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In re SONY PS3 "Other OS" Litigation

United States District Court, N.D. California

November 21, 2017

In re SONY PS3 “OTHER OS” LITIGATION

          ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS AS MODIFIED BY THE COURT.

          Yvonne Gonzalez Rogers United States District Judge.

         This matter came before the Court on Plaintiffs' Renewed Motion for Preliminary Approval of Class Settlement and Certification of Settlement Class. The Parties have entered into a Settlement Agreement executed September 1, 2017 (the “Settlement”) which has been filed with the Court and which, if approved, would resolve the above-captioned class action lawsuit (the “Action” or the “Class Action Lawsuit”). Upon review and consideration of the motion papers and the Settlement and all exhibits thereto, including the proposed forms of notice to the Class and the proposed Claim Form, the Court finds that there is sufficient basis for: (1) granting preliminary approval of the Settlement; (2) provisionally certifying the Class for settlement purposes only; (3) appointing Class Counsel and Plaintiffs to represent the Class; (4) approving the Parties' proposed notice program and forms of notice substantially similar to those forms attached to the Settlement and directing that notice be disseminated to the Class pursuant to the notice program provided in the Settlement; (5) approving the Parties' proposed Claim Form and approving the procedures set forth in the Settlement for Class Members to submit claims, exclude themselves from the Class, and object to the Settlement; (6) appointing a Settlement Administrator to conduct the duties assigned to that position in the Settlement; and (7) setting a hearing (the “Fairness Hearing”) at which the Court will consider: (a) whether to grant Final Approval of the Settlement; (b) Class Counsel's Application for Attorneys' Fees and Costs; and (c) any Request for Service Awards for the Plaintiffs.

         IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

         1. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Settlement Agreement, attached hereto as Exhibit A.

         2. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and has personal jurisdiction over the Parties. Venue is proper in this District.

         3. This Action is provisionally certified as a class action for the purposes of settlement only pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(e). The Class is defined as follows:

[A]ny and all persons in the United States who purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3.

         Excluded from the Class are: (a) any persons who are employees, directors, officers, and agents of SCEA or its subsidiaries and affiliated companies; (b) any persons who timely and properly exclude themselves from the Settlement; and (c) the Court, the Court's immediate family, and Court staff.

         4. Certification of the Class shall be solely for settlement purposes and without prejudice to the Parties in the event the Settlement is not finally approved by this Court or otherwise does not take effect.

         5. In support of this Preliminary Approval Order, the Court conditionally and preliminarily finds that: (a) the Class Members are so numerous that joinder of all Class Members is impracticable; (b) there are questions of law and fact common to the Class Members, each of whom could have asserted the types of claims raised in the Action, and these questions predominate over any questions affecting individual Class Members; (c) the named Class Representatives' claims are typical of the claims of the Class Members; (d) the named Class Representatives and Class Counsel identified below are able to adequately represent the Class Members; and (e) class-wide treatment of the disputes raised in the Action is superior to other available methods for adjudicating the controversy.

         6. The Court preliminarily approves the proposed Settlement as fair, reasonable, and adequate, entered into in good faith, free of collusion, and within the range of possible judicial approval.

         7. The Court appoints the following as Class Counsel: James J. Pizzirusso of Hausfeld LLP, Gordon M. Fauth of Finkelstein Thompson LLP, and Kathleen V. Fisher of Calvo Fisher & Jacob LLP.

         8. The Court appoints Plaintiffs Anthony Ventura, Jason Baker, James Girardi, Derek Alba, and Jonathan Huber as Class Representatives for the Class.

         9. The Court directs the parties to select a Settlement Administrator to carry out all duties and responsibilities of the Settlement Administrator specified in the Settlement.

         10. The Court approves the program for disseminating notice to the Class set forth in the Settlement (the “Notice Program”). The Court approves the form and content of the proposed forms of notice in the forms attached to the Settlement Agreement (Exhibit A) as Exhibits 4 and 6. The Court finds that the proposed forms of notice are clear and readily understandable by Class Members. The Court finds that the Notice Program, including the proposed forms of notice, constitutes the best notice practicable under the circumstances, constitutes valid, due, and sufficient notice to the Class in full compliance with the requirements of applicable law, including Federal Rule of Civil Procedure 23 and the Due Process Clause of the United States Constitution, and is the only notice to the Class of the Settlement that is required.

