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927604.3 Case No. 5:17-cv-00551-LHK-NC

DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT

ALLAN STEYER (Bar No. 100318)

JILL M. MANNING (Bar No. 178849)

D. SCOTT MACRAE (Bar No. 104663)

STEYER LOWENTHAL BOODROOKAS 

 ALVAREZ & SMITH LLP

235 Pine Street, 15th Floor

San Francisco, CA 94104

Telephone: (415) 424-3400

Facsimile: (415) 421-2234

asteyer@steyerlaw.com

jmanning@steyerlaw.com

smacrae@steyerlaw.com

CLIFFORD H. PEARSON (Bar. No. 108523)

DANIEL L. WARSHAW (Bar No. 185365)

THOMAS J. NOLAN (Bar No. 66992)

ALEXANDER L. SIMON (Bar No. 305734)

PEARSON, SIMON & WARSHAW, LLP

15165 Ventura Boulevard, Suite 400

Sherman Oaks, CA 91403

Telephone: (818) 788-8300

Facsimile: (818) 788-8104

cpearson@pswlaw.com

dwarshaw@pswlaw.com

tnolan@pswlaw.com

asimon@pswlaw.com

Counsel for Plaintiffs and 

the Class 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

CHRISTINA GRACE and KEN POTTER 

Individually and on Behalf of All Others 

Similarly Situated,

Plaintiffs,

vs.

APPLE INC.,

Defendant.

CASE NO. 5:17-cv-00551-LHK-NC

CLASS ACTION

DECLARATION OF DANIEL L. 

WARSHAW IN SUPPORT OF MOTION 

FOR PRELIMINARY APPROVAL OF 

CLASS ACTION SETTLEMENT

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 1 of 54
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927604.3 2 Case No. 5:17-cv-00551-LHK-NC

DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT

Daniel L. Warshaw declares:

1. I am an attorney duly admitted to practice before this Court. I am a Partner at 

Pearson, Simon & Warshaw, LLP and appointed co-lead counsel for Plaintiffs and the Class.

2. I am one of the attorneys principally responsible for the handling of this matter (the 

“Action”) and was appointed by the Court as Class Counsel. I am personally familiar with the 

facts set forth in this declaration. If called as a witness I could and would competently testify to 

the matters stated herein.

3. Attached hereto as Exhibit 1 is a true and correct executed copy of the Settlement 

Agreement between Plaintiffs and Apple, Inc. Attached to the Settlement Agreement is the Email 

Notice, Long-Form Notice, Postcard Notice, [Proposed] Order Granting Preliminary of Class 

Action Settlement and Application for Inclusion in the Class, as Exhibits A-E, respectively.

4. On November 9, 2018, the parties attended an all-day mediation session before the 

Honorable William J. Cahill (Ret.), at JAMS in San Francisco. The parties were unable to reach a 

settlement.

5. On October 22, 2019, the parties returned to JAMS for a second mediation before 

Judge Cahill but were again unable to reach agreement on all terms of a settlement.

6. After the second mediation, Judge Cahill engaged in extensive settlement 

discussions with each party but ultimately a settlement was not reached.

7. On December 5, 2019, Magistrate Judge Cousins held an all-day settlement 

conference, but the parties were unable to resolve the Action.

8. After extensive follow-up discussions, the parties attended a second in-person 

settlement conference with Magistrate Judge Cousins on January 16, 2020 that also failed to result 

in a settlement. 

9. Magistrate Judge Cousins continued conferring with the parties and, on January 31, 

2020, made a mediator’s proposal. 

10. On February 6, 2020, Magistrate Judge Cousins informed the parties that both 

parties had accepted the mediator’s proposal.

11. Plaintiffs served 65 Requests for Production, 43 Interrogatories, and 42 Requests 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 2 of 54
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927604.3 3 Case No. 5:17-cv-00551-LHK-NC

DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT

for Admission on Apple.

12. The parties engaged in extensive negotiations over search terms and ESI 

production, resulting in 6 motions to compel, and Apple produced 1,025,596 pages of documents.

13. Plaintiffs took seven depositions of Apple, including two Rule 30(b)(6) depositions, 

and four depositions of non-parties.

14. There were seven depositions of the parties’ five experts. Plaintiffs’ experts, Dr. 

Hastings and Dr. Jones, were deposed twice and once, respectively. Apple’s experts, Ms. Trexler

and Dr. Malhotra were each deposed once, and Dr. Rubin was deposed twice.

15. Apple deposed both Class Representatives.

16. Apple requested and the Court ordered (over Plaintiffs’ objection), forensic 

imaging of the Class Representatives’ three iPhone 4 devices. The Class Representatives 

surrendered their devices for several months into the custody of a neutral third party, who

conducted forensic imaging consistent with the Court’s Order. The neutral third party produced 

extensive data from the Plaintiffs’ devices, including all data and information regarding FaceTime, 

Wi-Fi use, Wi-Fi connection history, and Wi-Fi networks. This production totaled over 370,000 

files from within the Settings, Diagnostics, and Usages tabs, or otherwise related to the phone 

settings in general. Dkt. No. 154.

17. Class Counsel secured satisfactory terms of settlement only after a thorough 

investigation of the factual and legal issues raised in this Action.

18. Drawing upon their considerable experience and expertise, Class Counsel 

negotiated and evaluated the Settlement and ultimately determined that the Settlement provided 

significant and substantive relief to the Class in the face of significant litigation risks.

19. During the pendency of this litigation, Class Counsel, among other things:

• Identified and investigated Apple’s conduct in causing the alleged FaceTime Break, 

which included significant research on the technical aspects on how FaceTime 

worked and was broken, Apple’s representations and conduct related thereto, and 

the merit of potential legal claims related to Apple’s conduct;

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 3 of 54
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927604.3 4 Case No. 5:17-cv-00551-LHK-NC

DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT

• Drafted a complaint and subsequently, in response to Apple’s motion to dismiss, an 

amended complaint;

• Overcame Apple’s second motion to dismiss, which required extensive legal 

research and briefing on complex issues such as Article III standing and the legal 

sufficiency of Plaintiffs’ trespass to chattels and Unfair Competition Law causes of 

action;

• Undertook extensive, hotly contested discovery, which included seeking and 

defending numerous motions to compel, managing the Court-ordered forensic 

imaging of Plaintiffs’ devices by a third-party neutral; preparing for and taking the 

depositions of key fact and 30(b)(6) witnesses; and defending Plaintiffs’ 

depositions;

• Obtained necessary sales data from third parties by subpoena after comprehensive 

negotiations in order to prepare a damages model;

• Retained experts to opine on merits and damages issues, and prepared multiple 

expert reports;

• Deposed Apple’s experts;

• Obtained certification of a California Class, which required in-depth legal research 

and briefing on predominance, choice of law, damages, and other issues related to 

the Class;

• Successfully opposed a potentially dispositive motion for summary judgment;

• Participated in four in-person mediation sessions and numerous follow-up 

discussions, including extensive and prolonged negotiations regarding the terms of 

the Settlement Agreement, notice to the class, and claims administration; and

• Prepared for trial, which included filing and responding to motions in limine,

drafting, negotiating, and filing proposed jury instructions, a verdict form, and voir 

dire, and planning, preparing, and filing exhibit lists and proposed findings of fact 

and law.

20. The Settlement resulted from extensive, arm’s-length negotiations with two 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 4 of 54
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927604.3 5 Case No. 5:17-cv-00551-LHK-NC

DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT

experienced and well-respected jurists and was reached following a mediator’s proposal from a

Magistrate Judge.

21. The Settlement Administrator will establish a Settlement Website and post the 

operative complaint and answer, the Settlement Agreement, the Long-Form Notice, the 

Preliminary Approval Order, Plaintiffs’ Motion for Attorneys’ Fees and Costs, a set of frequently 

asked questions, information on how to object or request exclusion, and contact information of 

Class Counsel and the Settlement Administrator.

22. Class Counsel’s estimated lodestar through February 2020 is $8,398,910. The 

maximum fee that Class Counsel will request, 30% of the Settlement fund, results in a “negative 

multiplier” of 0.64.

23. The two Class Representatives have actively participated in this litigation for more 

than three years, including (i) reviewing the pleadings and responding to discovery requests, (ii) 

surrendering their iPhone devices to a third-party neutral for forensic imaging for a period of 

several months, (iii) preparing for and being deposed, (iv) conferring with Class Counsel during 

mediation and settlement conferences, and (v) regularly consulting with Class Counsel regarding 

the progress of the Action.

24. Based upon the representations made to me by the Plaintiffs, Co-Class Counsel, 

and Apple’s counsel, the parties and their counsel do not have any affiliation with the proposed cy 

pres recipient, the Rose Foundation, which the parties have agreed to use only in the event that cy 

pres is selected pursuant to the Settlement Agreement as a mechanism for disposing of residual 

funds.

25. Epiq Systems, Inc., the proposed settlement administrator, estimates that it will cost 

approximately $1.4 million to administer the Settlement.

/ / /

/ / /

/ / /

/ / /

/ / /

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 5 of 54
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927604.3 6 Case No. 5:17-cv-00551-LHK-NC

DECLARATION OF DANIEL L. WARSHAW IN SUPPORT OF MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT

26. Based upon my experience litigating class actions for over twenty years, in my 

view, the proposed Settlement is fair, reasonable and adequate.

I declare under penalty of perjury under the law of the United State of America that the 

foregoing is true and correct.

Executed on April 27, 2020, at Sherman Oaks, California.

/s/ Daniel L. Warshaw

DANIEL L. WARSHAW

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 6 of 54
EXHIBIT 1 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 7 of 54
1 

SETTLEMENT AGREEMENT AND RELEASE 

This Settlement Agreement and Release (“Settlement” or “Agreement”) is made as 

of April 17, 2020, by and between Christina Grace and Kenneth Potter, Jr. (“Plaintiffs” or 

“Class Representatives”), individually and as representatives of the “Settlement Class” as 

defined below, and Apple Inc. (“Apple,” and together with Plaintiffs, the “Parties”). 

DEFINITIONS 

As used herein, the following terms have the meanings set forth below: 

A. “Action” shall mean the litigation styled Christina Grace and Ken Potter, 

Individually and on behalf of all others similarly situated v. Apple Inc., Case No. 

5:17-cv-00551-LHK-NC, filed in the United States District Court for the Northern 

District of California (the “Court”). 

B. “Apple Counsel” shall mean Apple’s counsel of record in this Action. 

C. “Application for Inclusion in the Class” shall mean the application form that a 

Settlement Class Member must complete to request membership in the Settlement 

Class if they did not receive notice that they are part of the Settlement Class based 

on Apple’s company data, in the form attached hereto as Exhibit E. 

D. “Attorneys’ Fee and Expense Payment” shall mean the amount of attorneys’ fees 

and reimbursement of costs and expenses awarded to Class Counsel by the Court 

from the Settlement Fund. 

