In Re Sony PS3 "Other OS" Litigation, No. 4:2010cv01811 - Document 360 (N.D. Cal. 2018)

Court Description: ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT; SETTING COMPLIANCE HEARING RE: FINAL REPORT AND ACCOUNTING. Compliance hearing re filing of final report and accounting is set for Friday, 8/3/2018 02:01 PM in Oakland, Courtroom 1, 4th Floor before Judge Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 6/8/18. (fs, COURT STAFF) (Filed on 6/8/2018)
Download PDF
In Re Sony PS3 "Other OS" Litigation Doc. 360 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 In re SONY PS3 “OTHER OS” LITIGATION 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 10-CV-01811-YGR ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT; SETTING COMPLIANCE HEARING RE: FINAL REPORT AND ACCOUNTING This matter came before the Court for hearing pursuant to the following: (1) the Court’s Order Granting Renewed Motion for Preliminary Approval (Dkt. No. 344); (2) Plaintiffs’ Renewed Motion for Attorneys’ Fees and Costs and for Service Awards for the Plaintiffs (Dkt. No. 346); (3) Plaintiffs’ Renewed Motion for Final Approval of Class Action Settlement (Dkt. No. 350); and (4) the Stipulation of Class Action Settlement and Release executed on September 1, 2017 (the “Settlement”), entered into by the Parties to settle and finally resolve the above-captioned class action lawsuit (the “Action” or the “Class Action Lawsuit”). Due and adequate notice having been given to the Class of the proposed Settlement and the pending motions, as required by the Court’s orders, and upon consideration of all papers filed and proceedings had herein, the Court ORDERS as follows: 1. Capitalized, bolded terms not otherwise defined herein shall have the same meaning as set forth in the Settlement, attached hereto as Exhibit A. 2. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and has personal jurisdiction over the Parties. Venue is proper in this District. 3. The “Class,” for purposes of this Order, shall mean: [A]ny and all persons in the United States who purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured 1 Dockets.Justia.com 1 2 3 as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby 4 certifies for settlement purposes only the Class, which it previously provisionally certified. 5 Excluded from the Class are: (a) any persons who are employees, directors, officers, and agents 6 of SCEA or its subsidiaries and affiliated companies; (b) any persons who timely and properly 7 exclude themselves from the Settlement; and (c) the Court, the Court’s immediate family, and 8 Court staff. 9 10 11 5. The Court finds that the notice provisions set forth under the Class Action Fairness Act, 28 U.S.C. § 1715, were complied with in this Action. 6. The Court finds that the program for disseminating notice to the Class provided 12 for in the Settlement, and previously approved and directed by the Court (the “Notice 13 Program”), has been implemented by the Settlement Administrator and the Parties, and that 14 such Notice Program, including the approved forms of notice, constitutes the best notice 15 practicable under the circumstances and fully satisfied due process, the requirements of Rule 23 16 of the Federal Rules of Civil Procedure and all other applicable laws. 17 7. The Court reaffirms that this Action is properly maintained as a class action, for 18 settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(3), and 23(e), 19 and that Class Counsel and the Plaintiffs, as Class Representatives, fairly and adequately 20 represent the interests of the Class. In support of its conclusion that this Action is properly 21 maintained as a class action, for settlement purposes, the Court finds as follows: 22 (a) the Settlement Class Members are so numerous that joinder of all members is 23 impracticable; 24 (b) there are questions of law and fact common to the Settlement Class Members, and 25 these questions predominate over any questions affecting individual Settlement Class 26 Members; 27 (c) the named Class Representatives’ claims are typical of the claims of the Settlement 28 Class Members; 2 1 (d) the named Class Representatives and Class Counsel have adequately represented 2 and will continue to adequately represent and protect the interests of the Settlement 3 Class; 4 (e) class-wide treatment of the disputes raised in this Action is superior to other available 5 methods for adjudicating the controversy before this Court; and 6 (f) manageability issues do not prevent certification for settlement purposes because there 7 will be no trial. 8 8. 9 The Court further finds that a full and fair opportunity has been afforded to the Class Members to opt out, to object and to participate in the hearing convened to determine 10 whether the Settlement should be given final approval. Accordingly, the Court hereby 11 determines that all members of the Settlement Class are bound by this Final Approval Order. 12 9. The Court finds that the Settlement, including the exhibits thereto, is fair, 13 reasonable and adequate to the Settlement Class, is in the best interests of the Settlement Class, 14 has been entered into in good faith and should be and hereby is fully and finally approved 15 pursuant to Federal Rule of Civil Procedure 23. The Settlement represents a fair resolution of 16 all claims asserted on behalf of Plaintiffs, as Class Representatives, and the Settlement Class 17 in this Action, and fully and finally resolves all such claims. SCEA and each member of the 18 Settlement Class shall be bound by the Settlement, including the Release set forth in Section 19 XIII of the Settlement, and by this Order and the Final Judgment entered in connection with 20 this Order. 21 10. After considering (1) the strength of the Plaintiffs’ case; (2) the risk, expense, 22 complexity, and likely duration of further litigation; (3) the risk of maintaining class action status 23 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed 24 and the stage of the proceedings; (6) the experience and views of counsel; and (7) the reaction of 25 the Class Members to the proposed Settlement, the Court hereby finds that the Settlement is 26 in all respects fair, reasonable, and adequate and in the best interests of the Settlement Class. In 27 addition, the Court finds that there was no collusion in connection with the Settlement, that the 28 Settlement was the product of informed and arm’s-length negotiations among competent 3 1 counsel, and that the record is sufficiently developed to have enabled the Class Representatives 2 and SCEA to adequately evaluate and consider their respective positions. Accordingly, the 3 Court hereby finally and unconditionally approves the Settlement. 4 11. Class Counsel are awarded attorneys’ fees and litigation costs in the total amount 5 of $1,250,000.00 to be paid out of the Settlement Fund, as set forth in the Court’s Order 6 Granting In Part plaintiffs’ Renewed Motion for Attorneys’ Fees, Costs, and Incentive Awards, 7 entered this date. The Court finds these amounts to be fair and reasonable and fairly 8 compensates Class Counsel for their contributions to the prosecution of this Action and the 9 Settlement. From this amount, as set forth in the Court’s separate Order of this date, Class 10 Counsel are ordered to pay to Objector Susan Lindberg attorneys’ fees, costs, and incentive 11 award in the total amount of $22,836.00. 12 12. The Court hereby awards service awards in the amount of $3,500.00 each, to 13 each of the Plaintiffs as Class Representatives, to compensate them for their commitments and 14 efforts on behalf of the Class in this Action. These service awards will be paid out of the 15 Settlement Fund. 16 13. 17 18 The Parties are to bear their own costs, except as awarded by this Court in this Final Approval Order. 14. In its Order Granting Plaintiff’s Renewed Motion for Preliminary Approval (Dkt. 19 No. 344), the Court directed the parties to appoint a Settlement Administrator. The 20 Settlement Administrator shall continue to perform those duties and responsibilities that 21 remain under the Settlement and this Final Approval Order. 22 15. The Parties and Settlement Administrator are hereby directed to implement this 23 Final Approval Order and the Settlement in accordance with the terms and provisions thereof, 24 including the processing and payment of Claims. 25 16. As of the Effective Date, the Class Representatives and the Settlement Class, 26 on behalf of themselves and their heirs, assigns, executors, administrators, predecessors, and 27 successors, shall be deemed to have, and by operation of this Order and the Final Judgment 28 entered in connection with this Order shall have, fully released and forever discharged the 4 1 Released Parties from all Released Claims, as more fully set forth in Section XIII of the 2 Settlement, including that the Class Representatives and the Settlement Class shall fully 3 release and forever discharge the Released Parties and further expressly agree that they shall 4 not now or thereafter institute, maintain, or assert against the Released Parties, either directly or 5 indirectly, on their own behalf, or on behalf of any class or other person or entity, any action, 6 regulatory action, arbitration, or court or other proceeding of any kind asserting causes of action, 7 claims, damages, equitable, legal and administrative relief, interest, demands, rights or remedies, 8 including, without limitation, claims for injunctive relief, declaratory relief, damages, mental 9 anguish, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, 10 litigation costs, restitution, disgorgement, or equitable relief against the Released Parties, 11 whether based on federal, state, or local law, statute, ordinance, regulation, the Constitution, 12 contract, common law, or any other source that arise out of or in any way relate to the subject 13 matter of the Action and the Released Claims and that were or could have been alleged in the 14 Action. Released Claims include, but are not limited to, claims arising under the common laws 15 of all fifty (50) states concerning: (a) whether SCEA falsely advertised or marketed the Fat 16 PS3’s Other OS functionality; (b) the disabling of the Other OS functionality in the Fat PS3; 17 (c) the issuance of Firmware Update 3.21; and/or (d) whether the System Software License 18 Agreement and/or PlayStation Network Terms of Service and User Agreement enable SCEA to 19 alter, remove or modify features and/or functions of the Fat PS3. 20 17. As of the Final Settlement Date, Plaintiffs and, by operation of law, each 21 member of the Settlement Class shall further be deemed to have expressly waived and released 22 any and all provisions, rights and benefits conferred by Section 1542 of the California Civil 23 Code or similar laws of any other state or jurisdiction. 24 25 26 18. The Court orders that, upon the Effective Date, the Settlement shall be the exclusive remedy for any and all Released Claims of the Releasing Parties. 19. The Court hereby dismisses this Action with prejudice, and without fees or costs 27 except as provided in the Settlement Agreement and this Order. Plaintiffs and all members of 28 the Settlement Class are hereby permanently barred and enjoined from commencing, pursuing, 5 1 maintaining, enforcing or prosecuting, either directly or indirectly, any Released Claims in any 2 judicial, administrative, arbitral or other forum, against any of the Released Parties, provided 3 that this injunction shall not apply to the claims of any Class Members who have timely and 4 validly requested to be excluded from the Class. This permanent bar and injunction is necessary 5 to protect and effectuate the Settlement, this Order and this Court’s authority to effectuate the 6 Settlement, and is ordered in aid of this Court’s jurisdiction and to protect its judgments. 7 20. The Released Parties may file this Final Approval Order in any other action 8 that may be brought against them in order to support a defense or counterclaim based on 9 principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or 10 reduction, or any other theory of claim preclusion or issue preclusion or similar defense or 11 counterclaim. 12 13 14 21. Nothing in this Order or in the Final Judgment entered in connection with this Order shall preclude any action to enforce the terms of the Settlement. 22. Without affecting the finality of this Order in any way, the Court hereby retains 15 continuing jurisdiction over: (a) all matters relating to the modification, interpretation, 16 administration, implementation, effectuation and enforcement of the Settlement; (b) further 17 proceedings, if necessary, on Plaintiffs’ Renewed Motion for Attorneys’ Fees and Costs and 18 for Service Awards for the Plaintiffs; and (c) the Parties, Class Counsel and members of the 19 Settlement Class for the purpose of administering, supervising, construing and enforcing this 20 Order and the Settlement in accordance with its terms. 21 23. Neither this Order, the Final Judgment entered in connection with this Order, 22 nor the Settlement (nor any other document referred to herein, nor any action taken to carry out 23 this Order or the accompanying Final Judgment) shall be construed as or used as an admission 24 or concession by or against SCEA or Released Parties of the validity of any claim or defense or 25 any actual or potential fault, wrongdoing, or liability whatsoever. The Settlement and this 26 resulting Final Approval Order simply represent a compromise of disputed allegations. 27 28 24. Without further order of the Court, the Parties may agree to reasonably necessary extensions of time to carry out any of the provisions of the Settlement and to make 6 1 other non-material modifications, in implementing the Settlement, that are not inconsistent with 2 this Order. 3 25. The Clerk shall enter Final Judgment, consistent with this Order, forthwith. 4 26. Class Counsel shall serve a copy of this Final Approval Order on all named 5 parties or their counsel and the Settlement Administrator immediately upon receipt and the 6 Settlement Administrator shall post a copy of this Final Approval Order on the Settlement 7 Website immediately upon receipt. 8 27. The parties shall submit a final report and accounting within 45 days of the entry 9 of this Final Approval Order. The Court hereby SETS a Compliance hearing regarding the filing 10 of the final report and accounting on the Court’s 2:01 p.m. calendar on Friday, August 3, 2018. 11 If the parties timely file their report, the Court will vacate the compliance hearing and no 12 appearance will be required. 13 14 15 IT IS SO ORDERED. June 8, 2018 Dated: ____________________ __________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 7 EXHIBIT A STIPULATION OF CLASS ACTION SETTLEMENT AND RELEASE IT IS HEREBY STIPULATED AND AGREED, by and between Anthony Ventura, Jason Baker, James Girardi, Derrick Alba and Jonathan Huber (collectively, “Class Representatives”), individually and on behalf of the class they seek to represent (defined below as “Class Members”), on the one hand, and Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC (referred to herein as “SCEA”), on the other hand, through their duly-authorized counsel, that the proceedings in the United States District Court for the Northern District of California captioned In re Sony PS3 “Other OS” Litigation, Case No. C-10-1811 (YGR), including but not limited to the complaints referenced in Section III, paragraphs 49-51, 54, and 58, below (collectively the “Action”) is settled, fully and finally, on the terms and conditions set forth in this Agreement and the exhibits hereto, subject to the occurrences set forth herein that permit SCEA or the Class Representatives to terminate this Agreement, and further subject to and expressly conditioned upon the approval of the Court and the entry of Final Judgment. I. INTRODUCTION A. SCEA expressly denies any wrongdoing and does not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims that have been alleged against it in the Action. Nevertheless, SCEA considers it desirable to resolve the Action on the terms stated herein in order to avoid further expense, inconvenience, and interference with its business operations and to dispose of burdensome litigation. Therefore, SCEA has determined that the settlement of the Action on the terms set forth herein is in its best interests. B. This Agreement reflects a compromise between the Parties and shall in no event be construed as or deemed an admission or concession by any Party of the truth of any of the pleadings in the Action or of any fault on the part of SCEA and all such allegations or the validity of any purported claim or defense asserted are expressly denied. Nothing in this 1 Agreement shall constitute an admission of liability or may be used as evidence of liability by or against any Party hereto. C. Class Counsel and Class Representatives believed that their claims were valid and were likely to prevail. Nevertheless, based upon their review, investigation, and evaluation of the facts and law relating to the matters alleged in the Action, Class Representatives and Class Counsel, on behalf of the putative Class, have agreed to settle the Action pursuant to the provisions of this Agreement, after considering, among other things: (1) the substantial benefits to the Class under the terms of this Agreement; (2) the risks, costs, and uncertainty of protracted litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; and (3) the desirability of consummating this Agreement promptly in order to provide expeditious and effective relief to the Class. D. This Settlement was reached after arm’s-length settlement negotiations among and between Class Counsel, Class Representatives, SCEA, and SCEA’s Counsel, including three mediation sessions before three different retired judges. Most recently, the Parties mediated before retired Justice James Lambden on April 6, 2017 but did not reach an agreement. After extensive continued negotiations aided by Justice Lambden, the Parties reached an agreement on most material terms on May 26, 2017 and a final agreement on August 24, 2017. II. DEFINITIONS AND CONVENTIONS A. DEFINITIONS As used in this Agreement, capitalized bolded terms have the following meaning, unless specifically provided otherwise: 1. “Action” means the putative class action complaint, including all individually filed, consolidated, coordinated and amended complaints filed in: In re Sony PS3 “Other OS” Litigation, Case No. C-10-1811 (YGR), currently pending in the Northern District of California, Oakland Division, before the Honorable Yvonne Gonzalez Rogers. 2. “Administration Cost” or “Administrative Costs” means the reasonable, actual and direct costs charged by the Settlement Administrator for its services and includes the costs 2 of Class Notice, implementing the Claim Process and carrying out any other responsibility consistent with the terms of this Agreement. Administration Costs do not include other fees, costs or expenses, including Attorneys’ Fees and Costs, Court costs or Service Awards. 3. “Administrator” or “Settlement Administrator” means the third-party administrator retained by the Parties to administer the Settlement, including providing Class Notice to the Class Members, processing and evaluating Claims and other documents, and performing other tasks that are provided for in this Agreement. 4. “Agreement” means the terms and conditions of this document entitled “Stipulation of Class Action Settlement and Release.” 5. “Attorneys’ Fees and Costs” means such funds as may be awarded by the Court to Class Counsel to compensate all Counsel in the Action for their fees and expenses incurred in connection with the Action and the Settlement. 6. “Claim” means the claim of a Class Member or his or her legal representative submitted in compliance with the procedure provided in this Agreement as described in Section V. 7. “Claimant” means a Class Member or his or her legal representative who submits a Claim. 8. “Claim Deadline” means ninety (90) days following the Notice Date, unless a different date is ordered by the Court. 9. “Claim Form” means the document by which Class Members may submit a Claim, substantially in the form attached hereto as Exhibit 1. 10. “Claim Process” means the process for submitting and reviewing Claims as described in Section V of this Agreement. 