Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 1 of 74
`
`
`
`EDELSON PC
`Jay Edelson (pro hac vice)
`Benjamin H. Richman (pro hac vice)
`Alexander G. Tievsky (pro hac vice)
`350 North LaSalle Street, 14th Floor
`Chicago, IL 60654
`Telephone: (312) 589-6370
`Fax: (312) 589-6379
`jedelson@edelson.com
`ROBBINS GELLER RUDMAN & DOWD LLP
`Shawn A. Williams (213113)
`John H. George (292332)
`One Montgomery Street, Suite 1800
`San Francisco, CA 94104
`Telephone: (415) 288-4545
`Fax: (415) 288-4534
`shawnw@rgrdlaw.com
`
`LABATON SUCHAROW LLP
`Michael P. Canty (pro hac vice)
`Corban S. Rhodes (pro hac vice)
`140 Broadway
`New York, NY 10005
`Telephone: (212) 907-0700
`Fax: (212) 818-0477
`mcanty@labaton.com
`
`
`COOLEY LLP
`Michael G. Rhodes (116127)
`Whitty Somvichian (194463)
`101 California Street, 5th Floor
`San Francisco, CA 94111
`Telephone: (415) 693-2000
`Fax: (415) 693-2222
`rhodesmg@cooley.com
`
`MAYER BROWN LLP
`Lauren R. Goldman (pro hac vice)
`Michael Rayfield (pro hac vice)
`1221 Avenue of the Americas
`New York, NY 10020
`Telephone: (212) 506-2500
`lrgoldman@mayerbrown.com
`
`John Nadolenco (181128)
`350 South Grand Avenue, 25th Floor
`Los Angeles, CA 90071
`Telephone: (213) 229-9500
`jnadolenco@mayerbrown.com
`
`Counsel for the parties
`[Additional counsel appear on signature page.]
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`)
`Master File No. 3:15-cv-03747-JD
`In re FACEBOOK BIOMETRIC
`)
`INFORMATION PRIVACY LITIGATION
`)
`CLASS ACTION
`
`)
`)
`NOTICE OF AMENDED STIPULATION OF
`)
`CLASS ACTION SETTLEMENT
`)
`)
`
`
`This Document Relates To:
`ALL ACTIONS.
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`NOTICE OF AMENDED STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 2 of 74
`
`
`
`In connection with the hearing scheduled for July 23, the parties advise the Court that they
`have revised their stipulation of settlement (including a revised settlement amount). A true and
`correct copy of the revised stipulation of settlement is attached hereto as Exhibit A.
`
`
`DATED: July 22, 2020
`
`DATED: July 22, 2020
`
`DATED: July 22, 2020
`
`COOLEY LLP
`Michael G. Rhodes (116127)
`Whitty Somvichian (194463)
`
` /s/ Michael G. Rhodes
`Michael G. Rhodes
`Counsel for Defendant Facebook, Inc.
`101 California Street, 5th Floor
`San Francisco, CA 94111-5800
`Telephone: 415/693-2000
`415/693-2222 (fax)
`
`LABATON SUCHAROW LLP
`Michael P. Canty (pro hac vice)
`Corban S. Rhodes (pro hac vice)
`
` /s/ Michael P. Canty
`Michael P. Canty
`Counsel for Plaintiffs and the Class
`
`140 Broadway
`New York, NY 10005
`Telephone: 212/907-0700
`212/818-0477 (fax)
`
`ROBBINS GELLER RUDMAN & DOWD LLP
`Paul J. Geller (pro hac vice)
`
` /s/ Paul J. Geller
`Paul J. Geller
`Counsel for Plaintiffs and the Class
`
`120 East Palmetto Park Road, Ste. 500
`Boca Raton, FL 33432
`Telephone: 561/750-3000
`561/750-3364 (fax)
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`NOTICE OF AMENDED STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 1 -
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 3 of 74
`
`
`
`DATED: July 22, 2020
`
`
`
`EDELSON PC
`Jay Edelson (pro hac vice)
`Benjamin Richman (pro hac vice)
`Alexander G. Tievsky (pro hac vice)
`Rafey Balabanian
`Lily Hough
`
` /s/ Jay Edelson
`
`Jay Edelson
`Counsel for Plaintiffs and the Class
`
`350 North LaSalle Street, 14th Floor
`Chicago, IL 60654
`Telephone: 312/589-6370
`312/589-6378 (fax)
`
`123 Townsend Street
`San Francisco, CA 94107
`Telephone: 415/212-9300
`415/373-9435 (fax)
`
`
`
`ATTESTATION
`
`
`Pursuant to Civil Local Rule 5-1(i)(3), all signatories concur in filing this Stipulated Request.
