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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`JAMES P. BRICKMAN, individually and as a
`representative of all others similarly situated,
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`Case No. 3:15-cv-2077-JD
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`Plaintiff,
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`[PROPOSED] SETTLEMENT ORDER
`AND FINAL JUDGMENT
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`v.
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`FITBIT, INC.,
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`Defendant.
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077-JD
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 2 of 9
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`SETTLEMENT ORDER AND FINAL JUDGMENT
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`This matter was heard on February 6, 2020, before the Court, pursuant to the previous order
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`preliminarily approving the settlement and setting a Final Approval Hearing (“Preliminary
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`Approval Order”) entered on December 17, 2018, (Dkt. No. 275) for the purpose of determining:
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`(i) whether the settlement of the action, on the terms and conditions set forth in the Settlement
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`Agreement and Release (“Agreement”) between Plaintiffs and Defendant Fitbit, Inc., should be
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`approved as fair, reasonable, and adequate ; (ii) the amount of attorneys’ fees and expenses to be
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`awarded to Class Counsel; and (iii) objections, if any, made to the Agreement, or any of its terms.
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`IT IS NOW ORDERED:
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`1.
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`Words in this Judgment shall have the same meaning as defined terms in the
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`Agreement.
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`2.
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`The Court has jurisdiction over this case, over all claims raised therein, all Parties
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`to this Action, and Class Members.
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`3.
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`The Court hereby finalizes its prior preliminary class certification of this Action, for
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`settlement purposes only, as a class action. In so doing, the Court finds, for settlement purposes only,
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`that the Action meets all the requirements of Rule 23 of the Federal Rules of Civil Procedure and due
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`process and can therefore be certified as a class action, because: (1) the Settlement Sub-Classes
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`defined below are identifiable and are not ambiguous; (2) Plaintiffs are members of the Settlement
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`Sub-Classes; (3) the Settlement Sub-Classes are so numerous that joinder of all members is
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`impracticable; (4) there are questions of law or fact that are common to the Settlement Sub-Classes
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`and predominate over any individual questions; (5) the claims of Plaintiffs are typical of the claims
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`of the Class Members; (6) Plaintiffs and Class Counsel will fairly and adequately protect the
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`interests of the Settlement Sub-Classes; and (7) the requirements of Rule 23(b)(3) are met.
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`4.
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`For the purposes of settlement only and this Judgment finally approving the
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`Agreement, the Court hereby certifies, under Fed. R. Civ. P. 23(b)(3), the following
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`Settlement Sub-Classes, defined as follows:
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 3 of 9
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`a. California Sub-Class: All persons who purchased in the State of California,
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`and registered online, a Fitbit Flex, One, or Ultra between 2009 and October
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`27, 2014 (Represented by Margaret Clingman);
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`b. Florida Sub-Class: All persons who purchased in the State of Florida, and
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`registered online, a Fitbit Flex, One, or Ultra between 2009 and October 27,
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`2014 (Represented by James P. Brickman);
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`c. New York Sub-Class: All persons who purchased in the State of New York
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`and registered online a Fitbit Flex, One, or Ultra between March 26, 2012
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`and October 27, 2014 (Represented by Carissa Ray);
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`d. Pennsylvania Sub-Class: All persons who purchased in the State of
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`Pennsylvania, and registered online, a Fitbit Flex, One, or Ultra between
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`March 26, 2012 and October 27, 2014 (Represented by Michael Landis);
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`e. Ohio Sub-Class: All persons who purchased in the State of Ohio, and
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`registered online, a Fitbit Flex, One, or Ultra between March 26, 2012 and
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`October 27, 2014 (Represented by Erica Wathey);
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`f. Michigan Sub-Class: All persons who purchased in the State of Michigan,
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`and registered online, a Fitbit Flex, One, or Ultra between March 26, 2012
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`and October 27, 2014 (Represented by Stephanie Curtis);
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`g. New Jersey Sub-Class: All persons who purchased in the State of New
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`Jersey, and registered online, a Fitbit Flex, One, or Ultra between March 26,
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`2012 and October 27, 2014 (Represented by Carolyn Ciavarella);
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`h. Missouri Sub-Class: All persons who purchased in the State of Missouri,
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`and registered online, a Fitbit Flex, One, or Ultra between March 26, 2013
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`and October 27, 2014 (Represented by James Gau);
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`i. Multi-State Sub-Class: All persons who purchased in the State of Illinois,
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`and registered online, a Fitbit Flex, One, or Ultra between March 26, 2013
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`and October 27, 2014 or purchased in the State of Washington, State of
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 4 of 9
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`Texas, State of Georgia, or State of North Carolina, and registered online, a
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`Fitbit Flex, One, or Ultra between March 26, 2014 and October 27, 2014
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`(Represented by Amanda Samy).
