Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 1 of 8 PageID #: 11607
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` MEMORANDUM AND ORDER
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` 15-CV-7381 (LB)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`CHAIM LERMAN, ROSLYN WILLIAMS, and
`JAMES VORRASI, individually and on behalf of
`others similarly situated,
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`Plaintiffs,
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`-against-
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`APPLE INC.,
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`Defendant.
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`ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENT; AWARDING
`ATTORNEYS’ FEES, EXPENSES, AND NAMED PLAINTIFF SERVICE AWARDS;
`AND ENTERING FINAL JUDGMENT
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`WHEREAS, the Court held a Final Approval Hearing to consider approval of this class
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`action settlement on September 22, 2022. The Court has considered the Settlement Agreement
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`(ECF No. 155-3), the record in the Action, and the Parties’ arguments and authorities.
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`NOW THEREFORE IT IS HEREBY ORDERED, AND JUDGMENT IS HEREBY
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`ENTERED, AS FOLLOWS:
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`1.
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`For purposes of this Order, the Court adopts the terms and definitions set forth in
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`the Settlement Agreement.
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`2.
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`The Court has jurisdiction over the subject matter of the Action, the Named
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`Plaintiffs, the Settlement Class Members, and Defendant Apple Inc.
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`NOTICE
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`3.
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`The Court finds that the Class Notice constituted the best notice practicable under
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`the circumstances to all Settlement Class Members and fully complied with the requirements of
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`Federal Rule of Civil Procedure 23 and due process.
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 2 of 8 PageID #: 11608
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`CERTIFICATION OF THE SETTLEMENT CLASS
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`4.
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`The Court finds that, for purposes of the Settlement only, all prerequisites for
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`maintenance of a class action set forth in Federal Rule of Civil Procedure 23(a) and (b)(3) are
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`satisfied. The Court certifies the following Settlement Class for purposes of Settlement only:
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`All individuals and entities in New York and New Jersey who currently own or
`have owned an iPhone 4S that was updated to any version of iOS 9 from any version
`of iOS 7 or iOS 8.
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`For purposes of this definition, “own” shall include all individuals or entities that owned,
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`purchased, leased, or otherwise received an eligible device, and individuals who otherwise used
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`an eligible device for personal, work, or any other purposes. Excluded from the Settlement Class
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`are (a) directors, officers, and employees of Apple or its subsidiaries and affiliated companies, as
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`well as Apple’s legal representatives, heirs, successors, or assigns; (b) the Court, the Court staff,
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`as well as any appellate court to which this matter is ever assigned and its staff; (c) Defense
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`Counsel, as well as their immediate family members, legal representatives, heirs, successors, or
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`assigns; and (d) any other individuals whose claims already have been adjudicated to a final
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`judgment; and (e) those individuals who timely and validly request exclusion.
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`5.
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`Pursuant to Federal Rule of Civil Procedure 23(e), the Court hereby grants final
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`approval of the Settlement and finds that the Settlement is fair, reasonable, and adequate and in
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`the best interests of the Settlement Class Members based on the following factors, among other
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`things:
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`a.
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`There is no fraud or collusion underlying this Settlement, and it was reached
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`as a result of extensive arm’s-length negotiations, occurring over the course of a full day mediation
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`session with a respected mediator and former federal Magistrate Judge, warranting a presumption
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`in favor of approval.
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 3 of 8 PageID #: 11609
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`b.
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`The complexity, expense, and likely duration of the litigation favor
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`settlement—which provides meaningful benefits on a much shorter time frame than otherwise
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`possible—on behalf of the Settlement Class Members. Based on the stage of the proceedings and
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`the amount of investigation and discovery completed, the Parties have developed a sufficient
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`factual record to evaluate their chances of success at trial and the proposed Settlement.
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`c.
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`The support of Class Counsel and the Named Plaintiffs, who have
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`participated in this litigation and evaluated the proposed Settlement, also favor final approval.
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`d.
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`The Settlement provides meaningful relief to the Class, including cash
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`relief, and certainly falls within the range of possible recoveries by the Settlement Class Members.
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`RELEASES
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`6.
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`As of the Effective Date, the Named Plaintiffs and each of the members of the
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`Settlement Class who have not timely requested exclusion from the Settlement Class, and each of
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`their respective successors, assigns, legatees, heirs, and personal representatives, will be deemed
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`to have released the Released Parties of all manner of action, causes of action, claims, demands,
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`rights, suits, obligations, debts, contracts, agreements, promises, liabilities, damages, charges,
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`penalties, losses, costs, expenses, and attorneys’ fees, of any nature whatsoever, known claims or
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`unknown claims, in law or equity, fixed or contingent, which they have or may have arising out of
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`or relating to any of the acts, omissions, or other conduct that was or could have been alleged or
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`otherwise referred to in this Action, relating to iOS 9, or any version thereof, on the iPhone 4S,
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`including, but not limited to, any and all acts, omissions, or other conduct asserting claims
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`(including, without limitation, any unknown claims) arising out of, relating to, or in connection
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`with, the defense, settlement or resolution of the Action.
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 4 of 8 PageID #: 11610
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`7.
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`As of the Effective Date, the Settlement Class Members and the Named Plaintiffs
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`shall have fully, finally, and forever released, relinquished, and discharged all claims of abuse of
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`process, malicious prosecution, violations of Federal Rule of Civil Procedure 11, and any other
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`claims arising out of the defense of the Action that are known to the Settlement Class Members
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`and/or the Named Plaintiffs as of the Effective Date, against Apple’s attorneys, legal
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`representatives, and advisors, including Defense Counsel. Notwithstanding the foregoing, this
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`release shall not include any future claims relating to the continued enforcement of the Settlement,
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`the Protective Orders, and all orders construing the Stipulated Protective Order, including but not
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`limited to ECF No. 46. This release does not constitute a general release.
