Exhibit 1
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SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is made and entered into by and between: (1)
John B. Kim and Dan C. Schutzman (collectively, “Named Plaintiffs”), on the one hand; and (2)
Space Pencil Inc., d/b/a KISSmetrics (“KISSmetrics” or “Defendant”), on the other hand.
Named Plaintiffs and Defendant are collectively referred to herein as the “Parties.”
I. RECITALS
WHEREAS, on or about August 1, 2011, Named Plaintiffs filed a class action complaint
for injunctive relief and damages against Defendant and various website operators (“Website
Defendants”) that had used KISSmetrics services, and which complaint was filed on behalf of all
persons in the United States who visited a Website Defendant’s website, alleging that
KISSmetrics and Website Defendants used Covered Technologies (as defined herein) and
Plaintiffs’ and Class Members’ computer resources to assign identifiers to Plaintiffs and Class
Members and retrieve information about their activities on Website Defendants’ websites. The
action was filed in the United States District Court for the Northern District of California,
thereby commencing the civil action entitled Kim, et al v. Space Pencil, Inc., et al, No. 11-cv-
03796-LB (the “Action”). Named Plaintiffs brought claims against KISSmetrics and Website
Defendants for alleged violations of the Electronic Communications Privacy Act, 18 U.S.C. §
2510 et seq.; the California Computer Crime Law, California Penal Code § 502; and California
Business & Professions Code § 17200, et seq. (“Unfair Competition Law”); and a claim for
Trespass to Personal Property/Chattel. Named Plaintiffs filed their First Amended Complaint on
September 7, 2011, asserting claims for Trespass to Personal Property/Chattel, and alleging
violations of the California Computer Crime Law, Unfair Competition Law, and the Computer
Fraud and Abuse Act, 18 U.S.C. § 1030. Named Plaintiffs filed their Second Amended
Complaint on April 2, 2012, asserting the same four claims as in the First Amended Complaint,
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as well as a right to privacy claim under the California Constitution, Article I, § 1, and for
negligence.
WHEREAS, on May 18, 2012, Named Plaintiffs voluntarily dismissed all Website
Defendants, leaving KISSmetrics as the only defendant remaining in the Action.
WHEREAS, KISSmetrics denies all liability with respect to the claims alleged in the
complaints filed by the Named Plaintiffs, and all litigation arising out of or relating to the same
or similar claims.
WHEREAS, Named Plaintiffs believe that their claims have merit and that class
certification of all claims asserted in their Second Amended Complaint referenced above is
appropriate.
WHEREAS, before and during the litigation of the Action and during negotiation of the
Settlement provided for in this Agreement, Settlement Class Counsel conducted a thorough
examination and evaluation of the relevant law and facts (including engaging in substantial
investigation and informal discovery) to assess the merits of the claims to be resolved in this
Settlement and how best to serve the interests of the putative class in the Action. Settlement
Class Counsel and Named Plaintiffs concluded that the proposed Settlement set forth in this
Agreement is fair, adequate, reasonable, and in the best interest of the Settlement Class after
considering the benefits to be obtained under the proposed Settlement, the risks associated with
the continued prosecution of this complex and time-consuming lawsuit, and the likelihood of the
success on the merits of the Action.
WHEREAS, the Parties mediated the claims with Ret. California Supreme Court Justice
Edward A. Panelli on December 19, 2011, and again on February 15, 2012. A settlement was
not concluded at these in-person mediations, but the substantive terms of the Settlement are
substantially the same as those negotiated at the mediation sessions. In the following months,
the parties continued discussing a possible settlement and participated in additional telephonic
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conferences with the focus of those discussions on insurance coverage-related matters. On
August 9, 2012, the Parties reached an agreement to settle all of the claims.
WHEREAS, the Parties, through their respective counsel, wish to enter into a
compromise and effect a Settlement to facilitate execution of the proposed relief, to avoid the
uncertainty and expense of litigation, and to achieve a fair, reasonable, and adequate resolution
of the pending litigation.