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`5.
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`Based on the evidence presented at the hearing, the Court finds that notice has been
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`given to Class Members pursuant to and in compliance with the Preliminary Approval Order,
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`Agreement, and the Court-approved Reminder Campaign, and that the Class Notice and Summary
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`Notice and the notice methodology adopted pursuant to the Preliminary Approval Order, the
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`Agreement, and the Court-approved Reminder Campaign was reasonable and the best notice
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`practicable; satisfied due process requirements; provided Class Members with fair and adequate
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`notice of the certification of the Settlement Sub-Classes and of the Final Approval Hearing;
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`provided adequate information concerning the hearing, the right to be excluded from the Settlement
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`Sub-Classes, the Agreement, and the right of Class Counsel to apply for an award of attorneys’ fees
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`and expenses. Accordingly, the Class Notice, Summary Notice, and Claim Form are finally approved
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`as fair, reasonable, and adequate. The Court finds and concludes that due and adequate notice of
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`the pendency of this Action and of the Agreement has been provided to Class Members, and the
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`Court further finds and concludes that notice of the Agreement as described in the Preliminary
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`Approval Order and completed by the Parties complied fully with the requirements of Federal Rule
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`of Civil Procedure 23 and the requirements of due process under the United States Constitution.
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`6.
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`The Court finds that the Agreement was entered into in good faith between Plaintiffs
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`and Fitbit, and is the result of non-collusive, diligent, and good faith arm’s length negotiations by
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`the Parties thereto. In addition, the Court finds that Final Approval of the Agreement will result in
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`substantial savings in time and resources of the Court and the Parties and will further the interests
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`of justice, and is in the best interest of the Settlement Sub-Classes, especially in light of the benefits
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`to the Settlement Sub-Classes and the costs and risks associated with the complex proceedings
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`necessary to achieve a favorable result in this Action. Further, the Court finds that the Agreement
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`is fair, reasonable, and adequate to Class Members based on proceedings in this Action, discovery,
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`due diligence, and the absence of material objections sufficient to deny approval.
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 5 of 9
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`7.
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`Therefore, the terms of the present settlement, as set forth in the Agreement, are
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`hereby determined to be fair, reasonable, and adequate. Accordingly, the Agreement, including
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`each of its respective terms and conditions, is hereby finally approved by and incorporated as part
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`of this Judgment.
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`8.
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`The Court hereby enters final judgment approving the settlement, as set forth in the
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`Agreement. In accordance with the Agreement and this Judgment, the Court hereby enters
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`judgment fully and finally terminating all claims of Plaintiffs and the Settlement Sub-Classes
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`against Fitbit, on the merits, with prejudice, and without leave to amend.
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`9.