11. “Class Counsel” refers collectively to the law firms listed below who were appointed as Interim Co-Lead Counsel on June 30, 2010 and seek to be appointed as Class Counsel: 3 James J. Pizzirusso Hausfeld LLP 1700 K St., NW, Ste 650 Washington, DC 20006 Tel: 202-540-7200 Fax: 202-540-7201 Email: jpizzirusso@hausfeld.com Gordon M. Fauth Of Counsel Finkelstein Thompson LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Direct Tel: 510-238-9610 Tel: 415-398-8700 Fax: 415-398-8704 Email: gmf@classlitigation.com Kathleen V. Fisher Calvo Fisher & Jacob LLP 555 Montgomery Street Suite 1155 San Francisco, CA 94111 Tel: 415-374-8370 Fax: 415-374-8373 Email: kfisher@calvofisher.com 12. “Class” or “Class Member” or “Class Members” means any and all persons in the United States who purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. Excluded from the Class are: (a) any persons who are employees, directors, officers, and agents of SCEA or its subsidiaries and affiliated companies; (b) any persons who timely and properly exclude themselves from this Settlement; and (c) the Court, the Court’s immediate family, and Court staff. 13. “Class Notice” means all types of notice that will be provided to the Class Members pursuant to Federal Rule of Civil Procedure 23(e), the Preliminary Approval Order and this Agreement, including email notice, publication notice, website notice, and any 4 additional notice that may be ordered by the Court. 14. “Class Period” means the time period between November 1, 2006 and April 1, 15. “Class Representatives” or “Plaintiffs” means plaintiffs Anthony Ventura, Jason 2010. Baker, James Girardi, Derrick Alba and Jonathan Huber, collectively. 16. “Court” means the United States District Court for the Northern District of California. 17. “Defendant” means Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC. 18. “Effective Date” means the earliest of the following: (1) the date of entry of the Final Judgment if (a) no objection is filed to the Settlement or if all objections are withdrawn prior to the Court ruling on them and (b) no appeal is taken from the Final Approval Order and/or Final Judgment; or (2) thirty-one (31) calendar days after the entry of the Final Judgment if objections are filed and overruled and no appeal is taken from the Final Approval Order and/or Final Judgment; (3) if one or more timely appeals is taken from the Final Approval and/or Final Judgment, thirty-one (31) calendar days after the date as of which all such appeals have been voluntarily dismissed or have been finally resolved after being heard and any subsequent appeals or petitions for certiorari have been resolved. “Execution Date” means the date upon which the last signature is placed on this Agreement. 19. “Fat PS3” means the Sony PlayStation®3 computer entertainment console that was manufactured between approximately November 1, 2006 and September 2009 that included the Other OS functionality. A list of Fat PS3 model numbers is attached hereto as Exhibit 7. 20. “Fee And Expense Award” means an award of attorneys’ fees and the reimbursement of litigation costs and expenses authorized by the Court to be paid to Class Counsel from the Settlement Funds for the services they provided in representing the Class. “Service Award” means an award in an amount not to exceed three thousand five hundred dollars ($3,500) authorized by the Court to be paid to each Class Representative for the services 5 they provided in representing the Class. 21. “Final Approval Hearing” or “Fairness Hearing” means a hearing held before the Court during or following which the Court will: (1) make a final decision regarding whether to finally approve this Agreement as fair, reasonable and adequate; (2) determine the amount of any Fee And Expense Award and any Service Award; and (3) rule on the merit of any objections to this Agreement. 22. “Final Approval” or “Final Approval Order” means an order issued by the Court finally approving this Agreement as binding upon the Parties and substantially in the form attached hereto as Exhibit 2. 23. “Final Judgment” means the Court’s order finally disposing of the Action, substantially in the form attached hereto as Exhibit 3. 24. “Firmware Update 3.21” means the software update that SCEA issued in April 2010 which, among other things, disabled the Other OS functionality from the Sony PlayStation®3 upon installation. 25. “Funding Date” is the date by which SCEA will deposit with the Settlement Administrator the sum of Three Million Seven Hundred and Fifty Thousand dollars ($3,750,000) as Settlement Funds. The Funding Date is thirty-five days (35) after the Effective Date. 26. “Long Form Class Notice” or “Long Form Notice” means a notice substantially in the form of Exhibit 4 attached hereto and approved by the Court, which the Settlement Administrator shall make available on the Settlement Website pursuant to the terms of this Agreement. The Long Form Class Notice will at a minimum contain the following: (i) a concise statement of the background of the Action, the certification of the Class for settlement purposes, and the Settlement; (ii) a description of the nature and scope of the claims, causes of action, and facts compromised in the Settlement that will be subject to the release; 6 (iii) a description of the relief provided by the Settlement; (iv) instructions to the Class Members on how to submit a claim or an exclusion request and of their right to object to the Settlement; (v) an explanation of the impact of the Settlement on participation in any existing and future litigation, arbitration, regulatory action, remediation, or other proceeding(s); (vi) a statement that any relief to the Settlement Class is contingent on the Court’s Final Approval; (vii) a statement that Class Counsel’s Fee and Expense Award and Service Awards will be paid from the Settlement Funds and that individual Class Members will not be responsible themselves for paying any attorneys’ fees, costs, litigation expenses, administration expenses or service awards (unless they elect to retain their own attorney at their own expense); (viii) the date, time, and place of the Final Approval Hearing, notice of Class Members’ right to object to the Settlement, their right to appear in support of any timely and validly submitted objection, and their right to appear at the Final Approval Hearing as provided by this Settlement or ordered by the Court in the Preliminary Approval Order, on their own or through counsel of their own selection (at their own expense), and the procedures for doing so as further described below; (ix) advise that any Final Judgment entered in the Action will be binding on all Class Members who do not timely exclude themselves from the Settlement; and (x) inform the Class Members that they will be releasing all current and future claims against the Released Parties concerning or relating in any way to the Released Claims. 7 27. “Notice Date” is the date by which the initial Class Notice shall be completed by the Administrator and shall be forty-five (45) days after Preliminary Approval unless a different date is order by the Court. 28. “Objection Deadline” means ninety (90) days following the Notice Date unless a different date is ordered by the Court. 29. “Opt-out Deadline” or “Exclusion Deadline” means ninety (90) days following the Notice Date unless a different date is ordered by the Court. 30. “Other OS” means the alternative Operating System functionality that enabled a user to install Linux on a Fat PS3. 31. “Party” or “Parties” means individually or collectively the Class Representatives and SCEA as defined herein. 32. “Payment Date” is the date by which the Settlement Administrator will: (i) mail checks to Valid Claimants; and (ii) pay funds due to Class Counsel and Class Representatives. The Payment Date is thirty days (30) after the Funding Date unless the pro rata amount per Valid Claimant exceeds $65.00 and the Parties have filed disputed motions with the Court as to the distribution of the excess funds. If such motions are filed, the Payment Date shall be the later of thirty days (30) after the Court’s resolution of such motions or thirty days (30) after the Funding Date. 33. “Preliminary Approval” or “Preliminary Approval Order” means an order entered by the Court preliminarily approving the terms and conditions of this Agreement and the Settlement, substantially in the form of Exhibit 5 attached hereto. 34. “Publication Notice” means display of the content of the Short Form Notice in online and print media pursuant to a notice plan to be agreed upon by the Parties. 35. “Released Claims” means all claims, demands, rights, and liabilities, whether known or unknown, and regardless of legal theory, that arise from the purchase of a Fat PS3 and that relate to, are based on, concern or arise out of the allegations, facts or circumstances that were asserted or could have been asserted (whether individually or on a class-wide basis) in the 8 Action. Released Claims include, but are not limited to, claims arising under the common laws and statutes of all fifty (50) states concerning: (a) whether SCEA falsely advertised or marketed the Fat PS3’s Other OS functionality; (b) the disabling of the Other OS functionality in the Fat PS3; (c) the issuance of Firmware Update 3.21; and/or (d) whether the System Software License Agreement and/or PlayStation Network Terms of Service and User Agreement enable SCEA to alter, remove or modify features and functions of the Fat PS3. 36. “Released Parties” means SCEA and each of its current and former parents, subsidiaries, divisions, and affiliated individuals and entities, successors, predecessors, assigns, joint ventures, distributors, retailers, developers and/or licensees and each and all of their respective officers, partners, directors, servants, agents, shareholders, members, managers, principals, investment advisors, consultants, employees, representatives, attorneys, accountants, lenders, underwriters and insurers. 37. “SCEA” means Defendant Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC. 38. “SCEA’s Counsel” means the following attorneys: Luanne Sacks Michele Floyd Michael Scott Sacks, Ricketts & Case, LLP 177 Post Street, Suite 650 San Francisco, CA 94108 39. “Settlement” means the terms and conditions set forth in this Agreement. 40. “Settlement Benefit” means payments made to Valid Claimants pursuant to the terms of this Agreement. 41. “Settlement Class” means all Class Members except: (i) persons who properly exclude themselves from the Settlement; (ii) any persons who are employees, directors, officers or agents of SCEA or its subsidiaries and affiliated companies; or (iii) any judge, justice, judicial officer, or judicial staff of the Court and the Court’s immediate family members. 42. “Settlement Fund(s)” means the sum of Three Million Seven Hundred and Fifty 9 Thousand dollars ($3,750,000) to be paid by SCEA to the Settlement Administrator pursuant to Section V, paragraph 71, below. 43. “Settlement Website” means the website established by the Settlement Administrator consistent with the entry of the Preliminary Approval Order to provide information regarding the Settlement, including information regarding submitting a Claim for Settlement Benefits, and requesting exclusion from or objecting to the Settlement. 44. “Short Form Class Notice” or “Short Form Notice” means the summary form of notice of the Settlement that will be transmitted by email to Class Members and appear as the Publication Notice. The Short Form Notice shall be substantially in the form attached hereto as Exhibit 6. 45. “Valid Claimant(s)” means all Class Members who have not excluded themselves from the Settlement and who the Settlement Administrator determines have submitted a timely and valid Claim. B. CONVENTIONS 46. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders and the singular shall include the plural and vice versa except where expressly provided to the contrary. 47. All references herein to sections, paragraphs, and exhibits refer to sections, paragraphs, and exhibits of and to this Agreement, unless otherwise expressly stated in the reference. 48. The headings and captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision thereof. III. THE LAWSUIT 49. On April 27, 2010, Anthony Ventura filed a class action complaint in the Northern District of California, Case No. 10-cv-1811(RS), asserting causes of action for: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Unjust 10 Enrichment; (4) violation of the California Unfair Competition Law (Cal. Bus. & Prof. Code §§17200 et seq.); and (5) violation of the California Consumers Legal Remedies Act (Cal. Civ. Code §§ 1770 et seq.). 50. follows: Six more complaints alleging the same basic facts were subsequently filed as Baker, et al. v. Sony Computer Entertainment America LLC, Northern District of California, Case No. 10-cv-1697 (April 30, 2010) for: (1) Breach of Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) violation of the California Unfair Competition Law (Cal. Bus. & Prof. Code §§17200 et seq.); and (4) violation of the California Consumer’s Legal Remedies Act (Cal. Civ. Code §§ 1770 et seq.). Densmore, et al. v. Sony Computer Entertainment America LLC, Northern District of California, Case No. 10-cv-1945 (April 30, 2010) for: (1) Breach of Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Trespass to Chattels; (4) Unjust Enrichment; (5) violation of the California Consumer’s Legal Remedies Act (Cal. Civ. Code §§ 1770 et seq.); (6) violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030); (7) violation of the California False Advertising Act (Cal. Bus. & Prof. Code §§ 17500 et seq.); and (8) violation of the California Unfair Competition Law (Cal. Bus. & Prof. Code §§17200 et seq.). Wright, et al. v. Sony Computer Entertainment America LLC, Northern District of California, Case No. 10-cv-1975 (May 10, 2010) for: (1) violation of the California Unfair Competition Law (Cal. Bus. & Prof. Code §§17200 et seq.); (2) Breach of Contract; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; (4) Unjust Enrichment; (5) violation of the California Consumer’s Legal Remedies Act (Cal. Civ. Code §§ 1770 et seq.); and (6) Equitable Relief. Huber v. Sony Computer Entertainment America LLC, Northern District of California, Case No. 10-cv-2213 (May 21, 2010) for: (1) Breach of Express Warranty; 11 (2) Breach of Implied Warranty of Merchantability; (3) violation of the California Consumer’s Legal Remedies Act (Cal. Civ. Code §§ 1770(a)(5), (7) and (9)); (4) Conversion; (5) Violation of the Magnuson Moss Warranty Act (15 U.S.C. §§2301 et seq.); (6) violation of the California False Advertising Law (Bus. & Prof. Code §§ 17500 et seq.); and (7) violation of the California Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.). Harper, et al. v. Sony Computer Entertainment America, Inc., Case No. 10-cv-02197 (N.D. Cal. May 21, 2010) for: (1) violation of the California Consumer Legal Remedies Act, Cal. Civ. Code. §1770, et seq.; (2) violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; (3) violation of the California False Advertising Law, Cal. Bus. & Prof. Code § 17500; (4) Breach of Contract/Breach of Duty of Good Faith and Fair Dealing; and (5) Unjust Enrichment. Benavides v. Sony Computer Entertainment America, Inc. et al., Case No. 10-cv-02612 (N.D. Cal. June 14, 2010) for: (1) Breach of Contract; (2) violation of the California False Advertising Law, Cal. Bus. & Prof Code § 17500, et seq.; (3) violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; (4) Breach of Covenant of Good Faith and Fair Dealing; (5) Unjust Enrichment; (6) violation of California Consumer Legal Remedies Act, Cal. Civ. Code § 1770, et seq. 51. On June 16, 2010, Judge Richard Seeborg issued an order finding that the seven cases were related and the Plaintiffs filed an “Amended Consolidated Class Action Complaint” on July 30, 2010, captioned: In re Sony PS3 “Other OS” Litigation, United States District Court, Northern District of California, Case No. C-10-1811 (RS), alleging: (1) Breach of Express Warranty; (2) Breach of the Implied Warranty of Merchantability; (3) Breach of the Implied Warranty of Fitness for a Particular Purpose; (4) violation of the Consumers Legal Remedies Act (Cal. Civ. Code §§ 1770(a)(5), (7), (9), (19)); (5) violation of the Computer Fraud and Abuse Act (18 U.S.C. §§ 1030, et seq.); (6) violation of the Magnuson-Moss Warranty Act (15 U.S.C. § 2301); (7) Violation of Cal. Bus. & Prof. Code §§ 17500, et seq. (False Advertising); (8) 12 violation of Cal. Bus. & Prof. Code §§ 17200, et seq. (Unfair Competition); (9) Conversion; and (10) Unjust Enrichment. 52. In December 2010, a number of discovery disputes arose which culminated in the filing of a motion to compel by the Plaintiffs (Docket No. 112), a motion for a protective order filed by Plaintiffs (Docket No. 111), and a motion to compel filed by SCEA (Docket No. 116). After full briefing, Magistrate Judge Chen granted in part, and denied in part, all of the discovery motions. 53. On February 17, 2011, Judge Seeborg entered an order granting in part SCEA’s motion to dismiss with leave to amend, and denied SCEA’s motion to strike the class allegations in their entirety. 54. On March 9, 2011, the Plaintiffs filed a First Amended Class Action Complaint alleging: (1) Breach of Express Warranty; (2) Breach of Implied Warranty of Merchantability; (3) Breach of the Implied Warranty of Fitness for a Particular Purpose; (4) violation of the Consumers Legal Remedies Act (Cal. Civ. Code §§ 1770(a)(5), (7), (9), (19)); (5) violation of the Computer Fraud and Abuse Act (18 U.S.C. §§ 1030, et seq.); (6) violation of the MagnusonMoss Warranty Act (15 U.S.C. §§ 2301, et seq.); (7) violation of Cal. Bus. & Prof. Code §§17500, et seq. (False Advertising); (8) violation of Cal. Bus. & Prof. Code §§ 17200, et seq. (Unfair Competition); and (9) Unjust Enrichment. 55. On July 7, 2011, the Parties participated in a private mediation session that was unsuccessful before the Honorable James L. Warren (Ret.) of JAMS. 56. On December 8, 2012, Judge Seeborg granted SCEA’s motion to dismiss and dismissed the First Amended Class Action Complaint with prejudice. 57. The Plaintiffs appealed to the Ninth Circuit (Case No. 11-18066) and the Ninth Circuit issued an order affirming in part and vacating in part Judge Seeborg’s order of dismissal. 58. Consistent with the Ninth Circuit’s Order, the Plaintiffs filed a Second Amended Complaint, No. 4:10-cv-01811 (SC), on May 29, 2014 for: (1) violation of the California Consumers Legal Remedies Act (Cal. Civ. Code § 1770(a) (5), (7)); (2) violation of the 13 California False Advertising Law (Bus. & Prof. Code § 17500 et seq.); and (3) violation of the California Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.). On remand, the case was reassigned to Judge Samuel J. Conti after Judge Seeborg recused himself. 59. The Parties thereafter engaged in extensive discovery over the course of approximately ten (10) months. Both Parties propounded extensive written discovery. In response to the Plaintiffs’ Requests for Production of Documents, SCEA produced approximately 4,000 documents, comprised of approximately 26,000 pages and responded to Interrogatories propounded by the Plaintiffs. SCEA deposed all five (5) named Plaintiffs, and the Plaintiffs deposed seven (7) SCEA witnesses, three of which were designated to testify on behalf of SCEA pursuant to Federal Rule of Civil Procedure 30(b)(6). The Plaintiffs also responded to Interrogatories propounded by SCEA and produced documents in response to its Requests for Production of Documents. The Plaintiffs also produced their PS3s for SCEA’s inspection. 60. On or about August 20, 2015, the Parties mediated the case before retired Judge Howard Weiner for a full day but were unable to reach an agreement. 61. On November 3, 2015, the case was reassigned to Judge Yvonne Gonzalez Rogers upon Judge Conti’s retirement. 62. The Parties continued to negotiate and after approximately six (6) months of extensive arm’s-length negotiations, the Parties signed the MOU on January 28, 2016. 63. On February 12, 2016, the Parties notified the Court that they had signed the MOU and were proceeding to negotiate the details of the Settlement and draft a formal settlement agreement. 64. On September 8, 2016, the Court preliminarily approved the Parties’ settlement and ordered notice to the class. [Dkt. 270]. 65. On January 31, 2017, the Court denied a motion by Plaintiffs for final approval of the Parties’ settlement without prejudice. [Dkt. 300]. 66. In light of the Court’s January 31, 2017 Order, the Parties mediated again, this 14 time before retired Justice James Lambden. The Parties attended a full day mediation session on April 6, 2017 but were unable to reach an agreement that day. 67. The Parties continued to negotiate with further assistance from Justice Lambden. The Parties reached the present Agreement on August 24, 2017. IV. CONDITIONAL CLASS CERTIFICATION FOR SETTLEMENT PURPOSES ONLY 68. The Parties reached this Agreement before the Plaintiffs filed a motion for class certification. Accordingly, as part of this Settlement, the Plaintiffs shall include a request for conditional certification as part of their Motion for Preliminary Approval that seeks certification of the Class for settlement purposes. 