doyle lowther llp · 3. attached hereto as exhibit 2 is a true and correct copy of relevant resume...
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DECLARATION OF DEBORAH S. DIXON, ESQ. IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
William J. Doyle II (SBN 188069) John Lowther (SBN 20700) Christopher W. Cantrell (SBN 290874) DOYLE LOWTHER LLP 4400 NE 77th Avenue, Suite 275 Vancouver, WA 98662 Telephone: (360) 818-9320 Facsimile: (360) 450-3116 John H. Gomez (SBN 171485) Deborah S. Dixon (SBN 248965) GOMEZ TRIAL ATTORNEYS 655 West Broadway Suite1700 San Diego, CA 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496 Attorneys for Plaintiffs and the proposed class
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO, CENTRAL DIVISION
ANTHONY SHAMRELL and DARYL RYSDYK, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
vs.
APPLE, INC.,
Defendant.
))))))))))) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 37-2013-00055830-CU-PL-CTL CLASS ACTION DECLARATION OF DEBORAH S. DIXON, ESQ. IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR AN ORDER (1) GRANTING PRELIMINARY APPROVAL OF SETTLEMENT, (2) APPROVING NOTICE PLAN, AND (3) SETTING FINAL APPROVAL HEARING Judge: Hon. Ronald L. Styn Dept.: C-74 Date: November 1, 2019 Time: 8:30 a.m. Filed: July 2, 2013
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DECLARATION OF DEBORAH S. DIXON, ESQ. IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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I, Deborah S. Dixon, declare:
1. I am an attorney licensed to practice law in the State of California, and I am counsel for
Plaintiffs Anthony Shamrell and Daryl Rysdyk and the putative class members (“Plaintiffs”). I have
personal knowledge of the facts set forth in this declaration.
2. Attached hereto as Exhibit 1 is a true and correct copy of the Settlement Agreement
executed in this case and corresponding exhibits referenced within the Settlement Agreement.
3. Attached hereto as Exhibit 2 is a true and correct copy of relevant resume information
for John Gomez, owner of Gomez Trial Attorneys, and myself.
4. I attended University of California, Santa Barbara, graduating in 2003. I graduated
from California Western School of Law in June 2007. I was an associate in the business litigation and
commercial litigation departments of Wingert Grebing Brubaker & Juskie from 2007 until 2012, when
I was elevated to partner. During my tenure at Wingert Grebing Brubaker & Juskie, I handled, and
eventually managed, complex multi-party litigation, including consumer claims and products liability.
I participated in prosecuting and defending hundreds of disputes during litigation through settlement,
trial and appeals.
5. In January 2015, I joined Gomez Trial Attorneys Complex Litigation department, where
I manage the class action practice. Gomez Trial Attorneys has 16 attorneys and an additional staff of
20. We are well-equipped to handle complex litigation.
6. John Gomez and I co-tried a multi-week federal class action trial with similar issues
presented in this case against a national homeopathic manufacturer in Allen v. Hyland’s, Inc., United
States District Court, Central District, Western Division, Case No. 12-cv-1150-DMG-MAN before
Hon. Dolly M. Gee.
7. In May 2016, John Gomez and I co-tried a multiple week state court class action Union
Square at Broadway Homeowners Association v. Western Pacific Housing-Broadway, et al., San
Diego Superior Court Case No. 37-2011-0091935-CU-CD-CTL before Hon. Ronald L. Styn.
8. I was primarily responsible for settling similar allegations and claims in Wood v.
Nature’s Way, Case No. 2:13-cv-06591-TJH(OPx), which was pending in United States District Court,
Central District, as well as Allen, et al. v. Similasan Corporation, Case No, 12-cv-00376-BAS-JLB,
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DECLARATION OF DEBORAH S. DIXON, ESQ. IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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which was pending in United States District Court, Southern District and final approval was granted on
August 17, 2017.
9. John Gomez and I were trial counsel for the putative class in In re Sony Vaio Computer
Notebook Trackpad Litigation, United States District Court, Southern District of California, Case No.
09-cv-02109-BAS-MDD, which settlement was granted final approval on August 7, 2017.
10. Our firm participated as counsel for class members in the Corona v. Sony Pictures
Entertainment Inc. data breach case before the United States District Court, Central District, Case No.
2:14-cv-09600-RGK-E.
11. Our firm is actively prosecuting several other class actions based on consumer
protections claims, as well as product liability claims, both in federal and state courts. Most recently
we were trial counsel in Krinsk v. Monster, Case No. 37-2014-00020192-CU-BT-CTL, which was
resolved shortly before trial and the settlement was approved by Judge Wohlfeil.
12. In my experienced judgment, the proposed settlement is fair, reasonable, and adequate
with respect to the Plaintiffs and the certified classes.
13. Pursuant to the Settlement Agreement, Defendant has agreed to pay into a common
fund $20,000,000, which Class Members will receive a cash payment of $24.00 for each eligible Class
iPhone submitted, with no cap on how many valid claims can be submitted by a class member.
14. The Settlement Agreement provides the same relief to all Class Members, including the
Class Representatives.
15. The proposed Notice and Notice Plan are adequate, constituting the best possible notice
under the circumstances and exceeds the notice approved at class certification.
16. In our opinion as class counsel, based on our experience, the Class Members are
receiving a substantial direct benefit from the settlement terms, particularly in light of the fact that
restitution at trial would have been difficult to secure.
17. This Settlement provides an outstanding result because it is on the higher end of the
range of possible results at trial, providing a cash payment for all the class members Plaintiffs have
asserted were harmed by Defendant’s misrepresentations.
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DECLARATION OF DEBORAH S. DIXON, ESQ. IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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18. Our firm has extensive trial experience, but particularly has tried multiple class action
cases and prepared others for trial, which resulted in settlement. Given our experience, we entered into
the Settlement Agreement in this action fully understanding the risk and cost of trial and potential
appeals, and the inherent continued delays of litigation, and we have determined that it is in the best
interest of all concerned to settle this matter.
19. Settlement was negotiated while the parties were engaged in trial preparation, with a
trial date of less than six weeks away at the time of negotiations. Indeed, the parties’ settlement
discussions were punctuated by the parties’ respective motions to strike experts. Additionally, all
discovery, including expert discovery, was concluded before the parties agreed to terms. In total, the
Plaintiffs served 14 separate sets of document requests, special interrogatories, request for admissions,
conducted over 19 depositions, and issued subpoenas to third parties. Plaintiffs’ counsel reviewed over
four million pages of documents. And the parties presented competing experts regarding the asserted
damages. We had more than enough information to weigh the risks of the case, as well as the potential
for a successful outcome after trial. Even with a potential successful outcome, it is likely Apple would
have appealed any verdict in Plaintiffs’ favor, as Apple had submitted two Writs of Mandate during the
litigation.
20. As Class Counsel we had to analyze the risk of not maintaining the class through trial,
with an inevitable motion to decertify the class post-trial, as well as multiple challenges during trial. In
assessing the risk, it was analyzed whether Plaintiffs could: (1) prove Apple had adequate notice prior
to the sale of the Class iPhones to meet their prima facie burden; or (2) convince the jury of the correct
size of the class or prevalence of the defect; or (3) overcome Apple’s affirmative defense that all Class
Members were provided an adequate remedy through the warranty program and therefore suffered no
actual damages; or (4) retain class certification through trial; or (5) convince the jury to award
monetary damages to Class iPhones that were defective eight or nine years earlier.
21. Even had Plaintiffs prevailed with the jury, it was a foregone conclusion, in our view,
Apple would challenge any judgment for the Class, including through post-trial motions and protracted
appeals. Apple already filed two writs to the appellate court during litigation. It is likely that any
appeal of a Plaintiff verdict would also include an appeal of the Court’s class certification order.
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DECLARATION OF DEBORAH S. DIXON, ESQ. IN SUPPORT OF UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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22. Plaintiffs and the Class were represented in the negotiations by two law firms with
extensive class action experience: Gomez Trial Attorneys and Doyle Lowther.
23. The Settlement provides a sufficient portion of the amount Class Members could have
obtained if the Class was successful at trial. The amount is also well within the range of values
presented during mock trials/focus groups, given the age of the Class iPhones and the component at
issue.
24. Further, given the fact that Apple’s experts intended to testify the Class deserved zero
damages, there was a real potential the Class could have recovered nothing at trial. By this Settlement,
the Class is receiving a substantial benefit through a guaranteed payment.
25. The Common Fund is also robust enough to cover all claims by Class Members. Given
the class definitions as certified by the Court, Plaintiffs anticipate, based on the percentage defects
within the warranty period as calculated by Plaintiffs’ expert Fred Schenkelberg, there will be an
estimated class size of approximately 500,000 Class Members. Moreover, the Common Fund is large
enough to cover the cost of notice and Claims Administration, as well as reimbursement of costs and
payment of attorneys’ fees, which will be subject of a motion to be filed following preliminary
approval.
26. The settlement agreed to by Apple, after several years of meaningful negotiations, is
substantial and will provide each Class Member an opportunity to obtain a guaranteed amount of
money to cover alleged damages to phones bought between 2010 and 2012.
27. Many factual and legal issues in this litigation were considered and weighed during the
process of evaluating the strengths and weaknesses of the Settlement Class’s claims. Each side’s
attorneys are experienced litigators and understand the complexities of class litigation. Ultimately, as
Class Counsel we believe the settlement is in the best interest of the Class to obtain guaranteed relief.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed this 25th day of October, 2019, in San Diego, California.
____________________________ Deborah S. Dixon
EXHIBIT 1
1
JOINT STIPULATION OF SETTLEMENT
This Joint Stipulation of Settlement (“Settlement” or “Settlement Agreement”) is entered
into between Plaintiffs Anthony Shamrell and Daryl Rysdyk (“Plaintiffs”), individually and in
their representative capacities as representatives of the certified classes, and Defendant Apple Inc.
(“Apple” or “Defendant”) (collectively with Plaintiffs, “Parties,” or any party singularly, “Party”).
RECITALS
A. Plaintiffs Anthony Shamrell and Daryl Rysdyk are Court-appointed class
representatives for the certified classes in the litigation captioned Shamrell, et al. v. Apple Inc.,
Case No. 37-2013-00055830-CU-PL-CTL (the “Action”), pending against Defendant Apple Inc.
in the Superior Court of California, San Diego County (the “Court”).
B. Plaintiffs allege in the Action that a defect existed in Apple’s iPhone 4, 4s, and 5
smartphone devices that caused the sleep/wake button (or power button) to fail and that Apple
failed to disclose this purportedly material information to consumers, Apple denies that the iPhone
4, 4s, or 5 were defective, that it engaged in any wrongdoing of any kind, or violated any law,
statute, or regulation, or breached any duty owed to the Plaintiffs or the Class.
C. On January 28, 2015, following several rounds of demurrers, motions to strike, and
amended pleadings, Plaintiffs filed their Fourth Amended Complaint, which remains the operative
complaint at the time of this Settlement Agreement. The claims against Apple alleged in the Fourth
Amended Complaint include violations of Cal. Civ. Code §§ 1750 et seq. (the Consumer Legal
Remedies Act, or “CLRA”), Cal. Bus. & Prof. Code §§ 17200 et seq. (California’s Unfair
Competition Law, or “UCL”), Cal. Civ. Code §§ 1792 et seq. (the Song-Beverly Consumer
Warranty Act), 15 U.S.C. §§ 2301 et seq., (the Magnuson-Moss Warranty Act), and common law
breach of express warranty.
D. On January 7, 2019, following multiple rounds of class certification briefing,
including two appeals to the California Court of Appeal, the Court certified two classes as follows:
(i) iPhone 4 and 4s Class: All California citizens who purchased one or more
iPhone 4 or 4s smartphones from Apple or a third-party retailer, from June 24, 2010
through October 10, 2011 for the iPhone 4, and from October 11, 2011 through
September 20, 2012 for the iPhone 4s, and whose sleep/wake (power) button
stopped working or worked intermittently during a one year period from date of
purchase.
(ii) iPhone 5 Class: All California citizens who purchased one or more iPhone 5
smartphones from Apple or a third-party retailer prior to April 1, 2013, and whose
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sleep/wake (power) button stopped working or worked intermittently during a three
year period from date of purchase.
(iii) Excluded from both classes are persons whose class iPhone was repaired or
replaced by Apple due to a non-working sleep/wake button.
E. The Parties have investigated the facts and have analyzed the relevant legal issues
regarding the claims and defenses asserted in the Action. Discovery has been ongoing for more
than five years: the Parties have engaged in extensive formal written discovery, Apple has
produced millions of pages of documents, and Plaintiffs have taken 18 depositions of Apple
witnesses.
F. The Parties have vigorously and zealously litigated the Action from inception up
until two months prior to the Parties’ scheduled jury trial.
