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5 UNITED STATES DISTRICT COURT

6 NORTHERN DISTRICT OF CALIFORNIA

7 SAN FRANCISCO DIVISION

8 MICHAEL MCDONALD, et al., Case No. 3:17-cv-04344-JD 9 Plaintiffs, CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE 10 v. 11 KILOO A/S, et al., 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 This CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE (“Settlement

2 Agreement”) is entered into by and between Plaintiffs Michael McDonald, Tamara Draut, and

3 Dominique Murillo (“Plaintiffs”), on behalf of themselves, and as parents and guardians of their

4 children, P.G.M., P.S.M., P.R.M., H.D.-F., M.M., G.M., and E.M., and on behalf of all others

5 similarly situated (“Plaintiffs”), and Defendant Kiloo A/S (“Defendant” or “Kiloo”) (collectively,

6 with Plaintiffs, the “Parties”). This Settlement Agreement is conditioned upon and subject to

7 approval of the Court as required by Rule 23 of the Federal Rules of Civil Procedure. Class

8 Counsel (as defined below) and the Parties hereby stipulate and agree that, in consideration of the

9 promises and covenants set forth in this Settlement Agreement, the Lawsuit (as defined below), 10 and all Released Claims (as defined below) shall be finally and fully settled, compromised, and 11 released, on the following terms and conditions: 12 RECITALS 13 1. WHEREAS, on July 31, 2017, Plaintiffs filed a Class Action Complaint in the 14 United States District Court for the Northern District of California, styled McDonald, et al. v. 15 Kiloo APS, et al, No. 3:17-cv-04344-JD (N.D. Cal.) (the “Lawsuit”); 16 2. WHEREAS, the Court related the Lawsuit to two other class actions filed in the 17 United States District Court for the Northern District of California, styled Rushing v. Viacom, 18 Inc., et al., No. 3:17-cv-04492-JD (N.D. Cal.) and Rushing, et al. v. The Walt Disney Company, et 19 al., No. 3:17-cv-04419-JD (N.D. Cal.) (together with the Lawsuit, the “Related Lawsuits”). See 20 Dkt. 60 (8/29/17 Related Case Order). 21 3. WHEREAS, on June 4, 2018, Plaintiffs filed an Amended Class Action Complaint 22 in the Lawsuit (see Dkts. 173 & 268) (the “Amended Complaint”); 23 4. WHEREAS, the Amended Complaint alleges that Kiloo, along with other named 24 defendants, collects or transmits Personal Data from children in violation of (i) the common law 25 claim of intrusion upon seclusion; (ii) the right to privacy under California Constitution Article 1, 26 Section 1; and (iii) New York General Business Law § 349. 27 5. WHEREAS, on May 22, 2019, the Court denied Defendants’ 12(b)(6) motions to 28 dismiss, but granted Defendant Sybo ApS’s (“Sybo”) motion to dismiss the New York General

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1 Business Law § 349 claim against Sybo on personal jurisdiction grounds with leave to amend (see

2 Dkt. 270);

3 6. WHEREAS, Defendant Kiloo has denied and continues to deny all material

4 allegations and any and all wrongdoing alleged in the Amended Complaint and is settling solely

5 to avoid the expense of continuing litigation;

6 7. WHEREAS, the Parties desire to resolve all claims that are asserted or could have

7 been asserted in the Lawsuit relating to the allegations made against Kiloo;

8 8. WHEREAS, the Parties and their respective counsel participated in extensive

9 mediated negotiations from February to April 2020, beginning with a full-day, in-person 10 mediation on February 4, 2020, in San Francisco, California, with the Hon. Jay Gandhi (Ret.) and 11 Lexi Myer of JAMS which ultimately resulted in the Parties reaching an agreement on April 5, 12 2020, to settle the Lawsuit on the terms and conditions embodied in this Settlement Agreement; 13 9. WHEREAS, Plaintiffs have conducted extensive discovery relating to the Lawsuit, 14 have thoroughly analyzed the factual and legal issues in the Lawsuit, have engaged in motion 15 practice, and believe that the proposed settlement embodied in this Settlement Agreement is fair, 16 reasonable, and adequate, and in the best interests of the putative Settlement Class and that this 17 Settlement Agreement should be approved by the Court under Rule 23(e) of the Federal Rules of 18 Civil Procedure; 19 10. WHEREAS, Defendant is entering into this Settlement Agreement solely to avoid 20 the further burden and expense of continued litigation of the Lawsuit, and believes that the 21 proposed settlement embodied in this Settlement Agreement is fair, reasonable, and adequate, and 22 that this Settlement Agreement should be approved by the Court under Rule 23(e) of the Federal 23 Rules of Civil Procedure; 24 11. WHEREAS, the Settlement Agreement resolves the Lawsuit in its entirety as to 25 Kiloo, without any admission of liability or wrongdoing of any kind whatsoever, and the Parties 26 intend this Settlement Agreement to bind the Parties; 27 12. WHEREAS, the Parties believe that this Settlement Agreement can and should be 28 approved to avoid the time, expense, and uncertainty of protracted litigation; and in the event that

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1 this Settlement Agreement does not receive final and binding approval from the Court or is

2 terminated according to its terms, Plaintiffs expressly reserve the right to file for class

3 certification and to try their case to judgment, while Defendant expressly reserves all of its rights,

4 including the right to challenge class certification;

5 13. WHEREAS, the Court has suspended all litigation activity pending the filing of a

6 settlement approval motion. See Dkt. 358 (4/7/20 Order); and

7 NOW THEREFORE, IT IS STIPULATED AND AGREED, subject to approval by the

8 Court, by and among the Parties, as follows:

9 1. DEFINITIONS. In addition to the terms defined herein, and as used in this Settlement 10 Agreement, the following terms shall be defined as follows: 11 1.1 “Class Counsel” means the law firms of Lieff Cabraser Heimann & Bernstein, 12 LLP and Carney Bates & Pulliam, PLLC. 13 1.2 “Class Representatives” means Plaintiffs Michael McDonald, Tamara Draut, and 14 Dominique Murillo. 15 1.3 “Court” means the United States District Court for the Northern District of 16 California. 17 1.4 “Effective Date” means either: (a) the date of the Final Approval Order, if no 18 objections are timely filed; (b) the expiration date of the time for filing notice of any appeal from 19 the Final Approval Order by the Court if any timely objections are filed but no appeal is filed; or 20 (c) if an appeal is filed, the latest of (i) the date of final affirmance of the Final Approval Order, 21 (ii) the expiration of the time for a petition for writ of certiorari to review the Final Approval 22 Order if affirmed and, if the certiorari is granted, the date of final affirmance of the Final 23 Approval Order following review pursuant to that grant; or (iii) the date of final dismissal of any 24 appeal from the Final Approval Order or the final dismissal of any proceeding on certiorari to 25 review the Final Approval Order that has the effect of confirming the Final Approval Order. The 26 occurrence of the Effective Date does not require that Class Counsel’s request for an award of 27 reasonable attorneys’ fees and expenses be Final. 28

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1 1.5 “Final” means, with respect to any judicial ruling or order, that: (1) if no appeal,

2 motion for reconsideration, reargument and/or rehearing, or petition for writ of certiorari has been

3 filed, the time has expired to file such an appeal, motion, and/or petition; or (2) if an appeal,

4 motion for reconsideration, reargument and/or rehearing, or petition for a writ of certiorari has

5 been filed, the judicial ruling or order has been affirmed with no further right of review, or such

6 appeal, motion, and/or petition has been denied or dismissed with no further right of review.

