LUCY H. KOH, District Judge.
WHEREAS, a putative class action captioned Perkins et al. v. LinkedIn, Case No. 13-CV-04303-LHK is pending before the Court, and
WHEREAS, Paul Perkins, Pennie Sempell, Ann Brandwein, Erin Eggers, Clare Connaughton, Jake Kushner, Natalie Richstone, Nicole Crosby, and Leslie Wall (collectively, the "Plaintiffs" or "Class Representatives"), individually and in their representative capacities on behalf of the Settlement Class, and LinkedIn Corporation ("Defendant" or "LinkedIn") (Plaintiffs and LinkedIn collectively, the "Parties," or singularly, "Party") have entered into an Amended Settlement Agreement and Release ("Settlement Agreement"), ECF No. 105-2, which, together with the exhibits attached thereto (as amended by the Court and attached to this Order), sets forth the terms and conditions for a proposed settlement and dismissal of the Action with prejudice as to Defendant for the claims of the Settlement Class upon the terms and conditions set forth in the Settlement Agreement, and the Court having read and considered the Settlement Agreement and exhibits attached thereto;
This matter coming before the Court upon the agreement of the Parties and the motion of Plaintiffs seeking preliminary approval of the Settlement Agreement, good cause being shown, and the Court being fully advised in the premises,
IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS:
1. Terms and phrases in this order shall have the same meaning as ascribed to them in the Settlement Agreement.
2. A class (the "Settlement Class") is certified for settlement purposes only.
a. The Settlement Class is defined to include: "[A]ll current and former LinkedIn members who used Add Connections to import information from external email accounts and to send emails to persons who were non-members in which the member's name, photograph, likeness and/or identity was displayed between September 17, 2011 and October 31, 2014." Excluded from the Settlement Class are the following: (1) Defendant, its subsidiaries, and affiliates and each of their respective officers, directors and employees, (2) Class Counsel and Defendant's Counsel, and (3) any judicial officer to whom the Action is assigned.
b. The requirements for class certification under Fed. R. Civ. P. 23(a). The Settlement Class consists of approximately 20.8 million persons, there are questions of law or fact common to the Settlement Class, Plaintiffs' claims are typical of those of the Settlement Class, and Plaintiffs will fairly and adequately protect the interests of the Settlement Class.
c. In addition, the questions of law or fact common to the Settlement Class predominate over any individual questions, and the class action mechanism is superior to other available methods for the fair and efficient adjudication of this controversy. Consequently, the Settlement Class satisfies the requirements of Fed. R. Civ. P. 23(b)(3).
3. The Court hereby appoints Plaintiffs Paul Perkins, Pennie Sempell, Ann Brandwein, Erin Eggers, Clare Connaughton, Jake Kushner, Natalie Richstone, Nicole Crosby, and Leslie Wall as Class Representatives.
4. The Court hereby appoints Michael W. Sobol, Nicholas R. Diamand, and Melissa Gardner of Lieff, Cabraser, Heimann & Bernstein, LLP; Dorian S. Berger and Daniel P. Hipskind of Olavi Dunne LLP; and Larry C. Russ of Russ, August & Kabat as Class Counsel.
5. Plaintiffs have moved the Court for an order approving the settlement of the Action in accordance with the Settlement Agreement, which, together with the documents incorporated therein, sets forth the terms and conditions for a proposed settlement and dismissal of the Action with prejudice against Defendant, and the Court having read and considered the Settlement Agreement and having heard the Parties and being fully advised in the premises, hereby preliminarily approves the Settlement Agreement in its entirety subject to the Final Approval Hearing referred to in Paragraph 20 of this order.
6. This Court finds that it has jurisdiction over the subject matter of this action and over all Parties to the Action, including all members of the Settlement Class.
7. The Court finds that, subject to the Final Approval Hearing, the Settlement Agreement falls within the range of possible approval as fair, reasonable, adequate, and in the best interests of the Settlement Class. The Court further finds that the Settlement Agreement substantially fulfills the purposes and objectives of the class action, and provides beneficial relief to the Settlement Class. The Court also finds that the Settlement Agreement (a) is the result of serious, informed, non-collusive arm's length negotiations involving experienced counsel familiar with the legal and factual issues of this case and made with the assistance of Antonio Piazza of Mediated Negotiations; (b) is sufficient to warrant notice of the Settlement Agreement and the Final Approval Hearing to the Settlement Class; (c) meets all applicable requirements of law, including Federal Rule of Civil Procedure 23, and the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1715; and (d) is not a finding or admission of liability by Defendant.
8. Gilardi & Co. LLC ("Gilardi") is hereby appointed as Settlement Administrator and shall perform all the duties of the Settlement Administrator as set forth in the Settlement
9. The Court finds that the Notice and Notice Plan as set forth in the Settlement Agreement are reasonably calculated to, under all circumstances, apprise the members of the Settlement Class of the pendency of this action, certification of the Settlement Class for settlement purposes only, the terms of the Settlement Agreement, and their right to object to the Settlement or to exclude themselves from the Settlement Class. The Notice and Notice Plan are consistent with the requirements of Rule 23 and due process, and constitute the best notice practicable under the circumstances.
10. The Court thus hereby approves the Notice and the Notice Plan, including the Email Notice and Website Notice as amended by the Court and attached as Exhibits B and C, respectively, to this Order. The Court also approves the Claim Form, as amended by the Court and attached as Exhibit A to this Order, and claims administration procedures set forth in the Settlement Agreement. The Parties may, by agreement, revise the Notice and/or Claim Form in ways that are not material, or in ways that are appropriate to update these documents for purposes of accuracy or formatting.