69. As a material part of this Settlement, SCEA, while reserving all defenses if this Settlement Agreement is not finally approved, hereby stipulates and consents, solely for purposes of and in consideration of the Settlement, to conditional certification of the abovereferenced Class for settlement purposes only. SCEA’s stipulation and consent to class certification is expressly conditioned upon the entry of a Preliminary Approval Order, a Final Approval Order and Final Judgment. As part of its conditional stipulation, SCEA further consents to the appointment of Class Counsel and Class Representatives to represent the Class. 70. The conditional certification of the Class, the appointment of the Class Representatives, and of Class Counsel shall be binding only with respect to this Settlement and this Settlement Agreement. If the Court fails to enter a Preliminary Approval Order or a Final Approval Order, or if this Settlement Agreement and the Settlement proposed herein is terminated, canceled, or fails to become effective for any reason whatsoever, the class certification, to which the Parties have stipulated solely for the purposes of this Settlement, this Settlement Agreement and all of the provisions of any Preliminary Approval Order or any Final Approval Order shall be vacated by their own terms and the Action shall revert to its status as it existed prior to the date of this Settlement Agreement with respect to class certification, and appointment of class representatives and class counsel. In that event, SCEA 15 shall retain all rights it had immediately preceding the execution of this Settlement Agreement to object to the maintenance of the Action as a class action, the appointment of class representatives, and the appointment of class counsel and, in that event, nothing in this Settlement Agreement or other papers or proceedings related to this Settlement shall be used as evidence or argument by any of the Parties concerning whether the Action may properly be maintained as a class action under applicable law, whether any of the Plaintiffs are adequate or typical class representatives, or whether Class Counsel is adequate class counsel. V. CLASS RELIEF AND DISTRIBUTION OF SETTLEMENT BENEFITS 71. Settlement Fund. In full, complete, and final settlement and satisfaction of the Action and all Released Claims, and subject to all of the terms, conditions, and provisions of this Agreement, including conditional certification as provided for in Section IV and Preliminary Approval and Final Approval, SCEA will pay to the Settlement Administrator, no later than the Funding Date, the sum of Three Million, Seven Hundred and Fifty Thousand dollars ($3,750,000) to create the Settlement Fund, which will be used to pay, in the following order: (1) Class Notice and Administration Costs; (2) Attorneys’ Fees and Costs to Class Counsel; (3) Service Awards to the Plaintiffs; and (4) Valid Claims submitted by Settlement Class Members, as described below. The Settlement Fund will be maintained by the Settlement Administrator as a Court-approved Qualified Settlement Fund pursuant to Section 1.468B-1 et seq. of the Treasury Regulations promulgated under Section 468B of the Internal Revenue Code of 1986, as amended. Any and all interest earned by the Qualified Settlement Fund prior to the Payment Date shall be distributed to Valid Claimants pursuant to the terms of this Agreement, and shall not be used for any other purpose. 72. In order to receive a benefit, each Settlement Class Member must submit a timely and complete Claim Form, either by mail or electronically, to make a claim for compensation from the Settlement Fund. The Claim Form shall be substantially in the form attached hereto as Exhibit 1. Settlement benefits will be distributed to Valid Claimants on a pro rata basis up to and including the sum of $65.00 per Valid Claimant. Any Settlement Class 16 Member who previously a submitted a Claim Form will be automatically included and will not be required to submit an additional Claim Form. 73. To the extent there is any money remaining in the Settlement Fund after calculation and subtraction of the distribution amount due to the Valid Claimants pursuant to paragraph 72, above, the parties shall meet and confer regarding the manner in which remaining funds will be distributed and either party may move the Court for an order directing the distribution. The other Party may oppose such motion if they do not agree to the proposed distribution. In a contested motion, both Parties agree: (1) to file their moving papers no later than the date upon which the moving papers in support of Final Approval are filed and oppositions will be filed no later than the date upon which any opposition to the motion for Final Approval would be due; and (2) to limit their submission and any opposition to five (5) pages each; and (3) not to appeal the Court’s decision. If the Parties are in agreement, they will submit a proposed Joint Order to the Court. 74. The Settlement Administrator shall submit to SCEA and to Class Counsel a weekly report of the Claims that are submitted so that SCEA can, in its sole discretion, verify the validity of the serial number, and/or associated PlayStation Network Sign-In ID and/or PlayStation Network Online ID provided. SCEA will advise the Settlement Administrator and Class Counsel not less than 15 business days after the Settlement Administrator provides its final report of any invalid serial numbers or associated PlayStation Network Sign-In ID or PlayStation Network Online IDs, if and to the extent that SCEA identifies any. 75. The Settlement Administrator shall have discretion that it will exercise in good faith to reject fraudulent, incomplete, factually inaccurate or otherwise invalid Claims. If requested by the Settlement Administrator, Class Counsel and SCEA’s Counsel shall provide the Settlement Administrator with agreed upon guidelines for accepting and rejecting claims. 76. Distribution of Payments to the Class. No later than ten (10) days after the Claims Deadline, the Settlement Administrator, using the information submitted by Class Members, shall create and provide to Class Counsel and SCEA’s Counsel a complete and final 17 list of Valid Claimants that includes each member’s name and PlayStation Network Sign-In ID, PlayStation Network Online ID and/or serial number as provided and calculate the amounts due as well as any remainder funds that are available. SCEA’s Counsel and Class Counsel shall take appropriate steps to safeguard the list and shall not use it for any purpose other than the administration and implementation of this Settlement Agreement. Class Counsel agrees to return this list to the Settlement Administrator within sixty (60) days after the Effective Date or within sixty (60) days of denial of Final Approval as applicable. 77. By the Payment Date, the Settlement Administrator shall determine the amounts due to each Valid Claimant and mail checks via First Class U.S. Mail, proper postage prepaid, to the Valid Claimants, drawn from the Settlement Fund as set forth in paragraphs 7172 of this Agreement. Payment checks to Valid Claimants shall be sent to the mailing address indicated in each Valid Claimant’s Claim Form. Checks to Valid Claimants shall be valid for a period of one hundred and twenty (120) days from the date appearing on the payment check. For any payment check that is returned undeliverable with forwarding address information, the Settlement Administrator shall re-mail the check to the provided address. For any payment check that is returned undeliverable without forwarding address information, the Settlement Administrator shall make reasonable efforts to identify updated address information and re-mail the check to the extent an updated address is identified. 78. If payment checks are returned undeliverable or have not been cashed one hundred and twenty (120) days after the date appearing on the payment check, the Parties agree that the funds will be returned to the Settlement Fund for distribution to the Public Justice Foundation and/or The National Consumer Law Center upon Motion to the Court. VI. CLASS NOTICE 79. The Parties, subject to Court approval, agree to the following Class Notice procedures which the Parties agree is the best notice practicable. 18 A. Dissemination of the Short Form Notice. (i) The Parties acknowledge that SCEA has already prepared an electronic database that is reasonably calculated to include the email address(es) of all the Class Members known by SCEA through its PlayStation Network Database as of the date of Preliminary Approval. Within fourteen (14) days of the Preliminary Approval Order or on such date otherwise ordered by the Court, SCEA will update the content of the previously provided database and provide it to the Settlement Administrator. The Class data shall not be provided to the Class Representatives, Class Counsel or anyone other than the Settlement Administrator. (ii) By no later than the Notice Date, the Settlement Administrator shall send the Short Form Class Notice, in the form approved by the Court, to Class Members via email, along with a link to the Settlement Website. The subject line for all emails covered by this paragraph shall be: “Important - Notice of New Class Action Settlement Regarding PlayStation 3 ‘Other OS’ Function.” (iii) Publication of Short Form Notice. The Settlement Administrator shall cause the Short Form Notice to be published in various publications and online platforms designed to reach as many class members as possible. (iv) The Class Notice program shall be sufficient to satisfy due process. 19 B. Dissemination of the Long Form Notice. By no later than the Notice Date, the Settlement Administrator shall post on the Settlement Website the Long Form Notice approved by the Court. Both the Short Form Notice and the Long Form Notice shall include the following information: (i) General Terms: The notices shall contain a plain, neutral, objective, and concise description of the nature of the Action and the proposed Settlement. (ii) Opt-Out Rights: The notices shall inform Class Members that they have the right to opt-out of the Class and the Settlement and shall provide the deadline and procedures for exercising this right. (iii) Objection to Settlement: The notices shall inform the Class Members of their right to object to the proposed Settlement, Class Counsel’s fee application, and/or the requested Service Awards and of their right to appear at the Fairness Hearing and shall also provide the deadlines and procedures for exercising these rights. (iv) Fees and Expenses: The notices shall inform Class Members about the potential amounts being sought by Class Counsel as Attorneys’ Fees and Expenses and the amounts of the Service Awards being sought for the Class Representatives. (v) Claim Form for Class Members: The notices shall advise the Class Members that a Claim Form is available on the Settlement Website or may be obtained from the Settlement Administrator and that a Claim Form may be submitted online or mailed to the Settlement Administrator. The notices shall also inform Class Members that they must submit a timely and valid Claim Form to secure a cash payment. The notices shall also provide the deadline and procedures for submitting a Claim Form. 80. Follow-up Email. Fifteen (15) days prior to the Claim Deadline, the Settlement 20 Administrator shall provide one follow-up round of e-mail notice to those Class Members who have not submitted Claims and for whom the Settlement Administrator did not receive a bounce-back in response to the first round of e-mail notice. 81. Settlement Website. The Settlement Administrator shall use the Internet website, appearing at www.otherossettlement.com, where Class Members can obtain further information about the terms of the Settlement, their rights, important dates and deadlines, and related information. Class Members shall also be able to submit a Claim Form electronically via the Settlement Website. The Settlement Website shall include, in PDF format, the Second Amended Complaint, this Agreement, the Motion for Preliminary Approval, the Preliminary Approval Order, the Class Notice, any papers filed in support of Final Approval of the Settlement, Class Counsel’s application for attorneys’ fees and costs (after it is filed), the Final Approval Order (after it is entered), and other case documents as agreed upon by the Parties and/or required by the Court and shall be operational and live as of the date the Settlement Administrator begins emailing notice. The Settlement Website shall be optimized for mobile display. The Settlement Administrator shall maintain the Settlement Website as operational and shall not take it down until two hundred (200) days after the Effective Date. Within five (5) business days after the Settlement Website is taken down, the Settlement Administrator shall transfer ownership of the URL for the Settlement Website to SCEA. 82. Instructions to Class Members. The Settlement Website will prominently contain instructions on how Class Members can make a Claim for Settlement Benefits, as well as instructions on how Class Members can request exclusion from the Class or file an objection. 83. Print Notice. To satisfy the Consumer Legal Remedies Act (CLRA) requirement, notice will run one time per week for four (4) weeks in the California edition of USA Today at an approximate ad size of 1/4 page. 84. CAFA Notice. Within the time prescribed by 28 U.S.C. § 1715, the Settlement Administrator shall serve notice of this Settlement to appropriate state and federal officials pursuant to the Class Action Fairness Act (“CAFA”). The Settlement Administrator shall be 21 responsible for drafting and preparing the CAFA notice in conformity with 28 U.S.C. § 1715, and for identifying the appropriate state and federal officials to be notified. VII. GENERAL SETTLEMENT ADMINISTRATION 85. In addition to disseminating the Class Notice as set forth above in Section VI, the Settlement Administrator shall be responsible for the following: A. Formatting and distributing (by email) the Short Form Notice approved by the Court; B. Creating and maintaining a toll-free number that Class Members can call to request a copy of this Agreement, a Claim Form, or any other information concerning this Settlement or this Agreement; C. Consulting with SCEA’s Counsel and Class Counsel concerning any relevant issues, including (without limitation) distribution of the Class Notice and processing of Claims; D. Processing and recording all requests for exclusion; E. Receiving objections and providing them to Class Counsel and SCEA’s Counsel in a timely manner; F. Processing and recording Class Members’ Claims; G. Determining, in its sole discretion, exercised in good faith, the validity of all Claims in accordance with the requirements set forth in this Agreement. In the event that: (1) multiple Claims with the same serial number are submitted; (2) a serial number is submitted but the console with that serial number is not associated with the PlayStation Network Sign-In ID or PlayStation Network Online ID identified by the Claimant or as confirmed by SCEA through its records; (3) a serial number is submitted which raises reasonable suspicion concerning the legitimacy of the serial number or the Claim; or (4) more than one Claim is submitted from the same household, i.e., the same postal address, the Settlement Administrator shall request that the Claimant submit proof of purchase or may request other information as may be reasonably necessary to establish that the 22 Claim is legitimate, including but not limited to date and location of purchase. If adequate proof of purchase or other requested information is not provided to the Settlement Administrator, then the Claim(s) shall be deemed invalid. H. Within ten (10) days after the Claim Deadline, providing to SCEA and Class Counsel a list in writing of all individuals who have submitted Claims regardless of validity. The list shall include the following information, as available, for each Claimant with personally identifying information redacted, including serial number and PlayStation Network Sign-In ID or PlayStation Network Online ID, from Class Counsel’s list: (i) First and last name; (ii) Current mailing address; (iii) Current email address; (iv) PlayStation Network Sign-In ID or PlayStation Network Online ID, if submitted; (v) The Fat PS3 serial number, if submitted; I. Preparing, drafting, and serving the CAFA Notice; J. Establishing a Qualified Settlement Fund pursuant to Section 468B(g) of the Internal Revenue Code, and regulations promulgated thereunder, for the purpose of administering this Settlement; K. Mailing and re-mailing payments to Valid Claimants pursuant to the terms of this Agreement; L. Distributing any funds returned to the Qualified Settlement Fund after all payments have been made pursuant to paragraphs 71-72, above; and M. Such other tasks as the Parties mutually agree or that the Court orders the Settlement Administrator to perform. 86. All reasonable costs associated with the administration of this Settlement, distribution of Class Notice pursuant to this Agreement, and any other tasks assigned to the 23 Settlement Administrator by this Agreement, by the Parties’ mutual agreement in writing, or by the Court, shall be paid from the Settlement Fund. The Settlement Administrator will agree to cover all notice costs until the Settlement Fund is created. If the Settlement is not granted Final Approval or the Settlement Fund is not created, SCEA agrees to pay all reasonable costs associated with the distribution of Class Notice to the Settlement Administrator. 87. Subject to Section XV [Confidentiality] of this Agreement, the Parties agree that within two hundred and ten (210) days after the Effective Date, the Settlement Administrator shall destroy any and all Class Members’ personal identifying information that it has received from SCEA or otherwise in connection with the implementation and administration of this Settlement. 88. Upon completion of the implementation and administration of the Settlement, the Settlement Administrator shall provide written certification of such completion to counsel for all Parties. 89. The Settlement Administrator shall provide any information or declarations as requested by the Parties to assist with seeking Preliminary Approval and Final Approval, including an affidavit about the due process reach of the Settlement notice, in support of Final Approval. The Parties each represent that he, she, or it will not have any financial interest in the Settlement Administrator ultimately appointed and otherwise will not have a relationship with the Settlement Administrator ultimately appointed that could create a conflict of interest. 90. The Parties acknowledge and agree that the Settlement Administrator is not an agent of the Class Representatives, Class Counsel, SCEA, or SCEA’s Counsel and that the Settlement Administrator is not authorized by this Agreement or otherwise to act on behalf of the Class Representatives, Class Counsel, SCEA, or SCEA’s Counsel. The Settlement Administrator is a neutral third-party whose appointment is subject to Court approval. 91. If a Class Member requests that the Settlement Administrator and/or its agent or employee refers him/her to Class Counsel, or if a Class Member requests advice beyond 24 merely ministerial information regarding applicable deadlines or procedures for submitting Claims, or other Settlement related questions for which the Administrator does not have an approved response, then the Settlement Administrator and/or its agent or employee shall promptly refer the inquiry to Class Counsel. VIII. REQUESTS FOR EXCLUSION 92. Any Class Member or person legally entitled to act on his or her behalf who wishes to be excluded from the Class must email or mail a written request for exclusion to the Settlement Administrator at the email address or mailing address provided in the Class Notice, postmarked no later than the Opt-out Deadline and specifying that he or she wants to be excluded from the Class. Such written request for exclusion: (i) must contain the name and address of the person to be excluded; (ii) if applicable, must contain the name and address of any person claiming to be legally entitled to submit an exclusion request on behalf of the Class Member and the basis for such legal entitlement; (iii) must be mailed by First Class U.S. Mail, proper postage prepaid, to the Settlement Administrator at the specified mailing address; (iv) must be submitted or postmarked on or before the Opt-out Deadline; (v) should include the serial number of the Fat PS3 that he or she purchased or the PlayStation Network Sign-In ID or PlayStation Network Online ID used for that console before April 1, 2010 if available; and (vi) must be personally signed and clearly indicate that he/she wants to be excluded from the Class. So-called “mass” or “class” opt-outs shall not be allowed. 