WHEREAS, the Parties agree that KISSmetrics is alleged to have acted or refused to act
in a manner that applies generally to the Settlement Class (as defined herein) and the relief
provided for in this Agreement applies generally to that Settlement Class.
NOW THEREFORE, in consideration of the terms, conditions and covenants herein, the
undersigned agree as follows:
II. DEFINITIONS In addition to any definitions set forth above or elsewhere in this Agreement, the
following terms, as used in the Agreement, shall have the meaning set forth below:
1. “Approval” means the order or orders of the Court approving the terms and
conditions of this Agreement.
2. “Approval Hearing” means the hearing in which the Court will determine
whether this Settlement and Agreement should be approved as fair, reasonable, and adequate;
whether the proposed Approval Order and judgment should be entered; and whether Settlement
Class Counsel’s application for attorneys’ fees, costs, and Named Plaintiffs’ Incentive Awards
should be approved.
3. “Approval Order” means the order and judgment of the Court approving the
Settlement in a manner substantially consistent with the terms and intent of this Agreement and
dismissing all claims in the Action with prejudice.
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4. “Attorney Fee/Litigation Cost Award” means the award, if any, made to
Settlement Class Counsel by the Court upon application pursuant to Section V.
5. “Class Period” means March 4, 2011 through the Settlement Date, inclusive.
6. “Court” means the United States District Court for the Northern District of
California.
7. “Covered Technologies” means browser cache, document object model (DOM)
local storage (or HTML5 web storage), Adobe Flash Local Shared Objects (LSOs), or eTags.
8. “Effective Date” means the last date on which all of the following have occurred:
a. The Court has issued all necessary orders approving the Settlement in a
manner substantially consistent with the terms and intent of this Agreement
(“Final Approval Order”);
b. The Court enters a judgment: (i) dismissing all claims in the Action with
prejudice, and (ii) approving settlement of the Action in a manner
substantially consistent with the terms and intent of this Agreement
(“Judgment”); and
c. Either: (i) Thirty (30) days have passed after entry of the judgment or order
approving settlement of the Action in a manner substantially consistent with
the terms and intent of this Agreement and no appeal is taken after the Court’s
judgment and no motion or other pleading has been filed with any Court to set
aside or in any way alter the judgment or orders of the Court finally approving
of the Settlement or toll the time for appeal of such orders; or (ii) all appeals,
reconsideration, rehearing, or other forms of review and potential review of
the Court’s orders and judgment approving the settlement of the Action are
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exhausted, and the Court’s orders and judgment are upheld, without
substantial alteration of the terms of this Agreement. “Released Claims”
means any and all actual or potential claims, actions, causes of action,
liabilities, damages (whether actual, nominal, punitive, exemplary, or
otherwise), injunctive relief, costs, fees, attorneys’ fees, or penalties of any
kind that: (i) arise in whole or in part out of, or relate to, KISSsmetrics’
technology, including but not limited to KISSmetrics’ technologies and
services; or (ii) are, have been, or could have been asserted in the Action.
9. “Released Parties” means Space Pencil Inc., d/b/a KISSmetrics, and all of
KISSmetrics’ current or former customers (including but not limited to all Website Defendants
named in the original Complaint filed in this Action but specifically excluding Hulu) and all of
their corporate parents, affiliates, subsidiaries, predecessors, successors, and assigns, as well as
the officers, directors, attorneys, insurers, vendors, agents (alleged or actual), representatives,
and employees of any such companies or divisions.
10. “Releasing Parties” means the Named Plaintiffs, and all those who claim through
them or who assert Released Claims (or could assert Released Claims) on their behalf, including
their respective heirs, executors, administrators, successors, representatives, attorneys, agents,
partners, assigns, co-obligors, co-guarantors, guarantors, sureties, and bankruptcy trustees on
behalf of their estates or creditors.
