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(“Kiloo”) Settlement Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 1 of 36 EXHIBIT 1 Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 2 of 36 1 2 3 4 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 CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE – KILOO A/S 2010561.2 CASE NO. 3:17-CV-04344-JD Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 3 of 36 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 CLASS ACTION SETTLEMENT - 1 - AGREEMENT AND RELEASE – KILOO A/S CASE NO. 3:17-CV-04344-JD Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 4 of 36 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 CLASS ACTION SETTLEMENT - 2 - AGREEMENT AND RELEASE – KILOO A/S CASE NO. 3:17-CV-04344-JD Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 5 of 36 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 CLASS ACTION SETTLEMENT - 3 - AGREEMENT AND RELEASE – KILOO A/S CASE NO. 3:17-CV-04344-JD Case 3:17-cv-04344-JD Document 364-1 Filed 08/05/20 Page 6 of 36 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.
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