Case 1:14-cv WTL-DLP Document 172 Filed 07/06/18 Page 1 of 2 PageID #: 2925

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1 Case 1:14-cv WTL-DLP Document 172 Filed 07/06/18 Page 1 of 2 PageID #: 2925 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION LATONYA SIMMS, on behalf of herself, and all others similarly situated, Case No. 1:14-cv WTL-DLP Plaintiff, v. EXACTTARGET, LLC, Defendant. NOTICE OF PLAINTIFF S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT PLEASE TAKE NOTICE that on July 20, :30 p.m., Plaintiff s counsel will appear before the Honorable Doris L. Pryor or any judge sitting in her stead, in the courtroom 243 in the Birth Bayh Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana 46204, Dirksen Building, 219 S. Dearborn, Chicago, Illinois, and then and there present plaintiff s motion for final approval of class action settlement. Dated: July 6, 2018 Respectfully submitted, By: s/ Ronald A. Marron Ronald A. Marron LAW OFFICES OF RONALD A. MARRON Ronald A. Marron (pro hac vice) ron@consumersadvocates.com Alexis M. Wood (pro hac vice) alexis@consumersadvocates.com Kas L. Gallucci (pro hac vice) i

2 Case 1:14-cv WTL-DLP Document 172 Filed 07/06/18 Page 2 of 2 PageID #: 2926 kas@consumersadvocates.com 651 Arroyo Drive San Diego, California Telephone: (619) ii

3 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 1 of 21 PageID #: 2930 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION LATONYA SIMMS, on behalf of herself, and all others similarly situated, v. Plaintiff, EXACTTARGET, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Cause No.: 1-14-CV WTL-DLP PLAINTIFF LATONYA SIMMS MOTION AND MEMORANDUM OF LAW SUPPORTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (CA SBN ) (admitted pro hac vice) ron@consumersadvocates.com ALEXIS WOOD (CA SBN ) (admitted pro hac vice) alexis@consumersadvocates.com KAS GALLUCCI (CA SBN ) (admitted pro hac vice) kas@consumersadvocates.com 651 Arroyo Drive San Diego, California Telephone: (619) Facsimile: (619) Class Counsel

4 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 2 of 21 PageID #: 2931 TABLE OF CONTENTS INTRODUCTION... 1 BACKGROUND... 2 THE SETTLEMENT... 3 ARGUMENT... 5 I. The Court Should Finally Certify the Settlement Class II. The Implemented Notice Plan Comports with Due Process III. The Settlement Offers Substantial Relief to the Class and Warrants Final Approval A. The Settlement s Value Relative the Risks and Rewards of Further Litigation Justifies Final Approval B. The Risks, Expenses, Complexity, and Duration of Further Litigation Supports Final Approval C. Competent Class Counsel Believe that the Settlement Warrants Final Approval D. The Stage of the Proceedings and the Discovery to Date Support Final Approval E. The Good-Faith, Non-Collusive Nature of the Settlement Reached with the Assistance of a Third-Party Mediator Supports Final Approval F. The Class s Overwhelmingly Positive Reaction Supports Final Approval CONCLUSION i

5 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 3 of 21 PageID #: 2932 Cases TABLE OF AUTHORITIES ACA Int l v. Fed. Commc ns Comm n, 885 F.3d 687 (D.C. Cir. 2018) Am. Int l Grp., Inc. v. ACE INA Holdings, Inc., No. 07 cv 2898, 2012 WL (N.D. Ill. Feb. 28, 2012) Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)... 7 Arthur v. Sallie Mae, Inc., No. 10-cv-0198, 2012 WL (W.D. Wash. Jan. 10, 2012) Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014)... 6, 8 Burns v. Elrod, 757 F.2d 151 (7th Cir. 1985)... 8 Butler v. Am. Cable & Tel., LLC, 2011 WL (N.D. Ill. July 12, 2011) Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)... 8 Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct (2011)... 7 Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014)... 11, 15 Gehrich v. Chase Bank USA, N.A., 316 F.R.D. 215 (N.D. Ill. 2016) In re AT&T I, 270 F.R.D. 330 (N.D. Ill. 2010) In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935 (N.D. Ill. 2011)... 11, 14, 15, 16 In re Capital One Tel. Consumer Prot. Act Litig., 80 F. Supp. 3d 781 (N.D. Ill. 2015)... 12, 13 In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002 (N.D. Ill. 2000) Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) Kolinek v. Walgreen Co., 311 F.R.D. 483 (N.D. Ill. 2015) Messner v. Northshore Univ. Health Sys., 669 F.3d 802 (7th Cir. 2012)... 7 ii

6 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 4 of 21 PageID #: 2933 Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015)... 5 Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011)... 8, 10, 14 Suchanek v. Sturm Foods, Inc., 764 F.3d 750 (7th Cir. 2014)... 6 Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978 (7th Cir. 2002) Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct (2011)... 6 Statutes 47 U.S.C. 227(b)(3)(C) Rules Fed. R. Civ. P. 23(a)(1)... 5 Fed. R. Civ. P. 23(a)(2)... 5 Fed. R. Civ. P. 23(a)(3)... 6 Fed. R. Civ. P. 23(a)(4)... 6 Fed. R. Civ. P. 23(c)(2)(B)... 8 Fed. R. Civ. P. 23(e) Other Authorities Federal Judicial Center, Judges Class Action Notice & Claims Process Checklist & Plain Language Guide at 3 (2010)... 9 iii

7 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 5 of 21 PageID #: 2934 INTRODUCTION The Settlement now before the Court seeks to resolve claims against Defendant ExactTarget, LLC, asserting that it violated the Telephone Consumer Protection Act, 47 U.S.C. 227 ( TCPA ), by sending text messages to consumers advertising the now-defunct retailer Simply Fashion in connection with Simply Fashion s customer loyalty program. 1 The Parties reached this Settlement only after discovery and summary judgment briefing, Simply Fashion s bankruptcy, another round of summary judgment briefing, and months of settlement negotiations overseen by the Honorable Morton Denlow (ret.) of JAMS Chicago. If approved, the Settlement will provide significant monetary relief to the Class in the form of a $6.25 million non-reversionary cash fund which will result in payments to claiming class members estimated at $256 per person. As detailed in Plaintiff s motion for preliminary approval, her fee petition, and further below, the relief obtained under the Settlement far exceeds that secured in other TCPA settlements approved within this Circuit. Given the substantial relief available to the Class, it should come as no surprise that the Class s reaction to the Settlement has been overwhelmingly positive. To date, 13,212 valid claims have been lodged an exceptional number given the labor involved, detailed below, in providing direct notice to the class while none of the 528,541 members have objected and only a single person has requested exclusion from the settlement. This non-existent opposition on its own strongly favors approval of the settlement. Ultimately, given the relief obtained by the Settlement (far in excess of what has been achieved in other TCPA actions), the risks of further litigation (significant, in light of recent appellate decisions), and the class members reaction (uniformly 1 All capitalized terms not separately defined herein shall have the meaning ascribed to them in the Parties Class Action Settlement Agreement. (See ECF No ) 1

8 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 6 of 21 PageID #: 2935 positive), the Court should have no hesitation in finding that the Settlement is fair, adequate, reasonable, and deserving of final approval. BACKGROUND The history of this case has been set forth in detail in Plaintiff s Memorandum of Law in Support of Her Motion for Preliminary Approval (ECF No. 159), and her Memorandum of Law in Support of Her Motion for Award of Attorneys Fees, Costs, and Incentive Award (ECF No. 167). Accordingly, the background is only briefly set forth below. This TCPA class action was originally filed against the now defunct retailer Simply Fashion Stores in the Southern District of California on July 23, (ECF No. 1.) Plaintiff added Defendant ExactTarget in her amended complaint on September 13, 2013 and, on ExactTarget s motion and after full briefing, the action was transferred to this Court on May 9, (ECF Nos. 6, 34.) From there, the Parties engaged in limited discovery and early summary judgment briefing on the issue of whether the system used to transmit the text messages at issue qualified under the TCPA as an automatic telephone dialing system ( ATDS ). (ECF Nos ; 97; 99; 102.) After the Parties briefed summary judgment, Simply Fashion declared bankruptcy, which resulted in this action being stayed for 13 months. Eventually, Plaintiff obtained an order lifting the automatic stay and dropping Simply Fashion as a defendant. (ECF No. 125.) Following the resumption of the litigation, ExactTarget filed a renewed motion for summary judgment on the ATDS issue (ECF Nos ), to which Plaintiff responded in opposition on April 19, (ECF No. 143.) While ExactTarget was preparing the reply in support of its motion, the Parties began to explore the possibility of settlement, culminating in a full-day mediation before Judge Denlow on July 18, (ECF No. 153.) Although the Parties were unable to reach an agreement during the mediation, they made substantial progress and 2