E. “Class Counsel” shall mean: 

Jill M. Manning, on behalf of 

Steyer Lowenthal Boodrookas 

Alvarez & Smith LLP 

235 Pine Street, 15th Floor 

San Francisco, CA 94104 

(415) 421-3400 

jmanning@steyerlaw.com 

Daniel L. Warshaw, on behalf of 

Pearson, Simon & Warshaw, LLP 

15165 Ventura Blvd., Suite 400 

Sherman Oaks, CA 91403 

(818) 788-8300 

dwarshaw@pswlaw.com 

David F.E. Tejtel, on behalf of 

Friedman Oster & Tejtel PLLC 

493 Bedford Center Road, Suite 

2D 

Bedford Hills, NY 10507 

(888) 528-1108 

dtejtel@fotpllc.com 

John Austin Curry, on behalf of 

Caldwell Cassady & Curry 

2121 N. Pearl Street, 12th Floor 

Dallas, Texas 75201 

(214) 888-4848 

acurry@caldwellcc.com 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 8 of 54
2 

F. “Class Member” shall mean customers who owned one or more non-Jailbroken 

Apple iPhone 4 or Apple iPhone 4S devices running iOS 6 or an earlier operating 

system as of April 16, 2014, and who were in California on that date. 

G. “Class Payment” shall mean an equal share of the Net Settlement Fund for each 

device falling within the Court’s definition of the Settlement Class. 

H. “Effective Date” means the first day after which all of the following events and 

conditions of this Settlement Agreement have occurred or have been met: (a) the 

Court has entered a Final Approval Order approving the Settlement, and (b) the 

Court has entered judgment that has become final (“Final”) in that the time for 

appeal or writ of certiorari has expired or, if an appeal or writ of certiorari is taken 

and the Settlement is affirmed, the time period during which further petition for 

hearing, appeal, or writ of certiorari can be taken has expired. If the judgment is 

set aside, materially modified, or overturned by the trial court or on appeal, and is 

not fully reinstated on further appeal, the judgment shall not become Final. In the 

event of an appeal or other effort to obtain review, the Parties may agree jointly in 

writing to deem the Effective Date to have occurred; however, there is no obligation 

to agree to advance the Effective Date. 

I. “Email Notice” shall mean the Summary Notice of Class Action Settlement to be 

emailed to Class Members in connection with the Settlement, in the form attached 

hereto as Exhibit A, and as set forth in Section 6.2, below. 

J. “Final Approval Hearing” means the Court hearing where the Plaintiffs will request 

that the Final Approval Order be entered approving this agreement, and where Class 

Counsel will request that the Court approve the Fee, Cost, and Expense Award and 

the Service Awards. The Final Approval Hearing must occur at least 35 days after 

the Objection and Exclusion Deadline, on such date as set by the Court. 

K. “Final Approval Order” means the judgment and order to be entered by the Court 

which approves the Settlement and sets the amounts of the Attorneys’ Fee and 

Expense Payment and the Incentive Awards. 

L. “First Amended Class Action Complaint” means the First Amended Class Action 

Complaint filed in this Action. 

M. “Incentive Award” means the award sought by each Class Representative—and 

subsequently approved by the Court—in consideration for their service during the 

course of the Action. 

N. A “Jailbroken” iPhone is one where the user has intentionally removed 

programmed limitations in order to modify the iPhone device’s functionality, run 

unauthorized applications, or otherwise change the iPhone device’s performance. 

O. “Long-form Notice” means the long-form Notice of Class Action Settlement in the 

form attached hereto as Exhibit B, which will be available to Class Members on the 

Settlement Website or from the Settlement Administrator. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 9 of 54
3 

P. “Net Settlement Fund” means the Settlement Fund, reduced by the sum of the 

following amounts: (1) the costs of notice and the costs of administering the 

settlement, as set forth in Section 6.4 below; and (2) any Attorneys’ Fee and 

Expense Payment to Class Counsel, and any Incentive Award to the Class 

Representatives, as set forth in Sections 7.1 and 7.2 below. 

Q. “Notice Date” shall mean the date set forth in the Preliminary Approval Order for 

commencing the transmission of the Email Notice. 

R. “Objection” means the written notice that a Settlement Class Member may submit 

to the Court in order to object to the Settlement. 

S. “Objection and Exclusion Deadline” means the date by which a Settlement Class 

Member must submit an Objection to this Agreement to the Court or an Opt-Out 

Form to the Settlement Administrator. The Objection and Exclusion Deadline shall 

be 60 days after the Notice Date. 

T. “Objector” means a person or entity who submits an Objection. 

U. “Postcard Notice” means the Summary Notice of Class Action Settlement in the 

form of the postcard attached hereto as Exhibit C, to be mailed in accordance with 

Section 6.2.4 below. 

V. “Preliminary Approval Order” means the Court’s order preliminarily approving the 

settlement and providing for notice to the Settlement Class. 

W. “Request for Exclusion” means that a Class Member can be excluded from the 

Settlement by submitting a written request to the Settlement Administrator 

containing their name, address, email address and if available, the serial number of 

the iPhone 4 or iPhone 4S. 

X. “Released Persons” shall mean Apple and each of its past or present directors, 

officers, employees, agents, insurers, shareholders, attorneys, advisors, consultants, 

representatives, partners, affiliates, parents, subsidiaries, joint venturers, 

independent contractors, wholesalers, resellers, distributors, retailers, related 

companies, and divisions, and each of their predecessors, successors, heirs, and 

assigns. 

Y. “Releasing Persons” shall mean Plaintiffs and all Settlement Class Members, 

including any and all of their respective heirs, executors, administrators, or assigns. 

Z. “Settlement” or “Settlement Agreement” shall mean this agreement and the 

settlement and release described herein. 

AA. “Settlement Administrator” shall mean Epiq Systems, Inc. an independent 

settlement administrator. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 10 of 54
4 

BB. “Settlement Class” or “Settlement Class Member” means all Class Members other 

than those excluded as defined below. The Settlement Class excludes Apple; any 

entity in which Apple has a controlling interest; Apple’s directors, officers, and 

employees; Apple’s legal representatives, successors, and assigns; and all persons 

who validly request exclusion from the Settlement Class. 

CC. “Settlement Fund” means a non-reversionary cash fund total of $18,000,000.00 to 

be paid by Apple in accordance with the terms of this Settlement Agreement. 

DD. “Settlement Website” means a publicly accessible website created and maintained 

by the Settlement Administrator for the purpose of providing the Settlement Class 

with notice of and information about the proposed Settlement as well as submission 

of Applications for Inclusion in the Class and address verification. 

RECITALS 

This Agreement is made for the following purposes and with reference to the 

following facts: 

WHEREAS, on April 16, 2014, a certificate used for certain security features in 

Apple’s iPhone devices expired. As a consequence, iPhone 4 and iPhone 4S users who 

were running the iOS 6 operating system, or an earlier operating system version, were no 

longer able to use the FaceTime video calling functionality unless they updated their 

device’s software to the then-current version of the iOS 7 operating system (the alleged 

“FaceTime Break”). 

WHEREAS, on February 2, 2017, plaintiff Grace filed the first complaint in the 

Action. An Amended Complaint was filed on April 5, 2017 on behalf of both Plaintiffs. 

The Action alleged claims for trespass to chattels and violation of California’s Unfair 

Competition Law by Apple related to the April 16, 2014 alleged “FaceTime Break.” 

Plaintiffs alleged that updating their iPhone 4 and iPhone 4S devices’ operating system to 

iOS 7 to restore FaceTime functionality had detrimental effects on the performance of those 

devices, leaving them with the choice of remaining without FaceTime functionality, 

restoring it at the cost of device performance, or purchasing a new device. 

WHEREAS, the Court certified a plaintiff class consisting of “All owners of nonJailbroken Apple iPhone 4 or Apple iPhone 4S devices in California who on April 16, 

2014, had iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices.” 

WHEREAS, the Parties have investigated the facts and have analyzed the relevant 

legal issues regarding the claims and defenses asserted in this Action, including through 

significant motion practice and extensive fact and expert discovery. The Parties also 

conducted two mediations before the Hon. William Cahill (Ret.), on November 9, 2018 

and October 22, 2019, and further settlement conferences before the Hon. Nathanael 

Cousins on December 5, 2019 and January 16, 2020. 

WHEREAS, Class Counsel and the Class Representatives believe that the claims 

asserted in the Action have merit and have examined and considered the benefits to be 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 11 of 54
5 

obtained under this Settlement, the risks associated with the continued prosecution of this 

complex and potentially time-consuming litigation, and the likelihood of ultimate success 

on the merits, and have concluded that the Settlement is fair, adequate, reasonable and in 

the best interests of the Class Members. 

WHEREAS, Apple has at all times denied and continues to deny any and all alleged 

wrongdoing or liability. Specifically, Apple denies that it has committed any trespass to 

chattels, and that its conduct with respect to FaceTime on iPhone 4 and iPhone 4S devices, 

or with respect to the certificate that expired on April 16, 2014, violated the Unfair 

Competition Law or any other law. Even so, taking into account the uncertainty and risks 

inherent in litigating this case through trial, Apple has concluded that continuing to defend 

this Action would be burdensome and expensive. 

WHEREAS, the Parties desire to settle the Action in its entirety as to the Plaintiffs, 

the Settlement Class, and Apple with respect to all claims arising out of the facts underlying 

this Action. The Parties intend this Agreement to bind Plaintiffs (both as the Class 

Representatives and individually), Apple, Class Counsel, and all members of the 

Settlement Class as defined herein. 

WHEREAS, Plaintiffs alleged a nationwide class in the Complaint and the First 

Amended Class Action Complaint and moved to certify a nationwide class in their motion 

for class certification. However, the court certified a California class only. 

*WHEREAS, Class Counsel represent that they do not represent anyone other than 

plaintiffs Grace and Potter with claims against Apple regarding the FaceTime Break as 

alleged in the First Amended Class Action Complaint. 

*WHEREAS, Class Counsel represent that they do not have an interest in any other 

litigation against Apple regarding the “FaceTime Break” as alleged in the First Amended 

Class Action Complaint; and 

*WHEREAS, following extensive research, analysis and discussion, Class Counsel 

in this case believe that the statutes of limitations governing the timely filing of claims 

relating to FaceTime ceasing to function on April 16, 2014, have expired in many states, 

including but not limited to Texas, New York, Pennsylvania, Ohio, Georgia, North 

Carolina, Michigan, Arizona, Indiana, Maryland, Tennessee, and Virginia, and possibly 

Illinois, Arkansas, Iowa, and Nebraska. Class Counsel does not intend for the preceding 

statement to abridge the rights of consumers in any state(s). 

In light of the foregoing, for good and valuable consideration, the Parties, and each 

of them, hereby warrant, represent, acknowledge, covenant, and agree, subject to approval 

by the Court, as follows: 

1. CONFIDENTIALITY 

1.1 *Other than to a court in any case filing, the Parties, Class Counsel, and Apple 

Counsel agree that the terms of this Settlement Agreement and all associated 

documents, including the negotiations leading to the execution of the Settlement 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 12 of 54
6 

Agreement and the Settlement Agreement itself, shall not be disclosed. This 

prohibition includes, but is not limited to, initiating publicity regarding the 

settlement, publications on any website of the amount of the settlement (with or 

without identifying information), and the submission of information to Jury 

Verdicts. The Parties intend this paragraph to prohibit the Parties, Class Counsel 

and Apple Counsel from discussing, answering questions about, promoting or 

publicizing the Settlement Agreement or its terms, or the negotiations leading to 

the Settlement Agreement, with anyone other than the Court, Class Members, or 

those individuals necessary to effectuate the terms of the Settlement Agreement. 