G. The Parties have engaged in substantial and ongoing good faith and arm’s-length
negotiations in an effort to resolve all claims that have been, or could have been, asserted in the
Action, including through multiple prior confidential mediations with the Hon. Irma E. Gonzalez
(Ret.) of JAMS.
H. Based on more than six years of litigation, Plaintiffs believe the lawsuit has merit,
and Apple believes the lawsuit has no merit. The Parties also have each considered the
uncertainties of trial and the benefits to be obtained under the proposed settlement, and have
considered the costs, risks, and delays associated with the continued prosecution of this complex
and time-consuming litigation and the likely appeals of any rulings in favor of either Plaintiffs or
Apple.
I. Apple does not, by entering into this Settlement Agreement, admit that it has caused
any damage or injury to any Class Member as a result of the facts alleged or asserted in the Action
and does not admit that Plaintiffs’ calculations or methods of calculations of alleged damages are
accurate or appropriate. Apple nonetheless has concluded that it is in its best interests that the
Action be settled on the terms and conditions set forth in this Agreement in light of the expense
that would be necessary to defend the Action, the benefits disposing of protracted and complex
litigation, and the desire of Apple to conduct its business unhampered by the distractions of
continued litigation.
J. Accordingly, in consideration of the above recitals and the promises, agreements,
covenants, representations, and warranties set forth herein, and other good and valuable
consideration provided for herein, the receipt and sufficiency of which is hereby acknowledged by
each of the Parties from the others, the Parties agree to a full, final, and complete settlement of the
Action on the following terms and conditions.
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SETTLEMENT AGREEMENT
1. DEFINITIONS. The following section defines terms not previously defined above.
Some definitions use terms that are defined later in this section:
1.1 “Apple Inc.,” “Apple,” or “Defendant” means Defendant Apple Inc., its
present or former affiliates, agents, attorneys, contractors, divisions, employees, holding
companies, insurers, servants, shareholders, sister corporations, officers, directors, representatives,
and successors.
1.2 “Apple’s Counsel” and “Defendant’s Counsel” means the law firm of
O’Melveny & Myers LLP.
1.3 “Attorneys’ Fees and Expenses” means the maximum amount of attorneys’
fees and expenses, subject to Court approval, to be paid to Class Counsel for their representation
of the Class in this Action.
1.4 “Class” or “Class Members” means and refers, collectively, to all persons
who meet one of the two class definitions certified by the Court on January 7, 2019, as set forth in
recital D above.
1.5 “Class Counsel” means the law firms of Doyle Lowther LLP, Gomez Trial
Attorneys, and Consumer Law Group of California.
1.6 “Claim Form” means the document that Claims-Made Class Members are
required to submit in order to be eligible to receive a Settlement Award, as approved by Class
Counsel, Defendant’s Counsel, and the Court, to be provided to Class Members under paragraph
3.3 by email and via publishing on the Settlement Website. The Claim Form shall be substantially
in the form attached hereto as Exhibit A, subject to Court approval.
1.7 “Claims-Made Class Members” means a Class Member for whom a valid
Claim Form is required to be eligible to receive a Settlement Award from the Settlement Fund; all
Claim Forms must be received (or postmarked, if submitting via mail) by no later than one hundred
and twenty (120) calendar days after the initial distribution of Email Notice.
1.8 “Class Device” means any of the following: (i) an Apple iPhone 4
smartphone, purchased between June 24, 2010 through October 10, 2011, whose sleep/wake
(power) button stopped working or worked intermittently during a one year period from the date
of purchase and that was not repaired or replaced by Apple due to a non-working sleep/wake
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button; (ii) an Apple iPhone 4s smartphone, purchased between October 11, 2011 through
September 20, 2012, whose sleep/wake (power) button stopped working or worked intermittently
during a one year period from the date of purchase and that was not repaired or replaced by Apple
due to a non-working sleep/wake button; or (iii) an Apple iPhone 5 smartphone, purchased prior
to April 1, 2013, whose sleep/wake (power) button stopped working or worked intermittently
during a three year period from the date of purchase and that was not repaired or replaced by Apple
due to a non-working sleep/wake button.
1.9 “Court” means the Superior Court of California, San Diego County, the
Honorable Ronald L. Styn presiding.
1.10 “Direct-Payment Class Members” means a Class Member who has been
listed on the Direct-Payment Class Member List by Apple and whose Settlement Award from the
Settlement Fund can be processed without the need for submission of a Claim Form because
Apple’ records indicate that they complained of a sleep/wake button problem on a Class Device to
Apple, but did not receive a free repair or replacement.
1.11 “Direct-Payment Class Member Email Notice” means the notice
summarizing each Direct-Payment Class Member’s eligibility to receive a Settlement Award
without the need to submit a valid Claim Form, as approved by Class Counsel, Defendant’s
Counsel, and the Court, to be made available to Direct-Payment Class Members under paragraph
2.4 by email. The Direct-Payment Class Members Email Notice shall be substantially in the form
attached hereto as Exhibit E.
1.12 “Direct-Payment Class Member List” means the list of Direct-Payment
Class Members prepared by Apple, reflecting those individuals who appear on the Notice List and
whose Apple’ records indicate that they complained of a sleep/wake button problem on a Class
Device to Apple, but did not receive a free repair or replacement.
1.13 “Effective Date” shall mean the earliest of the following: (i) the date of
entry of the Final Approval Order and Judgment if no objections are filed to the Settlement
Agreement or if all objections are withdrawn prior to the Court ruling on them; or (ii) sixty (60)
calendar days after the entry of the Final Approval Order and Judgment if objections are filed and
overruled and no appeal is taken; or (iii) if a timely appeal is made, thirty-one (31) business days
after the date of the final resolution of that appeal and any subsequent appeals or petitions for
certiorari from the Final Approval Order and Judgment.
1.14 “Email Notice” means the legal notice summarizing the proposed
settlement terms, as approved by Class Counsel, Defendant’s Counsel, and the Court, to be made
available to all Class Members on the Notice List that do not appear on the Direct-Payment Class
Member List under paragraph 3.3 by email. The Email Notice shall be substantially in the form
attached hereto as Exhibit B, subject to Court approval.
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1.15 “Final Approval Hearing” means the hearing at which the Court decides
whether to finally approve this Agreement as a fair, reasonable, and adequate settlement of the
Action.
1.16 “Final Approval Order and Judgment” means a proposed order and
judgment approving the Settlement of this Action.
1.17 “Long-Form Notice” means the legal notice of the proposed settlement
terms, as approved by Class Counsel, Defendant’s Counsel, and the Court, to be provided to Class
Members under paragraph 3.3 via publishing on the Settlement Website. The Long-Form Notice
shall be substantially in the form attached hereto as Exhibit C, subject to Court approval.
1.18 “Notice List” means the list of all potential Class Members prepared by
Apple and reflecting the most recent data available regarding the names, email addresses and
mailing addresses (where available) of each consumer who purchased a Class Device in California
and who did not receive a free repair or replacement from Apple due to a non-working sleep/wake
button, according to Apple’s records.
1.19 “Participating Class Members” means all Class Members who do not file
a valid and timely request to opt-out of the lawsuit and either (i) submit a valid claim pursuant to
paragraph 2.3 below, or (ii) qualify as a Direct-Payment Class Member as defined in paragraph
2.4 below.
1.20 “Postcard Notice” means the legal notice summarizing the proposed
settlement terms, as approved by Class Counsel, Defendant’s Counsel, and the Court, to be
provided by mailed postcard to any Class Member for whom the email address initially provided
to the Settlement Administrator is no longer valid or for whom no email address was initially
provided. The Postcard Notice shall be substantially in the form attached hereto as Exhibit D,
subject to Court approval.
1.21 “Preliminary Approval Order” means an order preliminarily approving the
Settlement of this Action.
1.22 “Released Parties” means Defendant Apple Inc., its present or former
affiliates, agents, attorneys, contractors, divisions, employees, holding companies, insurers,
servants, shareholders, sister corporations, officers, directors, representatives, and successors.
1.23 “Service Awards” means awards authorized by the Court to be paid to the
Plaintiffs in recognition of their efforts in prosecuting this Action and in addition to their individual
Settlement Awards.
1.24 “Settlement Administrator” means KCC Class Action Services, LLC.
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1.25 “Settlement Administrator Expenses” means the reasonable expenses
incurred by the Settlement Administrator in providing class notice and settlement administration
services.
1.26 “Settlement Award(s)” means the pro-rata amount Participating Class
Members shall each receive from the Settlement Fund. Under no circumstances shall any
Settlement Award paid exceed twenty-four dollars ($24.00) per eligible Class Device.
1.27 “Settlement Fund” means the non-reversionary cash fund, which shall be
established by Apple in the total amount of twenty million dollars ($20,000,000.00 USD) to be
deposited into an escrow account to be established by the Settlement Administrator, plus all
interest earned thereon. From the Settlement Fund, the Settlement Administrator shall pay all
Settlement Awards, Attorneys’ Fees and Expenses, Services Awards, Settlement Administrator
Expenses, and Cy Pres related payments, as may be approved by the Court. The Settlement Fund
shall be kept in an escrow account with permissions granted to the Settlement Administrator to
access said funds until such time as all such payments are made. The Settlement Fund includes
all interest that shall accrue on the sums deposited in the Escrow Account. In no event shall
Apple’s total monetary obligation with respect to this Agreement exceed or be less than twenty
million dollars ($20,000,000.00 USD). At all times the Settlement Fund shall be subject to the
control and jurisdiction of the Court.
1.28 “Settlement Website” means a publicly accessible website set up and
maintained by the Settlement Administrator for the sole purpose of providing the Class with notice
of and information about the Settlement Agreement.
2. SETTLEMENT TERMS.
2.1 Total Settlement Fund. Subject to Court approval, Apple shall pay the
Settlement Fund totaling $20,000,000.00 into an escrow account as set forth below. That payment
shall fully satisfy Apple’s obligations for payments, fees, and expenses identified in this Settlement
Agreement, including payments of Settlement Awards, Service Awards, Settlement
Administration Expenses, Class Counsel’s Attorneys’ Fees and Expenses, and Cy Pres payments,
in the amounts and by the procedures specified in this Settlement Agreement. Under no
circumstances shall Apple be required to pay more than the total of twenty million dollars
($20,000,000.00). This Settlement Fund is non-reversionary.
(a) Funding Deadline of Settlement Fund. No later than fourteen (14)
business days after the entry of the Preliminary Approval Order, Apple shall pay or cause
to be paid into the escrow account an initial settlement payment in the amount of
$5,000,000.00. Apple shall then pay or cause to be paid into the escrow account a second
and final settlement payment in the amount of $15,000,000.00 no later than fourteen (14)
business days after the Effective Date.
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2.2 Relief Provided to Class Members. Participating Class Members who do
not seek exclusion pursuant to paragraph 3.6 below and either (i) submit a valid claim pursuant to
paragraph 2.3 below, or (ii) qualify as a Direct-Payment Class Member as defined in paragraph
2.4 below, will receive a Settlement Award in the form of a check, to be issued by the Settlement
Administrator and paid from the Settlement Fund. The final amount of the Settlement Award for
each Participating Class Member shall be calculated and distributed based on the number of Direct-
Payment Class Members identified and the number of valid Claim Forms received from Claims-
Made Class Members, subject to a cap of twenty-four dollars ($24.00) per eligible Class Device.
Should the number of valid claims submitted (at $24.00 per eligible Class Device) exceed the total
amount of funds remaining in the Settlement Fund after all approved payments of Service Awards,
Settlement Administration Expenses, and Class Counsel’s Attorneys’ Fees have been made,
Claims-Made Class Members shall receive a pro rata distribution of those remaining funds. Under
no circumstances shall any Settlement Award paid exceed twenty-four dollars ($24.00) per eligible
Class Device.
(a) Final Calculations of Settlement Awards. The Settlement Administrator
shall, within ten (10) business days after the Effective Date, make the final calculations for
each Participating Class Members’ Settlement Award and shall provide its final
calculations of the Settlement Awards to Class Counsel and to Apple’s Counsel for review.
To the extent possible, the Parties will meet and confer in advance of this deadline to
confirm the accuracy of Participating Class Members’ calculated Settlement Awards.
(b) Payment of Settlement Awards. All payments made to Participating Class
Members shall be paid by check by the Settlement Administrator and sent to the address
provided, or otherwise verified, by each Participating Class Member in accordance with
the processes set forth below.
(c) Timing of Payments. All approved Settlement Awards shall be mailed to
Participating Class Members by the Settlement Administrator within sixty (60) calendar
days after the Effective Date, or such other date as the Court may set.