11. “Settlement” means the proposed settlement of the Action under the terms and
conditions of this Agreement or as finally approved by the Court Settlement in a manner
substantially consistent with the terms and intent of this Agreement.
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12. “Settlement Class” means all individuals and entities in the United States who
visited a website that used KISSmetrics technologies and/or services and were assigned
identifiers that were created, recognized or retrieved using the Covered Technologies. Excluded
from membership in the Settlement Class are the following: (a) Defendant, the Released Parties,
and their employees, their employees’ immediate family members, and agents; and (b) any judge
to whom the Action is assigned and the judge’s immediate family members.
13. “Settlement Class Counsel” means:
KAMBERLAW, LLC Scott A. Kamber [email protected] David A. Stampley [email protected] 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 202-6364 PARISI & HAVENS LLP David C. Parisi [email protected] Suzanne Havens Beckman [email protected] 15233 Valleyheart Drive Sherman Oaks, California 91403 Telephone: (818) 990-1299 Facsimile: (818) 501-7852 STRANGE & CARPENTER Brian R. Strange [email protected] 12100 Wilshire Blvd., Suite 1900 Los Angeles, California 90025 Telephone: (310) 207-5055 Facsimile: (310) 826-3210
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14. “Settlement Class Member” means a member of the Settlement Class.
15. “Settlement Date” means August 25, 2012.
III. INJUNCTIVE RELIEF
KISSmetrics represents that it does not now use, and agrees that it will not in the future
use the Covered Technologies to “respawn” or repopulate HTTP cookies or as an alternative
method to HTTP cookies for acquiring or storing information about a user’s web browsing
activity and history, without reasonable notice and choice. Notwithstanding the foregoing,
KISSmetrics shall not be restricted from using the Covered Technologies for any purpose and in
any manner that is generally accepted in the online services industry and in compliance with
standards set forth by applicable industry organizations, provided that, in no event, shall Covered
Technologies be used for the purpose of circumventing user privacy and security controls and
settings.
IV. SETTLEMENT PURSUANT TO FED. R. CIV. P. 23(b)(2)
1. The Parties agree to seek Approval for this Agreement pursuant to Federal Rule
of Civil Procedure 23(b)(2) by application to the Court.
2. The Parties agree that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
3. The Parties further agree, and will submit papers to Court supporting the
conclusion, that notice is not required by the Federal Rules of Civil Procedure in this Rule
23(b)(2) Settlement. This Settlement neither binds nor releases claims for any unrepresented
Settlement Class Members and therefore no notice is required under Rule 23(e) or Rule 23(b)(2).
Therefore, the Parties will propose to the Court that no notice be provided to the Settlement
Class and that Approval may be completed in a single Approval Hearing before the Court.
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4. No release is being provided by any Settlement Class Member except the Named
Plaintiffs who are each signatories of this agreement and who will release and forever discharge
the Released Parties from any and all Released Claims.
5. Named Plaintiffs, acknowledge and agree that they have read and understand the
contents of Section 1542 of the Civil Code of the State of California, and, to the fullest extent
permitted by law, Named Plaintiffs expressly, knowingly, intentionally, and irrevocably waive
any and all rights and benefits that they may have under Section 1542 or any other similar state
or federal statute, or common law or other legal principle. Section 1542 reads as follows:
6. Section 1542. (General Release - Claims Extinguished) 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.
7. The Settlement and all of the commitments and obligations it imposes on the
Parties are contingent on the Approval of the Settlement by the Court in substantially the same
form as proposed, including the notice provision set forth above. Such Approval shall include
the dismissal with prejudice of the Action against the Released Parties. If the Court does not
approve the Settlement, or if a decision of a reviewing court overturning Court Approval of the
Settlement becomes final, then this Settlement Agreement shall be void ab initio, shall have no
force and effect, and shall impose no obligations on the Parties, except that the Settlement and all
settlement discussions between the Parties will remain inadmissible, undiscoverable, and strictly
confidential to the maximum extent permitted by law.
