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ECF Nebuad SA Case3:08-cv-05113-TEH Document233-1 Filed08/16/11 Page1 of 23 1 SCOTT A. KAMBER (pro hac vice) ROBERT A. WEIKERT (State Bar No. 121146) [email protected] [email protected] 2 DAVID A. STAMPLEY(pro hac vice) TALLEY MCINTYRE HENRY (State Bar No. 3 [email protected] 203131) KAMBERLAW, LLC [email protected] 4 11 Broadway, 22nd Floor NIXON PEABODY LLP New York, New York 10004 One Embarcadero Center, 18th Floor 5 Telephone: (212) 920-3072 San Francisco, California 94111-3600 Facsimile: (212) 202-6364 Telephone: (415) 984-8200 6 Fax: (415) 984-8300 7 JOSEPH H. MALLEY (pro hac vice) LAW OFFICE OF JOSEPH H. MALLEY, P.C. JASON C. KRAVITZ (pro hac vice) 8 1045 North Zang Boulevard [email protected] Dallas, Texas 75208 NIXON PEABODY LLP 9 Telephone: (214) 943-6100 100 Summer Street Facsimile: (214) 943-6170 Boston, MA 02110-2131 10 Telephone: (617) 345-1000 11 BRIAN J. PANISH (SBN 116060) Fax: (617) 345-1300 [email protected] 12 RAHUL RAVIPUDI (SBN 204519) [email protected] 13 PANISH, SHEA & BOYLE, LLP 11111 Santa Monica Boulevard, Suite 700 14 Los Angeles, California 90025 15 Telephone: (310) 477-1700 Facsimile: (310) 477-1699 16 Additional Attorneys for Plaintiffs 17 Attorneys for Plaintiffs Attorneys for Defendant, 18 NEBUAD, INC. 19 UNITED STATES DISTRICT COURT 20 NORTHERN DISTRICT OF CALIFORNIA 21 22 DAN VALENTINE, et al., No. 3:08-cv-05113 (TEH) (EMC) 23 Plaintiffs, STIPULATION OF SETTLEMENT AND RELEASE 24 vs. Hon. Thelton E. Henderson. 25 NEBUAD, INC., et al., 26 Complaint Filed: November 10, 2008 Defendants. Trial Date: None Set 27 28 -1- STIPULATION OF SETTLEMENT AND RELEASE NO. 3:08-CV-5113 (TEH) (EMC) Case3:08-cv-05113-TEH Document233-1 Filed08/16/11 Page2 of 23 1 STIPULATION OF SETTLEMENT AND RELEASE 2 This Stipulation of Settlement and Release (the “Agreement”) is entered into by and 3 between Defendant NebuAd, Inc., a Delaware corporation, and Plaintiffs Dan Valentine, Neil 4 Deering, Saul Dermer, Kathleen Kirch, Terry Kirch, Dale Mortenson, and Andrew Paul Manard, 5 on behalf of themselves and the class they purport to represent (hereinafter collectively 6 “Plaintiffs”). 7 A. This Agreement is submitted pursuant to Rule 23 of the Federal Rules of Civil Procedure. Subject to the approval of the Settlement Court (as 8 defined herein), this Agreement is entered into between and among: (1) the Settlement Class Representative (as defined herein) on behalf of 9 himself and the Settlement Class; and (2) Defendant (as defined herein), 10 by and through their respective counsel. 11 WHEREAS, on or about November 10, 2008, Dan Valentine and other individuals filed a 12 class action complaint in this action asserting various claims on behalf of a nationwide class (the 13 “Action”); 14 WHEREAS, Plaintiffs alleged that Defendant was liable for damages based on violations 15 of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, California’s 16 Invasion of Privacy Act, California’s Computer Crime Law, and Unjust Enrichment, and for 17 attorneys’ fees, costs of suit, and pre- and post-judgment interest; 18 WHEREAS, Defendant asserts a number of legal and factual defenses to the claims made 19 in the Action and denies any wrongdoing or liability whatsoever; 20 WHEREAS, after the conduct alleged in the Action occurred and after the Action was 21 commenced, on May 13, 2009, NebuAd (assignment for the benefit of creditors), LLC was 22 appointed as the Assignee by NebuAd, Inc., pursuant to California law for the purpose of 23 liquidating NebuAd, Inc.’s assets, winding down NebuAd, Inc., and distributing the net 24 liquidation proceeds to creditors of NebuAd, Inc. NebuAd (assignment for the benefit of 25 creditors), LLC is not a party to the Action, and it is not alleged that NebuAd (assignment for the 26 benefit of creditors), LLC is involved or in any way responsible for any of the claims or damages 27 alleged in the Action. 28 WHEREAS, on or about October 6, 2009, the Court dismissed Bresnan Communications, -2- STIPULATION OF SETTLEMENT AND RELEASE NO. 3:08-CV-5113 (TEH) (EMC) Case3:08-cv-05113-TEH Document233-1 Filed08/16/11 Page3 of 23 1 Cable One, CenturyTel, Embarq, Knology, and Wow! as defendants in the Action based on lack 2 of personal jurisdiction; 3 WHEREAS, since the dismissal of Bresnan Communications, Cable One, CenturyTel, 4 Embarq, Knology, and Wow!, each of those cases have been refiled in each defendant’s home 5 federal forum; 6 WHEREAS, Class Counsel (as defined herein) have concluded, after discovery and 7 investigation of the facts and after carefully considering the circumstances of the Action, 8 including the claims asserted in the complaint and the possible legal and factual defenses thereto 9 and the defunct status of company and the opportunity for recovery, that it would be in the best 10 interests of the Plaintiffs (as defined herein) to enter into this Agreement, which interests include 11 the substantial value to be derived by this settlement and the interest in avoiding the uncertainties 12 of litigation and assuring that the benefits reflected herein are obtained for the Plaintiffs; and, 13 further, that Class Counsel consider the settlement set forth herein to be fair, reasonable and 14 adequate and in the best interests of the Plaintiffs; 15 WHEREAS, the Parties were able to reach this Agreement only after arms-length 16 negotiations with each other conducted telephonically over several months; meeting in person in 17 Boston, Massachusetts; negotiations and discussions with former NebuAd, Inc. officers and 18 directors; mediation in person in San Francisco before U.S. Magistrate Judge Joseph Spero, as 19 well as telephonically; Plaintiffs’ evaluation of discovery from NebuAd, Inc., its former officers 20 and directors, and its assignee; evaluation of the allegations and defenses of Internet service 21 providers in this and other litigation; and Plaintiffs’ consultation with technical experts;and 22 WHEREAS, Defendant no longer actively operates a business; and 23 WHEREAS, given Defendant’s current status, Defendant represents that it no longer 24 engages in any conduct in connection with its previous business including the conduct alleged in 25 the complaint herein, if any there was, such that there is no continued possibility that Defendant 26 may engage in conduct which Plaintiffs allege (and Defendant denies) constitutes a violation of 27 law; and 28 WHEREAS, Defendant, through its counsel, after arms-length negotiations, has -3- STIPULATION OF SETTLEMENT AND RELEASE NO. 3:08-CV-5113 (TEH) (EMC) Case3:08-cv-05113-TEH Document233-1 Filed08/16/11 Page4 of 23 1 conditionally agreed to cause its insurers to pay certain sums in settlement for the benefit of the 2 Settlement Class, as provided in this Agreement; 3 WHEREAS, Defendant, despite its belief that it has valid and complete defenses to the 4 claims asserted against it in the Action, has nevertheless agreed to enter into this Agreement to 5 reduce and avoid further expense, inconvenience, and the distraction of burdensome and 6 protracted litigation, and thereby to resolve this controversy; 7 WHEREAS, Defendant represents that it no longer exists as a legal entity, NebuAd 8 (assignment for the benefit of creditors), LLC, has been requested to and has agreed to execute 9 this Agreement as a facilitator of the settlement process only, but is not a party to or in any way 10 responsible as an obligor hereunder or in any way responsible for any of the obligations incurred 11 by or on behalf of Defendant through this Agreement; 12 NOW, THEREFORE, it is agreed by and between the undersigned on behalf of NebuAd, 13 Inc. and the Settlement Class Representative that any and all claims made or that could have 14 been made against NebuAd by the Settlement Class Representative or the Settlement Class in the 15 Action be settled, compromised and dismissed on the merits and with prejudice and, except as 16 hereafter provided, without costs as to the Settlement Class Representative or NebuAd, subject to 17 the approval of the Settlement Court, on the following terms and conditions. 18 I. DEFINITIONS 19 1. Settlement Class. Subject to the Settlement Court’s approval, and the conditions 20 of Section III.1., the undersigned agree and consent to the certification pursuant to Fed. R. Civ. 21 P. 23(b)(1) of the following settlement class (the “Settlement Class”): 22 The class shall consist of all persons in the United States who, from January 1, 2007 to July 1, 2008, were consumers subscribing to the services of 23 certain Internet Service Providers identified in Exhibit A hereto (there shall be confirmatory discovery to determine and/or confirm the identities of these 24 Internet Service Providers, and Exhibit A shall be kept under seal until after Preliminary Approval). Excluded from the Settlement Class are the 25 following: Defendant, and any of aforementioned respective parent, 26 subsidiary, affiliate or control person of Defendant, as well as the officers, directors, agents, servants, or employees of Defendant, any judge presiding 27 over this case over any of the cases which comprise the Action, and the immediate family members of any such person(s). 28 -4- STIPULATION OF SETTLEMENT AND RELEASE NO. 3:08-CV-5113 (TEH) (EMC) Case3:08-cv-05113-TEH Document233-1 Filed08/16/11 Page5 of 23 1 2. General Definitions. As used in this Agreement, the following terms shall have 2 the indicated meanings: 3 A. “Complaint” means the complaint in this Action filed on November 10, 4 2008. 5 B. “Action” means the action associated with the Complaint. 6 C. “Court” or “Settlement Court” means the Honorable Thelton E.
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