93. Any Class Member who does not submit a timely and valid written request for exclusion as provided in paragraph 92 shall be bound by all subsequent proceedings, orders, and judgments in the Action, including, but not limited to, the Release, even if he or she has litigation pending or subsequently initiates litigation against SCEA relating to the Released Claims. 94. Any Class Member who timely submits a request for exclusion as provided in paragraph 92 shall waive and forfeit any and all rights (s)he may have to benefits of the Settlement if it is approved and becomes final, including monetary relief, and shall waive and 25 forfeit any and all rights to object to the fairness, reasonableness, or adequacy of the Settlement, Class Counsel’s request for Attorneys’ Fees and Costs, and/or the requested Service Awards. 95. Not later than ten (10) days after the Opt-out Deadline, the Settlement Administrator shall provide to Class Counsel and SCEA’s Counsel a complete and final list of Class Members who submitted requests to exclude themselves from the Class. IX. OBJECTIONS TO SETTLEMENT 96. Any Class Member or person legally entitled to act on his or her behalf may object to the fairness, reasonableness, or adequacy of the Settlement, Class Counsel’s request for Attorneys’ Fees and Costs, and/or the requested Service Awards. To be valid, any objection must be made in writing and mailed to the Settlement Administrator at the address provided in the Class Notice, postmarked no later than the Objection Deadline. In addition, any objection must include the following: (i) the name of this Action; (ii) the objector’s full name, address, and telephone number; (iii) if applicable, the name and address of any person claiming to be legally entitled to object on behalf of a Class Member and the basis of such legal entitlement; (iv) all grounds for the objection; (v) the serial number of the Fat PS3 that he or she purchased or the PlayStation Network Sign-In ID or PlayStation Network Online ID used for that console before April 1, 2010 if available; (vi) whether the objector is represented by counsel and, if so, the identity of such counsel, and all previous objections filed by the objector and their counsel within the last two years; and (vii) the objector’s signature. Personal information, including serial number and PlayStation Network Sign-In ID or PlayStation Network Online ID, will be redacted before any objection is filed with the Court. 97. Not later than two (2) days after the Objection Deadline, the Settlement Administrator shall provide to Class Counsel and SCEA’s Counsel all objections submitted by Class Members. 98. Any Class Member who submits a timely written objection as described in paragraph 96 may appear at the Fairness Hearing, either in person or through personal counsel hired at the Class Member’s own personal expense and also may be subject to discovery, 26 subject to Court approval. 99. Any Class Member who fails to make a timely objection shall waive and forfeit any and all rights (s)he may have to object and shall be bound by all the terms of this Settlement Agreement and by all proceedings, orders, and judgments in the Action including the Final Approval Order and Final Judgment. 100. Any Class Member who objects to the Settlement shall nevertheless be entitled to all benefits of the Settlement if it is approved and becomes final, including monetary relief, if (s)he is a Valid Claimant. 101. Not later than twenty (20) days after the Objection Deadline, Class Counsel shall file with the Court any and all objections to the Settlement Agreement and/or to Class Counsel’s Application for Attorneys’ Fees and Costs and Request for Service Awards. All personally identifying information shall be redacted before objections are filed with the Court. X. PRELIMINARY APPROVAL, FINAL APPROVAL AND JUDGMENT 102. Proof of the extent and effectiveness of Class Notice shall be provided by the Settlement Administrator to the Parties no later than fifteen (15) days following the Objection/Exclusion Deadline. 103. On or before August 25, 2017, or any subsequent mutually agreed upon date, Class Representatives shall file with the Court a motion seeking Preliminary Approval of the Settlement and asking the Court to enter a Preliminary Approval Order substantially in the form attached as Exhibit 5 to this Settlement Agreement. 104. In connection with the motion for Preliminary Approval, the Parties shall ask the Court to set a date for the Fairness Hearing as soon as practicable, but in no event no earlier than sixty (60) days after the Claim Deadline and a date that ensures compliance with the requirements of 28 U.S.C. § 1715(d). 105. Class Counsel shall file a Motion for Final Approval. In connection with the Motion for Final Approval, the Parties shall ask that the Court enter the Final Approval Order 27 and Final Judgment substantially in the form attached to this Settlement Agreement as Exhibits 2 and 3. 106. After entry of the Final Approval Order, the Parties agree that the Court shall retain jurisdiction to enforce the terms of this Settlement Agreement and the Final Approval Order and the Final Judgment. XI. CONDITIONS IMPACTING FINALITY OF SETTLEMENT 107. If more than 300,000 Class Members submit exclusion requests, then SCEA shall have the option, in its sole discretion, to terminate and withdraw from the Settlement in its entirety; provided, however, that SCEA must notify the Court in writing that it is exercising such option within fifteen (15) days after being notified in writing by the Settlement Administrator that the number of Class Members who have timely requested exclusion exceeds 300,000. 108. The Parties expressly agree that in the event of any of the following conditions: (a) The Court does not conditionally certify the Class for settlement purposes; (b) The Court does not preliminarily approve the Settlement; (c) The Court does not finally approve the Settlement; (d) The Court does not enter the Final Approval Order and Final Judgment; (e) SCEA withdraws and cancels the Settlement pursuant to paragraph 107; (f) This Settlement does not become final for any reason, including on or subsequent review by any appellate court(s) in the Action, the Court ultimately rejects, modifies, or denies approval of any portion of this Settlement Agreement that either Class Representatives or SCEA reasonably determines is material, including, without limitation, the terms of relief, the provisions relating to notice, the definition of the Class, and/or the scope and terms of the Released Claims and Released Parties, then Class 28 Representatives and SCEA each has the right to withdraw from and terminate this Agreement. If the Court indicates that the Settlement will not be approved unless changes are made, then the Parties will attempt in good faith to reach an agreement as to any such changes before exercising their option under this Section to withdraw from this Agreement. Notwithstanding the foregoing, neither the denial of, an appeal of, a modification of, nor a reversal on appeal of any Fee and Expense Award or any Service Award shall constitute grounds for cancellation or termination of this Settlement Agreement. 109. Method for Invoking Right to Terminate. Other than as provided in paragraph 108, above, any Party exercising its right to terminate and withdraw must exercise this option as provided under paragraph 108, above, by a signed writing served on the other Party no later than twenty-one (21) days after receiving notice of the event prompting the termination. The Parties may reasonably extend this twenty-one (21) day period by written agreement if they are attempting in good faith to reach an agreement regarding changes proposed by the Court pursuant to paragraph 108, above. 110. In the event that a terminating party exercises its option to withdraw from and terminate this Settlement Agreement pursuant to paragraph 108: A. This Settlement Agreement and the Settlement proposed herein shall be null and void and shall have no force or effect and neither Party to this Settlement Agreement shall be bound by any of its terms, except as otherwise specifically provided for herein; B. The Parties will petition to have any stay orders that are entered pursuant to this Settlement Agreement lifted; C. This Settlement Agreement and all of its provisions, and all negotiations, statements, and proceedings relating to it, shall be without prejudice to the rights of SCEA, Class Representatives, or any Class Member, all of whom shall be restored to their respective positions as they existed immediately before the execution of 29 this Settlement Agreement, except that the Parties shall cooperate in requesting that the Court set a new scheduling order such that neither Party’s substantive or procedural rights is prejudiced by the attempted Settlement; D. The Released Parties, as defined herein, expressly and affirmatively reserve all defenses, arguments, and motions as to all claims that have been or might later be asserted in the Action, including, without limitation, SCEA’s argument that the Action may not proceed on a class basis; E. Class Representatives and all other Class Members, on behalf of themselves and their heirs, assigns, executors, administrators, predecessors, and successors, expressly and affirmatively reserve and do not waive any motions as to, and arguments in support of, all claims, causes of actions, or remedies that have been or might later be asserted in the Action including, without limitation, any argument concerning class certification, consumer fraud, and damages; F. This Settlement Agreement, the fact of its having been made, the negotiations leading to it, any informal discovery or action taken by a Party or Class Member pursuant to or in connection with this Settlement Agreement, or any documents or communications pertaining to this Settlement Agreement shall not be admissible or entered into evidence for any purpose whatsoever in the Action or in any other proceeding between the Parties, other than to enforce the terms of this Settlement Agreement; provided, however, that SCEA may rely on such evidence to defend itself in any other action not brought on behalf of the Class and relating to the subject matter of this Action. XII. ATTORNEYS’ FEES, COSTS AND SERVICE AWARDS A. FEE AND EXPENSE AWARD 111. Class Counsel intends to request that the Court award them Attorney’s Fees and Costs which will be paid from the Settlement Funds. 112. Payment of the Fee And Expense Award to Class Counsel identified pursuant to 30 paragraph 111, above, shall constitute full satisfaction by SCEA of any obligation to pay any amounts to any person, attorney, or law firm for attorneys’ fees, expenses, or costs in the Action incurred by any attorney on behalf of the Class Representatives, the Class Members, or the Settlement Class and shall relieve SCEA, SCEA’s Counsel, and the Released Parties of any other claims or liability to any other attorney or law firm for any attorneys’ fees, expenses, and/or costs to which any of them may claim to be entitled on behalf of the Class Representatives, the Class Members, and/or the Settlement Class for any Released Claim. 113. Neither Class Representatives nor the Class shall be responsible for any portion of SCEA’s own legal fees, costs, and expenses incurred in the Action. B. SERVICE AWARDS 114. Class Counsel intends to request that the Court approve a Service Award for each of the Class Representatives in an amount not to exceed Three Thousand Five Hundred dollars ($3,500) each. Any Service Awards approved by the Court will be paid out of the Settlement Funds. 115. By the Payment Date, the Settlement Administrator shall release and deliver to Class Counsel, on behalf of the Class Representatives, any Service Award approved by the Court, provided that each of the Class Representatives has executed the General Release substantially in the form attached hereto as Exhibit 8. 116. Any Service Award paid to the Class Representatives shall be reported on an IRS Form 1099 (i.e., as “Other Income”) and provided to the Class Representatives and applicable governmental authorities. XIII. RELEASE 117. As of the Effective Date, the Class Representatives and the Settlement Class, on behalf of themselves and their heirs, assigns, executors, administrators, predecessors, and successors, hereby fully release and forever discharge the Released Parties and further expressly agree that they shall not now or thereafter institute, maintain, or assert against the Released Parties, either directly or indirectly, on their own behalf, or on behalf of any class or other 31 person or entity, any action, regulatory action, arbitration, or court or other proceeding of any kind asserting causes of action, claims, damages, equitable, legal and administrative relief, interest, demands, rights or remedies, including, without limitation, claims for injunctive relief, declaratory relief, damages, mental anguish, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, disgorgement, or equitable relief against the Released Parties, whether based on federal, state, or local law, statute, ordinance, regulation, the Constitution, contract, common law, or any other source that arise out of or in any way relate to the subject matter of the Action and the Released Claims and that were or could have been alleged in the Action. 118. Unless otherwise specified in this Agreement, nothing in this release shall be deemed to alter any presently existing contractual rights or obligations that a current PlayStation Network account holder or Released Party may have against the other that arises out of current use of or access to the PlayStation Network. 119. Solely with respect to any and all Released Claims, upon Final Approval and Final Judgment, the Class Representatives and the Settlement Class shall expressly waive and relinquish, to the fullest extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil Code and any and all provisions, rights, and benefits of any similar statute or law of California or of any other jurisdiction as to all known or unknown claims as against the Released Parties. Section 1542 provides: A general release does not extend to claims which the creditor [in this case, the Class Member] does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor [in this case, the Released Parties]. To the extent that California law or other similar federal or state law may apply, the Class Representatives and the Settlement Class hereby agree that the provisions of Section 32 1542 and all such similar federal or state laws, rights, rules, or legal principles, to the extent they are found to be applicable herein, are hereby knowingly and voluntarily waived and relinquished by the Class Representatives and the Settlement Class in connection with this release of the Released Claims. 120. The Class Representatives and the Settlement Class expressly agree that this release is, and may be raised as, a complete defense to and precludes any claim, action, or proceeding encompassed by the release against the Released Parties. It is the intention of the Class Representatives in executing this release on behalf of themselves and the Settlement Class to fully, finally, and forever settle and release all matters and all claims relating to the Released Claims in every way. 121. Without limiting the foregoing, nothing in this Agreement shall release, preclude, or limit any claim or action by the Parties to enforce the terms of this Agreement. XIV. NONDISPARAGEMENT 122. Each of the Class Representatives and Class Counsel agrees that he, she, or they will not disparage SCEA or any of the Released Parties in any manner potentially harmful to them or their business, business reputation, or personal reputation related to the Released Claims. This agreement not to disparage includes, but is not limited to, publishing disparaging statements (whether anonymously or for ascription) on the web, in blogs, in chat rooms, in emails, or in any other electronic means of transmitting information. XV. CONFIDENTIALITY 123. Plaintiffs and Class Counsel agree that the terms of this Agreement will remain confidential until the Motion for Preliminary Approval is filed. Plaintiffs and Class Counsel further agree that they will not make any statements or comments, written or oral, about this Settlement or Settlement Agreement to any person other than to Class Members in any way other than as provided in this Settlement Agreement, the Class Notice, on the Settlement Website, or as otherwise agreed upon by SCEA in writing in each instance. Notwithstanding the terms of this provision, Class Counsel may display a link to the Settlement Website on their 33 respective firms’ websites and reference this Settlement as evidence of Class Counsel’s professional qualifications in resumes, curriculum vitae, and motions for appointment as class counsel pursuant to Federal Rule of Civil Procedure 23 and similar state rules of procedure, but only to state that: (i) it was a nationwide consumer class; (ii) the general allegations involved in the Action; and (iii) the general terms of the Settlement. 124. The Parties acknowledge that confidential documents produced in the course of the Action, whether in response to formal discovery or informally for purposes of mediation, are subject to a Stipulated Protective Order. The Parties agree to cooperate and to work with one another to protect any confidential materials produced in discovery in the Action, including but not limited to, promptly complying with all aspects of the Stipulated Protective Order regarding such information and stipulating that any confidential information submitted, whether in the past or in the future, to any court will be sealed. XVI. MISCELLANEOUS 125. The Class Representatives and Class Counsel agree not to issue any press release, unless mutually agreed by the Parties, at any time related to the Settlement, the lawsuit or any order preliminarily or finally approving the Agreement. 126. The Parties, their successors and assigns, and their attorneys, agree to use reasonable efforts to cooperate with one another in seeking Court approval of this Agreement and to effectuate this Agreement. 127. The Parties agree to cooperate in the settlement administration process and implementation of the Settlement and to make all reasonable efforts to control and minimize the costs and expenses incurred in the administration and implementation of the Settlement. 128. Each signatory to this Agreement hereby warrants that he or she has the authority to execute this Agreement and thereby bind the respective Party. Each Class Representative warrants and represents that he is the sole and lawful owner of all rights, title, and interest in and to all of the Released Claims and that (s)he has not heretofore voluntarily, by operation of law or otherwise, sold, assigned, or transferred or purported to sell, assign, or transfer to any other 34 person or entity any Released Claims or any part or portion thereof. 129. Class Representatives represent and certify that: (1) they have agreed to serve as representatives of the Class; (2) they are willing, able, and ready to perform all of the duties and obligations of representatives of the Class; (3) they have read the operative complaint or have had the contents of such pleadings described to them; (4) they are generally familiar with the results of the fact-finding undertaken by Class Counsel; (5) they have read this Agreement or have received a detailed description of it from Class Counsel and they have agreed to its terms; (6) they have consulted with Class Counsel about the Action and this Settlement Agreement and the obligations imposed on them as representatives of the Class; and (7) they shall remain and serve as representatives of the Class until the terms of the Agreement are effectuated, this Agreement is terminated in accordance with its terms, or the Court at any time determines that said Plaintiffs cannot represent the Class. 130. The terms of this Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective heirs, legal representatives, executors, administrators, successors, and assigns upon the Effective Date. 131. This Agreement and its attachments constitute the entire agreement of the Parties with respect to the matters discussed herein and supersede all prior or contemporaneous oral or written understandings, negotiations, agreements, statements, or promises. In executing this Agreement, the Parties acknowledge that they have not relied upon any oral or written understandings, negotiations, agreements, statements, or promises that are not set forth in this Agreement. The Parties also acknowledge and agree that each has been represented by its own counsel with respect to the negotiating and drafting of this Settlement and this Agreement. 132. All exhibits to this Agreement are integrated herein and are to be considered terms of this Agreement as if fully set forth herein. 