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`The Court further finds that all Class Members who have not timely and properly
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`excluded themselves, regardless of whether such Class Members have claimed or obtained benefits
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`under the Agreement, shall, by operation of this Judgment, and do release, dismiss with prejudice,
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`and forever discharge Defendant Fitbit, Inc., and each of its past or present directors, officers,
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`employees, agents, insurers, shareholders, attorneys, advisors, consultants, representatives,
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`partners, affiliates, parents, subsidiaries, joint venturers, independent contractors, wholesalers,
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`resellers, distributors, retailers, related companies, and divisions, and each of their predecessors,
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`successors, heirs, and assigns (collectively, “Released Persons”), from any and all liabilities,
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`claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts, agreements,
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`damages, costs, attorneys’ fees, losses, expenses, obligations, or demands, of any kind whatsoever,
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`whether known or unknown, existing or potential, or suspected or unsuspected, whether raised by
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`claim, counterclaim, setoff, or otherwise, including any known or unknown claims, which they
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`have or may claim now or in the future to have, that were or could have been alleged or asserted
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`against any of the Released Persons in this Action, arising out of or related to claims relating to the
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`sleep-tracking feature of the Devices and Fitbit’s advertising regarding the same.
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`10.
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`Those Class Members who timely and properly requested exclusion from the
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`Settlement Sub-Classes are identified in Exhibit G to the Affidavit of Deborah McComb (Dkt. No.
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`309-2) on behalf of KCC, the Settlement Administrator, filed with the Court. The Court approves
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`this list of Class Members who have excluded themselves from the Settlement Sub-Classes, and
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 6 of 9
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`those individuals are excluded from the Settlement Sub-Classes. All other Class Members of the
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`Settlement Sub-Classes are, together with their heirs, estates, trustees, executors, administrators,
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`principals, agents, beneficiaries, assigns, successors, and legal representatives bound by this
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`Judgment and all proceedings embodied by the Agreement, including the releases provided for in
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`this Judgment.
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`11.
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`Class Representatives, on behalf of themselves and all Class Members, and
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`Defendant shall by operation of this Judgement, be deemed to have waived the provisions, rights
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`and benefits of California Civil Code § 1542, and any similar law of any state or territory included
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`in the Settlement Sub-Classes or principle of common law. As of the date of the Parties Settlement,
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`California Civil Code § 1542 read as follows:
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`Certain Claims Not Affected By General Release: A general release
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`does not extend to claims which the creditor does not know or suspect
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`to exist in his or her favor at the time of executing the release, which
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`if known by him or her must have materially affected his or her
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`settlement with the debtor.1
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`12.
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`The Court finds that Plaintiffs and counsel for Plaintiffs and the Settlement Class,
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`Patrick J. Perotti and Frank A. Bartela, of Dworken & Bernstein Co., LPA, and Ronald A. Margolis,
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`of Bonezzi Switzer Polito & Hupp Co., L.P.A., have fairly and adequately satisfied the
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`requirements of Rule 23 in representing the class.
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`13.
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`For the reasons stated in the March 20, 2020
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` separate Order on Class
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`Counsel’s Motion for an Award of Attorneys’ Fees and Costs and Incentive Compensation (Dkt.
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`No. 282), and Class Counsel having accepted on August 9, 2019 (Dkt. No. 302) this Court’s election
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`proposed on August 1, 2019 (Final Approval Hearing Transcript, August 1, 2019, Dkt. No. 298, at
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`pp. 8, 10 and 14) of a reduction in lodestar awarded from $3,851,425 down to $2,765,732.05
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`combined with a multiplier of 2.5 on that lodestar, and Class Counsel having accepted on August
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`1 Section 1542 was amended on January 1, 2019 to read, "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." This
`revision to the statutory language does not impact the Court's Order.
`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 7 of 9
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`7, 2019 (Dkt. No. 300) this Court’s reduction of costs from $366,944.48 to $151,610.80, the
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`following amounts shall be paid by Defendant
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`a. The sum of $7,065,940.93 is hereby awarded as the entire attorneys’ fees and
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`reimbursement to Class Counsel for costs and expenditures in this Action, consisting
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`of $6,914,330.13 for all fees for legal services, and $151,610.80 for all costs, all
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`disbursements, all out-of-pocket expenses, and all other expenditures pursuant to the
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`Court’s Order on Class Counsel’s Motion for an Award of Attorneys’ Fees and
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`Costs and Incentive Compensation. (Dkt. No. 282).
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`b. 25% of the $7,065,940.93 in fees will be paid after counsel have filed the Post-
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`Distribution Accounting required by the N.D. Cal. Procedural Guidance for Class
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`Action Settlements.