`
`
`
`Dated: July 22, 2020
`
`
`
`
`
`
`230466363
`
`
`
`
`
`
`
`
`
`
`/s/ Michael G. Rhodes
`
`Michael G. Rhodes
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`NOTICE OF AMENDED STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 2 -
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 4 of 74
`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 4 of 74
`
`
`
`
`
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 5 of 74
`
`COOLEY LLP
`Michael G. Rhodes (116127)
`Whitty Somvichian (194463)
`101 California Street, 5th Floor
`San Francisco, CA 94111
`Telephone: (415) 693-2000
`Fax: (415) 693-2222
`rhodesmg@cooley.com
`MAYER BROWN LLP
`Lauren R. Goldman (pro hac vice)
`Michael Rayfield (pro hac vice)
`1221 Avenue of the Americas
`New York, NY 10020
`Telephone: (212) 506-2500
`lrgoldman@mayerbrown.com
`John Nadolenco (181128)
`350 South Grand Avenue, 25th Floor
`Los Angeles, CA 90071
`Telephone: (213) 229-9500
`jnadolenco@mayerbrown.com
`
`EDELSON PC
`Jay Edelson (pro hac vice)
`Benjamin H. Richman (pro hac vice)
`Alexander G. Tievsky (pro hac vice)
`350 North LaSalle Street, 14th Floor
`Chicago, IL 60654
`Telephone: (312) 589-6370
`Fax: (312) 589-6379
`jedelson@edelson.com
`ROBBINS GELLER RUDMAN & DOWD LLP
`Shawn A. Williams (213113)
`John H. George (292332)
`One Montgomery Street, Suite 1800
`San Francisco, CA 94104
`Telephone: (415) 288-4545
`Fax: (415) 288-4534
`shawnw@rgrdlaw.com
`LABATON SUCHAROW LLP
`Michael P. Canty (pro hac vice)
`Corban S. Rhodes (pro hac vice)
`140 Broadway
`New York, NY 10005
`Telephone: (212) 907-0700
`Fax: (212) 818-0477
`mcanty@labaton.com
`
`Counsel for the parties
`[Additional counsel appear on signature page.]
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`In re FACEBOOK BIOMETRIC
`Master File No. 3:15-cv-03747-JD
`INFORMATION PRIVACY LITIGATION
`CLASS ACTION
`AMENDED STIPULATION OF
`CLASS ACTION SETTLEMENT
`
`This Document Relates To:
`ALL ACTIONS.
`
`))))))))
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 6 of 74
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`This Amended Stipulation of Class Action Settlement is entered into by and among
`Plaintiffs Nimesh Patel, Adam Pezen, and Carlo Licata (together “Plaintiffs”) for themselves
`individually and as appointed representatives of the Class certified by the Court, and
`Defendant Facebook, Inc. (“Facebook” or “Defendant”).1 This Settlement Agreement is
`intended by the Plaintiffs and Facebook, (collectively, the “Parties”) to fully, finally, and
`forever resolve, discharge, and settle the Released Claims upon and subject to the terms and
`conditions in this Agreement, and is subject to the approval of the Court.
`I.
`RECITALS
`1.
`On April 1, 2015, Plaintiff Carlo Licata filed a putative class action complaint
`against Facebook in the Circuit Court of Cook County, Illinois, alleging violations of the Illinois
`Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”), related to the alleged
`unauthorized collection and storage of his biometric data, which Facebook removed to the United
`States District Court for the Northern District of Illinois. Shortly thereafter, Adam Pezen and
`Nimesh Patel brought similar claims in the United States District Court for the Northern District
`of Illinois.
`On July 1, 2015, Facebook moved to transfer venue to the United State District
`2.
`Court for the Northern District of California. On July 29, 2015, the Pezen and Patel cases, along
`with the removed Licata case, were transferred to this Court, and consolidated into this Action.