(d) Uncashed Checks. All payments issued to Participating Class Members
via check will state on the face of the check that it will expire and become null and void
unless cashed within one-hundred-eighty (180) calendar days after the date of check
issuance. To the extent that a check issued to a Participating Class Member is not cashed
within one-hundred-eighty (180) calendar days after the date of issuance, such funds shall
revert to the Settlement Fund for distribution to an appropriate cy pres recipient(s), in
accordance with the process set forth below. At least twenty (20) days before the expiration
of each check issued, the Settlement Administrator will make at least one attempt to notify
the Class Member of the uncashed check and deadline.
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2.3 Claims Process. Claims-Made Class Members shall be required to submit
a valid Claim Form as a prerequisite to receiving a Settlement Award. The Settlement
Administrator shall only approve claims for Class Members whose purchase of a Class Device can
be verified using the Notice List data provided by Apple and who, according to Apple’s records,
have not received a free repair or replacement for a sleep/wake button related issue on that device.
(a) Claim Form. Claims-Made Class Members shall have the option of (i)
completing and submitting a Claim Form entirely online (without the need to print and
scan or upload a Claim Form), (ii) printing a Claim Form online which they may complete
and submit through the mail or by email, or (iii) requesting that a Claim Form be mailed to
them by the Settlement Administrator, which they may complete and submit through the
mail. The Claim Form shall require each claimant shall sign under penalty of perjury that
he or she purchased a Class Device(s) and otherwise meets the criteria for class
membership, as set forth in the Court’s January 7, 2019 Order and detailed in Recital D
above. All claims shall be subject to reasonable verification by the Claims Administrator
based on the Notice List data provided by Apple and any other data needed to verify
individual class membership or eligibility, as may be requested from Apple by the Claims
Administrator. The Claim Form shall be substantially in the form attached hereto as
Exhibit A, subject to Court approval.
(b) Claims Period. To be valid, all Claim Forms must be submitted to the
Settlement Administrator (or postmarked, if submitting via mail) by no later than one
hundred and twenty (120) calendar days after the initial distribution of Email Notice.
(c) Settlement Administration; Invalid or Incomplete Claims. The
Settlement Administrator shall, in good faith, administer the process of receiving, handling,
processing, and paying claims. All decisions regarding claims administration and Notice
processes that are not otherwise made explicit in this Agreement shall be jointly made by
Apple and Class Counsel. The Settlement Administrator shall have the right to reject any
claims deemed to be fraudulent, insufficient, or incomplete. The Settlement Administrator
shall only approve claims for Class Members whose purchase of a Class Device can be
verified using the Notice List data provided by Apple and who have not received a free
repair or replacement for a sleep/wake button related issue on that device, according to
Apple’s records.
(d) Defective or Incomplete Claims; Cure Period. For defective or
incomplete Claim Forms, the Settlement Administrator will email the Claims-Made Class
Member a written notice of the additional information required for the Claim Form to be
valid. The Claims-Made Class Member may cure the defective or incomplete Claim Form
by providing the information requested by e-mail, within thirty (30) calendar days of the
date of mailing of the Settlement Administrator’s written notice. The 30-day cure period
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may extend after the end of the period for submission of Claim Forms so long as the
original Claim Form was timely submitted.
(e) Disputed Claims. On at least a monthly basis after the commencement of
claims fulfillment, the Settlement Administrator will provide Class Counsel and Apple
with a list of rejected Claim Forms (including each Claims-Made Class Member’s name,
address, and telephone number, and the reason for rejection). Class Counsel and Apple
shall have a reasonable opportunity to inspect originals or copies of the Claim Forms. The
Parties will first attempt to resolve any disputes concerning rejected Claim Forms
informally between themselves. If counsel cannot reach an agreement, the Claims will be
submitted to the Court for determination.
2.4 Direct-Payment Class Members. Settlement Awards to all potential Class
Members for whom Apple has a record of a reported issue with the sleep/wake button on their
Class Device, but no record of a repair or replacement provided for free, shall be paid directly by
the Settlement Administrator without the need to submit a valid Claim Form. The Direct-Payment
Class Members List shall be provided to the Settlement Administrator by Apple within ten (10)
calendar days of the entry of the Preliminary Approval Order, as set forth in paragraph 3.3(b)
below. Direct-Payment Class Members will be notified by email, from the Settlement
Administrator, of their eligibility to receive a direct-payment without the need to submit a Claims
Form within ten (10) calendar days of the Settlement Administrator’s receipt of the Direct-
Payment Class Members List. The Direct-Payment Class Members Email Notice shall be
substantially in the form attached hereto as Exhibit E, and will request that each Direct-Payment
Class Member update or confirm their mailing address with the Settlement Administrator. Each
Direct-Payment Class Member is responsible for ensuring that the Settlement Administrator timely
receives their current postal address, and may be asked to either verify the accuracy of their postal
mailing information or supply their postal mailing information. Direct-Payment Class Members
for whom the Settlement Administrator does not have a current postal mailing address will be
required to supply a current postal mailing address, but will not otherwise be required to make a
claim or submit a Claim Form. The deadline for supplying a current postal mailing address shall
be no later than one hundred and twenty (120) calendar days after the initial distribution of Email
Notice. For any Direct-Payment Class Members for whom the Settlement Administrator has a
valid mailing address, but for whom a response to the Direct-Payment Class Member Email Notice
updating or verifying the known mailing address is not received, Settlement Awards shall
automatically be mailed to their last known address.
2.5 Attorneys’ Fees and Expenses. On or before the deadline for Class
Counsel to file their motion for final approval of settlement, Class Counsel may apply to the Court
for an award of Attorney’s Fees and Expenses incurred on behalf of Plaintiffs and the Class. All
Attorneys’ Fees and Expenses and any interest thereon (if awarded by the Court) shall be payable
solely out of the Settlement Fund in such amounts as the Court may order. The Settlement
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Administrator shall pay Class Counsel fifty-percent (50%) of any Court-approved Attorneys’ Fees
and Expenses award no later than fifteen (15) business days after entry of the Final Approval Order
and Judgment, subject to Class Counsel executing the Undertaking Regarding Attorney’s Fees and
Costs (the “Undertaking”) attached hereto as Exhibit F, and providing all payment routing
information and tax I.D. numbers for Class Counsel. The Settlement Administrator shall pay Class
Counsel the remaining fifty-percent (50%) of any Court-approved Attorneys’ Fees and Expenses
award no later than fifteen (15) business days after the Effective Date.
(a) Reservation of Right to Object. Apple expressly reserves the right to
object to any request or application by Class Counsel for Attorney’s Fees and Expenses
that Apple deems unreasonable, as determined in Apple’s sole discretion.
(b) Catalyst Fees and Class Counsel Representations. Class Counsel
agrees, represents, and warrants that they will not submit any request or file any separate
action with this Court, or before any other court of competent jurisdiction, seeking
catalyst fees in connection with the settlement results obtained in this Action. Plaintiffs
and Class Counsel explicitly waive all such claims under California Code of Civil
Procedure § 1021.5, or other similar statutes or legal theories, as part of this Settlement
Agreement and in exchange for consideration set forth herein, the sufficiency of which
has been acknowledged and agree upon by all Parties, including with respect to the
waiver of any claims for Catalyst Fees. Class Counsel further represents and agrees that
they do not currently have any other clients who claim to have experienced the
sleep/wake button defect that is the subject of this Action on an iPhone 4, 4s, or 5 device
and who have expressed interest in filing claims related to the sleep/wake button defect.
(c) Undertaking and Repayment. Notwithstanding the foregoing, if for any
reason the Final Approval Order and Judgment is reversed or rendered void, then any
person or firm who has received funds distributed pursuant to paragraph 2.5 shall be
liable for such payments, and shall return such funds to the Settlement Fund by
redepositing them in the escrow account. Additionally, should any party to the
Undertaking dissolve, merge, declare bankruptcy, become insolvent, or cease to exist
prior to the final distribution of all Settlement Awards, the Parties shall work together in
good faith to identify the appropriate successor party(ies) and that party(ies) shall execute
a new undertaking guaranteeing repayment of funds within fourteen (14) calendar days of
such an occurrence. Class Counsel further agrees to maintain accurate records and
accounting regarding the distribution of any award of Attorney’s Fees and Expenses that
occurs prior to the Effective Date. Any disputes between the Parties regarding the
appropriate party(ies) to execute a new undertaking, as described above, shall be
submitted to this Court for binding determination.
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2.6 Service Awards to Plaintiffs. Subject to Court approval, the Settlement
Administrator shall pay a Service Award of up to $10,000 each to Plaintiffs Anthony Shamrell and
Daryl Rysdyk from the Settlement Fund in recognition of their efforts and time expended on behalf
of the Class. Apple agrees not to oppose Plaintiffs’ application for service awards of up to $10,000
for each Plaintiff, which shall be in addition to their respective Settlement Awards. The Settlement
Administrator shall pay any Court-approved Service Awards within fifteen (15) business days after
the Effective Date. For tax purposes, these Service Awards will be treated as 100% non-wage
claim payments. Apple shall issue, through the Settlement Administrator, IRS Form Misc. 1099s
for the Service Award payments to Plaintiffs. Plaintiffs shall be responsible for providing both
Apple and the Settlement Administrator with a valid W-2 prior to the Effective Date in order to
receive their Service Award.
2.7 Settlement Administration Expenses. Subject to Court approval, the
Settlement Administrator shall pay to itself all reasonable Settlement Administration Expenses
from the Settlement Fund to provide notice of settlement and fully administer this Settlement
Agreement. The Settlement Administration Expenses for administering this Settlement
Agreement is estimated at $676,070, as set forth by the Settlement Administrator’s estimate of
costs, and shall be paid exclusively from the Settlement Fund. Under no circumstances shall Apple
be otherwise obligated to pay for costs of notice or any costs to administer the Settlement. The
Settlement Administrator shall withdraw any Court-approved Settlement Administration Expenses
from the Settlement Fund no later than fifteen (15) business days after the Effective Date.
2.8 Distributions from the Settlement Fund. Within fifteen (15) business
days after the Effective Date, distributions from the Settlement Fund shall be made: (i) to Plaintiffs
for their Service Awards (up to $10,000.00 each); (ii) to the Settlement Administrator for its
Settlement Administration Expenses; and (iii) to Class Counsel for the full amount of Attorneys’
Fees and Expense as may be awarded by the Court. All approved Settlement Awards shall be
mailed to Participating Class Members by the Settlement Administrator within sixty (60) calendar
days after the Effective Date.
2.9 Distribution of Residual to Cy Pres. In the event that any monies remain
in the Settlement Fund after payment of all approved Settlement Awards, Attorneys’ Fees and
Expenses, Services Awards, and Settlement Administrator Expenses are made under this
Settlement Agreement, the residual amount shall be paid to a cy pres recipient(s) jointly selected
by the Parties using the process outlined below.
(a) Cy pres beneficiary. Subject to Court approval, the Parties agree to engage
the Rose Foundation, located at 201 4th Street, Suite 102, Oakland, California 94607, for
purposes of managing the distribution of any cy pres funds and the selection of an
appropriate cy pres recipient(s) whose work is closely related to the issues raised by this
Action and/or furthers the objectives of this Settlement Agreement. The Parties further
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agree, subject to Court approval, that any fees charged by the Rose Foundation will be paid
exclusively from the Settlement Fund. If, for any reason, the Court does not approve the
engagement of the Rose Foundation for purposes of identifying an appropriate cy pres
beneficiary, the Parties shall agree upon and propose, as cy pres recipient(s), no more than
five alternative organizations that satisfy the requirements of California Code of Civil
Procedure § 384(b).
(b) Residual Distribution Deadline, Costs, and Documentation. No later
than one hundred ninety-five (195) calendar days after the Settlement Administrator has
distributed all deliverable Settlement Awards, the Settlement Administrator shall pay over
any residual to the cy pres beneficiary(ies) designated by the process described in above,
and shall also pay the Rose Foundation for any fees charged in connection with the
identification and selection of said beneficiary(ies). The Settlement Administrator shall
provide a separate declaration of payment to the cy pres beneficiary and the Rose
Foundation, and shall serve that declaration on Apple and Class Counsel no later than ten
(10) calendar days after such payments are made. Class Counsel shall timely file the
declaration from the Settlement Administrator regarding the distribution of the Settlement
Fund and any residual funds with the Court.
3. CLASS SETTLEMENT PROCEDURES.
3.1 Cooperation to Obtain Court Approval. The Parties agree to fully
cooperate with each other to accomplish the terms of this Settlement 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 Settlement Agreement. The Parties shall use their best efforts,
including all efforts contemplated by this Settlement Agreement and any other efforts that may
become necessary by order of the Court or otherwise, to effectuate this Settlement Agreement and
the terms set forth herein. As soon as practicable after execution of this Settlement Agreement,
Class Counsel shall, with the assistance and cooperation of Apple and its counsel, take all
necessary steps to secure the Court’s preliminary and final approval of this Settlement Agreement.