7 1.6 “Final Approval Order” means an order granting final approval of the settlement

8 embodied in this Settlement Agreement with respect to the relief to the class (including Class

9 Representative service awards, and expressly exempting attorneys’ fees and expenses) and 10 dismissing with prejudice all Released Claims against Kiloo in the Lawsuit, which the Parties will 11 request be entered as a separate judgment pursuant to Federal Rule of Civil Procedure 54(b), 12 including if entered in a consolidated order including other named defendants in the Lawsuit or 13 the Related Lawsuits. 14 1.7 “Order on Attorneys’ Fees” means an order regarding Class Counsel’s 15 application for an award of reasonable attorneys’ fees and expenses which the Parties will request 16 be entered as a separate judgment pursuant to Federal Rule of Civil Procedure 54(b), including if 17 entered in a consolidated order concerning other named defendants in the Lawsuit or the Related 18 Lawsuits. 19 1.8 “Preliminary Approval Order” means the order entered by the Court 20 preliminarily approving the Settlement Agreement, including if entered in a consolidated order 21 concerning other named defendants in the Lawsuit or the Related Lawsuits, in substantially the 22 same form as attached hereto. See Ex. A. 23 1.9 “Released Claims” means any and all claims for, by, or on behalf of, the 24 Settlement Class Members and their children, whether actual or potential claims, counterclaims, 25 actions, causes of action, suits, demands, liabilities, rights, contracts or agreements, 26 extracontractual claims, and or obligations, cross claims, third party claims, contentions, 27 allegations, and assertions of wrongdoing, and any demands for injunctive relief or any other type 28 of equitable or legal relief, whether filed or unfiled, known or unknown, suspected or

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1 unsuspected, contingent or non-contingent, discovered or undiscovered, fixed or contingent,

2 claimed or unclaimed, brought or that could have been brought under the identical factual

3 predicate in the Action against any of the Released Parties that relate to, directly or indirectly, the

4 subject matter of the Lawsuit. “Released Claims” include any claims for damages or other

5 monetary relief (whether actual, nominal, punitive, exemplary, statutory, or otherwise) for the

6 Class Representatives and their children, but does not include any claims for damages or other

7 monetary relief (whether actual, nominal, punitive, exemplary, statutory, or otherwise) for any

8 other Settlement Class Members and their children.

9 1.10 “Released Parties” means Defendant together with its predecessors, successors 10 (including, without limitation, acquirers of all or substantially all of its assets, stock or other 11 ownership interests) and assigns; the past, present, and future, direct and indirect, parents 12 (including, but not limited to holding companies), subsidiaries and affiliates of any of the above; 13 and the past, present, and future principals, trustees, partners (including, without limitation, 14 affinity, agent bank, and private label and co-brand partners), privies, licensors, licensees, 15 associates, employers, consultants, independent contractors, members, accountants, underwriters, 16 lenders, auditors, officers, managing directors, directors, employees, agents, attorneys, 17 shareholders, financial and other advisors, affiliates, insurance carriers, predecessors, successors 18 (including, without limitation, acquirers of all or substantially all of their assets, stock, or other 19 ownership interests), assigns, successors in interest, representatives, heirs, executors, estates, and 20 administrators of any of the above. “Released Parties” does not include any entities that have 21 embedded a software development kit or that will embed a software development kit in any of 22 Defendant’s mobile gaming applications. 23 1.11 “Releasing Parties” means Settlement Class Members on behalf of themselves 24 and their respective children, present or past heirs, executors, estates, administrators, 25 predecessors, successors, assigns, insurers, attorneys, accountants, financial and other advisors, 26 legal representatives, successors in interest, assigns, firms, trusts, and corporations. 27 1.12 “Settlement Agreement” means this Class Action Settlement Agreement and 28 Release.

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1 1.13 “Settlement Class” means: all parents and/or legal guardians of persons residing

2 in the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut,

3 Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine,

4 Maryland, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York, North

5 Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont,

6 Washington, and West Virginia who are under the age of 13 and have played Subway Surfers, or

7 who were under the age of 13 when they played Subway Surfers.

8 1.14 “Settlement Class Member” means an individual in the Settlement Class.

9 2. SETTLEMENT APPROVAL. 10 2.1 The Parties shall cooperate in good faith, and agree, subject to their fiduciary and 11 other legal obligations, to take all reasonably necessary steps to obtain the Court’s approval of the 12 terms of this Settlement Agreement. The Parties agree to coordinate proceedings for the approval 13 of the terms of this Settlement Agreement with proceedings for the approval of settlements with 14 other named defendants in the Lawsuit and also with defendants in the Related Lawsuits. 15 2.2 For the purposes of settlement only and the proceedings contemplated herein for 16 effectuating the Settlement Agreement, Plaintiffs shall move the Court to certify the Settlement 17 Class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure and this 18 Court’s Procedural Guidance for Class Action Settlements. 19 2.3 Plaintiffs shall move the Court to: (1) designate themselves as Class 20 Representatives and appoint Lieff Cabraser Heimann & Bernstein LLP and Carney Bates & 21 Pulliam, PLLC as Class Counsel; (2) approve the form and manner of notice to the Settlement 22 Class Members; (3) appoint a Class Settlement Administrator to implement the notice plan and 23 serve as escrow agent as set forth herein; (4) schedule a fairness/final approval hearing to 24 consider the fairness of the Settlement (including as to attorneys’ fees and expenses); and (5) 25 approve a procedure for determining Class Counsel’s request for an award of reasonable 26 attorneys’ fees and expenses subsequent to the Court’s consideration of the Final Approval Order. 27 2.4 The Parties shall request that the Final Approval Order be entered as a separate 28 judgment pursuant to Federal Rule of Civil Procedure 54(b). The Parties shall request that the

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1 Court consider Plaintiffs’ motion for entry of the Final Approval Order prior to the Court

2 considering Class Counsel’s request for an award of reasonable attorneys’ fees and expenses.

3 2.5 The Parties shall request that the Order on Attorneys’ Fees be entered as a separate

4 judgment pursuant to Federal Rule of Civil Procedure 54(b). The Parties shall request that the

5 Court consider Class Counsel’s request for an award of reasonable attorneys’ fees and expenses

6 subsequent to the Court considering Plaintiffs’ motion for entry of the Final Approval Order.

7 3. INJUNCTIVE RELIEF. In consideration for the complete and final settlement of the

8 Lawsuit, the releases, and other promises and covenants set forth in this Settlement Agreement,

9 and subject to the other terms and conditions herein, Defendant agrees to the following injunctive 10 relief listed below in this section. Defendant agrees to make these changes without any admission 11 of fault or wrongdoing or any concession that its prior practices or procedures in any way 12 violated, or were insufficient to comply with, any applicable law, rule or regulation. 13 3.1 All below terms will apply to Kiloo only to the extent that Kiloo retains any 14 publishing responsibility for Subway Surfers. No part of the below terms confers any new, 15 expanded, or different obligations on Kiloo to assume any publishing responsibility related to 16 Subway Surfers. For the avoidance of doubt, nothing herein negates Kiloo’s responsibility to 17 delete data defined in Paragraph 3.6 that was collected when Kiloo was the publisher of Subway 18 Surfers. 19 3.2 This injunctive relief only applies within the United States. 20 3.3 All terms set forth below are subject to any changes in United States law or 21 regulation, including Federal Trade Commission guidance. Nothing herein prevents or limits 22 Kiloo from complying with any current or future law, regulation, or FTC guidance. 23 3.4 Within 120 days of the entry of a Final Approval Order, for Subway Surfers, to the 24 extent Kiloo retains any publishing responsibility for Subway Surfers, Kiloo shall release an 25 update to Subway Surfers implementing an age-gate meeting the requirements of paragraph 3.5. 26 For any user who identifies as under the age of 13 through use of that age-gate, Kiloo will only 27 collect data in compliance with COPPA and for those users shall only initialize those advertising 28

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1 SDKs for which the relevant ad network has previously assured Kiloo that its SDK is COPPA-

2 compliant and is capable of only serving Contextual Advertising to those users.

3 3.5 Consistent with paragraph 3.4, within 120 days of the entry of a Final Approval

4 Order, Kiloo will include an age-gate in Subway Surfers that either requires the input of the

5 player’s age into a blank box or, alternatively, the input of an age into a mechanism with a default

6 age-entry that that starts closest to an age of zero and allows a user to spin a wheel or move a bar

7 in ascending numbers (i.e. 1, 2, 3, 4, etc.) to increase the age.

8 3.6 Within 120 days of the entry of a Final Approval Order, and excluding Personal

9 Data (a) Kiloo uses to support internal operations consistent with COPPA, (b) for game analytics 10 consistent with COPPA, and (c) for game cloud save data, to the extent technically possible using 11 commercially reasonable efforts, Kiloo shall delete or otherwise refrain from disclosing, using, or 12 benefitting from all of the following Personal Data related to Subway Surfers in the custody, 13 possession, or control of Kiloo: (a) all Personal Data transmitted from users of versions of 14 Subway Surfers prior to version 1.73; (b) all Personal Data transmitted from Subway Surfers 15 users who identified as under the age of 13 years old in an age-gate at the time that data was 16 transmitted, including any Personal Data collected from such users during sessions played prior to 17 that identification; and (c) all Personal Data transmitted from Subway Surfers users who selected 18 a birth year of 2000 in all versions of the age-gate that predate the age-gate required in paragraph 19 3.4. Provided, however, that such Personal Data may be used or disclosed to the extent requested 20 by a government agency or required by law, regulation, or court order. 21 3.7 Kiloo will confirm that for any user who identifies as under the age of 13 within 22 the Subway Surfers age-gate, Kiloo will not track a user’s location more granularly than country, 23 or state, or city level and will obtain written assurance from any advertising SDK that it does not 24 track a user’s location more granularly than country, or state, or city level for those users in 25 relation to Subway Surfers. For the avoidance of doubt, Kiloo asserts that Kiloo did not 26 previously track this data for Subway Surfers users. 27 3.8 Kiloo will confirm that, for any user who identifies as under the age of 13 within 28 the Subway Surfers age-gate, Kiloo will not send such user a push notification.