9 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 7 of 21 PageID #: 2936 continued their negotiations under Judge Denlow s supervision for the next two months, finally resulting in an agreement-in-principle on September 13, The Parties worked on the details of the settlement for the following two months before executing the agreement on November 3, Judge Lawrence granted preliminary approval on February 12, 2018 (ECF No. 162), and, as set forth in greater detail below, the Parties and Court-appointed Settlement Administrator have executed the Court-approved Notice Plan since then. Plaintiff moved for payment of attorneys fees, costs, and incentive award on May 22, 2018 (ECF Nos ), and now seeks this Court s final approval of the Parties Settlement. THE SETTLEMENT The terms of the Settlement preliminary approved by the Court are set forth in the Parties Settlement Agreement and are briefly summarized below. A. Class Definition: The Settlement Class shall include all persons in the United States who received a text message via an ExactTarget texting platform from or on behalf of Simply Fashion during the Class Period (i.e., July 23, 2009 through September 30, 2013). (Agreement 2.30.) 2 B. Monetary Relief: Without any admission of liability, ExactTarget has agreed to create a $6.25 million non-reversionary Settlement Fund, from which all Settlement Class Members who submit timely claims will be paid. (Id ) After settlement administration and notice expenses, an incentive award, and attorneys fees have been paid, each Settlement Class Member who submits an approved claim will receive a pro rata share of the Settlement Fund, up 2 Excluded from the Settlement Class are ExactTarget, its parent companies, affiliates or subsidiaries, or any entities in which such companies have a controlling interest; and any employees thereof; the judge or magistrate judge to whom the Action is assigned and any member of those judges staffs and immediate families, and any persons who timely and validly request exclusion from the Settlement Class. 3

10 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 8 of 21 PageID #: 2937 to $1,500 per claim, expected to be equal to $ per claiming class member. (Id. 4.01, 4.02; Heffler Decl. 14.) If funds remain in the Settlement Fund after the expiration of all checks to Settlement Class Members, a second round of checks will be sent to Settlement Class Members who timely submitted a valid claim and cashed or deposited their settlement checks, as long as that check would be more than $10 and would not result in a total recovery of more than $1,500. (Id ) C. Cy Pres Distribution: If money remains in the Settlement Fund after the expiration of all checks to Settlement Class Members (including, as applicable, the second round of checks), the remaining funds will be donated to the Privacy Rights Clearinghouse, or another suitable group approved by the Court. (Id. 2.12, 4.01.) D. Payment of Notice and Administration Costs: The Parties agreed that all reasonable settlement administration expenses including those related to notice would be paid from the Settlement Fund. (Id ) Those expenses are expected to equal $320,000. (Heffler Decl., 14.) E. Incentive Awards and Attorneys Fees: Class Counsel has sought payment from the Settlement Fund, subject to Court approval, attorneys fees and costs to Class Counsel and an incentive award to the Class Representative in amounts the Court deems reasonable. (Id ) ExactTarget did not object to those requests. In Plaintiff s motion for attorneys fees, costs, and incentive award, she sought approval of a payment of $2,073, in fees and costs and $5,000 as an incentive award. (ECF No. 167.) F. Release: In exchange for the relief described above, Plaintiff, each Settlement Class Member, and related Persons and entities, will be deemed to have released and forever discharged ExactTarget and all of its related parents, subsidiaries affiliates, and related Persons and entities, 4

11 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 9 of 21 PageID #: 2938 from any past, present, and future claims related to automated or pre-recorded text messages received during the Class Period. (Id ) ARGUMENT I. The Court Should Finally Certify the Settlement Class. Following the Court s preliminary certification of the matter for settlement purposes, the Court must now determine whether to finally certify the proposed class. Here, Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(3), and as at preliminary approval, the proposed class easily satisfies the requirements set forth by that rule. The elements of the class certification inquiry are set forth below. Ascertainability: The Seventh Circuit requires that a class not be defined vaguely, subjectively, or in terms of success on the merits. Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015). Here, the Settlement Class abides. It defines a particular group of cell phone subscribers, who received text messages from or on behalf of Simply Fashion via one of Defendant s texting platforms, during a specific time period. (See Agreement 2.30.) No part of that definition is contingent on any member s state of mind, or on the merits of their individual claim. Accordingly, the Class is sufficiently ascertainable. Rule 23(a)(1) Numerosity: A class satisfies Rule 23(a)(1) if it is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). Here, the Settlement Class easily exceeds that threshold, as it includes users of 528,451 cell phones during the relevant time period. (Agreement, 2.30.) Rule 23(a)(2) Commonality: Rule 23(a)(2) is satisfied when there are questions of law or fact common to the class. Fed. R. Civ. P. 23(a)(2). Class members claims must share a common contention... capable of classwide resolution. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 5

12 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 10 of 21 PageID #: (2011). Where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014). Because even a single common question will do, Dukes, 131 S. Ct. at 2556 (internal quotations and alterations omitted), courts regularly find common questions arising from a defendant s alleged use of an automatic dialing system or prerecorded voice to place calls. See, e.g., Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 251 (N.D. Ill. 2014). Here, the Settlement Class Members claims arise out of a uniform course of alleged conduct, and raise shared factual and legal questions, including whether: (i) ExactTarget sent the messages at issue; (ii) ExactTarget s text messaging system is an ATDS; (iii) the text messages at issue constitute artificial or prerecorded messages; (iv) ExactTarget can be held liable for any TCPA violations by Simply Fashion; and (v) any TCPA violations were willing and knowing. (See ECF No. 126, 50.) Because ExactTarget acted uniformly toward the Settlement Class Members, the Members claims can be adjudicated with common evidence, and Rule 23(a) s commonality requirement is satisfied. See Suchanek, 764 F.3d at 757. Rule 23(a)(3) Typicality: A class satisfies Rule 23(a)(3) where the representative plaintiff s claims or defenses are typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). Here, Plaintiff and each Settlement Class Member: (a) received text messages on their cell phones that (b) advertised Simply Fashion, and (c) allegedly violated the TCPA. Because Plaintiff s and the other Settlement Class Members claims arise from substantially identical conduct, Plaintiff satisfies Rule 23(a) s typicality requirement. Rule 23(a)(4) Adequacy: Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). Here, Plaintiff and her 6

13 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 11 of 21 PageID #: 2940 counsel have diligently represented the Class and secured relief that is, as detailed below, more than adequate given the risks posed by further litigation. Moreover, neither Plaintiff nor her counsel have any interests adverse to those of the class and will continue to act in the Class s interest to effectuate the settlement for their benefit. (ECF No at ) Rule 23(b)(3) Predominance: Rule 23(b)(3) takes Rule 23(a) s commonality requirement a step further, mandating that the common questions of law and fact represent a significant aspect of [the] case. Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 815 (7th Cir. 2012), reh g denied (Feb. 28, 2012) (citation omitted). Thus, when a class s claims can be proven with common evidence, common issues predominate. See id. at Any predominance analysis begins with the elements of the underlying causes of action. Id. at 815 (citing Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011)). Here, as noted above, common questions abound, and those would be determinative of Defendant s liability under the TCPA, including whether ExactTarget made the calls at issue, whether it had consent to do so, and whether it used an ATDS to make them. Accordingly, because questions common to each Class member s claim would be determinative of ExactTarget s TCPA liability, common questions predominate. See Messner, 669 F.3d at 815 (citing Erica P. John Fund, Inc., 131 S. Ct. at 2184). Superiority: Rule 23(b)(3) s superiority requirement, in conjunction with the predominance inquiry, is meant to cover cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997). Because certification is sought for settlement purposes only, the Court need not address manageability. Amchem Prods., Inc., 521 U.S. at

14 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 12 of 21 PageID #: 2941 Here, class certification will, generate a uniform result for all Settlement Class Members and allow Settlement Class Members to aggregate their relatively modest claim of at most $500 to $1,500 each. See 47 U.S.C. 227(b)(3)(C). The cost of individually litigating claims against ExactTarget including discovery (both fact and expert), motion practice, and trial would be prohibitively expensive. See Birchmeier, 302 F.R.D. at 255 ( In this case, plaintiffs have alleged that defendants chose to violate the TCPA on a very large scale by targeting a million or more people with inappropriate calls. Individual litigation of the claims of each individual would not be a superior or efficient way to resolve the claims. ). Class proceedings will allow for the uniform administration of otherwise cost-prohibitive and duplicative claims, so class proceedings are superior. Because the Settlement Class satisfies each requirement of Federal Rules 23(a) and (b)(3), the Court should finalize the certification it granted in its preliminary approval order. II. The Implemented Notice Plan Comports with Due Process. Prior to granting final approval, the Court must first consider whether the Notice to the Settlement Class is the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Fed. R. Civ. P. 23(c)(2)(B); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974); Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 595 (N.D. Ill. 2011). The best notice practicable does not require receipt of actual notice by all class members in order to comport with both Rule 23 and the requirements of due process, but it often includes (as in this case) direct notice to individuals who can be identified by regular mail. See Burns v. Elrod, 757 F.2d 151, 154 (7th Cir. 1985). The Federal Judicial Center has concluded that a notice plan that reaches at least 70% of the class is reasonable. 8