11. Pursuant to Section 5 of the Settlement Agreement, the Notice Plan shall be implemented as follows: Within thirty (30) days following the entry of this order (the "Notice Date"), LinkedIn shall send or cause to be sent the Email Notice, as amended by the Court and attached as Exhibit B to this Order, to each Person in the Settlement Class using the email address that LinkedIn has on file for their LinkedIn account. The Email Notice shall include a hypertext link to the Settlement Website. For emails that result in a bounce-back or are otherwise undeliverable, an attempt will be made to re-send the Email Notice once prior to the Notice Date. With the involvement and approval of the Parties, and starting no later than the start of the dissemination of Email Notice to the Settlement Class, the Settlement Administrator shall publish the Website Notice, as amended by the Court and attached as Exhibit C to this Order, through the Settlement Website. The Settlement Website shall be developed, hosted, and maintained by the Settlement Administrator through the Final Settlement Date and shall include the ability to submit Claim Forms electronically.
12. Settlement Class Members who wish to receive a payment under the Settlement Agreement must complete and submit a timely and valid Claim Form. A Settlement Class Member may file only one (1) Claim Form, regardless of how many LinkedIn accounts he, she, or it may have. All Claim Forms must be postmarked or received by the Settlement Administrator on or before the Claims Deadline, which is hereby set as December 14, 2015.
13. Settlement Class members who wish to exclude themselves from the Settlement Class for purposes of this settlement may do so by submitting a request for exclusion to the Settlement Administrator on or before the Objection/Exclusion Deadline, which is hereby set as December 14, 2015. The request for exclusion must comply with the exclusion procedures set forth in the Settlement Agreement and include the case number of the Action, the member's name, address, email address associated with his, her, or its LinkedIn account, phone number, signature, and a statement that he or she wishes to be excluded from the Settlement Class for purposes of this settlement. A request for exclusion may not request exclusion of more than one Settlement Class Member.
14. Any member of the Settlement Class who timely requests exclusion consistent with these procedures shall not (i) be bound by the Final Order and Judgment; (ii) be entitled to relief under the Settlement Agreement; (iii) gain any rights by virtue of the Settlement Agreement; or (iv) be entitled to object to any aspect of the Settlement Agreement. However, Settlement Class Members who fail to submit a valid and timely request for exclusion shall be bound by all terms of the Settlement Agreement and the Final Order and Judgment, regardless of whether they have otherwise requested exclusion from the Settlement Class.
15. Any member of the Settlement Class who has not filed a timely and valid request for exclusion may object to the granting of final approval to the Settlement Agreement. Settlement Class Members may object on their own, or may do so through separate counsel at their own expense.
16. Any objection must be in writing, must be personally signed by the objector, and must include: (1) the name of the Action and case number, "Perkins v. LinkedIn Corp., Case No. 5:13-CV-04303-LHK"; (2) the objector's name, address, email address associated with his, her, or its LinkedIn account, and contact phone number; (3) an explanation of the basis upon which the objector claims to be a member of the Settlement Class; (4) the grounds for the objection, including any supporting law or evidence, if any; (5) 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; and (6) 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).
17. All objections and any papers submitted in support of such objections must be submitted to the Court on or before the Objection/Exclusion Deadline either by mailing them to Judge Koh's Case System Administrator at the United States Courthouse, 280 South 1st Street, Room 2112, San Jose, CA 95113, or by filing them in person at any location of the United States District Court for the Northern District of California, except that any objection made by a Settlement Class Member represented by counsel must be filed through the Court's Case Management/Electronic Case Filing (CM/ECF) system.
18. Any Settlement Class Member who fails to timely mail or file a written objection with the Court and notice of his or her intent to appear at the Final Approval Hearing in accordance with the terms of this Settlement Agreement and as detailed in the Notice shall not be permitted to object to the Settlement at the Final Approval Hearing, and shall be foreclosed from seeking any review of the Settlement by appeal or other means and shall be deemed to have waived his, her, or its objections and be forever barred from making any such objections in the Action or any other action or proceeding.
19. A Final Approval Hearing shall be held before this Court on February 11, 2016, at 1:30 p.m. in Courtroom 8 of the United States Courthouse, 280 South 1st Street, 4th Floor, San Jose, CA 95113 to consider: (a) whether the proposed settlement of the Action on the terms and conditions provided for in the Settlement Agreement is fair, reasonable, and adequate and should be given final approval by the Court; (b) whether a final judgment should be entered; (c) whether to award payment of attorney's fees and expenses to Class Counsel and in what amount; and (d) whether to award payment of an incentive award to the Class Representative and in what amount. The Court may adjourn the Final Approval Hearing without further notice to Class Members.
20. At least fourteen (14) days prior to the Objection/Exclusion Deadline, Plaintiffs shall file with the Court their motion for attorney's fees, costs, and service awards, which shall be posted to the Settlement Website on the date of filing.
21. No later than January 14, 2016, Plaintiffs shall file with the Court their motion for final approval, which shall be posted to the Settlement Website on the date of filing.
22. No later than February 4, 2016, Plaintiffs shall file any replies in support of Plaintiffs' motion for attorney's fees, costs, and service awards and Plaintiffs' motion for final approval, both of which shall be posted to the Settlement Website on the date of filing.
23. In order to protect its jurisdiction to consider the fairness of the Settlement Agreement and to enter a Final Order and Judgment having binding effect on all Settlement Class Members, the Court hereby enjoins all members of the Settlement Class, and anyone who acts or purports to act on their behalf, from pursuing any of the Released Claims.
