and Alternative Dispute Resolution and was named Order of the Coif. He also served as Vice President of Chicago-Kent s Moot Court Honor Society and earned (a currently unbroken firm record of) seven CALI awards for receiving the highest grade in Appellate Advocacy, Business Organizations, Conflict of Laws, Family Law, Personal Income Tax, Property, and Torts. In 2017, Ben was selected as an Illinois Emerging Lawyer by Leading Lawyers. Before settling into his legal career, Ben worked in and around the Chicago and Washington, D.C. areas in a number of capacities, including stints as a website designer/developer, a regular contributor to a monthly Capitol Hill newspaper, and a film projectionist and media technician (with many years experience) for commercial theatres, museums, and educational institutions. Ben received a Master of Arts degree from the University of Chicago and his Bachelor of Arts degree, summa cum laude, from St. Mary s College of Maryland. ALEXANDER G. TIEVSKY is an Associate at EDELSON PC, where he concentrates on complex motion practice and appeals in consumer class action litigation. He received his J.D. from the Northwestern University School of Law, where he graduated from the two-year accelerated J.D. program. While in law school, Alex was Media Editor of the Northwestern University Law Review. He also worked as a member of the Bluhm Legal Clinic s Center on Wrongful Convictions. Alex maintains a relationship with the Center and focuses his public service work on seeking to overturn unjust criminal convictions in Cook County. Alex s past experiences include developing internal tools for an enterprise software company and working as a full-time cheesemonger. He received his A.B. in linguistics with general honors from the College of the University of Chicago. JACOB WRIGHT is an Associate at EDELSON PC where his practice focuses on consumer and privacy-related class actions. Jacob graduated with honors from the University of Texas at Austin with a degree in Government and Middle Eastern Studies. He received his J.D. cum laude from American University College of Law. Jacob is a Member of the Equality Illinois Political Action Committee as well as a Next Generation Board Member of La Casa Norte. SHAWN DAVIS is the Director of Digital Forensics at EDELSON PC, where he leads a technical team in investigating claims involving privacy violations and tech-related abuse. His team s investigations have included claims arising out of the fraudulent development, marketing, and sale of computer software, unlawful tracking of consumers through digital devices, unlawful collection, storage, and dissemination of consumer data, large-scale data breaches, receipt of unsolicited communications, and other deceptive marketing practices. Prior to joining EDELSON PC, Shawn worked for Motorola Solutions in the Security and Federal Operations Centers as an Information Protection Specialist. Shawn s responsibilities included EDELSON PC Firm Resume as of July

132 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 30 of 33 Pg ID 610 network and computer forensic analysis, malware analysis, threat mitigation, and incident handling for various commercial and government entities. Shawn is an Adjunct Industry Associate Professor for the School of Applied Technology at the Illinois Institute of Technology (IIT) where he has been teaching since December of Additionally, Shawn is a faculty member of the IIT Center for Cyber Security and Forensics Education which is a collaborative space between business, government, academia, and security professionals. Shawn s contributions aided in IIT s designation as a National Center of Academic Excellence in Information Assurance by the National Security Agency. Shawn graduated with high honors from the Illinois Institute of Technology with a Masters of Information Technology Management with a specialization in Computer and Network Security. During graduate school, Shawn was inducted into Gamma Nu Eta, the National Information Technology Honor Society. EDELSON PC Firm Resume as of July

133 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 31 of 33 Pg ID 611 Exhibit 2

134 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 32 of 33 Pg ID 612 Edelson PC 350 North LaSalle Suite 1300 Chicago IL United States July 31, 2017 Item Description Unit Cost ($) Quantity Price ($) Expense [Moeller v. American Media 06/09/17] Travel, Taxi: Taxi from airport Expense [Moeller v. American Media 06/09/17] Travel, food at airport Expense [Moeller v. American Media 06/09/17] Travel, Alamo: rental car for hearing Expense [Moeller v. American Media 06/09/17] Travel, Taxi: to ohare Expense [Moeller v. American Media 06/09/17] Travel, Food: dinner Expense [Moeller v. American Media 06/07/17] Flight: Ben Thomassen Expense [Moeller v. American Media 06/07/17] Hotel: Ben Thomassen Expense [Moeller v. American Media 04/19/17] Copies/Binding/Production: FedEx Expense [Moeller v. American Media 04/19/17] FedEx Expense [Moeller v. American Media 03/31/17] Mediation: Jams, Inc. 1, , Expense Expense Expense Expense [Moeller v. American Media 11/15/16] Travel, food at airport: Dinner / lunch [Moeller v. American Media 11/15/16] Travel, parking: Parking for hearing [Moeller v. American Media 11/15/16] Travel, Taxi: OHare ot home [Moeller v. American Media 11/15/16] Travel, Hertz: Car rental for hearing Expense [Moeller v. American Media 11/15/16] Travel, Taxi: Office to Ohare Expense [Moeller v. American Media 11/15/16] Travel, Food: Dinner Expense [Moeller v. American Media 11/15/16] Travel, Gogo Inflight Internet Expense [Moeller v. American Media 11/15/16] Travel, food at airport: lunch Expense [Moeller v. American Media 11/09/16] Flight: Ben Thomassen Expense [Moeller v. American Media 10/31/16] Mediation: Jams, Inc Expense [Moeller v. American Media 10/18/16] FedEx Expense [Moeller v. American Media 10/07/16] Mediation, uber: Cab to mediation Expense [Moeller v. American Media 10/06/16] Taxi & Parking: Uber

135 5:16-cv JEL-EAS Doc # 37-3 Filed 07/31/17 Pg 33 of 33 Pg ID 613 Expense Expense Expense Expense [Moeller v. American Media 10/05/16] Internet, United Airlines: inflight wifi [Moeller v. American Media 10/05/16] Taxi, uber: uber to airport for mediation [Moeller v. American Media 10/05/16] Flight, flight: return from arbitration flight chi to sfo [Moeller v. American Media 10/04/16] Flight, flight: flight for Moeller mediation Expense [Moeller v. American Media 08/12/16] Mediation: Jams 2, , Expense [Moeller v. American Media 07/11/16] FedEx Expense [Moeller v. American Media 07/11/16] Copies/Binding/Production: FedEx Expense [Moeller v. American Media 07/06/16] FedEx Expense Expense [Moeller v. American Media 04/25/16] Service of Process: Delaware Attorney Services LLC. American Media, Inc. and Odyssey Magazine Publishing Group. [Moeller v. American Media 04/25/16] Service of Process: Delaware Attorney Services LLC. American Media, Inc. Odyssey Magazine Publishing Group Subtotal: 7, Total: 7,985.08

136 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 1 of 95 Pg ID 614 Exhibit C

137 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 2 of 95 Pg ID 615 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ELIZABETH MOELLER and NICOLE BRISSON, individually and on behalf of all others similarly situated, Plaintiffs, Case No. 2:16-cv JEL-EAS [Hon. Judith E. Levy] v. AMERICAN MEDIA, INC., a Delaware corporation, and ODYSSEY MAGAZINE PUBLISHING GROUP, INC., a Delaware corporation, Defendants. DECLARATION OF JOSEPH I. MARCHESE IN SUPPORT OF MOTION FOR FINAL APPROVAL OF THE PARTIES CLASS ACTION SETTLEMENT AND MOTION FOR ATTORNEYS FEES I, Joseph I. Marchese, pursuant to 28 U.S.C. 1746, hereby declare as follows: 1. I am an adult over the age of 18 and a resident of the State of New York. I am a partner at the law firm of Bursor & Fisher, P.A., which has been retained to represent Plaintiffs Elizabeth Moeller and Nicole Brisson ( Plaintiffs ) in this matter and I am admitted to practice before this Court. I make this Declaration in support of (i) the Motion for Final Approval of Settlement, and (ii) the Motion for Attorneys Fees, and am fully competent to do so. I have personal 1

138 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 3 of 95 Pg ID 616 knowledge of all matters set forth herein unless otherwise indicated, and, if called upon to testify, I could and would competently do so. 2. Beginning in June 2015, my firm commenced a pre-suit investigation of magazine publishers violations of the Michigan Preservation of Personal Privacy Act (the PPPA ), including Defendants American Media, Inc. ( American Media ) and Odyssey Magazine Publishing Group, Inc. ( Odyssey ). The theory of liability was novel. Although a few other cases had been filed against magazine publishers, none had progressed through class certification. Thus, our pre-suit investigation was extensive, spanning more than eight months, and involving in-depth research into a number of data industry practices, including data appending and data cooperatives. 3. During our pre-suit investigation, the United States Supreme Court granted certiorari in Spokeo v. Robins. Thus, my firm knew that Spokeo could potentially change the law for Article III standing and could potentially obviate prior decisions finding Article III standing in PPPA cases. Therefore, my firm s pre-suit investigation also included extensive legal research into the Supreme Court s Article III standing precedents, and a detailed review of the briefing before the Supreme Court. 4. Also during our pre-suit investigation, the Michigan Legislature began discussing a bill to amend the PPPA. By December 15, 2015, the Michigan State 2