`On August 28, 2015, the Parties filed a consolidated class action complaint against Facebook.
`3.
`On October 9, 2015, Facebook moved to dismiss the consolidated class action
`complaint. The Court converted a portion of defendant’s motion to dismiss into a summary
`judgment motion under Rule 56. Following expedited discovery and an evidentiary hearing, the
`Court denied Defendants’ motion on May 5, 2016.
`4.
`On June 29, 2016, Facebook filed a motion to dismiss under Rule 12(b)(6) and Rule
`12(h)(3) for lack of subject matter jurisdiction under the Supreme Court’s decision in Spokeo, Inc.
`
`1 Unless otherwise specified, capitalized terms shall have the definitions ascribed to them in
`Section I, infra.
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`- 1 -
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 7 of 74
`
`
`
`v. Robins, 136 S. Ct. 1540 (2016). On February 7, 2017, the Rules 12(b)(6) and 12(h)(3) motion
`was administratively terminated with leave to renew pending the Ninth Circuit’s decision in
`Spokeo on remand from the Supreme Court.
`Subsequently, the Parties conducted significant fact and expert discovery, including
`5.
`a second round of depositions of all plaintiffs, the Parties’ respective experts, and Facebook fact
`witnesses, bringing the total number of depositions taken and/or defended to eleven. The Parties
`filed three motions to compel and/or for protective orders. Additionally, Plaintiffs and their experts
`conducted seven weeks of on-site review of Facebook’s source code relevant to the claims and
`defenses in the Action.
`On September 28, 2017, Facebook again renewed its motion to dismiss for lack of
`6.
`subject matter jurisdiction, which the Court denied on February 26, 2018.
`On December 8, 2017, Plaintiffs moved for class certification. On April 16, 2018,
`7.
`the Court granted Plaintiffs’ motion for class certification, in part, by certifying a class consisting
`of: “Facebook users located in Illinois for whom Facebook created and stored a face template after
`June 7, 2011.” The Court ordered that notice to the Class be provided to all persons present in
`Illinois sixty (60) continuous days by email through a third-party administrator as well as by jewel
`notification and the Facebook newsfeed by Facebook. On April 30, 2018, Facebook sought
`permission to appeal the class certification order under Rule 23(f) by the United States Court of
`Appeals for the Ninth Circuit (“Ninth Circuit”).
`On December 8, 2017, Facebook moved for summary judgment based on Illinois’
`8.
`Extraterritoriality Doctrine and the Dormant Commerce Clause. On March 16, 2018, Facebook
`filed another motion for summary judgment raising statutory arguments under BIPA. Plaintiffs
`also moved for summary judgment that same day. On May 14, 2018, the Court denied the three
`outstanding summary judgment motions.
`The Action was scheduled for a jury trial set to begin on July 9, 2018. On May 17,
`9.
`2018, eight Motions in Limine were exchanged by the Parties, pursuant to the Court’s standing
`order.
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 2 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 8 of 74
`
`
`
`On May 24, 2018, the Court issued an order stating that pre-trial class notice must
`10.
`be published no later than May 31, 2018. On May 29, 2018, the Court denied Facebook’s motion
`for a stay. On May 25, 2018, Facebook made an emergency motion in the Ninth Circuit, asking
`that court to stay the district court proceedings pending consideration of its 23(f) petition. This
`motion was granted and the appeal proceeded in the Ninth Circuit.
`Plaintiffs, Defendants, and multiple Amici Curiae briefed the issues for appeal and
`11.
`the Ninth Circuit held an oral argument on June 12, 2019. On August 8, 2019, the Ninth Circuit
`affirmed this Court’s order granting class certification. On September 9, 2019, Facebook petitioned
`the Ninth Circuit for rehearing or rehearing en banc, which was denied. On December 2, 2019,
`Facebook filed a petition for a writ of certiorari with the Supreme Court of the United States. On
`Facebook’s motion, the Ninth Circuit stayed issuance of its mandate pending the Supreme Court’s
`resolution of its petition. On January 21, 2020 the Supreme Court denied Facebook’s petition.
`The Parties attempted to resolve this dispute through mediation three times during
`12.