24. Settlement Class Members shall be bound by all determinations and judgments in the Action concerning the Action and/or Settlement Agreement, whether favorable or unfavorable.
25. All discovery and pretrial proceedings and deadlines are stayed and suspended until further notice from the Court, except for such actions as are necessary to implement the Settlement Agreement and this Order.
26. In the event that the Settlement Agreement is terminated pursuant to the provisions of the Settlement Agreement, then (a) the Settlement Agreement, this Preliminary Approval Order, and the Final Order and Judgment (if applicable) (including but not limited to the certification of the Settlement Class, the appointment of Plaintiffs as Class Representatives, and the appointment of Class Counsel) shall be vacated and shall be null and void, shall have no further force and effect with respect to any Party in this Action, and shall not be used in this Action or in any other proceeding for any purpose; (b) this action will revert to the status that existed before the Settlement Agreement's execution date; (c)(i) no term or draft of the Settlement Agreement, (ii) nor any part of the Parties' settlement discussions, negotiations, or documentation (including any declaration or brief filed in support of the motion for preliminary approval or motion for final approval), (iii) nor any rulings regarding class certification for settlement purposes (including the Preliminary Approval Order and, if applicable, the Final Order and Judgment), will have any effect or be admissible into evidence for any purpose in the Action or any other proceeding.
27. The Court may, for good cause, extend any of the deadlines set forth in this Order without further notice to the Settlement Class Members. The Final Approval Hearing may, from time to time and without further notice to the Settlement Class Members, be continued by order of the Court.
You cannot submit both a Claim Form and a request for exclusion from the Settlement Class because only members of the Settlement Class are entitled to any monetary payment under the Settlement. For any person who files both a Claim Form and a request for exclusion, only the last one filed will be effective. For example, if a person files a Claim Form and then files a request for exclusion, he or she will be excluded from the Settlement Class and the Claim Form will be ignored.
Your contact information will be used by the administrator of this Settlement, Gilardi & Co. LLC ("Gilardi" or "Settlement Administrator") to contact you, if necessary, about your claim. Providing your telephone number is optional. By providing contact information, you agree that Gilardi may contact you about your claim.
If you did not receive a Notice about this Settlement or no longer have access to that document, you may leave blank the item immediately above calling for your Class Member Number.
The illustration below is to help you identify your Routing and Account Number. If you still are unsure which number on your check is which, please contact your financial institution.
I have received notice of the Settlement, and I submit this Claim Form under the terms of the Settlement. I also submit to the jurisdiction of the United States District Court for the Northern District of California with regard to my claim and for purposes of enforcing the release of claims in the Settlement Agreement. I further acknowledge that I am bound by the terms of any Court judgment that may be entered in this Action and may not bring or continue pursuing any of the Released Claims against LinkedIn and/or the other Released Parties in a separate action. I agree to furnish additional information to support this claim if required to do so.
IF SUBMITTED ELECTRONICALLY:
[]
IF SUBMITTED BY U.S. MAIL:
Any payments will be provided to claimants only if the Court gives final approval to the Settlement and, if there are any appeals, after the appeals are resolved in favor of the Settlement. Please be aware that the amount, if any, paid to each member of the Settlement Class who files an approved claim depends on the total number of approved claims. No one knows in advance how much each claimant's payment will be, and claimants may be paid nothing at all. Please be patient. If, after you submit a Claim Form, you change your postal or email address, it is your responsibility to inform the Settlement Administrator of your updated information. You may do so by mail or email at the addresses above.
You received this Notice because a settlement has been reached in the Action. According to LinkedIn's available records, you may be a Settlement Class Member and may be entitled to the relief detailed below.
This Notice explains the nature of the Action, the general terms of the proposed Settlement, and your legal rights and obligations. To obtain more information about the Settlement, including information about how you can see a copy of the Settlement Agreement (which defines certain capitalized terms used in this Notice), see Section 19 below.
In a class action lawsuit, one or more people called Plaintiffs (in this Action, Paul Perkins, Pennie Sempell, Ann Brandwein, Erin Eggers, Clare Connaughton, Jake Kushner, Natalie Richstone, Nicole Crosby, and Leslie Wall) sue on behalf of other people who have similar claims ("Settlement Class Members"). For purposes of this Settlement, one court will resolve the issues for all Settlement Class Members, except for those people who properly exclude themselves from the Settlement Class, as explained in Section 13 below. The company sued in this case, LinkedIn, is called the Defendant.
The Action challenges LinkedIn's use of a service called Add Connections to grow its member base. Add Connections allows LinkedIn members to import contacts from their external email accounts and email connection invitations to one or more of those contacts inviting them to connect on LinkedIn. If a connection invitation is not accepted within a certain period of time, up to two emails are sent reminding the recipient that the connection invitation is pending. The Court found that members consented to importing their contacts and sending the connection invitation, but did not find that members consented to LinkedIn sending the two reminder emails. The Plaintiffs contend that LinkedIn members did not consent to the use of their names and likenesses in those reminder emails. LinkedIn denies these allegations and any and all wrongdoing or liability. No court or other entity has made a judgment or other determination of any liability. Plaintiffs asserted violations of (1) California's common law right of publicity; (2) California's Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.) (the "UCL"); (3) the Stored Communications Act, 18 U.S.C. §§ 2701, et seq.; (4) the federal Wiretap Act, 18 U.S.C. §§ 2510, et seq.; (5) California Penal Code § 502; and (6) the California Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.
For information about how to learn about what has happened in the Action to date, please see Section 19 below.