139 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 4 of 95 Pg ID 617 Senate had passed a bill to amend the PPPA. Therefore, my firm s pre-suit investigation also included extensive analysis of the proposed bill to amend the PPPA, as well as extensive legal research into the retroactive application of statutory amendments under Michigan law. 5. On April 12, 2016, the Michigan House of Representatives passed the bill to amend the PPPA. My firm thereafter carefully reviewed the applicable amending bill. 6. On April 14, 2016, with a decision in Spokeo pending, and on the heels of the Michigan Legislature having passed a bill to amend the PPPA, we filed our Class Action Complaint in this matter. 7. On May 16, 2016, the Supreme Court issued its opinion in Spokeo. My firm thoroughly analyzed the opinion immediately thereafter. 8. On June 13, 2016, Defendants filed a motion to dismiss the case. Defendants argued that Plaintiffs lacked Article III standing because of the Supreme Court s decision in Spokeo, and because the PPPA had been amended to remove the statutory damages provision. 9. After thorough legal research, my firm, together with our co-counsel, prepared an opposition to Defendants motion to dismiss. 10. Shortly thereafter, the Parties moved to stay the briefing on Defendants motion for the purposes of exploring the potential early resolution of 3

140 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 5 of 95 Pg ID 618 this matter, and agreed to mediate. 11. In preparation for the mediation, my firm, together with our cocounsel, prepared a detailed mediation statement outlining the strength of the Plaintiffs case, and comparing the case with other PPPA cases against magazine publishers that had settled, in order to create a market by which to evaluate any potential settlement. 12. On October 6, 2016, the Parties attended a full-day, in-person mediation with Judge Wayne Andersen (ret.) on October 6, 2016 at JAMS (Chicago). My partner Scott A. Bursor and I attended on behalf of my firm. At the mediation, the parties engaged in multiple rounds of arm s-length negations. The Parties, however, we unable to make substantial progress toward a resolution at that time. Following the mediation, Judge Andersen made a mediator s proposal to settle the case for a certain dollar amount, which was not accepted. 13. Thereafter, the Parties returned to litigation. Following the Court s denial of Defendant s Motion to Dismiss (Dkt. 23), and the Defendants filing their Answer (Dkt. 24), the Court held an initial scheduling conference and entered a Scheduling Order (Dkt. 25). The Parties exchanged initial disclosures under Rule 26(a)(1) and Plaintiffs propounded written interrogatories and document requests. 14. My firm had an active role in preparing drafts of written interrogatories and document requests, and applied our knowledge gained through 4

141 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 6 of 95 Pg ID 619 our pre-suit investigation in doing so. For example, our pre-suit investigation allowed us to target specific data appending practices, and to target specific data cooperatives with which we believed Defendants were members. 15. As the case progressed, the Parties continued to discuss the possibility of settlement, and re-engaged Judge Andersen to help resolve the dispute as they continued to litigate the case. Over the next several weeks, Judge Andersen separately caucused with the Parties at least a dozen times, including through phone calls on nights and weekends. In the end, Judge Andersen succeeded in getting the Parties to narrow their positions and made a second mediator s proposal on March 22, The Parties accepted Judge Andersen s proposal on March 28, The resulting Settlement secures extraordinary relief for the class. Based on Defendants records, which Plaintiffs have confirmed through confirmatory discovery, the proposed Settlement Class includes approximately 415,000 Michigan residents who purchased an American Media and/or Odyssey magazine subscription between April 14, 2010 and July 31, With a $7.6 million non-reversionary Settlement Fund, and based upon typical class action claims rates, Class Counsel estimates that each claimant should receive approximately $100. Thus, the instant settlement was the largest reached in the PPPA landscape. 5

142 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 7 of 95 Pg ID After reaching agreement in principle on the Settlement, my firm worked extensively with defense counsel to finalize and memorialize the agreement into a formal Class Action Settlement Agreement. That process included multiple rounds of redlines and multiple phone calls to discuss proposed edits. 18. After finalizing and executing the Class Action Settlement Agreement, Plaintiffs moved for Preliminary Approval (Dkt. No. 30). My firm assisted in preparing Plaintiffs Motion for Preliminary Approval. 19. On June 8, 2017, the Court held a hearing on Plaintiffs Motion for Preliminary Approval. I handled the hearing on behalf of Plaintiffs. The Court granted Plaintiffs Motion for Preliminary Approval that same day (Dkt. No. 34). 20. Since the Court granted preliminary approval, my firm has worked with the Court-appointed Settlement Administrator, Kurtzman Carson Consultants, LLC ( KCC ), to carry out the Court-ordered notice plan. Specifically, my firm helped compile and review the contents of the required notice to State Attorney Generals pursuant to 28 U.S.C. 1715, reviewed the final claim and notice forms, and reviewed and tested the settlement website before it launched live. 21. Since class notice has been disseminated, my firm has worked with KCC on a weekly basis to monitor settlement claims and any other issues that may arise. 6

143 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 8 of 95 Pg ID Attached hereto as Exhibit 1 is a summary of the time billed by each lawyer at Bursor & Fisher, P.A. for the development and prosecution of this case and the lodestar calculation utilizing our current normal billing rates. The summary was prepared from contemporaneous daily time records regularly prepared and maintained by my firm. 23. Included within Exhibit 1 is a chart setting forth the hourly rates charged for lawyers and staff at my firm. Based on my knowledge and experience, the hourly rates charged by my firm are within the range of market rates charged by attorneys of equivalent experience, skill, and expertise. These are the same hourly rates that we actually charge to our regular hourly clients who have retained us for non-contingent matters, and which are actually paid by those clients. As a matter of firm policy, we do not discount our regular hourly rates for noncontingent hourly work, which comprises approximately 20% of our revenue. I have personal knowledge of the range of hourly rates typically charged by counsel in our field in New York, California, and throughout the United States, both on a current basis and in the past. In determining my firm s hourly rates from year to year, my partners and I have consciously taken market rates into account and have aligned our rates with the market. 24. Through my practice, I have become familiar with the non-contingent market rates charged by attorneys in New York, California and elsewhere (my 7

144 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 9 of 95 Pg ID 622 firm s offices are in New York City and Walnut Creek, California). This familiarity has been obtained in several ways: (1) by litigating attorneys fee applications; (2) by discussing fees with other attorneys; (3) by obtaining declarations regarding prevailing market rates filed by other attorneys seeking fees; and (4) by reviewing attorneys fee applications and awards in other cases, as well as surveys and articles on attorney s fees in the legal newspapers and treatises. The information I have gathered shows that my firm s rates are in line with the non-contingent market rates charged by attorneys of reasonably comparable experience, skill, and reputation for reasonably comparable class action work. In fact, comparable hourly rates have been found reasonable by various courts for reasonably comparable services, including: i. In re TFT-LCD (Flat Panel) Antitrust Litigation, No. M SI, MDL, No (N.D.Cal. 2013), an antitrust class action, in which the court found blended hourly rates of $1000, $950, $861, $825, $820, and $750 per hour reasonable for the lead class counsel. ii. iii. Williams v. H&R Block Enterprises, Inc., Alameda County Superior Ct. No. RG , Order of Final Approval and Judgment filed November 8, 2012, a wage and hour class action, in which the court found the hourly rates of $785, $775, and $750 reasonable for the more senior class counsel. Luquetta v. The Regents of the Univ. of California, San Francisco Superior Ct. No.CGC , Order Granting Plaintiff s Motion for Common Fund Attorneys Fees and Expenses, filed October 31, 2012, a class action to recover tuition overcharges, in which the court found the hourly rates of $850, $785, $750, and $700 reasonable for plaintiffs more experienced counsel. 8

145 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 10 of 95 Pg ID 623 iv. Pierce v. County of Orange, 905 F. Supp. 2d 1017 (C.D. Cal. 2012), a civil rights class action brought by pre-trial detainees, in which the court approved a lodestar-based, inter alia, on 2011 rates of $850 and $825 per hour. v. Holloway et. al. v. Best Buy Co., Inc., No PJH (N.D. Cal. 2011) (Order dated November 9, 2011), a class action alleging that Best Buy discriminated against female, African American and Latino employees by denying them promotions and lucrative sales positions, in which the court approved lodestar-based rates of up to $825 per hour. vi. vii. Californians for Disability Rights, Inc., et al. v. California Department of Transportation, et al., 2010 U.S. Dist. LEXIS (N.D. Cal. 2010), adopted by Order Accepting Report and Recommendation filed February 2, 2011, a class action in which the court found reasonable 2010 hourly rates of up to $835 per hour. Credit/Debit Card Tying Cases, San Francisco County Superior Court, JCCP No. 4335, Order Granting Plaintiffs Motion for Attorneys Fees, Expenses, and Incentive Awards, filed August 23, 2010, an antitrust class action, in which the court, before applying a 2.0 lodestar multiplier, found reasonable 2010 hourly rates of $975 for a 43-year attorney, $950 for a 46-year attorney, $850 for 32 and 38 year attorneys, $825 for a 35-year attorney, $740 for a 26-year attorney, $610 for a 13-year attorney, and $600 for a 9-year attorney, and $485 for a 5-year attorney. viii. Savaglio, et al. v. WalMart, Alameda County Superior Court No. C , Order Granting Class Counsel s Motion for Attorneys Fees, filed September 10, 2010, a wage and hour class action, in which the court found reasonable, before applying a 2.36 multiplier, rates of up to $875 per hour for a 51-year attorney, $750 for a 39-year attorney, and $775 for a 33-year attorney. ix. Qualcomm, Inc. v. Broadcom, Inc., Case No. 05-CV-1958-B, 2008 WL (S.D. Cal. 2008), in which the court found the 2007 hourly rates requested by Wilmer Cutler, Pickering, Hale & Dorr LLP reasonable; those rates ranged from $45 to $300 for staff and paralegals, from $275 to $505 for associates and counsel, and from $435 to $850 for partners. 9