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1 3.9 Nothing in the Settlement Agreement excludes Kiloo from collecting persistent

2 identifiers for the purpose of internal operations (which, per the FTC, includes Contextual

3 Advertising) as defined in COPPA.

4 3.10 Within 120 days of the entry of a Final Approval Order, Kiloo shall provide

5 Plaintiffs an affidavit certifying compliance with the terms described herein.

6 3.11 As used herein, “Contextual Advertising” is defined as set forth by the Federal

7 Trade Commission: “the delivery of advertisements based upon a consumer’s current visit to a

8 Web page or a single search query, without the collection and retention of data about the

9 consumer’s online activities over time.” Children’s Online Privacy Protection Rule, 78 Fed. Reg. 10 3972, 3979 n. 94 (Jan. 17, 2013). 11 3.12 As used herein, “Personal Data” means individually identifiable information about 12 an individual collected online, including: (1) a first and last name; (2) a home or other physical 13 address including street name and name of a city or town; (3) an email address or any other 14 substantially similar identifier that permits direct contact with a person online, including but not 15 limited to, an instant messaging user identifier, a voice over internet protocol (VOIP) identifier, or 16 a video chat user identifier; (4) a screen or user name where it functions in the same manner as 17 subsection (3), above; (5) a telephone number; (6) a Social Security number; (7) a persistent 18 identifier that can be used to recognize a user over time and across different Web sites or online 19 services (such persistent identifier includes, but is not limited to, a customer number held in a 20 cookie, an Internet Protocol (IP) address, a processor or device serial number, or unique device 21 identifier1); (8) a photograph, video, or audio file where such file contains a child’s image or 22 voice; (9) geolocation information sufficient to identify street name and name of a city or town; 23 or (10) information concerning the child or the parents of that child that the operator collects 24 online from the child and combines with an identifier described in this definition. 25 1 26 Unique device identifiers include, but are not limited to (i) Android ID; (ii) Android Advertising ID (“AAID”); (iii) Apple ID for Advertisers (“IDFA”); (iv) Apple ID for vendors (“IDFV”); (v) 27 International Mobile Equipment Identity (“IMEI”); (vi) Wi-Fi MAC Address; and (vii) MAC Address. 28

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1 3.13 As used herein, “Subway Surfers” means the app currently available Subway

2 Surfers application as well as any newer iteration to be launched by Sybo ApS, including with the

3 following App-IDs: (1) Apple App Store App ID, WVTUF8E2SL.com.kiloo.subwaysurfers, (2)

4 Apple App Store App ID, U2TFSMC8G4.com.kiloo.subwaysurfers, (3) Google Play Store App

5 ID, com.kiloo.subwaysurf, (4) Microsoft Windows Phone App ID Kiloo.SubwaySurfers under

6 publisher ID CN=A5B4C0C5-D472-4064-BD62-131 B4A45CC13 and Store ID

7 9WZDNCRFH273, and (5) Amazon App Store package name relating to Subway Surfers,

8 com.kiloo.subwaysurf (in case of any mistyping or incomplete specification the App-IDs shall,

9 for the avoidance of doubt, comprise the app-ids reasonably intended to be covered by the 10 aforementioned). 11 3.14 The term of the Injunctive Relief described herein will be for a term of 3 years 12 from the entry of a Final Approval Order. 13 4. SETTLEMENT ADMINISTRATOR. 14 4.1 The Parties shall request contemporaneously with seeking preliminary approval 15 that the Court appoint a Settlement Administrator (“Settlement Administrator”). 16 4.2 The Settlement Administrator shall establish a single F.D.I.C.-insured interest 17 bearing escrow account, at a financial institution with more than $20 billion in an account or 18 accounts insured by an agency or agencies of the United States government, with insurance that 19 exceeds any amounts deposited therein, for use in all the settlements in the Lawsuit and the 20 Related Lawsuits to facilitate the effectuation and payment of class notice and attorneys’ fees (the 21 “Escrow Account” or “Payment Fund”). The Settlement Administrator may only use the funds 22 paid by the Defendant into the Payment Fund as specified in and consistent with the terms of the 23 Settlement Agreement. Further, for the avoidance of doubt, any expenses or fees associated or 24 caused by the setting up of and/or maintenance of the Escrow Account shall not be paid by 25 Defendant, but by Class Counsel. 26 4.3 The Settlement Administrator shall be responsible for effectuating class notice and 27 administering the Payment Fund consistent with the terms of the Settlement Agreement. 28 5. NOTICE.

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1 5.1 The Parties shall jointly request that the Court approve a class notice program that

2 will: (1) create a website (the “Settlement Website”) maintained by the Settlement Administrator

3 with information for Settlement Class Members about the Settlement; (2) use contextual

4 advertisements on websites likely to be visited and used by Settlement Class Members to notify

5 them about the Settlement; and (3) establish a toll-free number for Settlement Class Members to

6 learn more about the Settlement (the “Notice Plan”). The Parties will cooperate in good faith to

7 coordinate notice to the Settlement Class with other Defendants in the Lawsuit and/or in the

8 Related Lawsuits.

9 5.2 The Parties will ensure that any notice is easily understandable, taking into account 10 any special concerns about the education level or language needs of the class members. The 11 Parties will agree on (i) the final text of the notice before it is published; (ii) all aspects of the 12 contextual advertisement, including, but not limited to its text and graphics, before it is served; 13 and (iii) the domain name of, and all content and language displayed on, the Settlement Website. 14 The notice would consist of the following information on the Settlement Website: (1) the identity 15 of Class Counsel; (2) a description of the Settlement Agreement; (3) links to the case documents, 16 such as the Amended Complaint, class notice, motions for approval of the settlement, and Class 17 Counsel’s request for attorneys’ fees (including all materials relied on in support of that request); 18 (4) instructions on how to access the case docket via PACER or in person at any of the Court’s 19 locations; (5) instructions on how Class Members may object to the Settlement Agreement; (6) 20 instructions on how Class Members may object to Class Counsel’s request for attorneys’ fees; 21 and (7) a calendar of relevant dates, such as deadlines to object to the Settlement or Class 22 Counsel’s fee request. The Settlement Administrator shall effectuate the Notice Plan as approved 23 by the Court. The Settlement Administrator shall pay for the costs of notice with funds from the 24 Payment Fund. 25 5.3 Within fifteen (15) days of the entry of the Preliminary Approval Order, Defendant 26 shall pay to the Payment Fund up to $10,000 of its pro rata share of the reasonable costs of such 27 notice, calculated by dividing the total reasonable cost of notice equally by the number of settling 28 parties in the Lawsuit and Related Lawsuits but in any event in an amount not to exceed $25,000

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1 (the “Pro Rata Share of Notice”). Within twenty-one (21) days of the Effective Date, Defendant

2 shall pay into the Payment Fund the remainder, if any, of its Pro Rata Share of Notice (i.e., the

3 Pro Rata Share of Notice minus the amount up to $10,000 previously paid to the Payment Fund).

4 For the avoidance of doubt, the Pro Rata Share of Notice shall count towards the Payment Cap

5 previously negotiated between Defendant Kiloo and Class Counsel and set forth in paragraph 7.1

6 below.

7 6. CLASS REPRESENTATIVE SERVICE AWARDS.