The Court has
In granting preliminary approval of the Settlement, the Court appointed Plaintiffs as Class Representatives and the lawyers who brought this Action as Class Counsel.
The Court has decided that everyone who fits this description is a Settlement Class Member for purposes of the proposed Settlement:
If the Court gives final approval to the Settlement, and after any appeals are resolved, LinkedIn has agreed to the following:
The Class Representatives will request a service award of up to $1,500 (each) for their services as class representatives and their efforts in bringing the Action. The Court will make the final decision as to the amount to be paid to the Class Representatives.
To qualify for payment, Settlement Class Members must send in a Claim Form. A Claim Form is accessible by clicking
Alternatively, a copy of the Claim Form can be obtained from the Settlement Website www.[xxx].com or from the Settlement Administrator at the address below and submitted by postal mail. If a completed Claim Form is submitted by mail it must be submitted to the below address and postmarked by [Month] [Day], [Year].
If a Settlement Class Member submits a timely and valid Claim Form by [Month] [Day], [Year], and the Court gives final approval to the Settlement, the Authorized Claimant will receive his or her payment about 90 days after the Court gives final approval of the Settlement, assuming that no one files an appeal challenging the Settlement. The Claim Form allows Settlement Class Members to choose between payment via Automated Clearing House (ACH) transfer and payment via physical check.
The Court has ordered that Russ, August & Kabat; Lieff, Cabraser, Heimann & Bernstein, LLP; and Olavi Dunne LLP ("Class Counsel") will represent the interests of all Settlement Class Members. If you want to be represented by your own lawyer, you may hire one at your own expense.
When Class Counsel ask the Court to approve the settlement, they will also apply to the Court for an award of attorneys' fees, costs, and expenses up to a maximum of $3,250,000 to be paid from the $13 million settlement fund. The Court will make the final decision as to the amounts to be paid to Class Counsel.
Upon the entry of the Final Order and Judgment, Plaintiffs and all Settlement Class Members who do not validly and timely request to be excluded from the proposed Settlement, and each of their respective present, former, and future heirs, executors, administrators, representatives, agents, attorneys, partners, predecessors-in-interest, successors, assigns, and legatees (collectively the "Releasing Parties") shall be deemed to have fully, finally, and forever released, relinquished, and discharged against LinkedIn and any and all of its present or former heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliated and related entities, employers, employees, agents, representatives, consultants, independent contractors, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, investment bankers, insurers, underwriters, shareholders, lenders, auditors, investment advisors, and any and all present and former companies, firms, trusts, corporations, officers, directors, other individuals or entities in which LinkedIn has a controlling interest or which is affiliated with any of them, or any other representatives of any of these persons and entities (collectively the "Released Parties"), any and all actions, causes of action, claims, demands, liabilities, obligations, damages (including, without limitation, punitive, exemplary and multiple damages), penalties, sanctions, losses, debts, contracts, agreements, attorneys' fees, costs, expenses, and rights of any nature and description whatsoever, whether based on federal, state, or local statutes, common law, regulations, rules or any other law of the United States or foreign jurisdiction, known or unknown, fixed or contingent, suspected or unsuspected, in law or in equity, that were asserted or could have been asserted arising from or related to allegations in the Action regarding the alleged use of Add Connections to grow LinkedIn's member base, including, without limitation, (i) accessing, importing, storing and/or using information from LinkedIn members' external email accounts; (ii) using LinkedIn members' names, photographs, likenesses, and/or identities in emails relating to Add Connections; or (iii) related disclosures, representations, and omissions ("Released Claims").
The Releasing Parties fully understand that the facts on which this Settlement Agreement is executed may be different from the facts now believed by the Releasing Parties and their Counsel to be true, and they expressly accept and assume the risk of this possible difference in facts and agree that this Settlement Agreement remains effective despite any difference in facts. Further, the Releasing Parties agree that this waiver is an essential and material term of this release and the Settlement that underlies it and that without such waiver the Settlement would not have been accepted.
The precise definitions of the capitalized terms in the paragraph above can be found in the Settlement Agreement, which is located online at www.[xxx].com or may be obtained by requesting it from the Settlement Administrator: Perkins v. LinkedIn Corp., Settlement, c/o Gilardi & Co. LLC [Address], [City], [State] [ZIP Code],
Unless you exclude yourself, you will remain in the Settlement Class, and that means that you cannot sue, continue to sue, or be part of any other lawsuit about the Released Claims. It also means that all of the Court's orders will apply to you and legally bind you.
If you exclude yourself from the Settlement Class, you would retain the right to bring a claim against LinkedIn, but you would not have representation provided for you through this lawsuit, and would be responsible for hiring your own attorney at your own expense.
Persons who fall within the definition of the Settlement Class who do not want to be a part of the Settlement must send a written request to the Settlement Administrator, at the address below, postmarked on or before [Month] [Day], [Year].
This request must include the case number of the Action (Case No. 5:13-CV-04303-LHK), your name, address, email address, phone number and signature, and a statement that you wish to be excluded from the Settlement Class. If the exclusion request does not include all of this information, or if it is sent to an address other than the above, or if it is not postmarked within the time specified, it will be invalid, and you will remain a member of the Settlement Class and be bound as a Class Member by the Settlement Agreement, if approved. "Mass" or "class" opt-outs purporting to be made on behalf of multiple persons or classes of persons shall not be allowed.
If you submit a valid request to be excluded from the Class, you will not be a part of the Settlement, will not be eligible to make a claim for payment (as described in Section 8 above), will not be bound by the Final Order and Judgment entered in the Action, and will not be precluded from bringing any individual claim against LinkedIn based on the conduct complained of in the Action. If a claimant also submits a request for exclusion from the class and settlement, the request for exclusion will be ignored.