`these proceedings. First, on May 16, 2017, the Parties exchanged statements and attended a private
`mediation with Judge Layn Phillips (ret.), but were unable to reach a resolution. On May 4, 2018,
`the Parties again participated in a Court-ordered mediation before Magistrate Judge Donna M.
`Ryu, but were unable to reach an agreement. On January 15, 2020, the Parties participated in a
`third mediation with Ambassador Jeff L. Bleich (ret.) in San Francisco. After considerable arms-
`length negotiations, the Parties were able to reach an agreement to resolve this Action.
`The Parties presented the Court with an agreement to resolve this matter and
`13.
`requested preliminary approval. On June 4, 2020, this Court denied preliminary approval without
`prejudice and provided the Parties with a list of concerns with the originally drafted agreement and
`exhibits. Thereafter, the Parties, with further and substantial assistance of Ambassador Bleich
`(ret.), involving extensive additional negotiations and numerous communications under his
`supervision over the ensuing weeks, continuing to just a few days ago, were able to reach a revised
`Settlement that addresses the Court’s stated concerns.
`Plaintiffs and Class Counsel believe that the claims asserted in the Action have
`14.
`merit, that they would have ultimately succeeded at trial and on any subsequent appeal. But
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 3 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 9 of 74
`
`Plaintiffs and Class Counsel recognize that Facebook has raised relevant factual and legal defenses
`that pose risks to the Class, namely: (i) obstacles to an aggregate recovery for Class members; and
`(ii) issues of law would be reviewed de novo on appeal even after Plaintiffs prevailed at trial. Class
`Counsel have also taken into account the uncertain outcome and risks of any litigation, especially
`in complex actions, as well as the difficulty and delay inherent in such litigation and the appeals
`that would follow any judgment in favor of the Class. Class Counsel believe that this Agreement
`eliminates uncertainty in the outcome and presents an exceptional result for the Class, and one that
`will be provided without delay. Therefore, Plaintiffs believe that it is in the best interest of the
`Class to settle the Action and that the Released Claims be fully and finally compromised, settled,
`and resolved with prejudice, and barred pursuant to the terms and conditions set forth in this
`Settlement Agreement.
`15.
`Facebook denies all allegations of wrongdoing and liability and denies all material
`allegations in the consolidated complaint and strongly believes that it would prevail in any trial on
`the merits, but has similarly concluded that this Settlement Agreement is desirable to avoid the
`time, risk, and expense of defending protracted litigation, and to avoid the risk posed by the Class’s
`claims for substantial damages. Facebook thus desires to resolve finally and completely resolve
`the pending claims of Plaintiffs and the Class.
`16.
`NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and
`among Plaintiffs, the Class, and Defendant that, subject to the approval of the Court after a hearing
`as provided for in this Settlement, and in consideration of the benefits flowing to the Parties from
`the Settlement set forth herein, the Released Claims shall be fully and finally compromised, settled,
`and released, and the Action shall be dismissed with prejudice, upon and subject to the terms and
`conditions set forth in this Settlement Agreement.
`II.
`AGREEMENT
`a.
`Definitions
`As used herein, in addition to any definitions set forth elsewhere in this Settlement
`1.1
`Agreement, the following terms shall have the meanings set forth below:
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`- 4 -
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 10 of 74
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`“Action” means the consolidated case captioned In re Facebook Biometric
`1.2
`Information Privacy Litigation, No. 3:15-cv-03747-JD (N.D. Cal.).
`“Agreement” or “Settlement Agreement” means this Amended Stipulation of
`1.3
`Class Action Settlement.
`1.4 “Approved Claim” means a Claim Form submitted by a Class Member that is
`timely and submitted in accordance with the directions on the Claim Form and the terms of this
`Agreement, or is otherwise accepted by the Court and satisfies the conditions of eligibility for a
`Settlement Payment as set forth in this Agreement.
`1.5 “Claim Form” means the document substantially in the form attached hereto as
`Exhibit A, as approved by the Court. Class Members who wish to file a claim for a Settlement
`Payment must submit a Claim Form which will be available in paper and electronically, including
`the ability to click on a link directly within the jewel and newsfeed notices on Facebook.com and
`be taken to the Settlement Website. The Claim Form will require a claiming Class Member to
`provide the following information: (i) full name, (ii) current U.S. Mail address, (iii) the email
`address or telephone number associated with their Facebook account, and (iv) if necessary, to
`provide additional information about the time in which they were located in Illinois as well as their
`Facebook use. The electronic Claim Form will provide Class Members with the option of having
`their Settlement Payment transmitted to them electronically, through Automated Clearing House
`(“ACH”) direct deposit, or other reliable means.