15 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 13 of 21 PageID #: 2942 See Federal Judicial Center, Judges Class Action Notice & Claims Process Checklist & Plain Language Guide at 3 (2010). The Notice Plan approved by the Court has been implemented by the Court-appointed Settlement Administrator, Heffler Claims Group. Those efforts included: Direct Notice: Notice was originally sent to 553,789 unique addresses associated with 528,451 phone numbers from the Class List to the 333,259 Class Members who had at least one address on record. See Declaration of Joseph F. Mahan of Heffler Claims Group in Support of Final Approval ( Heffler Decl. ) at 4, 10. Direct Postcard Notice: After receiving bouncebacks and undeliverable notices from 312,926 addresses, 121,671 Class Members did not receive notice. (Id. 10.) Of the 121,671 Class Members who did not receive the notice, 121,664 contained a physical mailing address on record. Heffler combined these records with the 149,557 records in which only a physical mailing address was found, resulting in a total data set of 271,221 records set to be mailed a postcard notice. (Id. 10.) Online Media Campaign: From March 14, 2018 to April 12, 2018, Heffler ran an online media campaign that served a total of 7,604,000 impressions via the Google Display Network, Facebook and Instagram. (Id. 9.) Settlement Website: Heffler established and maintained a settlement website ( containing the Claim Form, the Long Form Notice, Frequently Asked Questions, important dates, and all relevant documents from the Court s docket, including the Preliminary Approval Order and Plaintiff s Motion for Attorneys Fees, Costs, and Incentive Award. (Id. 6.) To date, the Settlement Website has had 80,050 unique visitors. Toll-Free Number: On March 14, 2018 the toll-free number ( ) was opened to the public. Callers were able to access general information about the litigation and the Settlement and could request the Claim Form or return call in English or Spanish by leaving a voice message. (Id., 7.) Notice to the United States Attorney General and to the Attorneys General of the fifty states as required by the Class Action Fairness Act. (Declaration of Craig E. Bolton, dated July 6, 2018, Dkt. No. 171.) As a result of the successful implementation of the Court-approved Notice Plan, notice was directly disseminated to percent of the Class, (Heffler Decl. 12), far in excess of the 70-percent figure presumed adequate by the Federal Judicial Center. That reach is even more impressive considering the nature of the data provided by ExactTarget regarding the Settlement Class: a bare 9

16 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 14 of 21 PageID #: 2943 list of cell phone numbers, all provided at least five years ago, with no additional contact information. Through a complex reverse look-up process, Heffler was able to identify addresses associated with those numbers during the time periods in which they were called, and to provide notice via , and, eventually, through post if necessary. (Id. 4.) Given those facts, the sufficiency of the notice is even more apparent. The various forms of Class Notice provided detailed information explaining (a) class members rights, including the process for lodging objections and requests for exclusion; (b) the case s nature, history and progress; (c) the proposed settlement and reason for the settlement; (d) the settlement s benefits; (e) Class Counsel s requested fees and costs; (f) the Fairness Hearing s date, time and location; and, (g) Class Counsel s contact information. (Heffler Decl. Exs. A D.) And because of the Settlement Website s easy accessibility, anyone searching on the internet for information about the Settlement or the case more generally could easily find the Settlement Website and lodge their claim. Because the Claims Administrator effectuated the Court-approved Notice Plan and did so with greater efficacy than originally expected, the Court should find that the Class Notice process satisfied due process requirements. III. The Settlement Offers Substantial Relief to the Class and Warrants Final Approval. Federal Rule of Civil Procedure 23(e) mandates that claims, issues, or defenses of a certified class may be settled... only with the court s approval... after a hearing and finding that it is fair, reasonable, and adequate. Fed. R. Civ. P. 23(e). Federal courts naturally favor the settlement of class action litigation. Schulte, 805 F. Supp. 2d at 678 (citing Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996)). Given this predisposition toward settlement, the Court s approval 10

17 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 15 of 21 PageID #: 2944 inquiry is limited to [consideration of] whether the proposed settlement is lawful, fair, reasonable and adequate. Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 986 (7th Cir. 2002). The Seventh Circuit has identified five factors for district courts to consider in determining whether to approve a class action settlement: (i) the strength of a plaintiff s case compared to the amount of the defendant s settlement offer; (ii) an assessment of the likely complexity, length and expense of the litigation; (iii) an evaluation of the amount of opposition to the settlement among affected parties; (iv) the opinion of competent counsel; and (v) the stage of the proceedings and amount of discovery completed at the time of settlement. Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) (citation and internal quotations omitted); accord In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 958 (N.D. Ill. 2011) ( In re AT&T II ). Additionally, courts in the Seventh Circuit should also consider whether the settlement is the product of collusion, or whether there are any red flags present in the settlement that would suggest it is unfair to the class. Eubank v. Pella Corp., 753 F.3d 718, (7th Cir. 2014). As explained below, these factors overwhelmingly weigh in favor of approving the Settlement in this case. A. The Settlement s Value Relative the Risks and Rewards of Further Litigation Justifies Final Approval. The most important factor relevant to the fairness of a class action settlement is the first one listed: the strength of plaintiff[ s] case on the merits balanced against the amount offered in the settlement. In re AT&T II, 789 F. Supp. 2d at 958 (quoting Synfuel, 463 F.3d at 653) (internal quotations omitted). The strength of a plaintiff s case can be quantified by examining the net expected value of continued litigation to the class and then estimating the range of possible outcomes and ascrib[ing] a probability to each point on the range. Am. Int l Grp., Inc. v. ACE INA Holdings, Inc., No. 07 cv 2898, 2012 WL , at *2 (N.D. Ill. Feb. 28, 2012) (quoting Synfuel, 11

18 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 16 of 21 PageID #: F.3d at 653). The Seventh Circuit has recognized that valuing hypothetical continued litigation is necessarily speculative and therefore an inexact science, and courts need only estimate and come to a ballpark valuation of the class s claims. Kolinek v. Walgreen Co., 311 F.R.D. 483, 503 (N.D. Ill. 2015) (citation and internal quotations omitted). The monetary relief secured under the Parties proposed Settlement warrants approval, both compared to other similar TCPA actions and when viewed in light of the risks of protracted litigation. First, the monetary relief provided under the Settlement a $6.25 million non-reversionary Settlement Fund and in excess of $256 per claiming Settlement Class Member is substantially in excess of the relief obtained in other TCPA cases. As Plaintiff has previously explained, in direct relationship TCPA cases, like this one, where the person called voluntarily provided their cellular telephone number to the caller, settlements have generally provided low-value coupons or less than $40 in cash to each claiming class member. See, e.g., In re Capital One Tel. Consumer Prot. Act Litig., 80 F. Supp. 3d 781, 790 (N.D. Ill. 2015) (providing $34.60 recovery per claiming class member in debt-collection TCPA settlement); Arthur v. Sallie Mae, Inc., No. 10-cv-0198, 2012 WL 90101, at *3 (W.D. Wash. Jan. 10, 2012) ($20 to $40 per claiming class member in debtcollection TCPA settlement); Gehrich v. Chase Bank USA, N.A., 316 F.R.D. 215, 228 (N.D. Ill. 2016) ($52.40 per claiming class member); Kolinek, 311 F.R.D. at (approximately $30 to claiming class members who received prescription refill reminder calls). Even when compared to TCPA settlements where class members allegedly had no relationship to the defendant (and where the chances of success on the merits were higher than here), the Settlement compares favorably. See, e.g., Kramer v. Autobytel, No. 10-cv-2722, ECF No. 148 ($100 to claiming class members); Weinstein v. The Timberland Co., No. 06-cv-484, ECF No. 93 ($150 per claiming class member); Satterfield v. Simon & Schuster, Inc., No. 06-cv-2893, 12

