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Jason Standiford, An Individual, On Behalf of Himself and All Others Similarly Situated v. Palm


January 26, 2011

DOES 1-50,

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

[Complaint Filed: Dec. 4, 2009]


order preliminarily approving the Settlement Agreement ("Agreement") entered into between Plaintiff Jason Standiford having filed a motion under Fed. R. Civ. P. 23(e) for an Plaintiff and Defendants Palm, Inc. and Sprint Spectrum, L.P.; the said motion having come on for 16 hearing before the above-entitled Court; the Court having reviewed the Agreement and 17 accompanying documents, and considered the oral and written presentations in support of 18 preliminary approval; the Court being fully advised of the premises and good cause appearing 19 therefor, the Court enters its Order and, subject to final determination by the Court as to the 20 fairness, reasonableness and adequacy of the settlement, the Court finds and orders as follows: 21

22 of the Settlement Class, and all Defendants. 23

24 the Agreement. 25

1. The Court has jurisdiction over the subject matter of this action, all members

2. All defined terms used herein have the meanings set forth for such terms in Class Certification 26

27 settlement purposes: 28

3. Pursuant to Federal Rule 23, the Court certifies the following Class for All Persons and entities in the United States who, between June 1, 2009, and the date of Preliminary Approval, (1) created Palm Profiles for use with Palm Services and their Palm webOS-based mobile phones, (2) stored data on Palm's servers via their Palm webOS-based mobile phones, and (3) experienced Permanent Data Inaccessibility, Temporary Data

Inaccessibility or both. Excluded from the Class are Defendants, their legal representatives, assigns, and successors, and any entity in which Defendants have a controlling interest. Also excluded are any judges to whom this case is or has been assigned and those judges' immediate families.

(a) The Class consists of thousands of members, and is sufficiently large and geographically dispersed that joinder of all Class Members is impracticable, and accordingly satisfies Federal Rule 23(a)(1).

(b) There are questions of law and fact common to the Class that satisfy Federal Rule 23(a)(2). As alleged in this case, all Settlement Class Members share the common issue of having purchased a Palm webOS mobile phone, stored personal data through Palm Services in reliance on Defendants' statements of data accessibility, and thereafter, experienced either Temporary or Permanent Data Inaccessibility.

(c) The injury experienced by Standiford and the other Settlement Class Members occurred in a nearly identical manner and through identical means. Therefore, Standiford's claims are typical of the other class members.

(d) Lead Plaintiff Jason Standiford and his counsel, Edelson McGuire, will fairly and adequately protect the interest of the Class, and accordingly their appointment satisfies Federal Rule 23(a)(4).

(e) Lead Plaintiffs also satisfy the requirements of Federal Rule 23(b)(3) since questions of law and fact common to the Class predominate over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of this matter.

(f) Lead Plaintiff Jason Standiford is hereby appointed representative of the Class.

(g) Edelson McGuire is appointed class counsel.

4. The Court has conducted a preliminary evaluation of the fairness, 2 reasonableness and adequacy of the proposed settlement set forth in the Agreement. The Court 3 finds that the settlement appears to be the product of serious and informed arm's length negotiations; 4 has no obvious deficiencies; does not improperly grant preferential treatment to the Class 5 Representative or any members of the Settlement Class; and falls within the range of reasonableness 6 meriting possible final approval. The Court therefore GRANTS preliminary approval of the 7 Agreement and settlement, subject to further consideration at the Final Approval Hearing described 8 below. 9

Claims Process and Exclusion 10

5. The Court sets a Final Approval Hearing under Fed. R. Civ. P. 23(e)(2), to be 11 held at 1:30 p.m. on May 31, 2012, in Courtroom 4 of the United States District Court for the 12 Northern District of California (San Jose Division), 280 South First Street, San Jose, CA 95113, for 13 the following purposes: 14

(a) To determine whether the proposed settlement is fair, reasonable and 15 adequate, and should be approved by the Court; 16

(b) To determine whether the Final Approval Order and Judgment, as provided 17 under the Agreement, should be entered, dismissing the First Amended Complaint with prejudice, 18 and whether the release by the Settlement Class of the Released Claims as set forth in the 19 Agreement should be provided to the Released Parties; 20

(c) To determine whether Class Counsel's request for an award of attorneys' fees 21 should be granted, and whether an incentive award should be made to the Class Representative; and 22

(d) To rule on such other matters as the Court may deem appropriate.