At the date, time, and location stated in Section 17 below, the Court will hold a Final Approval Hearing to determine if the Settlement is fair, reasonable, and adequate, and to also consider Class Counsel's request for an award of attorneys' fees and expenses, and a service award to the Class Representatives.
If you have not submitted a timely and valid exclusion request and wish to object to the Settlement or to the award of attorneys' fees, expenses, or service awards, you must submit to the Court and mail to Class Counsel and LinkedIn's Counsel a written objection ("Objection") by [Month] [Day], [Year] that complies with the following requirements.
Written objections must be signed by the objector and must include: (1) the name of the Action and case number, "Perkins v. LinkedIn Corp., Case No. 5:13-CV-04303-LHK"; (2) the objector's name, address, telephone number, and email address; (3) the basis upon which the objector claims to be a Settlement Class Member; (4) the grounds for the objection, including any supporting law or evidence, if any; (5) the name and contact information of attorneys representing, advising, or assisting the objector in connection with the objection or who may profit from the pursuit of the objection; and (6) a statement indicating whether the objector intends to appear at the Final Approval Hearing personally or through counsel. Written objections must be submitted to the Court, either by mailing them to Judge Koh's Case System Administrator at the United States Courthouse, 280 South 1st Street, Room 2112, San Jose, CA 95113, or by filing them in person at any location of the United States District Court for the Northern District of California.
You may, but need not, submit your written objection through an attorney of your choice. If you do make your objection through an attorney, you will be responsible for your own attorney's fees and costs. Objections filed by attorneys registered for e-filing with this Court on behalf of Settlement Class Members must be filed through the Court's electronic court filing ("ECF") system located at https://ecf.cand.uscourts.gov/cand/index.html. An objection filed with the Court via ECF may redact the objector's telephone number or email address, so long as the unredacted version is mailed to both Class Counsel and LinkedIn's Counsel at the following addresses:
The date of an objection is deemed to be the date on which it is filed with the Court. For the purposes of ECF transmission, transmission must be complete by 11:59 p.m. (Pacific Time) on [Month] [Day], [Year].
You are not required to appear at the Final Approval Hearing. But, if you file and mail a timely objection that complies with this paragraph, you may appear at the Final Approval Hearing, either in person or through an attorney of your own choice hired at your expense, to object to the fairness, reasonableness, or adequacy of the Settlement, or to the award of attorneys' fees, expenses, and costs or to the service awards to the Plaintiffs.
Objecting is simply 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 is telling the Court that you don't want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the Settlement no longer affects you.
The Court has preliminarily approved the Settlement and will hold a hearing to decide whether to give final approval to the Settlement. The purpose of the Final Approval Hearing will be for the Court to determine whether the Settlement should be approved as fair, reasonable, adequate, and in the best interests of the Class; to consider the award of attorneys' fees and expenses to Class Counsel; and to consider the request for a service award to the Class Representatives.
The Court will hold the Final Approval Hearing at [time] on [Month] [Day], [Year] in Courtroom 8 of the United States Courthouse, 280 South 1st Street, 4th Floor, San Jose, CA 95113. The hearing may be postponed to a different date or time or location without notice. Please check
At that hearing, the Court will be available to hear any objections and arguments concerning the fairness of the Settlement.
You may attend, but you do not have to. As described above in Section 14, you may speak at the Final Approval Hearing only if (a) you have timely mailed your written objection to the Court (or filed it with the Court) and timely mailed your written objection to Class Counsel and LinkedIn's Counsel, and (b) followed the procedures set forth in Section 14 above for notifying the Court and the parties that you intend to speak at the Final Approval Hearing.
If you have requested exclusion from the Settlement, however, you may not speak at the Final Approval Hearing.
To see a copy of the Settlement Agreement (which defines capitalized terms used in this notice and provides a brief summary of what has happened in the Action), the Court's preliminary approval order, Class Counsel's application for attorneys' fees and costs, and the operative complaint filed in the Action, please visit the Settlement Website located at: www.[xxx].com.
Alternatively, you may contact the Settlement Administrator at: Perkins v. LinkedIn Corp., Settlement, c/o Gilardi & Co. LLC [Address], [City], [State] [ZIP Code].
The above description of the Action is general and does not cover all of the issues and proceedings that have occurred. In order to see the complete file for the Action, you should visit the website of the Administrative Office of the U.S. Courts, PACER Service Center, located at http://pacer.psc.uscourts.gov/. You may also visit or call the Clerk's office at the United States Courthouse, 280 South 1st Street, Room 2112, San Jose, CA 95113. The Clerk will tell you how to obtain the file for inspection and copying at your own expense.
You may also contact Class Counsel by calling (XXX) XXX-XXXX.
If, after you submit a claim form, you change your postal or email address, it is your responsibility to inform the Settlement Administrator of your updated information. You may do so either by mail or email at the addresses below:
a nd thus dismissed related claims, leaving only claims based on reminder emails. The Plaintiffs contend that LinkedIn members did not consent to the use of their names and likenesses in those reminder emails. LinkedIn denies these allegations and any and all wrongdoing or liability. No court or other entity has made a judgment or other determination of any liability.
associated connection invitation. LinkedIn has also agreed to pay $13 million into a fund that can be used, in part, to make payments to members of the Settlement Class who file approved claims. Attorneys representing the Settlement Class will petition the Court for payment of the following from the fund: (1) reasonable attorneys' fees, expenses, and costs up to a maximum of $3,250,000, and (2) service awards for the Plaintiffs up to a maximum of $1,500 each. The payment amount for members of the Settlement Class who file approved claims will be calculated on a pro rata basis, which means it will depend on the total number of approved claims. If the number of approved claims results in a payment amount of less than $10, LinkedIn will pay an additional amount up to $750,000 into the fund. If the payment amount is so small that it cannot be distributed in a way that is economically feasible, payments will be made, instead, to Cy Pres Recipients selected by the Parties and approved by the Court.