Furthermore, neither Apple, the named Plaintiffs, nor their counsel shall post about 

or discuss the Action or the settlement online or on social media. Notwithstanding 

the foregoing: 

1) The Parties may respond to inquiries from the press and tell the public in 

general only that this Action “has been resolved between the parties” and 

refer to the Settlement Website. 

2) The Parties may disclose the terms of the Settlement Agreement: 

a. Where required by law (e.g., income tax returns); and 

b. To accountants or other tax professionals for the purpose of 

preparing tax forms. 

3) Class Counsel may list the Action on their law firm websites and publicity 

materials as a representative case along with a neutral and factual 

description of the subject matter of the Action agreed to by the Parties. 

1.2 *The Parties will continue to comply with the Stipulated Protective Order in this 

Action, including paragraph 13 governing the return or destruction of any material 

produced under the Protective Order, and the certification that all Protected 

Material was returned or destroyed. 

1.3 *It is expressly understood that Sections 1.1–1.2 set forth a substantial and material 

provision of the Agreement and an intentional breach of these sections will support 

a cause of action for breach of contract and will entitle the aggrieved parties to 

recover damages flowing from such breach specifically, including, but not limited 

to, damages in the sum of $25,000.00. It is expressly agreed that the non-exclusive 

damages set forth in this paragraph in the event of a breach are not a penalty but 

are fair and reasonable in light of the difficulty of proving prejudice to the Parties 

in the event of such a breach.

2. CONSIDERATION FOR SETTLEMENT AND CLASS PAYMENTS 

2.1 Settlement Fund. Apple’s total financial commitment under this Agreement shall 

be $18,000,000.00. Within 60 days after the Effective Date, Apple shall transfer 

$18,000,000.00 into an account established by the Settlement Administrator for the 

Settlement Fund. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 13 of 54
7 

2.2 The Settlement Administrator shall agree to hold the Settlement Fund in an interestbearing account and administer the Settlement Fund, subject to the continuing 

jurisdiction of the Court and from the earliest possible date, as a qualified settlement 

fund as defined in Treasury Regulation § 1.468B-1 et seq. Any taxes owed by the 

Settlement Fund shall be paid by the Settlement Administrator out of the Settlement 

Fund. The interest earned in the aforementioned account shall be added to the 

Settlement Fund. 

2.3 Disposition of the Settlement Fund. The Settlement Fund shall be applied as 

follows: 

(1) to pay the costs of notice and the costs of administering the Settlement, as 

set forth in Section 6.4 below; 

(2) to pay any approved Attorneys’ Fee and Expense Payment to Class Counsel, 

and any Incentive Award to the Class Representatives, as set forth in Section 

7.1 and 7.2 below; and 

(3) to distribute the Net Settlement Fund to Settlement Class Members as set 

forth in Section 2.4 below.

2.4 Settlement Class Members who meet the criteria set forth below in this Section 2.4 

according to Apple company records shall receive one Class Payment for each 

qualifying iPhone 4 or iPhone 4S: 

All owners of non-jailbroken Apple iPhone 4 or Apple 

iPhone 4S devices who on April 16, 2014, had iOS 6 or 

earlier operating systems on their iPhone 4 or iPhone 4S 

devices, and who were in California at that time. 

An otherwise-qualifying iPhone 4 and iPhone 4S device shall be presumed to be 

non-jailbroken unless it can be determined from existing records that it has been 

jailbroken. If an individual was not identified as a Settlement Class Member 

according to Apple’s company records and did not receive Email Notice or Postcard 

Notice, they may apply to become a Settlement Class Member via submission of a 

verified Application for Inclusion in the Class under Section 6.3 below. The 

amount of the Class Payment shall be calculated no later than 30 days after the 

expiration of the time for the Settlement Administrator to complete review of any 

disputed Applications for Inclusion in the Class under Section 6.3 below. The Class 

Payment shall be calculated based on the total number of people identified as 

Settlement Class Members from Apple’s company records and the number of 

people who submitted approved Applications for Inclusion in the Class. 

2.5 Payment Process. Within 90 days of the Effective Date, the Settlement 

Administrator, subject to such supervision and direction of the Court and the Parties 

as may be necessary or as circumstances may require, shall distribute the Class 

Payments to Settlement Class Members. The Settlement Administrator shall 

distribute the Class Payments by issuing and emailing a digital check to the 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 14 of 54
8 

Settlement Class Members’ email address as contained in Apple’s company records 

or set forth on the Settlement Class Member’s approved Application for Inclusion 

in the Class. If Apple’s company records do not contain a valid email address for 

the Settlement Class Member, and if the Settlement Class Member did not provide 

one using the Settlement Website or Application for Inclusion in the Class, the 

Settlement Administrator shall instead mail a physical check to the Settlement Class 

Members’ mailing address as contained in Apple’s company records or set forth on 

the Settlement Class Member’s approved Application for Inclusion in the Class. 

The Class Payments shall state that they must be cashed or redeemed within 90 

days of the date such Class Payments are emailed or mailed or the checks become 

void. 

2.6 To the extent economically feasible, the Settlement Administrator shall follow up 

and communicate with Settlement Class Members who have not cashed their Class 

Payment checks within 60 days of the checks being mailed or emailed. 

2.7 Following distribution of the Settlement Fund as set forth above, if checks 

attributable to Settlement Class Members remain uncashed after 210 days after the 

Class Payment is mailed or emailed pursuant to Section 2.5 above, the funds 

attributable to those individuals shall be used to pay any unanticipated additional 

costs of settlement administration as set forth in Section 6.4 below. If necessary, 

the Parties shall thereafter confer on the distribution of any remaining unclaimed 

funds with resolution subject to Court approval. If the Parties cannot reach a 

resolution, they shall brief the matter of what to do with any remaining unclaimed 

funds for the Court’s decision. Under no circumstances will settlement funds revert 

to Apple.

2.8 In the event that a determination is made pursuant to Section 2.7 above to pay 

unclaimed funds to a cy pres recipient, the Parties agree to engage the Rose 

Foundation, located at 201 4th Street, Suite 102, Oakland, California 94607, for 

purposes of managing the distribution of any cy pres funds and the selection of an 

appropriate cy pres recipient(s) whose work is closely related to the issues raised 

by this Action and/or furthers the objectives of this Settlement Agreement. The 

Parties further agree, subject to Court approval, that any fees charged by the Rose 

Foundation will be paid exclusively from the Settlement Fund. 

3. OBTAINING COURT APPROVAL OF THE AGREEMENT 

3.1 *Preliminary Approval. The Parties agree to recommend approval of the 

Settlement to the Court as fair and reasonable and to undertake their best efforts to 

obtain such approval. Further, the Parties may not oppose any application for 

appellate review by one of the Parties in the event the Court denies preliminary or 

final approval. The Parties therefore agree that Plaintiffs shall submit this 

Agreement, together with its exhibits, to the Court and shall apply for entry of a 

Preliminary Approval Order in the form attached as Exhibit D hereto. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 15 of 54
9 

3.2 *Class Counsel shall draft the motion requesting issuance of the Preliminary 

Approval Order and has provided that draft to Apple Counsel of record in the 

Action. The motion shall be written in a neutral manner that does not contain 

inflammatory language about the Parties or their perceived conduct in the Action. 

Apple may provide feedback concerning the motion and Class Counsel will meet 

and confer with Apple in good faith regarding Apple’s feedback. 

3.3 Upon filing of the motion requesting issuance of the Preliminary Approval Order, 

Apple shall provide timely notice of such motion as required by the Class Action 

Fairness Act, 28 U.S.C. § 1711 et seq. 

3.4 *Final Approval and Judgment. In accordance with the schedule set in the 

Preliminary Approval Order, Class Counsel shall draft the motion requesting final 

approval of the Settlement, the Proposed Final Approval Order and the Proposed 

Final Judgment, and shall provide those drafts to Apple Counsel at least ten days 

before filing such motion with the Court. Apple may provide feedback concerning 

the motion and Class Counsel will meet and confer with Apple in good faith 

regarding Apple’s feedback. 

3.5 In the event that the Settlement Agreement is not approved, or in the event its 

approval is conditioned on any modifications (including modifications to the 

proposed form and method of notice) that are not acceptable to Apple, then (a) this 

Settlement Agreement shall be null and void and of no force and effect, (b) any 

payments of the Settlement Fund and any and all interest earned thereon less monies 

expended toward settlement administration, shall be returned to Apple within 10 

business days from the date the Settlement Agreement becomes null and void, and 

(c) any release shall be of no force or effect. In such event, the Action will revert 

to the status that existed before the Settlement Agreement’s execution date, the 

Parties shall each be returned to their respective procedural postures so that the 

Parties may take such litigation steps that they otherwise would have been able to 

take absent the pendency of this Settlement, and neither the Settlement Agreement 

nor any facts concerning its negotiation, discussion, terms or documentation shall 

be admissible in evidence for any purpose in this Action or in any other litigation. 

4. OBJECTIONS 

4.1 Objections. Any Settlement Class Member who has not submitted a timely written 

Request for Exclusion and who wishes to object to the fairness, reasonableness, or 

adequacy of the Settlement, the Attorneys’ Fee and Expense Award, or the 

Incentive Awards must comply with the following requirements. 

4.2 Content of Objections. All Objections and supporting papers must be in writing 

and must: 

(1) Clearly identify the case name and number, Grace et al. v. Apple Inc., Case 

No. 5:17-cv-00551-LHK-NC; 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 16 of 54
10 

(2) Include the full name, address, telephone number, and email address of the 

person objecting; 

(3) Include the full name, address, telephone number, and email address of the 

Objector’s counsel (if the Objector is represented by counsel); and 

(4) State whether the objection applies only to the objector, to a specific subset 

of the class, or to the entire class, and the grounds for the objection.

4.3 Submission of Objections. Any Objections from Settlement Class Members 

regarding the proposed Settlement Agreement must be submitted in writing to the 

Court. If a Settlement Class Member does not submit a timely written Objection, 

the Settlement Class Member will not be able to participate in the Final Fairness 

Hearing. 

4.4 Deadline for Objections. Objections must be submitted by the Objection and 

Exclusion Deadline, which is 60 days after the Notice Date. 

4.4.1 If submitted through ECF, Objections must be submitted on this date by 

11:59 p.m. PST. 

4.4.2 If submitted by U.S. mail or other mail services, Objections must be 

postmarked by the Objection and Exclusion Deadline. The date of the 

postmark on the envelope containing the written statement objecting to the 

Settlement shall be the exclusive means used to determine whether an 

Objection and/or intention to appear has been timely submitted. In the event 

a postmark is illegible or unavailable, the date of mailing shall be deemed 

to be three days prior to the date that the Court scans the Objection into the 

electronic case docket. 