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8. The commitments made by the Parties hereunder are, upon Approval by the Court
and exhaustion of any appeals, enforceable by a Court as a matter of contract. Upon Approval of
the proposed Settlement, the commitments made by KISSmetrics in Section III, above, shall be
deemed be reduced to an injunction, enforceable by the Court or the Named Plaintiffs. The
Court will retain jurisdiction for purposes of enforcement of this Settlement Agreement and all
other Settlement provisions, including Injunctive Relief, approved by the Court.
V. NAMED PLAINTIFFS’ AWARDS
1. Settlement Class Counsel shall petition the Court for, and Defendant shall not
oppose, undermine, or solicit others to oppose or undermine, an Incentive Award to Named
Plaintiffs in an amount of $2,500 to each of the Named Plaintiffs in the Action, in exchange for
the release being provided and in recognition of their efforts on behalf of the Proposed Class.
The Court’s award of any Named Plaintiffs’ Incentive Awards shall be separate from its
determination of whether to approve the Settlement. In the event the Court approves the
Settlement, but declines to award Named Plaintiffs’ Incentive Awards in the amount requested
by Settlement Class Counsel and agreed by the Parties, the Settlement will nevertheless be
binding on the Parties.
2. To the extent awarded by the Court, Defendant shall pay the Named Plaintiffs’
Incentive Awards to the Named Plaintiffs and shall do so within fourteen (14) days of the
Effective Date.
3. Payment by Defendant of the Named Plaintiffs’ Incentive Awards is separate
from, and in addition to, the other relief afforded in this Agreement.
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VI. PAYMENT OF ATTORNEYS’ FEES AND COSTS 1. Subject to entry of the Approval Order and Judgment of the Court, Defendant will
not oppose, undermine, or solicit others to oppose or undermine an Attorney Fee/Litigation Cost
Award in the amount of $510,000.00. Settlement Class Counsel agrees not to seek, and
Defendant shall not be obligated to pay, Settlement Class Counsel’s fees and expenses in excess
of this amount.
2. The payment by Defendant of any of Settlement Class Counsel’s fees and
expenses is separate from and in addition to the other relief afforded in this Agreement. The
Court’s award of any of Settlement Class Counsel’s fees and expenses shall be separate from its
determination of whether to approve the Settlement. In the event the Court approves the
Settlement, but declines to award Settlement Class Counsel’s fees and expenses in the amount
requested by Settlement Class Counsel, the Settlement will nevertheless be binding on the
Parties.
3. Settlement Class Counsel shall be entitled to payment of the fees and expenses
awarded by the Court, excluding the contribution by Kissmetrics set forth below, within
fourteeen (14) days of the Court’s entry of the Final Approval Order and Judgment and Attorney
Fee/Litigation Cost Award, notwithstanding any appeal, subject to adequate security for the
repayment of fees and expenses by Settlement Class Counsel should the Final Approval Order
and Judgment be reversed or materially modified or the Attorney Fee/Litigation Cost Award
reversed or reduced on appeal. Such payment shall be made by wire to an account of
KamberLaw, LLP that shall be designated within 5 days of the Effective Date Within fourteen
(14) days of the execution of this Agreement, KISSmetrics shall deposit the entire amount of its
contribution to the payment into escrow with Gibson Dunn & Crutcher LLP (“Gibson Dunn”) as
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the escrow holder. Gibson Dunn will release the escrowed contribution to KamberLaw, LLP
within 5 days of the Effective Date.
4. The Court shall retain jurisdiction of any dispute regarding any Attorney
Fee/Litigation Cost Award.
VII. NO ADMISSION OF LIABILITY 1. The Parties understand and acknowledge that this Agreement constitutes a
compromise and settlement of disputed claims. No action taken by the Parties, either previously
or in connection with the negotiations or proceedings connected with this Agreement, shall be
deemed or construed to be an admission of the truth or falsity of any claims or defenses
heretofore made or an acknowledgment or admission by any party of any fault, liability or
wrongdoing of any kind whatsoever to any other party.
