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Flo & Eddie, Inc. v. Sirius XM Radio, Inc.

United States District Court, C.D. California, Western Division

May 16, 2017

FLO & EDDIE, INC., a California corporation, individually and on behalf of all others similarly situated, Plaintiff,
v.
SIRIUS XM RADIO, INC., a Delaware corporation; and DOES 1 through 10, Defendants.

          GRADSTEIN & MARZANO, P.C. HENRY GRADSTEIN, MARYANN R. MARZANO SUSMAN GODFREY L.L.P. STEPHEN E. MORRISSEY, STEVEN G. SKLAVER, KALPANA SRINIVASAN, [Additional Counsel for Plaintiff on Signature Page] Co-Lead Class Counsel

          [PROPOSED] ORDER AND FINAL JUDGMENT

          PHILIP S. GUTIERREZ United States District Judge.

         WHEREAS Plaintiff Flo & Eddie, Inc. (“Plaintiff, ” for itself and on behalf of the proposed Settlement Class, entered into a Stipulated Class Action Settlement (the “Stipulation, ” together with the Exhibits annexed thereto, the “Settlement”) with Defendant Sirius XM Radio Inc. (“Sirius XM” or “Defendant”).

         WHEREAS, on January 27, 2017 the Court entered its Order granting preliminary approval of the proposed settlement (“Preliminary Approval Order”) (Dkt. #676). The Preliminary Approval Order, among other things, authorized Plaintiff to disseminate Notice of the Settlement, the Final Approval Hearing, and related matters to the Class. Notice was provided to the Class pursuant to the Preliminary Approval Order on February 6, 2017, and the Court held a Final Approval Hearing on May 8, 2017 at 1:30 p.m., at which time all interested persons were afforded the opportunity to be heard.

         WHEREAS, this Court has duly considered Plaintiff's motion, all papers and evidence submitted in connection therewith, the Stipulation, and all of the submissions and arguments presented at the Final Approval Hearing with respect to the proposed Settlement.

         NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

         1. The capitalized terms used herein shall have the meanings set forth in the Settlement, Exhibit 1 to the Declaration of Steven G. Sklaver in Support of Preliminary Approval of Settlement (Dkt. #666-4).

         2. This Court has jurisdiction over the subject matter of the above-captioned action (“Action”) and over all settling Parties and all members of the Settlement Class.

         3. The Notice provided for and given to the Settlement Class: (i) was provided and made in full compliance with the Preliminary Approval Order; (ii) constituted the best notice practicable under the circumstances; (iii) constituted notice that was reasonably calculated to apprise the Settlement Class of the terms of Settlement, of the proposed distribution plan, of Class Counsel's application for an award of attorney's fees, costs and expenses incurred in connection with the Action, of Settlement Class Members' right either to request exclusion from the Settlement Class or to object to the Settlement, the plan of allocation, or Class Counsel's application for an award of attorney's fees, costs and expenses, and application for an incentive award Plaintiff, and of the right of Settlement Class Members to appear at the Final Approval Hearing; (iv) constituted due, adequate, and sufficient notice to all persons entitled to receive notice of the proposed Settlement; (v) was the best notice practicable under the circumstances; and (vi) fully satisfied the notice requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause of the Fifth Amendment to the Constitution), and all other applicable law and rules.

         4. The Court has considered any objections to the Settlement submitted pursuant to Rule 23(e)(5) of the Federal Rules of Civil Procedure. The Court finds and concludes that each of the objections is without merit, and they are hereby overruled.

         5. In light of the substantial benefits provided to the Settlement Class by the Settlement, the complexity, expense and possible duration of further litigation of the Action, including any possible appeals, the risks of establishing liability and damages, and the costs of continued litigation, the Court hereby fully and finally approves the Settlement as set forth in the Stipulation in all respects, and finds that the Settlement is in all respects fair, reasonable and adequate, and in the best interests of Plaintiff, the Settlement Class, and the Settlement Class Members. This Court further finds that the Settlement set forth in the Stipulation is the result of arm's-length negotiations by highly experienced counsel representing the interests of their respective settling Parties.

         6. The one entity that timely and validly requested exclusion from the Settlement Class identified in the Declaration of Eric Kierkegaard, ·filed on April 10, 2017, is excluded. The entity (Gusto Records, Inc.) is neither included in nor bound by this Order and Final Judgment and is not entitled to any recovery from the settlement proceeds (including not being entitled to any recovery from the Settlement Fund or Royalty Program) obtained through this Settlement.

         7. With the exception of the California Appeal and Florida Appeal and for any actions necessary to enforce the Settlement, during the Term, the institution and prosecution, by any Settlement Class Member, either directly, individually, representatively, derivatively or in any other capacity, by whatever means, of any other action against the Covenantees in any court, or in any agency or other authority or arbitral or other forum wherever located, asserting any of the claims in Paragraph III.D (Covenant Not to Sue) of the Stipulation is barred, enjoined and restrained.

         8. The Administrator is authorized to distribute from the Settlement Fund to Settlement Class Members the amounts that Class Counsel and the Administrator have determined are owed to each Settlement ...


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