19 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 17 of 21 PageID #: 2946 ECF No. 132 ($175 per claiming class member); Lozano v. Twentieth Century Fox Film Corp., No. 09-cv-634, ECF No. 65 ($200 to claiming class members). The courts have consistently viewed the amount of relief appropriate in such cases because a settlement is a compromise, and courts need not and indeed should not reject a settlement solely because it does not provide a complete victory to plaintiffs. In re Capital One, 80 F. Supp. 3d at 790 (citing In re AT&T I, 270 F.R.D. 330, 347 (N.D. Ill. 2010)). Thus, the recovery obtained under the Settlement compares favorably to other TCPA settlements. Though Plaintiff is confident that she ultimately would have prevailed had this matter continued in litigation, significant obstacles to relief existed had she done so. Although Plaintiff believes that ExactTarget would have been unable to produce sufficient evidence of class member consent as a result of Simply Fashion s bankruptcy and the loss of its business records, ExactTarget would have asserted a number of defenses, any of which could have been found meritorious. In particular, ExactTarget s arguments that it did not actually make the calls at issue and that its text messaging system did not constitute an ATDS held a substantial risk of success even at the time of the mediation, giving the then-pending appeal of the FCC s interpretation of ATDS. See ACA Int l v. Fed. Commc ns Comm n, 885 F.3d 687 (D.C. Cir. 2018). Indeed, Plaintiff s decision to settle in advance of a ruling in that matter proved prescient, as the D.C. Circuit ultimately vacated the FCC s most recent omnibus order, reflecting many of ExactTarget s summary judgment arguments in so doing. See id. In short, the monetary relief obtained through this Settlement is exceedingly beneficial to class members, and when considered in light of the potential hurdles faced in obtaining recovery through continued litigation, the relief is well-deserving of the Court s approval. 13

20 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 18 of 21 PageID #: 2947 B. The Risks, Expenses, Complexity, and Duration of Further Litigation Supports Final Approval. Settlement allows the class to avoid the inherent risk, complexity, time, and cost associated with continued litigation. Schulte, 805 F. Supp. 2d at 586. If the case proceeded to trial, there would be a need for additional discovery and expert discovery and testimony, which would have driven up the cost of litigation. See In re AT&T II, 789 F. Supp. 2d at 964 (noting that costs associated with discovery in complex class actions can be significant ). Also, significant and contested motion practice would have been necessary regarding discovery, class certification, and summary judgment, and likely would have been accompanied by lengthy appeals. Further, even if Plaintiff was successful at class certification and at summary judgment, the case would have proceeded to an expensive trial, and, inevitably given the stakes, an appeal from any judgment. Here, the Settlement avoids uncertainty and provides immediate and guaranteed relief to the Settlement Class. Thus, the second factor supports final approval. C. Competent Class Counsel Believe that the Settlement Warrants Final Approval. The next factor considered by courts is the opinion of competent counsel regarding the fairness, reasonableness and adequacy of the Settlement. Synfuel, 463 F.3d at 653; see also Schulte, 805 F. Supp. 2d at 586 ( The opinion of competent counsel is relevant to the question whether a settlement is fair, reasonable, and adequate under Rule 23. ). Here, Class Counsel are particularly experienced in litigating TCPA claims and have a keen understanding of the legal and factual issued involved in this case. See ECF No Based upon experience, Class Counsel fully endorse this settlement as fair, adequate and reasonable, which weighs heavily in favor of the Court approving the Settlement. (Marron Decl. 5.) 14

21 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 19 of 21 PageID #: 2948 D. The Stage of the Proceedings and the Discovery to Date Support Final Approval. The Parties reached the Settlement only after Class Counsel s initial pre-suit investigation and analysis, discovery (both fact and expert), summary judgment briefing, further proceedings related to Simply Fashion s bankruptcy, another round of summary judgment briefing, a full-day mediation, and months of subsequent negotiations. It is well-settled that the courts and parties may be equipped with sufficient information even when only minimal formal discovery has taken place if they have engaged in other adversarial litigation activities and informal discovery. In re AT&T II, 789 F. Supp. 2d at 966. Here, produced documents, the depositions, and expert discovery, along with the repeated articulation of the Parties positions in summary judgment briefing and mediation statements, gave Plaintiff and Class Counsel more than enough information to fully and properly value the Class s claims. As such, the stage of proceedings and amount of discovery completed also weigh in favor of final approval. E. The Good-Faith, Non-Collusive Nature of the Settlement Reached with the Assistance of a Third-Party Mediator Supports Final Approval. In determining whether a settlement is fair, courts consider whether the settlement is a product of collusion, and whether there are any red flags that would suggest it is unfair to settling class members. Eubank, 753 F.3d at These red flags include (i) the failure to properly establish the size of the fund and the total class recovery, (ii) the reversion of unawarded attorneys fees to the defendant, (iii) substantial alterations to existing class definitions, (iv) the use of coupons, rather than case payments, for class compensation, and (v) overly complicated claim forms. See id. Here, the Court should not hesitate to grant final approval to the Settlement because the Settlement was not the result of collusion, nor does it raise any of the red flags. As detailed above, the Honorable Judge Denlow, Ret. of JAMS facilitated the settlement of this action with a day-long mediation, and oversight over multiple subsequent calls. See Butler 15

22 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 20 of 21 PageID #: 2949 v. Am. Cable & Tel., LLC, 2011 WL , at *8 (N.D. Ill. July 12, 2011) (noting that arm slength negotiations facilitated by a neutral mediator is a factor that supports a finding that the Settlement was fair.) The Settlement is a result of adversarial arm s-length negotiations between attorneys experienced in the litigation, certification, trial and settlement of nationwide class action cases. See Marron Decl. at 5. Additionally, none of the red flags are present. Specifically, the Court knows exactly how much money has been recovered ($6,250,000 non-reversionary Settlement Fund) and how it will be distributed (to the claiming Class Members, who submitted claims via a simple process, on a pro rata basis estimated to be approximately $256.75). See Marron Decl. at 3. Thus, the Court should grant final approval of the Settlement. F. The Class s Overwhelmingly Positive Reaction Supports Final Approval. Here, the Class s reaction to the settlement has been overwhelmingly positive and weighs strongly in favor of final approval. See In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, (N.D. Ill. 2000) (finding that a settlement where 99.9% of class members have neither opted out nor filed objections... is strong circumstantial evidence in favor of the settlements ); In re AT&T II, 789 F. Supp. 2d at 965 (an exclusion or objection rate of 0.01% of class members was remarkably low and supported the settlement). Heffler diligently implemented the Courtapproved Notice Plan, and the objection and exclusion deadlines have passed. Despite the fact that direct notice was provided to over 83-percent of the Class, and Internet Notice was provided to the rest of the Class through an extensive online marketing campaign, not a single person has objected to the Settlement, and only one person has opted out of participating in the Settlement. See Heffler Decl. at 16. And despite the absence of such negative participation, thousands of Class Members have positively participated by filing over 13,000 claims. Id. at 13. This shows that the Class Members viewed the Settlement as fair, reasonable and adequate. 16

23 Case 1:14-cv WTL-DLP Document 174 Filed 07/06/18 Page 21 of 21 PageID #: 2950 CONCLUSION For the reasons discussed above, Plaintiff respectfully requests that the Court finally approve the Settlement as fair, reasonable, and adequate. Respectfully submitted, Dated: July 6, 2018 By: /s/ Ronald A. Marron RONALD A. MARRON ALEXIS WOOD KAS GALLUCCI LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA Telephone: (619) Facsimile: (619) Class Counsel 17

24 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 1 of 2 PageID #: 2951 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION LATONYA SIMMS, on behalf of herself, and all others similarly situated, Case No. 1:14-cv WTL-DLP Plaintiff, v. EXACTTARGET, LLC, Defendant. DECLARATION OF RONALD A. MARRON IN SUPPORT OF PLAINITFF S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT I, Ronald A. Marron declare: 1. I am counsel of record for Plaintiff and the class in this action. I am a member in good standing of the State Bar of California and the United States District Courts for the Northern, Central, Eastern, and Southern Districts of California; and of the United States Court of Appeals for the Ninth Circuit and have been admitted pro hac vice in this case. I submit this declaration in support of Plaintiff s Motion for Final Approval of Class Action Settlement. I make this Declaration based on personal knowledge and if called to testify, I could and would competently testify to the matters contained herein. 2. Plaintiff filed her Motion for Preliminary Approval on November 6, 2017 and her Motion for Attorneys Fees, Expenses, and Incentive Award on May 22, (ECF Nos. 158, 166.) I submitted a declaration in support of each of those motions, and the work performed by my firm through May 22, 2018 is detailed therein. i

25 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 2 of 2 PageID #: The court-appointed claims administrator, Heffler, has determined that 13,212 valid claims were submitted from Settlement Class Members. Heffler is still in the process of reviewing submitted claims and estimates that there will be approximately 15,000 valid claims by the time it finishes this process. After deducting the costs of notice and administration from the Settlement Fund, Settlement Class Members who timely submitted valid claims stand to receive an estimated $ (this assumes there are 15,000 valid claims), if Plaintiff s motion for attorneys fees, costs, and incentive award is granted in its entirety As detailed in my previous declarations, Class Counsel and our assisting co-counsel spent significant time thoroughly investigating the factual and legal claims involved in this Action, and vigorously defending the class s claims, including through Simply Fashion s bankruptcy. 5. The Settlement is the result of adversarial arm s-length negotiations between attorneys experienced in the litigation, trial, and settlement of nationwide class action cases. Class Counsel s TCPA and class action experience have allowed them to accurately weigh the merits of the Settlement Class s claims along with the risks and potential rewards of further litigation as compared to Settlement. It is Class Counsel s opinion that the Settlement provides significant relief for individuals who may otherwise be left without a remedy. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed on this 6th day of July, 2018, in San Diego, California. /s/ Ronald A. Marron RONALD A. MARRON 1 The number is calculated by taking the total settlement fund, $6,250,000, subtracting the costs of notice and administration, $320,000, further subtracting Plaintiff s requested attorneys fees and costs ($2,073,750.00), and incentive award ($5,000), and then taking that resulting class distribution amount ($3,851,250) and dividing by the number of valid claims (est. 15,000) to determine the per-claim amount. ii

26 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 1 of 5 PageID #: 2953 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION LATONYA SIMMS, on behalf of himself, and all others similarly situated, v. Plaintiffs, EXACTTARGET, LLC, Cause No: 1:14-cv WTL-DKL DECLARATION OF JOSEPH F. MAHAN OF HEFFLER CLAIMS GROUP IN SUPPORT OF FINAL APPROVAL Defendant. I, Joseph F. Mahan, declare as follows: 1. I am a Client Services Manager for Heffler Claims Group ( Heffler ) in Philadelphia, Pennsylvania. I am over twenty-one years of age and am authorized to make this declaration on behalf of Heffler and myself. The following statements are based on my personal knowledge and information provided by other experienced Heffler employees working under my supervision. This declaration is being filed in support of final approval. 2. Heffler has extensive experience in class action matters, having provided notice and claims administration services in class action settlements involving antitrust, securities fraud, employment and labor, consumer, and government enforcement matters. Heffler has provided notification and/or claims administration in more than 1,000 cases. 3. Heffler was appointed as the Settlement Administrator to provide notification and administration services in Simms v. ExactTarget, LLC referred to herein as the Settlement. Heffler s duties in this action have and will include: (a) obtaining addresses associated with the phone numbers on the Simply Fashion Subscriber List (including by reverse telephone look up); (b) providing Notice; (c) setting up and maintaining the Settlement Website and toll-free telephone number; (d) fielding inquiries about the settlement; (e) processing DECLARATION OF JOSEPH F. MAHAN -1-

27 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 2 of 5 PageID #: 2954 claims; (f) acting as a liaison between Settlement Class Members and the Parties regarding claims information; (g) approving claims; (h) rejecting any claim form where there is evidence of fraud; (i) directing the mailing of settlement payments to Settlement Class Members; (j) maintaining reasonably detailed records of exclusion requests and objections; (k) processing Claim Forms in a responsive, cost effective and timely manner; (l) and undertaking any other tasks reasonably required to effectuate the administration. 4. On or about November 9, 2017, counsel provided Heffler with a list of 528,451 phone numbers on the Simply Fashion Subscriber List. Heffler was responsible for obtaining and address information for the phone numbers provided via a reverse lookup. Heffler performed the reverse lookup on the phone numbers which resulted in the following: a) 333,259 records were updated with at least one address (553,789 unique addresses in total); (b) 149,557 records were updated with a mailing address but no address; (c) 12,697 records were updated with only a name; and (d) 32,938 records returned with no information. In total, Heffler was able to obtain some form of address information for 482,816 Settlement Class Members. 5. On or about February 13, 2018, Heffler received word versions of the Long Form Notice, Notice, Postcard Notice and Claim Form from counsel. Heffler prepared and formatted a draft of the materials that counsel approved. True and correct copies of the final Long Form Notice, Notice, Postcard Notice, and Claim Form are attached hereto as Exhibits A, B, C and D, respectively. 6. On or about March 14, 2018, Heffler created and is currently hosting a dedicated website entitled The website went live on March 14, The website contains a summary of the Settlement, frequently asked questions, the First Amended Complaint, the Second Amended Complaint, the Settlement Agreement, the Preliminary Approval Order, the Notice of Proposed Class Action Settlement, the Notice of Proposed Class Action Settlement translated to Spanish, the Claim Form in.pdf format, Plaintiff s Unopposed Motion Re: Proposed Class Notices and Claims Forms, Plaintiff s DECLARATION OF JOSEPH F. MAHAN -2-

28 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 3 of 5 PageID #: 2955 Motion for Approval of Attorneys Fees, Costs and Incentive Award, information on the claim filing/exclusion/objection deadlines, and allowed Settlement Class Members an opportunity to file a claim form online. Heffler included a link to the translated version of the Notice on the homepage of the website. As of July 6, 2018, there have been 80,050 unique visits to the website. 7. On or about March 14, 2018, Heffler established, and continues to maintain, a toll-free number ( ) for the purpose of allowing Settlement Class Members to access general information about the litigation and the Settlement and the ability to request a Claim Form or return call in English or Spanish by leaving a voice message. 8. On February 22, 2018, Heffler obtained a post office box address with the mailing address Simms v. ExactTarget LLC Claims Administrator, P.O. Box 11730, Philadelphia, PA in order to receive written requests for exclusion, Claim Forms, objections, and correspondence from Settlement Class Members. 9. A supplemental online media campaign using banner ads commenced on March 14, 2018 and continued through April 12, In total, this program served over 7,604,000 impressions via the Google Display Network, Facebook and Instagram. With the approval of the Parties, Heffler used Settlement Class Member data to target a custom audience of known Settlement Class Members. These ads served as further reminders to known Settlement Class Members of the Settlement and claims process. Additionally, Heffler targeted potential Settlement Class Members who fit the brand s profile of African American women and plussize women age and users who like or follow comparable affordable accessories, shoes, clothing, lingerie and plus-size competitors. The ads were geo-targeted to the 22 states with store locations. Attached hereto as Exhibit E are true and correct copies of the ads. 10. On March 14, 2018, Heffler caused the sending of 553,789 notices to the 333,259 Settlement Class Members who had at least one address on record. Of the 553,789 s sent, 312,926 were considered undeliverable due to either a bounce, invalid , or unsubscribed and 121,671 Settlement Class Members did not receive the notice. DECLARATION OF JOSEPH F. MAHAN -3-

29 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 4 of 5 PageID #: 2956 Of the 121,671 Settlement Class Members who did not receive the notice, 121,664 contained a physical mailing address on record. Heffler combined these records with the 149,557 records in which only a physical mailing address was found, resulting in a total data set of 271,221 records set to be mailed a postcard notice. 11. On April 5, 2018, Heffler caused the printing and mailing of 271,221 postcard notices complete with claim form via USPS First Class mail. The mailing consisted of the 121,664 Settlement Class Members described above and the 149,557 Settlement Class Members with only a physical address was found described in paragraph Direct Mail or Notice was deliverable to 441,191 of the 482,816 total potential Settlement Class Members identified through the reverse lookup, an approximately 91.38% success rate. The Simply Fashion Subscriber List provided by Defendants contained a total of 528,451 phone numbers making up the entire Settlement Class. Thus, the combined Mail Notice and Notice programs reached approximately 83.49% of the Settlement Class. 13. The last day to submit claims/opt-outs/objections was June 12, As of July 6, 2018, Heffler has received 11,333 timely paper claim forms and 5,085 timely claim forms submitted through the settlement website. As of July 6, 2018, Heffler has received 169 late paper claim forms. Heffler has reviewed and will continue to review all Claim Forms for validity as they are received and processed. To date, Heffler has reviewed and verified 13,212 valid claims. Heffler estimates there to be over 15,000 valid claims after the review process is completed. 14. To date, Heffler has billed $243, for the administration of the Settlement. Heffler estimates a total billing of $320, for full administration of the Settlement. Subtracting Heffler s final estimate ($320,000.00), requested attorneys fees & costs ($2,073,750.00), and the requested incentive award ($5,000.00) from the Settlement Fund ($6,250,000.00) leaves $3,851, to be paid to Class Member. Using Heffler s estimate of 15,000 valid claims, the expected pro rata share will be roughly $ per valid claim. DECLARATION OF JOSEPH F. MAHAN -4-

30 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 5 of 5 PageID #: 2957

31 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 1 of 8 PageID #: 2958 Exhibit A