6. Class Counsel must file their request for an award of attorneys' fees and 24 request for approval of an incentive award to the Class Representative not later than April 18, 2012. 25

7. The Parties must file their motion or motions for final approval of the 26 settlement, including responses to objections or other submissions from Settlement Class Members 27 (if any) not later than May 17, 2012. 28

2 attached to the Agreement as Exhibits B1, B2 and B3. 3

Approval, Palm will provide to the Settlement Administrator email addresses it has for potential 5

8. The Court approves the proposed Notice Plan substantially in the forms 9. Within ten (10) days after the Court issues this Order Granting Preliminary Settlement Class Members. The Settlement Administrator shall then send the Notice to each email 6 address obtained, no later than thirty (30) days after the entry of this Order, unless such date is 7 extended by the Court or by agreement of the Parties. 8

Administrator shall arrange for publication in USA Today (on Monday, Tuesday, Wednesday or 10 11. Not later than twenty (20) days after the issuance of this Order, Notice shall 12 be provided on a website to be established and administered by the Settlement Administrator in 13 accordance with the Agreement. 15 have complied with the Notice Plan, in accordance with this Order and as set forth in the 16

13. The Court may, from time to time and without further notice to the Settlement Class, continue or adjourn the Final Approval Hearing. 19 20 forth in, and attached as exhibits to, the Agreement, satisfy the requirements of Fed. R. Civ. P. 23(c) 21 and (e) and due process with respect to providing members of the Settlement Class notice of the 22 proposed settlement and the Final Approval Hearing; constitute the best notice practicable under the 23 circumstances; and constitute due and sufficient notice to all persons entitled thereto. 24

Settlement Class Member must complete and submit (by U.S. mail or electronically) a valid Claim 26

10. Not later than thirty (30) days after the entry of this Order, the Settlement

Thursday, at Defendants' election) and PC World of a 1/8-page Notice, to be published one time. 11

12. At or before the Final Approval Hearing, the Parties must file proof that they Agreement. 17

14. The form and content of the Notice Plan, including the forms of notice set 15. To be eligible to receive Settlement Benefits under the settlement, a Form available on the settlement website, no later than May 29, 2012 (ninety (90) days after Notice 27 is first provided to the Settlement Class) ("Claims Deadline"), and otherwise comply with the terms 28 of the Agreement. The Claims Administrator must in any event receive Claim Forms within 15 2 days of the Claims Deadline. 3

(online) store and Sprint bill credits), substantially in accordance with the Agreement, will be 5 deemed final and conclusive against all Settlement Class Members. All Settlement Class Members 6 who fail to submit a timely and valid Claim Form will be forever barred from receiving individual 7

Released Parties concerning the Released Claims, but will nevertheless be bound by the terms of the 9

16. Fulfillment of claims (including redemption codes for use at the HP Official

Settlement Benefits under the settlement, will be forever barred from bringing any action against the 8

Agreement and settlement, including the terms of the Judgment to be entered in this action and the 10 releases provided for in the Agreement. 11

12 the jurisdiction of the Court with respect to the claim. All proceedings with respect to the 13 administration, processing and determination of claims and the determination of all controversies 14 relating thereto, including disputed questions of law and fact with respect to the validity of claims, 15 will be subject to the jurisdiction of the Court. 16

17 of the Settlement Class, Defendants, the Settlement Administrator, or any of their respective 18 counsel based on payments made or benefits distributed substantially in accordance with the 19

19. Settlement Class Members will be bound by all determinations and

21 judgments in this action, whether favorable or unfavorable. To request exclusion from the 22

17. Each person who submits a Claim Form will be deemed to have submitted to

18. No person will have any claim against the Class Representative, any member

Agreement or further order of the Court. 20

Settlement Class and not be so bound, a person must mail or otherwise deliver a written exclusion 23 request to the address designated for exclusion requests in the settlement notice (in all its forms), 24 postmarked no later than May 2, 2012 or, if not sent by U.S. mail, received no later than that date. 25

Any exclusion request must state the person's name and address; state that the person wishes to be 26 excluded from the Settlement Class and settlement in this action; and be signed by the person 27 seeking to be excluded. 28

20. Any member of the Settlement Class who intends to object to the settlement

2 must mail to the Court a written objection that includes his/her name and address, all arguments, 3 citations, and evidence supporting the objection (including copies of any documents relied on), 4 states that he or she is a member of the Settlement Class, and provides a statement whether the 5 objector intends to appear at the Final Approval Hearing with or without counsel. Notice of intent 6 to be heard orally at the Final Approval Hearing (either personally or through counsel of their 7 choice) must be included with a Settlement Class member's written objection. Any member of the 8 Settlement Class who fails to timely mail notice of his or her intent to appear at the Final Approval 9 Hearing in accordance with the terms of this paragraph and as set forth in the Notice, shall not be 10 permitted to object to this Settlement Agreement at the Final Approval Hearing, and shall be 11 foreclosed from seeking any review of this Settlement Agreement by appeal or other means. 12

21. All such objections must be sent so they are received by the Court no later

13 than May 2, 2012. The Court will not consider objections from non-members of the Settlement 14

Class, including persons who have excluded themselves from the Settlement Class. 15



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