133. This Agreement may not be amended or modified in any respect except by a written instrument duly executed by all of the Parties to this Agreement or their counsel. The Parties agree that nonmaterial amendments or modifications to this Agreement may be made in 35 writing after Preliminary Approval without the need to seek the Court’s approval. 134. Without further order of the Court, the Parties may agree in writing to reasonable extensions of time to carry out any of the provisions of this Agreement or the Preliminary Approval Order. 135. This Agreement may be executed in one or more counterparts, each of which shall be an original, and this Agreement is effective upon execution of at least one counterpart by each Party to this Agreement. 136. Nothing in this Agreement may be construed as, or may be used as, an admission by the Class Representatives that any of their claims are without merit. 137. Nothing in this Agreement may constitute, may be construed as, or may be used as an admission by SCEA of any fault, wrongdoing, or liability whatsoever or that class certification is appropriate. SCEA continues to deny all liability and all of the claims, contentions, and each and every allegation made by the Class Representatives in the Action. 138. The Parties expressly acknowledge and agree that this Settlement Agreement and its exhibits, along with all related drafts, motions, pleadings, conversations, negotiations, and correspondence, constitute an offer of compromise and a compromise within the meaning of Federal Rule of Evidence 408 and any equivalent rule of evidence in any state. In no event shall this Settlement Agreement, any of its provisions, or any negotiations, statements, or court proceedings relating to its provisions in any way be construed as, offered as, received as, used as, or deemed to be evidence of any kind in the Action, any other action, or in any judicial, administrative, regulatory, or other proceeding, except in a proceeding to enforce this Settlement Agreement or the rights of the Parties or their counsel. Without limiting the foregoing, neither this Settlement Agreement nor any related negotiations, statements, or court proceedings shall be construed as, offered as, received as, used as, or deemed to be evidence or an admission or concession of any liability or wrongdoing whatsoever on the part of any person or entity, including, but not limited to, the Released Parties, Class Representatives, the Class, or the Settlement Class or as a waiver by the Released Parties, Class Representatives, or the Class 36 of any applicable privileges, claims, or defenses. 139. Neither Class Counsel nor SCEA’s Counsel intends anything contained herein to constitute legal advice regarding the tax consequences of any amount paid hereunder, nor shall it be relied upon as such. 140. In the event of a conflict between this Agreement and any other document prepared pursuant to the Settlement, the terms of this Agreement will supersede and control. 141. Any failure by any Party to insist upon the strict performance by any other Party of any provision of this Agreement shall not be deemed a waiver of any provision of this Agreement and such Party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement. 142. This Agreement has been, and shall be construed to have been, drafted by all the Parties to it and the Parties agree that any rule which construes ambiguities against the drafter shall have no force or effect. 143. The Parties agree that this Agreement was drafted and executed in the State of California and that the laws of the State of California shall govern its enforcement without regard to its choice of law principles. The Parties further agree that any action relating to or arising out of this Agreement, including an action to enforce or void any of its terms or to rescind it in its entirety shall be venued in state or federal court, in the Northern District of California. All Parties consent to personal jurisdiction in courts within the Northern District of California. XVII. LIST OF EXHIBITS Exhibit 1 – Claim Form Exhibit 2 – Form of Final Approval Order Exhibit 3 – Form of Final Judgment Exhibit 4 – Form of Long Form Class Notice Exhibit 5 – Form of Preliminary Approval Order Exhibit 6 – Form of Short Form Notice Exhibit 7 – List of Fat PS3 model numbers 37 Exhibit 8 – General Release 38 DATED: Anthony Ventura DATED: Jason Baker DATED: James Girardi DATED: August, 25, 2017 Derrick Alba DATED: Jonathan Huber DATED: Sony Interactive Entertainment America LLC By Its 38 DATED: Anthony Ventura DATED: Jason Baker DATED: James Girardi DATED: Derrick Alba DATED: Jonathan Huber DATED: Sony Interactive Entertainment America LLC By Its 39 lsacks@srclaw.com Michele Floyd (SBN 163031) mfloyd@srclaw.com SACKS, RICKETTS & CASE LLP 177 Post Street, Suite 650 San Francisco, CA 94108 Telephone: (415) 549-0580 Facsimile: (415) 549-0640 Attorneys for Defendant SONY COMPUTER ENTERTAINMENT AMERICA LLC, currently known as SONY INTERACTIVE ENTERTAINMENT AMERICA LLC 41 EXHIBIT 1 CONSUMER CLAIM FORM In re Sony PS3 “Other OS” Litigation United States District Court, Northern District of California Case No. 10-CV-01811-YGR DATED: _________________, 2017 PLEASE BE AWARE THAT THE DEADLINE FOR SUBMITTING CLAIMS IS ______, 2017. CLAIMS SUBMITTED AFTER THIS DATE WILL NOT BE ACCEPTED. TO: All persons in the United States who purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; or (2) knew about the Other OS functionality; or (3) contend or believe that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. You need to meet only one of the above requirements to submit a claim. PLEASE READ THIS ENTIRE CLAIM FORM CAREFULLY TO BE ELIGIBLE TO RECEIVE A PAYMENT, YOUR COMPLETED CLAIM FORM MUST BE POSTMARKED OR SUBMITTED ONLINE ON OR BEFORE ____________. CLAIMS SUBMITTED AFTER THIS DATE WILL NOT BE ACCEPTED. ELIGIBILITY AND INSTRUCTIONS IT IS IMPORTANT TO FOLLOW THESE INSTRUCTIONS CAREFULLY OR YOUR CLAIM MAY BE REJECTED. 1. You are a Class Member if you purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and you: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contend or believe that you lost value or desired functionality or were otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. You are eligible to receive a cash payment of up to $65 if you submit a valid and complete Claim Form. Because settlement funds will be distributed to Class Members on a pro rata basis, the exact dollar amount that each Class Member will receive will depend on the total number of valid claims that are submitted. 2. In order to receive a payment, you will have to attest, under penalty of perjury, that you : (1) used the Other OS functionality; or (2) knew about the Other OS functionality; or (3) contend or believe that you lost value or desired functionality or were otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. 3. You will also have to provide at least one of the following: (1) your PS3 serial number; or (2) the PlayStation Network Sign-In ID (email address) you used to create a PlayStation account associated with your Fat PS3; (3) or the PlayStation Network Online ID (the handle you chose for communicating and game play on the PlayStation Network) associated with the PlayStation account you used with your Fat PS3. 4. If you previously submitted a claim form in the earlier settlement in this matter, you will automatically be included and do not need to submit another claim form. If you are not sure whether you submitted a claim or have questions whether it will be honored, please contact the Settlement Administrator at _________. If you previously submitted a claim form and your address have changed since your submission, please inform the claims administrator of your new address. 5. Claim Forms that are incomplete or untimely will be considered invalid and will prevent you from receiving payment. 6. If you need any help to determine whether you are eligible to submit a consumer claim, please contact the Settlement Administrator at _______ or by email at www.______________.com. 7. If you are a Class Member, complete the attached Claim Form or fill in the Claim Form online. Include all required information on your Claim Form. 8. The Claims Administrator has discretion that will be exercised in good faith to determine whether your Claim Form is complete and supports your eligibility for a settlement payment in accordance with the requirements of the Settlement. 9. To receive a payment, you must include your current mailing address on the Claim Form. 10. If you move after submitting your Claim Form, please send the Settlement Administrator your new address or contact the Settlement Administrator at the following toll-free number: _________. It is your responsibility to keep a current address on file with the Settlement Administrator. 11. The Settlement Administrator will use the email address that you provide on your Claim Form to communicate with you if communications are necessary. 12. A claim form can also be submitted online at: _______________. CLAIM FORM Claimant Information: Name: Street Address: City: State: Zip Code Daytime telephone: Email address: Provide at least ONE of the following: Fat PS3 Serial Number: PlayStation Network Sign-In ID: PlayStation Network Online ID: If you are submitting this Claim Form on behalf of someone else, please explain why you have the right to do so. _____________________________________________________________________ NOTE: The Claims Administrator may audit any and all claims. Attestation By signing below, you are signing under penalty of perjury. Signing under penalty of perjury means that the information you have provided in the Claim Form is true. It is a crime to submit a false Claim Form and sign under the penalty of perjury. I declare under penalty of perjury that I purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal and/or household use and that I: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contend or believe that I lost value or desired functionality or that I was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. I further declare that all of the information I have submitted in this Claim Form is true and correct. Executed this __ day of ____________ [month] 2017 at _________________________ [City and State]. Print name Checklist Please make sure that you have: 1. Signed the Certification above. 2. Included your PS3 serial number, or PlayStation Network Sign-In ID, or PlayStation Network Online ID. 3. Kept a copy of your completed Claim Form for your files. 4. E-filed or mailed your Claim Form before _______________. If submitting by mail, mail your Claim Form to: Other OS Settlement Administrator [______________________] BE SURE TO SIGN THIS FORM ABOVE AND SUBMIT IT TO THE SETTLEMENT ADMINISTRATOR POSTMARKED OR SUBMITTED ELECTRONICALLY NO LATER THAN [DATE]. EXHIBIT 2 1 2 3 4 Kathleen V. Fisher (SBN 70838) kfisher@calvofisher.com CALVO FISHER & JACOB LLP 555 Montgomery Street, Suite 1155 San Francisco, California 94111 Telephone: (415) 373-8370 Facsimile: (415) 374-8373 5 6 7 8 9 10 James Pizzirusso (pro hac vice) jpizzirusso@hausfeld.com HAUSFELD LLP 1700 K Street NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 15 Gordon M. Fauth, Jr. (SBN 190280) gfauth@finkelsteinthompson.com Of Counsel FINKELSTEIN THOMPSON LLP 100 Pine Street, Suite 1250 San Francisco, California 94111 Direct Telephone: (510) 238-9610 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 16 Interim Co-Lead Counsel for Plaintiffs and the Proposed Class 11 12 13 14 17 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 19 20 21 In re SONY PS3 “OTHER OS” LITIGATION Case No.: 10-CV-01811-YGR [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR 1 This matter came before the Court for hearing pursuant to the following: (1) the Court’s 2 Order Granting Renewed Motion for Preliminary Approval dated ________________; (2) 3 Plaintiffs’ Renewed Motion for Attorneys’ Fees and Costs and for Service Awards for the 4 Plaintiffs dated ________________; (3) Plaintiffs’ Renewed Motion for Final Approval of 5 Class Action Settlement dated ________________; and (4) the Stipulation of Class Action 6 Settlement and Release executed on September 1, 2017 (the “Settlement”), entered into by the 7 Parties to settle and finally resolve the above-captioned class action lawsuit (the “Action” or the 8 “Class Action Lawsuit”). Due and adequate notice having been given to the Class of the 9 proposed Settlement and the pending motions, as required by the Court’s orders, and upon 10 consideration of all papers filed and proceedings had herein, IT IS HEREBY ORDERED, 11 ADJUDGED AND DECREED as follows: 12 13 14 15 1. Capitalized, bolded terms not otherwise defined herein shall have the same meaning as set forth in the Settlement, attached hereto as Exhibit A. 2. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and has personal jurisdiction over the Parties. Venue is proper in this District. The “Class,” for purposes of this Order, shall mean: 16 3. 17 [A]ny and all persons in the United States who purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. 18 19 20 21 22 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby 23 certifies for settlement purposes only the Class, which it previously provisionally certified. 24 Excluded from the Class are: (a) any persons who are employees, directors, officers, and agents 25 of SCEA or its subsidiaries and affiliated companies; (b) any persons who timely and properly 26 exclude themselves from the Settlement; and (c) the Court, the Court’s immediate family, and 27 Court staff. 28 5. The Court finds that the notice provisions set forth under the Class Action 1 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR 1 2 Fairness Act, 28 U.S.C. § 1715, were complied with in this Action. 6. The Court finds that the program for disseminating notice to the Class provided 3 for in the Settlement, and previously approved and directed by the Court (the “Notice 4 Program”), has been implemented by the Settlement Administrator and the Parties, and that 5 such Notice Program, including the approved forms of notice, constitutes the best notice 6 practicable under the circumstances and fully satisfied due process, the requirements of Rule 23 7 of the Federal Rules of Civil Procedure and all other applicable laws. 8 9 7. The Court reaffirms that this Action is properly maintained as a class action, for settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(3), and 23(e), 10 and that Class Counsel and the Plaintiffs, as Class Representatives, fairly and adequately 11 represent the interests of the Class. In support of its conclusion that this Action is properly 12 maintained as a class action, for settlement purposes, the Court finds as follows: 13 (a) the Settlement Class Members are so numerous that joinder of all members is 14 impracticable; 15 (b) there are questions of law and fact common to the Settlement Class Members, and 16 these questions predominate over any questions affecting individual Settlement Class 17 Members; 18 (c) the named Class Representatives’ claims are typical of the claims of the Settlement 19 Class Members; 20 (d) the named Class Representatives and Class Counsel have adequately represented 21 and will continue to adequately represent and protect the interests of the Settlement 22 Class; 23 (e) class-wide treatment of the disputes raised in this Action is superior to other available 24 methods for adjudicating the controversy before this Court; and 25 (f) manageability issues do not prevent certification for settlement purposes because there 26 will be no trial. 27 8. 28 The Court further finds that a full and fair opportunity has been afforded to the Class Members to opt out, to object and to participate in the hearing convened to determine 2 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR 1 whether the Settlement should be given final approval. Accordingly, the Court hereby 2 determines that all members of the Settlement Class are bound by this Final Approval Order. 3 9. The Court finds that the Settlement, including the exhibits thereto, is fair, 4 reasonable and adequate to the Settlement Class, is in the best interests of the Settlement Class, 5 has been entered into in good faith and should be and hereby is fully and finally approved 6 pursuant to Federal Rule of Civil Procedure 23. The Settlement represents a fair resolution of 7 all claims asserted on behalf of Plaintiffs, as Class Representatives, and the Settlement Class 8 in this Action, and fully and finally resolves all such claims. SCEA and each member of the 9 Settlement Class shall be bound by the Settlement, including the Release set forth in Section 10 XIII of the Settlement, and by this Order and the Final Judgment entered in connection with 11 this Order. 12 10. After considering (1) the strength of the Plaintiffs’ case; (2) the risk, expense, 13 complexity, and likely duration of further litigation; (3) the risk of maintaining class action status 14 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed 15 and the stage of the proceedings; (6) the experience and views of counsel; and (7) the reaction of 16 the Class Members to the proposed Settlement, the Court hereby finds that the Settlement is 17 in all respects fair, reasonable, and adequate and in the best interests of the Settlement Class. In 18 addition, the Court finds that there was no collusion in connection with the Settlement, that the 19 Settlement was the product of informed and arm’s-length negotiations among competent 20 counsel, and that the record is sufficiently developed to have enabled the Class Representatives 21 and SCEA to adequately evaluate and consider their respective positions. Accordingly, the 22 Court hereby finally and unconditionally approves the Settlement. 23 11. Class Counsel are hereby awarded attorneys’ fees in the amount of 24 $________________, and reimbursement of their out-of-pocket litigation costs in the amount of 25 $________________, both of which to be paid out of the Settlement Fund. The Court finds 26 these amounts to be fair and reasonable and fairly compensates Class Counsel for their 27 contributions to the prosecution of this Action and the Settlement. 28 12. The Court hereby awards service awards in the amount of $________________ 3 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR 1 each, to each of the Plaintiffs as Class Representatives, to compensate them for their 2 commitments and efforts on behalf of the Class in this Action. These service awards will be 3 paid out of the Settlement Fund. 4 5 6 13. The Parties are to bear their own costs, except as awarded by this Court in this Final Approval Order. 14. In its Order Granting Plaintiff’s Renewed Motion for Preliminary Approval (Dkt. 7 No. ___), the Court directed the parties to appoint a Settlement Administrator. The 8 Settlement Administrator shall continue to perform those duties and responsibilities that 9 remain under the Settlement and this Final Approval Order. 10 15. The Parties and Settlement Administrator are hereby directed to implement this 11 Final Approval Order and the Settlement in accordance with the terms and provisions thereof, 12 including the processing and payment of Claims. 13 16. As of the Effective Date, the Class Representatives and the Settlement Class, 14 on behalf of themselves and their heirs, assigns, executors, administrators, predecessors, and 15 successors, shall be deemed to have, and by operation of this Order and the Final Judgment 16 entered in connection with this Order shall have, fully released and forever discharged the 17 Released Parties from all Released Claims, as more fully set forth in Section XIII of the 18 Settlement, including that the Class Representatives and the Settlement Class shall fully 19 release and forever discharge the Released Parties and further expressly agree that they shall 20 not now or thereafter institute, maintain, or assert against the Released Parties, either directly or 21 indirectly, on their own behalf, or on behalf of any class or other person or entity, any action, 22 regulatory action, arbitration, or court or other proceeding of any kind asserting causes of action, 23 claims, damages, equitable, legal and administrative relief, interest, demands, rights or remedies, 24 including, without limitation, claims for injunctive relief, declaratory relief, damages, mental 25 anguish, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, 26 litigation costs, restitution, disgorgement, or equitable relief against the Released Parties, 27 whether based on federal, state, or local law, statute, ordinance, regulation, the Constitution, 28 contract, common law, or any other source that arise out of or in any way relate to the subject 4 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR 1 matter of the Action and the Released Claims and that were or could have been alleged in the 2 Action. Released Claims include, but are not limited to, claims arising under the common laws 3 of all fifty (50) states concerning: (a) whether SCEA falsely advertised or marketed the Fat 4 PS3’s Other OS functionality; (b) the disabling of the Other OS functionality in the Fat PS3; 5 (c) the issuance of Firmware Update 3.21; and/or (d) whether the System Software License 6 Agreement and/or PlayStation Network Terms of Service and User Agreement enable SCEA to 7 alter, remove or modify features and/or functions of the Fat PS3. 