8 6.1 The Class Representatives shall be entitled to service awards of $2500 each, which

9 shall be paid by defendants in the Lawsuit pro rata, i.e., Kiloo shall pay one-ninth of $7500 10 ($833) toward the Class Representative service awards. For the avoidance of doubt, the Class 11 Representative service awards will be paid by Defendant separately from and not count towards 12 its obligation to fund the Payment Fund. 13 6.2 Class Counsel shall include any request for Class Representative service awards in 14 its motion for final approval and the Final Approval Order. 15 6.3 Within twenty-one (21) calendar days of the Effective Date, Defendant shall pay to 16 the Settlement Administrator its portion of the Class Representatives’ service awards ($833). The 17 Settlement Administrator shall deposit and hold Defendant’s portion of the Class Representatives’ 18 service awards ($833) in one segregated, interest-bearing account at a financial institution with 19 more than $20 billion in an account or accounts insured by an agency or agencies of the United 20 States government, with insurance that exceeds any amounts deposited therein. The Settlement 21 Administrator shall distribute Defendant’s portion of the Class Representatives’ service awards, 22 and any interest accrued thereon within thirty (30) days of the Effective Date, by wiring those 23 funds to Class Counsel at Lieff Cabraser Heimann, & Bernstein, LLP’s State Bar Attorney Client 24 Trust account. Class Counsel shall cause payment of each Class Representative’s service award, 25 and any interest accrued thereon, to each Class Representative within ten (10) business days of 26 the Settlement Administrator’s distribution of the same to Class Counsel. 27 28

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1 7. AWARD OF ATTORNEYS’ FEES AND EXPENSES.

2 7.1 The Parties agree that Class Counsel may move the Court for an award of

3 reasonable attorneys’ fees and expenses, which together with Defendant’s payment for the costs

4 of the Notice Plan, shall not exceed $760,000 from Defendant Kiloo (the “Payment Cap”). The

5 Parties acknowledge that they have negotiated a cap on the amount of attorneys’ fees and

6 expenses that may be requested by Class Counsel from Defendant Kiloo, but that Defendant has

7 expressly reserved all rights to contest the amount of Class Counsel’s request for reasonable

8 attorneys’ fees and expenses, except that the Parties will accept, and not appeal, the Order on

9 Attorneys’ Fees. 10 7.2 Within thirty (30) calendar days of the later of the Court’s entry of the Order on 11 Attorneys’ Fees or the Final Approval Order, Defendant Kiloo shall pay into the Payment Fund 12 the full amount of reasonable attorneys’ fees and expenses awarded to Class Counsel attributed to 13 Defendant Kiloo, but in an amount not to exceed the Payment Cap applicable to Defendant, less 14 amounts paid by Defendant for the costs of the Notice Plan, even if the Final Approval Order or 15 Order on Attorneys’ Fees is not Final. 16 7.3 In the event that the Court awards Class Counsel reasonable attorneys’ fees and 17 expenses in a single lump sum, within thirty (30) calendar days of the later of the Court’s entry of 18 the Order on Attorneys’ Fees or the Final Approval Order, Kiloo shall pay into the Payment Fund 19 an amount according to Defendant Kiloo proportional share (the “Proportional Share”). The 20 Proportional Share shall be calculated by first dividing $760,000 by the total aggregated caps for 21 attorneys’ fees, expenses, and class representative awards negotiated by the nine (9) defendants in 22 the Lawsuit and then that figure shall be multiplied by the single lump sum awarded by the Court. 23 The total Proportional Share shall not exceed the amount of the Defendant’s Payment Cap, less 24 any amounts already paid by Defendant for the costs of the Notice Plan. 25 7.4 Within twenty-one (21) days of the Effective Date, the Settlement Administrator 26 shall pay to Class Counsel the full amount of reasonable attorneys’ fees and expenses awarded to 27 Class Counsel attributed to Defendant Kiloo, but in an amount not to exceed the Payment Cap 28 applicable to the Defendant, less any amounts already paid by Defendant for the costs of the

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1 Notice Plan, and any interest accrued thereon, by wiring the funds to Class Counsel at Lieff

2 Cabraser Heimann, & Bernstein, LLP’s State Bar Attorney Client Trust account.

3 7.5 The Court’s entry of an Order on Attorneys’ Fees, or any motions challenging the

4 entry of that order, or any appeal thereon, and any order modifying, amending or reversing the

5 Order on Attorneys’ Fees, shall not operate in any way to terminate or cancel this Settlement

6 Agreement, nor affect or delay the force and effect of the Final Approval Order.

7 7.6 Defendant Kiloo shall not have any responsibility for, or interest in, or liability

8 whatsoever with respect to the allocation among Class Counsel, and/or any other person who may

9 assert some claim thereto, of any fee or expense award that the Court may make in the Lawsuit. 10 8. RELEASES AND WAIVERS OF RIGHTS. 11 8.1 Release. Plaintiffs and Releasing Parties covenant and agree that they will not 12 take any step whatsoever to assert, sue on, continue, pursue, maintain, prosecute, or enforce any 13 of the Released Claims, directly or indirectly, against the Released Parties. The obligations 14 incurred pursuant to this Settlement Agreement shall be a full and final disposition of the Lawsuit 15 and any and all Released Claims, as against all Released Parties. 16 8.2 Covenant Not to Sue. Plaintiffs, on behalf of themselves and the other Releasing 17 Parties, covenant and agree that they will not sue (at law, in equity, in any regulatory proceeding, 18 or otherwise) Defendant or any other Released Parties with respect to the Released Claims in this 19 Lawsuit. 20 8.3 Waiver of California Civil Code Section 1542. With respect to any and all 21 Released Claims, the Parties stipulate and agree that, upon the Effective Date, Plaintiffs shall 22 expressly and each of the Settlement Class Members shall be deemed to have, and by operation of 23 the Final Approval Order shall have to the fullest extent allowed by law, waived the provisions, 24 rights, and benefits of Section 1542 of the California Civil Code and any statute or principle of 25 common law similar to Section 1542 of the California Civil Code, which provides as follows:

26 A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor 27 at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the 28 debtor or released party.

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1 Plaintiffs and the Settlement Class Members may hereafter discover facts in addition to or

2 different from those which he or she now knows or believes to be true with respect to the subject

3 matter of the Released Claims, but they, upon the Effective Date, shall be deemed to have, and by

4 operation of the Final Approval Order shall have, fully, finally, and forever settled and released to

5 the fullest extent allowed by law any and all Released Claims, known or unknown, suspected or

6 unsuspected, contingent or non-contingent, which then exist, or heretofore have existed.

7 8.4 Releases Relating To Litigation Conduct. The Parties and their respective

8 counsel agree to release each other from any and all claims relating in any way to any Party or

9 counsel’s conduct in this Lawsuit, including but not limited to any claims of abuse of process, 10 malicious prosecution, or any other claims arising out of the institution, prosecution, assertion or 11 resolution of this Lawsuit. 12 8.5 For the avoidance of doubt, nothing in this Settlement Agreement is intended to 13 be, or should be construed as, a release or waiver of any rights of Defendant relative to any 14 parties other than the Releasing Parties. 15 9. NO ADMISSION OF LIABILITY OR WRONGDOING. 16 9.1 The Parties agree and acknowledge that they are entering into this Settlement 17 Agreement solely to avoid the burden, expense, and risk of continued litigation. Defendant 18 expressly disclaims and denies any wrongdoing or liability whatsoever. This Settlement 19 Agreement, and any and all negotiations, statements, documents, discussions, and/or proceedings 20 in connection with this Settlement Agreement, shall not be construed as or deemed to be evidence 21 of an admission or concession by Defendant of any liability or wrongdoing by Defendant or the 22 Released Parties or any of Defendant’s affiliates, including but not limited to parent corporations, 23 predecessors, agents, representatives, vendors, or any other person or entity acting on its behalf 24 with respect to advertising that may have been viewed by children in mobile applications or the 25 collection, transmission, making available, and/or use of end user information relating to devices 26 that may have been used by children from mobile applications, or of the truth or merit of any 27 allegations or claims in the Lawsuit, or that the case was properly brought as a class action, and 28 shall not be construed or deemed to be evidence of an admission or concession that any person

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1 suffered compensable harm or is entitled to any relief with respect to Defendant’s collection and

2 use of end user information relating to devices that may have been used by children from mobile

3 applications; and shall not be offered or accepted as evidence of such in any litigation, arbitration,

4 or other proceeding between or among Plaintiffs or members of the Settlement Class and

5 Defendant Kiloo or any Released Party, and shall have no precedential value; provided, however,

6 that nothing contained herein shall preclude use of the Settlement Agreement in any proceeding

7 to enforce the terms of this Settlement Agreement. This paragraph shall survive any termination

8 or rescission of the Settlement Agreement.