3.2 Preliminary Approval. By October 25, 2019, Plaintiffs shall move for
preliminary approval of the Settlement Agreement to be heard by the Court on November 1, 2019.
The application shall seek an order:
(a) preliminarily approving this Settlement Agreement as being within the
range of possible approval as fair, reasonable, and adequate;
(b) preliminarily approving the form, method of providing notice, and content
of the Claim Form, Long-Form Notice, Email Notice, Postcard Notice, and Direct-Payment
Class Member Email Notice described in this Agreement and attached hereto as Exhibits
A-E;
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(c) staying all proceedings in the Action until the Court renders a final decision
on approval of the settlement;
(d) setting the date and time of the Final Approval Hearing approximately
ninety (90) calendar days after entry of the Preliminary Approval Order, subject to the
Court’s availability;
3.3 Notice. Subject to the Court entering the proposed Preliminary Approval
Order, the Parties agree that the Settlement Administrator will provide the Class with notice of the
Settlement Agreement by the following methods.
(a) Notice List. Apple has previously provided the Settlement Administrator
with the Notice List, for purposes of disseminating Court-approved notices via email and,
where necessary, U.S. mail. The Notice List reflects the most recent data available
regarding the names, email addresses and mailing addresses (where available) of each
consumer who purchased a Class Device in California and who did not receive a free repair
or replacement from Apple due to a non-working sleep/wake button, according to Apple’s
records. The Notice List encompass all potential Class Members known to Apple,
including both potential Claims-Made Class Members and Direct-Payment Class
Members. The Court has already approved use of the Notice List in connection with notice
of class certification. The Settlement Administrator shall be permitted to operate from the
Notice List previously provided by Apple in connection with Class Notice of this
Settlement Agreement, which remains valid and applicable as to the Class. Only Class
Members who appear on the Notice List will be eligible to receive a Settlement Award.
Claim Forms submitted by persons who do not appear on the Notice List shall be rejected
by the Settlement Administrator.
(b) Direct-Payment Class Member List. No later than ten (10) calendar days
after entry of the Preliminary Approval Order, Apple will provide the Settlement
Administrator with the Direct-Payment Class Member List. The list, which will be a sub-
set of the Notice List, shall identify all Class Members for whom Apple has a Sales Record
of a reported issue with the sleep/wake button on their Class Device, but no record of a
repair or replacement provided for free. Any person identified on the list shall be treated
by the Settlement Administrator as a Direct-Payment Class Member.
(c) Settlement Website. No later than ten (10) calendar days after entry of the
Preliminary Approval Order, the Settlement Administrator will create and operate a
publicly accessible website solely for the purposes of providing the Class notice of the
Settlement. The Settlement Website will contain the Long-Form Notice, a link to the
Claims Form, Frequently Asked Questions regarding the Settlement Agreement and
approval process, the Fourth Amended Complaint, the Preliminary Approval Order, and
other documents related to the Action and agreed upon by the Parties. The Parties will
jointly provide the Settlement Administrator with the content required for the Settlement
Website.
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(d) Email Notice. Upon the Settlement Website being activated and no later
than fourteen (14) calendar days after entry of the Preliminary Approval Order, the
Settlement Administrator shall send the Email Notice to all Class Members who appear on
the Notice List, but not on the Direct-Payment Class Member List, at the most recent email
address for the Class Members that is either contained in the Notice List or was used in
distributing Class Notice on or around April 22, 2019. To the extent the Settlement
Administrator obtained different or better contact information through its prior analysis of
the Notice List and dissemination of Class Notice commencing on or around April 22,
2019, the Settlement Administrator shall make use of that information in determining
whether and how to send Email Notice to any person who appears on the Notice List.
Subject to Court approval, Email Notice will be agreed upon by the Parties, and will
provide the web address of the Settlement Website with a link to the Claims Form and a
mailing address to contact the Settlement Administrator.
(e) Postcard Notice. For those potential Class Members on the Notice List for
whom the email address initially provided to the Settlement Administrator is no longer
valid or for whom no email address was initially provided, the Settlement Administrator
shall mail a postcard no later than twenty-one (21) calendar days after entry of the
Preliminary Approval Order. If any Postcard Notices are returned with forwarding address
information, the Settlement Administrator shall promptly re-mail the Postcard Notice to
the updated address provided within three (3) calendar days of its return. The Settlement
Administrator shall also track all Postcard Notices that are returned as undeliverable and
provide the Parties with periodic updates on the status of any Postcard Notice.
(f) Automated, Toll-Free Telephone Support. No later than ten (10)
calendar days after entry of the Preliminary Approval Order, the Settlement Administrator
will secure and operate a toll-free automated telephone support system whereby Class
Members can access information about the Settlement Agreement and the Settlement
Administrator can receive requests for Email Notice. The Parties will jointly provide the
Settlement Administrator with the script for the content and menu of the automated, toll-
free telephone support system. The Settlement Administrator will respond to Class
Members inquiries via email or telephone.
3.4 Proof of Notice. No later than five (5) calendar days before the filing date
for Plaintiffs’ motion in support of the Final Order and Judgment, the Settlement Administrator
must serve a declaration(s) on Class Counsel and Apple’s Counsel confirming that the Settlement
Administrator provided the Class with notice of the Settlement Agreement in accordance with
paragraph 3.3.
3.5 Objections. Any Class Member who has not requested exclusion from the
Class and who wants to object to the Settlement Agreement must mail a written objection to
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Settlement Administrator, no later than forty (40) calendar days after the initial distribution of
Email Notice. The delivery date is deemed to be the date the objection is deposited in the U.S.
Mail as evidenced by the postmark. Written objections must include: (i) the name of the lawsuit,
“Shamrell, et al. v. Apple Inc.”; (ii) the full name, address, and email address of the person
objecting; (iii) the words “Notice of Objection,” “Formal Objection” or words to that effect; and
(iii) in clear and concise terms, the legal and factual arguments supporting the objection, including
an attestation of facts demonstrating that the person objecting is a Class Member, and any
supporting documentation. Any Class Member that mails a written objection as described in this
paragraph has the option to appear at the Final Approval Hearing, either in person or through
counsel hired at the Class Member’s expense, to object to the Settlement Agreement, provided the
Class Members or their attorneys indicated their intent to appear in their written objection. Only
Class Members who timely mail objections clearly indicating an intent to appear may speak at the
Final Approval Hearing unless otherwise ordered by the Court. Class Members who fail to submit
written objections as described in this paragraph will be deemed to have waived any objections
and will be foreclosed from making any objections (whether by a subsequent objection,
intervention, appeal, or any other process) to the Settlement Agreement and the Class Member
asserting such an objection shall be bound by the final determination of the Court.
3.6 Exclusion Requests. Class Members may elect not to be part of the Class
and not to be bound by this Agreement. To make this election, Class Members must each send an
individual stand-alone, written exclusion request to the Settlement Administrator stating (i) the
name of the lawsuit, “Shamrell, et al. v. Apple Inc.”; (ii) the full name, address, and email address
of the person requesting exclusion; and (iii) a clear statement that he/she does not wish to
participate in the Settlement, postmarked no later than fifty (50) calendar days after the initial
distribution of Email Notice. Class Members may submit a request to be excluded from the class
by email or U.S. mail to the Settlement Administrator. Class Members may not request exclusion
and raise a valid, written objection to the Settlement Agreement. If a Class Member submits both,
the Settlement Administrator will treat the submissions as a request for exclusion and process them
accordingly.
3.7 Proof of Objection/Exclusion. The Settlement Administrator shall (i) date
stamp all original requests for exclusion and objections to the Settlement that it receives; and
(ii) serve copies on Class Counsel and Apple’s Counsel no later than five (5) business days after
receipt, or immediately if received within five (5) business days of the Final Approval Hearing.
Class Counsel shall provide the Court with copies of any requests for exclusion and written
objections as part of Plaintiffs’ motion for final approval.
3.8 Final Approval Motion and Final Approval Hearing. Prior to the Final
Approval Hearing and consistent with the rules imposed by the Court and applicable law, Plaintiffs
shall move the Court for entry of the Final Order and Judgment and, at the same time, move the
Court for an award of Attorneys’ Fees and Expenses and Service Awards. To the extent possible,
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the motions seeking entry of the Order of Final Approval shall be noticed for the same day as the
Final Approval Hearing. The Parties shall take all reasonable efforts to secure entry of the Order
of Final Approval.
3.9 Lawsuit Status if Settlement Agreement Not Approved. This Settlement
Agreement is being entered into for settlement purposes only. If the Court conditions its approval
of either the Preliminary Approval Order or the Final Order and Judgment on any modifications
of this Settlement Agreement that are not acceptable to all Parties, or if the Court does not approve
the Settlement Agreement or enter the Final Order and Judgment, or if the Effective Date does not
occur for any reason, then this Settlement Agreement will be deemed null and void ab initio. In
that event (i) the Preliminary Approval Order and/or Final Order and Judgment and all of its or
their provisions will be vacated by its or their own terms; (ii) the Action will revert to the status
that existed before the Settlement Agreement’s execution date, including the need to reset a new
trial date; (iii) no term or draft of this Settlement Agreement, or any part of the Parties’ settlement
discussions, negotiations, or documentation will have any effect or be admissible into evidence for
any purpose in the Action or any other proceeding; and (iv) Apple shall have no obligation to make
any payments under the Settlement Agreement, except that the Parties shall each be responsible
for the costs of, and any payments due to, the Settlement Administrator for services performed up
to that time.
4. ENTRY OF JUDGMENT AND RELEASES.
4.1 Judgment and Enforcement. The Parties agree that should the Court grant
final approval of the proposed settlement and enter judgment, the judgment shall include a
provision for the retention of the Court’s jurisdiction over the Parties to enforce the terms of the
judgment.
4.2 Releases. Upon entry of the Final Order and Judgment following the Final
Approval Hearing, all Class Members who have not timely requested exclusion pursuant to
paragraph 3.6, and each of their successors, assigns, heirs, and personal representatives, in
consideration of the settlement obligations set forth herein, hereby finally and irrevocably
compromise, settle, release and forever discharge with prejudice any and all claims, demands,
rights, causes of action, suits, petitions, complaints, damages of any kind, liabilities, debts, punitive
or statutory damages, penalties, losses and issues of any kind or nature whatsoever, asserted or
unasserted, known or unknown (including, but not limited to, any and all claims relating to or
alleging deceptive or unfair business practices, false or misleading advertising, intentional or
negligent misrepresentation, negligence, concealment, omission, unfair competition, promise
without intent to perform, unsuitability, unjust enrichment, or breach of warranty (implied or
express) and any and all claims or causes of action arising under or based upon any statute, act,
ordinance, or regulation governing or applying to business practices generally, including, but not
limited to, any and all claims relating to or alleging violation of Cal. Bus. & Prof. Code § 17200
- 17 -
et seq.; Cal. Bus. & Prof. Code § 17500 et seq.; Cal. Civ. Code § 1750 et seq.; Cal. Civ. Code §§
1792 et seq.; and 15 U.S.C. §§ 2301 et seq., arising out of or related to the Action, including the
alleged omissions and warranties at issue in the Action, that were asserted or reasonably could
have been asserted in the Action against the Released Parties, whether individual, class,
representative, legal, equitable, administrative, direct or indirect, or any other type or in any other
capacity, against the Released Parties (the “Released Claims”)..
The Parties hereby waive any and all rights and benefits arising out of the facts alleged in the
Action by virtue of the provisions of Civil Code § 1542, or any other provision in the law of the
United States, or any state or territory of the United States, or principle of common law or equity
that is similar, comparable or equivalent to Civil Code § 1542, with respect to this release. The
Releasing Parties are aware that Civil Code § 1542 provides as follows:
General release; extent. A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor at
the time of executing the release and that, if known by him or her, would have
materially affected his or her settlement with the debtor or released party.
Although the releases granted under this Settlement Agreement are not general releases, Plaintiffs,
on behalf of themselves and of all Class Members, nonetheless expressly acknowledge that
Plaintiffs and the Class Members are waiving the protections of Cal. Civ. Code § 1542 as to the
Class Members’ Release only. The Parties expressly acknowledge that they may hereafter discover
facts in addition to or different from those which they now know or believe to be true with respect
to the subject matter of the released claims described above, but the Participating Class Members,
upon the Effective Date, shall be deemed to have, and by operation of law shall have, fully, finally
and forever settled, released, and discharged any and all Released Claims known or unknown,
suspected or unsuspected, whether or not concealed or hidden, that now exist or heretofore have
existed upon any theory of law or equity, including, but not limited to, Released Claims based on
conduct that is negligent, reckless, intentional, with or without malice, or a breach of any duty, law
or rule, without regard to the subsequent discovery or existence of such different or additional
facts. The Parties agree that the Released Claims constitute a specific and not a general release.