8 9 17. As of the Final Settlement Date, Plaintiffs and, by operation of law, each member of the Settlement Class shall further be deemed to have expressly waived and released 10 any and all provisions, rights and benefits conferred by Section 1542 of the California Civil 11 Code or similar laws of any other state or jurisdiction. 12 13 14 18. The Court orders that, upon the Effective Date, the Settlement shall be the exclusive remedy for any and all Released Claims of the Releasing Parties. 19. The Court hereby dismisses this Action with prejudice, and without fees or costs 15 except as provided in the Settlement Agreement and this Order. Plaintiffs and all members of 16 the Settlement Class are hereby permanently barred and enjoined from commencing, pursuing, 17 maintaining, enforcing or prosecuting, either directly or indirectly, any Released Claims in any 18 judicial, administrative, arbitral or other forum, against any of the Released Parties, provided 19 that this injunction shall not apply to the claims of any Class Members who have timely and 20 validly requested to be excluded from the Class. This permanent bar and injunction is necessary 21 to protect and effectuate the Settlement, this Order and this Court’s authority to effectuate the 22 Settlement, and is ordered in aid of this Court’s jurisdiction and to protect its judgments. 23 20. The Released Parties may file this Final Approval Order in any other action 24 that may be brought against them in order to support a defense or counterclaim based on 25 principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or 26 reduction, or any other theory of claim preclusion or issue preclusion or similar defense or 27 counterclaim. 28 21. Nothing in this Order or in the Final Judgment entered in connection with this 5 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR 1 2 Order shall preclude any action to enforce the terms of the Settlement. 22. Without affecting the finality of this Order in any way, the Court hereby retains 3 continuing jurisdiction over: (a) all matters relating to the modification, interpretation, 4 administration, implementation, effectuation and enforcement of the Settlement; (b) further 5 proceedings, if necessary, on Plaintiffs’ Renewed Motion for Attorneys’ Fees and Costs and 6 for Service Awards for the Plaintiffs; and (c) the Parties, Class Counsel and members of the 7 Settlement Class for the purpose of administering, supervising, construing and enforcing this 8 Order and the Settlement in accordance with its terms. 9 23. Neither this Order, the Final Judgment entered in connection with this Order, 10 nor the Settlement (nor any other document referred to herein, nor any action taken to carry out 11 this Order or the accompanying Final Judgment) shall be construed as or used as an admission 12 or concession by or against SCEA or Released Parties of the validity of any claim or defense or 13 any actual or potential fault, wrongdoing, or liability whatsoever. The Settlement and this 14 resulting Final Approval Order simply represent a compromise of disputed allegations. 15 24. Without further order of the Court, the Parties may agree to reasonably 16 necessary extensions of time to carry out any of the provisions of the Settlement and to make 17 other non-material modifications, in implementing the Settlement, that are not inconsistent with 18 this Order. 19 25. The Clerk shall enter Final Judgment, consistent with this Order, forthwith. 20 26. Class Counsel shall serve a copy of this Final Approval Order on all named 21 parties or their counsel and the Settlement Administrator immediately upon receipt and the 22 Settlement Administrator shall post a copy of this Final Approval Order on the Settlement 23 Website immediately upon receipt. 24 IT IS SO ORDERED. 25 26 27 Dated: ____________________ By: _____________________________ HON. YVONNE GONZALEZ ROGERS District Judge U.S. District Court, Northern District of California 28 6 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 10-CV-01811-YGR EXHIBIT 3 1 2 3 4 Kathleen V. Fisher (SBN 70838) kfisher@calvofisher.com CALVO FISHER & JACOB LLP 555 Montgomery Street, Suite 1155 San Francisco, California 94111 Telephone: (415) 373-8370 Facsimile: (415) 374-8373 5 6 7 8 9 10 James Pizzirusso (pro hac vice) jpizzirusso@hausfeld.com HAUSFELD LLP 1700 K Street NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 15 Gordon M. Fauth, Jr. (SBN 190280) gfauth@finkelsteinthompson.com Of Counsel FINKELSTEIN THOMPSON LLP 100 Pine Street, Suite 1250 San Francisco, California 94111 Direct Telephone: (510) 238-9610 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 16 Interim Co-Lead Counsel for Plaintiffs and the Proposed Class 11 12 13 14 17 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 19 20 In re SONY PS3 “OTHER OS” LITIGATION Case No. 10-CV-01811-YGR [PROPOSED] FINAL JUDGMENT 21 22 23 24 25 26 27 28 [PROPOSED] FINAL JUDGMENT CASE NO. 10-CV-01811-YGR 1 Pursuant to the Court’s Final Approval Order (“Order”) dated _____________, the Court 2 hereby ORDERS that final judgment in this matter is entered in accordance with the Order and 3 the Settlement it incorporates (the Order, which attaches the Settlement, is attached hereto as 4 Exhibit A). The Court will have continuing jurisdiction over the Parties, the Action, and the 5 Settlement for purposes of enforcing the Settlement and resolving disputes under the Settlement 6 Agreement. This document constitutes a judgment and a separate document for purposes of 7 Federal Rule of Civil Procedure 58(a). 8 Only those persons listed in Exhibit B to this Final Judgment have submitted timely and 9 valid requests for exclusion from the Settlement Class and are therefore not bound by this Final 10 Judgment and the accompanying Final Approval Order. 11 12 IT IS SO ORDERED. 13 14 15 16 Dated: ____________________ By: __________________________________ HON. YVONNE GONZALEZ ROGERS District Judge U.S. District Court, Northern District of California 17 18 19 20 21 22 23 24 25 26 27 28 -1- [PROPOSED] FINAL JUDGMENT CASE NO. 10-CV-01811-YGR EXHIBIT 4 IF YOU BOUGHT A PLAYSTATION® 3 CONSOLE BETWEEN NOVEMBER 1, 2006, AND APRIL 1, 2010, THIS CLASS ACTION SETTLEMENT MAY AFFECT YOUR RIGHTS. A federal court authorized this notice. This is not a solicitation from a lawyer and you aren’t being sued. A proposed Settlement has been reached in a class action lawsuit against Sony Computer Entertainment America LLC (“SCEA”) (n/k/a Sony Interactive Entertainment America LLC) challenging the issuance of a firmware update to disable the “Other OS” functionality from PlayStation® 3 “Fat” model computer entertainment consoles (“Fat PS3s”). The Other OS function enabled users to run Linux and other platforms as alternative operating systems on Fat PS3s. SCEA denies that it did anything wrong. The Court has not decided who is right in the lawsuit. If you purchased a Fat PS3 in the United States between November 1, 2006, and April 1, 2010, from an authorized retailer for family, personal, and/or household use and you: (1) used the Other OS functionality; or (2) knew about the Other OS functionality; or (3) contend or believe that you lost value or desired functionality or were otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3, then you are a Class Member and may be eligible to submit a claim to receive a cash payment. Each Class Member who submits a valid claim will be entitled to receive up to $65. The exact amount that each Class Member will receive will depend on the number of Class Members who submit valid claims. If you previously submitted a claim to the Settlement Administrator in connection with this class action lawsuit, you do not need to submit another one. Your previous claim has been retained. Please contact the Settlement Administrator if you have questions regarding the status of previously submitted claim form. Your legal rights are affected whether you act or do not act. Read this Notice and the information on this Settlement Website carefully. Your rights and options, and the deadlines to exercise them, are explained in this Notice. The Court will decide whether to approve the Settlement. Proposed payments to Class Members who do not exclude themselves from the Settlement will be made if the Court approves the Settlement. Please be patient and check this Settlement Website (www. .com) to find out when the cash payments may be available. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: If you are a Class Member, you can receive up to $65 if you submit a Claim Form. The deadline to submit a Claim Form is [ ]. See Sections 8-10 below for more details. SUBMIT A CLAIM EXCLUDE YOURSELF FROM THE SETTLEMENT 00081931.DOCX - 1 00086144.DOCX - 1 You won’t receive a cash payment but you will still be able to sue SCEA about the claims in this Lawsuit. The postmark or email deadline to exclude yourself is [ ]. See Section 16 below for more details. QUESTIONS? CALL 800-000-0000 TOLL FREE 1 OBJECT TO THE SETTLEMENT Write to the Settlement Administrator if you don’t like the Settlement. You may object to the Settlement and also submit a claim for payment under the Settlement. The postmark deadline to send an objection is [ ]. See Sections 18-19 below for more details. ATTEND THE HEARING The Court has set a hearing on May 29, 2018 at 2:00 p.m. regarding the fairness of the Settlement. You may appear at the hearing, but you don’t have to. You may hire your own attorney to appear for you. See Sections 21-23 below for more details. DO NOTHING If the settlement is approved and you do nothing and do not submit a claim, you will not receive a cash payment. You will be bound by the settlement terms and judgment and will not be able to later sue SCEA about the claims in this lawsuit. See Section 15 below for more details. WHY DID I GET THIS NOTICE? You received this Notice because you may have purchased a Fat PS3 from an authorized retailer between November 1, 2006, and April 1, 2010. This Notice explains the lawsuit, the settlement, your legal rights, what settlement benefits are available, who is eligible for them, and how to get them. The Court authorized this Notice because you have a right to know about the proposed Settlement and all of your options before the Court decides whether to approve the Settlement. Cash payments will be provided if the Court approves the Settlement and all objections and appeals are resolved. You will be informed of the progress of the Settlement on this Settlement Website. The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as In re Sony PS3 “Other OS” Litigation, U.S. District Court, N.D. Cal., Case No. C-101811 (YGR) (the “Lawsuit”). The consumers who sued are called “Plaintiffs” and/or “Class Representatives” and the company they sued, SCEA, is called the “Defendant.” WHAT IS THIS LAWSUIT ABOUT? The Lawsuit claims that disabling the Other OS functionality in Fat PS3s through a firmware update constituted an unfair and unlawful business practice and false advertising. The lawsuit seeks recovery of monetary damages to compensate Fat PS3 purchasers for the loss of the Other OS feature and functionality. The Second Amended Complaint filed in the lawsuit, which is available on this Settlement Website, contains all of the allegations and claims asserted against SCEA. HOW DOES SCEA RESPOND TO THE ALLEGATIONS? SCEA expressly denies that it did anything wrong and does not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims that have been alleged against it in the Lawsuit. HAS THE COURT DECIDED WHO IS RIGHT? 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 2 No. The Court has not decided which of the Parties, Plaintiffs or SCEA, is right. WHAT IS A CLASS ACTION AND WHO IS INVOLVED? In a class action, the “Class Representatives” sue on behalf of themselves and other people who have similar claims (the Class Members). This lawsuit has five Class Representatives: Anthony Ventura, Jason Baker, Jonathan Huber, James Girardi, and Derek Alba. One court resolves the issues for all Class Members except those who exclude themselves from the Class. U.S. District Court Judge Yvonne Gonzalez Rogers is in charge of this class action. WHY IS THERE A SETTLEMENT? The Court hasn’t decided in favor of either Plaintiffs or SCEA. Instead, both sides agreed to a Settlement. That way, they avoid the costs, uncertainty, and delay of further legal proceedings and the people affected will get the benefits of this Settlement. The Class Representatives and the attorneys appointed to represent the Class (called “Class Counsel”) believe the Settlement is in the best interest of all Class Members. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT? To see if you will be part of the Settlement, you must decide whether you are a member of the Class. You are a member of the Class if you: purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010, from an authorized retailer for family, personal, and/or household use and you (1) used the Other OS functionality; or (2) knew about the Other OS functionality; or (3) contend or believe that you lost value or desired functionality or were otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. IF YOU BOUGHT A FAT PS3 BETWEEN NOVEMBER 1, 2006 AND APRIL 1, 2010, BUT ARE UNSURE IF YOU ARE ELIGIBLE TO RECEIVE BENEFITS, WHETHER YOU ARE A MEMBER OF THE CLASS, OR WHAT YOUR OPTIONS ARE, YOU MAY CONTACT THE SETTLEMENT ADMINISTRATOR AT [ phone/email ] OR YOU CAN REVIEW THE SETTLEMENT DOCUMENTS ON THIS SETTLEMENT WEBSITE (www. .com). WHAT DOES THE SETTLEMENT PROVIDE? The Settlement, if it is approved and becomes final, will provide a settlement fund of $3,750,000 from which class member claims will be paid. The costs of settlement administration, plaintiffs’ attorneys’ fees and costs and service awards to the named plaintiffs will be paid from the settlement fund. Class member claims up to $65.00 will be paid on a pro rata basis after all the fees, costs and service awards are paid. The exact amount that each class member will receive will depend on the number of valid claims that are submitted. You are eligible for a cash payment if you are a member of the class and you submit a valid claim form (as described more fully in Section 9, below) to the Settlement Administrator. If you previously submitted a claim to the Settlement Administrator in connection with this class action lawsuit, then you do not have to submit another claim form. The Settlement Administrator has retained your previously submitted claim form. Please contact the Settlement Administrator at the phone number set forth below if you have questions regarding the status of 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 3 a previously submitted claim form. HOW DO I GET A CASH PAYMENT? If you are eligible to receive a benefit as a Class Member, then you must submit a Claim Form to the Settlement Administrator in order to receive a cash payment. Electronic Claim Forms are available on this Settlement Website. You may also obtain a Claim Form by calling the Settlement Administrator at [phone]. The Claim Form will ask you to attest, under penalty of perjury, that you purchased a Fat PS3 in the United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and that you: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contend or believe that you lost value or desired functionality or were otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. For validation purposes, you will also be asked to provide one of the following: your PS3 console serial number, or PlayStation Network Sign-In ID associated with your PS3 and/or the PlayStation Network Online ID associated with your PS3. You can either upload or mail the claim form to the Settlement Administrator. Further information on submitting a Claim Form is provided in Section 10, below. Again, if you previously submitted a claim to the Settlement Administrator in connection with this class action lawsuit, then you do not have to submit another claim form. The Settlement Administrator has retained your previously submitted claim form. Please contact the Settlement Administrator at the phone number set forth below if you have questions regarding the status of a previously submitted claim form. HOW DO I SUBMIT A CLAIM FORM AND WHAT IS THE DEADLINE? You have two options for submitting a Claim Form: Online: You can submit a Claim Form online through this Settlement Website. By mail: You can print and fill out the Claim Form that is on this Settlement Website or request that the Settlement Administrator mail you a Claim Form, and then mail your completed Claim Form (with postage) to: [ADDRESS] You must follow the instructions and provide all of the required information on the Claim Form. Your claim will be rejected if your Claim Form is incomplete. Online Claim Forms must be submitted by [DATE]. Claim Forms submitted by mail must be postmarked by [DATE]. If your online Claim Form is not submitted by [date] or your mailed Claim Form is not postmarked by [date], then your claim will be rejected. WHAT HAPPENS AFTER A CLAIM FORM IS SUBMITTED? The Settlement Administrator will determine whether your Claim Form is complete and that the information that you submitted on your Claim Form is correct and valid. The Settlement Administrator may contact you for additional information if: (1) multiple claims with the same PS3 serial number are submitted; (2) a serial number is submitted but the console with that serial number is not associated with the PlayStation Network Sign-In ID or PlayStation Network Online ID identified by you; (3) a serial number is submitted that raises reasonable suspicion concerning the legitimacy of the serial number or the claim; or (4) more than one claim is submitted from the same household, i.e., the same postal address. The Settlement Administrator can also ask 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 4 you to provide the date and location of your Fat PS3 purchase or other information as may be reasonably necessary for the Settlement Administrator to establish that your claim is legitimate. Your claim will be rejected if you are contacted by the Settlement Administrator for additional information but you do not provide the information requested. CAN I SUBMIT MORE THAN ONE CLAIM? Yes, you can submit one claim for each Fat PS3 that you purchased between November 1, 2006, and April 1, 2010, from an authorized retailer for family, personal, and/or household use, as long as you are a member of the Class as defined above in Section 8 of this Notice. Note, however, that if you have more than one console and submit multiple claims from the same household, the Settlement Administrator may ask you to provide additional information as set forth above in Section 11. WHEN WILL I RECEIVE MY PAYMENT? Judge Gonzalez Rogers will hold a Final Approval Hearing on May 29, 2018 to decide whether to approve the Settlement. If Judge Gonzalez Rogers approves the Settlement in a Final Judgment and there are no objections to the Settlement or appeals, the cash payments will be made approximately 65 days thereafter. However, it is possible there may be objections and/or appeals related to the final approval, any attorneys’ fees or costs awarded, or any incentive award to the Class Representatives. It is always uncertain whether and how these appeals will be resolved and resolving them may take time, perhaps more than a year. This website will be updated with current Settlement information including if final approval is entered and the date on which cash payments will be made. Please be patient. AM I GIVING UP ANY LEGAL RIGHTS BY STAYING IN THE CLASS? Yes. Unless you exclude yourself from the class, you will agree to a “Release” of all of the claims described in Paragraphs 117-121 of the Settlement Agreement, which is available on this Settlement Website. This means that you will not be able to sue, continue to sue, or be part of any other lawsuit or arbitration against SCEA about the Released Claims, regardless of whether you submit a Claim Form for settlement benefits. It also means that the Court’s orders will apply to you and legally bind you. WHAT HAPPENS IF I DO NOTHING? If you do nothing and the Court finally approves this Settlement, you will be bound by the release of claims in this Settlement as described above even though you did not submit a Claim Form. You will not receive a cash payment. HOW DO I EXCLUDE MYSELF FROM THE SETTLEMENT? To exclude yourself from the Settlement, you must send a written statement, either by mail or email, to the Settlement Administrator saying that you want to be excluded from the lawsuit entitled In re Sony PS3 “Other