9 9.2 Kiloo asserts that it complied with all law and regulations, including but not 10 limited to COPPA, throughout the time period at issue in the Amended Complaint. Kiloo denies 11 the allegations in the Amended Complaint in full, and takes the position that it cannot be liable 12 for the allegations in the Amended Complaint, and is settling solely to avoid the continued 13 expense of litigation. Plaintiffs disagree with the material assertions made by Kiloo above and 14 stand by their allegations as set forth in the Amended Complaint and will state as much in their 15 settlement approval filings. 16 9.3 Defendant Kiloo may file this Settlement Agreement in any action or proceeding 17 that may be brought against it in order to support a defense or counterclaim based on principles of 18 res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any 19 other theory of claim preclusion or issue preclusion or similar defense or counterclaim. 20 10. FAIR, REASONABLE, AND ADEQUATE SETTLEMENT. The Parties believe this 21 Settlement Agreement is a fair, reasonable, and adequate settlement of the Lawsuit and have 22 arrived at this Settlement Agreement through arms-length negotiations (including a day-long 23 mediation conducted by the Hon. Jay Gandhi (Ret.) and Lexi Myer of JAMS), taking into account 24 all relevant factors, present and potential. 25 11. AUTHORITY. 26 11.1 Real Parties in Interest. In executing this Settlement Agreement, Plaintiffs, on 27 behalf of themselves and the Settlement Class, represent and warrant that, as far as they are 28 aware, Settlement Class Members are the only persons having any interest in any of the claims

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1 that are described or referred to herein, or in any of the pleadings, records, and papers in the

2 Lawsuit, and, except as provided herein, Plaintiffs are unaware of said claims or any part thereof

3 having been assigned, granted or transferred in any way to any other person, firm, or entity.

4 11.2 Voluntary Agreement. This Settlement Agreement is executed voluntarily and

5 without duress or undue influence on the part of or on behalf of the Parties, or of any other

6 person, firm or entity.

7 11.3 Binding On Successors. This Settlement Agreement shall bind and inure to the

8 benefit of the respective successors, assigns, legatees, heirs, and personal representatives of each

9 of the Parties. 10 11.4 Parties Represented by Counsel. The Parties hereby acknowledge that they have 11 been represented in negotiations for and in the preparation of this Settlement Agreement by 12 independent counsel of their own choosing, that they have read this Settlement Agreement and 13 have had it fully explained to them by such counsel, and that they are fully aware of the contents 14 of this Settlement Agreement and of its legal effect. 15 11.5 Authorization. Each Party warrants and represents that there are no liens or 16 claims of lien or assignments in law or equity or otherwise of or against any of the claims or 17 causes of action released herein and, further, that each Party is fully entitled and duly authorized 18 to give this complete and final release and discharge. 19 12. NOTICE PURSUANT TO 28 U.S.C. ¶ 1715. Kiloo shall serve notice of the Settlement 20 Agreement that meets the requirements of 28 U.S.C. § 1715, on the appropriate federal and state 21 officials no later than ten (10) days following the filing of this Settlement Agreement with the 22 Court. The Parties shall request that the Court schedule any fairness hearing for a date that is in 23 compliance with the provisions of 28 U.S.C. § 1715(d). 24 13. CONSTRUCTION AND INTERPRETATION. Neither the Parties nor their respective 25 counsel shall be deemed the drafter of this Settlement Agreement for purposes of interpreting any 26 provision hereof in any judicial or other proceeding that may arise between or among them. 27 14. MODIFICATIONS AND AMENDMENTS. This Settlement Agreement supersedes all 28 prior and contemporaneous negotiations and agreements. No amendment, change or modification

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1 of this Settlement Agreement or any part thereof shall be valid unless in writing and signed by the

2 Parties.

3 15. NO REPRESENTATIONS OF FACT. In entering into and executing this Settlement

4 Agreement, Plaintiffs and Defendant Kiloo warrant that they are acting upon their respective

5 independent judgments and upon the advice of their respective counsel, and not in reliance upon

6 any warranty or representation, express or implied, of any nature or kind by any other person or

7 entity, other than the warranties and representations expressly made in this Settlement

8 Agreement.

9 16. GOVERNING LAW. This Settlement Agreement is entered into in accordance with the 10 laws of the State of California and shall be governed by and interpreted in accordance with the 11 laws of the State of California, without regard to its conflict of law principles. 12 17. FURTHER ASSURANCES. Each of the Parties hereto shall execute and deliver any 13 and all additional papers, documents and other assurances and shall do any and all acts or things 14 reasonably necessary in connection with the performance of its or his or her obligations hereunder 15 to carry out the express intent of the Parties hereto. 16 18. TERMINATION. This Settlement Agreement may be terminated by either Plaintiffs or 17 Defendant by serving on counsel for the opposing party and filing with the Court a written notice 18 of termination within 10 days (or such longer time as may be agreed between Class Counsel and 19 Defendant) after any of the following occurrences listed below in 18.1-18.3. In the event of an 20 occurrence giving rise to a basis for termination of this Settlement Agreement, Class Counsel and 21 Defendant Kiloo agree to negotiate reasonably and in good faith an appropriate amended 22 Settlement Agreement. 23 18.1 The Court rejects, materially modifies, or materially amends or changes the terms 24 of the settlement as embodied in this Settlement Agreement; 25 18.2 The Court declines to enter without material change the material terms in the 26 proposed Preliminary Approval Order or the Final Approval Order; or 27 18.3 An appellate court reverses the Final Approval Order, and the settlement is not 28 reinstated and finally approved without material change by the Court on remand.

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1 For the avoidance of doubt, neither a denial of or modification resulting in a reduction in

2 fees and expenses sought in Class Counsel’s application for an award of attorneys’ fees and

3 expenses, nor reversal of or amendment resulting in a reduction of fees and expenses ordered in

4 the Order on Attorneys’ Fees shall constitute a basis for termination of this Settlement

5 Agreement.

6 19. DISMISSAL WITH PREJUDICE. Plaintiffs shall file a dismissal of the Lawsuit

7 pursuant to Federal Rule of Civil Procedure 54(b) with prejudice in the Northern District of

8 California within five (5) days of the Final Approval Order, with each Party to bear its own fees

9 and costs, except as provided in Section 6 of this Settlement Agreement, which establishes that 10 Class Counsel may make an application for an award of reasonable attorneys’ fees and expenses 11 to be entered as a separate judgment pursuant to Federal Rule of Civil Procedure 54(b). 12 20. NO FURTHER DISCOVERY OR MOTION PRACTICE. The Parties shall neither 13 serve nor seek any further discovery in the Lawsuit unless and until the Court denies approval of 14 the Settlement Agreement. 15 21. NON-ASSISTANCE WITH ANY CLAIM OR LITIGATION AGAINST 16 DEFENDANT KILOO. Other than what may be required of Class Counsel by law or a lawful 17 order of a court of competent jurisdiction, Class Counsel covenant that they are not presently 18 assisting and will not assist any individual or entity in any manner in bringing, maintaining, or 19 advancing any claim or litigation regarding the Released Claims discussed in Paragraph 1.9, 20 outside of their ongoing obligations as Class Counsel in this action. Class Counsel further 21 represent and warrant that they do not have any presently retained clients who intend to bring, or 22 are contemplating bringing, claims, lawsuits, or any proceedings against Defendant Kiloo with 23 respect to the subject matter of the Lawsuit and are not presently investigating any such claims on 24 behalf of potential clients. 25 22. CLASS COUNSEL’S REPRESENTATION 26 Class Counsel represents and warrants as follows: (a) that Class Counsel does not 27 currently represent any person or entity (other than Plaintiffs) for the purpose of making any 28 claims against Kiloo in connection with the subject of this litigation; (b) that Class Counsel is not

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1 now consulting with any person (other than Plaintiffs) about making any claims against Kiloo in

2 connection with the subject of this litigation; (c) that Class Counsel has no present intention to

3 represent or solicit any person (other than Plaintiffs) to assert any claims against Kiloo in

4 connection with the subject of this litigation; and (d) that Class Counsel are not aware of any

5 other claims against Kiloo involving the subject of this litigation in which Class Counsel has or

6 may have a financial stake or interest. Kiloo has materially relied on these representations in

7 entering this Settlement Agreement. Nothing contained in this section is intended to restrict Class