4.4.3 Settlement Class Members who fail to submit timely written Objections in 

the manner specified above shall be deemed to have waived any objections 

and shall be foreclosed from making any objection to the Agreement and 

the proposed Settlement by appearing at the Final Fairness Hearing, or 

through appeal, collateral attack, or otherwise.

4.5 Attendance at Final Approval Hearing. Any Objector who timely submits an 

Objection has the option to appear and request to be heard at the Final Approval 

Hearing, either in person or through the Objector’s counsel. Any Objector wishing 

to appear and be heard at the Final Approval Hearing must include a Notice of 

Intention to Appear in the body of the Objector’s Objection. 

4.6 Objectors’ Attorneys’ Fees and Costs. If an Objector makes an Objection through 

an attorney, the Objector shall be solely responsible for the Objector’s attorneys’ 

fees and costs. 

4.7 *No Solicitation of Settlement Objections. At no time shall any of the Parties or 

their counsel seek to solicit or otherwise encourage Class Members to submit 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 17 of 54
11 

written Objections to the Settlement or encourage an appeal from the Court’s Final 

Approval Order. 

5. EXCLUSIONS 

5.1 Requests for Exclusion. The Notice shall advise all Settlement Class Members of 

their right to exclude themselves from the Settlement. This Settlement Agreement 

will not bind Class Members who exclude themselves from the Settlement. 

5.2 How to Request Exclusion. To request to be excluded from the Settlement, 

Settlement Class Members must timely submit a written Request for Exclusion. 

The Request for Exclusion must be sent by postal mail to the Settlement 

Administrator. 

5.3 Deadline to Request Exclusion. To be excluded from the Settlement, the completed 

Exclusion Form must be received by the Objection and Exclusion Deadline, which 

is 60 days after the Notice Date. The Settlement Class Member must pay for 

Postage.

5.4 Effect of Exclusion. Any person or entity who falls within the definition of the 

Settlement Class and who validly and timely requests exclusion from the 

Settlement shall not be a Settlement Class Member; shall not be bound by the 

Settlement Agreement; shall not be eligible to apply for any benefit under the terms 

of the Settlement Agreement; and shall not be entitled to submit an Objection to the 

Settlement. 

5.5 Exclusion List. No later than 14 days after the Objection and Exclusion Deadline, 

the Settlement Administrator shall provide Class Counsel and Apple Counsel with 

the number of persons and entities who have timely and validly excluded 

themselves from the Settlement. 

6. SETTLEMENT ADMINISTRATION 

6.1 Apple will provide to the Settlement Administrator (but not to Class Counsel) the 

names, addresses, email addresses, and iPhone 4 and iPhone 4S serial numbers for 

all Class Members with respect to whom it has records. The Settlement 

Administrator shall administer the notice described herein and pursuant to the 

Preliminary Approval Order. The Settlement Administrator shall keep the Class 

Member identities and contact information strictly confidential and shall only use 

them for purposes of administrating this Settlement. 

6.2 The Parties agree upon and will request the Court’s approval of the following forms 

and methods of notice to the Settlement Class: 

6.2.1 The Settlement Administrator shall establish and maintain the Settlement 

Website, www.graceclassaction.com. The Settlement Website shall be 

optimized for viewing on both mobile devices and personal computers. The 

Settlement Website will include the operative complaint and answer to that 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 18 of 54
12 

complaint, this Agreement, the Long-form Notice, the Preliminary 

Approval Order, Plaintiffs’ Motion for Attorneys’ Fees and Costs, a set of 

frequently asked questions, information on how to object or request 

exclusion, and contact information for Class Counsel and the Settlement 

Administrator. The Settlement Website will also include a means for Class 

Members to electronically submit an Application for Inclusion in the Class. 

6.2.2 The Settlement Administrator shall set up a toll-free telephone number (the 

“Toll-Free Number”) through which Class Members can receive 

instructions for accessing settlement information and case documents. 

6.2.3 The Settlement Administrator shall email to each Class Member for whom 

Apple has an email address a copy of the Email Notice substantially in the 

form attached hereto as Exhibit A. The Email Notice shall inform Class 

Members of the fact of the settlement and that settlement information is 

available on the Settlement Website or by calling the Toll-Free Number. 

6.2.4 For Class Members for whom the above Email Notice is returned as 

undeliverable and for Class Members for whom there is not a valid email 

address on file, the Settlement Administrator shall mail to each Class 

Member for whom a mailing address can be located the Postcard Notice in 

the form attached hereto as Exhibit C, informing Class Members of the fact 

of the settlement and that settlement information is available on the 

Settlement Website or by calling the Toll-Free Number. All Postcard 

Notices returned by the U.S. Postal Service with a forwarding address will 

be re-mailed to the new address. 

6.3 The Settlement Website shall include an Application for Inclusion in the Class that 

may be submitted by individuals who believe themselves to be Settlement Class 

Members but who have not received email or mail notice. The deadline to submit 

an Application for Inclusion in the Class shall be 60 days after Notice Date and 

shall be clearly stated on the Settlement Website. Individuals submitting the form 

(“Applicants”) shall provide their name, address, email address, and serial number 

of the iPhone 4 or iPhone 4S for which they believe they are entitled to a Class 

Payment and shall state under penalty of perjury that they believe they meet the 

Settlement Class criteria. The Settlement Administrator shall use its best efforts in 

consultation with Apple to confirm whether the Applicant is a Settlement Class 

Member. If the Applicant is confirmed to be a Settlement Class Member, they shall 

be added to the Settlement Class and shall be entitled to a Class Payment under 

Section 2.4. The decision of the Settlement Administrator shall be final as to the 

determination of the Claimant’s recovery, if any, for any iPhone 4 or iPhone 4S. 

The Settlement Administrator shall make best efforts to confirm or reject all 

Applications for Inclusion in the Class within 90 days of the Notice Date. 

6.4 The Settlement Administrator has agreed to perform all settlement administration 

duties required by the Settlement Agreement at a cost not to exceed $1,406,119. 

The Settlement Administrator shall withdraw that amount from the Settlement Fund 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 19 of 54
13 

to cover all costs and expenses related to the settlement administration functions to 

be performed by the Settlement Administrator, including the notice and claims 

administration process. In the event that unanticipated costs and expenses arise in 

connection with the notice and/or claims administration process, such that they 

exceed the capped amount of $1,406,119, the Settlement Administrator shall 

promptly raise the matter with Apple Counsel and Class Counsel no later than 90 

days after the first checks are mailed under Section 2.5. If both Apple and Class 

Counsel, acting in good faith, agree that unanticipated costs and expenses justify 

an increase to the amount payable to the Settlement Administrator in excess the 

agreed-upon cap, then the amount in excess of the capped amount shall be paid for 

exclusively out of the Settlement Fund by way of any funds represented by checks 

that remain uncashed after 210 days, as contemplated under Section 2.7. Apple 

shall under no circumstances be responsible for any costs of settlement 

administration in excess of its contribution to the Settlement Fund under Section 

2.1. 

6.5 The Email Notice, Postcard Notice, and the Long-form Notice shall provide 

information on the procedure by which Class Members may exclude themselves 

from the Settlement Class, or object to the Settlement. 

6.6 No later than 75 days after the Notice Date, the Settlement Administrator shall give 

written notice to Apple and to Class Counsel of the total number of Class Members 

who have elected to exclude themselves from the Settlement Class. If the number 

of Class Members who elect to exclude themselves from the Settlement Class 

exceeds the threshold agreed to by the Parties and confidentially submitted to the 

Court with the Preliminary Approval Motion, Apple, in its sole discretion, may 

elect to reject this Settlement, in which case the entire Settlement Agreement shall 

be null and void. Alternatively, Apple may elect to waive this condition and 

proceed with the Settlement. Any such waiver by Apple must be unambiguous and 

in writing. 

7. CLASS COUNSEL FEES AND EXPENSES, AND INCENTIVE AWARDS 

7.1 *Class Counsel may apply for attorneys’ fees not to exceed 30% of the total 

Settlement Fund and verified expenses not to exceed $1,100,000. Apple, while 

recognizing that the Settlement may entitle Class Counsel to seek reasonable fees 

and expenses, reserves the right to object to and oppose Class Counsel’s requests 

for Attorneys’ Fees and Expenses. The Settlement Administrator shall pay Class 

Counsel any Court-approved Attorneys’ Fees and Expenses award no later than 90 

days after the Effective Date. Class Counsel shall provide Apple with the W-9 

forms for the firms to receive the Attorneys’ Fee and Expense Payment no later 

than 60 days after the Effective Date. 

7.2 *Class Counsel may also apply for an Incentive Award of no more than $7,500 per 

Class Representative. The Incentive Award is not a measure of damages 

whatsoever but is solely an award for the Class Representatives’ service. Apple, 

while recognizing that the Settlement may entitle Class Counsel to seek reasonable 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 20 of 54
14 

incentive awards for the class representatives, reserves the right to object to and 

oppose Class Counsel’s requests for incentive awards. For tax purposes, the 

Incentive Award will be treated as 100% non-wage claim payment. Class Counsel 

shall provide a Form W-9 for each Plaintiff receiving an Incentive Award within 

60 days after the Effective Date. The Settlement Administrator shall issue an IRS 

Form Misc.-1099 for the Incentive Award payment to Plaintiff. The Settlement 

Administrator shall wire the Incentive Awards to accounts specified by Class 

Counsel no later than 90 days after the Effective Date. 

7.3 *Apple shall not be liable for any additional fees or expenses of Plaintiff or any 

Settlement Class Member in connection with the Action. Class Counsel agree that 

they will not seek any additional fees or costs from Apple in connection with the 

Action or the settlement of the Action beyond the approved Attorneys’ Fees and 

Expenses Award. Apple expressly agrees that it will not seek to recover its Court 

costs, attorneys’ fees, or expenses once the Court enters a dismissal of the Action. 

8. RELEASES AND WARRANTIES 

8.1 As of the Effective Date, each Settlement Class Member releases and forever 

discharges and covenants not to sue, and is permanently enjoined from suing, 

Apple, its past or present parents, subsidiaries, divisions, affiliates, stockholders, 

officers, directors, insurers, employees, agents, attorneys, and any of their legal 

representatives (and the predecessors, heirs, executors, administrators, successors, 

purchasers and assigns of each of the foregoing) from all claims, whether federal 

or state, known or unknown, asserted or unasserted, regardless of legal theory, 

arising from or related to the facts underlying the Action (the “Released Claims”). 

8.2 Each Settlement Class Member expressly agrees that, upon the Effective Date, he, 

she, or it waives and forever releases any and all provisions, rights and benefits 

with respect to the Released Claims conferred by Section 1542 of the California 

Civil Code and any law of any state or territory of the United States, or principle of 

common law, which is similar, comparable or equivalent to Section 1542 of the 

California Civil Code. Section 1542 of the California Civil Code reads: 

A general release does not extend to claims that the creditor or 

releasing party does not know or suspect to exist in his or her favor 

at the time of executing the release and that, if known by him or her, 

would have materially affected his or her settlement with the debtor 

or released party. 