OS” Litigation. Your request must include: Your name and address; 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 5 If applicable, the name and address of any person claiming to be legally entitled to submit an exclusion request on your behalf and the basis for such entitlement; Your Fat PS3 serial number, PlayStation Network Sign-In ID and/or your PlayStation Network Online ID; and A statement that you want to be excluded from the Class. You must personally sign your request for exclusion. A sample request for exclusion letter is available on this Settlement Website. You cannot exclude yourself by phone. Your exclusion request must be emailed or postmarked on or before [date]. Send your exclusion request to: [SETTLEMENT ADMINISTRATOR] Attn: In re Sony PS3 “Other OS” Litigation Class Action Exclusions [ADDRESS] [EMAIL ADDRESS] IF I DON’T EXCLUDE MYSELF, CAN I SUE FOR THE SAME THING LATER? No. Unless you exclude yourself, you give up the right to sue any of the Released Parties, including SCEA, about the issues raised in the Lawsuit. HOW DO I OBJECT TO THE SETTLEMENT? If you are a Class Member and don’t exclude yourself, you can object to any part of the Settlement, the Settlement as a whole, Class Counsel’s request for attorneys’ fees and expenses, and/or the request for service awards for each of the Class Representatives. Any objection must be made in writing and include the following information: The name of this case, which is In re Sony PS3 “Other OS” Litigation, U.S. District Court, N.D. Cal., Case No. C-10-1811 (YGR); Your full name, address, and telephone number; Your PS3 Serial Number, PlayStation Network Sign-In ID and/or your PlayStation Network Online ID; If applicable, the name and address of any person claiming to be legally entitled to object on your behalf and the basis of such legal entitlement; All grounds for your objection; Whether you are represented by counsel and, if so, the identity of such counsel; Your signature (an attorney’s signature is not sufficient). To be considered, your objection must be mailed to the Settlement Administrator at: [ADDRESS], 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 6 postmarked no later than [DATE]. If you don’t send a timely or complete objection, you will waive all objections to the Settlement and you won’t be allowed to object to the Settlement at the Fairness Hearing or otherwise. Even if you object to the Settlement, you will be eligible for cash payments as set forth above in Section 8 if you submit a valid claim, and you will still be bound by all terms of the proposed Settlement if it is finally approved by the Court. WHAT’S THE DIFFERENCE BETWEEN OBJECTING AND EXCLUDING? You object to the Settlement when you wish to remain a Class Member and be subject to the Settlement, but disagree with some aspect of the Settlement. An objection allows your views to be heard in Court. In contrast, excluding yourself from the proposed Settlement means that you are no longer part of the proposed Settlement and don’t want the Settlement to apply to you even if the Court finally approves it. Once excluded from the proposed Settlement, you lose any right to receive a cash payment from the Settlement or to object to any aspect of the Settlement because the case no longer affects you. WHAT HAPPENS IF I DO NOTHING AT ALL? If you do nothing and the Court grants final approval of the proposed Settlement, you will be included in the Settlement but you will not receive a cash payment. You will be bound by the release of claims in the Settlement Agreement and will be giving up your rights to be part of any other lawsuit or make any other claim against SCEA or other Released Parties about the issues raised in the Lawsuit (see Section 14). The Settlement Agreement, available on this Settlement Website, describes all of the claims you will release (give up). WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? The Court will hold the Fairness Hearing at 2:00 p.m. on May 29, 2018, at the United States District Court for the Northern District of California, Oakland Courthouse, Courtroom 1, 4th Floor, 1301 Clay Street, Oakland, CA 94612. The hearing may be moved to a different date or time without notice, so check for updates on this Settlement Website. At this hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate. The Court will also consider Class Counsel’s application for attorneys’ fees and expenses and for service awards for the Class Representatives. If there are objections, the Court will consider them at the hearing. After the hearing, the Court will decide whether to approve the Settlement. We don’t know how long the decision will take. DO I HAVE TO ATTEND THE HEARING? No, you don’t have to attend the Fairness Hearing. Class Counsel will answer any questions the Court may have. If you or your personal attorney would like to attend the Fairness Hearing, you are welcome to do so at your expense. If you send a written objection, you don’t have to come to Court to talk about it. As long as you submit your written objection by [date], to the proper address, and it complies with the requirements set forth in Section 18, above, the Court will consider it. MAY I SPEAK AT THE HEARING? 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 7 You may ask the Court for permission to speak at the Fairness Hearing. If you intend to speak at the Fairness Hearing, you may, but you are not required to, file with the Court and serve by First-Class mail on Class Counsel and SCEA’s Counsel, a Notice of Intention to Appear. Your Notice of Intention to Appear should be filed and served by [date]. In addition to sending it to the Court, please send your Notice of Intent to Appear to the following: CLASS COUNSEL James Pizzirusso Hausfeld LLP 1700 K St. NW. Ste. 650 Washington, D.C. 20006 (202) 540-7200 Fax: (202) 540-7201 Email: jpizzirusso@hausefeld.com Gordon M. Fauth Of Counsel Finkelstein Thompson LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Direct Tel: 510-238-9610 Tel: 415-398-8700 Fax: 415-398-8704 Email: gmf@classlitigation.com SCEA Luanne Sacks Michele Floyd Michael Scott Sacks, Ricketts & Case LLP 177 Post Street, Suite 650 San Francisco, CA 94108 Email: lsacks@srclaw.com mfloyd@srclaw.com mscott@srclaw.com Kathleen V. Fisher C alvo Fisher & Jacob LLP 555 Montgomery Street Suite 1155 San Francisco, CA 94111 415-374-8370 Fax: 415-374-8373 Email: kfisher@calvofisher.com DO I HAVE A LAWYER IN THE CASE? The Class Representatives and the Class are represented by the lawyers and law firms listed in Section 23, above, under the heading “Class Counsel.” The Court has appointed these lawyers to represent the Class in the Lawsuit and you will not be charged for their work on the case. If you want to be represented by your own lawyer, you may hire one at your own expense. HOW WILL THE LAWYERS BE PAID? Class Counsel have worked on this case since April 2010 to the present and have not been paid for their work to date. Class Counsel intend to ask the Court to approve payment of a maximum of one third of the settlement fund, or $1,250,000 in attorneys’ fees and expenses to be paid from the settlement fund. 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 8 Class Counsel will also ask the Court to award to each of the five (5) Class Representatives a service award not to exceed $3,500. This service award is to compensate the Class Representatives for their respective commitment and effort on behalf of the Class Members in the Lawsuit. Any service awards approved by the Court will be paid out of the settlement fund. Class Counsel’s application for attorneys’ fees, expenses, and service awards will be available on this Settlement Website once it is filed. HOW DO I GET MORE INFORMATION? This notice summarizes the proposed Settlement. You can find more details in the Settlement Agreement. You can get a copy of the Settlement Agreement, read other key case documents, and get more information on this Settlement Website. You can also call [TOLL-FREE NUMBER] for more information. DO NOT CONTACT THE COURT, SCEA, OR SCEA’S COUNSEL. 00081931.DOCX - 1 00086144.DOCX - 1 QUESTIONS? CALL 800-000-0000 TOLL FREE 9 EXHIBIT 5 1 2 3 4 5 6 7 8 9 Kathleen V. Fisher (SBN 70838) kfisher@calvofisher.com CALVO FISHER & JACOB LLP 555 Montgomery Street, Suite 1155 San Francisco, California 94111 Telephone: (415) 373-8370 Facsimile: (415) 374-8373 James Pizzirusso (pro hac vice) jpizzirusso@hausfeld.com HAUSFELD LLP 1700 K Street NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 10 11 12 13 14 15 16 Gordon M. Fauth, Jr. (SBN 190280) gfauth@finkelsteinthompson.com Of Counsel FINKELSTEIN THOMPSON LLP 100 Pine Street, Suite 1250 San Francisco, California 94111 Direct Telephone: (510) 238-9610 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 Interim Co-Lead Counsel for Plaintiffs and the Proposed Class 17 UNITED STATES DISTRICT COURT 18 19 20 21 22 23 24 NORTHERN DISTRICT OF CALIFORNIA In re SONY PS3 “OTHER OS” LITIGATION ) ) ) ) ) ) ) ) ) ) ) Case No.: 10-cv-01811-YGR [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS 25 26 27 28 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 This matter came before the Court on Plaintiffs’ Renewed Motion for Preliminary 2 Approval of Class Settlement and Certification of Settlement Class. The Parties have entered 3 into a Settlement Agreement executed September 1, 2017 (the “Settlement”) which has been 4 filed with the Court and which, if approved, would resolve the above-captioned class action 5 lawsuit (the “Action” or the “Class Action Lawsuit”). Upon review and consideration of the 6 motion papers and the Settlement and all exhibits thereto, including the proposed forms of notice 7 to the Class and the proposed Claim Form, the Court finds that there is sufficient basis for: (1) 8 granting preliminary approval of the Settlement; (2) provisionally certifying the Class for 9 settlement purposes only; (3) appointing Class Counsel and Plaintiffs to represent the Class; (4) 10 approving the Parties’ proposed notice program and forms of notice substantially similar to those 11 forms attached to the Settlement and directing that notice be disseminated to the Class pursuant 12 to the notice program provided in the Settlement; (5) approving the Parties’ proposed Claim 13 Form and approving the procedures set forth in the Settlement for Class Members to submit 14 claims, exclude themselves from the Class, and object to the Settlement; (6) appointing a 15 Settlement Administrator to conduct the duties assigned to that position in the Settlement; and 16 (7) setting a hearing (the “Fairness Hearing”) at which the Court will consider: (a) whether to 17 grant Final Approval of the Settlement; (b) Class Counsel’s Application for Attorneys’ Fees 18 and Costs; and (c) any Request for Service Awards for the Plaintiffs. 19 20 21 22 23 24 25 26 27 28 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: 1. Capitalized, bolded terms not otherwise defined herein shall have the same meaning as set forth in the Settlement Agreement, attached hereto as Exhibit A. 2. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and has personal jurisdiction over the Parties. Venue is proper in this District. 3. This Action is provisionally certified as a class action for the purposes of settlement only pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(e). The Class is defined as follows: [A]ny and all persons in the United States who purchased a Fat PS3 in the 1 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 2 3 4 United States between November 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. Excluded from the Class are: (a) any persons who are employees, directors, officers, and agents 5 of SCEA or its subsidiaries and affiliated companies; (b) any persons who timely and properly 6 exclude themselves from the Settlement; and (c) the Court, the Court’s immediate family, and 7 Court staff. 8 4. Certification of the Class shall be solely for settlement purposes and without 9 prejudice to the Parties in the event the Settlement is not finally approved by this Court or 10 otherwise does not take effect. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. In support of this Preliminary Approval Order, the Court conditionally and preliminarily finds that: (a) the Class Members are so numerous that joinder of all Class Members is impracticable; (b) there are questions of law and fact common to the Class Members, each of whom could have asserted the types of claims raised in the Action, and these questions predominate over any questions affecting individual Class Members; (c) the named Class Representatives’ claims are typical of the claims of the Class Members; (d) the named Class Representatives and Class Counsel identified below are able to adequately represent the Class Members; and (e) class-wide treatment of the disputes raised in the Action is superior to other available methods for adjudicating the controversy. 6. The Court preliminarily approves the proposed Settlement as fair, reasonable, and adequate, entered into in good faith, free of collusion, and within the range of possible judicial approval. 7. The Court appoints the following as Class Counsel: James J. Pizzirusso of Hausfeld LLP, Gordon M. Fauth of Finkelstein Thompson LLP, and Kathleen V. Fisher of Calvo Fisher & Jacob LLP. 8. The Court appoints Plaintiffs Anthony Ventura, Jason Baker, James Girardi, 2 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 2 3 4 Derek Alba, and Jonathan Huber as Class Representatives for the Class. 9. The Court directs the parties to select a Settlement Administrator to carry out all duties and responsibilities of the Settlement Administrator specified in the Settlement. 10. The Court approves the program for disseminating notice to the Class set forth in 5 the Settlement (the “Notice Program”). The Court approves the form and content of the 6 proposed forms of notice in the forms attached to the Settlement Agreement as Exhibits 4 and 6. 7 The Court finds that the proposed forms of notice are clear and readily understandable by Class 8 Members. The Court finds that the Notice Program, including the proposed forms of notice, 9 constitutes the best notice practicable under the circumstances, constitutes valid, due, and 10 sufficient notice to the Class in full compliance with the requirements of applicable law, including 11 Federal Rule of Civil Procedure 23 and the Due Process Clause of the United States Constitution, 12 and is the only notice to the Class of the Settlement that is required. 13 11. The Court approves the form and content of the proposed Claim Form, in the 14 form attached to the Settlement Agreement as Exhibit 1, and approves the procedures set forth in 15 the Settlement for Class Members to submit Claims. 16 12. The Parties acknowledge that SCEA has prepared an electronic database that is 17 reasonably calculated to include the email address(es) of all the Class Members known by SCEA 18 through its PlayStation Network Database as of the date of Preliminary Approval, for the 19 Settlement Administrator’s use in disseminating notice and processing Claims. Pursuant to the 20 terms of the Settlement, within fourteen (14) days of the Preliminary Approval Order, SCEA 21 shall update the content of the previously prepared database. 22 13. The “Notice Date” shall be forty-five (45) days following the entry of this Order. 23 14. By no later than the Notice Date, the Settlement Administrator shall send the 24 Short Form Notice, substantially in the form attached to the Settlement Agreement as Exhibit 6 25 and in the form approved by the Court, to Class Members via email for those Class Members 26 for whom an email address is available, along with a link to the Settlement Website. The subject 27 line for all emails covered by this paragraph shall be: “Important - Notice of New Class Action 28 3 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 2 Settlement Regarding PlayStation 3 ‘Other OS’ Function.” 15. The Settlement Administrator shall provide one follow-up round of e-mail notice 3 to those Class Members who have not submitted Claims and for whom the Settlement 4 Administrator did not receive a bounce-back in response to the first round of email notice. 5 6 7 16. By no later than the Notice Date, the Settlement Administrator shall post the Long Form Notice, in the form approved by the Court, on the Settlement Website. 17. As soon as practicable following the entry of the Preliminary Approval Order 8 and, in all events, by no later than the Notice Date, the Settlement Administrator shall cause the 9 Short Form Notice to be published in the online publications agreed upon by the Parties. 10 18. The Settlement Administrator shall use the Internet website, appearing at 11 www.otherossettlement.com (“Settlement Website”), where Class Members can obtain further 12 information about the terms of the Settlement, their rights, important dates and deadlines, and 13 related information. Class Members shall also be able to submit a Claim Form electronically 14 via the Settlement Website. The Settlement Website shall include, in PDF format, the Second 15 Amended Complaint (“SAC”), the Settlement Agreement, the Motion for Preliminary 16 Approval, the Preliminary Approval Order, the Class Notice, any papers filed in support of 17 Final Approval of the Settlement, Class Counsel’s Application for Attorneys’ Fees and Costs 18 (after it is filed), the Final Approval Order (after it is entered), and other case documents as 19 agreed upon by the Parties and/or required by the Court and shall be operational and live on the 20 date the Settlement Administrator begins emailing notice. The Settlement Website shall be 21 optimized for mobile display. The Settlement Administrator shall maintain the Settlement 22 Website as operational and shall not take it down until two hundred (200) days after the Effective 23 Date. Within five (5) business days after the Settlement Website is taken down, the Settlement 24 Administrator shall transfer ownership of the URL for the Settlement Website to SCEA. 25 26 27 28 19. The Settlement Administrator shall establish and maintain a toll-free telephone number (“Toll-Free Number”) where Class Members can call to request a copy of the Settlement Agreement, a Claim Form, or any other information concerning the Settlement or 4 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 2 the Settlement Agreement. 20. By no later than fifteen (15) days after the Objection/Exclusion Date, the 3 Settlement Administrator shall provide to the Parties proof of the extent and effectiveness of 4 Class Notice. 5 21. Class Members who wish to submit a Claim shall have the option of submitting 6 Claim Forms online via the Settlement Website or by mail. Claim Forms submitted online 7 must be submitted by no later than the Claims Deadline (ninety (90) days following the Notice 8 Date). Claim Forms submitted by mail must be postmarked no later than the Claims Deadline. 9 22. By no later than ten (10) days after the Claims Deadline, the Settlement 10 Administrator, using the information submitted by Class Members, shall create and provide to 11 Class Counsel and SCEA’s Counsel a complete and final list of Valid Claimants that includes 12 each member’s name and PlayStation Network Sign-In ID, PlayStation Network Online ID and/or 13 serial number as provided. 14 23. Any Class Member who wishes to be excluded from the Class must email or mail 15 a written request for exclusion to the Settlement Administrator at the email address or mailing 16 address provided in the Class Notice, postmarked no later than the Opt-out Deadline (ninety (90) 17 days following the Notice Date), and: (a) must contain the name and address of the person to be 18 excluded; (b) if applicable, must contain the name and address of any person claiming to be 19 legally entitled to submit an exclusion request on behalf of the Class Member and the basis for 20 such legal entitlement; (c) must be mailed by First Class U.S. Mail, proper postage prepaid, to the 21 Settlement Administrator at the specified mailing address; (d) must be submitted or postmarked 22 on or before the Opt-out Deadline; (e) should include the serial number of the Fat PS3 that he or 23 she purchased, the PlayStation Network Sign-In ID used for that console before April 1, 2010 or 24 the PlayStation Network Online ID used for that console before April 1, 2010; and (f) must be 25 personally signed and clearly indicate that he/she wants to be excluded from the Class. So-called 26 “mass” or “class” opt-outs shall not be allowed. 27 28 24. If the Settlement is finally approved and becomes effective, any Class Member 5 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 who does not send a timely and valid request for exclusion shall be a Settlement Class Member 2 and shall be bound by all subsequent proceedings, orders, and judgments in the Action, including, 3 but not limited to, the Release, even if he or she has litigation pending or subsequently initiates 4 litigation against SCEA relating to the claims and transactions released in the Action. 