2. Neither the Agreement nor any act performed or document executed pursuant to
or in furtherance of the Agreement or the Settlement: (a) is or may be deemed to be or may be
used as an admission of, or evidence of, the validity of any claim made by the Settlement Class
Members or Settlement Class Counsel, or of any wrongdoing or liability of the persons or
entities released under this Agreement, or (b) is or may be deemed to be or may be used as an
admission of, or evidence of, any fault or omission of any of the persons or entities released
under this Agreement, in any proceeding in any court, administrative agency, or other tribunal.
3. This Agreement is a settlement document and shall be inadmissible in evidence in
any proceeding, except an action or proceeding to approve, interpret, or enforce this Agreement.
4. To the extent permitted by law, the Agreement may be pleaded as a full and
complete defense to, and may be used as the basis for an injunction against, any action, suit, or
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other proceeding that may be instituted, prosecuted, or attempted against Defendant or in breach
of this Agreement.
VIII. REPRESENTATIONS AND WARRANTIES
1. In addition to the provisions hereof, this Agreement and the Settlement shall be
subject to the ordinary and customary judicial approval procedures under Federal Rule of Civil
Procedure 23. Until and unless this Agreement is dissolved or becomes null and void by its own
terms, or unless otherwise ordered by the Court, or if the Effective Date is not achieved, Named
Plaintiffs, Settlement Class Counsel, and Defendant represent and warrant that they shall take all
appropriate steps in the Action necessary to preserve the jurisdiction of the Court, use their best
efforts to cause the Court to grant Approval of this Agreement as promptly as possible, and take
or join in such other steps as may be necessary to implement this Agreement and to effectuate
the Settlement, and will not attempt to void this Agreement in any way, except as expressly set
forth herein. This includes the obligations (a) to seek Approval of this Agreement and of the
Settlement by the Court; (b) to defend the Agreement and the Settlement before the Court and on
appeal, if any; (c) to join in the entry of such other orders or revisions of orders, as are required
by Defendant, subject to Named Plaintiffs’ consent, not to be unreasonably withheld or delayed;
this also includes (d) not soliciting or encouraging any effort by any person to object to the
Settlement.
2. Named Plaintiffs and Settlement Class Counsel represent and warrant that any
award of attorneys’ fees and litigation costs they may seek upon application to the Court
pursuant to Section V above shall include all attorneys’ fees and litigation costs that Named
Plaintiffs and Settlement Class Counsel seek in connection with the Action.
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3. Named Plaintiffs and Settlement Class Counsel represent and warrant that the
term “Settlement Class Counsel,” as defined in Section II(2) of this Agreement, includes all
persons (natural or legal) having any interest in any Attorney Fee/Litigation Cost Award in
connection with the Action. Named Plaintiffs and Settlement Class Counsel represent and
warrant that any motion or application that they file requesting an award of attorneys’ fees and
litigation costs shall include within its scope all attorneys, law firms, or any other person or
entity whom they believe to have a financial interest in any such award.
4. Named Plaintiffs, Settlement Class Counsel, and Defendant represent and warrant
that they are fully authorized to enter into this Agreement and to carry out the obligations
provided for herein. Each person executing this Agreement on behalf of a Party, entity, or other
person covenants, warrants, and represents that he/she is and has been fully authorized to do so
by that Party, entity, or other person. Named Plaintiffs, Settlement Class Counsel, and
Defendant represent and warrant that they intend to be bound fully by the terms of this
Agreement.
5. If any person, legal or natural, breaches the terms of any of the representations
and warranties in this Section VIII, the Court shall retain jurisdiction over this matter to entertain
action by a Party against such person for breach or any Party’s request for a remedy for such
breach.
6. Counsel for the Defendant and Settlement Class Counsel will work diligently and
cooperatively to obtain a date for Approval that will allow the Settlement to be completed at the
earliest practicable date.