8.3 The amount of the Class Payment pursuant to this Agreement shall be deemed final 

and conclusive against all Settlement Class Members who shall be bound by all of

the terms of this Agreement and the Settlement, including the terms of the Judgment 

to be entered in the Action and the releases provided for herein. 

8.4 All proceedings with respect to the administration and Class Payments to 

Settlement Class Members under this Settlement and the determination of all 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 21 of 54
15 

controversies relating thereto, including disputed questions of law and fact with 

respect to the amount of such Class Payment, shall not in any event delay or affect 

the finality of the judgment entered with the Final Approval Order. 

8.5 No person shall have any claim of any kind against the Parties or their counsel or 

the Settlement Administrator with respect to the matters set forth in part 6 hereof, 

or based on determinations or distributions made substantially in accordance with 

this Agreement, the Final Approval Order, the final judgment, or further order(s) 

of the Court. 

9. APPLE’S DENIAL OF LIABILITY; AGREEMENT AS DEFENSE IN 

FUTURE PROCEEDINGS 

9.1 Apple has indicated its intent to vigorously contest each and every claim in the 

Action and continues to vigorously deny all of the material allegations in the 

Action. Apple enters into this Agreement without in any way acknowledging any 

fault, liability, or wrongdoing of any kind. Apple nonetheless has concluded that it 

is in its best interests that the Action be settled on the terms and conditions set forth 

herein in light of the expense that would be necessary to defend the Action, the 

benefits of disposing of protracted and complex litigation, and the desire of Apple 

to conduct its business unhampered by the distractions of continued litigation. 

9.2 Neither this Agreement, nor any of its terms or provisions, nor any of the 

negotiations or proceedings connected with it, shall be construed as an admission 

or concession by Apple of the truth of any of the allegations in this Action, or of 

any liability, fault, or wrongdoing of any kind, nor as an admission or concession 

by Plaintiffs of any lack of merit of their claims against Apple. 

9.3 To the extent permitted by law, neither this Agreement, nor any of its terms or 

provisions, nor any of the negotiations or proceedings connected with it, shall be 

offered as evidence or received in evidence in any pending or future civil, criminal, 

or administrative action or proceeding to establish any liability or admission by 

Apple. 

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

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

action, suit, or other proceeding which may be instituted, prosecuted, or attempted 

for the Released Claims.

10. MISCELLANEOUS 

10.1 *Extensions of Time. All time periods and dates described in this Settlement 

Agreement are subject to the Court’s Approval. Unless otherwise ordered by the 

Court, the Parties through their counsel may jointly agree to reasonable extensions 

of time to carry out any of the provisions of this Agreement. These time periods 

and dates may be changed by the Court or the Parties’ counsel’s written consent 

without notice to the Class Members. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 22 of 54
16 

10.2 *Integration. This Agreement, including all exhibits, constitutes a single, 

integrated written contract expressing the entire agreement of the Parties relative to 

the subject matter hereof. No covenants, agreements, representations, or warranties 

of any kind whatsoever have been made by any Party hereto, except as provided 

for herein. 

10.3 *Governing Law. This Agreement shall be construed in accordance with, and be 

governed by, the laws of the State of California, without regard to the principles 

thereof regarding choice of law. 

10.4 *Gender and Plurals. As used in this Agreement, the masculine, feminine, or neuter 

gender, and the singular or plural number, shall each be deemed to include the 

others whenever the context so indicates. 

10.5 *Survival of Warranties and Representations. The warranties and representations 

of this Agreement are deemed to survive the date of execution hereof. 

10.6 *Representative Capacity. Each person executing this Agreement in a 

representative capacity represents and warrants that he or she is empowered to do 

so. 

10.7 *Counterparts. This Agreement may be executed in any number of counterparts, 

each of which shall be deemed an original, but all of which together shall constitute 

one and the same instrument, even though all Parties do not sign the same 

counterparts. 

10.8 *Cooperation of Parties. The Parties to this Agreement and their counsel agree to 

prepare and execute all documents, to seek Court approvals, to defend Court 

approvals, and to do all things reasonably necessary to complete the Settlement. 

10.9 *Execution Voluntary. This Agreement is executed voluntarily by each of the 

Parties without any duress or undue influence on the part, or on behalf, of any of 

them. The Parties represent and warrant to each other that they have read and fully 

understand the provisions of this Agreement and have relied on the advice and 

representation of legal counsel of their own choosing. Each of the Parties has 

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

by counsel regarding the terms, effects, and consequences of this Agreement. 

Accordingly, in any construction or interpretation to be made of this Agreement, 

this Agreement shall not be construed as having been drafted solely by any one or 

more of the Parties or their counsel. The Settlement Agreement has been, and must 

be construed to have been, drafted by all Parties and their counsel, so that any rule 

that construes ambiguities against the drafter will have no force or effect. 

10.10 *Notices. 

10.10.1 All Notices to Class Counsel provided for herein shall be sent by 

email and a hard copy sent by overnight mail to: Class Counsel as 

identified in Definition E. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 23 of 54
17 

10.10.2 All Notices to Apple provided for herein shall be sent by email and 

a hard copy sent by overnight mail to: Joshua H. Lerner, Gibson, 

Dunn & Crutcher LLP, 555 Mission Street, Suite 3000, San 

Francisco, CA 94105-0921, jlerner@gibsondunn.com. 

10.10.3 The notice recipients and addresses designated above may be 

changed by written notice pursuant to this Section.

10.11 *Modification and Amendment. This Agreement may be amended or modified 

only by a written instrument signed by the Parties’ counsel and approved by the 

Court. 

10.12 *Any and all disputes arising from or related to the Settlement or this Agreement 

must be brought by Parties, Class Counsel, Apple Counsel and/or each member of 

the Settlement Class, exclusively in this Court. The Parties, Class Counsel, Apple 

Counsel and each member of the Settlement Class hereby irrevocably submit to the 

exclusive and continuing jurisdiction of the Court for any suit, action, proceeding 

or dispute arising out of or relating to the Settlement or this Agreement. 

[Signatures on next page] 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 24 of 54
18

The Parties have agreed to the terms of this Settlement Agreement and have signed 

below. 

Dated: April 17, 2020 CHRISTINA GRACE 

Christina Grace 

Christina Grace (Apr 20, 2020)

Christina Grace 

Plaintiff and Class Representative 

Dated: April 17, 2020 KENNETH POTTER, JR. 

Kenneth Potter Jr. (Apr 20, 2020)

Kenneth Potter, Jr. 

Plaintiff and Class Representative 

Dated: April 17, 2020 APPLE INC. 

Noreen Krall 

Vice President, Chief Litigation Counsel 

Defendant Apple Inc. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 25 of 54
19

Class Counsel, on behalf of their respective firms, and Apple Counsel agree that 

the terms of this Settlement Agreement marked with an asterisk (*) operate to bind Class 

Counsel and Apple Counsel, and agree that as to the remainder of the Settlement 

Agreement, Class Counsel and Apple Counsel approve as to form and content. 

Dated: April 17, 2020 STEYER LOWENTHAL 

BOODROOKAS ALVAREZ & 

SMITH LLP 

Jill M. Manning 

Jill M. Manning (Apr 20, 2020)

Jill M. Manning 

Jill M. Manning 

STEYER LOWENTHAL 

BOODROOKAS ALVAREZ & SMITH 

LLP 

235 Pine Street, 15th Floor 

San Francisco, CA 94104 

(415) 421-3400 

jmanning@steyerlaw.com 

Class Counsel 

Dated: April 17, 2020 PEARSON, SIMON & WARSHAW, 

LLP 

Daniel Warshaw 

Daniel Warshaw (Apr 20, 2020)

Daniel L. Warshaw 

Daniel L. Warshaw 

PEARSON, SIMON & WARSHAW, 

LLP 

15165 Ventura Blvd., Suite 400 

Sherman Oaks, CA 91403 

(818) 788-8300 

dwarshaw@pswlaw.com 

Class Counsel 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 26 of 54
20 

John Austin Curry (Apr 21, 2020)

Dated: April 17, 2020 FRIEDMAN OSTER & TEJTEL 

PLLC 

David F.E. Tejtel 

David F.E. Tejtel (Apr 21, 2020)

David F.E. Tejtel 

David F.E. Tejtel 

FRIEDMAN OSTER & TEJTEL PLLC 

493 Bedford Center Road, Suite 2D 

Bedford Hills, NY 10507 

(888) 528-1108 

dtejtel@fotpllc.com 

Class Counsel 

Dated: April 17, 2020 CALDWELL CASSADY & CURRY 

John Austin Curry 

John Austin Curry 

CALDWELL CASSADY & CURRY 

2121 N. Pearl Street, 12th Floor 

Dallas, Texas 75201 

(214) 888-4848 

acurry@caldwellcc.com 

Class Counsel 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 27 of 54
Dated: April17,2020

Dated: Aprill7,2020

GIBSON, DUNN & CRUTCHER

LLP

Joshua H. Lerner

Joshua H. Lerner

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105

j lerner@gibsondunn.com

Counselfor Apple Inc.

DURIE TANGRI LLP

L/,-,,,-'

Eugene Novikov

Eugene Novikov

DURIE TANGRI LLP

217 Leidesdorff Street

San Francisco, CA 94lll

enovikov@durietangri.com

Counselfor Apple Inc.

2l

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 28 of 54
EXHIBIT A 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 29 of 54
II \RX RZQ RU RZQHG D QRQMDLOEURNHQ ASSOH LPKRQH 4 RU ASSOH LPKRQH 4S 

GHYLFH WKDW RQ ASULO 16, 2014, KDG DQ LOS 6 RU HDUOLHU RSHUDWLQJ V\VWHP, 

DQG LI \RX ZHUH LQ CDOLIRUQLD RQ WKDW GDWH, \RX FRXOG JHW D SD\PHQW IURP D 

FODVV DFWLRQ VHWWOHPHQW. 

A VHWWOHPHQW KDV EHHQ UHDFKHG ZLWK ASSOH IQF. LQ D FODVV DFWLRQ ODZVXLW alleging that Apple Inc. 

(“Apple” or the “Defendant”) interfered with “FaceTime” for iOS 6 and earlier operating systems on 

April 16, 2014. The lawsuit alleges that this caused Apple’s FaceTime feature to no longer work on 

Apple iPhone 4 or iPhone 4S devices unless users updated the operating system on their devices to the 

then-current iOS 7 release. Apple denies all allegations of wrongdoing. 

YRX UHFHLYHG WKLV HPDLO EHFDXVH ASSOH’V UHFRUGV LQGLFDWH \RX PD\ EH D CODVV MHPEHU DQG 

HQWLWOHG WR UHFHLYH D SD\PHQW. The Court decided that the Class includes all owners of non-

“jailbroken” Apple iPhone 4 or iPhone 4S devices who on April 16, 2014, had iOS 6 or earlier 

operating systems on their iPhone 4 or iPhone 4S devices, and who were in California on that date. A 

“jailbroken” iPhone is one where the user has intentionally removed programmed limitations in order 

to modify the functionality of the iPhone, run unauthorized applications, or otherwise change the 

performance of the iPhone. 