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`8.
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`After entering into this Settlement, the Settlement Class Members and/or Named
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`Plaintiffs may discover facts other than, different from, or in addition to, those that they know or
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`believe to be true with respect to the claims released by this Settlement, but they intend to release
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`fully, finally and forever any and all such claims. The Settlement Class Members and Named
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`Plaintiffs expressly agree that, upon the Effective Date, they waive and forever release any and all
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`provisions, rights, and benefits conferred by: Section 1542 of the California Civil Code; and any
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`law of any state, territory, or possession of the United States or principle of common law, which
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`is similar, comparable, or equivalent to Section 1542 of the California Civil Code.
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`9.
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`As of the Effective Date, the Released Parties shall have fully, finally, and forever
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`released, relinquished, and discharged all claims of abuse of process, malicious prosecution,
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`violations of Federal Rule of Civil Procedure 11, and any other claims arising out of the initiation,
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`prosecution, or settlement of the Action, including both known claims and unknown claims,
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`against the Named Plaintiffs and Class Counsel. Notwithstanding the foregoing, this release shall
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`not include any future claims relating to the continued enforcement of the Settlement, the
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 5 of 8 PageID #: 11611
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`Stipulated Protective Order, and all orders construing the Stipulated Protective Order, including
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`but not limited to ECF No. 46. This release does not constitute a general release.
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`REQUESTS FOR EXCLUSION
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`10.
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`The individuals identified in Exhibit 1 hereto timely and validly requested
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`exclusion from the Settlement Class. These individuals shall not share in the monetary benefits of
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`the Settlement, and this Order does not affect their legal rights to pursue any claims they may have
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`against Apple.
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`ATTORNEY’S FEES AND NAMED PLAINTIFF SERVICE AWARDS
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`11.
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`The Court finds that an award of attorney’s fees in the amount of $6,666,000,
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`and expenses in the amount of $2,809,371.74, to Class Counsel is fair and reasonable and therefore
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`approves such award.
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`12.
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`The Court finds that the payment of Named Plaintiff Service Awards is fair and
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`reasonable and therefore approves such payment as follows: $45,000.
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`OTHER PROVISIONS
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`13.
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`The Action, and all claims asserted in the Action, is settled and dismissed on the
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`merits with prejudice.
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`14.
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`Payments to Settlement Class Members under the Settlement Agreement shall be
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`made as outlined in the Settlement Agreement.
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`15.
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`Consummation of the Settlement shall proceed as described in the Settlement
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`Agreement, and the Court reserves jurisdiction over the subject matter and each Party to the
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`Settlement with respect to the interpretation and implementation of the Settlement for all purposes,
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`including enforcement of any of the terms thereof at the instance of any Party and resolution of
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`any disputes that may arise relating to the implementation of the Settlement or this Order.
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 6 of 8 PageID #: 11612
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`16. Without affecting the finality of this Order in any way, the Court shall retain
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`jurisdiction over this Action, the Named Plaintiffs, the Settlement Class Members, and Apple to
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`enforce the terms of the Settlement, the Court’s order preliminarily certifying the Settlement Class
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`(ECF No. 157), and this Order. In the event that any applications for relief are made, such
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`applications shall be made to the Court. To avoid doubt, the Final Judgment applies to and is
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`binding upon the Parties, the Settlement Class Members, and their respective heirs, successors,
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`and assigns.
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`17.
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`The Settlement and this Order are not admissions of liability or fault by Apple or
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`the Released Parties, or a finding of the validity of any claims in the Actions or of any wrongdoing
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`or violation of law by Apple or the Released Parties. To the extent permitted by law, neither this
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`Order, nor any of its terms or provisions, nor any of the negotiations or proceedings connected
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`with it, shall be offered as evidence or received in evidence in any pending or future civil, criminal,
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`or administrative action or proceeding to establish any liability of, or admission by, the Released
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`Parties. Notwithstanding the foregoing, nothing in this Order shall be interpreted to prohibit the
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`use of this Order in a proceeding to consummate or enforce the Settlement or this Order, or to
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`defend against the assertion of released claims in any other proceeding, or as otherwise required
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`by law.
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`18.
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`Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, there is no just
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`reason for delay in the entry of this Final Approval Order and Judgment and immediate entry by
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`the Clerk of the Court is expressly directed.
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 7 of 8 PageID #: 11613
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`NOW, THEREFORE, the Court hereby enters judgment in this matter pursuant to Rule
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`58 of the Federal Rules of Civil Procedure.
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`IT IS SO ORDERED AND JUDGMENT IS ENTERED.
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`SO ORDERED.
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`/S/ Judge Lois Bloom
`LOIS BLOOM
`United States Magistrate Judge
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`Dated: October 4, 2022
`Brooklyn, New York
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`Case 1:15-cv-07381-LB Document 173 Filed 10/04/22 Page 8 of 8 PageID #: 11614
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`Exhibit 1
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`Valid Requests for Exclusion
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`1. Nicole Colamarino (ECF 160-3)
`2. Susan Masluk (ECF 160-3)
`3. Karen Araujo (ECF 160-3)
`4. Gary Kevin (ECF 160-3)
`5. Paul J. Damore (ECF 160-3)
`6. Cristiano Capuzzi (ECF 160-3)
`7. Elizabeth Fischi (ECF 171-3 p. 22)
`8. Gloria Polacko (ECF 171-3 p. 24)
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