The Parties shall be deemed to have agreed that the release set forth above will be and may be
raised as a complete defense to and will preclude any action or proceeding based on the Released
Claims. The Parties agree that any Participating Class Members are barred from bringing a future
claim against Apple on the same theories alleged in the Fourth Amended Complaint in this Action.
As of the Effective Date, by operation of entry of the Final Order and Judgment, the Released
Parties shall be deemed to have fully released and forever discharged Plaintiffs, all other Class
Members and Class Counsel from any and all claims of abuse of process, malicious prosecution,
or any other claims arising out of the initiation, prosecution or resolution of the Action,
including, but not limited to, claims for attorneys’ fees, costs of suit or sanctions of any kind, or
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any claims arising out of the allocation or distribution of any of the consideration distributed
pursuant to this Stipulation of Settlement.
5. ADDITIONAL PROVISIONS.
5.1 No Admission of Liability. This Settlement Agreement does not constitute
an admission on behalf of Apple of any form of liability or the accuracy of any allegation made in
this Action.
5.2 Confidentiality. Other than to a court in any case filing, Plaintiffs and
Class Counsel agree that the terms of this Settlement Agreement, the Parties’ various demands and
counter-offers, and all subsequently generated documents, including the negotiations leading to
the execution of the Settlement Agreement, and the Settlement Agreement and demands/counter-
offers themselves, shall not be disclosed by Plaintiffs and their attorneys without the advance
written consent of Apple. This prohibition includes, but is not limited to: (i) publications on any
website of the amount of the settlement, with or without identifying information; and (ii) the
submission of information to Jury Verdicts. The Parties intend this paragraph to prohibit Plaintiffs
and their attorneys from discussing, answering questions about, promoting or publicizing the
Settlement Agreement, or their terms, or the negotiations leading to the Settlement Agreement
with anyone other than a court, Class Members, or those individuals necessary to effectuate the
terms of the Settlement Agreement. Notwithstanding the foregoing, the Parties: (i) may respond
to inquiries from the press, and may tell the public in general only that this action “has been
resolved between the parties;” and (ii) may disclose the terms of the Settlement Agreement:
(a) where required by law (e.g., income tax returns); and (b) to accountants or other tax
professionals for the purpose of preparing tax forms. This Settlement Agreement shall remain
confidential until it is filed with the Court, at which point its terms will become public. After the
Settlement Agreement is filed with the Court, this paragraph and its provisions will continue to
apply only to (i) the terms of the demands/counter-offers, and (ii) the negotiations leading to the
execution of the Settlement Agreement.
5.3 Change of Time Periods. All time periods and dates described in this
Settlement Agreement are subject to the Court’s approval. These time periods and dates may be
changed by the Court or by the Parties’ written agreement without notice to the Class. The Parties
reserve the right, subject to the Court’s approval, to make any reasonable extensions of time that
might be necessary to carry out any provisions of this Settlement Agreement.
5.4 Good Faith. The Parties agree that the Settlement Agreement reflects their
good faith compromise of the claims raised in the Action, based upon their assessment of the
mutual risks and costs of further litigation and the assessments of their respective counsel.
5.5 Voluntary Agreement. The Parties executed this Agreement voluntarily
and without duress or undue influence.
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5.6 Parties Represented by Competent Counsel. The Parties acknowledge
that: (i) they have been represented by independent, competent counsel of their own choosing
during the negotiation and preparation of this Settlement Agreement; (ii) they have read this
Settlement Agreement and are fully aware of its contents; and (iii) their respective counsel fully
explained to them the Settlement Agreement and its legal effect.
5.7 Appeals. As part of the Settlement Agreement, the Parties waive their right
to file an appeal and/or a writ or any challenge whatsoever to the terms of the Final Order and
Judgment.
5.8 Entire Agreement. This Settlement Agreement contains the entire
agreement between the Parties and constitutes the complete, final, and exclusive embodiment of
their agreement with respect to the Action. This Settlement Agreement is executed without
reliance on any promise, representation, or warranty by any Party or any Party’s representative
other than those expressly set forth in this Settlement Agreement.
5.9 Construction and Interpretation. Neither a Party nor any of the Parties’
respective attorneys will be deemed the drafter of this Settlement Agreement for purposes of
interpreting any provision in this Settlement Agreement in any judicial or other proceeding that
may arise between them. This Settlement Agreement has been, and must be construed to have
been, drafted by all the Parties to it, so that any rule that construes ambiguities against the drafter
will have no force or effect.
5.10 Headings and Formatting of Definitions. The various headings used in
this Settlement Agreement are solely for the Parties’ convenience and may not be used to interpret
this Settlement Agreement. Similarly, bolding and italicizing of definitional words and phrases is
solely for the Parties’ convenience and may not be used to interpret this Settlement Agreement.
The headings and the formatting of the text in the definitions do not define, limit, extend, or
describe the Parties’ intent or the scope of this Settlement Agreement.
5.11 Modifications and Amendments. No amendment, change, or
modification to this Settlement Agreement will be valid unless in writing signed by the Parties or
their counsel.
5.12 Execution Date. This Settlement Agreement is deemed executed on the
date the Agreement is signed by all of the undersigned.
5.13 Counterparts. This Settlement Agreement may be executed in one or more
counterparts by facsimile or email, which for purposes of this Settlement Agreement shall be
accepted as an original. All executed counterparts will be deemed to be one and the same
instrument and will be admissible in evidence to prove the existence and contents of this Settlement
Agreement
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5.14 Recitals. The Recitals are incorporated by this reference and are part of the
Agreement.
5.15 Severability. If any provision of this Settlement Agreement is declared by
the Court to be invalid, void, or unenforceable, the remaining provisions of this Settlement
Agreement will continue in full force and effect, unless the provision declared to be invalid, void,
or unenforceable is material, at which point the Parties shall attempt to renegotiate the Settlement
Agreement or, if that proves unavailing, either Party can terminate the Settlement Agreement
without prejudice to any Party.
5.16 Notices. Unless otherwise specifically provided herein, all notices,
demands, or other communications given hereunder shall be in writing and shall be deemed to
have been duly given as of the third business day after mailing by United States registered or
certified mail, return receipt requested, addressed as follows:
To Class Counsel: To Defendant:
Deborah Dixon Matthew D. Powers
GOMEZ TRIAL ATTORNEYS O’MELVENY & MYERS LLP
655 West Broadway, Suite 1700 Two Embarcadero Center, 28th Floor
San Diego, CA 92101 San Francisco, CA 94111-3823
Tel: (619) 237-3490 Tel: (415) 984-8700
Fax: (619) 237-3496 Fax: (415) 984-8701
Email: [email protected] Email: [email protected]
If the identity of the person(s) to be notified for any Party changes or their address changes,
that Party shall notify all other Parties of said change in writing.
[Signature Page to Follow]
The Parties have agreed to the terms of this Settlement Agreement and have signed below.
ANTHONY SHAMRELL
Dated: October 24, 2019
Dated: October, 2019
Dated: October, 2019
By:
Anthony ShamrellPlaintiff and Class Representative
DARYL RYSDYK
By:
Daryl RysdykPlaintiff and Class Representative
APPLE INC.
By:
Noreen KrallVice President, Chief Legal Counsel
-21 -
The Parties have agreed to the terms of this Settlement Agreement and have signed below.
ANTHONY SHAMRELL
Dated: October , 2019
Dated: October)+ , 2019
Dated: October , 2019
By:
Anthony ShamrellPlaintiff and Class Representative
DARYL RYSDYK
By:
Daryl RysdykPlaintiff and Class Representative
APPLE INC.
By:
- 21 -
Noreen KrallVice President, Chief Legal Counsel
The Parties have agreed to the tenns of this Settlement Agreement and have signed below.
ANTHONY SHAMRELL
Dated: October _ , 2019 By:
Anthony Shamrell Plaintiff and Class Representative
DARYL RYSDYK
Dated: October _, 2019 By:
Daryl Rysdyk Plaintiff and Class Representative
APPLE INC.
Dated: October 1t:;, 2019 By:
Noreen Krall Vice President, Chief Legal Counsel
- 21 -
Approved as to form by:
Dated: October t5, 2019
Dated: October~ 2019
Dated: October_, 2019
GOMEZ TRIAL ATTORNEYS
By:
Deborah S. Dixon Counsel for Plaintiffs and Class
DOYLE LOWTHER LP
By:
illiam J. Doyle II Counsel for Plaint(fj~· and Class
O' MEL VENY & MYERS LLP
By:
- 22 -
Matthew D. Powers Counsel.for Apple Inc.
- 22 -
Approved as to form by:
Dated: October ___, 2019
GOMEZ TRIAL ATTORNEYS
By:
Deborah S. Dixon Counsel for Plaintiffs and Class
Dated: October ___, 2019
DOYLE LOWTHER LP
By:
William J. Doyle II Counsel for Plaintiffs and Class
Dated: October 25, 2019
O’MELVENY & MYERS LLP
By:
Matthew D. Powers Counsel for Apple Inc.
EXHIBIT A
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
Shamrell, et al. v. Apple Inc., Case No. 37-2013-00055830-CU-PL-CTL
CLAIM FORM
This Claim Form may be submitted online at www.powerbuttonclassaction.com or completed and mailed to the address below. Submit your completed Claim Form online or mail it so it is postmarked no later than [DATE]. If you received by email a Notice of Settlement to Direct-Pay Class Members, you need to submit an Address Confirmation/Update Form, NOT this Claim Form. Address Confirmation/Update Forms are available online at www.powerbuttonclassaction.com.
I. CLAIMANT INFORMATION
The Settlement Administrator will use this information for communications and payments. If this information
changes before settlement payments are issued, contact the Settlement Administrator at the address below.
First Name M.I. Last Name
Mailing Address, Line 1: Street Address/P.O. Box
Mailing Address, Line 2:
City: State: Zip Code:
Preferred Telephone Number
Email address
II. DEVICE INFORMATION: By submitting this Claim Form, I declare that I believe I am a Class Member and
that the following statements are true (check all that apply):
I purchased ____ Apple iPhone 4 smartphones from Apple or a third-party retailer, from June 24, 2010
through October 10, 2011, and the sleep/wake (power) button(s) stopped working or worked intermittently
during the first year after purchase. (Insert the total number of eligible iPhone 4 smartphones you
purchased in the blank above).
I purchased ____ Apple iPhone 4S smartphones from Apple or a third-party retailer, from October 11,
2011 through September 20, 2012, for the iPhone 4S, and the sleep/wake (power) button(s) stopped
working or worked intermittently during the first year after purchase. (Insert the total number of eligible
iPhone 4S smartphones you purchased in the blank above).
I purchased ____ Apple iPhone 5 smartphones from Apple or a third-party retailer prior to April 1, 2013,
and the sleep/wake (power) button(s) stopped working or worked intermittently during the first three years
after purchase. (Insert the total number of eligible iPhone 5 smartphones you purchased in the blank
above).
I further declare that I did not receive a repair or replacement from Apple (or one of its authorized service
providers) due to a non-working sleep/wake button on any of the smartphone devices identified above.
III. ATTESTATION & SIGNATURE: I declare under penalty of perjury that the information provided in this
Claim Form, to the best of my knowledge, is true and correct.
Signed: Date:
- -
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
Submit this Claim Form online or mail it to the address below postmarked no later than [DATE].
Shamrell, et al. v. Apple Inc.
Settlement Administrator
P.O. Box _________
City, ST _____-____
EXHIBIT B
Notice of Settlement to Claims-Made Class Members
To:
From:
Re: Settlement Notice - iPhone Sleep/Wake Button
iPhone Sleep/Wake Button Class Action Settlement - Submit a Claim Form for up to $24 per
device at www.powerbuttonclassaction.com to receive your settlement payment.
A settlement has been reached with Apple, Inc. (“Apple”) in a class action lawsuit alleging that
Apple sold the iPhone 4, iPhone 4S and iPhone 5 with defective sleep/wake (power) buttons and
failed to disclose (or insufficiently disclosed) this defect to purchasers in violation of various
California state laws.
Apple denies all of the allegations made in the lawsuit, and denies that Apple did anything
improper or unlawful. Apple has asserted numerous affirmative defenses to the claims in this case.
The proposed settlement is not an admission of any wrongdoing by Apple.