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IX. MISCELLANEOUS PROVISIONS
1. This Agreement is entered into only for purposes of settlement. If the Effective
Date of this Agreement and this Settlement does not occur for any reason, this Agreement and
any orders entered in connection herewith shall become null and void. In that event, the Parties
shall be absolved from all obligations under this Agreement, and this Agreement, any draft
thereof, and any discussion, negotiation, documentation, or other part or aspect of the Parties’
settlement discussions leading up to the execution of this Agreement shall have no effect and
shall not be admissible evidence for any purpose. In addition, the Parties shall revert to their
respective positions prior to settlement, and the agreements contained herein shall be null and
void and shall not be cited or relied upon as an admission to the propriety of class certification or
any other issue, and the Parties shall have all claims and defenses that they had or were asserting
as of the date which the Parties agreed to settle the Action. If the Effective Date does not occur
for any reason, nothing herein is intended or should be construed as an admission sufficient to
estop the Parties from asserting such claims or defenses as were available to them before they
entered into this Agreement.
2. Unless otherwise ordered by the Court, the Parties may jointly agree to reasonable
extensions of time to carry out any of the provisions of this Agreement.
3. This Agreement constitutes a single, integrated written contract expressing the
entire agreement of the Parties relative to the subject matter hereof. No covenants, agreements,
representations, or warranties of any kind whatsoever have been made by any party hereto,
except as provided for herein.
4. The Agreement shall be construed in accordance with, and be governed by, the
laws of California, without regard to the principles thereof regarding choice of law.
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5. As used in this Agreement, the masculine, feminine or neuter gender, and the
singular or plural number, shall each be deemed to include the others wherever the context so
indicates.
6. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument, even though all Parties do not sign the same counterparts.
7. The Parties agree to fully cooperate with each other to accomplish the terms of
this Agreement, including but not limited to executing such documents and taking such other
action as may reasonably be necessary to implement the terms of this Agreement. The parties to
this Agreement shall use their best efforts, including all efforts contemplated by this Agreement
and any efforts that become necessary by order of the Court, or otherwise, to effectuate this
Agreement and the terms set forth herein. As soon as practicable after execution of this
Agreement, Settlement Class Counsel and Defendant shall take all necessary steps to assure the
Court’s Approval of this Agreement.
8. Paragraph titles or captions contained herein are inserted as a matter of
convenience and for reference, and in no way define, limit, extend, or describe the scope of this
Agreement or any provision hereof. Each term of this Agreement is contractual and not merely a
recital.
9. The Parties waive the application of any applicable law, regulation, holding, or
any rule of construction providing that ambiguities in an agreement shall be construed against the
party drafting such agreement.
10. Except as otherwise set forth herein, this Agreement may not be changed, altered,
or modified, except in writing and signed by the Parties hereto, and approved by the Court. This
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Agreement may not be discharged except by performance in accordance with its terms or by a
writing signed by the Parties hereto.
11. This Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective heirs, trustees, executors, administrators, successors, and assigns.
12. This Agreement is executed voluntarily by each of the Parties without any duress
or undue influences on the part, or on behalf, of any of them. The Parties represent and warrant
to each other that they have read and fully understand the provisions of this Agreement and have
relied on the advice and representation of legal counsel of their own choosing. Each of the
Parties has cooperated in the drafting and preparation of this Agreement and has been advised by
counsel regarding the terms, effects, and consequences of this Agreement. Accordingly, in any
construction to be made of this Agreement, this Agreement shall not be construed as having been
drafted solely by any one or more of the Parties.
13. All correspondence to Settlement Class Counsel shall be sent by email or mail to
(a) Scott A. Kamber or David A. Stampley, KamberLaw LLC, 100 Wall Street, 23rd Floor, New
York, NY 10005, Telephone: (212) 920-3072, Email: [email protected]; or (c) Brian R.