5 25. Any Class Member or person legally entitled to act on his or her behalf may 6 object to the fairness, reasonableness, or adequacy of the Settlement, to Class Counsel’s Request 7 for Attorneys’ Fees and Costs (“Fee Application”), and/or the Request for Service Awards for 8 the Plaintiffs. To be valid, any objection must be made in writing, must be mailed to the 9 Settlement Administrator at the address provided in the Class Notice, postmarked no later than 10 the Objection Deadline (ninety (90) days following the Notice Date), and must include the 11 following: (a) the name of the Action (In re Sony PS3 “Other OS” Litigation, No. 10-CV-01811- 12 YGR); (b) the objector’s full name, address, and telephone number; (c) if applicable, the name 13 and address of any person claiming to be legally entitled to object on behalf of a Class Member 14 and the basis of such legal entitlement; (d) all grounds for the objection; (e) the serial number of 15 the Fat PS3 that he or she purchased, the PlayStation Network Sign-In ID used for that console 16 before April 1, 2010 or the PlayStation Network Online ID used for that console before April 1, 17 2010; (f) whether the objector is represented by counsel and, if so, the identity of such counsel, 18 and all previous objections filed by the objector and their counsel within the last two years; and 19 (g) the objector’s signature. 20 26. Any Class Member who submits a timely and valid written objection may appear 21 at the Fairness Hearing, either in person or through personal counsel hired at the Class 22 Member’s own personal expense. Any Class Member who does not submit a timely and valid 23 objection shall be deemed to have waived all objections and shall forever be foreclosed from 24 making any objection to the fairness, adequacy, or reasonableness of the Settlement and any 25 Final Approval Order and Final Judgment entered approving it, Class Counsel’s Fee 26 27 28 Application, or any Request for Service Awards for the Plaintiffs. 27. No later than two (2) days after the Objection Deadline, the Settlement 6 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 Administrator shall provide to Class Counsel and SCEA’s Counsel all objections submitted by 2 Class Members, including any related correspondence. 3 28. The Settlement Administrator shall no later than ten (10) days after the Opt-Out 4 or Exclusion Deadline provide to Class Counsel and SCEA’s Counsel a complete and final list 5 of Class Members who submitted requests to exclude themselves from the Class, including any 6 related correspondence. 7 29. All costs associated with the administration of the Settlement, distribution of Class 8 Notice, and any other tasks assigned to the Settlement Administrator by the Settlement, by this 9 Preliminary Approval Order, by SCEA and the Class Counsel’s mutual agreement in writing, 10 11 or by this Court shall be paid from the Settlement Funds. 30. The Court directs that the Fairness Hearing be scheduled for May 29, 2018, at 12 2:00 p.m. to assist the Court in determining whether the Settlement should be finally approved 13 as fair, reasonable, and adequate to the Settlement Class Members; whether Final Judgment 14 should be entered dismissing the Action with prejudice; whether Class Counsel’s Fee 15 Application should be approved; and whether any Request for Service Awards for the Plaintiffs 16 should be approved. 17 31. The Parties shall file any motions in support of Final Approval of the Settlement 18 by no later than April 24, 2018. Class Counsel shall file their Fee Application and any Request 19 for Service Awards for the Plaintiffs by no later than March 1, 2018. After it is filed, Class 20 Counsel’s Fee Application and Request for Service Awards for the Plaintiffs shall be posted on 21 the Settlement Website. 22 23 24 25 26 27 28 32. The Parties shall file any responses to any Class Member objections by no later than April 24, 2018. 33. The Court reserves the right to modify the date of the Fairness Hearing and related deadlines set forth herein. In the event the Fairness Hearing is moved, the new date and time shall be promptly posted on the Settlement Website by the Settlement Administrator. 34. This Order shall become null and void and shall be without prejudice to the rights 7 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 of the Parties, all of whom shall be restored to their respective positions as they existed 2 immediately before the Court entered this Order, if: (a) the Settlement is not finally approved by 3 the Court, or does not become final, pursuant to the terms of the Settlement; (b) the Settlement 4 is terminated in accordance with the Settlement; or (c) the Settlement does not become effective 5 pursuant to the terms of the Settlement for any other reason. 6 35. If the Settlement does not become final and effective pursuant to the terms of the 7 Settlement, the Class Representatives, the Class Members, and SCEA shall be returned to their 8 respective statuses as of the date immediately prior to the execution of the Settlement 9 Agreement, and this Preliminary Approval Order shall have no force or effect, and neither this 10 Preliminary Approval Order nor the Settlement shall be construed or used as an admission, 11 concession, or declaration by or against SCEA of any fault, wrongdoing, breach, or liability, or 12 be construed or used as an admission, concession, or declaration by or against any of the 13 Plaintiffs or Class Members that their claims lack merit or that the relief requested is 14 inappropriate, improper, or unavailable, or as a waiver by any party of any defenses or claims he, 15 she, or it may have in this Action or in any other lawsuit, and it shall not be admissible in 16 evidence, or usable for any purpose whatsoever in the Action, any proceeding between the 17 Parties, or in any action related to the Released Claims or otherwise involving the Parties, Class 18 Members, or any Released Party. 19 36. Pending the final determination of whether the Settlement should be approved, all 20 proceedings in this Action, except as may be necessary to implement the Settlement or comply 21 with the terms of the Settlement, are hereby stayed. 22 37. Pending the final determination of whether the Settlement should be approved, 23 Plaintiffs and each Class Member, and any person purportedly acting on behalf of any Class 24 Member(s), are hereby enjoined from commencing, pursuing, maintaining, enforcing, or 25 prosecuting, either directly or indirectly, any Released Claims in any judicial, administrative, 26 27 28 arbitral or other forum, against any of the Released Parties, provided that this injunction shall not apply to the claims of any Class Members who have timely and validly requested to be excluded 8 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR 1 from the Class. Such injunction shall remain in force until Final Settlement Date or until such 2 time as the Parties notify the Court that the Settlement has been terminated. This injunction is 3 necessary to protect and effectuate the Settlement, this Preliminary Approval Order, and this 4 Court’s authority regarding the Settlement, and is ordered in aid of this Court’s jurisdiction and 5 to protect its judgments. 6 7 38. Class Counsel, SCEA, and the Settlement Administrator are directed to carry out their obligations under the Settlement and this Preliminary Approval Order. 8 IT IS SO ORDERED. 9 10 11 12 Dated: By: HON. YVONNE GONZALEZ ROGERS District Judge U.S. District Court, Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 [PROPOSED] ORDER GRANTING RENEWED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; CASE NO. 10-CV-01811-YGR EXHIBIT 6 EXHIBIT 7 LIST OF FAT PS3 MODEL NUMBERS CECHA01 CECHB01 CECHE01 CECHE01MG CECHE11 CECHG01 CECHG11 CECHH01 CECHH01MG CECHH11 CECHK01 CECHK11 CECHL01 CECHL11 CECHP01 EXHIBIT 8 GENERAL RELEASE OF ALL CLAIMS BY PLAINTIFF JONATHAN HUBER 1. In consideration of the benefits provided for in the Class Action Settlement Agreement (“SETTLEMENT AGREEMENT”), Jonathan Huber (“Huber”), on his own behalf and on behalf of his heirs, assigns, executors, administrators, predecessors, and successors, hereby completely releases and forever discharges Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC (“SCEA”), and its current and former parents, subsidiaries, divisions, and current and former affiliated individuals and entities, successors, predecessors (including companies they have acquired, purchased, or absorbed), assigns, joint venturers, distributors, retailers, developers and/or licensees and each and all of their respective officers, partners, directors, servants, agents, shareholders, investors, members, managers, principals, investment advisors, consultants, employees, representatives, attorneys, accountants, lenders, underwriters, and insurers (“RELEASED PARTIES”), from any and all injuries, demands, losses, damages, costs, loss of service, expenses, compensations, claims, suits, causes of action, attorneys’ fees, obligations, or liabilities of any nature, type, or description, whether known or unknown, suspected or unsuspected, contingent or non-contingent, whether based on federal, state, or local law, statute, ordinance, code, contract, common law, or any other source which Huber has, may now have, or has ever had against any of the RELEASED PARTIES, or any of them arising from or in any way connected with Huber’s purchase of a Fat PS3 and/or any other relationship with SCEA, as of the date of Huber’s execution of this General Release including, but not limited to claims that were or could have been asserted in or arising from or that may have arisen from the same facts alleged in either In re Sony PS3 “Other OS” Litigation, Case No. 4:10-cv-01811 YGR, currently pending in the District Court for the Northern District of California (the “ACTION”) and/or Huber v. Sony Computer Entertainment America LLC, Northern District of California, Case No. 10-cv-2213 (May 21, 2010). This General Release covers all statutory, common law, constitutional, and other claims, including but not limited to: (a) (b) (c) (d) (e) Any and all claims concerning the advertising of SCEA’s Other OS functionality; Any and all claims that arise out of, refer to or in any way relate to the disabling of the Other OS functionality in the Fat PS3; Any and all claims under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”), or any other applicable law or statute related to SCEA’s advertising of the Other OS functionality; Any and all claims that SCEA’s advertising or representations regarding SCEA’s Other OS functionality constituted a fraudulent, unlawful, unfair, or deceptive business practice, were unconscionable, violated consumer protection statutes, and/or constituted a breach of contract and/or breach of the covenant of good faith and fair dealing or unjust enrichment; and/or Any and all claims concerning any fact or circumstance that relates to SCEA’s advertising or representations regarding its Other OS functionality (collectively, the “RELEASED CLAIMS”). This General Release described herein covers, includes, and is intended to include all remedies that could be sought for the RELEASED CLAIMS including, but not limited to, statutory, constitutional, contractual, and common law claims for injunctive relief, declaratory relief, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, disgorgement, or equitable relief against SCEA. 2. Waiver of Unknown Claims. Huber has read Section 1542 of the Civil Code of the State of California, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Huber hereby voluntarily waives the rights described in Section 1542 and elects to assume all risks for claims that now exist in his favor, whether known or unknown, against the RELEASED PARTIES. Accordingly, this General Release includes within its effect claims and causes of action which Huber does not know or suspect to exist in his favor at the time of his execution hereof and if the facts and circumstances relating in any manner to the RELEASED CLAIMS are hereafter found to be other than or different from the facts now believed to be true, this General Release shall remain effective. 3. Huber warrants and represents that he is the sole and lawful owner of all rights, title, and interest in and to all of the claims described above and that he has not heretofore voluntarily, by operation of law or otherwise, sold, assigned, or transferred or purported to sell, assign, or transfer to any other person or entity such claims or any part or portion thereof. 4. The Settlement Administrator of the Stipulation of Class Action Settlement and Release, executed in the ACTION, shall issue Huber a Form 1099 reflecting the payment of any settlement benefits described in the SETTLEMENT AGREEMENT. 5. Huber agrees that he alone is responsible for the tax consequences, including any penalties or interest, relating to the payment of any settlement benefits. 6. Huber and the RELEASED PARTIES expressly agree that any and all force and effectiveness of this General Release is entirely contingent upon final approval of the SETTLEMENT executed in the ACTION. If the SETTLEMENT does not become final for any reason, then this General Release shall be null and void ab initio. Neither an appeal of, a modification of nor a reversal on appeal of a FEE AND EXPENSE AWARD or a SERVICE AWARD described in the SETTLEMENT AGREEMENT shall constitute grounds for cancellation or termination of this General Release, however. Dated: August 24, 2017 Jonathan Huber Exhibit 8 GENERAL RELEASE OF ALL CLAIMS BY PLAINTIFF ANTHONY VENTURA 1. In consideration of the benefits provided for in the Class Action Settlement Agreement (“SETTLEMENT AGREEMENT”), Anthony Ventura (“Ventura”), on his own behalf and on behalf of his heirs, assigns, executors, administrators, predecessors, and successors, hereby completely releases and forever discharges Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC (“SCEA”), and its current and former parents, subsidiaries, divisions, and current and former affiliated individuals and entities, successors, predecessors (including companies they have acquired, purchased, or absorbed), assigns, joint venturers, distributors, retailers, developers and/or licensees and each and all of their respective officers, partners, directors, servants, agents, shareholders, investors, members, managers, principals, investment advisors, consultants, employees, representatives, attorneys, accountants, lenders, underwriters, and insurers (“RELEASED PARTIES”), from any and all injuries, demands, losses, damages, costs, loss of service, expenses, compensations, claims, suits, causes of action, attorneys’ fees, obligations, or liabilities of any nature, type, or description, whether known or unknown, suspected or unsuspected, contingent or non-contingent, whether based on federal, state, or local law, statute, ordinance, code, contract, common law, or any other source which Ventura has, may now have, or has ever had against any of the RELEASED PARTIES, or any of them arising from or in any way connected with Ventura’s purchase of a Fat PS3 and/or any other relationship with SCEA, as of the date of Ventura’s execution of this General Release including, but not limited to claims that were or could have been asserted in or arising from or that may have arisen from the same facts alleged in either In re Sony PS3 “Other OS” Litigation, Case No. 4:10-cv-01811 YGR, currently pending in the District Court for the Northern District of California (the “ACTION”) and/or Anthony Ventura v. Sony Computer Entertainment America Inc., United States District Court, Northern District of California, Case No. CV 10 1811 EMC. This General Release covers all statutory, common law, constitutional, and other claims, including but not limited to: (a) (b) (c) (d) (e) Any and all claims concerning the advertising of SCEA’s Other OS functionality; Any and all claims that arise out of, refer to or in any way relate to the disabling of the Other OS functionality in the Fat PS3; Any and all claims under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”), or any other applicable law or statute related to SCEA’s advertising of the Other OS functionality; Any and all claims that SCEA’s advertising or representations regarding SCEA’s Other OS functionality constituted a fraudulent, unlawful, unfair, or deceptive business practice, were unconscionable, violated consumer protection statutes, and/or constituted a breach of contract and/or breach of the covenant of good faith and fair dealing or unjust enrichment; and/or Any and all claims concerning any fact or circumstance that relates to SCEA’s advertising or representations regarding its Other OS functionality (collectively, the “RELEASED CLAIMS”). This General Release described herein covers, includes, and is intended to include all remedies that could be sought for the RELEASED CLAIMS including, but not limited to, statutory, constitutional, contractual, and common law claims for injunctive relief, declaratory relief, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, disgorgement, or equitable relief against SCEA. GENERAL RELEASE OF ALL CLAIMS BY PLAINTIFF JASON BAKER 1. In consideration of the benefits provided for in the Class Action Settlement Agreement (“SETTLEMENT AGREEMENT”), Jason Baker (“Baker”), on his own behalf and on behalf of his heirs, assigns, executors, administrators, predecessors, and successors, hereby completely releases and forever discharges Sony Computer Entertainment America LLC, currently known as Sony Interactive Entertainment America LLC (“SCEA”), and its current and former parents, subsidiaries, divisions, and current and former affiliated individuals and entities, successors, predecessors (including companies they have acquired, purchased, or absorbed), assigns, joint venturers, distributors, retailers, developers and/or licensees and each and all of their respective officers, partners, directors, servants, agents, shareholders, investors, members, managers, principals, investment advisors, consultants, employees, representatives, attorneys, accountants, lenders, underwriters, and insurers (“RELEASED PARTIES”), from any and all injuries, demands, losses, damages, costs, loss of service, expenses, compensations, claims, suits, causes of action, attorneys’ fees, obligations, or liabilities of any nature, type, or description, whether known or unknown, suspected or unsuspected, contingent or non-contingent, whether based on federal, state, or local law, statute, ordinance, code, contract, common law, or any other source which Baker has, may now have, or has ever had against any of the RELEASED PARTIES, or any of them arising from or in any way connected with Baker’s purchase of a Fat PS3 and/or any other relationship with SCEA, as of the date of Baker’s execution of this General Release including, but not limited to claims that were or could have been asserted in or arising from or that may have arisen from the same facts alleged in either In re Sony PS3 “Other OS” Litigation, Case No. 4:10-cv-01811 YGR, currently pending in the District Court for the Northern District of California (the “ACTION”) and/or Baker, et al. v. Sony Computer Entertainment America LLC, Northern District of California, Case No. 10-cv-1697 (April 30, 2010). This General Release covers all statutory, common law, constitutional, and other claims, including but not limited to: (a) (b) (c) (d) (e) Any and all claims concerning the advertising of SCEA’s Other OS functionality; Any and all claims that arise out of, refer to or in any way relate to the disabling of the Other OS functionality in the Fat PS3; Any and all claims under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”), or any other applicable law or statute related to SCEA’s advertising of the Other OS functionality; Any and all claims that SCEA’s advertising or representations regarding SCEA’s Other OS functionality constituted a fraudulent, unlawful, unfair, or deceptive business practice, were unconscionable, violated consumer protection statutes, and/or constituted a breach of contract and/or breach of the covenant of good faith and fair dealing or unjust enrichment; and/or Any and all claims concerning any fact or circumstance that relates to SCEA’s advertising or representations regarding its Other OS functionality (collectively, the “RELEASED CLAIMS”). This General Release described herein covers, includes, and is intended to include all remedies that could be sought for the RELEASED CLAIMS including, but not limited to, statutory, constitutional, contractual, and common law claims for injunctive relief, declaratory relief, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, disgorgement, or equitable relief against SCEA. 2. Waiver of Unknown Claims. Baker has read Section 1542 of the Civil Code of the