         11. The Court approves the form and content of the proposed Claim Form, in the form attached to the Settlement Agreement (Exhibit A) as Exhibit 1, and approves the procedures set forth in the Settlement for Class Members to submit Claims.

         12. The Parties acknowledge that SCEA has prepared an electronic database that is reasonably calculated to include the email address(es) of all the Class Members known by SCEA through its PlayStation Network Database as of the date of Preliminary Approval, for the Settlement Administrator's use in disseminating notice and processing Claims. Pursuant to the terms of the Settlement, SCEA shall update the content of the previously prepared database no later than December 5, 2017.

         13. The “Notice Date” shall be January 15, 2018.

         14. By no later than the Notice Date, the Settlement Administrator shall send the Short Form Notice, substantially in the form attached to the Settlement Agreement (Exhibit A) as Exhibit 6 and in the form approved by the Court, to Class Members via email for those Class Members for whom an email address is available, along with a link to the Settlement Website. The subject line for all emails covered by this paragraph shall be: “Important - Notice of New Class Action Settlement Regarding PlayStation 3 ‘Other OS' Function.” 15. The Settlement Administrator shall provide one follow-up round of e-mail notice to those Class Members who have not submitted Claims and for whom the Settlement Administrator did not receive a bounce-back in response to the first round of email notice.

         16. By no later than the Notice Date, the Settlement Administrator shall post the Long Form Notice, in the form approved by the Court, on the Settlement Website.

         17. As soon as practicable following the entry of the Preliminary Approval Order and, in all events, by no later than the Notice Date, the Settlement Administrator shall cause the Short Form Notice to be published in the online publications agreed upon by the Parties.

         18. The Settlement Administrator shall use the Internet website, appearing at www.otherossettlement.com (“Settlement Website”), where Class Members can obtain further information about the terms of the Settlement, their rights, important dates and deadlines, and related information. Class Members shall also be able to submit a Claim Form electronically via the Settlement Website. The Settlement Website shall include, in PDF format, the Second Amended Complaint (“SAC”), the Settlement Agreement, the Motion for Preliminary Approval, the Preliminary Approval Order, the Class Notice, any papers filed in support of Final Approval of the Settlement, Class Counsel's Application for Attorneys' Fees and Costs (after it is filed), the Final Approval Order (after it is entered), and other case documents as agreed upon by the Parties and/or required by the Court and shall be operational and live on the date the Settlement Administrator begins emailing notice. The Settlement Website shall be optimized for mobile display. The Settlement Administrator shall maintain the Settlement Website as operational and shall not take it down until two hundred (200) days after the Effective Date. Within five (5) business days after the Settlement Website is taken down, the Settlement Administrator shall transfer ownership of the URL for the Settlement Website to SCEA.

         19. The Settlement Administrator shall establish and maintain a toll-free telephone number (“Toll-Free Number”) where Class Members can call to request a copy of the Settlement Agreement, a Claim Form, or any other information concerning the Settlement or the Settlement Agreement.

         20. Class Members who wish to submit a Claim shall have the option of submitting Claim Forms online via the Settlement Website or by mail. Claim Forms submitted online must be submitted by no later than the Claims Deadline: April 15, 2018. Claim Forms submitted by mail must be postmarked no later than the Claims Deadline.

         21. By no later than ten (10) days after the Claims Deadline, the Settlement Administrator, using the information submitted by Class Members, shall create and provide to Class Counsel and SCEA's Counsel a complete and final list of Valid Claimants that includes each member's name and PlayStation Network Sign-In ID, PlayStation Network Online ID and/or serial number as provided.