`1.6 “Claims Deadline” means the date by which all Claim Forms must be postmarked
`or submitted electronically to be considered timely, and shall be set as a date no later than sixty
`(60) calendar days following the Notice Date, subject to Court approval. The Claims Deadline
`shall be clearly set forth in the order preliminarily approving the Settlement, as well as in the
`Notice and the Claim Form.
`1.7 “Class” means the class previously certified by the Court: Facebook users located
`in Illinois for whom Facebook created and stored a face template after June 7, 2011 up to the date
`of the Preliminary Approval Order. (Dkt. 333.) Excluded from the class: (1) any Judge, Magistrate,
`or mediator presiding over this Action and members of their immediate families, (2) the Defendant,
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`- 5 -
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 11 of 74
`
`
`
`Defendant’s employees, Defendant’s subsidiaries, parent companies, successors, predecessors,
`and any entity in which Facebook or its affiliates have a controlling interest, (3) persons who
`properly execute and file a timely request for exclusion from the Class, (4) Class Counsel, and (5)
`the legal representatives, successors or assigns of any such excluded persons.
`“Class Counsel” means the law firms of Edelson PC; Robbins Geller Rudman &
`1.8
`Dowd LLP; and Labaton Sucharow LLP.
`“Class Member” means a person who falls within the definition of the Class and
`1.9
`who does not submit a valid request for exclusion.
`“Class Representatives” means Plaintiffs Carlo Licata, Nimesh Patel, and Adam
`1.10
`
`Pezen.
`
`“Court” means the United States District Court for the Northern District of
`1.11
`California, San Francisco Division, the Honorable James Donato presiding, or any judge who shall
`succeed him as the judge assigned to the Action.
`“Defendant” or “Facebook” means Defendant Facebook, Inc., a Delaware
`1.12
`corporation.
`“Defendant’s Counsel” or “Facebook’s Counsel” means the law firms of Cooley
`1.13
`LLP and Mayer Brown LLP.
`“Escrow Account” means the separate, interest-bearing escrow account to be
`1.14
`established by Class Counsel, or by the Settlement Administrator under terms acceptable to Class
`Counsel, at Citibank, N.A., which shall be the “Escrow Agent.” The Settlement Amount shall be
`deposited into the Escrow Account and the money shall be invested in the following types of
`accounts and/or instruments and no other: (a) demand deposit accounts; (b) time deposit accounts
`and certificates of deposit; (c) United States Treasury bills; or (d) other instruments backed by the
`full faith and credit of the United States Government. The costs of establishing and maintaining
`the Escrow Account shall be paid from the Settlement Fund.
`“Fee Award” means the amount of attorneys’ fees and expenses awarded to Class
`1.15
`Counsel by the Court to be paid out of the Settlement Fund.
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 6 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 12 of 74
`
`
`
`“Final” means one business day after the latest of the following events: (i) the date
`1.16
`upon which the time expires for filing or noticing any appeal of the Court’s Final Judgment
`approving the Settlement Agreement; (ii) if there is an appeal or appeals, other than an appeal or
`appeals solely with respect to the Fee Award, the date of completion, in a manner that finally
`affirms and leaves in place the Final Judgment without any material modification, of all
`proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all
`deadlines for motions for reconsideration or petitions for review and/or certiorari, all proceedings
`ordered on remand, and all proceedings arising out of any subsequent appeal or appeals following
`decisions on remand); or (iii) the date of final dismissal of any appeal or the final dismissal of any
`proceeding on certiorari.
`“Final Approval Hearing” means the hearing before the Court where the Parties
`1.17
`will request that the Final Judgment be entered by the Court finally approving the Settlement as
`fair, reasonable and adequate, and approving the Fee Award and the incentive awards to the Class
`Representatives.