8 Counsel’s practice of law in violation of Rule 5.6(b) of the ABA Model Rules of Professional

9 Conduct in any jurisdiction in which the firm may practice or whose rules may otherwise apply, 10 California Rule of Professional Conduct 5.6, or any other analogous rule. 11 23. CONTINUING JURISDICTION. The Parties to this Settlement Agreement stipulate 12 that the Court shall retain personal and subject matter jurisdiction over the Lawsuit after the entry 13 of the Final Approval Order to oversee the implementation and enforcement of this Settlement 14 Agreement, the order preliminarily approving the Settlement Agreement, the Final Approval 15 Order, and the determination of Class Counsel’s request for reasonable attorneys’ fees, expenses, 16 and any award thereon. 17 24. NOTICES. Unless otherwise specifically provided herein, all notices, demands, or other 18 communications given hereunder shall be in writing and shall be deemed to have been duly given 19 as of the date of electronic mailing. Postal mailing will be provided as well, addressed as follows:

20 To Class Counsel 21 Michael W. Sobol [email protected] 22 LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery Street, 29th Floor 23 San Francisco, CA 94111 24 Hank Bates [email protected] 25 CARNEY BATES & PULLIAM, PLLC 519 W. 7th Street 26 Little Rock, Arkansas 72201 27 To Kiloo’s Counsel 28

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1 Daralyn J. Durie [email protected] 2 DURIE TANGRI LLP 3 217 Leidesdorff Street San Francisco, CA 94111 4 25. PRESS RELEASES. If the Parties initiate any public comments to the media or respond 5 to any media inquiries, they shall either (a) work cooperatively to announce the settlement via a 6 joint press release, (b) work cooperatively to coordinate appropriate public comments about the 7 settlement, and/or (3) refer to publicly-filed documents in the Lawsuit. The Parties shall not 8 otherwise make any other statements to the media or issue any press releases, generally, 9 concerning the settlement. 10 26. COUNTERPARTS. This Settlement Agreement may be executed in counterparts, each 11 of which shall constitute an original, but all of which together shall constitute one and the same 12 instrument. The several signature pages may be collected and annexed to one or more documents 13 to form a complete counterpart. Photocopies of executed copies of this Settlement Agreement 14 may be treated as originals. 15 IN WITNESS WHEREOF, each of the signatories has read and understood this 16 Settlement Agreement, has executed it, and represents that he or she is authorized to execute this 17 Settlement Agreement on behalf of the Party or Parties he or she represents, who or which has 18 agreed to be bound by its terms and has entered into this Settlement Agreement. 19 Agreed to by: 20 Michael McDonald Date Date 21 Plaintiff and Class Representative Jacob Møller Chief Executive Officer, Kiloo 22 23 Tamara Draut Date Date Plaintiff and Class Representative Daralyn J. Durie 24 Counsel for Kiloo 25 26 Dominique Murillo Date Plaintiff and Class Representative 27 28

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1 Daralyn J. Durie [email protected] 2 DURIE TANGRI LLP 3 217 Leidesdorff Street San Francisco, CA 94111 4 25. PRESS RELEASES. If the Parties initiate any public comments to the media or respond 5 to any media inquiries, they shall either (a) work cooperatively to announce the settlement via a 6 joint press release, (b) work cooperatively to coordinate appropriate public comments about the 7 settlement, and/or (3) refer to publicly-filed documents in the Lawsuit. The Parties shall not 8 otherwise make any other statements to the media or issue any press releases, generally, 9 concerning the settlement. 10 26. COUNTERPARTS. This Settlement Agreement may be executed in counterparts, each 11 of which shall constitute an original, but all of which together shall constitute one and the same 12 instrument. The several signature pages may be collected and annexed to one or more documents 13 to form a complete counterpart. Photocopies of executed copies of this Settlement Agreement 14 may be treated as originals. 15 IN WITNESS WHEREOF, each of the signatories has read and understood this 16 Settlement Agreement, has executed it, and represents that he or she is authorized to execute this 17 Settlement Agreement on behalf of the Party or Parties he or she represents, who or which has 18 agreed to be bound by its terms and has entered into this Settlement Agreement. 19 Agreed to by: 20 7/31/2020 Michael McDonald Date Date 21 Plaintiff and Class Representative Jacob Møller Chief Executive Officer, Kiloo 22 7/30/2020 7/31/2020 23 Tamara Draut Date Date Plaintiff and Class Representative Daralyn J. Durie 24 Counsel for Kiloo 25 26 Dominique Murillo Date Plaintiff and Class Representative 27 28

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7/30/2020 1 Michael W. Sobol Date Counsel for Plaintiffs and the 2 Settlement Class 3

4 Hank Bates Date Counsel for Plaintiffs and the 5 Settlement Class 6

7

8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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EXHIBIT A Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 27 of 36

1

2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10

11 MICHAEL MCDONALD, et al., Case No.: 3:17-cv-04344-JD (L) 12 Plaintiffs, [PROPOSED] ORDER GRANTING 13 PLAINTIFFS’ MOTION FOR v. PRELIMINARY APPROVAL OF CLASS 14 ACTION SETTLEMENTS AND KILOO A/S, et al., DIRECTING NOTICE TO THE 15 SETTLEMENT CLASSES Defendants. 16

17 Case No.: 3:17-cv-04419-JD AMANDA RUSHING, et al., 18 Plaintiffs, 19 v. 20 THE WALT DISNEY COMPANY, et al., 21 Defendants. 22 Case No.: 3:17-cv-04492-JD 23 AMANDA RUSHING,

24 Plaintiff,

25 v.

26 VIACOMCBS INC., et al.,

27 Defendants.

28 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 28 of 36

1 On ______, 2020, a hearing was held on the motion of Plaintiffs Michael McDonald,

2 Tamara Draut, Dominique Murillo, Amanda Rushing, Ashley Supernault, Julie Remold, and Ted

3 Poon (“Plaintiffs”) for a consolidated order in the three above-captioned putative class actions

4 (the “Kiloo Action,” the “Disney Action,” and the “Viacom Action,” collectively, the “Actions”):

5 (1) finding the Court will likely approve the parties’ proposed Fed. R. Civ. P. 23(b)(2) class

6 action settlements (the “Settlements”); (2) finding the Court will likely certify the Settlement 7 Classes1 for purposes of judgment; (3) appointing Plaintiffs as Class Representatives for the 8 Settlement Classes; (4) appointing Lieff, Cabraser, Heimann & Bernstein, LLP and Carney Bates

9 & Pulliam PLLC, as Class Counsel for the settlement classes; (5) directing notice to the 10 Settlement Classes and approving the form and manner of the Notice plan; and (6) scheduling 11 deadlines for (i) Class Counsel to file their Motion for Final Approval (the “Final Approval 12 Motion”) and separate motion for an award of reasonable attorneys’ fees and expenses (the 13 “Attorneys’ Fees Motion”); (ii) Settlement Class Members to file objections to the Settlements or 14 Attorneys’ Fees Motion, and for Class Counsel to respond to any such objections; and (iii) a

15 hearing on the final approval of the Settlements and Attorneys’ Fees Motion. 16 Having considered Plaintiffs’ Motion for Preliminary Approval and all exhibits and other 17 evidence submitted in supporting thereof, the Court hereby ORDERS that Plaintiffs’ Motion is 18 GRANTED as follows: 19 I. Nature of Actions 20 Plaintiffs allege that Defendants’ collection and use of user data from mobile apps 21 allegedly aimed at minors intruded upon the privacy rights of parents and their minor children,

22 including teens, in violation of firmly-established social privacy norms, as manifested in 23 traditional state law remedies and federal statutes. Specifically, Plaintiffs allege that the 24 Developer Defendants, including Kiloo, Sybo, Disney, and ViacomCBS, created their respective 25 Gaming Apps2 for kids and/or contracted with certain SDK Defendants3 to embed their code

26 1 Unless otherwise noted, the “Settlement Classes” refer to all of the putative classes identified in 27 the sixteen Settlements across the three Actions. “Settlement Class Members” similarly refers to all members of the Settlement Classes. 28 2 The “Gaming Apps” refer to the subject apps in each case: the Kiloo Action involves the (continued…) [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 1 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 29 of 36

1 (called software development kits or “SDKs”) into those apps to surreptitiously collect personal

2 data for commercial gain. Kiloo Am. Compl. ¶ 20, Dkt. 268-1; Disney Am. Compl. ¶ 19, Dkt. 3 117-1; Viacom Am. Compl. ¶ 12, Dkt. 90-1. 4 Defendants deny Plaintiffs’ factual allegations, and deny any wrongdoing or legal 5 violations across all three Actions. Defendants maintain that they have complied with the 6 Children’s Online Privacy Protection Act (“COPPA”) requirements for the treatment of children’s 7 data and have not used any such data for commercial gain in violation of any state law, as 8 Plaintiffs allege. Further, Defendants maintain that they have not and do not use any personal

