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926662.8 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND 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

NOTICE OF MOTION AND MOTION 

FOR PRELIMINARY APPROVAL OF 

CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT THEREOF

Date: September 3, 2020

Time: 1:30 p.m.

Courtroom: 8, 4th Floor

Case 5:17-cv-00551-LHK Document 414 Filed 04/27/20 Page 1 of 34
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930238.2 2 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on September 3, 2020, at 1:30 p.m., or as soon thereafter as 

the matter may be heard in the Courtroom of the Honorable Lucy H. Koh, United States District 

Court, Northern District of California, San Jose Division, 280 South 1st Street, San Jose, CA 95113, 

Plaintiffs Christina Grace and Ken Potter (“Plaintiffs”) will and hereby do move the Court, pursuant 

to Federal Rule of Civil Procedure 23(e), for the entry of an Order:

1. Preliminarily approving the Settlement Agreement between Plaintiffs and Defendant 

Apple Inc. (“Apple”);

2. Approving the form, manner, and content of the notice for the proposed settlement 

to the Class;

3. Appointing Epiq Systems, Inc. as the Settlement Administrator;

4. Appointing Jill M. Manning, Daniel L. Warshaw, David F.E. Tejtel, and John Austin 

Curry as Class Counsel on behalf of their firms;

5. Setting a Fairness Hearing date and briefing schedule for final approval of the 

Settlement and consideration of Class Counsel’s fee application; and

6. Finding Apple has started the process of complying with 28 U.S.C. § 1715(b).

The grounds for this motion are that the proposed settlement is within the necessary range 

of reasonableness to justify granting preliminary approval pursuant to Rule 23(e). This motion is 

based upon this Notice of Motion and Motion for Preliminary Approval of Class Action Settlement, 

the Memorandum of Points and Authorities, the Declaration of Daniel L. Warshaw filed herewith, 

the pleading and papers on file in this action, and such oral argument and documentary evidence as 

may be presented at the hearing on this motion.

Case 5:17-cv-00551-LHK Document 414 Filed 04/27/20 Page 2 of 34
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930238.2 i Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

TABLE OF CONTENTS

Page

I. INTRODUCTION..................................................................................................................1

II. BACKGROUND....................................................................................................................2

A. Plaintiffs’ Claims........................................................................................................2

B. Procedural History......................................................................................................2

C. Mediation and Settlement...........................................................................................3

D. Monetary Remedies....................................................................................................4

III. SUMMARY OF THE SETTLEMENT..................................................................................4

A. Monetary Relief..........................................................................................................5

B. Narrowly Tailored Release.........................................................................................6

C. Cost of Settlement Administration and Class Notice.................................................6

IV. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT .................7

A. Standard for Preliminary Approval ............................................................................7

B. The Settlement Provides Substantial Relief to the Class and is Well Within 

the Range of Reasonableness.....................................................................................8

1. The Strength of Plaintiffs’ Case Compared to the Risk, Expense, 

Complexity, and Likely Duration of Further Litigation.................................9

2. The Amount Offered in Settlement..............................................................10

3. The Risk of Maintaining Class Action Status Through Trial.......................12

4. The Extent of Discovery Completed and the Stage of the 

Proceedings ..................................................................................................13

5. The Experience and Views of Counsel ........................................................15

6. The Presence of a Government Participant..................................................16

7. The Reaction of the Class Members to the Proposed Settlement.................16

8. Other Factors................................................................................................16

9. Comparable Cases........................................................................................17

C. The Rule 23(e)(2) Factors Are Met..........................................................................18

1. The Class Representatives and Class Counsel have Vigorously 

Represented the Class...................................................................................18

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930238.2 ii Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

2. The Class Representatives’ Interests are Aligned with and are Not 

Antagonistic to the Other Class Members’ Interests....................................19

3. The Settlement was Negotiated at Arm’s-Length ........................................19

4. The Relief Provided for the Class is Adequate. ...........................................19

V. BECAUSE THE COURT ALREADY CERTIFIED THE CLASS, IT NEED NOT 

UNDERTAKE A RULE 23 ANALYSIS ............................................................................20

VI. THE SETTLEMENT PROVIDES PROPER NOTICE TO THE CLASS ..........................20

VII. ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARDS.........................................21

1. “Percentage-of-the-Fund” Method...............................................................22

2. Lodestar Cross-Check ..................................................................................22

3. Incentive Awards..........................................................................................23

VIII. THE COURT SHOULD SET A FINAL APPROVAL HEARING SCHEDULE...............24

IX. CONCLUSION ....................................................................................................................25

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930238.2 iii Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

TABLE OF AUTHORITIES

Page(s)

Cases

Amchem Prod., Inc. v. Windsor,

521 U.S. 591 (1997)................................................................................................................ 20

In re Anthem, Inc. Data Breach Litig.,

327 F.R.D. 299 (N.D. Cal. 2018)...................................................................................... 12, 15

In re Anthem, Inc. Data Breach Litig.,

No. 15-MD-02617-LHK, 2018 WL 3960068 (N.D. Cal. Aug. 17, 2018) .............................. 23

Arelvarez v. Farmers Ins. Exch.,

No. 3:14-CV-00574-WHO, 2017 WL 2214585 (N.D. Cal. Jan. 18, 2017) ............................ 23

Bellinghausen v. Tractor Supply Co.,

306 F.R.D. 245 (N.D. Cal. 2015)............................................................................................ 23

Betancourt v. Advantage Human Resourcing, Inc.,

No. 14-CV-01788-JST, 2016 WL 344532 (N.D. Cal. Jan. 28, 2016)..................................... 12

In re Bluetooth Headset Prod. Liab. Litig.,

654 F.3d 935 (9th Cir. 2011)................................................................................................... 22

In Re Carrier IQ, Inc. Consumer Privacy Litig.,

Case No. 3:12-md-02330-EMC (N.D. Cal.) ........................................................................... 17

In re Cathode Ray Tube (CRT) Antitrust Litig.,

2016 WL 721680 (N.D. Cal. Jan. 28, 2016) ........................................................................... 22

Churchill Vill., L.L.C. v. Gen. Elec.,

361 F.3d 566 (9th Cir. 2004)................................................................................................. 7, 8

Class Plaintiffs v. City of Seattle,

955 F.2d 1268 (9th Cir. 1992)............................................................................................. 7, 15

Dickey v. Advanced Micro Devices, Inc.,

No. 15-CV-04922-HSG, 2020 WL 870928 (N.D. Cal. Feb. 21, 2020) .................................. 11

Glass v. UBS Fin. Servs., Inc.,

No. C-06-4068 MMC, 2007 WL 221862 (N.D. Cal. Jan. 26, 2007) ................................ 10, 16

In re Google LLC St. View Elec. Commc'ns Litig.,

No. 10-MD-02184-CRB, 2020 WL 1288377 (N.D. Cal. Mar. 18, 2020)............................... 11

Gross v. Symantec Corp.,

No. 3:12-CV-00154-CRB, 2014 WL 12641996 (N.D. Cal. Mar. 21, 2014) .......................... 11

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930238.2 iv Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998)............................................................................................. 8, 10

Hendricks v. Starkist Co.,

No. 13- 00729, 2016 WL 5462423 (N.D. Cal. Sept. 29, 2016) .............................................. 21

Hickcox-Huffman v. US Airways, Inc.,

No. 10-CV-05193-VKD, 2019 WL 1571877 (N.D. Cal. Apr. 11, 2019) ............................... 23

In re High-Tech Employee Antitrust Litig.,

2015 WL 5158730 (N.D. Cal. Sept. 2, 2015).......................................................................... 22

Larsen v. Trader Joe’s Co.,

No. 11-cv-05188-WHO, 2014 WL 3404531 (N.D. Cal. July 11, 2014)................................. 16