You cannot submit both a Claim Form and a request for exclusion from the Settlement Class because only members of the Settlement Class are entitled to any monetary payment under the Settlement. For any person who files both a Claim Form and a request for exclusion, only the last one filed will be effective. For example, if a person files a Claim Form and then files a request for exclusion, he or she will be excluded from the Settlement Class and the Claim Form will be ignored.
Your contact information will be used by the administrator of this Settlement, Gilardi & Co. LLC ("Gilardi" or "Settlement Administrator") to contact you, if necessary, about your claim. Providing your telephone number is optional. By providing contact information, you agree that Gilardi may contact you about your claim.
The illustration below is to help you identify your Routing and Account Number. If you still are unsure which number on your check is which, please contact your financial institution.
I have received notice of the Settlement, and I submit this Claim Form under the terms of the Settlement. I also submit to the jurisdiction of the United States District Court for the Northern District of California with regard to my claim and for purposes of enforcing the release of claims in the Settlement Agreement. I further acknowledge that I am bound by the terms of any Court judgment that may be entered in this Action and may not bring or continue pursuing any of the Released Claims against LinkedIn and/or the other Released Parties in a separate action. I agree to furnish additional information to support this claim if required to do so.
IF SUBMITTED ELECTRONICALLY:
IF SUBMITTED BY U.S. MAIL:
Any payments will be provided to claimants only if the Court gives final approval to the Settlement and, if there are any appeals, after the appeals are resolved in favor of the Settlement. Please be aware that the amount, if any, paid to each member of the Settlement Class who files an approved claim depends on the total number of approved claims. No one knows in advance how much each claimant's payment will be, and claimants may be paid nothing at all. Please be patient. If, after you submit a Claim Form, you change your postal or email address, it is your responsibility to inform the Settlement Administrator of your updated information. You may do so by mail or email at the addresses above.
s, — and thus dismissed related claims, leaving only claims based on reminder emails. The Plaintiffs contend that LinkedIn members did not consent to the use of their names and likenesses in those reminder emails. LinkedIn denies these allegations and any and all wrongdoing or liability. No court or other entity has made a judgment or other determination of any liability.
associated connection invitation. LinkedIn has also agreed to pay $13 million into a fund that can be used, in part, to make payments to members of the Settlement Class who file approved claims. Attorneys representing the Settlement Class will petition the Court for payment of the following from the fund: (1) reasonable attorneys' fees, expenses, and costs up to a maximum of $3,250,000, and (2) service awards for the Plaintiffs up to a maximum of $1,500 each. The payment amount for members of the Settlement Class who file approved claims will be calculated on a pro rata basis, which means that it will depend on the total number of approved claims. If the number of approved claims results in a payment amount of less than $10, LinkedIn will pay an additional amount up to $750,000 into the fund. If the pro rata amount is so small that it cannot be distributed in a way that is economically feasible, payments will be made, instead, to Cy Pres Recipients selected by the Parties and approved by the Court.
and thus dismissed related claims, leaving only claims based on reminder emails. The Plaintiffs contend that LinkedIn members did not consent to the use of their names and likenesses in those reminder emails. LinkedIn denies these allegations and any and all wrongdoing or liability. No court or other entity has made a judgment or other determination of any liability.
associated connection invitation. LinkedIn has also agreed to pay $13 million into a fund that can be used, in part, to make payments to members of the Settlement Class who file approved claims. Attorneys representing the Settlement Class will petition the Court for payment of the following from the fund: (1) reasonable attorneys' fees, expenses, and costs up to a maximum of $3,250,000, and (2) service awards for the Plaintiffs up to a maximum of $1,500 each. The payment amount for members of the Settlement Class who file approved claims will be calculated on a pro rata basis, which means that it will depend on the total number of approved claims. If the number of approved claims results in a payment amount of less than $10, LinkedIn will pay an additional amount up to $750,000 into the fund. If the pro rata amount is so small that it cannot be distributed in a way that is economically feasible, payments will be made, instead, to Cy Pres Recipients selected by the Parties and approved by the Court.
You received this Notice because a settlement has been reached in the Action. According to LinkedIn's available records, you may be a Settlement Class Member and may be entitled to the relief detailed below.
This Notice explains the nature of the Action, the general terms of the proposed Settlement, and your legal rights and obligations. To obtain more information about the Settlement, including information about how you can see a copy of the Settlement Agreement (which defines certain capitalized terms used in this Notice), see Section 19 below.
In a class action lawsuit, one or more people called Plaintiffs (in this Action, Paul Perkins, Pennie Sempell, Ann Brandwein, Erin Eggers, Clare Connaughton, Jake Kushner, Natalie Richstone, Nicole Crosby, and Leslie Wall) sue on behalf of other people who have similar claims ("Settlement Class Members"). For purposes of this Settlement, one court will resolve the issues for all Settlement Class Members, except for those people who properly exclude themselves from the Settlement Class, as explained in Section 13 below. The company sued in this case, LinkedIn, is called the Defendant.