146 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 11 of 95 Pg ID The reasonableness of my firm s hourly rates are also supported by several surveys of legal rates, including the following: i. In an article entitled On Sale: The $1,150-Per Hour Lawyer, written by Jennifer Smith and published in the Wall Street Journal on April 9, 2013, the author describes the rapidly growing number of lawyers billing at $1,150 or more revealed in public filings and major surveys. The article also notes that in the first quarter of 2013, the 50 topgrossing law firms billed their partners at an average rate between $879 and $882 per hour. A true and correct copy of this article is attached hereto as Exhibit 4. ii. iii. In an article published April 16, 2012, the Am Law Daily described the 2012 Real Rate Report, an analysis of $7.6 billion in legal bills paid by corporations over a five-year period ending in December A true and correct copy of that article is attached hereto as Exhibit 5. That article confirms that the rates charged by experienced and well-qualified attorneys have continued to rise over this five-year period, particularly in large urban areas like the San Francisco Bay Area. It also shows, for example that the top quartile of lawyers bill at an average of just under $900 per hour. Similarly, on February 25, 2011, the Wall Street Journal published an on-line article entitled Top Billers. A true and correct copy of that article is attached hereto as Exhibit 6. That article listed the 2010 and/or 2009 hourly rates for more than 125 attorneys, in a variety of practice areas and cases, who charged $1,000 per hour or more. Indeed, the article specifically lists eleven (11) Gibson Dunn & Crutcher attorneys billing at $1,000 per hour or more. iv. On February 22, 2011, the ALM s Daily Report listed the hourly rates of numerous San Francisco attorneys. A true and correct copy of that article is attached hereto as Exhibit 7. Even though rates have increased significantly since that time, my firm s rates are well within the range of rates shown in this survey. v. The Westlaw CourtExpress Legal Billing Reports for May, August, and December 2009 (attached hereto as Exhibit 8) show that as far back as 2009, attorneys with as little as 19 years of experience were 10

147 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 12 of 95 Pg ID 625 charging $800 per hour or more, and that the rates requested here are well within the range of those reported. Again, current rates are significantly higher. vi. vii. viii. The National Law Journal s December 2010, nationwide sampling of law firm billing rates (attached hereto as Exhibit 9) lists 32 firms whose highest rate was $800 per hour or more, eleven firms whose highest rate was $900 per hour or more, and three firms whose highest rate was $1,000 per hour or more. On December 16, 2009, The American Lawyer published an online article entitled Bankruptcy Rates Top $1,000 in That article is attached hereto as Exhibit 10. In addition to reporting that several attorneys had charged rates of $1,000 or more in bankruptcy filings in Delaware and the Southern District of New York, the article also listed 18 firms that charged median partner rates of from $625 to $980 per hour. According to the National Law Journal s 2014 Law Firm Billing Survey, law firms with their largest office in New York have average partner and associate billing rates of $882 and $520, respectively. Karen Sloan, $1,000 Per Hour Isn t Rare Anymore; Nominal Billing Levels Rise, But Discounts Ease Blow, National Law Journal, Jan. 13, The survey also shows that it is common for legal fees for partners in New York firms to exceed $1,000 an hour. Id. A true and correct copy of this survey is attached hereto as Exhibit Given Bursor & Fisher s unique experience and track record of success winning 5 of 5 class action trials, my hourly rate is set at $700, which is the same rate that my firm charges to clients who retain us on an hourly basis, and which we never discount. My firm s rates have been deemed reasonable by Courts across the country, including in California, Illinois, Missouri, New Jersey, and New York, for example: 11

148 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 13 of 95 Pg ID 626 i. In re Haier Freezer Consumer Litig., Case No. C EJD, N.D. Cal. (Oct. 25, 2013 Final Judgment And Order Granting Plaintiffs Motion For Final Approval Of Class Action Settlement And For Award Of Attorneys Fees, Costs And Incentive Awards). ii. iii. iv. In re Michaels Stores Pin Pad Litigation, Case No. 11-cv-03350, N.D. Ill. (Apr. 17, 2013 Order Approving Settlement) In re Blue Buffalo Company, Ltd. Marketing and Sales Practices Litigation, Case No. 14-md-02562, E.D. Mo. (June 16, 2016 Order Awarding Fees And Costs). Rossi v. The Procter & Gamble Co., Case No , D.N.J. (Oct. 3, 2013 Final Approval Order And Judgment); v. In Rodriguez v. CitiMortgage, Inc., Case No. 11-cv-4718, S.D.N.Y. (Oct. 6, 2015), the court concluded during the fairness hearing that Bursor & Fisher s rates for two of its partners, Joseph Marchese and Scott Bursor, were reasonable. 27. No court has ever cut my firm s fee application by a single dollar on the ground that our hourly rates were not reasonable. 28. Attached hereto as Exhibit 2 is a list of unreimbursed expenses billed to this action. The expenses incurred are reflected on the books and records of my firm. These books and records are prepared from expense vouchers, check records, and other source materials, and represent an accurate recordation of the expenses incurred. Fisher, P.A. 29. Attached hereto as Exhibit 3 is a current firm resume for Bursor & 30. My firm, Bursor & Fisher, P.A., has significant experience in litigating class actions of similar size, scope, and complexity to the instant action. 12

149 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 14 of 95 Pg ID 627 We are counsel for plaintiffs in four other substantially similar putative class actions pending in the Southern District of New York. See Edwards v. Hearst Communications, Inc., Case No. 15-cv (S.D.N.Y.); Moeller v. Advance Magazine Publishers, Inc., Case No. 15-cv (S.D.N.Y.); Taylor v. Trusted Media Brands, Inc., Case No. 16-cv (S.D.N.Y.); Ruppel v. Consumers Union of United States, Inc., Case No. 16-cv (S.D.N.Y.). Each of these actions survived a motion to dismiss, with the exception of the Trusted Media Brands case, where the parties reached a class-wide settlement agreement prior to the Court s decision on defendant s motion to dismiss. Preliminary approval of that settlement is pending. 31. Additionally, my firm has also been recognized by courts across the country for its expertise. (See Ex. 3); see also Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 566 (S.D.N.Y. Feb. 25, 2014) ( Bursor & Fisher, P.A., are class action lawyers who have experience litigating consumer claims. The firm has been appointed class counsel in dozens of cases in both federal and state courts, and has won multi-million dollar verdicts or recoveries in five class action jury trials since ); In re Michaels Stores Pin Pad Litigation, Case No. 11-cv-03350, Dkt. 22 (N.D. Ill. June 8, 2011) (appointing Bursor & Fisher class counsel to represent a putative nationwide class of consumers who made in-store purchases at Michaels using a debit or credit card and had their private financial information stolen as a 13

150 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 15 of 95 Pg ID 628 result). 32. Moreover, my firm has served as trial counsel for class action plaintiffs in five jury trials and has won all five, with recoveries ranging from $21 million to $299 million. I declare under penalty of perjury that the above and foregoing is true and accurate. Executed this 31st day of July 2017 at New York, New York. /s Joseph I. Marchese Joseph I. Marchese 14

151 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 16 of 95 Pg ID 629 EXHIBIT 1

152 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 17 of 95 Pg ID 630 American Media Lodestar Thru 7/31/17 ATTY HOURS RATE TOTAL SAB 24.9 $ $21, JIM $ $78, PLF $ $39, AML 0.4 $ $ RSR 3.6 $ $ EMW 2.2 $ $ $140, Expenses: Total: $7, $148,501.94

153 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 18 of 95 Pg ID 631 EXHIBIT 2