         22. Any Class Member who wishes to be excluded from the Class must email or mail a written request for exclusion to the Settlement Administrator at the email address or mailing address provided in the Class Notice, postmarked no later than the Opt-Out Deadline: April 15, 2018, and: (a) must contain the name and address of the person to be excluded; (b) if applicable, must contain the name and address of any person claiming to be legally entitled to submit an exclusion request on behalf of the Class Member and the basis for such legal entitlement; (c) must be mailed by First Class U.S. Mail, proper postage prepaid, to the Settlement Administrator at the specified mailing address; (d) must be submitted or postmarked on or before the Opt-out Deadline; (e) should include the serial number of the Fat PS3 that he or she purchased, the PlayStation Network Sign-In ID used for that console before April 1, 2010 or the PlayStation Network Online ID used for that console before April 1, 2010; and (f) must be personally signed and clearly indicate that he/she wants to be excluded from the Class. So-called “mass” or “class” opt-outs shall not be allowed.

         23. If the Settlement is finally approved and becomes effective, any Class Member who does not send a timely and valid request for exclusion shall be a Settlement Class Member and shall be bound by all subsequent proceedings, orders, and judgments in the Action, including, but not limited to, the Release, even if he or she has litigation pending or subsequently initiates litigation against SCEA relating to the claims and transactions released in the Action.

         24. Any Class Member or person legally entitled to act on his or her behalf may object to the fairness, reasonableness, or adequacy of the Settlement, to Class Counsel's Request for Attorneys' Fees and Costs (“Fee Application”), and/or the Request for Service Awards for the Plaintiffs. To be valid, any objection must be made in writing, must be mailed to the Settlement Administrator at the address provided in the Class Notice, postmarked no later than the Objection Deadline: April 15, 2018, and must include the following: (a) the name of the Action (In re Sony PS3 “Other OS” Litigation, No. 10-CV-01811-YGR); (b) the objector's full name, address, and telephone number; (c) if applicable, the name and address of any person claiming to be legally entitled to object on behalf of a Class Member and the basis of such legal entitlement; (d) all grounds for the objection; (e) the serial number of the Fat PS3 that he or she purchased, the PlayStation Network Sign-In ID used for that console before April 1, 2010 or the PlayStation Network Online ID used for that console before April 1, 2010; (f) whether the objector is represented by counsel and, if so, the identity of such counsel, and all previous objections filed by the objector and their counsel within the last two years; and (g) the objector's signature.

         26. Any Class Member who submits a timely and valid written objection may appear at the Fairness Hearing, either in person or through personal counsel hired at the Class Member's own personal expense. Any Class Member who does not submit a timely and valid objection shall be deemed to have waived all objections and shall forever be foreclosed from making any objection to the fairness, adequacy, or reasonableness of the Settlement and any Final Approval Order and Final Judgment entered approving it, Class Counsel's Fee Application, or any Request for Service Awards for the Plaintiffs.

         27. By no later than fifteen (15) days after the Objection Deadline, the Settlement Administrator shall provide to the Parties proof of the extent and effectiveness of Class Notice. By no later than two (2) days after the Objection Deadline, the Settlement Administrator shall provide to Class Counsel and SCEA's Counsel all objections submitted by Class Members, including any related correspondence.

         28. The Settlement Administrator shall no later than ten (10) days after the Opt-Out Deadline provide to Class Counsel and SCEA's Counsel a complete and final list of Class Members who submitted requests to exclude themselves from the Class, including any related correspondence.

         29. All costs associated with the administration of the Settlement, distribution of Class Notice, and any other tasks assigned to the Settlement Administrator by the Settlement, by this Preliminary Approval Order, by SCEA and the Class Counsel's mutual agreement in writing, or by this Court shall be paid from the Settlement Funds.

         30. Class Counsel shall file their Motion for Attorneys' Fees and Service Awards for the Plaintiffs by no later than March 6, 2018. After it is filed, Class Counsel's Motion for Attorneys' Fees and Service Awards for the Plaintiffs shall be posted on the Settlement Website.

         31. The Parties shall file any motions in support of Final Approval of the Settlement by no later than May 8, 2018.

         32. The Parties shall file any responses to any Class Member objections by no later than April 24, 2018.

         33. The Fairness Hearing shall be scheduled for May 29, 2018, at 2:00 p.m. to assist the Court in determining whether the Settlement should be finally approved as fair, reasonable, and adequate to the Settlement Class Members; whether Final Judgment should be entered dismissing the Action with prejudice; whether Class Counsel's Fee Application should be approved; and whether any Request for Service Awards for the Plaintiffs should be approved.