WKDW DUH \RXU RSWLRQV" 

x SWD\ LQ WKH CODVV DQG RHFHLYH D SHWWOHPHQW PD\PHQW. An $18 million settlement fund will 

be established. If you are a Class Member, and you remain in the Class, you will receive a 

settlement payment if the Court grants final approval to the settlement. You will give up the 

right to sue Apple in a separate lawsuit regarding the subject matter of the claims this 

settlement resolves. 

o If you received this notice from the Settlement Administrator, that means Apple has 

determined from its records that you may be a Class Member. If you do nothing you 

will remain in the Class and automatically receive a digital check via email or physical 

check via U.S. Mail for your payment under the proposed settlement. No further 

action is required on your part. 

o If you did not receive this notice from the Settlement Administrator (for example, if 

someone forwarded it to you), and you believe you are a Class Member, you must 

complete and submit a valid Application for Inclusion in the Class by >Month Day@, 

2020, in order to receive a payment under the proposed settlement. Applications for 

Inclusion in the Class may be submitted online at www.graceclassaction.com. All 

applications are subject to verification and validation. 

x AVN WR EH E[FOXGHG. If you decide to exclude yourself, you will keep the right to sue Apple 

in a separate lawsuit about the subject matter of the claims this settlement resolves, but you 

give up the right to get a payment from this settlement. This is the only option that allows you 

to sue, continue to sue, or be part of another lawsuit against Apple related to the subject matter 

of the claims in this case. Instructions for requesting to exclude yourself from the settlement 

can be found at www.graceclassaction.com. Your exclusion request must be received by 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 30 of 54
>Month Day@, 2020. 

x OEMHFW WR WKH SHWWOHPHQW. If you do not exclude yourself from the settlement, you may object 

to it by writing to the Court about why you don’t like the settlement. You may also attend the 

Court’s Final Approval Hearing and ask the Court for permission to speak about your 

objection. Instructions for objecting and attending the hearing can be found at 

www.graceclassaction.com. Your objection must be filed or postmarked on or before >Month 

Day@, 2020. 

More detailed information, including the Settlement Agreement, is available at 

www.graceclassaction.com or by calling 1-XXX-XXX-XXXX. 

This Notice summarizes the proposed settlement. For the precise terms and conditions of the 

settlement, please see the settlement agreement available at www.graceclassaction.com, by 

contacting Class Counsel (shown below), by accessing the Court docket in this case, for a fee, 

through the Court’s Public Access to Court Electronic Records (PACER) system at 

https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United 

States District Court for the Northern District of California, United States District Court for the 

Northern District of California, Robert F. Peckham Federal Building & United States Courthouse, 

280 South 1st Street, Room 2112, San Jose, CA 95113, between 9:00 a.m. and 4:00 p.m., Monday 

through Friday, excluding Court holidays. 

PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO 

INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS. 

Jill M. Manning, Esq. 

Steyer Lowenthal Boodrookas Alvarez & 

Smith LLP 

(415) 421-3400 

jmanning@steyerlaw.com 

John Austin Curry, Esq. 

Caldwell Cassady & Curry LLP 

(214) 888-4848 

acurry@caldwellcc.com 

Daniel L. Warshaw, Esq. 

Pearson, Simon & Warshaw, LLP 

(818) 788-8300 

dwarshaw@pswlaw.com 

David F.E. Tejtel, Esq. 

Friedman Oster & Tejtel PLLC 

(888) 529-1108 

dtejtel@fotpllc.com

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 31 of 54
 

EXHIBIT B 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 32 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

If you own or owned a non-jailbroken Apple 

iPhone 4 or Apple iPhone 4S device that on 

April 16, 2014, had an iOS 6 or earlier 

operating system, and if you were in California 

on that date, you could get a payment from a 

class action settlement. 

A court authorized this notice. This is not a solicitation. 

x A settlement has been reached with Apple Inc. in a class action lawsuit alleging that Apple Inc. 

(“Apple” or the “Defendant”) interfered with “FaceTime” for iOS 6 and earlier operating systems on 

April 16, 2014. The lawsuit alleged that this caused Apple’s FaceTime feature to no longer work on 

Apple iPhone 4 or iPhone 4S devices unless users updated the operating system on their devices to the 

then-current iOS 7 release. Apple denies all allegations of wrongdoing. 

x You may be included in this settlement as a “Class Member” and entitled to receive a payment if you 

owned a “non-jailbroken” Apple iPhone 4 or iPhone 4S device that, on April 16, 2014, ran iOS 6 or an 

earlier operating system, and if you were in California on that date. The criteria to be a “Class Member” 

are defined more fully in the answer to Questions 5 and 6 below. 

x Your rights are affected whether you act or don’t act. Read this notice carefully. 

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

STAY IN THE CLASS OR 

SUBMIT AN APPLICATION 

FOR INCLUSION IN THE 

CLASS

DEADLINE: _________ 

An $18 million settlement fund will be established. If you received an email or 

mail notification from the Settlement Administrator about this lawsuit, that means 

that Apple has determined from its records that you may be a Class Member. If 

you do nothing you will remain in the Class and automatically receive a digital or 

physical check for your payment under the proposed settlement. If you 

participate in the settlement, you will give up the right to sue Apple in a 

separate lawsuit regarding the subject matter of the claims in this lawsuit. 

No further action is required. 

If you did not receive an email or mail notification from the Settlement 

Administrator about this lawsuit and you believe you are a Class Member, you 

must submit an Application for Inclusion in the Class. If you submit an 

Application for Inclusion in the Class, you will give up the right to sue Apple in a 

separate lawsuit regarding the subject matter of the claims this settlement resolves. 

All applications are subject to verification and validation. 

ASK TO BE EXCLUDED

DEADLINE: _________ 

If you decide to exclude yourself from this settlement, you will keep the right to 

sue Apple in a separate lawsuit about the subject matter of the claims this 

settlement resolves, but you give up the right to get a payment from this settlement. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 33 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

2 

This is the only option that allows you to sue, continue to sue, or be part of another 

lawsuit against Apple related to the subject matter of the claims in this case. 

OBJECT TO THE 

SETTLEMENT

DEADLINE: _________ 

If you do not exclude yourself from the settlement, you may object to it by writing 

to the Court about why you don’t like the settlement. 

GO TO A HEARING ON:

____________ 

You may object to the settlement and ask the Court for permission to speak at the 

Final Approval Hearing about your objection. 

x These rights and options – DQG WKH GHDGOLQHV WR H[HUFLVH WKHP – are explained in this Notice. 

x The Court overseeing this case still has to decide whether to approve the settlement. 

x This Notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, 

please see the settlement agreement available at wwwgraceclassaction.com, by contacting class counsel 

(contact info listed under Question 17 below), by accessing the Court docket in this case, for a fee, 

through the Court’s Public Access to Court Electronic Records (PACER) system at 

https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States 

District Court for the Northern District of California, United States District Court for the Northern 

District of California, Robert F. Peckham Federal Building & United States Courthouse, 280 South 1st 

Street, Room 2112, San Jose, CA 95113, between 9:00 a.m. and 4:00 p.m., Monday through Friday, 

excluding Court holidays. 

PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE 

ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS. 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 34 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

3 

BASIC INFORMATION ............................................................................................................. PAGE 4 

1. Why was this notice issued" 

2. What is a class action" 

3. What is this lawsuit about" 

4. Why is there a settlement" 

WHO IS INCLUDED IN THE SETTLEMENT" .................................................................. PAGE 5 

5. How do I know if I am part of the settlement" 

6. What does “jailbroken” mean" 

7. I’m still not sure if I am included in the Class. 

THE SETTLEMENT BENEFITS – WHAT YOU GET IF YOU QUALIFY ........................... PAGE 5 

8. What does the settlement provide" 

9. How much will my payment be" 

HOW TO GET A PAYMENT" ................................................................................................... PAGE 6 

10. How do I get a payment" 

11. When would I get my payment" 

12. What rights am I giving up to get a payment and stay in the class" 

13. What are the Released Claims" 

EXCLUDING YOURSELF FROM THE SETTLEMENT ....................................................... PAGE 6

14. How do I request to be excluded from the settlement" 

15. If I exclude myself, can I still get a payment from this settlement" 

16. If I do not exclude myself, can I sue Apple for the same claims later" 

THE LAWYERS REPRESENTING THE CLASS .................................................................... PAGE 7 

17. Do I have a lawyer in this case" 

18. How will the lawyers be paid" 

19. May I get my own lawyer" 

OBJECTING TO THE SETTLEMENT ...................................................................................... PAGE 8 

20. How do I tell the Court that I do not like the settlement" 

21. What is the difference between objecting and asking to be excluded" 

THE COURT’S FINAL APPROVAL HEARING ..................................................................... PAGE 9 

22. When and where will the Court decide whether to approve the settlement"

23. Do I have to come to the hearing"

24. May I speak at the hearing"

IF YOU DO NOTHING ............................................................................................................... PAGE 9 

25. What happens if I do nothing at all"

GETTING MORE INFORMATION .......................................................................................... PAGE 9 

26. Are more details available"

WHAT THIS NOTICE CONTAINS 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 35 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

4 

BASIC INFORMATION

1. Why was this notice issued? 

A federal Court authorized this Notice because you have a right to know about the proposed settlement 

of this class action lawsuit and all of your options before the Court decides whether to approve the 

proposed settlement. This Notice explains the lawsuit, the settlement, your legal rights, what benefits 

are available, and who can get them. 

Judge Lucy H. Koh of the United States District Court for the Northern District of California (the 

“Court”) is currently overseeing this case and will decide whether to approve the settlement. The case 

is known as Grace et al. v. Apple Inc., Case No. 17-CV-00551-LHK-NC. The people who sued are 

called the Plaintiffs. The company they are suing is Apple Inc., which is called the Defendant. 

2. What is a class action?

In a class action, one or more people called “Class Representatives” (in this case, Christina Grace and 

Kenneth Potter, Jr.) sue on behalf of people who have similar claims. All these people are a “Class” 

or “Class Members.” One court resolves the issues for all Class Members, except for those who 

exclude themselves from the Class. 

3. What is this lawsuit about?

Plaintiffs bring a claim for trespass to chattels. “Chattels” is a word meaning personal property, as 

opposed to real estate. Plaintiffs also bring a claim under California’s Unfair Competition Law, Bus. 

& Prof. Code § 17200. 

Apple designs, manufactures and markets the iPhone. All iPhones, including the iPhone 4 and iPhone 

4S, operate through a mobile operating system known as iOS. The iPhone 4 was the first iPhone to 

offer a feature known as “FaceTime,” which allows iPhone users to communicate via video calls. 

Plaintiffs contend that on April 16, 2014, Apple allowed a security certificate in the iPhone to expire, 

with the result that FaceTime stopped working on their iPhone 4 and iPhone 4S devices running the 

iOS 6 operating system or an older version. Apple came up with a way to restore FaceTime 

functionality to Plaintiffs and the Class Members’ devices that required them to download a free 

software update to the then-current version of Apple’s mobile operating system, iOS 7.1. Plaintiffs 

contend that this particular update degraded the performance of their devices. Plaintiffs contend that 

the resulting choice between not having FaceTime and degraded device performance caused their 

devices to diminish in value. 