9 data to serve advertisements to mobile app users in violation of COPPA or any state law. 10 II. Class Certification for Purposes of Settlement 11 The Court hereby finds it will likely certify the Settlement Classes for purposes of 12 judgment on the Settlements, the definitions of which were included in Exhibit 17 the Joint 13 Declaration in support of Plaintiffs’ Motion for Preliminary Approval (the “Joint Declaration”), 14 which is reattached to this Order. The Court is likely to find, for purposes of settlement only, that

15 each of the Settlement Classes independently satisfies all of the requirements for certification 16 under Federal Rules of Civil Procedure 23(a) and (b)(2): 17 (a) For settlement purposes only, members of each Settlement Class are so numerous 18 that joinder of all members in a single proceeding would be impracticable, if not 19 impossible, because of their numbers and dispersion; 20 (b) For settlement purposes only, there are questions of law and fact common to the 21 members of each individual Settlement Class;

22 (c) For settlement purposes only, the Plaintiff(s) that seek to represent each Settlement 23 Class(es) have claims that are typical of the claims of Settlement Class(es) that 24 “Subway Surfers” app, the Disney Action involves the “Princess Palace Pets” app and three 25 versions of the “Where’s My Water?” apps, and the Viacom Action involves the “Llama Spit Spit” App. 26 3 In the Kiloo Action, the SDK Defendants are InMobi, Tapjoy, Vungle, ironSource, AdColony, Chartboost, and Flurry. In the Disney Action, the SDK Defendants are Unity, Upsight, Comscore 27 and Full Circle Studies (“Comscore”), and Twitter and MoPub (“Twitter”). In the Viacom Action, the SDK Defendant is Upsight. On August 5, 2020, Plaintiffs dismissed with prejudice the claims 28 previously asserted against Unity in the Viacom action. [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 2 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 they seek to represent;

2 (d) For settlement purposes only, Plaintiff(s) that seek to represent each Settlement 3 Class have fairly and adequately represented the interests of the respective 4 Settlement Class(es) and will continue to do so; 5 (e) For settlement purposes only, Plaintiffs and the Settlement Class Members are 6 represented by qualified, reputable counsel who are experienced in preparing and 7 prosecuting class actions; and 8 (f) For settlement purposes only, each Defendant has acted or refused to act on

9 grounds that apply to the respective Settlement Class defined in that Defendant’s 10 Settlement, so that final injunctive relief is appropriate to the Settlement Class 11 defined in each Defendant’s Settlement. 12 Accordingly, the Court certifies as a separate class each Settlement Class reflected in 13 Exhibit 17 to the Joint Declaration and appoints named Plaintiffs and their Counsel as 14 representatives of the Settlement Classes as delineated in Exhibit 17 to the Joint Declaration.

15 III. Preliminary Approval of the Settlements 16 A trial court may approve a proposed settlement if it is determined to be “fair, reasonable, 17 and adequate.” Fed. R. Civ. P. 23(e)(2). Preliminary approval should only be granted where the 18 parties have “show[n] that the court will likely be able to . . . approve the proposal under Rule 19 23(e)(2).” Fed. R. Civ. P. 23(e)(1)(B); see also O’Connor v. Uber Technologies, Inc., No. 13-cv- 20 03826-EMC, 2019 WL 1437101, at *4 (N.D. Cal. 2019). “The Court cannot, however, fully 21 assess such factors until after the final approval hearing; thus, a full fairness analysis is

22 unnecessary at th[e] [preliminary approval] stage.” Uschold v. NSMG Shared Services, LLC, 333 23 F.R.D. 157, 169 (N.D. Cal. 2019) (quoting Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 24 2008) (internal quotation marks omitted)). And while the trial court must make a preliminary 25 finding of fairness, there is a “‘strong judicial policy that favors settlements, particularly where 26 complex class action litigation is concerned.’” See Ayala v. Coach, Inc., No. 14-CV-02031-JD, 27 2016 WL 9047148, at *2 (N.D. Cal. Oct. 17, 2016) (quoting Class Ptfs. v. City of Seattle, 955 28 F.2d 1268, 1276 (9th Cir. 1992)). [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 3 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 The Court hereby finds that it is likely to approve the proposed Settlements under the

2 relevant factors for final approval. The Court has reviewed the terms of the Settlements,4 3 including the injunctive relief provided to the Settlement Classes and the release of claims, and 4 Plaintiffs’ motion papers. Based on review of those papers and its familiarity with the Actions, 5 the Court finds and concludes that the Settlements are the result of good-faith, prolonged, serious, 6 informed, and non-collusive arms’-length negotiations after Class Counsel had adequately 7 investigated Plaintiffs’ claims, including through extensive discovery, and become familiar with 8 their strengths and weaknesses. The assistance of Judge Jay Gandhi (Ret.), Lexi W. Myer, and

9 Cathy Yanni, three highly-qualified mediators, in the settlement process supports the finding that 10 the Settlements are non-collusive. The Settlements will also avoid substantial additional costs to 11 all parties, as well as avoid the delay and risks presented by further prosecution of issues during 12 pre-trial, trial, and possible appeal. Additionally, Class Counsel’s review of the extensive 13 discovery provided in this action and evaluation of the strength of the Settlement Classes’ claims 14 against each defendant supports the scope of relief set forth in the Settlement Agreements. Based

15 on all of these factors, including strengths of the proposed injunctive relief, the Court concludes 16 that the Settlements meet the criteria for preliminary settlement approval. The Settlements have 17 no obvious defects and are likely to be approved as fair, reasonable, and adequate, such that 18 notice to the Settlement Classes is appropriate. 19 IV. Notice 20 The Court approves, as to form and content, the proposed Notice (the “Notice”), attached 21 as Exhibit B to the Angeion Declaration in support of the Motion for Preliminary Approval. The

22 Notice appropriately informs Settlement Class Members about, among other things: (1) the 23 pendency of the Lawsuit and of the Settlements, including the terms thereof; (2) the Class 24 Representatives’ applications for service awards; (3) the procedures for filing an objection to the 25 Settlements; (4) contact information for Class Counsel, and a toll-free number to ask questions 26 4 Each Settlement is attached as an Exhibit to the Joint Declaration as follows: Ex. 3 (AdColony); 27 Ex. 4 (Chartboost); Ex. 5 (Flurry); Ex. 6 (InMobi); Ex. 7 (ironSource); Ex. 8 (Tapjoy); Ex. 9 (Vungle); Ex. 1 (Kiloo); Ex. 2 (Sybo); Ex. 13 (Unity); Ex. 12 (Twitter); Ex. 11 (Comscore); Ex. 28 10 (Disney); Ex. 15 (ViacomCBS); Exs. 14 & 16 (Upsight in the Disney & Viacom Actions). [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 4 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 about the Settlements; (5) the address of the case-specific website (the “Class Settlement

2 Website”) maintained by the Settlement Administrator that links to important case documents, 3 including motion for preliminary approval papers, and instructions on how to access the case 4 docket via PACER or in person; (6) important dates in the settlement approval process, including 5 the date of the Final Approval Hearing (as described below); and (7) Plaintiffs’ forthcoming 6 Attorneys’ Fees Motion. 7 The proposed Notice plan is a reasonable method calculated to reach members of the 8 Settlement Classes who would be bound by the Settlements. The Notice will be posted on a

9 website about the Settlements and links to the website will be published online using contextual 10 advertisements on websites likely to be visited and used by Settlement Class Members. While 11 Rule 23 “expressly requires notice only in actions certified under Rule 23(b)(3),” 2003 Advisory 12 Comm. Notes on Fed. R. Civ. P. 23, the parties have agreed to provide Notice out of an 13 abundance of caution to alert the Classes to the Settlements and the agreed-upon injunctive relief. 14 Accordingly, the Court finds and concludes that the proposed Notice plan will provide notice in a

15 reasonable manner and satisfies the notice requirements of Federal Rule of Civil Procedure 23(e) 16 and this District’s Procedural Guidance for Class Action Settlements. 17 Promptly following the entry of this Order, Class Counsel will prepare final versions of 18 the Notice, incorporating into them the relevant dates and deadlines set forth herein. Then, 19 pursuant to the deadlines set forth at the end of this Order: (1) the Notice (as revised) shall be 20 posted on the Class Settlement Website established by the Settlement Administrator (“Angeion 21 Group”), along with all relevant Court orders in the Actions; and (2) the Notice shall be