         34. The Court reserves the right to modify the date of the Fairness Hearing and related deadlines set forth herein. In the event the Fairness Hearing is moved, the new date and time shall be promptly posted on the Settlement Website by the Settlement Administrator.

         35. This Order shall become null and void and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions as they existed immediately before the Court entered this Order, if: (a) the Settlement is not finally approved by the Court, or does not become final, pursuant to the terms of the Settlement; (b) the Settlement is terminated in accordance with the Settlement; or (c) the Settlement does not become effective pursuant to the terms of the Settlement for any other reason.

         36. If the Settlement does not become final and effective pursuant to the terms of the Settlement, the Class Representatives, the Class Members, and SCEA shall be returned to their respective statuses as of the date immediately prior to the execution of the Settlement Agreement, and this Preliminary Approval Order shall have no force or effect, and neither this Preliminary Approval Order nor the Settlement shall be construed or used as an admission, concession, or declaration by or against SCEA of any fault, wrongdoing, breach, or liability, or be construed or used as an admission, concession, or declaration by or against any of the Plaintiffs or Class Members that their claims lack merit or that the relief requested is inappropriate, improper, or unavailable, or as a waiver by any party of any defenses or claims he, she, or it may have in this Action or in any other lawsuit, and it shall not be admissible in evidence, or usable for any purpose whatsoever in the Action, any proceeding between the Parties, or in any action related to the Released Claims or otherwise involving the Parties, Class Members, or any Released Party.

         36. Pending the final determination of whether the Settlement should be approved, all proceedings in this Action, except as may be necessary to implement the Settlement or comply with the terms of the Settlement, are hereby stayed.

         37. Pending the final determination of whether the Settlement should be approved, Plaintiffs and each Class Member, and any person purportedly acting on behalf of any Class Member(s), are hereby enjoined from commencing, pursuing, maintaining, enforcing, or prosecuting, either directly or indirectly, any Released Claims in any judicial, administrative, arbitral or other forum, against any of the Released Parties, provided that this injunction shall not apply to the claims of any Class Members who have timely and validly requested to be excluded from the Class. Such injunction shall remain in force until Final Settlement Date or until such time as the Parties notify the Court that the Settlement has been terminated. This injunction is necessary to protect and effectuate the Settlement, this Preliminary Approval Order, and this Court's authority regarding the Settlement, and is ordered in aid of this Court's jurisdiction and to protect its judgments.

         38. Class Counsel, SCEA, and the Settlement Administrator are directed to carry out their obligations under the Settlement and this Preliminary Approval Order.

Event

Date

SCEA deadline to update class database

12/5/17

Notice Date:

1/15/18

Deadline to file Motion for Attorneys' Fees and Service Awards

3/6/18

Claims Deadline

4/15/18

Opt-Out Deadline

4/15/18

Objection Deadline

4/15/18

Filing of Motion for Final Approval

5/8/18

Hearing on Motion for Final Approval and Motion for Attorneys' Fees and Service Awards

5/29/18 at 2:00 p.m.

         IT IS SO ORDERED.

         EXHIBIT A

         STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE

         IT IS HEREBY STIPULATED AND AGREED, by and between Anthony Ventura, Jason Baker, James Girardi, Derrick Alba and Jonathan Huber (collectively, “Class Representatives”), individually and on behalf of the class they seek to represent (defined below as “Class Members”), on the one hand, and Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC (referred to herein as “SCEA”), on the other hand, through their duly-authorized counsel, that the proceedings in the United States District Court for the Northern District of California captioned In re Sony PS3 “Other OS” Litigation, Case No. C-10-1811 (YGR), including but not limited to the complaints referenced in Section III, paragraphs 49-51, 54, and 58, below (collectively the “Action”) is settled, fully and finally, on the terms and conditions set forth in this Agreement and the exhibits hereto, subject to the occurrences set forth herein that permit SCEA or the Class Representatives to terminate this Agreement, and further subject to and expressly conditioned upon the approval of the Court and the entry of Final Judgment.