Who’s Included? The settlement includes (1) all California citizens who purchased one or more
iPhone 4 or 4S smartphones from Apple or a third-party retailer, from June 24, 2010 through
October 10, 2011 for the iPhone 4, and from October 11, 2011 through September 20, 2012 for
the iPhone 4S, and whose sleep/wake (power) button stopped working or worked intermittently
during a one year period from date of purchase, and (2) all California citizens who purchased one
or more iPhone 5 smartphones from Apple or a third-party retailer prior to April 1, 2013, and
whose sleep/wake (power) button stopped working or worked intermittently during a three year
period from date of purchase (together “Class Members”). People who have already had their Class
Device repaired or replaced by Apple for free because of a non-working sleep/wake button are
excluded from the Class.
What Does the Settlement Provide? A $20 million Settlement Fund has been established by Apple
in this settlement. After deducting Court-approved attorneys’ fees and expenses, service awards,
and the costs of settlement notice and administration, the net Settlement Fund will be made
available to Class Members who submit valid Claim Forms (and to those Class Members for whom
Apple has a record of a reported issue with the sleep/wake button on their Class Device, but no
record that Apple has already repaired or replaced that Class Device for free).
Your payment amount could be as much as $24 per Class Device. Final payments will be
calculated and distributed based on the total number of Class Members who submit valid Claim
Forms (and the number of Class Members for whom Apple has a record of a reported issue with
the sleep/wake button on their Class Device, but no record that Apple has already repaired or
replaced that Class Device for free).
How Do You Get a Payment? You must complete and submit a valid claim form by [DATE].
Claim Forms may be submitted online at www.powerbuttonclassaction.com, or printed from the
website and mailed to the address on the form. Claim Forms are also available by calling 1-855-
336-4060.
Your Other Options. If you do nothing, your rights will be affected and you won’t get a payment.
If you don’t want to be legally bound by the settlement, you must exclude yourself from it by
[DATE]. Unless you exclude yourself, you won’t be able to sue or continue to sue Apple for any
claim made in this lawsuit or released by the Settlement Agreement. If you stay in the settlement
(i.e., don’t exclude yourself), you may object to it or ask for permission for you or your own lawyer
to appear and speak at the hearing—at your own cost—but you don’t have to. Objections and
requests to appear are due by [DATE]. More information about these options is in the detailed
notice available at www.powerbuttonclassaction.com.
EXHIBIT C
SUPERIOR COURT OF SAN DIEGO COUNTY, CENTRAL DIVISION
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
If you purchased a new iPhone 4, 4S or 5 you could get a
payment from a class action settlement.
Includes: iPhone 4 purchases made from June 24, 2010 through October 10, 2011; Phone 4S purchases made from October 11, 2011 through September 20, 2012; and
iPhone 5 purchases made from April1, 2013 through March 2016.
A settlement has been reached with Apple, Inc. (“Apple”) in a class action lawsuit alleging that Apple sold the iPhone 4, iPhone 4S and iPhone 5 with defective sleep/wake (power) buttons and failed to disclose (or insufficiently disclosed) this defect to purchasers in violation of various California state laws.
You may be included in this settlement as a “Class Member” if you fit within one or both of the following Court certified Classes:
o iPhone 4 and 4S Class: All California citizens who purchased one or more iPhone 4 or 4S smartphones from Apple or a third-party retailer, from June 24, 2010 through October 10, 2011 for the iPhone 4, and from October 11, 2011 through September 20, 2012 for the iPhone 4S, and whose sleep/wake (power) button stopped working or worked intermittently during a one year period from date of purchase.
o iPhone 5 Class: All California citizens who purchased one or more iPhone 5 smartphones from Apple or a third-party retailer prior to April 1, 2013, and whose sleep/wake (power) button stopped working or worked intermittently during a three year period from date of purchase.
The iPhones described above are referred to as “Class Devices”.
o Excluded from the Classes are persons whose Class Device was already repaired or replaced by Apple for free due to a non-working sleep/wake button.
Your rights are affected whether you act or don’t act. Read this Notice carefully.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:
SUBMIT A CLAIM FORM DEADLINE: MONTH __, 2020
This is the only way you can receive a payment from this settlement if
Apple does not have a record of a reported issue with the sleep/wake button on your Class Device (and no record that Apple has already provided a free repair or replacement for that device). If you submit a Claim Form, you will give up the right to sue Apple in a separate lawsuit about the claims this settlement resolves.
ASK TO BE EXCLUDED DEADLINE: MONTH __, 2020
If you decide to exclude yourself, you will keep the right to sue Apple in a separate lawsuit about the claims this settlement resolves, but you give up the right to get a payment from this settlement.
This is the only option that allows you to sue, continue to sue, or be part of another lawsuit against Apple related to the legal claims in this case.
OBJECT TO THE SETTLEMENT DEADLINE: MONTH __, 2020
If you do not exclude yourself from the settlement, you may object to it by writing to the Court about why you don’t like the settlement.
GO TO A HEARING ON: MONTH __, 2020
You may object to the settlement and ask the Court for permission to speak at the fairness hearing about your objection.
DO NOTHING
If you are a Class Member, you are automatically part of the settlement. If you do nothing, you will not get a payment from this settlement and you will give up the right to sue, continue to sue, or be part of another lawsuit against Apple for any claim made in this lawsuit or released by the Settlement Agreement.
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
2
These rights and options—and the deadlines to exercise them—are explained in this Notice.
The Court in charge of this case still has to decide whether to approve the settlement.
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
3
BASIC INFORMATION 1. Why was this Notice issued?
A state Court authorized this Notice because you have a right to know about the proposed settlement of this class action lawsuit and about all of your options before the Court decides whether to grant final approval to the proposed settlement. This Notice explains the lawsuit, the settlement, your legal rights, what benefits are available, and who can get them.
The Honorable Ronald L. Styn of the Superior Court of San Diego County, Central Division, is overseeing this class action. The case is known as Shamrell, et al. v. Apple Inc., Case No. 37-2013-00055830-CU-PL-CTL. The people who filed this lawsuit are called the “Plaintiffs” and the company they sued, Apple, Inc., is called the “Defendant.”
2. What is this lawsuit about?
The lawsuit alleges that Apple sold the iPhone 4, iPhone 4S and iPhone 5 with defective sleep/wake (power) buttons and failed to disclose (or insufficiently disclosed) this defect to purchasers in violation of various California state laws. The lawsuit sought relief for alleged claims of breach of warranty and alleged violations of the California Consumers Legal Remedies Act, the California Unfair Competition Law, the California Song-Beverly Act and the Magnuson-Moss Warranty Act.
Apple denies all of the allegations made in the lawsuit, and denies that Apple did anything improper or unlawful. Apple has asserted numerous affirmative defenses to the claims in this case. The proposed settlement is not an admission of guilt or any wrongdoing by Apple.
3. What is a class action?
In a class action, one or more people or entities called Class Representatives or Plaintiffs (in this case Anthony Shamrell and Daryl Rysdyk) sue on behalf of other people with similar claims. The people included in the class action are called the Class or Class Members. One court resolves the issues for all Class Members, except for those who exclude themselves from the Class.
4. Why is there a settlement?
The Court did not decide in favor of the Plaintiffs or Defendant. Instead, the Plaintiffs and Defendant agreed to a settlement. This way, they avoid the cost, burden and uncertainty of a trial and the people allegedly affected can get benefits. The Class Representatives and their attorneys think the settlement is best for all Class Members.
WHO IS INCLUDED IN THE SETTLEMENT
5. How do I know whether I am part of the settlement?
On January 7, 2019, following multiple rounds of class certification briefing, including two appeals to the California Court of Appeal, the Court certified two classes. You are included in the settlement if you fit within one or both of the certified class definitions, which are defined as:
iPhone 4 and 4s Class: All California citizens who purchased one or more iPhone 4 or 4s smartphones from Apple or a third-party retailer, from June 24, 2010 through October 10, 2011 for the iPhone 4, and from October 11, 2011 through September 20, 2012 for the iPhone 4s, and whose sleep/wake (power) button stopped working or worked intermittently during a one year period from date of purchase.
iPhone 5 Class: All California citizens who purchased one or more iPhone 5 smartphones from Apple or a third-party retailer prior to April 1, 2013, and whose sleep/wake (power) button stopped working or worked intermittently during a three year period from date of purchase.
6. Are there exceptions to being included?
Yes, the settlement does not include persons whose class iPhone was repaired or replaced by Apple due to a non-working sleep/wake button.
7. What if I am still not sure whether I am part of the settlement?
If you are not sure whether you are included, call 1-855-336-4060, go to www.powerbuttonclassaction.com, or write to one of the lawyers listed in Question 18 below.
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
4
THE SETTLEMENT BENEFITS—WHAT YOU GET IF YOU QUALIFY
8. What does the settlement provide?
A $20 million Settlement Fund has been established by Apple in this settlement. After deducting Court-approved attorneys’ fees and expenses, service awards, and the costs of settlement notice and administration, the net Settlement Fund will be made available to Class Members who submit valid Claim Forms (and to those Class Members for whom Apple has a record of a reported issue with the sleep/wake button on their Class Device, but no record that Apple has already repaired or replaced that Class Device for free).
9. How much will my payment be?
Your payment amount could be as much as $24 per Class Device. Final payments will be calculated and distributed based on the total number of Class Members who submit valid Claim Forms (and the number of Class Members for whom Apple has a record of a reported issue with the sleep/wake button on their Class Device, but no record that Apple has already repaired or replaced that Class Device for free).
HOW TO GET A SETTLEMENT PAYMENT—SUBMITTING A CLAIM FORM
10. How do I get a payment?
If you received a notice by email or mail indicating that you are required to submit a Claim Form, you must complete and submit a valid claim form by [DATE] in order to receive a payment under the proposed settlement. Claim Forms may be submitted online at www.powerbuttonclassaction.com, or printed from the website and mailed to the address on the form. Claim Forms are also available by calling 1-855-336-4060.
If you received a notice via email that was directed to “Direct-Pay Class Members”, this indicates that Apple has a record of a reported issue with the sleep/wake button on your Class Device, but no record that Apple has already repaired or replaced your Class Device for free. In order to receive your settlement payment, you must update or confirm your mailing address by [DATE] in order to receive a settlement payment. You may confirm or update your address online at www.powerbuttonclassaction.com or by calling 1-855-336-4060.
11. When would I get my payment?
The Court will hold a hearing at __:_0 _.m. on [DATE] to decide whether to grant final approval to the settlement If the Court approves the settlement, there may be appeals. It is always uncertain whether appeals will be filed and, if so, how long it will take to resolve them. Settlement payments will be distributed to Class Members as soon as possible, if and when the Court grants final approval to the settlement. The Court may also elect to move the Fairness Hearing to a different date or time in its sole discretion, without providing further Notice to the Class.
12. What rights am I giving up to get a payment and stay in the Class?
Unless you exclude yourself, you are staying in the Class. If the settlement is approved and becomes final, all of the Court’s orders will apply to you and legally bind you. You won’t be able to sue, continue to sue, or be part of any other lawsuit against Apple and certain related parties for any claim made in this lawsuit or released by the Settlement Agreement. The rights you are giving up are called Released Claims.
13. What are the Released Claims?
Generally, if and when the Settlement Agreement becomes final, Class Members will permanently release Apple, Inc., (including its present or former affiliates, agents, attorneys , contractors, divisions, employees, holding companies, insurers, servants, shareholders, sister corporations, officers, directors, representatives, and successors) from claims relating to the sleep/wake button on the iPhone 4, 4s and 5.The specific claims you will be releasing are described in more detail in paragraph 4.2 of the Settlement Agreement, available at www.powerbuttonclassaction.com.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you want to keep the right to sue or continue to sue Apple for any claim made in this lawsuit or released by the Settlement Agreement, and you do not want to receive a payment from this settlement, you must take steps to get out of the settlement. This is called excluding yourself or opting out of the settlement.
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
5
14. How do I get out of the settlement?
If you want to be excluded from the settlement you must mail a written request for exclusion to the Settlement Administrator. Your request for exclusion must include: (1) your full name, address and email address; (2) the name of this case, Shamrell, et al. v. Apple Inc., Case No. 37-2013-00055830-CU-PL-CTL; (3) a clear statement indicating that you are a Class Member and you wish to be excluded from the Class; and (4) your signature. Your request for exclusion must be mailed to the Settlement Administrator at the address below and postmarked no later than [DATE]:
Shamrell, et al. v. Apple Inc. Settlement Administrator
P.O. Box 404111 Louisville, KY 40233-4111
15. If I exclude myself, can I still get a payment from this settlement?
No. If you exclude yourself, you are telling the Court that you don’t want to be part of the Class in this settlement. You can only get a payment if you stay in the Class and provide or confirm your address or submit a Claim Form (if needed).
16. If I do not exclude myself, can I sue Apple for the same claims later?
No. Unless you exclude yourself, you are giving up the right to sue Apple for the claims that this settlement resolves. You must exclude yourself from this lawsuit to start or continue with your own lawsuit or be part of any other lawsuit against Apple.