Plaintiffs contend that Apple intentionally caused FaceTime to stop working to save money. They 

seek to recover damages for the diminution in value of their iPhones. 

Apple maintains that it did nothing wrong, denies that it intentionally caused FaceTime to stop 

working, and denies that the FaceTime interruption was a trespass to Class Members’ devices. Apple 

also denies that iOS 7.1 performed poorly on iPhone 4 and iPhone 4S devices and contends that the 

iOS 7.1 update solved the FaceTime issue. Apple asserts numerous defenses to the claims in this case. 

The proposed settlement to resolve this litigation is not an admission of guilt or any wrongdoing of 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 36 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

5 

any kind by Apple and it is not an admission by Apple of the truth of any of the allegations in this 

litigation. 

4. Why is there a settlement?

The Court did not decide in favor of the Plaintiffs or Defendant. Instead, the Plaintiffs and Defendant 

agreed to a settlement. This way, they avoid the cost, burden and uncertainty of a trial and the people 

allegedly affected can get benefits. The Class Representatives and their attorneys think the settlement 

is best for all Class Members. 

WHO IS INCLUDED IN THE SETTLEMENT

5. How do I know if I am part of the settlement?

The Court has decided that everyone who fits the following description is a Class Member, and is thus 

included in the settlement: 

All owners of non-jailbroken Apple iPhone 4 or Apple iPhone 4S devices who on April 16, 2014, had 

iOS 6 or earlier operating systems on their iPhone 4 or iPhone 4S devices, and who were in California 

on that date. 

6. What does “jailbroken” mean?

A “jailbroken” iPhone is one where the user has intentionally removed programmed limitations in 

order to modify the functionality of the iPhone, run unauthorized applications, or otherwise change 

the performance of the iPhone. 

7. I’m still not sure if I am included in the Class.

If you are still not sure whether you are included in the Class, you can visit the website 

www.graceclassaction.com, call toll-free 1-XXX-XXX-XXXX, or write to Grace v. Apple Class 

Action Administrator, P.O. Box XXXX, Portland, OR 97XXX-XXXX, for more information. 

THE SETTLEMENT BENEFITS—WHAT YOU GET IF YOU QUALIFY

8. What does the settlement provide?

An $18 million Settlement Fund has been established by Apple in this settlement. After deducting 

any Court-approved attorneys’ fees and expenses, service awards, and the costs of settlement notice 

and administration, the net Settlement Fund will be made available to Class Members who Apple 

determines from its records are included in the Class, or who timely submit valid Applications for 

Inclusion in the Class. 

9. How much will my payment be?

Final payments will be calculated based on the total number of non-jailbroken Apple iPhone 4 or 

iPhone 4S devices owned by the Class Members and the total number of valid Applications for 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 37 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

6 

Inclusion in the Class. Class Members may visit the settlement website www.gracesettlement.com for 

estimated payment amounts from the Settlement. 

HOW TO GET A SETTLEMENT PAYMENT

10. How do I get a payment?

If you received a notice by email or mail indicating that Apple has determined that you are a Class 

Member, and if you do nothing, you will remain in the class and automatically receive a digital check via 

email or a physical check via U.S. Mail for your payment under the proposed settlement. No action is 

required on your part.

If you did not receive a notice by email or mail but believe that you are a Class Member, you must 

complete and submit a valid Application for Inclusion in the Class by >Month Day@, 2020, in order to 

receive a payment under the proposed settlement. Applications for Inclusion in the Class may be 

submitted online at www.graceclassaction.com. All Applications for Inclusion in the Class are subject 

to verification and validation. 

11. When would I get my payment?

The Court will hold a hearing at ___ on _______, 2020, to decide whether to grant final approval to 

the settlement. If the Court approves the settlement, there may be objections. It is always uncertain 

whether objections will be filed and, if so, how long it will take to resolve them. Settlement payments 

will be distributed to Class Members as soon as possible, if and when the Court grants final approval 

to the settlement. The Court may also elect to move the Final Approval Hearing to a different date or 

time in its sole discretion, without providing further Notice to the Class. The date and time of the 

Final Approval Hearing can be confirmed at www.graceclassaction.com.

12. What rights am I giving up to get a payment and stay in the class?

Unless you exclude yourself, you are staying in the Class. If the settlement is approved and becomes 

final, all of the Court’s orders will apply to you and legally bind you. You won’t be able to sue, 

continue to sue, or be part of any other lawsuit against Apple related to the subject matter of this 

lawsuit or the claims released by the Settlement Agreement. The rights you are giving up are called 

Released Claims.

13. What are the Released Claims?

Generally, if and when the Settlement Agreement becomes final, Class Members will permanently 

release Apple Inc. (including its present or former affiliates, agents, attorneys, contractors, divisions, 

employees, holding companies, insurers, servants, shareholders, sister corporations, officers, directors, 

representatives, and successors) from claims relating to the April 16, 2014, FaceTime break or the 

certificate expiration that caused it. The specific claims you will be releasing are described in more 

detail in paragraph 8.1 of the Settlement Agreement, available at www.graceclassaction.com. 

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you want to keep the right to sue or continue to sue Apple for any claim made in this lawsuit or 

released by the Settlement Agreement, and you do not want to receive a payment from this settlement, 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 38 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

7 

you must take steps to get out of the settlement. This is called excluding yourself or opting out of the 

settlement.

14. How do I request to be excluded from the settlement?

To exclude yourself, you must send a letter with the following information: 

x Your name and address; 

x A statement that you wish to be excluded from the Class in Grace et al. v. Apple Inc., Case 

No. 17-CV-00551-LHK-NC; and 

x Your signature. 

You must mail your exclusion request to: 

Grace v. Apple Exclusions 

P.O. Box XXXX 

Portland, OR 97XXX-XXXX 

Your exclusion request must be received no later than >Month Day@, 2020. 

15. If I exclude myself, can I still get a payment from this settlement? 

No. If you exclude yourself, you are telling the Court that you don’t want to be part of the Class in this 

settlement. You can only get a payment if you stay in the Class. See Question 10. 

16. If I do not exclude myself, can I sue Apple for the same claims later? 

No. Unless you exclude yourself, you are giving up the right to sue Apple regarding the subject matter 

of the claims that this settlement resolves. You must exclude yourself from this lawsuit to start or 

continue with your own lawsuit or be part of any other lawsuit against Apple. 

THE LAWYERS REPRESENTING THE CLASS

17. Do I have a lawyer in this case?

Yes. The Court appointed the following attorneys to represent you as “Class Counsel”: 

Jill M. Manning, Esq. 

Steyer Lowenthal Boodrookas Alvarez & 

Smith LLP 

(415) 421-3400 

jmanning@steyerlaw.com 

John Austin Curry, Esq. 

Caldwell Cassady & Curry LLP 

(214) 888-4848 

acurry@caldwellcc.com 

Daniel L. Warshaw, Esq. 

Pearson, Simon & Warshaw, LLP 

(818) 788-8300 

dwarshaw@pswlaw.com 

David F.E. Tejtel, Esq. 

Friedman Oster & Tejtel PLLC 

(888) 529-1108 

dtejtel@fotpllc.com

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 39 of 54
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8 

You do not have to pay Class Counsel out of your own pocket. If you want to be represented by your 

own lawyer and have that lawyer appear in court for you in this case, you may hire one at your own 

expense. 

18. How will the lawyers be paid?

Class Counsel may ask the Court for an award of attorneys’ fees not to exceed $5,400,000, expenses 

not exceed $1,100,000, and service awards to the Class Representatives not to exceed $7,500 each. 

The Court will determine these amounts. All of these amounts, as well as the costs associated with 

administering the settlement will be paid from the Settlement Fund before making payments to 

qualifying Class Members. 

A copy of Class Counsel’s Motion for Attorneys’ Fees and Expenses and for Named Plaintiff Service 

Awards will be available at www.graceclassaction.com by >Month Day@, 2020. 

19. May I get my own lawyer?

If you are in the Class, you are not required to hire your own lawyer because Class Counsel is working 

on your behalf. However, if you want your own lawyer, you may hire one at your own expense.

OBJECTING TO THE SETTLEMENT

20. How do I tell the Court that I do not like the settlement?

If you are a Class Member, you can ask the Court to deny approval of the settlement by submitting an 

objection. You can’t ask the Court to order a different settlement; the Court can only approve or reject 

the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit 

will continue. If that is what you want to happen, you must object. 

Any objection to the proposed settlement must be in writing. If you submit a timely written objection, 

you may, but are not required to, appear at the Final Approval Hearing, either in person or through 

your own attorney. If you appear through your own attorney, you are responsible for hiring and paying 

that attorney. All written objections and supporting papers must (a) clearly identify the case name and 

number (Grace et al. v. Apple Inc., Case No. 17-CV-00551-LHK-NC), (b) be submitted to the Court 

either by mailing them to the Class Action Clerk, United States District Court for the Northern District 

of California, Robert F. Peckham Federal Building & 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, and (c) be filed or postmarked on or before 

>Month Day@, 2020. 

21. What is the difference between objecting and asking to be excluded?

Objecting is simply telling the Court that you don’t like something about the settlement. You can 

object only if you stay in the Class (do not exclude yourself). Excluding yourself is telling the Court 

that you don’t want to be part of the Class. If you exclude yourself, you cannot object because the 

settlement no longer affects you.

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 40 of 54
QUESTIONS? CALL 1-XXX-XXX-XXXX OR VISIT WWW.GRACECLASSACTION.COM

9 

THE COURT’S FINAL APPROVAL HEARING

The Court will hold a hearing to decide whether to approve the settlement. You may attend and you 

may ask to speak, but you don’t have to. 

22. When and where will the Court decide whether to approve the settlement?

The Court will hold a Fairness Hearing at ___ on _____, at the United States District Court for the 

Northern District of California, Robert F. Peckham Federal Building & United States Courthouse, 280 

South 1st Street, Courtroom 8, Fourth Floor, San Jose, CA 95113. At this hearing, the Court will 

consider whether to approve the settlement; Class Counsel’s request for attorneys’ fees and expenses; 

and the service awards to the Class Representatives. If there are objections, the Court will consider 

them. At the hearing, the Court will decide whether to approve the settlement. The Court may elect 

to move the Final Approval Hearing to a different date or time in its sole discretion, without providing 

further Notice to the Class. The date and time of the Final Approval Hearing can be confirmed at 

www.graceclassaction.com.

23. Do I have to come to the hearing?

No. Class Counsel will answer any questions the Court may have. However, you are welcome to 

come to the hearing 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 mailed your written objection on time, the Court will consider it. You 

may also pay your own lawyer to attend, but that is not necessary. 

24. May I speak at the hearing?

Yes. You may ask the Court for permission to speak at the Final Approval Hearing. 

IF YOU DO NOTHING

25. What happens if I do nothing at all?

If you are a Class Member and you do nothing, Apple will send a digital or physical check to the email 

or mailing address it has on file for you. You will give up the rights explained in Question 13, 

including your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against 

Apple related to the subject matter of this lawsuit or for any claims released by the Settlement 

Agreement. 