         I. INTRODUCTION

         A. SCEA expressly denies any wrongdoing and does not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims that have been alleged against it in the Action. Nevertheless, SCEA considers it desirable to resolve the Action on the terms stated herein in order to avoid further expense, inconvenience, and interference with its business operations and to dispose of burdensome litigation. Therefore, SCEA has determined that the settlement of the Action on the terms set forth herein is in its best interests.

         B. This Agreement reflects a compromise between the Parties and shall in no event be construed as or deemed an admission or concession by any Party of the truth of any of the pleadings in the Action or of any fault on the part of SCEA and all such allegations or the validity of any purported claim or defense asserted are expressly denied. Nothing in this Agreement shall constitute an admission of liability or may be used as evidence of liability by or against any Party hereto.

         C. Class Counsel and Class Representatives believed that their claims were valid and were likely to prevail. Nevertheless, based upon their review, investigation, and evaluation of the facts and law relating to the matters alleged in the Action, Class Representatives and Class Counsel, on behalf of the putative Class, have agreed to settle the Action pursuant to the provisions of this Agreement, after considering, among other things: (1) the substantial benefits to the Class under the terms of this Agreement; (2) the risks, costs, and uncertainty of protracted litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; and (3) the desirability of consummating this Agreement promptly in order to provide expeditious and effective relief to the Class.

         D. This Settlement was reached after arm's-length settlement negotiations among and between Class Counsel, Class Representatives, SCEA, and SCEA's Counsel, including three mediation sessions before three different retired judges. Most recently, the Parties mediated before retired Justice James Lambden on April 6, 2017 but did not reach an agreement. After extensive continued negotiations aided by Justice Lambden, the Parties reached an agreement on most material terms on May 26, 2017 and a final agreement on August 24, 2017.

         II. DEFINITIONS AND CONVENTIONS

         A. DEFINITIONS

         As used in this Agreement, capitalized bolded terms have the following meaning, unless specifically provided otherwise:

         1. “Action” means the putative class action complaint, including all individually filed, consolidated, coordinated and amended complaints filed in: In re Sony PS3 “Other OS” Litigation, Case No. C-10-1811 (YGR), currently pending in the Northern District of California, Oakland Division, before the Honorable Yvonne Gonzalez Rogers.

         2. “Administration Cost” or “Administrative Costs” means the reasonable, actual and direct costs charged by the Settlement Administrator for its services and includes the costs of Class Notice, implementing the Claim Process and carrying out any other responsibility consistent with the terms of this Agreement. Administration Costs do not include other fees, costs or expenses, including Attorneys' Fees and Costs, Court costs or Service Awards.

         3. “Administrator” or “Settlement Administrator” means the third-party administrator retained by the Parties to administer the Settlement, including providing Class Notice to the Class Members, processing and evaluating Claims and other documents, and performing other tasks that are provided for in this Agreement.

         4. “Agreement” means the terms and conditions of this document entitled “Stipulation of Class Action Settlement and Release.” 5. “Attorneys' Fees and Costs” means such funds as may be awarded by the Court to Class Counsel to compensate all Counsel in the Action for their fees and expenses incurred in connection with the Action and the Settlement.

         6. “Claim” means the claim of a Class Member or his or her legal representative submitted in compliance with the procedure provided in this Agreement as described in Section V.

         7. “Claimant” means a Class Member or his or her legal representative who submits a Claim.

         8. “Claim Deadline” means ninety (90) days following the Notice Date, unless a different date is ordered by the Court.

         9. “Claim Form” means the document by which Class Members may submit a Claim, substantially in the form attached hereto as Exhibit 1.

         10. “Claim Process” means the process for submitting and reviewing Claims as described in Section V of this Agreement.