Strange, Strange & Carpenter, 12100 Wilshire Blvd., Suite 1900, Los Angeles, CA 90025,
Telephone (310) 207-5055, Email: [email protected].
14. All correspondence to Defendant shall be sent by email to each of (a) Stephen W.
Cusick, Nielsen Haley & Abbott LLP, 44 Montgomery St. Suite 750, San Francisco, CA 94104,
Telephone: (415) 693-0900, Email: [email protected]; and (b) S. Ashlie Beringer,
Gibson, Dunn & Crutcher LLP, 1881 Page Mill Road, Palo Alto, CA, 94304, Telephone: (650)
849-5300, Email: [email protected].
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15. The Court shall retain jurisdiction to resolve any future disputes arising out of the
tenns and conditions of this Settlement and Agreement [There are two retention of jurisdiction
clauses-this will create an ambiguity. Please combine into one.].
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed on hislher/its behalf by hislher/its duly authorized counsel of record, all as of the day
set forth below.
Dated: _Cj~/---,-( -=-Ce -f-Llf_L.--_ 7 t
Dated: _________ _ Dan C. Schutzman
Dated: _________ _ Space Pencil Inc., d/b/a KlSSmetrics
17
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15. The Court shall retain jurisdiction to resolve any future disputes arising out of the
tenns and conditions of this Settlement and Agreement [There are two retention of jurisdiction
clauses-this will create an ambiguity. Please combine into one.].
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed on hislher/its behalfby hislher/its duly authorized counsel of record, all as of the day
set forth below.
Dated: --------------------John B. Kim
Dated: '1-13 - Il.. ------
Dated: --------------------Space Pencil Inc., d/b/a KISSmetrics
17
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15. The COUli shall retain jurisdiction to resolve any future disputes arising out of the
terms and conditions of this Settlement and Agreement [There are two retention of jurisdiction
clauses-tlus will create an ambiguity. Please combine into one.].
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed on his/her/its behalf by hislher/its duly authorized counsel of record, all as of the day
set f01ih below.
Dated: JohnB. Kim
Dated: _________ _ Dan C. Schutzman
Dated: Cj /il / \<-.. Space Pencil Inc., d/b/a KlSSmetrics
17
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Dated: _______________________ KAMBERLAW, LLC ____________________________________ Scott A. Kamber
David A. Stampley
Dated: _______________________ PARISI & HAVENS LLP ____________________________________ David C. Parisi
Suzanne Havens Beckman Azita Moradmand
Dated: _______________________ STRANGE & CARPENTER ____________________________________ Brian R. Strange
Counsel for Plaintiffs and Putative Class
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Dated: -------------------
Dated:
Dated: -------------------
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KAMBERLA W, LLC
Scott A. Kamber David A. Stampley
David C. Parisi Suzanne Havens Beckman Azita Moradmand
STRANGE & CARPENTER
Brian R. Strange
Counsel for Plaintiffs and Putative Class
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Dated: -------------------
Dated: __________________ _
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KAMBERLA W, LLC
Scott A. Kamber David A. Stampley
PARISI & HAVENS LLP
David C. Parisi Suzanne Havens Beckman Azita Moradmand
Counsel for Plaintiffs and Putative Class
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Dated: j~~zhL 17; J...t;/7 NIELSE I J
Stephen W. Cusick
Counselfor Space Pencil Inc., d/b/a KISSmetrics
Dated: ------------------ GIBSON, DUNN & CRUTCHERLLP
S. Ashlie Beringer
Counsel for Space Pencil Inc., d/b/a KISSmetrics
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Dated: _________ _ NIELSEN HALEY & ABBOTT LLP
Stephen W. Cusick
COllnsel forSpace Pencil Inc., d/b/a KISSmetrics
Dated: -----=qc---.:..t -,--7 _----,-~_L __ GIBSON, DrJN & CRUTCHER LLP ~
~,Jl--S. Ashlie Beringer
COllnsel for Space Pencil Inc., d/b/a KISSmetl'ics
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