22 disseminated pursuant to the Notice plan as described herein and in Plaintiffs’ preliminary 23 approval papers. The Parties shall pay the cost of the Notice Plan consistent with the provisions 24 in each Defendant’s settlement agreement. 25 The foregoing is the best notice practicable under the circumstances and shall constitute 26 due and sufficient notice to the Settlement Classes. As part of the Final Approval Motion, 27 Plaintiffs shall submit declarations to the Court confirming compliance with the notice provisions 28 set forth above. [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 5 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 V. CAFA Notice

2 The Court finds that Defendants have complied with the Class Action Fairness Act 3 (“CAFA”). Under CAFA, within “10 days after a proposed settlement of a class action is filed in 4 court, each defendant that is participating in the proposed settlement” must serve notice of the 5 proposed settlement upon “the appropriate State official of each State in which a class member 6 resides and the appropriate Federal official.” 28 U.S.C. § 1715. The Motion for Preliminary 7 Approval of Class Action Settlements was filed on August 5, 2020. Defendants have filed 8 Notices of Compliance with CAFA attesting that, no later than ______, 2020, notice of the

9 Settlements containing all documents required by 28 U.S.C. § 1715(b)(1)-(8) was served upon the 10 Attorney General of the United States of America and the appropriate state officials in California 11 and all the other states in which a Class Member is known to reside. See Dkts. ___. 12 VI. Final Approval Hearing 13 The Court hereby schedules a hearing (the “Final Approval Hearing”) to determine 14 whether to grant final approval of the Settlements pursuant to Federal Rule of Civil Procedure

15 54(b), as well as to rule on Class Counsel’s motion for an award of reasonable attorneys’ fees, 16 costs and expenses (“Attorneys’ Fees Motion”). The Final Approval Hearing shall take place at 17 the date and time set forth at the end of this Order. The date of the Final Approval Hearing may 18 be changed without further notice to the Settlement Classes. However, Plaintiffs are responsible 19 for promptly updating the Class Settlement Website with information about any such change. 20 Pending the Final Approval Hearing, all proceedings in the Actions, other than 21 proceedings necessary to carry out and enforce the terms and conditions of the Settlements and

22 this Order, are stayed, consistent with this Court’s previous orders. (Kiloo, Dkt. 358; Disney, 23 Dkt. 148; ViacomCBS, Dkt. 120.) Additionally, the Court enjoins all Settlement Class Members 24 from asserting or maintaining any claims to be released by the Settlements until the date of the 25 Final Approval Hearing. 26 VII. Objection 27 Any Settlement Class Member may comment on or object to any aspect of the proposed 28 Settlement(s) applicable to a Settlement Class to which the Settlement Class Member belongs or [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 6 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 the associated Attorneys’ Fees Motion, either on his or her own or through an attorney hired at his

2 or her expense, by following the procedures set forth herein. These procedures and requirements 3 are intended to ensure the efficient administration of justice and the orderly presentation of any 4 Class Member’s objection to any of the Settlements to which he or she is a part, in accordance 5 with the due process rights of all Settlement Class Members. 6 Any Settlement Class Member who wishes to comment on or object to any of the 7 Settlements or Attorneys’ Fees Motion applicable to a Settlement Class to which the Settlement 8 Class Member belongs must do so in writing. To be considered, any comment on or objection to

9 any of the Settlements or Fee Motion must be mailed, postmarked no later than the Objection 10 Deadline set forth below, to the Court at the following address: Class Action Clerk, United 11 States District Court for the Northern District of California, 450 Golden Gate Avenue, San 12 Francisco, CA 94102. It must also include the following information: 13 (a) the case names and numbers (McDonald v. Kiloo A/S, Case No. 3:17-cv-04344-JD, 14 Rushing v. The Walt Disney Company, Case No.: 3:17-cv-04419-JD); Rushing v.

15 Viacom, Inc., Case No.: 3:17-cv-04492-JD); 16 (b) the name, mailing address, e-mail address, and signature of the Settlement Class 17 Member and, if represented by counsel, of his or her counsel; 18 (c) the specific aspect of the Settlement(s) or Fee Motion to which the Settlement 19 Class Member objects or wishes to comment upon, along with any legal support 20 the Settlement Class Member wishes to bring to the Court’s attention and any 21 evidence the Settlement Class Member wishes to introduce; and

22 (d) a statement of membership in the Settlement Class(es) that clearly identifies that 23 his or her child(ren) played one of the Gaming Apps and identifies which Gaming 24 App(s) his or her child(ren) played and to which Settlement Class(es) the 25 Settlement Class Member purports to belong. 26 Settlement Class Members who have timely commented on or objected to any of the 27 Settlements in writing may also appear at the Final Approval Hearing in person or by counsel and 28 be heard, to the extent allowed by the Court, either in support of or in opposition to the matters to [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 7 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 be considered at the hearing. Any Settlement Class Member who wishes to appear at the Final

2 Approval Hearing must submit a Notice of Intention to Appear along with their written comment 3 or objection. If a Settlement Class Member intends to appear at the Final Approval Hearing 4 through counsel, the Notice of Intention to Appear must also identify all attorneys who will 5 appear at the Final Approval Hearing. 6 Any Settlement Class Member who does not timely submit such a written comment or 7 objection will not be permitted to raise such comment or objection or appear at the Final 8 Approval Hearing, except for good cause shown, and any Settlement Class Member who fails to

9 object in the manner prescribed by this Order will be deemed to have waived, and will be 10 foreclosed from raising, any such comment or objection, except for good cause shown. The 11 Court will only require substantial compliance with the requirements for submitting an objection. 12 VIII. Scheduling Order 13 The following table summarizes all relevant dates and deadlines set forth in this Order, to 14 which the parties will adhere unless otherwise ordered by the Court:

15 Date Event 16 No later than ten (10) business days following Notice shall be posted on the Class Settlement the entry of this Order Website, along with all relevant Court orders 17 in the Actions. 18 No later than 65 calendar days before the Deadline for Plaintiffs to file Final Approval Final Approval Hearing Motion and Attorneys’ Fees Motion 19 No later than 30 calendar days before the Objection Deadline 20 Final Approval Hearing Deadline to respond to Objections 21 No later than 15 calendar days before the Final Approval Hearing 22 ______, 2020, at __:__ a.m. Final Approval Hearing (at least 100 days after the date the Preliminary Approval 23 Motion is filed, see 28 U.S.C. § 1715(d)) 24 Upon application of the parties and good cause shown, the deadlines set forth in this 25 Preliminary Approval Order may be extended by order of the Court without further notice to the 26 Settlement Classes. Settlement Class Members must check the Class Settlement Website 27 regularly for updates and further details regarding extensions of these deadlines. 28 [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 8 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD

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1 IX. Other Provisions

2 In the event the Court does not grant final approval of one of the Settlements, or for any 3 reason the parties fail to obtain a Final Judgment as contemplated by the Settlements, or any of 4 the Settlements are terminated pursuant to their terms for any reason, then any such Settlement 5 and all orders and findings entered in connection with that or those Settlement(s) shall become 6 null and void and be of no further force and effect whatsoever, shall not be used or referred to for 7 any purpose whatsoever, and shall not be admissible or discoverable in this or any other 8 proceeding.

9 This Order shall not be construed or used as an admission, concession, or declaration by 10 or against any of the Defendants of any fault, wrongdoing, breach, or liability, and shall not be 11 deemed to be a stipulation as to the propriety of class certification, or any admission of fact or law 12 regarding any request for class certification, in any other action or proceeding, whether or not 13 involving the same or similar claims. Nor shall this Order be construed or used as an admission, 14 concession, or declaration by or against Plaintiffs or the other Settlement Class Members that

15 their claims lack merit or that the relief requested is inappropriate, improper, or unavailable, or as 16 a waiver by any party of any defenses or claims he, she, or it may have in the Actions or in any 17 other proceeding. 18 Class Counsel and Defense Counsel are hereby authorized to use all reasonable 19 procedures in connection with the approval and administration of the Settlements that are not 20 materially inconsistent with this Preliminary Approval Order or the Settlements applicable to 21 their respective clients, including making, without further approval of the Court, minor

22 corrections or non-substantive changes to the form or content of the Notice that they jointly agree 23 is reasonable or necessary. 24 IT IS SO ORDERED. 25 26 Dated: ______HON. JAMES DONATO 27 United States District Judge 28 [PROPOSED] ORDER GRANTING PLAINTIFFS’ - 9 - MOTION FOR PRELIMINARY APPROVAL 1986842.14 CASE NOS.: 3:17-CV-04344-JD (L); 3:17-CV-4419-JD and 3:17-CV-4492-JD