         11. “Class Counsel” refers collectively to the law firms listed below who were appointed as Interim Co-Lead Counsel on June 30, 2010 and seek to be appointed as Class Counsel:

James J. Pizzirusso Hausfeld LLP 1700 K St., NW, Ste 650 Washington, DC 20006 Tel: 202-540-7200 Fax: 202-540-7201 Email: jpizzirusso@hausfeld.com
Gordon M. Fauth Of Counsel Finkelstein Thompson LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Direct Tel: 510-238-9610 Tel: 415-398-8700 Fax: 415-398-8704 Email: gmf@classlitigation.com
Kathleen V. Fisher Calvo Fisher & Jacob LLP 555 Montgomery Street Suite 1155 San Francisco, CA 94111 Tel: 415-374-8370 Fax: 415-374-8373 Email: kfisher@calvofisher.com

         12. “Class” or “Class Member” or “Class Members” means any and all persons in the United States who purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. Excluded from the Class are: (a) any persons who are employees, directors, officers, and agents of SCEA or its subsidiaries and affiliated companies; (b) any persons who timely and properly exclude themselves from this Settlement; and (c) the Court, the Court's immediate family, and Court staff.

         13. “Class Notice” means all types of notice that will be provided to the Class Members pursuant to Federal Rule of Civil Procedure 23(e), the Preliminary Approval Order and this Agreement, including email notice, publication notice, website notice, and any additional notice that may be ordered by the Court.

         14. “Class Period” means the time period between November 1, 2006 and April 1, 2010.

         15. “Class Representatives” or “Plaintiffs” means plaintiffs Anthony Ventura, Jason Baker, James Girardi, Derrick Alba and Jonathan Huber, collectively.

         16. “Court” means the United States District Court for the Northern District of California.

         17. “Defendant” means Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC.

         18. “Effective Date” means the earliest of the following: (1) the date of entry of the Final Judgment if (a) no objection is filed to the Settlement or if all objections are withdrawn prior to the Court ruling on them and (b) no appeal is taken from the Final Approval Order and/or Final Judgment; or (2) thirty-one (31) calendar days after the entry of the Final Judgment if objections are filed and overruled and no appeal is taken from the Final Approval Order and/or Final Judgment; (3) if one or more timely appeals is taken from the Final Approval and/or Final Judgment, thirty-one (31) calendar days after the date as of which all such appeals have been voluntarily dismissed or have been finally resolved after being heard and any subsequent appeals or petitions for certiorari have been resolved. “Execution Date” means the date upon which the last signature is placed on this Agreement.

         19. “Fat PS3” means the Sony PlayStation®3 computer entertainment console that was manufactured between approximately November 1, 2006 and September 2009 that included the Other OS functionality. A list of Fat PS3 model numbers is attached hereto as Exhibit 7.

         20. “Fee And Expense Award” means an award of attorneys' fees and the reimbursement of litigation costs and expenses authorized by the Court to be paid to Class Counsel from the Settlement Funds for the services they provided in representing the Class. “Service Award” means an award in an amount not to exceed three thousand five hundred dollars ($3, 500) authorized by the Court to be paid to each Class Representative for the services they provided in representing the Class.

         21. “Final Approval Hearing” or “Fairness Hearing” means a hearing held before the Court during or following which the Court will: (1) make a final decision regarding whether to finally approve this Agreement as fair, reasonable and adequate; (2) determine the amount of any Fee And Expense Award and any Service Award; and (3) rule on the merit of any objections to this Agreement.

         22. “Final Approval” or “Final Approval Order” means an order issued by the Court finally approving this Agreement as binding upon the Parties and substantially in the form attached hereto as Exhibit 2.

         23. “Final Judgment” means the Court's order finally disposing of the Action, substantially in the form attached hereto as Exhibit 3.

         24. “Firmware Update 3.21” means the software update that SCEA issued in April 2010 which, among other things, disabled the Other OS functionality from the Sony PlayStation®3 upon installation.

         25. “Funding Date” is the date by which SCEA will deposit with the Settlement Administrator the sum of Three Million Seven Hundred and Fifty Thousand dollars ($3, 750, 000) as Settlement Funds. The Funding Date is thirty-five days (35) after the Effective Date.

         26. “Long Form Class Notice” or “Long Form Notice” means a notice substantially in the form of Exhibit 4 attached hereto and approved by the Court, which the Settlement Administrator shall make available on the Settlement Website pursuant to the terms of ...


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