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`c. The sum of $5,000.00 each is hereby awarded as incentive compensation to
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`Plaintiffs Brickman and Clingman for their efforts in litigating and settling this
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`Action for the Settlement Class Members. These sums shall be paid by Fitbit to
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`Plaintiffs and Class Counsel representing Plaintiffs and the Class Members pursuant
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`to the terms and conditions and at the time set forth in the Agreement.
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`d. The sum of $500 each is hereby awarded as incentive compensation to Plaintiffs
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`Carissa Ray, Stephanie Curtis, Michael Landis, Carolyn Ciavarella, Erica Wathey,
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`James E. Gau, II, and Amanda Samy for their efforts in litigating and settling this
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`Action for the Settlement Class Members. These sums shall be paid by Fitbit to
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`Plaintiffs and Class Counsel representing Plaintiffs and the Settlement Class
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`Members pursuant to the terms and conditions and at the time set forth in the
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`Agreement.
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`14.
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`The Court overrules the objection of Wanda J. Cochran (Dkt. No. 286) as it lacks
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`any merit and fails to provide any support for its opposition to Class Counsel’s motion for an award
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`of attorneys’ fees and costs. Further, the Court strikes the Cochran objection as the objector failed
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`to provide the reasonable materials and information required by the Agreement and the Preliminary
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077
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`Case 3:15-cv-02077-JD Document 317 Filed 03/20/20 Page 8 of 9
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`Approval Order.
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`15.
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`The Parties are directed to consummate the Agreement in accordance with its terms.
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`Fitbit shall pay the costs of administration of the settlement, in accordance with the terms and
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`conditions set forth in the Agreement.
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`16.
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`Disbursements to eligible Settlement Class Members who timely file proper Claim
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`Forms, will be made by the Settlement Administrator or Fitbit in the manner, within the time
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`periods, and under the terms and conditions provided in the Agreement. Fitbit will provide funds
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`as necessary to the Settlement Administrator to make disbursements to eligible Settlement Class
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`Members, as provided in the Agreement.
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`17.
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`The Settlement Administrator will discharge all aspects of notice, payment, and
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`other settlement administration in accordance with the Agreement.
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`18.
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`Neither this Judgment, the Agreement, the fact of settlement, the settlement
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`proceedings, settlement negotiations, nor any related document, shall be used as an admission of
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`any act or omission by Fitbit or any other Released Person, or be offered or received in evidence
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`as an admission, concession, presumption, or inference of any wrongdoing by Fitbit or any other
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`Released Person, in any action or proceeding in any court, administrative panel or proceeding, or
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`other tribunal, other than such proceedings as may be necessary to consummate or enforce the
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`Agreement.
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`19.
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`20.
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`Nothing herein shall bar any action or claim to enforce the terms of the Agreement.
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`The Parties are hereby authorized without further approval from the Court to agree
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`upon such amendments or modifications of the Agreement and all exhibits thereto as shall be
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`consistent in all respects with this Judgment and do not limit the rights of Class Members.
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`21. Without affecting the finality of this Order, the Court retains jurisdiction over this
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`Agreement to the extent necessary to implement, enforce, and administer the Agreement and this
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`Judgment. Upon written report of the Settlement Administrator that all distributions have been
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`made pursuant to the Agreement, the Court will dismiss this Action with prejudice and without
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`costs or attorneys’ fees (except such costs and fees as are awarded herein) as to all claims that were
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077
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`asserted or could have been asserted by Plaintiff and/or the Settlement Sub-Classes.
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`Notwithstanding the foregoing, this Order constitutes a final and complete adjudication of the
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`claims of the Settlement Sub-Classes and other matters presented herein, and the Court expressly
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`determines that there is no just reason for delay, pursuant to Rule 54(B).
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`March 20
`Dated: ________________, 2020
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`____________________________________
`JAMES DONATO
`United States District Judge
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`PLAINTIFFS’ PROPOSED SETTLEMENT ORDER AND FINAL JUDGMENT
`Case No. 3:15-cv-2077
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`8
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