GETTING MORE INFORMATION

26. Are more details available?

Visit the website at www.graceclassaction.com, where you will find the Settlement Agreement and 

other related documents. You may also call toll-free at 1-XXX-XXX-XXXX or write to Grace v. 

Apple Class Action Administrator, P.O. Box XXXX, Portland, OR 97XXX-XXXX. Inquiries should 

NOT be directed to the Court. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 41 of 54
 

EXHIBIT C 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 42 of 54
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www.graceclassaction.com • 1-XXX-XXX-XXXX

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 43 of 54
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If you own or 

owned a nonjailbroken Apple 

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that on April 16, 

2014, had an iOS 6 

or earlier 

operating system, 

and if you were in 

California on that 

date, you could get 

a payment from a 

class action 

settlement. 

Important Notice About a Class Action Lawsuit

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Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 44 of 54
 

EXHIBIT D 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 45 of 54
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927637.2 Case No. 5:17-cv-00551-LHK-NC

>PROPOSED@ ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

CHRISTINA GRACE and KEN POTTER, 

Individually and on Behalf of All Others 

Similarly Situated, 

Plaintiffs, 

vs. 

APPLE INC., 

Defendant. 

 CASE NO. 5:17-cv-00551-LHK-NC 

CLASS ACTION 

>PROPOSED@ ORDER GRANTING 

PRELIMINARY APPROVAL OF CLASS 

ACTION SETTLEMENT 

Judge: Hon. Lucy H. Koh 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 46 of 54
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927637.2 2 Case No. 5:17-cv-00551-LHK-NC

>PROPOSED@ ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

This matter before the Court is Plaintiffs’ motion for preliminary approval of the proposed 

class action settlement. Plaintiffs, individually and on behalf of the proposed settlement class, and 

Defendant have entered into a Settlement Agreement that, if approved, would settle the abovecaptioned litigation (the “Action”). Having considered the motion, the Settlement Agreement 

together with all exhibits and attachments thereto, the record in this matter, and the briefs and 

arguments of counsel, the Court finds as follows: On May 7, 2020, this Court heard Plaintiffs 

Christina Grace and Ken Potter’s (“Plaintiffs”) motion for preliminary approval of class 

settlement. This Court reviewed the motion, including the Settlement Agreement and supporting 

declaration of Class Counsel. Based on this review and the findings below, the Court finds good 

cause to grant the motion. 

FINDINGS 

1. The Court has reviewed the terms of the proposed Settlement Agreement, the 

exhibits and attachments thereto, Plaintiffs’ motion papers and briefs, and the declaration of 

counsel. Based on its review of these papers, the Court finds that the Settlement Agreement 

appears to be the product of serious, informed, non-collusive negotiations conducted with the 

assistance of United States District Court Magistrate Judge Nathanael Cousins and Judge William 

H. Cahill (Ret.), over the course of several months. The Court further observes that the Settlement 

Agreement was entered into after almost three years of litigation, including a motion to dismiss, 

extensive fact and expert discovery, contested discovery-related motion practice, a motion for 

class certification, and a motion for summary judgment. The terms of the Settlement Agreement 

do not improperly grant preferential treatment to any individual within or segment of the 

Settlement Class and fall within the range of possible approval as fair, reasonable, and adequate. 

2. The Email Notice, Long-Form Notice and Postcard Notice (attached to the 

Settlement Agreement as Exhibits A-C, respectively), and their manner of transmission are 

reasonably calculated to adequately apprise class members of: (i) the pending lawsuit, (ii) the 

proposed settlement, and (iii) their rights, including the right to either participate in the settlement, 

exclude themselves from the settlement, or object to the settlement and thus comply with Rule 23 

and the principles of due process. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 47 of 54
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927637.2 3 Case No. 5:17-cv-00551-LHK-NC

>PROPOSED@ ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

3. Pursuant to the Settlement Agreement, Apple Inc. (“Apple”) has agreed to provide 

the requisite notice in compliance with 28 U.S.C. § 1715(b). 

IT IS ORDERED THAT 

1. SHWWOHPHQW ASSURYDO. The Settlement Agreement, including the Email Notice, 

Long-Form Notice, Postcard Notice and Application for Inclusion in Class, attached to the 

Settlement Agreement as Exhibits A-C and E, respectively, are approved.1

2. ASSRLQWPHQW RI SHWWOHPHQW AGPLQLVWUDWRU DQG WKH PURYLVLRQV RI CODVV NRWLFH. 

Pursuant to the Settlement Agreement, the Parties have designated Epiq Systems, Inc. as the 

Settlement Administrator. The Settlement Administrator shall perform all the duties of the 

Settlement Administrator set forth in the Settlement Agreement. Defendant, through the 

Settlement Administrator, will notify Class Members of the settlement in the manner specified in 

paragraphs 6 et seq. of the Settlement Agreement. Notice shall be disseminated no later than 30 

days after the entry of this Order (“Notice Date”). 

3. CODLP IRU SHWWOHPHQW AZDUG. Class Members for whom Apple has contact 

information and who do not timely submit a valid request for exclusion, will automatically receive 

an electronic or paper settlement check. Those Class Members who do not receive direct notice 

must complete an Application for Inclusion in the Settlement Class and submit it to the Settlement 

Administrator no later than 60 days after the Notice Date in order to be eligible to receive an 

award under the Settlement Agreement. 

4. OEMHFWLRQ WR SHWWOHPHQW. Any Class Member who has not submitted a timely 

written Request for Exclusion pursuant to paragraph 6 below and who wishes to object to the 

fairness, reasonableness, or adequacy of the Settlement Agreement must file a written objection 

with the Clerk of the Court no later than 60 days from the Notice Date (“Objection and Exclusion 

Deadline”). Any written objection must: (1) identify the case name and number, Grace et al. v. 

Apple Inc., Case No. 5:17-cv-00551-LHK-NC; (2) include the full name, address, telephone 

 

1

 Non-substantive changes, such as typographical errors, can be made to the notice documents and 

Application for Inclusion in Settlement Class by agreement of the Parties without leave of Court. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 48 of 54
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927637.2 4 Case No. 5:17-cv-00551-LHK-NC

>PROPOSED@ ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

number, and email address of the person objecting; (3) include the full name, address, telephone 

number, and email address of the objector’s counsel (if the objector is represented by counsel); 

and (4) state whether the objection applies only to the objector, to a specific subset of the class, or 

to the entire class, and the grounds for the objection. Delivery, if submitted through ECF, must be 

completed by 11:59 p.m. PST on the day of Objection and Exclusion Deadline. If submitted by 

U.S. mail or other mail services, the objection must be postmarked by the Objection and Exclusion 

Deadline. In the event that a postmark is illegible or unavailable, the date of mailing shall be 

deemed to be three days prior to the date that the Court scans the Objection into the electronic case 

docket. 

5. FDLOXUH WR OEMHFW WR SHWWOHPHQW. Class Members who fail to object to the 

Settlement Agreement in the manner specified above shall: (i) be deemed to have waived any 

objection to the Settlement Agreement; (ii) be foreclosed from making any objection to the 

Agreement and proposed Settlement by appearing at the Final Fairness Hearing; and (iii) be 

foreclosed from making any objection through appeal, collateral attack, or otherwise. 

6. RHTXHVWLQJ E[FOXVLRQ. Class Members may elect to not be part of the Class and 

not be bound by this Settlement Agreement. To request to be excluded from the Settlement, Class 

Members must timely submit a written request for exclusion. The request for exclusion must be 

sent by postal mail to the Settlement Administrator. To be excluded from the Settlement, the 

request for exclusion must be received by the Objection and Exclusion Deadline, which is 60 days 

after the Notice Date. Any person or entity who falls within the definition of the Settlement Class 

and who validly and timely requests exclusion from the Settlement shall not be a Settlement Class 

Member; shall not be bound by the Settlement Agreement; shall not be eligible to apply for any 

benefit under the terms of the Settlement Agreement; and shall not be entitled to submit an 

Objection to the Settlement. 

7. CHUWLILFDWLRQ RI SHWWOHPHQW CODVV. The Court finds that the proposed Settlement 

Class definition is consistent with the Class previously certified (Dkt. No. 269) and therefore 

meets the requirements of Federal Rule of Civil Procedure 23 for the reasons set forth in the Order 

Granting in Part and Denying in Part Motion for Class Certification (Dkt. No. 269). Class 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 49 of 54
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927637.2 5 Case No. 5:17-cv-00551-LHK-NC

>PROPOSED@ ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Representatives Christina Grace and Ken Potter are appointed as Settlement Class Representatives 

to implement the settlement in accordance with the Settlement Agreement. Class Counsel Jill M. 

Manning, Daniel L. Warshaw, David F.E. Tejtel, and John Austin Curry, on behalf of their firms, 

shall continue to serve as Class Counsel. 

8. THUPLQDWLRQ. If this Settlement Agreement terminates for any reason, this Action 

will revert to its previous status in all respects as it existed immediately before the Parties executed 

the Settlement Agreement. This Order will not waive or otherwise impact the Parties rights or 

arguments. 

9. MRWLRQ IRU FHHV, E[SHQVHV, RU SHUYLFH AZDUGV No later than 46 days after the 

Notice Date, Plaintiffs shall file their Motion for Fees, Expenses, and Incentive Awards. Plaintiffs 

shall be permitted to file a reply to any objections to their request for fees, expenses, or service 

awards on or before 35 days before the Fairness Hearing. 

10. FLQDO ASSURYDO HHDULQJ. The Court will hold a Final Approval Hearing on 

_____________, 2020, at 1:30 p.m. in Courtroom 8, 4th Floor, of the Northern District of 

California, 280 South 1st Street, San Jose, CA 95113. 

11. At the Final Approval Hearing, the Court will consider whether: (a) the Settlement 

is fair, reasonable, and adequate; (b) the Settlement Class should be finally certified; (c) a final 

judgment should be entered; (d) Class Counsel’s motion for attorneys’ fees and costs should be 

granted; and (e) the Service Payments sought for Settlement Class Representatives should be 

awarded. 

12. The Court reserves the right to continue the date of the Final Approval hearing 

without further notice to Settlement Class Members. 

13. If that occurs, the updated hearing date shall be posted on the Settlement Website. 

Other than the Settlement Website posting the Parties will not be required to provide any 

additional notice to Class Members. 

14. SWD\ RI DDWHV DQG DHDGOLQHV. All discovery and pretrial and trial proceedings and 

deadlines are vacated until further notice from the Court, except for such actions as are necessary 

to implement the Settlement Agreement and this Order. 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 50 of 54
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927637.2 6 Case No. 5:17-cv-00551-LHK-NC

>PROPOSED@ ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

For the reasons set forth above, the Court GRANTS Plaintiffs’ motion for preliminary 

approval. 

DATED: May ___, 2020 

 Hon. Lucy H. Koh 

United States District Court Judge 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 51 of 54
 

EXHIBIT E 

 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 52 of 54
Grace et al. v. Apple Inc.

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Type Your Name Here to Sign Your Application 

Case 5:17-cv-00551-LHK Document 414-1 Filed 04/27/20 Page 54 of 54