The Action challenges LinkedIn's use of a service called Add Connections to grow its member base. Add Connections allows LinkedIn members to import contacts from their external email accounts and email connection invitations to one or more of those contacts inviting them to connect on LinkedIn. If a connection invitation is not accepted within a certain period of time, up to two emails are sent reminding the recipient that the connection invitation is pending. The Court found that members consented to importing their contacts and sending and thus dismissed related claims, leaving only claims based on reminder emails. The Plaintiffs contend that LinkedIn members did not consent to the use of their names and likenesses in those reminder emails. LinkedIn denies these allegations and any and all wrongdoing or liability. No court or other entity has made a judgment or other determination of any liability. Plaintiffs asserted violations of (1) California's common law right of publicity; (2) California's Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.) (the "UCL"); (3) the Stored Communications Act, 18 U.S.C. §§ 2701, et seq.; (4) the federal Wiretap Act, 18 U.S.C. §§ 2510, et seq.; (5) California Penal Code § 502; and (6) the California Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.
For information about how to learn about what has happened in the Action to date, please see Section 19 below.
The Court has
In granting preliminary approval of the Settlement, the Court appointed Plaintiffs as Class Representatives and the lawyers who brought this Action as Class Counsel.
The Court has decided that everyone who fits this description is a Settlement Class Member for purposes of the proposed Settlement:
If the proposed Settlement is approved by the Court, and after any appeals are resolved, LinkedIn has agreed to the following:
The Class Representatives will request a service award of up to $1,500 (each) for their services as class representatives and their efforts in bringing the Action. The Court will make the final decision as to the amount to be paid to the Class Representatives.
To qualify for payment, Settlement Class Members must send in a Claim Form. A Claim Form is accessible by clicking HERE. Read the instructions on the Claim Form carefully, fill out all the information requested, and submit it electronically by 11:59 p.m. Pacific Time on [Month] [Day], [Year].
Alternatively, a copy of the Claim Form can be obtained from the Settlement Website www.[xxx].com or from the Settlement Administrator at the address below and submitted by postal mail. If a completed Claim Form is submitted by mail it must be submitted to the below address and postmarked by [Month] [Day], [Year].
If a Settlement Class Member submits a timely and valid Claim Form by [Month] [Day], [Year], and the Court orders payment to Authorized Claimants, the Authorized Claimant will receive his or her payment about 90 days after the Court rants final approval of the Settlement, assuming that no one files an appeal challenging the Settlement. The Claim Form allows Settlement Class Members to choose between payment via Automated Clearing House (ACH) transfer and payment via physical check.
The Court has ordered that Russ, August & Kabat; Lieff, Cabraser, Heimann & Bernstein, LLP; and Olavi Dunne LLP ("Class Counsel") will represent the interests of all Settlement Class Members.—Settlement Class Members will not be separately charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
When Class Counsel ask the Court to approve the settlement, they will also apply to the Court for an award of attorneys' fees, costs, and expenses up to a maximum of $3,250,000 to be paid from the $13 million settlement fund. The Court will make the final decision as to the amounts to be paid to Class Counsel.
If the Settlement is approved, the Court will enter a Final Order and Judgment dismissing the Action "with prejudice" (i.e., meaning that it cannot be filed again).
Upon the entry of the Final Order and Judgment, Plaintiffs and all Settlement Class Members who do not validly and timely request to be excluded from the proposed Settlement, and each of their respective present, former, and future heirs, executors, administrators, representatives, agents, attorneys, partners, predecessors-in-interest, successors, assigns, and legatees (collectively the "Releasing Parties") shall be deemed to have fully, finally, and forever released, relinquished, and discharged against LinkedIn and any and all of its present or former heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliated and related entities, employers, employees, agents, representatives, consultants, independent contractors, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, investment bankers, insurers, underwriters, shareholders, lenders, auditors, investment advisors, and any and all present and former companies, firms, trusts, corporations, officers, directors, other individuals or entities in which LinkedIn has a controlling interest or which is affiliated with any of them, or any other representatives of any of these persons and entities (collectively the "Released Parties"), any and all actions, causes of action, claims, demands, liabilities, obligations, damages (including, without limitation, punitive, exemplary and multiple damages), penalties, sanctions, losses, debts, contracts, agreements, attorneys' fees, costs, expenses, and rights of any nature and description whatsoever, whether based on federal, state, or local statutes, common law, regulations, rules or any other law of the United States or foreign jurisdiction, known or unknown, fixed or contingent, suspected or unsuspected, in law or in equity, that were asserted or could have been asserted arising from or related to allegations in the Action regarding the alleged use of Add Connections to grow LinkedIn's member base, including, without limitation, (i) accessing, importing, storing and/or using information from LinkedIn members' external email accounts; (ii) using LinkedIn members' names, photographs, likenesses, and/or identities in emails relating to Add Connections; or (iii) related disclosures, representations, and omissions ("Released Claims").
The Releasing Parties fully understand that the facts on which this Settlement Agreement is executed may be different from the facts now believed by the Releasing Parties and their Counsel to be true, and they expressly accept and assume the risk of this possible difference in facts and agree that this Settlement Agreement remains effective despite any difference in facts. Further, the Releasing Parties agree that this waiver is an essential and material term of this release and the Settlement that underlies it and that without such waiver the Settlement would not have been accepted.
The precise definitions of the capitalized terms in the paragraph above can be found in the Settlement Agreement, which is located online at www.[xxx].com or may be obtained by requesting it from the Settlement Administrator: Perkins v. LinkedIn Corp., Settlement, c/o Gilardi & Co. LLC [Address], [City], [State] [ZIP Code],
Unless you exclude yourself, you will remain in the Settlement Class, and that means that you cannot sue, continue to sue, or be part of any other lawsuit about the Released Claims. It also means that all of the Court's orders will apply to you and legally bind you.