32 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 2 of 8 PageID #: 2959 IF YOU RECEIVED A TEXT MESSAGE ON YOUR CELL PHONE FROM OR ON BEHALF OF SIMPLY FASHION STORES FROM JULY 23, 2009, THROUGH SEPTEMBER 30, 2013, YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION SETTLEMENT. A court authorized this notice. This is not a solicitation from a lawyer. You are not being sued. This notice is to inform you of a class action settlement. Para ver este aviso en español, visite A Settlement has been reached in a class action lawsuit that seeks to hold ExactTarget, LLC (hereinafter Defendant ) liable under the Telephone Consumer Protection Act for allegedly unauthorized text messages sent by or on behalf of Simply Fashion to consumers cellular telephones via an ExactTarget text messaging platform. The Settlement includes all persons in the United States who received a text message via an ExactTarget texting platform from or on behalf of Simply Fashion from July 23, 2009, through September 30, Defendant has agreed to pay $6,250,000 (the Settlement Fund ) to settle the lawsuit. After deducting costs of notice and claims administration, attorneys fees and litigation costs, and an incentive payment to the class representative, the remaining amount will be divided on a pro rata basis (equally) among everyone who files a valid claim. Your legal rights are affected regardless of whether you act or don t act. Read this notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT File a Claim Form Exclude Yourself from the Settlement Object to the Settlement Participate in the Hearing Do Nothing This is the only way to receive a cash payment from the Settlement Fund. This is the only option that allows you to be part of any other lawsuit against the Defendant, ExactTarget, for the legal claims made in this lawsuit and released by the Settlement Agreement. Write to the Court with reasons why you do not like the Settlement. Ask the Court for permission for you or your attorney to appear and be heard at the final fairness hearing. If you do nothing, you will not receive a cash payment from the Settlement Fund and you will give up your rights to be part of any other lawsuit against the Defendant for the legal claims made in this lawsuit and released by the Settlement Agreement. These rights and options and the deadlines to exercise them are explained in this Notice. For complete details, view the Settlement Agreement, available at or call The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be distributed if the Court approves the Settlement and after any appeals are resolved. Questions? Call or go to 1

33 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 3 of 8 PageID #: 2960 BASIC INFORMATION 1. Why Is This Notice Being Provided? The Court directed that this Notice be sent because you have a right to know about the proposed Settlement that has been reached in this class action lawsuit and about all of your options before the Court decides whether to grant final approval of the Settlement. If the Court approves the Settlement, the Claims Administrator appointed by the Court will make the payments that the Settlement provides to those who have submitted valid and approved claims. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of this case is the United States District Court for the Southern District of Indiana. The case is known as Simms v. ExactTarget, LLC, Case No. 1:14-cv WTL-DLP (the Action ). The person who filed the lawsuit, Latonya Simms, is called the Plaintiff. The company she sued, ExactTarget, LLC, is called the Defendant. 2. What Is This Lawsuit About? Plaintiff seeks to hold Defendant liable under the Telephone Consumer Protection Act ( TCPA ) for text messages sent to consumers cellular telephones by or on behalf of Simply Fashion and using an automatic telephone dialing system or with an artificial or prerecorded voice message, without consent either because the consumers never asked to receive the Simply Fashion text messages or because they continued receiving the Simply Fashion text messages after asking for them to stop. Defendant denies any wrongdoing. 3. What Is A Class Action? In a class action, one or more people called a Class Representative(s), in this case Latonya Simms, sue on behalf of people who have similar claims. Together, the Class Representative and group of individuals are called the Class or Class Members. One court resolves the issues for all Class Members, except for those who request to be excluded from the Settlement. 4. Why Is There A Settlement? The Court did not decide in favor of Plaintiff or Defendant. Instead, the Plaintiff and Defendant agreed to settle the Action to avoid the risks and cost of a trial. The Settlement also allows Class Members to be compensated without further delay. The Class Representative and her attorneys think the Settlement is best for all Class Members. WHO IS INCLUDED IN THE SETTLEMENT CLASS? 5. Am I Included? If you received an or postcard providing notice of the Settlement, you have been identified as a user of a cell phone number that Defendant s records show as having been sent a text message by or on behalf of Simply Fashion during the relevant time period. Specifically, the Settlement includes all persons in the United States who received a text message via an ExactTarget texting platform from or on behalf of Simply Fashion from July 23, 2009, through September 30, 2013 (the Class Period ). The Parties estimate that there are approximately 528,451 persons in the Settlement Class. Questions? Call or go to 2

34 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 4 of 8 PageID #: 2961 THE SETTLEMENT BENEFITS 6. What Does The Settlement Provide? The Settlement provides $6,250,000 (the Settlement Fund ). After deducting the notice and claims administration costs, payment of attorneys fees and costs of litigation, and any incentive payment to the Class Representative, the net Settlement Fund will be divided equally among all Settlement Class Members who file approved claims. 7. How Much Will My Payment Be? Payment amounts depend on the number of valid claims submitted. Each Settlement Class Member who files an approved claim will be entitled to a one time pro rata (i.e., equal or proportional) share of the net Settlement Fund, up to $1,500 per person. The Claims Administrator will issue payments by way of check. Any unclaimed or un-cashed funds or checks will be divided among the Settlement Class Members who cashed their settlement checks if the remaining amount will provide for more than $10 per person, otherwise it will become part of the Settlement Fund for cy pres distribution to the Privacy Rights Clearinghouse, or a similar organization approved by the Court. HOW TO GET SETTLEMENT BENEFITS 8. How Do I File A Claim For A Payment? You may make a claim for a cash payment in one of two ways: (1) Submitting a claim online at the Claims Administrator s Settlement website: or (2) Submitting a claim by mail by either downloading a Claim Form from the Settlement website or requesting by telephone that the Claims Administrator mail you a copy of the Claim Form, completing such paper Claim Form, and mailing the completed Claim Form to the Claims Administrator. Claim Forms must be submitted online by 11:59 p.m. Central Time on June 12, 2018 or postmarked by June 12, You may make only one claim for each cellular phone number that received a text message from Defendant s text messaging platforms. 9. When Will I Get My Payment? The Court has scheduled a Final Approval Hearing before Judge William T. Lawrence at 1:30 p.m. on July 20, 2018 in Courtroom 202 of the Birch Bayh Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana You or your attorney (at your expense) may attend this hearing if you desire and request to address the Court regarding any matters relating to this Settlement. THE LAWYERS REPRESENTING YOU 10. Do I Have A Lawyer In This Case? Yes, the Court has appointed Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci of The Law Offices of Ronald A. Marron, 651 Arroyo Drive, San Diego, CA to represent you and other Class Members as Class Counsel. Their contact information is below. Questions? Call or go to 3

35 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 5 of 8 PageID #: 2962 Ronald A. Marron Alexis M. Wood Kas L. Gallucci The Law Offices of Ronald A. Marron 651 Arroyo Drive San Diego, California Admin@ConsumersAdvocates.com You may hire your own lawyer at your own expense, but you don t have to. 11. How Will The Lawyers, Class Representative And Claims Administrator Be Paid? Class Counsel will apply to the Court for their attorneys fees and expenses (no more than one-third of the Settlement Fund, or $2,083,333.33), as well as all reasonable costs and expenses associated with giving notice to the Class Members and administering the Settlement (estimated to be approximately $225,000), and an Incentive Award in the amount of no more than $5,000 for the Class Representative for her efforts in bringing the action and assisting throughout the litigation. If approved by the Court, all of these amounts will be deducted and paid from the Settlement Fund before making payments to Class Members who submit valid claims. YOUR RIGHTS AND OPTIONS 12. What Happens If I Do Nothing At All? If you re a member of the Settlement Class and you do nothing at all, you will remain in the Settlement, but you will not get a payment. If the Court approves the Settlement, you ll give up your right to sue ExactTarget on the issues the Settlement concerns through an individual or class action. If you re a member of the Settlement Class but want to retain your rights to sue ExactTarget on the issues the Settlement concerns, you have the option to exclude yourself, which is discussed below. EXCLUDING YOURSELF FROM THE SETTLEMENT If you do not want to participate in this Settlement, or you want to keep the right to sue or continue to sue Defendant on your own, then you must take steps to get out of the Settlement. This is called excluding yourself from or opting out of the Class. 13. What Happens If I Ask To Be Excluded? If you re a Settlement Class Member and you ask to be excluded from the Settlement, you ll keep the right to sue ExactTarget on the issues the Settlement concerns, but ExactTarget can raise all of its defenses. You will not be legally bound by the Court s orders or any judgment related to the Class and the Defendant in this class action and you will not be entitled to any relief the Settlement provides. 14. How Do I Ask To Be Excluded? You may request to be excluded from the Settlement Class by sending a letter to the Claims Administrator. For your request to be valid, you must send a written request (1) stating that you want to be excluded from the Settlement in Simms v. ExactTarget, LLC, No. 14-cv-00737, (2) including your name, address, and the telephone number at which you allegedly received a text message from or on behalf of Simply Fashion, (3) that is physically signed by you, and (4) postmarked on or before June 5, 2018 You must mail your exclusion request to: Questions? Call or go to 4