`“Final Judgment” means the final judgment to be entered by the Court approving
`1.18
`the settlement of the Action in accordance with this Settlement Agreement after the Final Approval
`Hearing.
`“Net Settlement Fund” means the Settlement Fund, plus any interest or investment
`1.19
`income earned on the Settlement Fund, less any Fee Award, incentive awards to the Class
`Representatives, Taxes and Tax Expenses, and Estimated Settlement Administration Expenses.
`“Notice” means the notices of this proposed Settlement and Final Approval
`1.20
`Hearing, which are to be disseminated to the Class substantially in the manner set forth in this
`Settlement Agreement and approved by the Court, fulfilling the requirements of Due Process and
`Rule 23, and are substantially in the form of Exhibits C, D, E, F, G, and H attached hereto.
`“Notice Date” means the date by which the Notice is disseminated to the Class,
`1.21
`which shall be a date no later than thirty five (35) calendar days after entry of Preliminary
`Approval.
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 7 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 13 of 74
`
`
`
`“Objection/Exclusion Deadline” means the date by which a written objection to the
`1.22
`Settlement or a request for exclusion by a person within the Class must be made, which shall be
`designated as a date no later than sixty (60) calendar days after the Notice Date and no sooner than
`fourteen (14) calendar days after the request for the Fee Award is filed with the Court and posted
`to the Settlement Website, or such other date as ordered by the Court.
`“Plaintiffs” means Carlo Licata, Nimesh Patel, and Adam Pezen.
`1.23
`1.24
`“Preliminary Approval” means that an order has been issued by the Court
`(“Preliminary Approval Order”) making each of the following rulings: (i) preliminarily approving
`the Agreement and finding that the Settlement is within the range of potential final approval as
`fair, reasonable, and adequate; (ii) confirming certification of the Class, for settlement purposes;
`and (iii) approving the form and manner of the Notice and directing that Notice be sent to the
`Class.
`
`“Released Claims” means any and all claims or causes of action, whether known or
`1.25
`unknown (including “Unknown Claims” as defined below), arising from or related to Plaintiffs’
`allegations regarding the alleged collection, storage, or dissemination of biometric data related to
`facial recognition technology from Facebook users located in Illinois, including all claims and
`issues that were litigated in the action or that could have been brought in the Action and claims for
`any violation of the Illinois Biometric Information Privacy Act (“BIPA”) or other Illinois statutory
`or common law related to facial recognition.
`“Released Parties” means Facebook, Inc. and Face.com, and their respective
`1.26
`present or former administrators, predecessors, successors, assigns, parents, subsidiaries, holding
`companies, investors, divisions, associates, employees, agents, representatives, consultants,
`independent contractors, directors, managing directors, officers, partners, principals, members,
`attorneys, vendors, accountants, fiduciaries, financial and other advisors, investment bankers,
`insurers, reinsurers, employee benefit plans, underwriters, shareholders lenders, auditors,
`investment advisors, and former companies but excluding any entities in which Facebook or
`Face.com had or has a controlling interest or are affiliated with that did not use the Tag Suggestions
`feature such as Instagram, Inc., WhatsApp Inc., and Oculus VR Inc.
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 8 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 14 of 74
`
`
`
`“Releasing Parties” means Plaintiffs and the Class Members and their respective
`1.27
`present or past heirs, executors, estates, administrators, trustees, assigns, agents, consultants,
`independent contractors, insurers, attorneys, accountants, financial and other advisors, investment
`bankers, underwriters, lenders, and any other representatives of any of these persons and entities.
`“Settlement Administration Expenses” means the expenses incurred by the
`1.28
`Settlement Administrator in providing Notice, processing claims, responding to inquiries from
`members of the Class, providing Settlement Payments, related services, and the costs of the Escrow
`Account. The Settlement Administrator anticipates the total cost of Settlement Administration to
`be approximately $1,750,195.00 (“Estimated Settlement Administration Expenses”), which will
`be set aside from the Settlement Fund.
`“Settlement Administrator” means Gilardi & Co. LLC, subject to approval of the
`1.29
`Court, which will provide certain aspects of the Notice, Settlement Website, as well as the
`processing of Approved Claims as Settlement Payments to Class Members as set forth in this
`Agreement.