154 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 19 of 95 Pg ID 632 American Media, Inc. - Bursor & Fisher, P.A. Expenses Through 7/24/17 Mediation Fees $4, Mediation Fees $ Meals & Catering Fees $3, Lodging & Transportation Fees $7, Total Expenses DATE OF MATTER AMOUNT DESCRIPTION NY American Media, Inc. $2, JAMS, Inc NY American Media, Inc. $ JAMS, Inc NY American Media, Inc. $1, JAMS, Inc. $4, Total Mediation Fees Meals & Catering Fees DATE OF MATTER AMOUNT DESCRIPTION NY American Media, Inc. $58.52 Summer House NY American Media, Inc. $15.47 Cloverleaf Restaurant NY American Media, Inc. $63.44 Indie Food and Wine $ Total Meals & Catering Fees Lodging & Transportation Fees DATE OF MATTER AMOUNT DESCRIPTION NY American Media, Inc. $ Delta - Mediationn NY American Media, Inc. $ Delta - Mediationn NY American Media, Inc. $ Delta - Mediationn NY American Media, Inc. $ Delta - Mediationn NY American Media, Inc. $60.00 Carmel Limo NY American Media, Inc. $75.82 Uber - Mediation NY American Media, Inc. $50.00 Delta - Mediation NY American Media, Inc. $50.00 Delta - Mediation NY American Media, Inc. $73.56 Astoria Taxi NY American Media, Inc. $52.00 Maestro Parking NY American Media, Inc. $ Hotels.com NY American Media, Inc. $ Delta - Prelim Approval Hearing NY American Media, Inc. $ Delta - Prelim Approval Hearing NY American Media, Inc. $70.00 Taxi NY American Media, Inc. $56.32 Taxi NY American Media, Inc. $76.60 Sheraton Ann Arbor NY American Media, Inc. $6.58 Laguardia NY American Media, Inc. $16.00 Michagan Green Cab NY American Media, Inc. $78.00 Taxi NY American Media, Inc. $5.99 Taxi NY American Media, Inc. $ Car Service $3, Total Lodging and Transportation Fees 1 of 1

155 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 20 of 95 Pg ID 633 EXHIBIT 3

156 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 21 of 95 Pg ID S E V E N T H A V E N U E NEW YORK, NY N O R T H C A L I F O R N I A B L V D. W A L N U T C R E E K, C A FIRM RESUME With offices in New York and California, BURSOR & FISHER lawyers have represented both plaintiffs and defendants in state and federal courts throughout the country. The lawyers at our firm have an active civil trial practice, having won multi-million dollar verdicts or recoveries in five of five civil jury trials since Our most recent trial victory came in August 2013 in Ayyad v. Sprint Spectrum L.P., in which Mr. Bursor served as lead trial counsel and won a jury verdict defeating Sprint s $1.06 billion counterclaim and securing the class s recovery of more than $275 million in cash and debt relief. In Thomas v. Global Vision Products, Inc. (II), we obtained a $50 million jury verdict in favor of a certified class of 150,000 purchasers of the Avacor Hair Regrowth System. The legal trade publication VerdictSearch reported that this was the second largest jury verdict in California in 2009, and the largest in any class action. The lawyers at our firm have an active class action practice and have won numerous appointments as class counsel to represent millions of class members, including customers of Verizon Wireless, AT&T Wireless, Cingular Wireless, Sprint, T-Mobile, General Electric, Haier America, and Michaels Stores as well as purchasers of Avacor, Xenadrine, and Sensa products. Since 2014, our lawyers have certified five consumer classes pursuant to contested class certification motions (see Ebin, Forcellati, In re EZ Seed Litig., Dei Rossi, Melgar infra). Since December 2010, Bursor & Fisher lawyers have been court-appointed Class Counsel or Interim Class Counsel in: i. O Brien v. LG Electronics USA, Inc. (D.N.J. Dec. 16, 2010) to represent a certified nationwide class of purchasers of LG French-door refrigerators, ii. iii. iv. Ramundo v. Michaels Stores, Inc. (N.D. Ill. June 8, 2011) to represent a certified nationwide class of consumers who made in-store purchases at Michaels Stores using a debit or credit card and had their private financial information stolen as a result, In re Haier Freezer Consumer Litig. (N.D. Cal. Aug. 17, 2011) to represent a certified class of purchasers of mislabeled freezers from Haier America Trading, LLC, Loreto v. Coast Cutlery Co. (D.N.J. Sep. 8, 2011) to represent a certified nationwide class of purchasers of knives or tools made by Coast Cutlery, v. Rodriguez v. CitiMortgage, Inc. (S.D.N.Y. Nov. 14, 2011) to represent a certified nationwide class of military personnel against CitiMortgage for illegal foreclosures,

157 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 22 of 95 Pg ID 635 PAGE 2 vi. Avram v. Samsung Electronics America, Inc., et al. (D.N.J. Jan. 3, 2012), to represent a proposed nationwide class of purchasers of mislabeled refrigerators from Samsung Electronics America, Inc. and Lowe s Companies, Inc., vii. viii. ix. Rossi v. The Procter & Gamble Co. (D.N.J. Jan. 31, 2012), to represent a certified nationwide class of purchasers of Crest Sensitivity Treatment & Protection toothpaste, Dzielak v. Whirlpool Corp. et al. (D.N.J. Feb. 21, 2012), to represent a proposed nationwide class of purchasers of mislabeled Maytag Centennial washing machines from Whirlpool Corp., Sears, and other retailers, In re Sensa Weight Loss Litig. (N.D. Cal. Mar. 2, 2012), to represent a certified nationwide class of purchasers of Sensa weight loss products, x. In re Sinus Buster Products Consumer Litig. (E.D.N.Y. Dec. 17, 2012) to represent a certified nationwide class of purchasers of Sinus Buster products, xi. xii. xiii. xiv. Scott v. JPMorgan Chase & Co., et al. (S.D.N.Y. May 30, 2013) to represent a proposed nationwide class of Chase customers who were allegedly unilaterally enrolled into Chase s Overdraft Protection service and charged unauthorized fees, Podobedov v. Living Essentials, LLC (C.D. Cal. Nov. 8, 2013) to represent a proposed nationwide class of purchasers of 5-hour Energy products, Ebin v. Kangadis Food Inc. (S.D.N.Y. Feb. 25, 2014) to represent a certified nationwide class of purchasers of Capatriti 100% Pure Olive Oil, Forcellati v. Hyland s, Inc. (C.D. Cal. Apr. 9, 2014) to represent a certified nationwide class of purchasers of children s homeopathic cold and flu remedies, xv. Ebin v. Kangadis Family Management LLC, et al. (S.D.N.Y. Sept. 18, 2014) to represent a certified nationwide class of purchasers of Capatriti 100% Pure Olive Oil, xvi. xvii. xviii. xix. xx. xxi. xxii. In re Scotts EZ Seed Litig. (S.D.N.Y. Jan. 26, 2015), to represent a certified class of purchasers of Scotts Turf Builder EZ Seed, Dei Rossi v. Whirlpool Corp., et al. (E.D. Cal. Apr. 28, 2015), to represent a certified class of purchasers of mislabeled KitchenAid refrigerators from Whirlpool Corp., Best Buy, and other retailers, Hendricks v. StarKist Co. (N.D. Cal. July 23, 2015) to represent a certified nationwide class of purchasers of StarKist tuna products, In re NVIDIA GTX 970 Graphics Card Litig. (N.D. Cal. May 8, 2015), to represent a proposed nationwide class of purchasers of NVIDIA GTX 970 graphics cards, and Melgar v. Zicam LLC, et al. (E.D. Cal. March 30, 2016) to represent a certified ten-jurisdiction class of purchasers of Zicam Pre-Cold products. In re Trader Joe s Tuna Litigation (C.D. Cal. December 21, 2016), to represent a nationwide class of purchasers of Trader Joe s tuna products. In re Welspun Litigation (S.D.N.Y. January 26, 2017), to represent a proposed nationwide class of purchasers of Welspun Egyptian cotton bedding products.

158 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 23 of 95 Pg ID 636 PAGE 3 SCOTT A. BURSOR Mr. Bursor has an active civil trial practice, having won multi-million verdicts or recoveries in five of five civil jury trials since Mr. Bursor s most recent victory came in August 2013 in Ayyad v. Sprint Spectrum L.P., in which he served as lead trial counsel and won a jury verdict defeating Sprint s $1.06 billion counterclaim and securing the class s recovery of more than $275 million in cash and debt relief. In Thomas v. Global Vision Products, Inc. (2009), the jury returned a $50 million verdict in favor of the plaintiff and class represented by Mr. Bursor. The legal trade publication VerdictSearch reported that this was the second largest jury verdict in California in Class actions are rarely tried to verdict. Other than Mr. Bursor and his partner Mr. Fisher, we know of no lawyer that has tried more than one class action to a jury. Mr. Bursor s perfect record of five wins in five class action jury trials, with recoveries ranging from $21 million to $299 million, is unmatched by any other lawyer. Each of these victories was hard-fought against top trial lawyers from the biggest law firms in the United States. Mr. Bursor graduated from the University of Texas Law School in He served as Articles Editor of the Texas Law Review, and was a member of the Board of Advocates and Order of the Coif. Prior to starting his own practice, Mr. Bursor was a litigation associate with Cravath, Swaine & Moore ( ) and Chadbourne & Parke LLP (2001), where he represented large telecommunications, pharmaceutical, and technology companies in commercial litigation. Mr. Bursor is a member of the state bars of New York, Florida, and California, as well as the bars of the United States Court of Appeals for the Second Circuit, United States Court of Appeals for the Third Circuit, United States Court of Appeals for the Fourth Circuit, United States Court of Appeals for the Sixth Circuit, United States Court of Appeals for the Ninth Circuit, United States Court of Appeals for the Eleventh Circuit, United States District Courts for the Southern and Eastern Districts of New York, United States District Courts for the Northern, Central, Southern and Eastern Districts of California, the United States District Courts for the Southern and Middle Districts of Florida, and the United States District Court for the Eastern District of Michigan. Representative Cases Mr. Bursor was appointed lead or co-lead class counsel to the largest, 2nd largest, and 3rd largest classes ever certified. Mr. Bursor has represented classes including more than 160 million class members, roughly 1 of every 2 Americans. Listed below are recent cases that are representative of Mr. Bursor s practice: Mr. Bursor negotiated and obtained court-approval for two landmark settlements in Nguyen v. Verizon Wireless and Zill v. Sprint Spectrum (the largest and 2nd largest classes ever certified). These settlements required Verizon and Sprint to open their wireless networks to third-party devices and applications. These settlements are believed to be the most significant

159 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 24 of 95 Pg ID 637 PAGE 4 legal development affecting the telecommunications industry since 1968, when the FCC s Carterfone decision similarly opened up AT&T s wireline telephone network. Mr. Bursor was the lead trial lawyer in Ayyad v. Sprint Spectrum, L.P. representing a class of approximately 2 million California consumers who were charged an early termination fee under a Sprint cellphone contract, asserting claims that such fees were unlawful liquidated damages under the California Civil Code, as well as other statutory and common law claims. After a five-week combined bench-and-jury trial, the jury returned a verdict in June 2008 and the Court issued a Statement of Decision in December 2008 awarding the plaintiffs $299 million in cash and debt cancellation. Mr. Bursor served as lead trial counsel for this class again in 2013 during a month-long jury trial in which Sprint asserted a $1.06 billion counterclaim against the class. Mr. Bursor secured a verdict awarding Sprint only $18.4 million, the exact amount calculated by the class s damages expert. This award was less than 2% of the damages Sprint sought, less than 6% of the amount of the illegal termination fees Sprint charged to class members, and ensured that the class would recover in excess of $275 million. Mr. Bursor was the lead trial lawyer in White v. Cellco Partnership d/b/a Verizon Wireless representing a class of approximately 1.4 million California consumers who were charged an early termination fee under a Verizon cellphone contract, asserting claims that such fees were unlawful liquidated damages under the California Civil Code, as well as other statutory and common law claims. In July 2008, after Mr. Bursor presented plaintiffs case-in-chief, rested, then cross-examined Verizon s principal trial witness, Verizon agreed to settle the case for a $21 million cash payment and an injunction restricting Verizon s ability to impose early termination fees in future subscriber agreements. Mr. Bursor was the lead trial lawyer in Thomas v. Global Visions Products Inc. Mr. Bursor represented a class of approximately 150,000 California consumers who had purchased the Avacor hair regrowth system. In January 2008, after a four-week combined bench-and-jury trial. Mr. Bursor obtained a $37 million verdict for the class, which the Court later increased to $40 million. Mr. Bursor was appointed class counsel and was elected chair of the Official Creditors Committee in In re Nutraquest Inc., a Chapter 11 bankruptcy case before Chief Judge Garrett E. Brown, Jr. (D.N.J.) involving 390 ephedra-related personal injury and/or wrongful death claims, two consumer class actions, four enforcement actions by governmental agencies, and multiple adversary proceedings related to the Chapter 11 case. Working closely with counsel for all parties and with two mediators, Judge Nicholas Politan (Ret.) and Judge Marina Corodemus (Ret.), the committee chaired by Mr. Bursor was able to settle or otherwise resolve every claim and reach a fully consensual Chapter 11 plan of reorganization, which Chief Judge Brown approved in late This settlement included a $12.8 million recovery to a nationwide class of consumers who alleged they were defrauded in connection with the purchase of Xenadrine dietary supplement products. Mr. Bursor was the lead trial lawyer in In re: Pacific Bell Late Fee Litigation. After filing the first class action challenging Pac Bell's late fees in April 2010, winning a contested motion to certify a statewide California class in January 2012, and defeating Pac Bell's motion for summary judgment in February 2013, Mr. Bursor obtained final approval of the $38 million

160 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 25 of 95 Pg ID 638 PAGE 5 class settlement. The settlement, which Mr. Bursor negotiated the night before opening statements were scheduled to commence, provides for a $20 million cash payment to provide refunds to California customers who paid late fees on their Pac Bell wireline telephone accounts, and includes an injunction that will reduce late fee charges by $18.6 million over 28 months. L. TIMOTHY FISHER L. Timothy Fisher has an active practice in consumer class actions and complex business litigation and has also successfully handled a large number of civil appeals. Mr. Fisher has been actively involved in numerous cases that resulted in multi-million dollar recoveries for consumers and investors. Mr. Fisher has handled cases involving a wide range of issues including nutritional labeling, health care, telecommunications, corporate governance, unfair business practices and consumer fraud. With his partner Scott A. Bursor, Mr. Fisher has tried four class action jury trials, all of which produced successful results. In Thomas v. Global Vision Products, Mr. Fisher obtained a jury award of $50,024,611 the largest class action award in California in 2009 and the second-largest jury award of any kind. Mr. Fisher also has significant experience in multidistrict litigation proceedings. Currently, he serves as co-lead counsel in In re 5-Hour Energy Marketing and Sales Practices Litigation, MDL No and is a member of the executive committee in In re 100% Grated Parmesan Cheese Marketing and Sales Practices Litigation, MDL No Mr. Fisher was admitted to the State Bar of California in He is also a member of the bars of the United States Court of Appeals for the Ninth Circuit and the United States District Courts for the Northern, Central, Southern and Eastern Districts of California. Mr. Fisher taught appellate advocacy at John F. Kennedy University School of Law in 2003 and In 2010, he contributed jury instructions, a verdict form and comments to the consumer protection chapter of Justice Elizabeth A. Baron s California Civil Jury Instruction Companion Handbook (West 2010). In January 2014, Chief Judge Claudia Wilken of the United States District Court for the Northern District of California appointed Mr. Fisher to a four-year term as a member of the Court s Standing Committee on Professional Conduct. Mr. Fisher received his Juris Doctorate from Boalt Hall at the University of California at Berkeley in While in law school, he was an active member of the Moot Court Board and participated in moot court competitions throughout the United States. In 1994, Mr. Fisher received an award for Best Oral Argument in the first year moot court competition. In 1992, Mr. Fisher graduated with highest honors from the University of California at Berkeley and received a degree in political science. Prior to graduation, he authored an honors thesis for Professor Bruce Cain entitled The Role of Minorities on the Los Angeles City Council. He is also a member of Phi Beta Kappa. Representative Cases Thomas v. Global Vision Products, Inc. (Alameda County Superior Court). Mr. Fisher litigated claims against Global Vision Products, Inc. and other individuals in connection with the sale and

161 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 26 of 95 Pg ID 639 PAGE 6 marketing of a purported hair loss remedy known as Avacor. The case lasted more than seven years and involved two trials. The first trial resulted in a verdict for plaintiff and the class in the amount of $40,000,000. The second trial resulted in a jury verdict of $50,024,611, which led to a $30 million settlement for the class. In re Cellphone Termination Fee Cases - Handset Locking Actions (Alameda County Superior Court). Mr. Fisher actively worked on five coordinated cases challenging the secret locking of cell phone handsets by major wireless carriers to prevent consumers from activating them on competitive carriers systems. Settlements have been approved in all five cases on terms that require the cell phone carriers to disclose their handset locks to consumers and to provide unlocking codes nationwide on reasonable terms and conditions. The settlements fundamentally changed the landscape for cell phone consumers regarding the locking and unlocking of cell phone handsets. In re Cellphone Termination Fee Cases - Early Termination Fee Cases (Alameda County Superior Court and Federal Communications Commission). In separate cases that are a part of the same coordinated litigation as the Handset Locking Actions, Mr. Fisher actively worked on claims challenging the validity under California law of early termination fees imposed by national cell phone carriers. In one of those cases, against Verizon Wireless, a nationwide settlement was reached after three weeks of trial in the amount of $21 million. In a second case, which was tried to verdict, the Court held after trial that the $73 million of flat early termination fees that Sprint had collected from California consumers over an eight-year period were void and unenforceable. Selected Published Decisions In re 5-hour Energy Marketing and Sales Practices Litigation, 2017 WL (C.D. Cal. January 24, 2017) (denying motion for summary judgment in case alleging that 5-hour Energy made false and misleading statements regarding its energy drinks). Strumlauf v. Starbucks Corp., 2016 WL (N.D. Cal. June 17, 2016) (denying motion to dismiss case alleging underfilling of Starbucks lattes). Melgar v. Zicam LLC, 2016 WL (E.D. Cal. Mar. 30, 2016) (certifying 10-jurisdiction class of purchasers of cold remedies, denying motion for summary judgment, and denying motions to exclude plaintiff s expert witnesses). Salazar v. Honest Tea, Inc., 2015 WL (E.D. Cal. Nov ) (denying motion for summary judgment). Dei Rossi v. Whirlpool Corp., 2015 WL (E.D. Cal. Apr. 27, 2015) (certifying California class of purchasers of refrigerators that were mislabeled as Energy Star qualified). Bayol v. Zipcar, Inc., 78 F.Supp.3d 1252 (N.D. Cal. 2015) (denying motion to dismiss claims alleging unlawful late fees under California Civil Code 1671). Forcellati v. Hyland s, Inc., 2015 WL (C.D. Cal. Jan. 12, 2015) (denying motion for summary judgment in case alleging false advertising of homeopathic cold and flu remedies for children).

162 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 27 of 95 Pg ID 640 PAGE 7 Bayol v. Zipcar, Inc., 2014 WL (N.D. Cal. Sept. 25, 2014) (denying motion to transfer venue pursuant to a forum selection clause). Forcellati v. Hyland s Inc., 2014 WL (C.D. Cal. Apr. 9, 2014) (certifying nationwide class of purchasers of homeopathic cold and flu remedies for children). Hendricks v. StarKist Co., 30 F.Supp.3d 917 (N.D. Cal. 2014) (denying motion to dismiss in case alleging underfilling of 5-ounce cans of tuna). Dei Rossi v. Whirlpool Corp., 2013 WL (E.D. Cal. October 25, 2013) (denying motion to dismiss in case alleging that certain KitchenAid refrigerators were misrepresented as Energy Star qualified). Forcellati v. Hyland s Inc., 876 F.Supp.2d 1155 (C.D. Cal. 2012) (denying motion to dismiss complaint alleging false advertising regarding homeopathic cold and flu remedies for children). Podobedov v. Living Essentials, LLC, 2012 WL (C.D. Cal. March 22, 2012) (denying motion to dismiss in case alleging false and misleading advertising by 5-hour Energy). Clerkin v. MyLife.com, 2011 WL (N.D. Cal. August 29, 2011) (denying defendants motion to dismiss in case alleging false and misleading advertising by a social networking company). In re Cellphone Termination Fee Cases, 186 Cal.App.4th 1380 (2010) (affirming order approving $21 million class action settlement). Gatton v. T-Mobile USA, Inc., 152 Cal.App.4th 571 (2007) (affirming order denying motion to compel arbitration). Selected Class Settlements In Re NVIDIA GTX 970 Graphics Chip Litigation (Northern District of California) - $4.5 million class action settlement of claims alleging that a computer graphics card was sold with false and misleading representations concerning its specifications and performance. Hendricks v. StarKist Co. (Northern District of California) $12 million class action settlement of claims alleging that 5-ounce cans of tuna were underfilled. In re Zakskorn v. American Honda Motor Co. Honda (Eastern District of California) nationwide settlement providing for brake pad replacement and reimbursement of out-of-pocket expenses in case alleging defective brake pads on Honda Civic vehicles manufactured between 2006 and Correa v. Sensa Products, LLC (Los Angeles Superior Court) - $9 million settlement on behalf of purchasers of the Sensa weight loss product. In re Pacific Bell Late Fee Litigation (Contra Costa County Superior Court) - $38.6 million settlement on behalf of Pac Bell customers who paid an allegedly unlawful late payment charge. In re Haier Freezer Consumer Litigation (Northern District of California) - $4 million settlement, which provided for cash payments of between $50 and $ to class members who purchased the Haier HNCM070E chest freezer. Thomas v. Global Vision Products, Inc. (Alameda County Superior Court) - $30 million settlement on behalf of a class of purchasers of a hair loss remedy.

163 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 28 of 95 Pg ID 641 PAGE 8 Guyette v. Viacom, Inc. (Alameda County Superior Court) - $13 million settlement for a class of cable television subscribers who alleged that the defendant had improperly failed to share certain tax refunds with its subscribers. JOSEPH I. MARCHESE Joseph I. Marchese is a Partner with Bursor & Fisher, P.A. Joe focuses his practice on consumer class actions, employment law disputes, and commercial litigation. He has represented corporate and individual clients in a wide array of civil litigation, and has substantial trial and appellate experience. In 2015, Joe was defense trial counsel for a law firm and several of its partners in a sexual harassment case brought by a former associate of that firm. The plaintiff s complaint sought $22 million in compensatory and punitive damages. After a 3-week trial in federal court in New York, the jury returned a verdict of not liable for the federal and state law claims. During the trial, the judge also granted defendants motion for judgment as a matter of law on the plaintiff s claims for retaliation and defamation. The jury found liability solely under New York City s human rights law, awarding only $140,000 in damages. Joe also has significant experience in multidistrict litigation proceedings. Currently he serves on the Plaintiffs Executive Committee in In Re: Blue Buffalo Company, Ltd. Marketing And Sales Practices Litigation, MDL No Joe is admitted to the State Bar of New York and is a member of the bars of the United States District Courts for the Southern District of New York, the Eastern District of New York, and the Eastern District of Michigan, as well as the United States Court of Appeals for the Second Circuit. Joe graduated from Boston University School of Law in 2002 where he was a member of The Public Interest Law Journal. In 1998, Joe graduated with honors from Bucknell University. Selected Published Decisions: Boelter v. Hearst Communications, Inc., --- F. Supp. 3d ---, 2016 WL (S.D.N.Y. June 17, 2016), denying publisher s motion to dismiss its subscriber s allegations of state privacy law violations in putative class action. In re Scotts EZ Seed Litigation, 304 F.R.D. 397 (S.D.N.Y. 2015), granting class certification of false advertising and other claims brought by New York and California purchasers of grass seed product. Marchuk v. Faruqi & Faruqi, LLP, et al., 100 F. Supp. 3d 302 (S.D.N.Y. 2015), granting individual and law firm defendants motion for judgment as a matter of law on plaintiff s claims for retaliation and defamation, as well as for all claims against law firm partners, Nadeem and Lubna Faruqi.

164 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 29 of 95 Pg ID 642 PAGE 9 Ebin v. Kangadis Food Inc., 297 F.R.D. 561 (S.D.N.Y. 2014), granting nationwide class certification of false advertising and other claims brought by purchasers of purported 100% Pure Olive Oil product. Ebin v. Kangadis Food Inc., 2014 WL (S.D.N.Y. Feb. 25, 2014), denying distributor s motion for summary judgment against nationwide class of purchasers of purported 100% Pure Olive Oil product. In re Michaels Stores Pin Pad Litigation, 830 F. Supp. 2d 518 (N.D. Ill. 2011), denying retailer s motion to dismiss its customers state law consumer protection and privacy claims in data breach putative class action. Selected Class Settlements: In Re: Blue Buffalo Marketing And Sales Practices Litigation, Case No. 14-MD-2562-RWS (E.D. Mo. 2016) final approval granted for $32 million class settlement to resolve claims of pet owners for alleged false advertising of pet foods. Rodriguez v. Citimortgage, Inc., Case No. 11-cv-4718-PGG (S.D.N.Y. 2015) final approval granted for $38 million class settlement to resolve claims of military servicemembers for alleged foreclosure violations of the Servicemembers Civil Relief Act, where each class member was entitled to $116,785 plus lost equity in the foreclosed property and interest thereon. O Brien v. LG Electronics USA, Inc., et al., Case No. 10-cv-3733-DMC (D.N.J. 2011) final approval granted for $23 million class settlement to resolve claims of Energy Star refrigerator purchasers for alleged false advertising of the appliances Energy Star qualification. JOSHUA D. ARISOHN Joshua D. Arisohn is a Partner with Bursor & Fisher, P.A. Josh has litigated precedentsetting cases in the areas of consumer class actions and terrorism. He participated in the first ever trial to take place under the Anti-Terrorism Act, a statute that affords U.S. citizens the right to assert federal claims for injuries arising out of acts of international terrorism. Josh s practice continues to focus on terrorism-related matters as well as class actions. Josh is admitted to the State Bar of New York and is a member of the bars of the United States District Courts for the Southern District of New York and the Eastern District of New York. Josh previously practiced at Dewey & LeBoeuf LLP and DLA Piper LLP. He graduated from Columbia University School of Law in 2006, where he was a Harlan Fiske Stone Scholar, and received his B.A. from Cornell University in Josh has been honored as a 2015 and 2016 Super Lawyer Rising Star.

165 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 30 of 95 Pg ID 643 PAGE 10 Selected Published Decisions: Perez v. Monster Inc., 149 F. Supp. 3d 1176 (N.D. Cal. 2016), denying defendants motion to dismiss claims that manufacturer and retailer of HDMI cables fraudulently represented the need for high bandwidths. Morris v. SolarCity Corp., 2016 WL (N.D. Cal. Apr. 4, 2016), denying defendant s motion to dismiss claims that solar company illegally called consumers using an artificial or prerecorded voice and an automatic telephone dialing system. Boelter v. Hearst Commc'ns, Inc., 192 F. Supp. 3d 427 (S.D.N.Y. 2016), denying defendant s motion to dismiss and finding that the Michigan Video Rental Privacy Act does not violate the First Amendment. Edwards v. Oportun, Inc., 193 F. Supp. 3d 1096 (N.D. Cal. 2016), denying defendant s motion dismiss and rejecting its argument that providing a class representative with a cashier s check for his individual damages mooted his individual and class claims. JOEL D. SMITH Joel D. Smith is a partner with Bursor & Fisher, P.A. Joel s practice focuses on consumer class actions and complex litigation. He has substantial experience in trial and appellate courts across the nation. Prior to joining Bursor & Fisher, Joel was a litigator at Crowell & Moring, where he represented Fortune 500 companies, privately-held businesses, and public entities in commercial litigation and nationwide class actions. While at Crowell & Moring, Joel litigated some of the firm s most high-profile matters, including several class actions alleging deceptive sales practices with respect to Apple iphones and ipads, and a class action seeking to hold U.S. energy companies accountable for global warming. Joel received both his undergraduate and law degrees from the University of California at Berkeley. While at Berkeley School of Law, he was a member of the California Law Review, received several academic honors, externed for the California Attorney General s office and published an article on climate change policy and litigation. Joel is admitted to the State Bar of California, as well as the United States Courts of Appeals for the Second, Third and Ninth Circuits, and the Northern, Central, Southern and Eastern Districts of California. Selected Published Decisions: In re 5-Hour ENERGY Marketing & Sales Practices Litig., 2017 WL (C.D. Cal. Jan. 24, 2017), denying motion for partial summary judgment in putative class action against the makers of 5-Hour ENERGY products.

166 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 31 of 95 Pg ID 644 PAGE 11 Mbazomo v. Etourandtravel, Inc., 2016 WL (E.D. Cal. Dec. 8, 2016), denying motion to dismiss in putative class action alleging unlawful calls under the Telephone Consumer Protection Act. Brenner v. Procter & Gamble, Co., 2016 WL (C.D. Cal. Oct. 20, 2016), denying motion to dismiss in putative class action alleging false and misleading labeling on Pampers baby wipes. SARAH N. WESTCOT Sarah N. Westcot is an Associate with Bursor & Fisher, P.A. Ms. Westcot focuses her practice on complex business litigation and consumer class actions. Prior to joining Bursor & Fisher, Ms. Westcot litigated civil actions as an attorney with Bay Area Legal Aid in San Jose, CA. Ms. Westcot served as trial counsel with Mr. Bursor in Ayyad v. Sprint Spectrum L.P., and helped to win a jury verdict defeating Sprint s $1.06 billion counterclaim and securing the class s recovery of more than $275 million in cash and debt relief. Ms. Westcot is admitted to the State Bar of California and is a member of the bars of the United States District Courts for the Northern, Central, Southern, and Eastern Districts of California. Ms. Westcot received her Juris Doctor from the University of Notre Dame Law School in During her third year of law school, Ms. Westcot worked as a law clerk with the local public defender s office representing juvenile clients in criminal hearings. She graduated with honors from the University of Florida in NEAL J. DECKANT Neal J. Deckant is an Associate with Bursor & Fisher, P.A. Neal focuses his practice on complex business litigation, consumer class actions, and employment law disputes. Prior to joining Bursor & Fisher, Neal counseled low-income homeowners facing foreclosure in East Boston. In 2015, Neal was defense trial counsel for a law firm and several of its partners in a sexual harassment case brought by a former associate of that firm. The plaintiff s complaint sought $22 million in compensatory and punitive damages. After a 3-week trial in federal court in New York, the jury returned a verdict of not liable for the federal and state law claims. During the trial, the judge also granted defendants motion for judgment as a matter of law on the plaintiff s claims for retaliation and defamation. The jury found liability solely under New York City s human rights law, awarding only $140,000 in damages. Neal is admitted to the State Bar of New York and is a member of the bars of the United States District Court for the Southern District of New York, the United States District Court for the Eastern District of New York, and the bars of the United States Courts of Appeals for the Second and Ninth Circuits.

167 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 32 of 95 Pg ID 645 PAGE 12 Neal received his Juris Doctor from Boston University School of Law in 2011, graduating cum laude with two Dean s Awards. During law school, Neal served as a Senior Articles Editor for the Review of Banking and Financial Law, where he authored two published articles about securitization reforms, both of which were cited by the New York Court of Appeals, the highest court in the state. Neal was also awarded Best Oral Argument in his moot court section, and he served as a Research Assistant for his Securities Regulation professor. Neal has also been honored as a 2014 and 2015 Super Lawyers Rising Star. In 2007, Neal graduated with Honors from Brown University with a dual major in East Asian Studies and Philosophy. Selected Published Decisions: Duran v. Obesity Research Institute, LLC, 204 Cal. Rptr. 3d 896 (Cal. Ct. App. 2016), reversing and remanding final approval of a class action settlement on appeal, regarding allegedly mislabeled dietary supplements, in connection with a meritorious objection. Marchuk v. Faruqi & Faruqi, LLP, et al., 100 F. Supp. 3d 302 (S.D.N.Y. 2015), granting individual and law firm defendants motion for judgment as a matter of law on plaintiff s claims for retaliation and defamation, as well as for all claims against law firm partners, Nadeem and Lubna Faruqi. Ebin v. Kangadis Food Inc., 297 F.R.D. 561 (S.D.N.Y. 2014), granting nationwide class certification of false advertising and other claims brought by purchasers of purported 100% Pure Olive Oil product. Ebin v. Kangadis Food Inc., 2014 WL (S.D.N.Y. Feb. 25, 2014), denying distributor s motion for summary judgment against nationwide class of purchasers of purported 100% Pure Olive Oil product. Selected Class Settlements: In Re NVIDIA GTX 970 Graphics Chip Litigation, Case No. 15-cv PJH (N.D. Cal. Dec. 7, 2016) final approval granted for $4.5 million class action settlement to resolve claims that a computer graphics card was allegedly sold with false and misleading representations concerning its specifications and performance. Hendricks v. StarKist Co., 2016 WL (N.D. Cal. Sept. 29, 2016) final approval granted for $12 million class action settlement to resolve claims that 5-ounce cans of tuna were allegedly underfilled. In re: Kangadis Food Inc., Case No (Bankr. E.D.N.Y. Dec. 17, 2014) class action claims resolved for $2 million as part of a Chapter 11 plan of reorganization, after a corporate defendant filed for bankruptcy, following claims that its olive oil was allegedly sold with false and misleading representations.

168 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 33 of 95 Pg ID 646 PAGE 13 Selected Publications: Neal Deckant, X. Reforms of Collateralized Debt Obligations: Enforcement, Accounting and Regulatory Proposals, 29 Rev. Banking & Fin. L. 79 (2009) (cited in Quadrant Structured Products Co., Ltd. v. Vertin, 16 N.E.3d 1165, 1169 n.8 (N.Y. 2014)). Neal Deckant, Criticisms of Collateralized Debt Obligations in the Wake of the Goldman Sachs Scandal, 30 Rev. Banking & Fin. L. 407 (2010) (cited in Quadrant Structured Products Co., Ltd. v. Vertin, 16 N.E.3d 1165, 1169 n.8 (N.Y. 2014); Lyon Village Venetia, LLC v. CSE Mortgage LLC, 2016 WL , at *1 n.1 (Md. Ct. Spec. App. Feb. 4, 2016); Ivan Ascher, Portfolio Society: On the Capitalist Mode of Prediction, at 141, 153, 175 (Zone Books / The MIT Press 2016)). YITZCHAK KOPEL Yitzchak Kopel is an Associate with Bursor & Fisher, P.A. Yitz focuses his practice on consumer class actions, employment law disputes, and complex business litigation. He has represented corporate and individual clients before federal and state courts, as well as in arbitration proceedings. In 2015, Yitz was plaintiffs counsel in a certified class action in the United States District Court for the Southern District of New York in a false advertising action against an olive oil manufacturer. After the Defendant s motion for summary judgment was denied, the parties entered into a multi-million dollar class settlement. Yitz also provides pro bono representation for refugees in deportation proceedings. Yitz is admitted to the State Bars of New York and New Jersey, the bar of the United States Court of Appeals for the Eleventh Circuit, and the bars of the United States District Courts for the Southern District of New York, Eastern District of New York, Eastern District of Missouri, and District of New Jersey. Yitz received his Juris Doctorate from Brooklyn Law School in 2012, graduating cum laude with two Dean s Awards. During law school, Yitz served as an Articles Editor for the Brooklyn Law Review and worked as a Law Clerk at Shearman & Sterling. In 2009, Yitz graduated cum laude from Queens College with a B.A. in Accounting. Selected Published Decisions: Ward v. TheLadders.com, Inc., 3 F. Supp. 3d 151 (S.D.N.Y. 2014), denying online job board s motion to dismiss its subscribers allegations of consumer protection law violations in putative class action. Brady v. Basic Research, L.L.C., 101 F. Supp. 3d 217 (E.D.N.Y. 2015), denying diet pill manufacturers motion to dismiss its purchasers allegations for breach of express warranty in putative class action.

169 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 34 of 95 Pg ID 647 PAGE 14 In re Scotts EZ Seed Litigation, 304 F.R.D. 397 (S.D.N.Y. 2015), granting class certification of false advertising and other claims brought by New York and California purchasers of grass seed product. Marchuk v. Faruqi & Faruqi, LLP, et al., 100 F. Supp. 3d 302 (S.D.N.Y. 2015), granting individual and law firm defendants motion for judgment as a matter of law on plaintiff s claims for retaliation and defamation, as well as for all claims against law firm partners, Nadeem and Lubna Faruqi. Ebin v. Kangadis Food Inc., 297 F.R.D. 561 (S.D.N.Y. 2014), granting nationwide class certification of false advertising and other claims brought by purchasers of purported 100% Pure Olive Oil product. Ebin v. Kangadis Food Inc., 2014 WL (S.D.N.Y. Feb. 25, 2014), denying distributor s motion for summary judgment against nationwide class of purchasers of purported 100% Pure Olive Oil product. FREDERICK J. KLORCZYK III Frederick J. Klorczyk III is an Associate with Bursor & Fisher, P.A. Fred focuses his practice on complex business litigation, consumer class actions, and employment law disputes. In 2014, Fred served on the litigation team in Ebin v. Kangadis Food Inc. At class certification, Judge Rakoff adopted Fred s choice of law fraud analysis and research directly into his published decision certifying a nationwide fraud class. Fred was also an instrumental member of the litigation team led that challenged this defendant s Chapter 11 filing as a sham. After contesting plan confirmation in the bankruptcy court, the class action claims were resolved for $2 million as part of a Chapter 11 plan of reorganization. Fred is admitted to the State Bars of New York and New Jersey, the bars of the United States District Courts for the Southern District of New York, Eastern District of New York, and District of New Jersey, and the bar of the United States Court of Appeals for the Second Circuit. Fred received his Juris Doctor from Brooklyn Law School in 2013, graduating magna cum laude with two CALI Awards for the highest grade in his classes on criminal law and conflict of laws. During law school, Fred served as an Associate Managing Editor for the Brooklyn Journal of Corporate, Financial and Commercial Law and as an intern to the Honorable Alison J. Nathan of the United States District Court for the Southern District of New York and the Honorable Janet Bond Arterton of the United States District Court for the District of Connecticut. In 2010, Fred graduated from the University of Connecticut with a B.S. in Finance. Selected Published Decisions: Porter v. NBTY, Inc., 2016 WL (N.D. Ill. Nov. 28, 2016), denying supplement manufacturer s motion to dismiss consumers allegations of false advertising relating to whey protein content.

170 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 35 of 95 Pg ID 648 PAGE 15 Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d. 282 (S.D.N.Y. 2015), denying supplement manufacturer s motion to dismiss consumers allegations of false advertising relating to a homeopathic cold product. In re Scotts EZ Seed Litigation, 304 F.R.D. 397 (S.D.N.Y. 2015), granting class certification of false advertising and other claims brought by New York and California purchasers of grass seed product. Marchuk v. Faruqi & Faruqi, LLP, et al., 100 F. Supp. 3d 302 (S.D.N.Y. 2015), granting individual and law firm defendants motion for judgment as a matter of law on plaintiff s claims for retaliation and defamation, as well as for all claims against law firm partners, Nadeem and Lubna Faruqi. Ebin v. Kangadis Food Inc., Case No (2d Cir. Apr. 15, 2015), denying olive oil manufacturer s Rule 23(f) appeal following grant of nationwide class certification. Ebin v. Kangadis Food Inc., 297 F.R.D. 561 (S.D.N.Y. 2014), granting nationwide class certification of false advertising and other claims brought by purchasers of purported 100% Pure Olive Oil product. Ebin v. Kangadis Food Inc., 2014 WL (S.D.N.Y. Feb. 25, 2014), denying distributor s motion for summary judgment against nationwide class of purchasers of purported 100% Pure Olive Oil product. Selected Class Settlements: In Re: Blue Buffalo Marketing And Sales Practices Litigation, Case No. 14-MD-2562-RWS (E.D. Mo. 2016), granting final approval of $32 million class settlement to resolve claims of pet owners for alleged false advertising of pet foods. In re: Kangadis Food Inc., Case No (Bankr. E.D.N.Y. Dec. 17, 2014), resolving class action claims for $2 million as part of a Chapter 11 plan of reorganization, after a corporate defendant filed for bankruptcy following the certification of nationwide claims alleging that its olive oil was sold with false and misleading representations. YEREMEY O. KRIVOSHEY Yeremey O. Krivoshey is an Associate with Bursor & Fisher, P.A. Yeremey focuses his practice on class actions involving false advertising, fraud, illegal fees in consumer contracts, invasion of privacy, and unlawful debt collection practices. He has represented clients in a wide array of civil litigation, including appeals before the Ninth Circuit. Yeremey is admitted to the State Bar of California. He is also a member of the bars of the United States Court of Appeals for the Ninth Circuit and the United States District Courts for the Northern, Central, Southern, and Eastern Districts of California.

171 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 36 of 95 Pg ID 649 PAGE 16 Yeremey graduated from New York University School of Law in 2013, where he was a Samuel A. Herzog Scholar. Prior to Bursor & Fisher, P.A., Yeremey worked as a Law Clerk at Vladeck, Waldman, Elias & Engelhard, P.C, focusing on employment discrimination and wage and hour disputes. In law school, he has also interned at the American Civil Liberties Union and the United States Department of Justice. In 2010, Yeremey graduated cum laude from Vanderbilt University. Selected Published Decisions: Bayol v. Zipcar, Inc., 2014 WL (N.D. Cal. Sept. 25, 2014), denying enforcement of forum selection clause based on public policy grounds. Bayol v. Zipcar, Inc., 78 F. Supp. 3d 1252 (N.D. Cal. Jan. 29, 2015), denying car-rental company s motion to dismiss its subscriber s allegations of unlawful late fees. Brown v. Comcast Corp., Case No. 5:16-cv-264-AB-SP (C.D. Cal. Aug. 12, 2016), denying internet service provider s motion to compel arbitration of claims alleged under the Telephone Consumer Protection Act. Brown v. Comcast Corp., Case No. 5:16-cv-264-AB-SP (C.D. Cal. Oct. 20, 2016), denying internet service provider s motion to stay litigation pending appeal of denial of motion to compel arbitration. Horanzy v. Vemma Nutrition Co., Case No. 15-cv-298-PHX-JJT (D. Ariz. Apr. 16, 2016), denying multi-level marketer s and its chief scientific officer s motion to dismiss their customer s fraud claims. Salazar v. Honest Tea, Inc., 2015 WL (E.D. Cal. Nov ), denying manufacturer s motion for summary judgment as to customer s false advertising claims. Selected Class Settlements: Retta v. Millennium Prods., Inc., Case No. 15-cv-1801-PSG-AJW (C.D. Cal. Jan. 31, 2017) granting preliminary approval for $8.25 million settlement to resolve claims of bottled tea purchasers for alleged false advertising. PHILIP L. FRAIETTA Philip L. Fraietta is an Associate with Bursor & Fisher, P.A. Phil focuses his practice on complex business litigation, consumer class actions, and employment law disputes. In 2015, Phil was a member of a defense trial team for a law firm and several of its partners in a sexual harassment case brought by a former associate of that firm. The plaintiff s complaint sought $22 million in compensatory and punitive damages. After a 3-week trial in federal court in New York, the jury returned a verdict of not liable for the federal and state law claims. During the trial, the judge also granted defendants motion for judgment as a matter of

172 5:16-cv JEL-EAS Doc # 37-4 Filed 07/31/17 Pg 37 of 95 Pg ID 650 PAGE 17 law on the plaintiff s claims for retaliation and defamation. The jury found liability solely under New York City s human rights law, awarding only $140,000 in damages. Phil is admitted to the State Bars of New York and New Jersey, the bars of the United States District Courts for the Southern District of New York, Eastern District of New York, the District of New Jersey, the Eastern District of Michigan and the United States Court of Appeals for the Second Circuit. Phil was a Summer Associate with Bursor & Fisher prior to joining the firm. Phil received his Juris Doctor from Fordham University School of Law in 2014, graduating cum laude. During law school, Phil served as an Articles & Notes Editor for the Fordham Law Review, and published two articles. In addition, Phil received the Addison M. Metcalf Labor Law Prize for the highest grade in his graduating class in the Labor Law course, and received the highest grade in his Anti-Discrimination Law & Policy course. In 2011, Phil graduated cum laude from Fordham University with a B.A. in Economics. Selected Published Decisions: Edwards v. Hearst Communications, Inc., --- F. Supp. 3d ---, 2016 WL (S.D.N.Y. June 17, 2016), denying publisher s motion to dismiss its subscriber s allegations of state privacy law violations in putative class action. Porter v. NBTY, Inc., 2016 WL (N.D. Ill. Nov. 28, 2016), denying supplement manufacturer s motion to dismiss consumers allegations of false advertising relating to whey protein content. Boelter v. Advance Magazine Publishers Inc., -- F. Supp. 3d --, 2016 WL (S.D.N.Y. Sept. 28, 2016), denying publisher s motion to dismiss its subscriber s allegations of state privacy law violations in putative class action. THOMAS A. REYDA Thomas Reyda is an Associate with Bursor & Fisher, P.A. Thomas focuses his practice on complex business litigation and consumer class actions. Thomas is admitted to the State Bar of California and is a member of the bar of the United States District Courts for the Northern California. Thomas received his Juris Doctorate from Berkeley Law School in During law school Mr. Reyda worked as a Law Clerk at Kershaw Cutter & Ratinoff, LLP. In 2012, Mr. Reyda graduated from the Colorado College with a B.A. in International Political Economy.

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