36 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 6 of 8 PageID #: 2963 You cannot exclude yourself on the phone or by . Simms v. Exact Target, LLC Claims Administrator PO Box Philadelphia, PA If I Do Not Exclude Myself, Can I Sue The Defendant For The Same Thing Later? If you are a member of the Settlement Class and you do not submit a request for exclusion, you ll give up your right to sue ExactTarget on the issues the settlement concerns through an individual or class action. 16. If I Exclude Myself From The Settlement Class, Can I Get Anything From The Settlement? No. If you exclude yourself from the Settlement Class, do not submit a Claim Form. You will no longer be able to receive a benefit from the Settlement. 17. How Do I Tell The Court That I Do Not Like The Settlement? If you are a Class Member, you can object to the Settlement or a portion of it. You can give reasons why you think the Court should not approve it. The Court will consider your views before making a decision. To object, you must mail a letter or other document saying that you object to the Settlement of Simms v. ExactTarget, LLC, United States District Court for the Southern District of Indiana, Case No. 14-cv Your objection must also include your name, address, current telephone number, the telephone number at which you allegedly received a text message from or on behalf of Simply Fashion, your signature, the reason you object to the Settlement and any documents that support your objection. Mail the objection to the Clerk of the Court at the address below, postmarked no later than June 5, If you are represented by a lawyer, your lawyer must file your objection or comment with the Court. Include your lawyer s contact information in the objection or comment. Clerk of the Court Room 105 U.S. District Court Southern District of Indiana 46 E. Ohio Street Indianapolis, IN May I Speak To The Court About My Objection? Yes, you may also ask the Court for permission to speak at the fairness hearing. To do so, you must either include in your objection a statement designating it as your Objection and Notice of Intention to Appear at Final Fairness Hearing, or you must send a letter stating such intent to the Clerk of the Court. If submitted separately from an objection, your Notice of Intention to Appear at Final Fairness Hearing must include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be postmarked no later than June 5, You cannot object or speak at the hearing if you excluded yourself from the Class. 19. What Is The Difference Between Objecting To And Asking To Be Excluded From The Settlement? Objecting simply means telling the Court that you don t like something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself means telling the Court that you don t want to be part of the Settlement Questions? Call or go to 5

37 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 7 of 8 PageID #: 2964 Class. If you exclude yourself from the Settlement Class, you re excluding yourself from the entire Settlement, and you have no basis to object because the case no longer affects you. THE COURT S FINAL APPROVAL HEARING 20. When And Where Is The Fairness Hearing? The Court will hold a final fairness hearing at 1:30 p.m. on July 20, 2018 at the United States District Court for Southern District of Indiana, in Courtroom 202 of the Birch Bay Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana before the honorable William T. Lawrence. If anyone has asked to speak at the hearing (see Question 18), Judge Lawrence will listen to him or her at that time. The Court will decide after the hearing whether to approve: (1) the Settlement as fair and reasonable; (2) the amount of attorneys fees and costs of litigation; (3) the costs of notice and claims administration; and (4) the incentive payment to be provided to the Plaintiff as Class Representative. The Motion for Attorney s fees and costs will be posted on the website after it is filed. We do not know how long these decisions will take. 21. Do I Have To Come To The Hearing? No. Class Counsel will answer questions Judge Lawrence may have that are directed to the Class. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mail your written objection on time, the Court will consider it. GETTING MORE INFORMATION 22. Are There More Details About The Settlement? This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement, which can be viewed or downloaded Agreement.pdf and is part of the Court s file, a public record. Many of the Court papers, including this Notice, the Settlement Agreement and the Order for Preliminary Approval are also posted on the Settlement website You can obtain a copy of the Settlement Agreement or review any other part of the papers relating to the lawsuit by examining the records of this case, Simms v. ExactTarget, LLC, Case No. 1:14-cv WTL-DLP at the Clerk s office at the U.S. District Court for the Southern District of Indiana, 46 East Ohio Street, Indianapolis, IN The clerk s office has the ability to make copies of any such public documents for you for a fee. Also, all filed documents in the case, including the Settlement documents, are available for viewing online for a fee through the Court s PACER document review system ( Any questions that you may have concerning this Notice should not be directed to the Court, but should be directed to the Claims Administrator. CONTACT THE CLAIMS ADMINISTRATOR WITH ANY QUESTIONS OR GO TO What Am I Giving Up In Exchange For The Settlement? Unless you exclude yourself, you will release ExactTarget, LLC and its past, present and future parents (including salesforce.com, inc.), subsidiaries, affiliated companies and corporations, and each of their respective past, present, and future directors, officers, managers, employees, general partners, limited partners, principals, agents, insurers, reinsurers, Questions? Call or go to 6

38 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 8 of 8 PageID #: 2965 shareholders, attorneys, advisors, representatives, predecessors, successors, divisions, joint ventures, assigns, or related entities, and each of their respective executors, successors, assigns, and legal representatives (collectively Released Parties ) from any and all claims related to unauthorized text messages sent by or on behalf of Simply Fashion from an ExactTarget platform during the Class Period. You will no longer be able to sue, continue to sue, or be part of any other lawsuit against Defendant and related parties about the claims made in this Action and released by the Settlement Agreement. You will be legally bound by all of the Court s orders, as well as the Released Claims (see next question). 24. What Are The Released Claims? The Released Claims are any and all claims, causes of action, suits, obligations, debts, demands, agreements, promises, liabilities, damages, losses, controversies, costs, expenses, and attorneys' fees of any nature whatsoever, whether based on any federal law, state law, common law, territorial law, foreign law, contract, rule, regulation, any regulatory promulgation (including, but not limited to, any opinion or declaratory ruling), common law or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, punitive or compensatory, as of the date of the Final Approval Order, that arise out of or relate in any way to the sending of allegedly unauthorized text messages from the ExactTarget platform by or on behalf of Simply Fashion during the Class Period, including alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. 227, and similar state laws relating to sending of text messages without consent The Parties acknowledge and agree that the Settlement does not release any claims held by the States or other governmental entities. The release also covers known and unknown claims, and waives rights under California Civil Code Section 1542 and similar statutes. This means that all of the Court s orders will apply to you and legally bind you. By staying in the Class, you agree to release any claims, known and unknown, arising from the facts alleged in this lawsuit. The full terms of this Release are contained in the Settlement Agreement, Section available at or at the public court records on file in this lawsuit. Questions? Call or go to 7

39 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 1 of 3 PageID #: 2966 Exhibit B

40 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 2 of 3 PageID #: 2967 Subject Line: Court Approved Notice You may be entitled to cash up to $1,500 if you received a text message from Simply Fashion Stores. If you received a text message on your cell phone from or on behalf of Simply Fashion Stores from July 23, 2009, through September 30, 2013, your rights may be affected by a class action Settlement. Class Member ID: <<refnum>> UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA NOTICE OF PROPOSED CLASS ACTION SETTLEMENT: Latonya Simms v. ExactTarget, LLC, United States District Court for the Southern District of Indiana, Case No. 1:14-cv WTL-DLP THIS IS NOT A SOLICITATION. THE SENDING OF THIS NOTICE HAS BEEN APPROVED BY THE COURT. A Settlement has been reached in a class action lawsuit, Simms v. ExactTarget, LLC, U.S. District Court for the S.D. of Indiana, 1:14-cv WTL-DLP (the Lawsuit ). Plaintiff seeks to hold ExactTarget ( Defendant ) liable under the Telephone Consumer Protection Act for text messages sent by or on behalf of Simply Fashion to consumers allegedly without their prior express consent either because the consumers never asked to receive the Simply Fashion text messages or because they continued receiving the Simply Fashion text messages after asking for them to stop. Defendant denies any wrongdoing. Who is Included? The Settlement Class includes all persons in the U.S. who received a text message via an ExactTarget texting platform from or on behalf of Simply Fashion Stores from July 23, 2009, through September 30, 2013 (the Class Period ). Defendant s records show your cell phone number having been sent a text message by or on behalf of Simply Fashion during the Class Period and you are entitled to submit a claim and participate in this Settlement. What does the Settlement provide? If approved by the Court, Defendant will provide a $6,250,000 Settlement Fund. After deducting attorneys fees and expenses (no more than one-third of the Settlement Fund, or $2,083,333.33), an incentive payment of no more than $5,000 to the Class Representative, and the costs of notice and claims administration (estimated to be approximately $225,000), the Settlement Fund will be divided equally among all Settlement Class Members who submit valid claims, up to a limit of $1,500 per person. If any money remains unclaimed those Class Members who timely submitted valid claims and cashed their settlement checks may receive a pro rata distribution of the remaining money. If any money still remains after that point, or if the amount remaining is below $10 per person, the remaining