THE LAWYERS REPRESENTING YOU
17. Do I have a lawyer in this case?
Yes. Judge Styn appointed Doyle Lowther, LLP and Gomez Trial Attorneys to represent you and other Class Members as “Class Counsel.” These law firms and their lawyers are experienced in handling similar cases. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
18. How will the lawyers be paid?
Class Counsel will ask the Court for an award of attorneys’ fees from the Settlement Fund, as well as reimbursement of their expenses. The Court will determine these amounts. All of these amounts, as well as the costs associated with administering the settlement and service awards to the Class Representatives ($10,000 each, if approved), will be paid from the Settlement Fund before making payments to qualifying Class Members.
OBJECTING TO THE SETTLEMENT
You can tell the Court if you don’t agree with the settlement or any part of it.
19. How do I tell the Court that I do not like the settlement?
If you are a Class Member, you can object to the settlement if you do not like it or a portion of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter via First Class U.S. mail saying that you object to the settlement of Shamrell, et al. v. Apple Inc., Case No. 37-2013-00055830-CU-PL-CTL. Your objection must also include: (1) your full name; (2) address; (3) email address; (4) telephone number; (5) signature; (6) the words “Notice of Objection” or “Formal Objection,” or words to that effect; and (5) a clear statement setting forth the factual and/or legal reasons why you object to the settlement. Mail your objection to all three addresses below postmarked on or before [DATE].
Clerk of the Court Class Counsel Defense Counsel
Clerk of the Superior Court of California, County of San Diego, Central Division 330 W. Broadway, Room 225 San Diego, CA 92101
Deborah Dixon Gomez Trial Attorneys 655 W. Broadway, Suite 1700 San Diego, CA 92101
Matthew D. Powers O’Melveny & Myers LLP 2 Embarcadero Ctr., 28th Fl. San Francisco, CA 94111
20. May I come to Court to speak about my objection?
QUESTIONS? CALL 1-855-336-4060 TOLL-FREE OR VISIT WWW.POWERBUTTONCLASSACTION.COM
6
Yes. You or your attorney may speak at the Fairness Hearing about your objection. To do so, in addition to the information above, your objection must also include: (1) a statement that it is your “Notice of Intention to Appear at the Fairness Hearing Shamrell, et al. v. Apple Inc., Case No. 37-2013-00055830-CU-PL-CTL; (2) an outline of your positions and the reasons for them; and (3) copies of any supporting documents or briefs you want the Court to consider. Remember, your objection must be postmarked by [DATE] and sent to all three addresses in Question 19.
21. What is the difference between objecting to the settlement and asking to be excluded from it?
Objecting is simply telling the Court that you don’t like something about the settlement. You can object only if you stay in the Class (do not exclude yourself). Excluding yourself is telling the Court that you don’t want to be part of the Class. If you exclude yourself, you cannot object because the settlement no longer affects you.
THE COURT’S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you don’t have to.
22. When and where will the Court decide whether to approve the settlement?
The Court will hold a Fairness Hearing at __:_0 _.m. on [DATE] at the Superior Court of California, County of San Diego, Central Division, 330 W. Broadway, Room 225, San Diego, California 92101. At this hearing, the Court will consider whether to approve the settlement; Class Counsel’s request for attorneys’ fees and expenses; and the service awards to the Class Representatives. If there are objections, the Court will consider them. Judge Styn will listen to people who have asked to speak at the hearing (see Question 21 above). At the hearing, the Court will decide whether to approve the settlement. The Court may elect to move the Fairness Hearing to a different date or time in its sole discretion, without providing further Notice to the Class. The date and time of the final Fairness Hearing can be confirmed at www.powerbuttonclassaction.com.
23. Do I have to come to the hearing?
No. Class Counsel will answer any questions Judge Styn may have. However, you are welcome to come to the hearing at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but that is not necessary.
24. May I speak at the hearing?
Yes. You may ask the Court for permission to speak at the Fairness Hearing (see Question 21 above).
IF YOU DO NOTHING
25. What happens if I do nothing at all?
If you are a Class Member and you do nothing, you will give up the rights explained in Question 13, including your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Apple for any claim made in this lawsuit or released by the Settlement Agreement. In addition, you will not receive a payment from the Settlement Fund.
GETTING MORE INFORMATION
26. How do I get more information?
This Notice summarizes the proposed settlement. Complete details are provided in the Settlement Agreement. The Settlement Agreement and other related documents are available at www.powerbuttonclassaction.com, by calling 1-855-336-4060, or by writing to the Settlement Administrator at: Shamrell, et al. v. Apple Inc. Settlement Administrator, P.O. Box 404111, Louisville, KY 40233-4111.
EXHIBIT D
Court-Directed Notice regarding Class Action Settlement
Shamrell, et al. v. Apple Inc. Para obtener una notificación en español, póngase en contacto con
nosotros o visite nuestro sitio web www.powerbuttonclassaction.com
LEGAL NOTICE
IF YOU PURCHASED A
NEW IPHONE 4 FROM
JUNE 24, 2010 THROUGH
OCTOBER 10, 2011 OR
IPHONE 4S FROM
OCTOBER 11, 2011
THROUGH SEPTEMBER 20,
2012 OR THE IPHONE 5
PRIOR TO APRIL 1, 2013
THROUGH MARCH 31,
2016, YOU COULD GET A
PAYMENT FROM A CLASS
ACTION SETTLEMENT.
XXX
«Barcode» Postal Service: Please do not mark barcode
Claim#: XXX-«ClaimID»-«MailRec»
«First1» «Last1»
«CO»
«Addr2»
«Addr1»
«City», «St» «Zip»
«Country»
Shamrell et al. v. Apple Class Litigation
P.O. Box 404111
Louisville, KY 40233-4111
A settlement has been reached with Apple, Inc. (“Apple”) in a class action lawsuit alleging that Apple sold the iPhone 4, iPhone 4S and iPhone 5 with defective sleep/wake (power) buttons and failed to disclose (or insufficiently disclosed) this defect to purchasers in violation of various California state laws. Apple denies all of the allegations, and denies that Apple did anything improper or unlawful.
Who’s Included? The settlement includes (1) all California citizens who purchased one or more iPhone 4 or 4S smartphones from Apple or a third-party retailer, from June 24, 2010 through October 10, 2011 for the iPhone 4, and from October 11, 2011 through September 20, 2012 for the iPhone 4S, and whose sleep/wake (power) button stopped working or worked intermittently during a one year period from date of purchase, and (2) all California citizens who purchased one or more iPhone 5 smartphones from Apple or a third-party retailer prior to April 1, 2013, and whose sleep/wake (power) button stopped working or worked intermittently during a three year period from date of purchase (together “Class Members”). People who have already had their Class Device repaired or replaced by Apple for free because of a non-working sleep/wake button are excluded from the Class.
What Does the Settlement Provide? A $20 million Settlement Fund has been established by Apple in this settlement. After deducting Court-approved attorneys’ fees and expenses, service awards, and the costs of settlement notice and administration, the net Settlement Fund will be made available to Class Members who submit valid Claim Forms (and to those Class Members for whom Apple has a record of a reported issue with the sleep/wake button on their Class Device, but no record that Apple has already repaired or replaced that Class Device for free).
Your payment amount could be as much as $24 per Class Device. Final payments will be calculated and distributed based on the total number of Class Members who submit valid Claim Forms (and the number of Class Members for whom Apple has a record of a reported issue with the sleep/wake button on their Class Device, but no record that Apple has already repaired or replaced that Class Device for free).
How Do You Get a Payment? You must complete and submit a valid claim form by [DATE]. Claim Forms may be submitted online at www.powerbuttonclassaction.com, or printed from the website and mailed to the address on the form. Claim Forms are also available by calling 1-855-336-4060.
Your Other Options. If you do nothing, your rights will be affected and you won’t get a payment. If you don’t want to be legally bound by the settlement, you must exclude yourself from it by [DATE]. Unless you exclude yourself, you won’t be able to sue or continue to sue Apple for any claim made in this lawsuit or released by the Settlement Agreement. If you stay
in the settlement (i.e., don’t exclude yourself), you may object to it or ask for permission for you or your own lawyer to appear and speak at the hearing—at your own cost—but you don’t have to. Objections and requests to appear are due by [DATE]. More information about these options is in the detailed notice available at www.powerbuttonclassaction.com.
DO NOT CONTACT THE COURT FOR ANY REASON.
EXHIBIT E
Notice of Settlement to Direct-Pay Class Members
To:
From:
Re: Settlement Notice - iPhone Sleep/Wake Button
iPhone Sleep/Wake Button Class Action Settlement. Claim your settlement payment by
confirming or updating your address at www.powerbuttonclassaction.com.
Apple’s Records Indicate You Reported An Issue With The Sleep/Wake Button On Your
iPhone 4, 4S or 5 and There Is No Record Of A Repair Or Replacement Provided For Free.
A settlement has been reached with Apple, Inc. (“Apple”) in a class action lawsuit alleging that
Apple sold the iPhone 4, iPhone 4S and iPhone 5 with defective sleep/wake (power) buttons and
failed to disclose (or insufficiently disclosed) this defect to purchasers in violation of various
California state laws.
Apple denies all of the allegations made in the lawsuit, and denies that Apple did anything
improper or unlawful. Apple has asserted numerous affirmative defenses to the claims in this case.
The proposed settlement is not an admission of any wrongdoing by Apple.
Who’s Included? The settlement includes (1) all California citizens who purchased one or more
iPhone 4 or 4S smartphones from Apple or a third-party retailer, from June 24, 2010 through
October 10, 2011 for the iPhone 4, and from October 11, 2011 through September 20, 2012 for
the iPhone 4S, and whose sleep/wake (power) button stopped working or worked intermittently
during a one year period from date of purchase, and (2) all California citizens who purchased one
or more iPhone 5 smartphones from Apple or a third-party retailer prior to April 1, 2013, and
whose sleep/wake (power) button stopped working or worked intermittently during a three year
period from date of purchase (together “Class Members”). People who have already had their Class
Device repaired or replaced by Apple for free because of a non-working sleep/wake button are
excluded from the Class.
What Does the Settlement Provide? A $20 million Settlement Fund has been established by Apple
in this settlement. After deducting Court-approved attorneys’ fees and expenses, service awards,
and the costs of settlement notice and administration, the net Settlement Fund will be made
available to Class Members who submit valid Claim Forms (and to those Class Members for whom
Apple has a record of a reported issue with the sleep/wake button on their Class Device, but no
record that Apple has already repaired or replaced that Class Device for free).
Your payment amount could be as much as $24 per Class Device. Final payments will be
calculated and distributed based on the total number of Class Members who submit valid Claim
Forms (and the number of Class Members for whom Apple has a record of a reported issue with
the sleep/wake button on their Class Device, but no record that Apple has already repaired or
replaced that Class Device for free).
How Do You Get a Payment? You must update or confirm your mailing address by [DATE] in
order to receive a settlement payment. You may update or confirm your mailing address at
www.powerbuttonclassaction.com or by calling 1-855-336-4060.
Your Other Options. If you do nothing, your rights will be affected and, if the Settlement
Administrator does not have your current address, you won’t get a payment. If you don’t want to
be legally bound by the settlement, you must exclude yourself from it by [DATE]. Unless you
exclude yourself, you won’t be able to sue or continue to sue Apple for any claim made in this
lawsuit or released by the Settlement Agreement. If you stay in the settlement (i.e., don’t exclude
yourself), you may object to it or ask for permission for you or your own lawyer to appear and
speak at the hearing—at your own cost—but you don’t have to. Objections and requests to appear
are due by [DATE]. More information about these options is in the detailed notice available at
www.powerbuttonclassaction.com.
EXHIBIT F
1
STIPULATED UNDERTAKING REGARDING ATTORNEYS’ FEES & COSTS
Defendant Apple, Inc, (“Apple”), and Plaintiffs Anthony Shamrell and Daryl Rysdyk
(“Plaintiffs”) (collectively, “the “Parties”), by and through and including their undersigned counsel, stipulate and agree as follows:
WHEREAS, Class Counsel, including, collectively, the law firms of Doyle Lowther LLP
and Gomez Trial Attorneys, desire to give an undertaking (the “Undertaking”) for repayment of any award of Attorneys’ Fees and Costs approved by the Court;
WHEREAS, the Parties agree that this Undertaking is in the interests of all Parties and in
service of judicial economy and efficiency; NOW, THEREFORE, the undersigned Class Counsel, on behalf of themselves and as
agents of their law firms, Doyle Lowther LLP and Gomez Trial Attorneys, by making this Undertaking, hereby submit themselves and their law firms, Doyle Lowther LLP and Gomez Trial Attorney, and its shareholders, members, and/or partners, to the jurisdiction of the Superior Court of California for the County of San Diego, the Honorable Ronald L. Styn presiding (“the Court”), for the purpose of enforcing the provisions of this Undertaking and any and all disputes relating to or arising out of the reimbursement obligation set forth herein and in the Settlement Agreement. Capitalized terms used herein without definition have the meanings given to them in the Settlement Agreement. In the event that the Final Approval Order and Judgment is vacated, overturned, reversed, or rendered void as a result of an appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, in whole or in part, Class Counsel shall, within thirty (30) days repay to Defendant the full amount of the attorneys’ fees and costs paid by Defendant and distributed to Class Counsel by the Settlement Administrator.