Lehman v. Transbay Joint Powers Authority,

Case No. CGC-16-553758 (San Francisco Sup. Ct.)................................................................ 6

In re Mercury Interactive Corp. Sec. Litig.,

618 F.3d 988 (9th Cir. 2010)................................................................................................... 23

Mullane v. Cen. Hanover Bank & Trust Co.,

339 U.S. 306 (1950)................................................................................................................ 20

Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc.,

221 F.R.D. 523 (C.D. Cal. 2004) ............................................................................................ 10

Officers for Justice v. Civil Serv. Comm’n,

688 F.2d 615 (9th Cir. 1982)................................................................................................. 7, 8

In re Pac. Enters. Sec. Litig.,

47 F.3d 373 (9th Cir. 1995)..................................................................................................... 15

Perez v. Asurion Corp.,

501 F. Supp. 2d 1360 (S.D. Fla. 2007).................................................................................... 13

Pierce v. Rosetta Stone, Ltd.,

No. C 11-01283 SBA, 2013 WL 5402120 (N.D. Cal. Sept. 26, 2013)................................... 13

Ramirez v. TransUnion LLC,

951 F.3d 1008 (9th Cir. 2020)................................................................................................. 13

Rodriguez v. W. Publ’g Corp.,

563 F.3d 948 (9th Cir. 2009)....................................................................................... 10, 12, 22

Schneider v. Chipotle Mexican Grill, Inc.,

No. 16-CV-02200-HSG, 2020 WL 511953 (N.D. Cal. Jan. 31, 2020)................................... 12

Six Mexican Workers v. Ariz. Citrus Growers,

904 F.2d 1301 (9th Cir. 1990)................................................................................................. 21

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930238.2 v Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Stovall-Gusman v. W.W. Granger, Inc.,

No. 13-CV-02540-HSG, 2015 WL 3776765 (N.D. Cal. June 17, 2015)................................ 12

In re Syncor ERISA Litig.,

516 F.3d 1095 (9th Cir. 2008)................................................................................................... 7

In re Tableware Antitrust Litig.,

484 F. Supp. 2d 1078 (N.D. Cal. 2007) .................................................................................... 7

Torrisi v. Tucson Elec. Power Co.,

8 F.3d 1370 (9th Cir. 1993)....................................................................................................... 8

Vasquez v. Coast Valley Roofing, Inc.,

670 F. Supp. 2d 1114 (E.D. Cal. 2009)..................................................................................... 7

Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002)........................................................................................... 21, 22

In re Yahoo Mail Litig.,

No. 13-CV-4980-LHK, 2016 WL 4474612 (N.D. Cal. Aug. 25, 2016)................................. 22

Statutes & Rules

28 U.S.C. § 1715(b) ............................................................................................................ 2, 16, 21

Fed. R. Civ. P. 23(c)(2)(B)...................................................................................................... 20, 21

Fed. R. Civ. P. 23(e)........................................................................................................................ 7

Fed. R. Civ. P. 23(e)(1) ................................................................................................................. 20

Fed. R. Civ. P. 23(e)(1)(B)............................................................................................................ 20

Fed. R. Civ. P. 23(e)(2) ................................................................................................................. 18

Fed. R. Civ. P. 23(e)(2)(B)............................................................................................................ 15

Fed. R. Civ. P. 23(e)(2)(C)............................................................................................................ 19

Fed. R. Civ. P. 23(e)(3) ................................................................................................................. 19

Fed. R. Civ. P. 23(f) .............................................................................................................. 2, 3, 13

Fed. R. Civ. P. 23(h)...................................................................................................................... 21

Fed. R. Civ. P. 30(a)(2) ................................................................................................................. 14

Other Authorities

4 Newberg on Class Actions § 13:15 (5th ed.) ............................................................................... 7

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930238.2 vi Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

4 Newberg on Class Actions § 13.45 (5th ed.).............................................................................. 15

Moore’s Fed. Prac. § 23.165 (3d ed. 2009)..................................................................................... 8

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930238.2 1 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

After over three years of hard-fought litigation, Plaintiffs and Apple Inc. (“Apple”) have 

reached agreement to resolve this action (the “Action”) on a class-wide basis. The Settlement was 

reached after not only aggressive litigation but also extensive arm’s-length negotiations—including

four in-person mediation sessions with an experienced mediator and a United States District Court 

Magistrate Judge, and substantial additional negotiations. The final settlement was reached after a 

mediator’s proposal crafted by a Magistrate Judge. The settlement provides significant monetary 

relief to all Class Members.

Under the terms of the proposed settlement, Apple will fund an $18 million non-reversionary 

Settlement Fund.1 After subtracting from the Settlement Fund the costs of notice and claims 

administration, attorney’s fees and expenses, and incentive awards, the proceeds of the fund will be 

distributed automatically by electronic and paper checks. Settlement Class Members2 will not need 

to submit a claim in order to receive payment. 

The proposed settlement is fair, reasonable and adequate and meets all requirements for 

preliminary approval. Absent a settlement, the Class would be subject to the risk of uncertainty at 

trial and on appeal, and would incur additional expenses through further litigation. Plaintiffs 

respectfully request that the Court preliminarily approve the Settlement Agreement, attached as 

Exhibit 1 to the Declaration of Daniel L. Warshaw in Support of Motion for Preliminary Approval 

of Class Action Settlement (“Warshaw Decl.”), and enter an order that:

1. Preliminarily approves the Settlement Agreement between Plaintiffs and Defendant 

Apple;

2. Approves the form, manner, and content of the notice for the proposed settlement to 

1 All terms referenced herein are defined in the Settlement Agreement.

2

“Settlement Class Members” are the persons identified in Apple’s records as Class Members 

because they owned an iPhone 4 or 4S device that was running on iOS 6 or an earlier version of 

iOS on April 16, 2014 in California. 

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930238.2 2 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

the Class;

3. Appoints Epiq Systems, Inc. (“Epiq”) as the Settlement Administrator;

4. Appoints Jill M. Manning, Daniel L. Warshaw, David F.E. Tejtel, and John Austin 

Curry as Class Counsel on behalf of their firms;

5. Sets a Fairness Hearing date and briefing schedule for final approval of the 

Settlement and consideration of Class Counsel’s fee application; and

6. Finds Apple has started the process of complying with 28 U.S.C. § 1715(b).

II. BACKGROUND

A. Plaintiffs’ Claims

Plaintiff Christina Grace filed this Action on February 2, 2017, and filed the Amended 

Complaint adding Plaintiff Ken Potter on April 5, 2017. The Amended Complaint alleges “a 

consumer class action brought by Plaintiffs on behalf of themselves and all others similarly situated 

who owned an Apple iPhone 4 or iPhone 4S that was operating on iOS 6 or an earlier operating 

system, and therefore lost the ability to use Apple’s ‘FaceTime’ video conferencing feature when 

Apple intentionally broke FaceTime for iOS 6 and earlier operating systems on April 16, 2014.” 

Dkt. No. 36. Plaintiffs assert two causes of action: trespass to chattels under California law, and 

violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. (the 

“UCL”). Id. Plaintiffs’ Amended Complaint seeks damages, restitution, and injunctive relief. Id. 

Apple denies the allegations. 

B. Procedural History

The parties vigorously litigated this case. As set forth in greater detail below, the parties 

engaged in significant motion practice, including a motion to dismiss, a motion for class 

certification, a Rule 23(f) petition, 12 discovery motions, a summary judgment motion, 6 motions 

in limine and a Daubert motion to exclude the testimony and opinions of Plaintiffs’ two experts. 

The parties also engaged in extensive discovery, including 78 requests for production of documents, 

68 interrogatories, 350 requests for admission, production of 224,693 documents, review of 

databases produced in discovery that contained millions of records, review of Apple’s source code,

17 depositions, forensic imaging of the Class Representatives’ three iPhone devices, 7 expert 

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930238.2 3 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

reports, and numerous non-party document requests and deposition subpoenas.