41 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 3 of 3 PageID #: 2968 money will be donated to the Privacy Rights Clearinghouse, or a similar organization approved by the Court. How do I get a payment? Submit a claim online at by calling , or by mail by downloading a claim form from the website and mailing it to the address on the form by June 12, At the top of this is your Class Member ID. Include that number and the additional information requested on the form when filing your claim. The information you provide to the Claims Administrator will be used only to administer the Settlement. What are my options? If you are a member of the Class as described above, your legal rights are affected, and you have several options right now. (1) Submit a Claim: Download and submit a claim form online at or download a claim form online at and mail it by June 12, Include the Class Member ID found at the top of this . The information you provide to the Claims Administrator will be used only to administer the Settlement. (2) Do nothing: You will not receive payment and you will be bound by the Court's Orders and Judgment and give up your right to sue the Defendant and certain other persons and entities about the legal claims resolved by the settlement. (3) Exclude yourself: Keep the right to sue the Defendant about the legal claims involved in this matter, but you will not receive payment from this settlement. The exclusion deadline is June 5, (4) Object/Request To Appear: Write to the Court and say why you don t like the settlement and/or request permission to speak at the fairness hearing by June 5, For further details regarding the process for opting out, objecting, or requesting to appear, please review the long-form notice available at m_3_9_18.pdf. The Fairness Hearing. The Court will hold a Fairness Hearing at 1:30 p.m. on July 20, 2018, before Judge William T. Lawrence in Courtroom 202 of the Birch Bayh Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana The Court will consider whether the proposed settlement is fair, reasonable, and adequate and whether to approve attorneys' fees and costs to Class Counsel and service awards to Class Representatives, and consider objections, if any. The motion for attorneys' fees and costs will be posted on the website after it is filed Want More Information? Go to call , or write to Simms v. ExactTarget LLC Claims Administrator, PO Box 11730, Philadelphia, PA Para ver este aviso en español, visite

42 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 1 of 5 PageID #: 2969 Exhibit C

43 :14-cv WTL-DLP Document Filed 07/06/18 Page 2 of 5 PageID # Simms v. ExactTarget, LLC Claims Administrator PO Box Philadelphia, PA POSTAGE Legal Notice Latonya Simms v. ExactTarget, LLC, U. S. District Court for the S. District of Indiana, Case No. 1:14-cv WTL-DLP If you received a text message on your cell phone from or on behalf of Simply Fashion Stores from July 23, 2009, through September 30, 2013, your rights could be affected by a class action settlement. <<Barcode>> Class Member ID: <<Refnum>> Class Member Name Address City, ST Zip Please keep this postcard for future reference. [BARCODE AREA]

44 :14-cv WTL-DLP A Settlement has been reached in a class Document action lawsuit, Simms v. remaining Filed money 07/06/18 if the remaining Page amount will 3 provide of 5 PageID for more # ExactTarget, LLC, U.S. District Court for the S.D. of Indiana, No. 1:14-cv WTL-DLP (the Lawsuit ). Plaintiff seeks to hold ExactTarget ( Defendant ) liable under the Telephone Consumer Protection Act for text messages sent by or on behalf of Simply Fashion to consumers allegedly without their prior express consent either because the consumers never asked to receive the Simply Fashion text messages or because they continued receiving the Simply Fashion text messages after asking for them to stop, and using an automatic telephone dialing system or with an artificial or prerecorded voice message. Defendant denies any wrongdoing. Who is included? The Settlement Class includes all persons in the U.S. who received a text message via an ExactTarget texting platform from or on behalf of Simply Fashion Stores from July 23, 2009, through September 30, 2013 (the Class Period ). Defendant s records show your cell phone number having been sent a text message by or on behalf of Simply Fashion during the Class Period and you are entitled to submit a claim and participate in this Settlement. What does the Settlement provide? If approved by the Court, Defendant will provide a $6,250,000 Settlement Fund. After deducting attorneys fees and expenses (no more than one-third of the Settlement Fund, or $2,083,333.33), an Incentive Award of no more than $5,000 to the Class Representative, and the costs of notice and claims administration (estimated to be approximately $225,000), the Settlement Fund will be divided equally among all Settlement Class Members who submit valid claims, up to a limit of $1,500 per person. If any money remains unclaimed those Class Members who timely submitted valid claims and cashed their settlement checks may receive a pro rata distribution of the than $10 per person. If any money still remains after that point, or if the amount remaining is below $10 per person, the remaining money will be donated to the Privacy Rights Clearinghouse, or a similar organization approved by the Court. If you are a member of the Class as described above, your legal rights are affected, and you have several options right now. (1) Submit a Claim: Return the attached claim form, submit a claim at or download a claim form online and mail it by June 12, Include the Class Member ID on the front of this postcard. The information you provide to the Claims Administrator will be used only to administer the Settlement. (2) Do nothing: You will not receive payment and you will be bound by the Court s Orders and Judgment and give up your right to sue the Defendant and certain other persons and entities about the legal claims resolved by the settlement. (3) Exclude yourself: Keep the right to sue the Defendant about the legal claims involved in this matter, but you will not receive payment from this settlement. The exclusion deadline is June 5, (4) Object/Request To Appear: Write to the Court and say why you don t like the settlement and/or request permission to speak at the Fairness Hearing by June 5, The Court will hold a Fairness Hearing at 1:30 p.m. on July 20, 2018, before Judge William T. Lawrence in Courtroom 202 of the Birch Bayh Federal Building & U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana The Court will consider whether the proposed settlement is fair, reasonable, and adequate and whether to approve attorneys fees and costs to Class Counsel and a service award to the Class Representative, and consider objections, if any. The motion for attorneys fees and costs will be posted on the website after it is filed. Para ver este aviso en español, visite

45 :14-cv WTL-DLP Document Filed 07/06/18 Page 4 of 5 PageID # PLACE STAMP HERE TO RECEIVE BENEFITS FROM THIS SETTLEMENT, YOU MUST PROVIDE ALL OF THE INFORMATION ON THE CLAIM FORM ON THE REVERSE SIDE, AND YOU MUST SIGN THE CLAIM FORM. Simms v. ExactTarget, LLC Claims Administrator PO Box Philadelphia, PA YOUR CLAIM FORM MUST BE SUBMITTED ONLINE BY 11:59 P.M. CENTRAL TIME ON JUNE 12, 2018 OR SENT BY MAIL TO THE ADDRESS TO THE RIGHT AND POSTMARKED BY JUNE 12, 2018.

46 :14-cv WTL-DLP Document Filed 07/06/18 Page 5 of 5 PageID # <<refnum barcode>> Class Member ID: <<refnum>> CLAIM FORM Latonya Simms v. ExactTarget, LLC, Case No. 1:14-cv WTL-DLP (S.D. Ind.) Instructions. Fill out each section of this form and sign where indicated. Name: First Name M.I. Last Name Street Address: City: State: Zip Code: - (zip4 optional) Telephone Number: ( ) - - Class Member ID (if known): Class Member Affirmation: By submitting this Claim Form and checking the box below, I declare that I am a member of the Settlement Class and that the following statement is true (box must be checked to receive payment): I affirm that I was the subscriber or primary user of the cellular telephone number(s) listed above at some time from July 23, 2009, through September 30, 2013 and that I received one or more text messages advertising Simply Fashion at the number(s) identified above, and that I did not consent to receive those text messages. I declare under penalty of perjury under the laws of the State in which this affirmation is executed and the United States of America that the information provided above is true and correct. Signature: Printed Name: Dated: / /

47 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 1 of 2 PageID #: 2974 Exhibit D

48 Case 1:14-cv WTL-DLP Document Filed 07/06/18 Page 2 of 2 PageID #: 2975 * * Class Member ID: MUST BE SUBMITTED NO LATER THAN June 12, 2018 CLAIM FORM Latonya Simms v. ExactTarget, LLC, Case No. 1:14-cv WTL-DLP (S.D. Ind.) For Office Use Only Instructions. Fill out each section of this form and sign where indicated. Name: First Name M.I. Last Name Street Address: City: State: Zip Code: - (zip4 optional) Telephone Number: ( ) - - Class Member ID (if known): TO RECEIVE BENEFITS FROM THIS SETTLEMENT, YOU MUST PROVIDE ALL OF THE INFORMATION ABOVE, AND YOU MUST SIGN THIS CLAIM FORM. YOUR CLAIM FORM MUST BE SUBMITTED ONLINE BY 11:59 P.M. CENTRAL TIME ON JUNE 12, 2018 OR SENT BY MAIL TO THE ADDRESS BELOW AND POSTMARKED BY JUNE 12, Simms v. ExactTarget, LLC Claims Administrator PO Box Philadelphia, PA Class Member Affirmation: By submitting this Claim Form and checking the box below, I declare that I am a member of the Settlement Class and that the following statement is true (box must be checked to receive payment): I affirm that I was the subscriber or primary user of the cellular telephone number(s) listed above at some time from July 23, 2009, through September 30, 2013 and that I received one or more text messages advertising Simply Fashion at the number(s) identified above, and that I did not consent to receive those text messages. I declare under penalty of perjury under the laws of the State in which this affirmation is executed and the United States of America that the information provided above is true and correct. SIGNATURE: PRINTED NAME: DATED: / / *30975* *CF* *Page 1 of 1* CF Page 1 of 1

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