In the event the attorney fees and costs awarded by the Court or any part of them are
vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Defendant the attorneys’ fees and costs paid by Defendant and distributed to Class Counsel by the Settlement Administrator in the amount vacated or modified.
This Undertaking and all obligations set forth herein shall expire upon finality of all direct
appeals of the Final Approval Order and Judgment. In the event Class Counsel fails to repay to Defendant any of the attorneys’ fees and costs
that are owed to it pursuant to this Undertaking, the Court shall, upon application of Defendant, and notice to Class Counsel, including notice to the law firms of Doyle Lowther LLP and Gomez Trial Attorney, summarily issue orders, including but not limited to judgments and attachment orders against each of Class Counsel, Doyle Lowther LLP and Gomez Trial Attorneys for the full amount of the attorney’s fees and costs plus any additional attorney’s fees or costs incurred by Defendant in connection with the litigation or enforcement of this Undertaking, and may make appropriate findings for sanctions for contempt of court.
The undersigned stipulates, warrants, and represents that they have both actual and apparent authority to enter into this stipulation, agreement, and undertaking on behalf of the law firms of Doyle Lowther LLP and Gomez Trial Attorneys, respectively.
This Undertaking may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Signatures by facsimile or electronic signature shall be deemed the same as original signatures.
The undersigned declare under penalty of perjury under the laws of the State of California that they have read and understand the foregoing and that it is true and correct.
IT IS SO STIPULATED THROUGH COUNSEL OF RECORD:
Dated: October :262019
/ Dated: October~ , 2019
John H. Gomez (SBN 171485) Deborah S. Dixon (SBN 248965) GOMEZ TRIAL ATTORNEYS 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 Fax: (619)237-3496
By //?~ .. On beha(l<?lthemselves and Gomez Trial Atlorneys Allorneys.fiJr Plaint([# and the Class
William J. Doyle (SBN 188069) John LO\vther (SBN 207000) Christopher W. Cantrell (SBN 290874) DOYLE LOWTHER LLP 4400 NE 77111 Avenue, Suite 275 Vancouver, Washington 98662 Telephone: (360) 818-9320 fax : (360) 450-3116
By lsj~ On beha(l<~lthemselves and Doyle Lowther LLP Allorneys for Plaintiff~· and the Class
2
3
Dated: October 25, 2019 David R. Eberhart (S.B. #195474)
Matthew D. Powers (S.B. #212682) Damali A. Taylor (S.B. #262489) E. Clay Marquez(S.B. #268424) O’MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, California 94111-3823 Telephone: (415) 984-8700 Facsimile: (415) 984-8701
By: Attorneys for Defendant Apple, Inc.
EXHIBIT 2
JOHN H. GOMEZ
Mr. Gomez founded Gomez Trial Attorneys in 2005. He acts today as President and Lead Trial
Attorney. Mr. Gomez graduated from the Nation’s top ranked law school, Yale University, in
1993. He clerked for the Hon. Marilyn Huff of the United States District Court, Southern
District. He worked for the international law firm of Latham & Watkins and served the United
States as an Assistant United States Attorney.
Mr. Gomez established himself as one of California’s most recognized and accomplished trial
lawyers. Lawyers USA named him the national Lawyer of the Year in 2010. He has twice been
named San Diego’s Trial Lawyer of the Year. The Consumer Attorneys of San Diego have
awarded him an unprecedented nine separate Outstanding Trial Lawyer Awards. He has been
named a Top 100 California Attorney overall by the Los Angeles Daily Journal, a Top 10 San
Diego attorney overall by San Diego Metropolitan Magazine, and was voted by peers as a top 10
San Diego Super Lawyer in 2012, 2013 and 2014. He was featured as the subject of the cover
story in that 2012 publication.
He was voted by peers as the top attorney in San Diego for 2015 overall in polling conducted by
Super Lawyers rating service. Best Lawyers in America named him the San Diego 2011 and 2012
Plaintiffs Products Liability Attorney of the Year and the 2015 Class Action and Mass Tort
Attorney of the Year. Avvo rates him a 10.0 out of 10.0 and he has been voted by his peers as a
top ten San Diego litigator in three separate fields: Personal Injury, Insurance and Corporate
Litigation. Since 2000, he has recovered over $300 million in settlements and verdicts for his
clients with more than 75 separate recoveries of one million dollars or more. Perhaps most notably,
Mr. Gomez has obtained 4 separate jury verdicts of one million dollars or more in which the
defendant offered absolutely nothing to settle prior to trial. Mr. Gomez also serves in leadership
roles relating to numerous coordinated litigations involving defective drugs and medical devices.
Mr. Gomez is a proud member of the American Board of Trial Advocates.
Mr. Gomez is also a member of the Summit Council, a national group of our country’s finest trial
lawyers for plaintiffs. Members are nationally recognized by their peers as top civil justice
advocates. All members have obtained at least one ten million dollar jury verdict and at least three
jury verdicts in excess of one million dollars as lead counsel in jury trials, have served as the
President or Chair of a state or national civil justice association, or have served as Chair of a
plaintiff’s steering committee for a major mass tort or class action litigation. Membership is
limited to less than thirty lawyers nationally and is by invitation only. Summit Council members
work collaboratively to ensure the very highest level of representation to each of their clients.
Mr. Gomez’s clients benefit from access to this highly exclusive and talented group.
Professional Awards & Recognitions: Consumer Attorneys of San Diego “Trial Lawyer of the Year”
2006 and 2010; Consumer Attorneys of San Diego “Outstanding Trial Lawyer” (12 time recipient); Super
Lawyer 2008-2019 (Top 10 San Diego Super Lawyer 2012-14; 2018); Best Lawyers In America 2007-
2013; Best Lawyers in America San Diego Plaintiffs Products Liability Attorney of the Year, 2011-2012
Best Lawyers in America 2015 Class Action and Mass Tort Attorney of the Year; San Diego Daily
Transcript “Top 10” San Diego Attorney (Peer Review Polling) 2005-2015; Lawyers USA National
“Lawyer of the Year”; American Board of Trial Advocates, Associate; Summit Council, Member
(invitation only to less than thirty lawyers nationally); San Diego County Bar Association “Community
Service Award” Recipient, 2012; Martindale Hubbell AV-rated.
Professional Service: Consumer Attorneys of California, 2013 Executive Board; Consumer
Attorneys of San Diego, 2012 President; Chicano Federation, Board Member; La Cuna,
(nonprofit dedicated to placing Latino foster children), former Board Chair; San Diego County
Bar Association, former Board Member; San Diego Volunteer Lawyers Program, former Board
Member; and National Institute of Trial Advocacy, Faculty Member
DEBORAH S. DIXON
Deborah Dixon is Of Counsel at Gomez Trial Attorneys. She manages the class action practice,
focusing on products liability and consumer claims. She also litigates complex, multi-party claims,
including wage and gender discrimination claims. She remains active in trials, as well as complex
litigation, including co-trying two multi-week class action jury trials.
Prior to joining Gomez Trial Attorneys, Ms. Dixon had significant litigation with complex matters
as a partner with Wingert Grebing Brubaker & Juskie, where she also had clerked during law
school and litigated cases for 8 years. During her tenure with Wingert Grebing Ms. Dixon litigated
hundreds of complex cases and completed several trials and arbitrations.
Ms. Dixon is recognized as a Super Lawyer by Super Lawyers magazine from 2017 through 2019
and was previously recognized as a Super Lawyers “Rising Star” from 2014 through 2016.
Deborah was named by San Diego Metro Magazine as one of the best and brightest in San Diego
in its “40 Under 40” designation; as “Best of the Bar” by The San Diego Business Journal from
2014- 2016 and recognized by the San Diego Daily Transcript as a Top Attorney and the 2012
Top Young Attorney, as well as a 2012 Woman of Influence. Recently she was also selected “Top
40 under 40” by The National Trial Lawyers.
Ms. Dixon is a past-president of Lawyers Club of San Diego (2015-2016), the largest professional
bar association in San Diego. Prior to serving as president, Ms. Dixon served as a Director on
Lawyers Club’s Board of Directors for three years. She then served Lawyers Club as the co-chair
of its non-profit, Fund for Justice from 2016-2018 and remains on Lawyers Club’s Advisory Board.
In 2016, Ms. Dixon was selected for a three-year term to serve as a Lawyer Representative to the
United States District Court, Southern District, acting as a liaison between the federal bar and bench
and coordinating seminars for the judiciary and participating in the Ninth Circuit Judicial
Conference.
Ms. Dixon graduated from California Western School of Law in 2007, and has remained active,
serving as a past-president of the Alumni Association Board of Directors; an adjunct professor of
the Distinguished Advocates Trial Skills Class and Alternative Dispute Resolution and as a coach
for the mock trial teams
Relevant Case Experience
Class Counsel, Marcy Krinsk, et al. v. Monster Beverage Corporation, et al., San Diego
Superior Court Case No. 37-2014-00020192-CU-BT-CTL before Hon. Joel R. Wohlfeil
Class trial counsel completing over three-week class action jury trial Allen v. Hyland’s,
Inc., United States District Court, Central District, Western Division Case No. 12-cv-1150- DMG-
MAN before Hon. Dolly M. Gee;
Class trial counsel completing a multi-week class action jury trial, Union Square at
Broadway Homeowners Association v. Western Pacific Housing-Broadway, et al., San Diego
Superior Court Case No. 37-2011-0091935-CU-CD-CTL before Hon. Ronald L. Styn;
Class Counsel, In re Sony Vaio Computer Notebook Trackpad Litigation, United States District Court, Southern District of California, Case No. 09-cv-02109-BAS-MDD, Hon. Cynthia A. Bashant;
Class Counsel, Allen v. Similasan Corporation, et al. United States District Court, Southern
District of California Case No. 3:12-cv-00376-BAS-JLB, Hon. Cynthia A. Bashant;
Lead Counsel in Saylor v. Toyota, et al., Los Angeles Superior Court Case No. CCP 4621,
Hon. Amy D. Hogue;
Lead Trial Counsel in In re: DePuy ASR Hip System Cases, Los Angeles Superior Court
JCCP Proceeding No. 4649, Hon. Mary E. Wiss;
Lead Trial Counsel in In re Cold Therapy Cases, San Diego Superior Court Case No.
JCCP 4680, Hon. Joel M. Pressman;
Plaintiffs Steering Committee In re: Invokana (Canagliflozin) Products Liability
Litigation, MDL No. 2750, United States District Court, District of New Jersey, Hon. Brian R. Martinotti;
Plaintiffs Executive Committee In re: Fresenius Granuflo/Naturalyte Dialysate Products
Liability Litigation, MDL No. 2428, United States District Court, District of Massachusetts, Hon. Douglas P. Woodlock, J.;
Plaintiffs Executive Committee and Coordinating Firm In re JCCP 4771, Zoloft Birth
Defect Cases, Orange County Superior Court JCCP No. 4771, Hon. Kim G. Dunning;
Plaintiffs Executive Committee and Coordinating Firm In re JCCP 4786, Paxil Birth
Defect Cases II, Los Angeles Superior Court JCCP No. 4786, Hon. Amy D. Hogue;
Lead Counsel for 111 Consolidated Cases In re Chariot Wildfire Litigation, United States
District Court, Southern District of California, Case No. 14-cv-01437-AJB-KSC, before Hon.
Anthony J. Battaglia;
Leadership In re Biomet M2A Magnum Hip Implant Products Liability Litigation, United
States District Court Northern District of Indiana, South Bend Division, MDL 2391 before Hon. Robert L. Miller; and
Leadership Fitbit JCCP 4880, San Diego Superior Court before Hon. Eddie C. Sturgeon
Lead Trial Counsel, Emanuel Richard Giglio v. Monsanto Company, United States District
Court, Northern District of California, Case No. 3:16-cv-05658-VC before Hon. Vince Chhabria
Lead Trial Counsel, Burrell Lamb, et al. v. Monsanto Company, Circuit Court of the County
of St. Louis, State of Missouri, Case No. 18SL-CC03681 before Hon. Michael T. Jamison