On July 28, 2017, the Court denied Apple’s Motion to Dismiss the Amended Complaint. 

Dkt. No. 65. On September 19, 2018, the Court issued a Class Certification Order certifying a class 

pursuant to Fed. R. Civ. P. 23(b)(3) defined as “[a]ll owners of non-jailbroken 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.” Dkt. No. 269. The Court denied certification of a 

nationwide class and did not certify an injunctive relief class under the UCL. Id. On November 6, 

2018, Plaintiffs filed a petition pursuant to Fed. R. Civ. P. 23(f) seeking permission to appeal the 

Court’s denial of certification of a nationwide class. Dkt. No. 290. On March 20, 2019, the Ninth 

Circuit denied permission to appeal. Dkt. No. 295. On August 21, 2019, the Court denied Apple’s 

Summary Judgment Motion. Dkt. No. 306. On April 29, 2019 the Court set the case for trial on 

April 6, 2020; however, the trial date was vacated pursuant to General Order No. 72. Dkt. Nos. 301,

410.

C. Mediation and Settlement

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

Honorable William J. Cahill (Ret.), at JAMS in San Francisco. Warshaw Decl., ¶ 4. The parties 

were unable to reach a settlement. Id. After denying Apple’s motion for summary judgment, the 

Court ordered the parties to return to mediation. On October 22, 2019, the parties returned to JAMS 

for a mediation before Judge Cahill but were again unable to reach agreement on all terms of a 

settlement. Id., ¶ 5. After the second mediation, Judge Cahill engaged in extensive settlement 

discussions with each party but ultimately a settlement was not reached. Id., ¶ 6. As the litigation 

progressed closer to trial, the Court ordered the Parties to attend a settlement conference before the 

Honorable Nathanael Cousins. Dkt. No. 325. On December 5, 2019, Magistrate Judge Cousins 

held an all-day settlement conference, but the parties were unable to resolve the case. Warshaw 

Decl., ¶ 7. After extensive follow-up discussions, the parties attended a second in-person settlement 

conference with Magistrate Judge Cousins on January 16, 2020, which also failed to result in a 

settlement. Id., ¶ 8. Magistrate Judge Cousins continued conferring with the parties and, on January 

31, 2020, made a mediator’s proposal. Id., ¶ 9. On February 6. 2020, Magistrate Judge Cousins 

Case 5:17-cv-00551-LHK Document 414 Filed 04/27/20 Page 11 of 34
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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

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informed the parties that both parties had accepted the mediator’s proposal. Id., ¶ 10. 

D. Monetary Remedies

Plaintiffs seek damages and restitution on a class-wide basis for the diminution in value of 

their iPhone 4 and 4S devices caused by the FaceTime Break.3 Plaintiffs retained Dr. Justine S. 

Hastings, Ph.D., to calculate aggregate class-wide damages measured by the diminution in value of 

Class Members’ iPhone 4 and 4S devices caused by the FaceTime Break. Dr. Hastings constructed 

an econometric damages model using transactional data produced by third-party resellers of smart 

phone devices. Dr. Hastings used multivariate regression analysis to compare smart phone prices 

during the time period affected by the FaceTime Break to prices during the time when the market 

was unaffected. Dkt. No. 174. The model produced an estimate of the impact of the FaceTime 

Break on prices of used iPhone 4 and 4S models and concluded that Apple’s conduct impacted the 

prices by, on average, $18.30 per device. The Court accepted Plaintiffs’ damages model in its order

on class certification and in its order denying summary judgment. Dkt. Nos. 269, 306. 

Apple vigorously contests Plaintiffs’ damages model and contends that Dr. Hastings inflated 

damages by focusing on the “B to B” market rather than the consumer market. Apple filed a Daubert

motion seeking to exclude Dr. Hastings’ testimony and reports from the Action. Dkt. No. 333. The 

Court has not ruled on that motion.

III. SUMMARY OF THE SETTLEMENT

The Settlement Agreement provides for relief to the following Class Members:

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.

The Class includes4approximately 3,600,000 devices (prior to additional data analysis that 

3 The “FaceTime Break” refers to the April 16, 2014 expiration of the certificate that allowed the 

FaceTime feature to function on iPhone 4 and 4S devices running on iOS 6 or an earlier version.

4 The Class excludes (a) directors, officers, and employees of Apple or its subsidiaries and 

affiliated companies; (b) the Court and the Court’s staff, as well as any appellate court to which 

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may remove some records without valid contact information, or records indicating fraudulent 

accounts) that were affected by the FaceTime Break and whose owners are members of the class 

certified by the Court. Dkt. No. 269. Because there is no way, using available records, to verify if 

a user has jailbroken their phone, the Settlement Agreement provides that otherwise-qualifying 

iPhone devices will be presumed to be non-jailbroken unless it can be determined through existing 

records that they are jailbroken. Thus, payment will inevitably be made to a small but indeterminate 

number of individuals who have jailbroken their iPhone 4 or iPhone 4S devices. The relevant expert 

testimony in the Action indicates that the number of Settlement Class Members with jailbroken 

phones is very low.

A. Monetary Relief

Pursuant to the Settlement Agreement, the Settlement Administrator will provide payment 

to Settlement Class Members by electronic or paper checks. The Settlement Administrator will send 

the checks by email to those Settlement Class Members for whom Apple has email addresses, 

estimated to be over 90% of the Settlement Class, and by mail to those Settlement Class Members 

for whom Apple has only physical addresses. Settlement Agreement, ¶ 2.5. While Apple and the 

class administrator are still analyzing and validating the set of contact information for the class, 

Apple believes that it has email or physical addresses for the vast majority of the valid accounts 

associated with devices that are part of the class. Thus, Settlement Class Members will not need to 

submit any claim in order to receive payment from the Net Settlement Fund. If an individual was 

not identified as a Settlement Class Member according to Apple’s records and did not receive an 

email or postcard notice, they may apply to become a Settlement Class Member via submission of 

a verified “Application for Inclusion in the Class.” Settlement Agreement, ¶ 6.3. 

Each Settlement Class Member will receive one Class Payment for each of their qualifying 

this matter is ever assigned and its staff; (c) Apple Counsel, as well as their immediate family 

members, legal representatives, heirs, successors, or assigns; and (d) any individuals who timely 

exclude themselves from the Class or whose claims have already been adjudicated to a final 

judgment. 

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

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iPhone 4 or iPhone 4S devices. The amount of payments to each participating Settlement Class 

Member will be calculated based on each Settlement Class Member’s proportional share of the Net 

Settlement Fund. The Net Settlement Fund will be divided evenly by the total number of eligible 

devices. The Net Settlement Fund is the Settlement Fund of $18 million dollars less the costs of 

notice and administering the settlement funds, attorneys’ fees and expense reimbursement to Class 

Counsel, and any incentive awards to the Class Representatives, as ordered by the Court. 

The Net Settlement Fund created by the Settlement Agreement is designed to maximize 

recovery for Settlement Class Members. Each Settlement Class Member will receive a check, the 

amount of which will depend on the amount of any attorneys’ fees and expenses, incentive awards, 

notice and administration expenses. As such, all moneys available to the Net Settlement Fund will 

be distributed to the Settlement Class Members. Under no circumstances will any of the settlement 

funds revert to Apple. Settlement Agreement, Definitions ¶ BB.

B. Narrowly Tailored Release

The Settlement Agreement contains a narrowly tailored release that is specifically limited to 

all claims arising from, or related to, the facts underlying the Action and the certified California 

Class. Settlement Agreement, ¶ 8.1. The Settlement Agreement is not intended to abridge the rights 

of consumers in any other states who may have potential claims. Id., Recitals, p. 5.

C. Cost of Settlement Administration and Class Notice

Under the Settlement Agreement, all costs and expenses of administering the Settlement and

providing Notice in accordance with the Preliminary Approval Order shall be distributed from the 

Settlement Fund. Settlement Agreement, ¶ 2.3. After a competitive bidding process involving three 

potential administrators, the Parties selected Epiq as the Claims Administrator.5 Epiq provides class 

action administration and legal notice programs, and Epiq and its principals have extensive 

5 Class Counsel has retained Epiq as a Settlement Administrator in one other case over the last two 

years. Specifically, Steyer Lowenthal Boodrookas Alvarez & Smith LLP has retained Epiq as 

settlement class administrator in Lehman v. Transbay Joint Powers Authority, Case No. CGC-16-

553758 (San Francisco Sup. Ct.). 

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

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experience administering class action settlements, including many in this Circuit.

6 The Settlement 

Agreement proposes that the Court appoint Epiq as the Settlement Administrator to administer the 

notice and claims process. The Parties conferred with Epiq regarding the most efficient and 

effective manner of providing notice and distributing settlement funds to the Class. Based on Epiq’s 

estimate, it will cost approximately $1.4 million for Epiq to fully administer the Settlement in this 

Action. Warshaw Decl., ¶ 25. The proposed Notice Plan is described in the Settlement Agreement 

generally and below in section VI. 

IV. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT

A. Standard for Preliminary Approval

Rule 23(e) requires court approval of any settlement of claims of a settlement class. The 

Ninth Circuit maintains a “strong judicial policy that favors settlements, particularly where complex 

class action litigation is concerned.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th 

Cir. 1992); see also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004); In re 

Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008).

Preliminary approval should be granted where “the proposed settlement appears to be the

product of serious, informed, non-collusive negotiations, . . . has no obvious deficiencies, . . . does 

not improperly grant preferential treatment to class representatives or segments of the class, and . . .

falls within the range of possible approval.” Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp. 2d 

1114, 1125 (E.D. Cal. 2009). The Settlement satisfies all of these requirements, and justifies

publishing and sending notice of the Settlement to Class Members and scheduling final approval 

proceedings. See In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079-80 (N.D. Cal. 2007); 

4 Newberg on Class Actions § 13:15 (5th ed.). “[T]he very essence of a settlement is compromise, 

‘a yielding of absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. 

Comm’n, 688 F.2d 615, 624 (9th Cir. 1982). Thus, when analyzing a proposed settlement, the 

amount of the settlement is “not to be judged against a hypothetical or speculative measure of what 

6 Claims Administration, https://www.epiqglobal.com/en-us/experience/class-action-masstort/class-action-administration/services/claims-administration (last visited April 24, 2020).

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

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might have been achieved by the negotiators.” Id. at 625.

The approval of a proposed class action settlement “is committed to the sound discretion of 

the trial judge.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). In exercising this 

discretion, however, courts must give “proper deference to the private consensual decision of the 

parties” because:

the court’s intrusion upon what is otherwise a private consensual agreement 

negotiated between the parties to a lawsuit must be limited to the extent necessary to 

reach a reasoned judgment that the agreement is not the product of fraud or 

overreaching by, or collusion between, the negotiating parties, and the settlement, 

taken as whole, is fair, reasonable and adequate to all concerned.

Id. at 1027.

In making a preliminary determination of the fairness, reasonableness, and adequacy of a 

class action settlement, the trial court must balance several factors, including:

(1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely 

duration of further litigation; (3) the risk of maintaining class action status throughout 

the trial; (4) the amount offered in settlement; (5) the extent of discovery completed 

and the stage of the proceedings; (6) the experience and views of counsel; (7) the 

presence of a governmental participant; and (8) the reaction of the class members to 

the proposed settlement. 

Churchill Vill., 361 F.3d at 575; see also Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th 

Cir. 1993). Preliminary approval does not require the trial court to answer the ultimate question of 

whether a proposed settlement is fair, reasonable and adequate. That final determination is made 

only after class notice has been sent and Class Members have the opportunity to object to, or opt 

out of, the settlement. See Moore’s Fed. Prac. § 23.165 (3d ed. 2009).

B. The Settlement Provides Substantial Relief to the Class and is Well 

Within the Range of Reasonableness

The Settlement in this case is fair, reasonable, and adequate and should be approved by the 

Court because it provides substantial monetary relief to Class Members, i.e. an $18 million nonrevisionary fund. As detailed below and consistent with this Court’s Procedural Guidance for Class 

Action Settlements, the factors to be considered by the Court weigh heavily in favor of preliminary 

approval, because the Settlement Agreement adequately remedies the claims alleged by Plaintiffs in 

this class action lawsuit.

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

1. The Strength of Plaintiffs’ Case Compared to the Risk, 

Expense, Complexity, and Likely Duration of Further 

Litigation

While Plaintiffs believe the claims they assert in this Action are strong, the complexity and 

risk of further litigation is substantial. The risks of continuing this litigation include: (1) the possible 

success of Apple’s vigorous defense to Plaintiffs’ assertions that the challenged conduct constitutes 

a trespass to chattels and unfair business practice at trial or on appeal; (2) Apple successfully moving 

to decertify the litigation class; (3) Apple’s aggressive challenges to Plaintiffs’ damages 

methodology and the possibility that the Court would grant Apple’s pending Daubert motion; (4) a 

possible adverse outcome at trial; and (5) risks on appeal.

Although risks and expenses apply to any lawsuit, these elements were significant in this

case and weigh strongly in favor of approving the Settlement. At trial, Apple would have asserted 

legal and factual defenses. For example, Apple has argued throughout this Action that, inter alia,

(i) it never acted with the intent to interfere with FaceTime, (ii) the certificate expiration that caused 

the FaceTime Break was a result of programming decisions made in 2007 and 2010, and (iii) it 

provided a fully satisfactory fix in the form of an update to the latest version of its operating system. 

Apple has also argued that Plaintiffs lack an ownership interest in the personal property that was 

allegedly interfered with, and that it was impossible to ascertain customers who suffered a 

significant interference with FaceTime on a device they were actively using. Apple also would have 

presented affirmative defenses, including that (i) Plaintiffs were estopped from claiming trespass to 

chattels, (ii) in utilizing digital certificates in connection with FaceTime, Apple acted out of 

necessity to prevent serious harm, (iii) Plaintiffs consented to the alleged interference, (iv) Plaintiffs 

failed to mitigate damages because they could have, but did not, take action to lessen their alleged 

damages, and (v) Apple’s conduct was necessary and had a substantial business justification. 

Further, as set forth in its Daubert motion, Apple challenges the opinions of Plaintiffs’ two experts, 

Dr. Hastings and Dr. Mark Jones. Dkt. No. 333. Thus, Plaintiffs face the risk of proceeding to trial 

without expert opinion calculating damages arising from the FaceTime Break, and expert opinion 

relating to the FaceTime Break and its impact on the Apple devices. Further, Apple’s expert 

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

submitted a report challenging Dr. Hastings’ damages analysis and concluding that there were no 

measurable damages caused by the FaceTime Break.

Finally, absent settlement, Plaintiffs would have to litigate this Action for a lengthy and 

unknown duration of time in order to secure a recovery for the Class. While Plaintiffs believe they 

have sufficient evidence to prove liability and damages at trial, obtaining a verdict, whether by judge 

or jury, is inherently uncertain. Plaintiffs bear the burden in this case to prove their claims by a 

preponderance of the evidence. Moreover, it is exceedingly likely that a successful result at trial 

would have resulted in post-trial appeal proceedings initiated by Apple. See Glass v. UBS Fin. 

Servs., Inc., No. C-06-4068 MMC, 2007 WL 221862, *4 (N.D. Cal. Jan. 26, 2007), aff’d, 331 F. 

App’x 452 (9th Cir. 2009) (“Regardless of how this Court might have ruled on the merits of the 

legal issues, the losing party likely would have appealed, and the parties would have faced the 

expense and uncertainty of litigating an appeal.”). This Settlement provides valuable monetary 

relief to the Class without the delay and risk of further litigation.

The substantial relief obtained through this Settlement, balanced against the length, expense 

and uncertainty of trial and post-trial proceedings, weighs in favor of approval. See Rodriguez v. 

W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009); Nat’l Rural Telecomms. Coop. v. DIRECTV, 

Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004) (“The Court shall consider the vagaries of litigation and 

compare the significance of immediate recovery by way of the compromise to the mere possibility 

of relief in the future, after protracted and expensive litigation.”) (citation omitted); Hanlon, 150 

F.3d at 1027 (“Settlement is the offspring of compromise; the question we address is not whether 

the final product could be prettier, smarter or snazzier, but whether it is fair, adequate and free from 

collusion.”).

2. The Amount Offered in Settlement

The benefits offered by the Settlement Agreement weigh heavily in favor of preliminary 

approval. As detailed above, the Settlement Agreement creates an $18 million non-reversionary 

common fund—nearly 30 percent of the total average damages initially estimated by Dr. Hastings—

and provides substantial monetary relief to Settlement Class Members. The amount of the 

settlement fund is fair, reasonable and adequate given the diminution in value damages calculated 

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

by Dr. Hastings, Apple’s defenses, and litigation and trial risks.

In exchange for a release of their claims, Settlement Class Members will receive for each 

qualifying iPhone 4 and 4S device they own an equal share of the Net Settlement Amount. 

Plaintiffs’ counsel estimate that for each qualifying iPhone 4 or 4S device, Settlement Class 

Members will receive an initial check for approximately $3. In the likely event that some Settlement 

Class Members do not cash their checks, the Settlement Agreement provides that the Parties will 

meet and confer regarding distribution of the residue and present a joint proposal to the Court, which 

could include a second distribution, a cy pres distribution or escheatment. Settlement Agreement, 

¶ 2.7. If the Parties cannot reach agreement on the appropriate treatment of unclaimed funds, they 

will brief the matter for the Court’s decision. In no event would any of the residue revert to Apple. 

Id.

In the event that a cy pres mechanism is ultimately used to distribute any residual funds, the 

Parties have selected the Rose Foundation, a 501(c)(3) charity, for the purposes of managing the 

selection of an appropriate cy pres recipient whose work is closely related to the issues raised by 

this Action and the objectives of the Settlement Agreement and for managing distribution of cy pres

funds. The Rose Foundation has been appointed “as trustee over 600 restitution and cy pres funds.”7 

See Dickey v. Advanced Micro Devices, Inc., No. 15-CV-04922-HSG, 2020 WL 870928, at *2 (N.D. 

Cal. Feb. 21, 2020); Gross v. Symantec Corp., No. 3:12-CV-00154-CRB, 2014 WL 12641996, at 

*2 (N.D. Cal. Mar. 21, 2014); In re Google LLC St. View Elec. Commc'ns Litig., No. 10-MD-02184-

CRB, 2020 WL 1288377, at *15 (N.D. Cal. Mar. 18, 2020). It would manage a structured 

application process to identify suitable fund recipients and act as a neutral third-party trustee for 

distributing the funds. The recipients selected by the Rose Foundation and distribution of funds 

would be subject to approval by the Court. Neither the Parties nor their counsel have any affiliation 

with the Rose Foundation. Warshaw Decl., ¶ 24.

The intent of the Settlement is to distribute the Settlement Fund efficiently and accurately to 

7 Restitution and Cy Pres Fund Trustee, https://rosefdn.org/restitution-and-cy-pres-fund-trustee 

(last visited April 27, 2020).

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Settlement Class Members. Plaintiffs estimate that if all Settlement Class Members cash their 

checks, the average damages amount received by each will be approximately fifteen to twenty

percent of Dr. Hastings’ estimate of average per device diminution in value caused by the FaceTime 

Break, which would fall well within the “range of reasonableness” under Ninth Circuit law. In re 

Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 319 (N.D. Cal. 2018) (A “Settlement Fund 

represent[ing] approximately 14.5% of the projected recovery that Settlement Class Members would 

be entitled to if they prevailed on their claims . . . is within the range of reasonableness after taking 

into account the costs and risks of litigation.”); Betancourt v. Advantage Human Resourcing, Inc., 

No. 14-CV-01788-JST, 2016 WL 344532, at *5 (N.D. Cal. Jan. 28, 2016) (“9.7% of the total 

maximum potential recovery that class members would be entitled to if they prevailed on all claims 

. . . is ‘within the range of reasonableness’ . . . ”); Stovall-Gusman v. W.W. Granger, Inc., No. 13-

CV-02540-HSG, 2015 WL 3776765, at *4 (N.D. Cal. June 17, 2015) (“10% of what class might 

have been awarded had they succeeded at trial” is “‘within the range of reasonableness’ in light of 

the risks and costs of litigation.”); Schneider v. Chipotle Mexican Grill, Inc., No. 16-CV-02200-

HSG, 2020 WL 511953, at *10 (N.D. Cal. Jan. 31, 2020) (granting preliminary approval where 

“total settlement amount constitutes approximately 7.4% of the ‘best-case’ nationwide recovery”).

The negotiated $18 million cash common fund is fair and reasonable. The Net Settlement 

Amount represents nearly 30 percent of the average estimated damages, and substantially more than 

the zero damages amount estimated by Apple’s expert. Further, the Net Settlement Fund will be 

paid in cash, “which is a good indicator of a beneficial settlement.” Rodriguez, 563 F.3d at 965. 

Moreover, Settlement Class Members do not need to submit a claims form or take any action in 

order to receive a settlement payment. Plaintiffs submit that particularly when juxtaposed against 

the risks and costs of further litigation, the proposed settlement constitutes an excellent result for 

the Class.

3. The Risk of Maintaining Class Action Status Through Trial

Plaintiffs believe this Action was properly certified as a class action by the Court and, despite 

Apple’s denials, assert there is ample evidence to support their allegation that “Apple intentionally 

broke FaceTime for iOS 6 and earlier operating systems on April 16, 2014,” including documents 

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930238.2 13 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

and data produced by Apple, testimony from Apple witnesses, testimony from non-parties, and 

analyses and opinions of Plaintiffs’ experts. For example, Plaintiffs’ expert, Dr. Mark Jones, Ph.D., 

opined that the FaceTime Break was preventable and that it was caused by the expiration of a digital 

certificate. See, generally Jones Report. Further, as discussed above, Plaintiffs’ economist Dr. 

Hastings constructed an econometric model estimating damages caused by Apple’s conduct. 

However, Apple has vigorously defended this Action. Plaintiffs’ ability to maintain class 

certification through trial certainly poses a risk, especially in the event of an unforeseen intervening 

change in the law. Moreover, even if Plaintiffs were able to successfully prove their case at trial, 

Apple would argue that there would be substantial difficulty in proving class-wide damages based 

on, among other things, differences in each Class Member’s particular use of their devices. Apple 

would further argue that every member of a class must satisfy the basic requirements of Article III 

standing before the members may “be awarded individual monetary damages.” Ramirez v. 

TransUnion LLC, 951 F.3d 1008, 1037 (9th Cir. 2020). Although Plaintiffs are confident that this 

Action would remain certified as a class action, the risk of failing to maintain class action status 

throughout trial further weighs in favor of preliminary approval. Pierce v. Rosetta Stone, Ltd., No. 

C 11-01283 SBA, 2013 WL 5402120, at *4 (N.D. Cal. Sept. 26, 2013) (“risks in obtaining and 

maintaining class certification . . . weigh[] in favor of approving the settlement.”); Perez v. Asurion 

Corp., 501 F. Supp. 2d 1360, 1381 (S.D. Fla. 2007) (approving settlement, and noting that “[a]bsent 

a settlement, Defendants would have defended these . . . lawsuits vigorously, with potential success 

and no recovery of any kind for Plaintiffs.”).

4. The Extent of Discovery Completed and the Stage of the 

Proceedings

The parties engaged in extensive discovery and motion practice that informed their decision 

regarding the sufficiency of the Settlement Agreement. This case has been vigorously litigated for 

the past three years. The parties engaged in significant motion practice, including a motion to

dismiss, a motion for class certification, a Rule 23(f) petition, 12 discovery motions (including 

motions related to ESI), a summary judgment motion, a Daubert motion to exclude the testimony 

and opinions of Plaintiffs’ two experts, and motions in limine. The parties also prepared and 

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930238.2 14 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

submitted pretrial filings, including a joint pretrial statement, proposed jury instructions, verdict 

forms and voir dire questions, trial exhibit lists and witness lists.

The parties engaged in extensive discovery. Plaintiffs served 65 Requests for Production, 

43 Interrogatories, and 42 Requests for Admission on Apple. Warshaw Decl., ¶ 11. 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. Id., ¶ 12. Plaintiffs took seven 

depositions of Apple, including two Rule 30(b)(6) depositions, and four depositions of non-parties.8

Id., ¶ 13. There were seven depositions of the parties’ five experts. Id., ¶ 14. Plaintiffs’ experts, 

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

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

deposed both Class Representatives. Id., ¶ 15. Apple requested and the Court ordered (over 

Plaintiffs’ objection), forensic imaging of the Class Representatives’ three iPhone 4 devices. Id., ¶ 

16. 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. Id. 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. Id. 

This production totaled over 370,000 files from within the Settings, Diagnostics, and Usages tabs, 

or otherwise related to the phone settings in general. Id. See also Dkt. No. 154.

The Court originally scheduled the close of fact discovery for August 17, 2018 and the close 

of expert discovery for September 7, 2018. Dkt. No. 54. Because the Court granted Plaintiffs’ 

request to extend the discovery cutoff date until September 7, 2018 (Dkt. No. 125), both fact 

discovery and expert discovery closed on that day. The extensive discovery process enabled each 

party to uncover evidence related to the claims and defenses—and to evaluate the evidence and 

witnesses—in this Action. 

This thorough and lengthy discovery and motion practice has allowed Plaintiffs and Apple 

8 Plaintiffs moved for relief from the ten-deposition limit set forth in Fed. R. Civ. P. 30(a)(2), to 

take additional depositions of Apple. The Court denied the request. Dkt. No. 222.

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930238.2 15 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

to fully evaluate the strengths and weakness of their respective positions in the litigation, and to 

assess their respective likelihood of success at trial and beyond.

5. The Experience and Views of Counsel

Preliminary approval is further justified by the fact that Plaintiffs and the Class are 

represented by court appointed co-lead counsel from Pearson, Simon & Warshaw, LLP, Steyer 

Lowenthal Boodrookas Alvarez & Smith LLP, Caldwell Cassady & Curry, and Friedman Oster & 

Tejtel PLC, who together have extensive experience in class action and complex litigation, have 

negotiated numerous other class action settlements, have successfully tried cases to verdict against 

Apple, and have the ability to litigate this Action on a class-wide basis through trial and appeal. 

Class Counsel secured satisfactory terms of settlement only after a thorough investigation of the 

factual and legal issues raised in this Action. Warshaw Decl., ¶ 17.

Further, the Settlement Agreement was the product of extensive arm’s-length and adversarial 

settlement discussions between the parties that spanned many months and several mediations. 

“Before approving a class action settlement, the district court must reach a reasoned judgment that 

the proposed agreement is not the product of fraud or overreaching by, or collusion among, the 

negotiating parties.” City of Seattle, 955 F.2d at 1290 (citations omitted); see also Fed. R. Civ. P. 

23(e)(2)(B). Where a settlement is the product of arm’s-length negotiations conducted by capable 

and experienced counsel, the court begins its analysis with a presumption that the settlement is fair 

and reasonable. See 4 Newberg on Class Actions § 13.45 (5th ed.). Further, “[c]ourts in this district 

have recognized that ‘the assistance of an experienced mediator in the settlement process confirms 

that the settlement is non-collusive.’” In re Anthem, 327 F.R.D. at 327 (citing G. F. v. Contra Costa 

Cty., No. 13-CV-03667-MEJ, 2015 WL 4606078 (N.D. Cal. July 30, 2015); In re Pac. Enters. Sec. 

Litig., 47 F.3d 373, 378 (9th Cir. 1995) (“[p]arties represented by competent counsel are better 

positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in 

litigation.”). As explained above, the Settlement Agreement was reached only after two in-person 

mediations with Judge Cahill, two in-person settlement conferences with Magistrate Judge Cousins, 

and extensive and prolonged negotiations conducted by phone and over email. At the conclusion

of those settlement negotiations, Magistrate Judge Cousins presented a mediator’s proposal, which

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930238.2 16 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

the parties accepted. Warshaw Decl., ¶ 10.

Drawing upon their considerable experience and expertise, Class Counsel negotiated and 

evaluated the Settlement, which resulted from a proposal by Magistrate Judge Cousins, and 

ultimately determined that the Settlement provided significant and substantive relief to the Class in 

the face of significant litigation risks, and therefore should be accepted. Warshaw Decl., ¶ 18.9

6. The Presence of a Government Participant

Plaintiffs investigated and pursued their claims independently. The appropriate federal and 

state officials will be notified pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715, and given 

an opportunity to raise any objections or concerns they may have prior to final approval.

7. The Reaction of the Class Members to the Proposed 

Settlement

Because notice has not yet been given, this factor is not yet implicated. However, Class

Representatives Christina Grace and Ken Potter both support the Settlement.

8. Other Factors 

The fact that over 90% of the Settlement Class Members of whom Apple has contact 

information will receive a check either by email or regular mail without needing to file a claim form 

or take any other action weighs strongly in favor of approving the Settlement. In many consumer 

class actions, the defendant has little to no contact information for class members. In those cases, 

the class members receive notice by publication and are required to submit a claim form in order to 

collect their share of the settlement fund. Here, Apple possesses robust records providing contact 

information for the individuals who meet the Class definition, and those people are not required to 

do anything in order to receive settlement proceeds. Apple has already verified their membership

9

See Larsen v. Trader Joe’s Co., No. 11-cv-05188-WHO, 2014 WL 3404531, at *5 (N.D. Cal. 

July 11, 2014) (“The opinions of counsel should be given considerable weight both because of 

counsel’s familiarity with this litigation and previous experience with cases.”); Glass v. UBS Fin. 

Servs., Inc., 2007 WL 221862, at *5 (“The settlement was negotiated and approved by 

experienced counsel on both sides of the litigation, with the assistance of a well-respected 

mediator . . . [and] this factor supports approval of the settlement.”).

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930238.2 17 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

in the Class and they will receive either an electronic check by email or a paper check by regular 

mail. The only thing the Settlement Class Members need to do is cash the check. Should Apple’s 

records prove imperfect, people who believe themselves to be Settlement Class Members but are 

not automatically notified will have an opportunity to apply to join the Settlement Class by 

completing and submitting a simple form on the settlement website. Settlement Agreement, ¶ 6.3.

9. Comparable Cases

Section 11 of the Court’s Guidance for Class Action Settlements states that “[l]ead class 

counsel should provide the following information for at least one of their past comparable class 

settlements (i.e. settlements involving the same or similar clients, claims, and/or issues).” Due to 

the unique characteristics of this Action,10 the only potentially comparable case handled by Class 

Counsel is In Re Carrier IQ, Inc. Consumer Privacy Litig., Case No. 3:12-md-02330-EMC (N.D. 

Cal.) (“Carrier”). However, while that case did relate to mobile devices, it addressed data privacy 

claims on behalf of a nationwide class as opposed to the California-only trespass to chattels claim 

at issue here. Pearson, Simon & Warshaw, LLP was appointed co-lead counsel for the class. 

Plaintiffs alleged that the Carrier IQ software embedded in the operating system of mobile phones 

intercepted private communications and data on approximately 30 million class members. The case 

settled for $9 million, and a common fund was created for payment of claims, attorney’s fees, costs, 

and claims administration. In contrast to the proposed Settlement of this Action, the defendants in 

Carrier did not have contact information for the class, such that the class members did not receive 

direct notice. Rather, print notice was published in USA Today and People Magazine, and internet 

notice was given through social media advertising and banner ads. 42,577 claim forms were 

submitted, reflecting a response rate of 0.14%. The average recovery per class member was $140. 

Cy pres recipients were eligible for the residue of uncashed checks, in the amount of $255,605.48 

10 As this Court noted at the May 17, 2017 Case Management Conference, few consumer class 

actions assert a claim for trespass to chattels. Tr., at 5:16-18 (“I haven’t seen a trespass cause of 

action in one of these consumer class actions.”) Moreover, in few consumer class actions does the 

Defendant have contact information for 90% of the class members.

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930238.2 18 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

each. Plaintiffs’ counsel were awarded attorneys’ fees amounting to 25% of the common fund

($2,225,000), and $108,933.72 in costs. The settlement administrator has been paid $605,311.40 to 

date.

C. The Rule 23(e)(2) Factors Are Met

Under Rule 23(e)(2), a court considering whether to grant approval of a class settlement 

must also consider whether: (1) the class representatives and class counsel have adequately 

represented the class; (2) the proposed settlement was negotiated at arm’s-length; (3) the relief 

provided for the class is adequate; and (4) the proposed settlement treats class members equitably 

relative to each other. Fed. R. Civ. P. 23(e)(2). These factors overlap substantially with the 

Churchill factors discussed above, and likewise support the granting of this Motion.

1. The Class Representatives and Class Counsel have 

Vigorously Represented the Class

Jill M. Manning, Daniel L. Warshaw, David F.E. Tejtel, and John Austin Curry were 

appointed as Interim Class Counsel on September 18, 2018 (Dkt. No. 269), have continued acting 

as class counsel throughout the litigation of this Action, and have provided excellent representation 

to the Class for over three years. As set forth in more detail in the Warshaw Declaration at ¶ 19, in 

litigating this Action, Counsel, inter alia:

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

FaceTime Break;

• Met with clients and secured retainer agreements;

• Drafted a complaint and amended complaint;

• Overcame a motion to dismiss;

• Undertook extensive and hotly contested discovery;

• Obtained the 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;

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930238.2 19 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Successfully opposed a potentially dispositive motion for summary 

judgment;

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

discussions; and

• Prepared for trial.

2. The Class Representatives’ Interests are Aligned with and 

are Not Antagonistic to the Other Class Members’ Interests. 

Each Class Representative committed substantial time to this Action, and each reviewed and 

approved of the proposed Settlement, finding it to be fair, reasonable, and adequate. The Class 

Representatives have fairly and adequately protected the interests of the Class. This consideration 

further supports approval of the Settlement. 

3. The Settlement was Negotiated at Arm’s-Length

As detailed above in Section II.C, the Settlement resulted from extensive, arm’s-length 

negotiations with two experienced and well-respected jurists and was reached following a 

mediator’s proposal from a Magistrate Judge. Warshaw Decl., ¶ 20. Accordingly, this factor is met.

4. The Relief Provided for the Class is Adequate.

Rule 23(e)(2)(C) directs the Court to consider whether the relief provided for the class is 

adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to the class, 

including the method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s fees, including timing of payment; 

and

(iv) any agreement required to be identified under Rule 23(e)(3).

The costs, risks, and delay of trial and appeal are discussed supra at Section IV.B.1. The 

effectiveness of the proposed notice and claims process is discussed supra at Section III.C. Apart 

from the Settlement Agreement and the Confidential Attachment thereto identified in paragraph 6.6, 

there are no agreements requiring disclosure under Rule 23(e)(3). Attorney’s fees are discussed 

infra at Section VII.

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930238.2 20 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

V. BECAUSE THE COURT ALREADY CERTIFIED THE CLASS, IT NEED NOT 

UNDERTAKE A RULE 23 ANALYSIS

The Court certified a California class of “[a]ll 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.” Dkt. No. 269. 

Accordingly, the Court need not repeat a Rule 23 analysis here.

VI. THE SETTLEMENT PROVIDES PROPER NOTICE TO THE CLASS

Rule 23(e)(1) states that “[t]he court must direct notice in a reasonable manner to all class 

members who would be bound by” any settlement. Fed. R. Civ. P. 23(e)(1)(B). Notice to the class 

must be “the best notice that is practicable under the circumstances, including individual notice to 

all members who can be identified through reasonable efforts.” Fed. R. Civ. P. 23(c)(2)(B); see also 

Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 617 (1997); Mullane v. Cen. Hanover Bank & Trust 

Co., 339 U.S. 306, 314 (1950). The notice must contain the following information: (1) the nature 

of the action; (2) the definition of the class; (3) the class claims, issues, or defenses; (4) that any 

Class Member may appear at the fairness hearing through an attorney; (5) that the court will exclude 

from the class any member who requests exclusion; (6) the time and manner from requesting 

exclusion’ and (7) the binding effect of a judgment on Class Members. Fed. R. Civ. P. 23(c)(2)(B). 

Here, Apple has contact information (either email addresses, physical addresses or both) for 

nearly all Settlement Class Members. Therefore, the primary means of notice in this Action will be 

direct notice via email to Class Members. Settlement Agreement, ¶ 6.2.3. For all Class Members 

whose email is returned as undeliverable or otherwise do not have a valid email address on file, the 

Settlement Administrator will send Postcard Notice via U.S. Mail. Id., ¶ 6.2.4.

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. Warshaw Decl., ¶ 21. The Settlement Website will also include an 

“Application for Inclusion in the Class” that may be submitted by individuals who believe 

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930238.2 21 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

themselves to be Settlement Class Members but who have not received email or mail notice. The 

Email Notice and Postcard Notice will contain the Settlement Website address. Class Members will 

be able to access the Settlement Website to participate in the settlement and exercise their rights 

thereunder.

The content of the notice complies with the requirements of Rule 23(c)(2)(B). As seen in 

the Full Notice, Email Notice and Postcard Notice attached to the Settlement Agreement, the notice 

describes the nature of the Action, states the definition of the class, explains the binding effect of 

the judgment on Class Members, and provides all the necessary information for Class Members to 

appear at the fairness hearing, file a claim, object to the settlement, and/or exclude themselves from 

the class. See Exhibits A-C to the Settlement Agreement. 

Pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715, Apple has agreed to provide 

notice to the appropriate federal and state officials upon the filing of this proposed settlement. 

Accordingly, the Court should approve the proposed notice plan.

VII. ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARDS

Class Counsel will apply for an award of reasonable attorneys’ fees in an amount not to 

exceed 30% of the common fund, or $5,400,000, and for a reimbursement of expenses and verified 

costs not to exceed $1,100,000. Settlement Agreement, ¶ 7.1. Any attorneys’ fees and costs 

awarded to Class Counsel will be paid from the Settlement Fund. Class Counsel’s estimated lodestar 

through February 2020 is $8,398,910. Warshaw Decl., ¶ 22. Therefore, the maximum fee request 

results in a “negative multiplier” of 0.64. Id.

In a class action settlement, a court may award reasonable attorneys’ fees as authorized by 

law or by the parties’ agreement. See Fed. R. Civ. P. 23(h); Hendricks v. Starkist Co., No. 13-

00729, 2016 WL 5462423, at *10 (N.D. Cal. Sept. 29, 2016), aff’d, 2018 WL 5115482 (9th Cir. 

Oct. 19, 2018) (court may award reasonable attorneys’ fees and costs where “a litigant proceeding 

in a representative capacity secures a ‘substantial benefit’ for a class of persons”). The two primary 

methods for determining a reasonable fee are the “lodestar” and “percentage-of-the-fund” methods. 

Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); Six Mexican Workers v. Ariz. 

Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (“the choice between lodestar and percentage 

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930238.2 22 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

calculation depends on the circumstances, but . . . ‘either method may . . . have its place in 

determining what would be reasonable compensation for creating a common fund.’”). The attorney 

fee request is reasonable under either method.

1. “Percentage-of-the-Fund” Method

The Ninth Circuit requires “only that fee awards be reasonable in the circumstances.” 

Rodriguez, 563 F.3d at 967. Using the percentage-of-the-fund method, “the court typically begins

with the 9th Circuit ‘benchmark’ of 25%, and then explains what special circumstances justify a 

deviation upward or downward from that benchmark.” In re Cathode Ray Tube (CRT) Antitrust 

Litig., 2016 WL 721680, *34 (N.D. Cal. Jan. 28, 2016). In deciding whether to adjust the 25% 

benchmark, the court considers the following criteria in a common fund case: (a) the results achieved 

for the Class; (b) the complexity of the case and the risk and expense to counsel; (c) the skill, 

experience and performance of counsel; (d) the contingent nature of the fee; and (e) the fees awarded 

in comparable cases. Vizcaino, 290 F.3d at 1048–1049; In re Bluetooth Headset Prod. Liab. Litig.,

654 F.3d 935, 942 (9th Cir. 2011). 

2. Lodestar Cross-Check

“To guard against an unreasonable result, the Ninth Circuit encourages district courts to 

‘cross-check[] their calculations against a second method.’” In re High-Tech Employee Antitrust 

Litig., 2015 WL 5158730, *6 (N.D. Cal. Sept. 2, 2015) (citations omitted). Class Counsel’s 

estimated lodestar through February 2020 is $8,398,910. Therefore, the fee request results in a 

“negative multiplier” of 0.64. Warshaw Decl., ¶ 22. This amount falls below the range commonly 

approved in the Ninth Circuit. See In re Yahoo Mail Litig., No. 13-CV-4980-LHK, 2016 WL 

4474612, at *11 (N.D. Cal. Aug. 25, 2016) (discussing a survey of “attorney’s fees awards in 

common fund cases ranging from $50 to 200 million between 1996 and 2001” and finding that in 

“the vast majority of cases (20 of 24, or 83%), the multiplier ranged from 1.0–4.0.”) (citing Vizcaino, 

290 F.3d at 1052-54).

In sum, the relief provided to the Classes, including a maximum award of attorney's fees 

representing 64% of counsel’s current lodestar, strongly supports granting this Motion.

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930238.2 23 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

3. Incentive Awards

Class Counsel also will apply for incentive awards for the two Class Representatives, 

Christina Grace and Ken Potter, of up to $7,500 each, for a total cost of no more than $15,000. 

Settlement Agreement, ¶ 7.2. If approved by the Court, these incentive awards will be paid from 

the Settlement Fund. The individual settlement awards are designed to compensate the Class 

Representatives for their service to the Class and for their commitment and time spent working on 

the Action. 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. Warshaw Decl., ¶ 23. The requested incentive awards fall well within the range 

authorized by the Ninth Circuit and approved in this District. Bellinghausen v. Tractor Supply Co., 

306 F.R.D. 245, 266-67 (N.D. Cal. 2015) (collecting cases showing that incentive awards typically

range between $2,500 and $10,000); Hickcox-Huffman v. US Airways, Inc., No. 10-CV-05193-

VKD, 2019 WL 1571877, at *2 (N.D. Cal. Apr. 11, 2019) (“the amount of $10,000.00 is fair and 

reasonable in light of the amount of personal time devoted to fulfilling her duties as the class 

representative in this action.”); Arelvarez v. Farmers Ins. Exch., No. 3:14-CV-00574-WHO, 2017 

WL 2214585, at *1 (N.D. Cal. Jan. 18, 2017) (finding a $10,000 service awards fair and reasonable 

in light of the fact that the amount is a small percentage, (0.002%), of the overall recovery); In re 

Anthem, Inc. Data Breach Litig., No. 15-MD-02617-LHK, 2018 WL 3960068, at *31 (N.D. Cal. 

Aug. 17, 2018) (awarding $7,500 incentive payments to the 29 representative plaintiffs who had 

their computers forensically examined).

The Notice explains that the Plaintiffs intend to file a motion for attorneys’ fees, costs, and 

incentive awards so that Class Members will be aware of the proposed requests. The motion for 

attorneys’ fees, costs, and incentive awards will be filed at least thirty-five days before the deadline 

for objections. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 995 (9th Cir. 2010) 

(holding that Class Members should have adequate time to review motion for attorneys’ fees before 

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930238.2 25 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

IX. CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that the Court grant preliminary 

approval of the Settlement Agreement, approve the proposed notice plan, and enter a final approval

hearing schedule.

DATED: April 27, 2020 Respectfully submitted,

By: /s/ Daniel L. Warshaw

DANIEL L. WARSHAW

PEARSON, SIMON & WARSHAW, LLP

Clifford H. Pearson (Bar No. 108523)

Daniel L. Warshaw (Bar No. 185365)

Thomas J. Nolan (Bar No. 66992)

Alexander L. Simon (Bar No. 305734)

15165 Ventura Boulevard, Suite 400

Sherman Oaks, CA 91403

Telephone: (818) 788-8300

cpearson@pswlaw.com

tnolan@pswlaw.com

dwarshaw@pswlaw.com

asimon@pswlaw.com

PEARSON, SIMON & WARSHAW, LLP

Bruce L. Simon (Bar No. 96241)

350 Sansome Street, Suite 680

San Francisco, CA 94104

Telephone: (415) 433-9000

bsimon@pswlaw.com

STEYER LOWENTHAL BOODROOKAS 

 ALVAREZ & SMITH LLP

Allan Steyer (Bar No. 100318)

Jill M. Manning (State Bar No. 178849)

D. Scott Macrae (State Bar No. 104663)

235 Pine Street, 15th Floor

San Francisco, CA 94104

Telephone: (415) 424-3400

asteyer@steyerlaw.com

jmanning@steyerlaw.com

smacrae@steyerlaw.com

FRIEDMAN OSTER & TEJTEL PLLC

David F.E. Tejtel (admitted pro hac vice)

493 Bedford Center Road, Suite 2D

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930238.2 26 Case No. 5:17-cv-00551-LHK-NC

NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Bedford Hills, NY 10507

Telephone: (646) 661-5881

dtejtel@fotpllc.com

CALDWELL CASSADY & CURRY

Bradley W. Caldwell (admitted pro hac vice)

Jason D. Cassady (admitted pro hac vice)

John Austin Curry (admitted pro hac vice)

2121 N. Pearl Street, Suite 1200

Dallas, TX 75201

Telephone: (214) 888-4848

bcaldwell@caldwellcc.com

jcassady@caldwellcc.com

acurry@caldwellcc.com

Counsel for Plaintiffs and the Class

Case 5:17-cv-00551-LHK Document 414 Filed 04/27/20 Page 34 of 34