`“Settlement Fund” means the non-reversionary cash fund that shall be funded by
`1.30
`Facebook in the total amount of six hundred fifty million US dollars ($650,000,000.00) (the
`“Settlement Amount”) to be deposited into the Escrow Account, plus all interest earned thereon.
`The following shall be paid from the Settlement Fund: All Settlement Payments as a result of
`Approved Claims made by Class Members, Settlement Administration Expenses, Taxes and Tax
`Expenses, any incentive awards to the Class Representatives, and any Fee Award to Class Counsel.
`The Settlement Fund shall be kept in the Escrow Account until such time as the above-listed
`payments are made. The Settlement Fund includes all interest that shall accrue on the sums
`deposited in the Escrow Account. Class Counsel and/or the Settlement Administrator shall be
`responsible for all tax filings with respect to any earnings on the Settlement Fund and causing the
`payment of all Taxes that may be due on such earnings. The Settlement Fund represents the total
`extent of Facebook’s monetary obligations under this Agreement. In no event shall Facebook’s
`total monetary obligation with respect to this Agreement exceed or be less than six hundred fifty
`million dollars ($650,000,000.00). The Parties, the Escrow Agent, and the Settlement
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 9 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 15 of 74
`
`
`
`Administrator agree to treat the Settlement Fund as being at all times a “qualified settlement fund”
`within the meaning of Treas. Reg. §1.468B-1. In addition, the Settlement Administrator shall
`timely make such elections as necessary or advisable to carry out this provision, including the
`“relation-back election” (as defined in Treas. Reg. §1.468B-1) back to the earliest permitted date.
`Such elections shall be made in compliance with the procedures and requirements contained in
`such regulations. It shall be the responsibility of Class Counsel and/or the Settlement
`Administrator to timely and properly prepare and deliver the necessary documentation for
`signature by all necessary parties, and thereafter to cause the appropriate filing to occur.
`“Settlement Payment” means the payments to be made in response to Approved
`1.31
`Claims. Each individual who submits an Approved Claim will receive a pro rata portion of the
`Net Settlement Fund.
`“Settlement Website” means the website to be created, launched, and maintained
`1.32
`by the Settlement Administrator, which will provide access to relevant case documents including
`the Notice, Claim Form, and other relevant documents.
`“Taxes” means all federal, state, or local taxes of any kind on any income earned
`1.33
`by the Settlement Fund and the expenses and costs incurred in connection with the taxation of the
`Settlement Fund (including, without limitation, interest, penalties and the reasonable expenses of
`tax attorneys and accountants). All (i) Taxes (including any estimated Taxes, interest or penalties)
`arising with respect to the income earned by the Settlement Fund, including any Taxes or tax
`detriments that may be imposed upon the Released Parties or their counsel with respect to any
`income earned by the Settlement Fund for any period during which the Settlement Fund does not
`qualify as a “qualified settlement fund” for federal or state income tax purposes, and (ii) expenses
`and costs incurred in connection with the operation and implementation of this Agreement
`(including, without limitation, expenses of tax attorneys and/or accountants and mailing and
`distribution costs and expenses relating to filing (or failing to file) the returns described in this
`Agreement (“Tax Expenses”), shall be paid out of the Settlement Fund; in all events the Released
`Parties and their counsel shall have no liability or responsibility for the Taxes or the Tax Expenses.
`Further, Taxes and Tax Expenses shall be treated as, and considered to be, a cost of administration
`
`STIPULATION OF CLASS ACTION SETTLEMENT - 3:15-cv-03747-JD
`
`
`
`- 10 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`

`

`Case 3:15-cv-03747-JD Document 468 Filed 07/22/20 Page 16 of 74
`
`
`
`of the Settlement Fund and shall be timely paid by the Escrow Agent, as instructed by Class
`Counsel and/or the Settlement Administrator, out of the Settlement Fund without prior order from
`the Court and the Settlement Administrator shall be authorized (notwithstanding anything herein
`to the contrary) to withhold from distribution to Class Members with Approved Claims any funds
`necessary to pay such amounts, including the establishment of adequate reserves for any Taxes
`and Tax Expenses (as well as any amounts that may be required to be withheld under Treas. Reg.
`§1.468B-2(l)(2)); neither the Released Parties nor their counsel are responsible nor shall they have
`any liability for any Taxes