If you exclude yourself from the Settlement Class, you would retain the right to bring a claim against LinkedIn, but you would not have representation provided for you through this lawsuit, and would be responsible for hiring your own attorney at your own expense.
Persons who fall within the definition of the Settlement Class who do not want to be a part of the Settlement must send a written request to the Settlement Administrator, at the address below, postmarked on or before [Month] [Day], [Year].
This request must include the case number of the Action (Case No. 5:13-CV-04303-LHK), your name, address, email address, phone number and signature, and a statement that you wish to be excluded from the Settlement Class. If the exclusion request does not include all of this information, or if it is sent to an address other than the above, or if it is not postmarked within the time specified, it will be invalid, and you will remain a member of the Settlement Class and be bound as a Class Member by the Settlement Agreement, if approved. "Mass" or "class" opt-outs purporting to be made on behalf of multiple persons or classes of persons shall not be allowed.
If you submit a valid request to be excluded from the Class, you will not be a part of the Settlement, will not be eligible to make a claim for payment (as described in Section 8 above), will not be bound by the Final Order and Judgment entered in the Action, and will not be precluded from bringing any individual claim against LinkedIn based on the conduct complained of in the Action. If a claimant also submits a request for exclusion from the class and settlement, the request for exclusion will be ignored.
At the date, time, and location stated in Section 17 below, the Court will hold a Final Approval Hearing to determine if the Settlement is fair, reasonable, and adequate, and to also consider Class Counsel's request for an award of attorneys' fees and expenses, and a service award to the Class Representatives.
If you have not submitted a timely and valid exclusion request and wish to object to the Settlement or to the award of attorneys' fees, expenses, or service awards, you must submit to the Court and serve upon
Written objections must be signed by the objector and must include: (1) the name of the Action and case number, "Perkins v. LinkedIn Corp., Case No. 5:13-CV-04303-LHK"; (2) the objector's name, address, telephone number, and email address; (3) the basis upon which the objector claims to be a Settlement Class Member; (4) the grounds for the objection, including any supporting law or evidence, if any; (5) the name and contact information of attorneys representing, advising, or assisting the objector in connection with the objection or who may profit from the pursuit of the objection; and (6) a statement indicating whether the objector intends to appear at the Final Approval Hearing personally or through counsel. Written objections must be submitted to the Court, either by mailing them to the Class Action Clerk at the Robert F. Peckham Federal Building &
You may, but need not, submit your written objection through an attorney of your choice. If you do make your objection through an attorney, you will be responsible for your own attorney's fees and costs. Objections filed by attorneys registered for e-filing with this Court on behalf of Settlement Class Members must be filed through the Court's electronic court filing ("ECF") system located at https://ecf.cand.uscourts.gov/cand/index.html. An objection filed with the Court via ECF may redact the objector's telephone number or email address, so long as the unredacted version is served on
The date of an objection is deemed to be the date on which it is filed with the Court. For the purposes of ECF transmission, transmission must be complete by 11:59 p.m. (Pacific Time) on [Month] [Day], [Year].
You are not required to appear at the Final Approval Hearing. But, if you file and serve mail a timely objection that complies with this paragraph, you may appear at the Final Approval Hearing, either in person or through an attorney of your own choice hired at your expense, to object to the fairness, reasonableness, or adequacy of the Settlement, or to the award of attorneys' fees, expenses, and costs or to the service awards to the Plaintiffs.
Objecting is simply 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 is telling the Court that you don't want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the Settlement no longer affects you.
The Court has preliminarily approved the Settlement and will hold a hearing to decide whether to give final approval to the Settlement. The purpose of the Final Approval Hearing will be for the Court to determine whether the Settlement should be approved as fair, reasonable, adequate, and in the best interests of the Class; to consider the award of attorneys' fees and expenses to Class Counsel; and to consider the request for a service award to the Class Representatives.
The Court will hold the Final Approval Hearing at [time] on [Month] [Day], [Year] in Courtroom 8 4th Floor, 280 South 1st Street,
At that hearing, the Court will be available to hear any objections and arguments concerning the fairness of the Settlement.
You may attend, but you do not have to. As described above in Section 14, you may speak at the Final Approval Hearing only if (a) you have timely served and filed an Objection
If you have requested exclusion from the Settlement, however, you may not speak at the Final Approval Hearing.
To see a copy of the Settlement Agreement (which defines capitalized terms used in this notice and provides a brief summary of what has happened in the Action), the Court's preliminary approval order, Class Counsel's application for attorneys' fees and costs, and the operative complaint filed in the Action, please visit the Settlement Website located at: www.[xxx].com.
Alternatively, you may contact the Settlement Administrator at: Perkins v. LinkedIn Corp., Settlement, c/o Gilardi & Co. LLC [Address], [City], [State] [ZIP Code].
The above description of the Action is general and does not cover all of the issues and proceedings that have occurred. In order to see the complete file for the Action, you should visit the website of the Administrative Office of the U.S. Courts, PACER Service Center, located at http://pacer.psc.uscourts.gov/. You may also visit or call the Clerk's office at the United States District Court for the Northern District of California, San Jose Courthouse,_located at 280 South 1st Street,
You may also contact Class Counsel by calling (XXX) XXX-XXXX.
If, after you submit a claim form, you change your postal or email address, it is your responsibility to inform the Settlement Administrator of your updated information. You may do so either by mail or email at the addresses below:
