tentative aliens: colonial marines settlement

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Plaintiff Locke’s Motion for Preliminary Approval of Class Action Settlement

Case No. 3:13-cv-01962-JD

Mark S. Eisen (SBN 289009) [email protected] EDELSON PC 555 West Fifth Street, 31st Floor Los Angeles, California 90013 Tel: 213.533.4100 Fax: 213.947.4251 Rafey S. Balabanian (Admitted pro hac vice) [email protected] Benjamin S. Thomassen (Admitted pro hac vice) [email protected] EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiffs and the Putative Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

DAMION PERRINE and JOHN LOCKE, individually and on behalf of all others similarly situated, Plaintiffs, v. SEGA OF AMERICA, INC., a California corporation, and GEARBOX SOFTWARE, L.L.C., a Texas limited liability company, Defendants.

Case No. 3:13-cv-01962-JD PLAINTIFF LOCKE’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT

Date: September 17, 2014 Time: 9:30 a.m.

Judge: Honorable James Donato Action Filed: April 29, 2013

Case3:13-cv-01962-JD Document78 Filed08/11/14 Page1 of 30

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NOTICE OF MOTION

NOTICE IS HEREBY GIVEN that on September 17, 2014 at 9:30 a.m., or at such other

time as may be set by the Court, Plaintiff John Locke will move the Court, pursuant to Federal

Rule of Civil Procedure 23, to grant preliminary approval of the partial class action settlement

reached by Plaintiff Locke and Defendant Sega of America, Inc., and attached hereto as Exhibit 1,

in Courtroom 11, 19th Floor, 450 Golden Gate Avenue, San Francisco, California 94102, before

the Honorable James Donato.

Plaintiff Locke seeks preliminary approval of this class action settlement, certification of

the proposed settlement class, appointment of Plaintiff Locke as class representative, and

appointment of his counsel as class counsel. The Motion is based on this Notice of Motion, the

Memorandum of Points and Authorities, oral argument of counsel, all documents in the record,

and any other matter that may be submitted or raised at the hearing.

Dated: August 11, 2014

Respectfully Submitted, JOHN LOCKE, individually and on behalf of the Class of similarly situated individuals,

/s/_Rafey S. Balabanian__________ One of Plaintiff’s Attorneys

Rafey S. Balabanian (Admitted pro hac vice) [email protected] Benjamin S. Thomassen (Admitted pro hac vice) [email protected] EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiffs and the Putative Class


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Table of Contents

I. INTRODUCTION ............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 2

A. The Facts ...................................................................................................................... 2

B. The Litigation and Settlement History ...................................................................... 3

III. TERMS OF THE SETTLEMENT AGREEMENT ....................................................... 5

A. Monetary Relief ........................................................................................................... 5

B. Notice and Administrative Expenses ......................................................................... 6

C. Incentive Award for Class Representative ................................................................ 6

D. Attorneys’ Fees and Expenses .................................................................................... 6

E. Release .......................................................................................................................... 6

IV. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED .................... 6

A. The Requirement of Numerosity is Satisfied ............................................................ 8

B. The Requirement of Commonality is Satisfied ......................................................... 8

C. The Requirement of Typicality is Satisfied ............................................................... 9

D. The Requirement of Adequate Representation is Satisfied ................................... 10

E. The Proposed Settlement Class Meets the Requirements of Rule 23(b)(3) ......... 11

1. Common Questions of Law and Fact Predominate ............................................... 12

2. A Class Action is the Superior Method for Adjudicating this Controversy .......... 12

V. THE COURT SHOULD APPOINT PLAINTIFF’S COUNSEL AS CLASS COUNSEL ........................................................................................................................ 14

VI. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY APPROVAL ..................................................................................................................... 14 A. The Settlement is the Product of Serious, Informed,

Non-Collusive Negotiations ...................................................................................... 15

B. There Are No Obvious Deficiencies in the Proposed Settlement .......................... 16

C. The Proposed Settlement Does Not Give Preferential Treatment to Any Settlement Class Members ....................................................................................... 17

D. The Settlement Falls Within the Range of Possible Approval .............................. 17

VII. THE PROPOSED NOTICE PLAN SHOULD BE APPROVED ................................ 20


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VIII. CONCLUSION ................................................................................................................ 22


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Table of Authorities

United States Supreme Court Cases:

Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................. 7, 13

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) .................................................................... 20

Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011) ............................................ 7

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ............................................................. 7, 8

United States Circuit Court of Appeals Cases:

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ...................................................... 7

Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012) .......................................... 8

Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ......................................................... 9

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ............................................................ 12

In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) .................................................. 19

In re Syncor ERISA Litig., 516 F.3d 1095 (9th Cir. 2008) ........................................................... 14

Murray v. GMAC Mortg. Corp., 434 F.3d 948 (7th Cir. 2006) .................................................... 13

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) ........................................................................ 7

Sullivan v. DB Invs., Inc., 667 F.3d 273 (3d Cir. 2013) ................................................................ 19 United Steel, Paper & Forestry, Rubber, Mfg. Energy Allied Indus. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802 (9th Cir. 2010) ....................................... 7

Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) ................................................. 13

Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 2010) ..................... 9, 12, 13

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) .......................................... 11

United States District Court Cases:

Beck-Ellman v. Kaz USA, Inc., 283 F.R.D. 558 (S.D. Cal. 2012) ............................................... 7 Boring v. Bed Bath & Beyond of Cal. LLC, No. 12-cv-05259, 2013 WL 6145706 (N.D. Cal. Nov. 21, 2013) .......................................................... 15, 17

Bruno v. Quten Research Inst., LLC, 280 F.R.D. 524 (C.D. Cal. 2011) ................................... 12

Celano v. Marriott Int’l, Inc., 242 F.R.D. 544 (N.D. Cal. 2007) .................................................... 8

Chamberlan v. Ford Motor Co., 223 F.R.D. 524 (N.D. Cal. 2004) .................................... 11, 13


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Ching v. Siemens Indus., Inc., No. 11-cv-4838, 2013 WL 6200190 (N.D. Cal. Nov. 26, 2013) ......................................................... 15, 17

Cole v. Asurion Corp., 267 F.R.D. 322 (C.D. Cal. 2010) ........................................................... 9 Cordy v. USS-Posco Indus.,

No. 12-cv-00553, 2014 WL 212587 (N.D. Cal. Jan. 17, 2014) ............................... 15, 17

Guido v. L’Oreal, USA, Inc., 284 F.R.D. 468 (C.D. Cal. 2012) ........................................... 7, 9, 12 Harris v. Marketing Corp., No. 08-cv-5198, 2011 WL 1627973 (N.D. Cal. Apr. 29,2011) ................................................................ 15 Holloway v. Full Spectrum Lending, No. 06-cv-5975, 2007 WL 7698843 (C.D. Cal. June 26, 2007) ............................................................... 13

In re Ferrero Litig., 278 F.R.D. 552 (S.D. Cal. 2011) .............................................................. 11

In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346 (N.D. Cal. 2005) ..................................... 8

In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) .............................. 15, 17

Johns v. Bayer Corp., 280 F.R.D. 551 (S.D. Cal. 2012) ............................................................... 12 Nigh v. Humphreys Pharmacal, Inc., No. 12-cv-12714, 2013 WL 5995382 (S.D. Cal. Oct. 23, 2013) .................................................................... 16 Tijero v. Aaron Bros., Inc., No. 10-cv-01089, 2013 WL 6700102 (N.D. Cal. Dec. 19, 2013) ................................................................. 17

Vandervort v. Balboa Capital Corp., 287 F.R.D. 554 (C.D. Cal. 2012) ................................... 13 Villegas v. J.P. Morgan Chase & Co., No. 09-cv-00261, 2012 WL 5878390 (N.D. Cal. Nov. 21, 2012) .......................................................... 17, 19 Weeks v. Kellogg Co., No. 09-cv-08102, 2013 WL 6531177 (C.D. Cal. Nov. 23, 2013) ............ 20 Whitten v. ARS Nat. Servs., Inc., No. 00 C 6080, 2001 WL 1143238 (N.D. Ill. Sept. 27, 2001) ................................................................ 11 Williams v. Costco Wholesale Corp., No. 02-cv-2003, 2010 WL 761122 (S.D. Cal. Mar. 4, 2010) ................................................................... 15 Wyatt v. Creditcare, Inc., No. 04-cv-03681, 2005 WL 2780684 (N.D. Cal. Oct. 25, 2005) ..... 10 Zeisel v. Diamond Foods, Inc., No. 10-cv-01192, 2011 WL 2221113 (N.D. Cal. June 7, 2011) ................................................................. 10

California Court of Appeal Cases:

In re Vioxx Class Cases, 103 Cal. Rptr. 3d 83 (Cal. Ct. App. 2009) ........................................ 18


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Statutes:

Cal. Bus. & Prof. Code § 1720 et seq ......................................................................................... 3, 4

Cal. Bus. & Prof. Code § 17500 et seq ........................................................................................... 3

Cal. Civ. Code § 1750 et seq ........................................................................................................... 3

Fed. R. Civ. P. 23 .................................................................................................................. passim

28 U.S.C. § 1715 .......................................................................................................................... 21

Miscellaneous:

Federal Judicial Center, Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide

(2010), available at http://www.fjc.gov/public/pdf.nsf/lookup/NotCheck.pdf/ $file/NotCheck.pdf ............................................................................................................ 20

Herbert B. Newberg & Alba Conte, Newberg on Class Actions (4th ed. 2002) ..................... 14, 20

Manual for Complex Litigation (Fourth) (2004) .................................................................... 7, 14 National Consumer Law Center, About Us, http://www.nclc.org/about-us/about-us.html (last visited July 30, 2014) ........ 16


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I. INTRODUCTION

This proposed class action settlement resolves claims against Defendant Sega of America,

Inc. (“Sega”) arising out of the allegedly deceptive marketing of the highly-anticipated video game

Aliens: Colonial Marines, produced and developed by Sega and co-Defendant Gearbox Software,

LLC (“Gearbox”).1 The agreement, reached after extensive investigation, substantive motion

practice, formal and informal discovery, and a lengthy mediation with the Honorable Rebecca

Westerfield (ret.) at JAMS in San Francisco, provides an exceptional result for consumers who

purchased the video game based on alleged misrepresentations about its quality and features.

Specifically, the agreement provides that Sega will establish a $1,250,000 non-reversionary

settlement fund that, following payment of certain costs and expenses, will be distributed to

claimants within the class.

Avoiding some of the pitfalls of other settlements, no amount of the fund will revert back

to Sega. Nor will any amount of the fund be distributed to cy pres unless and until every class

member submitting a valid claim has received a distribution from the settlement fund up to a full

refund of their purchase price. And depending on how many class members ultimately submit

claims against the fund, it is entirely possible that claiming class members will receive a full

refund, making them more than whole, considering that they will also get to keep the video game.

In any event, even if every member of the proposed class submitted a claim, they would each still

receive a significant portion of their purchase price back, and because this is not a case about a

worthless or non-functional product, but rather, class members being induced to overpay for the

game, such a recovery would still be appropriate. And all of this will be achieved while avoiding

the risk, delay, and expense of continued litigation against Sega. Also, and quite importantly, the

settlement only releases claims against Sega—not Gearbox— so the litigation will continue as to

1 Aliens: Colonial Marines is a “first-person shooter” game that, while hailed as the true sequel to James Cameron’s 1986 film Aliens, puts the player in the role of a United States Colonial Marine on a search-and-rescue mission occurring after the events of the film Alien 3 (1992). In the game, the player encounters enemies including aliens from the film franchise and human mercenaries.


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that defendant with the prospect of further recovery. Indeed, class members who are not made

whole from the settlement fund created by this partial settlement—either because they choose not

to submit a claim against the fund or because they submitted a claim but received a payment less

than their total injury—will have another chance to recover in this litigation against Gearbox. In

short, the instant settlement is an excellent result for the class.

Accordingly, and as further discussed below, Plaintiff John Locke (“Plaintiff”) respectfully

requests that this Court certify a class for settlement purposes, appoint him as representative of the

settlement class and his counsel as class counsel, preliminarily approve the partial settlement, and

approve a plan to notify the class of the same.

II. BACKGROUND

A. The Facts2

In 2006, to much fanfare, Sega announced it would produce a video game sequel to the

1986 blockbuster film Aliens, entitled Aliens: Colonial Marines. The game was to be developed

by Gearbox. Production of the game suffered several delays, however, and Plaintiff alleges that by

2011 consumer excitement for the game began to wane. Plaintiff goes on to allege that Sega and

Gearbox began a marketing campaign to once again drum up anticipation for the game’s

approaching release date, and that as part of their marketing efforts, and as is the norm in the

industry, they jointly hosted narrated demonstrations of Aliens: Colonial Marines where their

agents would play the game before a crowd. Video footage of the demonstrations was uploaded to

Sega’s YouTube channel for the general public to view and featured on various popular video

game industry websites. Plaintiff alleges that while Sega and Gearbox each represented and

promoted the demonstrations as exhibiting actual gameplay content from the to-be-released retail

version of the game, in reality the retail version turned out to be nothing like the game

2 The parties’ differing takes on certain facts have been well-documented for the Court, and Plaintiff provides his view of the facts here insofar as they provide necessary context for consideration of the fairness of the instant settlement. (See Dkts. 1, 14, 26, 29, 30, 31, 43.) Sega, of course, disputes Plaintiff’s version of the facts, and denies any wrongdoing whatsoever.


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demonstrated to consumers. Plaintiff maintains that consumers who purchased the game on or

before its February 12, 2013 retail release date did not learn of the differences until after purchase.

In the fall of 2012, Plaintiff preordered a copy of Aliens: Colonial Marines based on the

many gameplay demonstrations he had seen. (Dkt. 26 ¶ 76, 81.) He received his copy of the game

in the mail on February 12, 2013, the day it was released. (Id.)3 Approximately 135,000

individuals in the United States also purchased copies of the game on or before the release date of

February 12, 2013. (Declaration of Rafey S. Balabanian (“Balabanian Decl.”) ¶ 7, a copy of which

is attached as Exhibit 2.)4 Plaintiff asserts that had he known that certain features present in the

demonstrations would not exist in the retail version of the game, he would have either waited to

purchase the game (and taken advantage of the price drops that occurred shortly after the game’s

release) or not purchased the game at all, and contends that other early purchasers would have

done the same. (Dkt. 26 ¶¶ 80, 83, 127, 146, 152, 163, 174.)

B. The Litigation and Settlement History

On July 5, 2013, in response to these alleged misrepresentations regarding Aliens: Colonial

Marines’s gameplay, Plaintiff filed a First Amended Complaint pleading the following causes of

action: (a) violation of California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code

§ 1750 et seq.; (b) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.

Code § 1720 et seq.; (c) violation of California’s False Advertising Law (“FAL”), Cal. Bus. &

Prof. Code § 17500 et seq.; (d) breach of express warranties; (e) fraud in the inducement; and (f)

negligent misrepresentation of the use, functionality, operation, and performance of the game.

3 Defendants sold three versions of Aliens: Colonial Marines: (1) a PC version that sold for $50, (2) a console version available for Xbox 360 and PlayStation 3 that sold for $60, and (3) a collector’s edition of the console version that sold for $100 and included, in addition to the game, a collectible figure and special packaging.

4 While the parties had previously represented to the Court that approximately 150,000 individuals had purchased the game on or before the release date, Sega has informed Plaintiff that that number included all North American purchasers, including those in Mexico and Canada. According to Sega, the number of U.S. purchasers is estimated to be on the order of 132,000–135,000. (Balabanian Decl. ¶ 7.)


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(Dkt. 26.)5 Sega and Gearbox moved to dismiss, arguing that software is not a covered “good”

under the CLRA and that Plaintiff failed to set out the terms of the warranty at issue in his breach

of express warranty claims. (Dkt. 29.) On October 10, 2013, after full briefing, the Court denied

the motion to dismiss in its entirety. (Dkts. 30, 31, 32.) Sega and Gearbox then jointly answered

the amended complaint, denying the material allegations of the complaint and setting forth eight

affirmative defenses. (Dkt. 43.)

With the pleadings set, both sides initiated discovery, including the propounding of

interrogatories and requests for production, and the scheduling of Plaintiff’s deposition.

(Balabanian Decl. ¶ 4.) During the discovery process, counsel for both sides also began discussing

the possibility of attempting to resolve this matter through private mediation. (Id. ¶ 5.)

Consequently, they agreed to focus the exchange of discovery on issues each side would need to

effectively advocate their respective settlement position, including information regarding the size

of the class and the marketing and sale of the game. (Id. ¶¶ 5–6.)6 The parties also drafted and

exchanged mediation briefs prior to the mediation that contained additional factual information as

well as each side’s ultimate legal positions. (Id. ¶ 8.)

On January 21, 2014, counsel for the parties met at JAMS in San Francisco and engaged in

a full day of mediated negotiations with the assistance of Judge Westerfield. (Balabanian Decl.

¶ 9.) At the end of the day, the parties had made substantial progress towards a resolution but were

unable to reach an agreement. (Id.) However, Plaintiffs left Sega and Gearbox with their best-and-

final offer: a $1.25 million non-reversionary settlement to release just Sega, or a $2 million non-

5 An original complaint had been filed by Damion Perrine, another purchaser of the game. (Dkt. 1.) Mr. Perrine has since decided that he is no longer able to serve as a named plaintiff in this matter, and has moved to withdraw as a plaintiff and to voluntarily dismiss his claims without prejudice. (Dkt. 69.)

6 This information included the number of copies of the game sold as of the release date, a copy of the agreement entered into between Sega and Gearbox to develop and publish the game, a complete list of all trailers advertising the game, links and descriptions of the code used to create the game trailers, and a detailed description of a live gameplay event that took place shortly before the game’s release date. (Balabanian Decl. ¶ 6.)


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reversionary settlement to release both defendants. (Id.) After some further negotiations, the

parties reached a compromise in which claims against both Defendants would be released in

exchange for their creating a $2 million settlement fund, with the potential for a partial reverter of

$750,000. (Id. ¶ 10.)

At a case management conference on June 26, 2014, however, this Court expressed some

concerns about the terms of that compromise agreement, and Locke and Sega thus attempted to re-

negotiate the agreement to address those concerns. (Balabanian Decl. ¶ 11.) Ultimately, Sega

agreed to the settlement that Plaintiff had proposed at the end of the mediation, which Plaintiff

now presents to this Court for preliminary approval. (Id.) Gearbox declined to participate in the

settlement, is not contributing to any portion of the proposed settlement payment, and thus is not a

party to this settlement. (Id. ¶ 12.) Consequently, the proposed settlement releases no claims

against Gearbox, and litigation is expected to continue against Gearbox even if the proposed

settlement with Sega is approved. (Id.)

III. TERMS OF THE SETTLEMENT AGREEMENT

A copy of the settlement agreement between Plaintiff and Sega (the “Settlement

Agreement” or “Agreement”) is attached hereto as Exhibit 1. The key terms of the Agreement are

briefly summarized as follows:

A. Monetary Relief

Sega has agreed to establish a settlement fund of $1,250,000. (Agreement § 1.34.)

Following payment of all settlement administration expenses, attorneys’ fees, and an incentive

award, the money in the fund will be distributed pro rata to all class members who submit a

simple, three-question claim form. (Agreement § 2.1(a).) The amount that any individual class

member may receive from the fund is capped at the amount they paid for the game. (Id.) In the

event that any money remains in the fund after each individual class member submitting a valid

claim has received a full refund of their purchase price, any such remainder shall be donated to the

National Consumer Law Center (“NCLC”) and Consumers Union. (Agreement § 1.9; 2.1(b).) In

no event shall any portion of the fund revert to Sega.


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B. Notice and Administrative Expenses

The settlement will be administrated by KCC Class Action Services (“KCC”). (Agreement

§ 1.31.) All notice and administrative expenses will be paid from the fund, and, pursuant to an

agreement with KCC, shall not exceed $200,000. (Agreement § 1.30.)

C. Incentive Award for Class Representative

In recognition of Plaintiff’s time and effort serving as class representative, the parties have

agreed that, subject to this Court’s approval, Plaintiff shall be paid an incentive award of $2,500

from the fund in addition to any amounts to which he is otherwise entitled as a claiming class

member. (Agreement § 9.3.)

D. Attorneys’ Fees and Expenses

The parties have agreed that Plaintiff’s counsel shall be paid reasonable attorneys’ fees and

expenses from the fund in an amount to be determined by this Court but not exceeding $312,500.

(Agreement §§ 9.1–9.2.)

E. Release

In exchange for the relief described above, Sega—but not Gearbox—will receive a full

release of all claims related to Aliens: Colonial Marines, including claims relating to the design,

marketing, operation of, or warranties provided in connection with, the game. (Agreement

§§ 1.24–1.26; 3.1–3.2.)

IV. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED Plaintiff respectfully requests that the following class be certified: All persons in the United States and its territories that, prior to or on February 12, 2013, paid for a copy of Aliens: Colonial Marines.7

This class is the same as that proposed in the original complaint in this action. (Dkt. 1 ¶¶ 66–67.)

7 Plaintiff further requests that the following persons be excluded from the class: (1) all persons who file timely requests for exclusion; (2) all persons who had their claims discharged in bankruptcy, finally adjudicated on the merits, or otherwise released against Sega; (3) Sega, the settlement administrator, and any respective parent, subsidiary, affiliate, or control person of either, as well as their officers, directors, agents, servants, or employees; (4) any judge presiding over this action; and (5) the immediate family members of any such person.


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Prior to granting preliminary approval of a settlement, a court should determine that the

proposed settlement class is proper for settlement purposes, and thus appropriate for certification.

Manual For Complex Litigation § 21.632 (4th ed. 2004); Amchem Prods. Inc. v. Windsor,

521 U.S. 591, 620 (1997); Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). To certify a

class, Plaintiff must demonstrate that the proposed class and proposed class representative meet

the following prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of

representation. Fed. R. Civ. P. 23(a)(1)–(4). Where, as here, Plaintiff seeks certification under

Rule 23(b)(3), he must also show that common questions of law or fact predominate and that

maintenance of the lawsuit as a class action is superior to other methods of adjudication. Fed. R.

Civ. P. 23(b)(3); see also Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184

(2011). Although in some cases a court may have to “probe behind the pleadings” to determine

whether the plaintiffs have met the requirements of Rule 23, courts only consider the merits of a

plaintiff’s claim insofar as they overlap with the certification requirements. Wal-Mart Stores, Inc.

v. Dukes, 131 S. Ct. 2541, 2551–52 (2011); see also Ellis v. Costco Wholesale Corp., 657 F.3d

970, 981 (9th Cir. 2011); United Steel, Paper & Forestry, Rubber, Mfg. Energy Allied Indus. &

Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (stating that a

court’s class certification determination should be based on the analysis of Rule 23’s criteria and

not on the underlying merits of the claim).

Moreover, courts throughout the Ninth Circuit have held that certification is appropriate in

cases such as this, where the class’s claims are based primarily upon the uniform design,

marketing, and sale of a product of diminished value. See, e.g., Beck-Ellman v. Kaz USA, Inc.,

283 F.R.D. 558, 566 (S.D. Cal. 2012) (citing collected cases) (“Courts routinely certify diminished

value/overpayment claims . . . .”); Guido v. L’Oreal, USA, Inc., 284 F.R.D. 468, 478 (C.D. Cal.

2012) on reconsideration, 2012 WL 2458118 (C.D. Cal. June 25, 2012) (certifying class that

suffered loss in value and usefulness of product based on alleged omissions and

misrepresentations in advertising and promotion). In this case, the proposed class meets each of

the prerequisites for certification.


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A. The Requirement of Numerosity is Satisfied

The numerosity prerequisite is met when “the class is so numerous that joinder of all

members is impractical.” Fed. R. Civ. P. 23(a)(1). To satisfy this requirement there is no

“specific” number required, nor are plaintiffs required to state the “exact” number of potential

class members. Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 548 (N.D. Cal. 2007). Rather,

courts are permitted to “make common sense assumptions to support a finding that joinder would

be impracticable.” In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005).

Generally, courts find the numerosity requirement satisfied when the proposed class comprises 40

or more members. Celano, 242 F.R.D. at 549.

Through discovery and the exchange of information prior to mediation, Sega confirmed

that approximately 135,000 U.S. consumers purchased Aliens: Colonial Marines either on or

before February 12, 2013. (Balabanian Decl. ¶ 7.) Accordingly, there is no question that joinder of

all members of the proposed class would be impractical and that Rule 23(a)(1)’s numerosity

requirement is satisfied.

B. The Requirement of Commonality is Satisfied

The second threshold to certification requires that “there are questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). Simply put, commonality requires the

representative plaintiffs to demonstrate that the proposed class members “have suffered the same

injury.” Dukes, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157

(1982)). The common contention must be of such a nature that it is capable of class-wide

resolution, and that the “determination of its truth or falsity will resolve an issue that is central to

the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at 2545. Moreover, the

permissive standard of commonality does not require all questions to be common and provides

that “[w]here the circumstances of each particular class member vary but retain a common core of

factual or legal issues with the rest of the class, commonality exists.” Evon v. Law Offices of

Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (quoting Parra v. Bashas’, Inc., 536 F.3d

975, 978–79 (9th Cir. 2008)). Commonality is satisfied here.

Plaintiff alleges that Defendants made identical, false and misleading statements to the


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class by advertising the same exact “actual gameplay” demonstrations to them. Plaintiff also

claims that the class members suffered injuries identical in nature, as they all received the same

game of lesser value in lieu of what they were allegedly promised and paid for. (Dkt. 26 at ¶¶ 19–

50.) As a result, some of the common factual questions include (1) whether Defendants made false

representations regarding the features and gameplay of Aliens: Colonial Marines; (2) whether

Defendants made these representations to induce consumers into purchasing the game; (3) whether

Defendants notified consumers that they would not include the represented features in the retail

version of the game; and (4) whether these common facts establish violations of the California

statutory and common law claims thereby entitling Plaintiff and the class to relief (and the nature

of such relief).

Regardless of the answers to any of these questions, they will be the same for Plaintiff and

each member of the class because they are not based on any individual class member’s conduct,

but instead, on Defendants’ alleged uniform marketing campaign and warranties, and thus can be

resolved in a single stroke. See Guido, 284 F.R.D. at 477 (concluding that commonality is satisfied

when there are “issues of whether defendants’ alleged omissions and misrepresentations . . . are

unlawful, deceptive, unfair, or misleading to reasonable consumers. . . .”).

Thus, there are multiple questions of law and fact common to the proposed class members,

and the commonality requirement is satisfied.

C. The Requirement of Typicality is Satisfied

Rule 23 next requires that Plaintiff’s claims be typical of those of the proposed settlement

class. Fed. R. Civ. P. 23(a)(3). “The purpose of the typicality requirement is to assure that the

interest of the named representative aligns with the interests of the class.” Wolin v. Jaguar Land

Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). The typicality requirement is closely

related to the commonality requirement and is satisfied if the plaintiff’s claims arise from the same

practice or course of conduct that gives rise to the claims of other class members. Cole v. Asurion

Corp., 267 F.R.D. 322, 326 (C.D. Cal. 2010) (citing Hanon v. Dataproducts Corp., 976 F.2d 497,

508 (9th Cir. 1992)). Under the rule’s permissive standards, “[r]epresentative claims are ‘typical’

if they are reasonably co-extensive with those of absent class members; they need not be


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substantially identical,” however. Zeisel v. Diamond Foods, Inc., No. 10-cv-01192, 2011 WL

2221113, at *7 (N.D. Cal. June 7, 2011) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020

(9th Cir. 1998)).

Here, Plaintiff and the proposed settlement class share the same legal theories that are

based upon the same core set of alleged facts and result in a claim for uniform damages. That is,

Plaintiff and the proposed class members were each subjected to the same alleged uniform and

widely disseminated misrepresentations about the actual gameplay of Aliens: Colonial Marines.

And because the retail version failed to live up to the alleged misrepresentations, each member of

the proposed settlement class, like Plaintiff, overpaid for the game. Accordingly, by pursuing his

own claims, Plaintiff will necessarily advance the interests of the settlement class in satisfaction of

Rule 23(a)(3)’s typicality requirement.

D. The Requirement of Adequate Representation is Satisfied

The final Rule 23(a) prerequisite requires that the proposed class representative has and

will continue to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

This factor requires both that “the named representatives . . . appear able to prosecute the action

vigorously through qualified counsel, and . . . not have antagonistic or conflicting interests with

the unnamed members of the class.” Wyatt v. Creditcare, Inc., No. 04-cv-03681, 2005 WL

2780684, at *5 (N.D. Cal. Oct. 25, 2005) (quoting Lerwill v. Inflight Motion Pictures, Inc.,

582 F.2d 507, 512 (9th Cir. 1978)). In this case, Plaintiff has no interests antagonistic to those of

the settlement class. (Balabanian Decl. ¶ 20.) In fact, Plaintiff has the exact same interests as the

other proposed class members because they have all been injured in the exact same manner by

Defendants’ alleged conduct, and Plaintiff thus has and will continue to adequately represent the

interests of the settlement class. (Id.)

Further, proposed class counsel have regularly engaged in major complex litigation

involving consumer technology issues, have frequently been appointed lead class counsel by

courts throughout the country, have the resources necessary to conduct litigation of this nature,

and have extensive experience in consumer class action lawsuits that are similar in size, scope, and

complexity to the present case. (Balabanian Decl. ¶ 18; see also Firm Resume of Edelson PC, a


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true and accurate copy of which is attached as Exhibit A to the Balabanian Declaration.)

Specifically, proposed class counsel have prosecuted numerous class actions related to the alleged

fraudulent design and marketing of various types of software and consumer goods. See id; see also

Whitten v. ARS Nat. Servs., Inc., No. 00 C 6080, 2001 WL 1143238, at *4 (N.D. Ill. Sept. 27,

2001) (“The fact that attorneys have been found adequate in other cases is persuasive evidence

that they will be adequate again.” (internal quotation marks omitted)). In addition, proposed class

counsel have already diligently pursued the claims at issue in this action through their own

investigation and discovery, participated in substantive motion practice, dedicated substantial

resources to reaching the Settlement Agreement and to the case in general, and will continue to do

so throughout its pendency. (Balabanian Decl. ¶ 19.) Accordingly, both Plaintiff and his counsel

have and will continue to adequately represent the proposed settlement class, and thus the final

Rule 23(a) requirement is satisfied.

E. The Proposed Settlement Class Meets the Requirements of Rule 23(b)(3)

In addition to meeting the prerequisites of Rule 23(a), the proposed settlement class must

also meet one of the three requirements of Rule 23(b) for class certification. Zinser v. Accufix

Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001) amended by 273 F.3d 1266. Plaintiff

seeks to certify the class under Rule 23(b)(3), which requires that (1) the questions of law and fact

common to members of the class predominate over any questions affecting only individuals, and

(2) the class action mechanism is superior to other available methods for the fair and efficient

adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). Certification under Rule 23(b)(3) is

appropriate and encouraged “whenever the actual interests of the parties can be served best by

settling their differences in a single action.” In re Ferrero Litig., 278 F.R.D. 552, 559 (S.D. Cal.

2011) (citing Hanlon, 150 F.3d at 1022). The same is true when class members will likely choose

not to pursue an action based on the small amount of redress available. See Chamberlan v. Ford

Motor Co., 223 F.R.D. 524, 527 (N.D. Cal. 2004) (“The policy at the very core of the class action

mechanism is to overcome the problem that small recoveries do not provide the incentive for any

individual to bring a solo action prosecuting his or her rights.”) (quoting Amchem, 521 U.S. at

617).


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1. Common Questions of Law and Fact Predominate.

Rule 23(b)(3)’s predominance requirement tests “whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” Wolin, 617 F.3d at 1172 (quoting Amchem,

521 U.S. at 623). “When common questions present a significant aspect of the case and they can

be resolved for all members of the class in a single adjudication, there is clear justification for

handling the dispute on a representative rather than an individual basis.” Hanlon, 150 F.3d at

1022. Here, there is little question that the common issues stemming from Defendants’ alleged

conduct predominate in this litigation.

For alleged deceptive marketing cases like this one, “[c]ourts in California routinely find

that [the predominance] inquiry focuses on the Defendants’ representations about the

product . . . .” Bruno v. Quten Research Inst., LLC, 280 F.R.D. 524, 537 (C.D. Cal. 2011) (holding

that “the central predominating question is whether Defendants’ marketing statements about [the

product are] materially misleading”). Plaintiff here alleges that Defendants intentionally

misrepresented the “actual gameplay” of Aliens: Colonial Marines through demonstrations of a

version of the game they knew was superior to the version that would ultimately be sold at retail.

(Dkt. 26 ¶¶ 27–50.) Plaintiff further alleges that these demonstrations were performed widely at

leading video game expos such as E3 (2011 and 2012), Penny Arcade Expo (2011 and 2012), and

Gamescon (2011); were uploaded to Sega’s YouTube channel; and were otherwise widely

distributed prior to the game’s February 2013 retail release. (Id.) Where, as here, “each class

member purchased [defendant’s product] and was subject to the same deceptive marketing and

advertising,” predominance is satisfied. Guido, 284 F.R.D. at 481. See also Johns v. Bayer Corp.,

280 F.R.D. 551, 558 (S.D. Cal. 2012) (“[W]hen plaintiffs are exposed to a common advertising

campaign, common issues predominate.”).

2. A Class Action is the Superior Method for Adjudicating this Controversy.

Further satisfying Rule 23(b)(3)’s requirements, this class action is superior to other

available methods for the fair and efficient adjudication of the proposed settlement class’s claims.

The purpose of the superiority requirement is judicial economy and assurance that a class action is

the “most efficient and effective means of resolving the controversy.” Wolin, 617 F.3d at 1175–76;


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see also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234–35 (9th Cir. 1996) (describing a

class action as superior when it will reduce the costs inherent in litigation and “no realistic

alternative exists” for the class members). “Where recovery on an individual basis would be

dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of class

certification.” Wolin, 617 F.3d at 1175. Moreover, the class action mechanism is superior to

individual actions in consumer cases with thousands of members as “Rule 23(b)(3) was designed

for situations such as this . . . in which the potential recovery is too slight to support individual

suits, but injury is substantial in the aggregate.” Holloway v. Full Spectrum Lending, No. 06-cv-

5975, 2007 WL 7698843, at *9 (C.D. Cal. June 26, 2007) (quoting Murray v. GMAC Mortg.

Corp., 434 F.3d 948, 953 (7th Cir. 2006)). Finally, as in this action, when parties have already

negotiated a compromise, courts need not focus on issues that could surface at trial, because a

finally approved settlement would extinguish the need for one. Amchem, 521 U.S. at 620.

Here, if the proposed settlement class members were to pursue their claims against Sega

individually, each of them would be required to provide nearly the same—if not identical—legal

and factual arguments and evidence to prove their common claims. The result would be thousands

of trials at enormous expense to the proposed class members, Sega, and the courts. Comparing the

relatively small amount of damages each class member seeks to recover—i.e., some portion of the

game’s purchase price—with the costs of actually prosecuting those claims (e.g., hiring the experts

necessary to analyze the game’s true functionality compared against Defendants’ alleged

promotional claims), makes clear that individual class members would have little incentive to

pursue such claims. See Vandervort v. Balboa Capital Corp., 287 F.R.D. 554, 562 (C.D. Cal.

2012) (holding that a class action is superior to maintaining individual claims for a small amount

of damages). Where, as here, individual recoveries for Plaintiff and the proposed class would be

small and, but for the class action, would likely not even be pursued, the practical utility of the

class action mechanism under federal law is apparent. See Chamberlan, 223 F.R.D. at 527.

Accordingly, this class action is the superior method for adjudicating the instant

controversy, and, as all requirements of class certification under Rule 23 are met, the proposed

settlement class should be certified.


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V. THE COURT SHOULD APPOINT PLAINTIFF’S COUNSEL AS CLASS

COUNSEL

Under Rule 23, “a court that certifies a class must appoint class counsel . . . [who] must

fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). In making

this determination, the Court must consider counsel’s following attributes: (1) work in identifying

or investigating potential claims; (2) experience in handling class actions or other complex

litigation, and the types of claims asserted in the case; (3) knowledge of the applicable law; and (4)

resources committed to representing the class. Fed. R. Civ. P. 23(g)(1)(A)(i–iv).

As discussed above, proposed class counsel have extensive experience in prosecuting

similar class actions, including numerous actions involving the promotion and functionality of

consumer goods and software. (Balabanian Decl. ¶ 18.) Importantly, proposed class counsel have

diligently investigated and prosecuted this matter by dedicating substantial resources to the

investigation of the claims at issue in the action and have successfully negotiated the present

Settlement Agreement for the benefit of the proposed class. (Id. ¶ 19.) Accordingly, the Court

should appoint Rafey Balabanian and Ben Thomassen of Edelson PC as class counsel.

VI. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY APPROVAL

After determining that the proposed settlement class should be certified, this Court must

approve any class settlement. Fed. R. Civ. P. 23(e). The procedure for review is a well-established

two-step process. See Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.25 at 3839

(4th ed. 2002). The first step is a preliminary, pre-notification hearing to ensure that the settlement

is not “unacceptable at the outset.” Id. The Manual for Complex Litigation characterizes the

preliminary approval stage as an “initial evaluation” of the fairness of the proposed settlement

made by a court on the basis of written submissions and informal presentations from the settling

parties. Manual for Complex Litigation (Fourth) § 21.632 (2004).

While the Ninth Circuit has expressed a policy favoring the voluntary conciliation and

settlement of complex class action litigation, In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th

Cir. 2008), it has not specified a particular standard for granting preliminary settlement approval.

Nevertheless, courts in this District generally look to four factors in making this determination.


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Specifically, preliminary approval should be granted, and notice of the settlement disseminated to

class members, where “[1] the proposed settlement appears to be the product of serious, informed,

non-collusive negotiations, [2] has no obvious deficiencies, [3] does not improperly grant

preferential treatment to class representatives or segments of the class, and [4] falls within the

range of possible approval . . . .” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079

(N.D. Cal. 2007) (quoting Manual for Complex Litigation (Second) § 30.44 (1985)). See also

Boring v. Bed Bath & Beyond of Cal. LLC, No. 12-cv-05259, 2013 WL 6145706, at *7 (N.D. Cal.

Nov. 21, 2013) (quoting In re Tableware Antitrust Litig., 484 F. Supp. 2d at 1079); Cordy v. USS-

Posco Indus., No. 12-cv-553, 2014 WL 212587, at *2 (N.D. Cal. Jan. 17, 2014) (same); Ching v.

Siemens Indus., Inc., No. 11-cv-4838, 2013 WL 6200190, at *5 (N.D. Cal. Nov. 26, 2013) (same).

The proposed settlement easily satisfies these four factors. A. The Settlement is the Product of Serious, Informed, Non-Collusive

Negotiations

First, the settlement is the product of serious, informed, non-collusive negotiations. The

parties engaged in numerous and extensive arm’s-length settlement discussions throughout the

course of litigation, including the mediation with Judge Westerfield that ultimately allowed the

parties to reach the instant settlement—in fact, the settlement structure eventually reached between

Plaintiff and Sega mirrors that reached at the end of the mediation. Courts generally find that a

settlement was non-collusive where it was reached with the assistance of a third-party neutral. See,

e.g., Boring, 2013 WL 6145706, at *7; Ching, 2013 WL 6200190, at *6. The parties’ negotiations

were also well-informed as they were represented by experienced counsel who had the benefit of a

substantive ruling from the Court and possessed sufficient information obtained through formal

and informal discovery. See Williams v. Costco Wholesale Corp., No. 02-cv-2003, 2010 WL

761122, *5 (S.D. Cal. Mar. 4, 2010) (“[P]laintiff ha[d] sufficient information from investigation

and from informal discovery to have a clear view of the strengths and weaknesses of the case and

to support settlement.”); Harris v. Marketing Corp., No. 08-cv-5198, 2011 WL 1627973, at *8

(N.D. Cal. Apr. 29, 2011) (“With the Court’s prior rulings as guidance, the parties were in a

position to assess the strengths and weaknesses of their arguments and evidence, and make an


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informed decision about the risks associated with proceeding . . . to trial.”) (emphasis added).

B. There Are No Obvious Deficiencies in the Proposed Settlement

Second, there are no obvious deficiencies in the proposed settlement. In light of this

Court’s concerns expressed at the case management conference on June 26, 2014, Plaintiff and

Sega have agreed that no amount of the $1.25 million settlement fund will revert to Sega. Instead,

after payment of administrative costs, any incentive award and attorneys’ fees as determined by

the Court, the entire balance of the fund will be distributed pro rata to class members submitting a

valid claim form, up to their purchase price.8 The proposed settlement thus provides real and

substantial monetary relief to the class, all without the risk, delay, and expense of further

litigation. Indeed, Sega has indicated that absent this settlement it would vigorously contest both

the merits and class treatment of Plaintiff’s claims. (Balabanian Decl. ¶ 21.) Further, as explained

above, given that Gearbox has provided no contribution to the settlement, no claims are being

released as to Gearbox, and each proposed class member retains their right to seek additional

recovery against Gearbox.

Although Plaintiff is confident in the strength of the claims alleged against Sega, that the

Court would have ultimately certified a class, and that Plaintiff would have obtained summary

judgment on some key issues, balancing the strength of the claims against the legal and factual

obstacles remaining, Plaintiff and proposed class counsel concluded that accepting the relief

afforded by the proposed settlement was in the best interest of the proposed class. (Balabanian

8 As noted above, in the event that any money remains in the fund after each individual class member submitting a valid claim has received a full refund of their purchase price, that money will be donated—subject to the Court’s approval—to the NCLC and Consumers Union. The NCLC is a nationwide nonprofit consumer law organization dedicated to consumer justice, whose work includes policy analysis and advocacy, consumer law publications, litigation, expert witness services, and training and advice for advocates. See generally National Consumer Law Center, About Us, http://www.nclc.org/about-us/about-us.html (last visited July 30, 2014). Consumers Union is a well-known consumer protection organization that seeks to ensure that consumers receive truthful information about consumer products, and various courts have approved Consumers Union as an appropriate cy pres recipient in consumer fraud cases. See, e.g., Nigh v. Humphreys Pharmacal, Inc., No. 12-cv-12714, 2013 WL 5995382, at *9 (S.D. Cal. Oct. 23, 2013).


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Decl. ¶ 21.) Because the proposed settlement provides immediate monetary relief to the proposed

class (the reasonableness of the amount of which is discussed below), and because it avoids the

concerns expressed by this Court with respect to reverter, it has no obvious deficiencies. See, e.g.,

Tijero v. Aaron Bros., Inc., No. 10-cv-01089, 2013 WL 6700102, at *8 (N.D. Cal. Dec. 19, 2013)

(“[T]here are no obvious deficiencies. To the contrary, the settlement confers tangible monetary

benefits to the class . . . .”); Ching, 2013 WL 6200190, at *6 (finding “no obvious deficiencies” in

settlement providing monetary relief to class); In re Tableware Antitrust Litig., 484 F. Supp. 2d at

1080 (“Based on [the] risk and the anticipated expense and complexity of further litigation, the

court cannot say the proposed settlement is obviously deficient . . . .”). C. The Proposed Settlement Does Not Give Preferential Treatment to Any

Settlement Class Members

The proposed settlement provides no preferential treatment to any individual class member

or segment of the proposed class. Each class member seeking to recover a portion of the fund must

submit exactly the same claim form, and each class member submitting a valid claim form will

receive the same pro rata distribution from the fund (up to that class member’s purchase price).

While Plaintiff will be seeking a modest incentive award from the Court in recognition of the time

and effort he spent acting as class representative, such awards are common and in no way preclude

preliminary approval. See, e.g., Villegas v. J.P. Morgan Chase & Co., No. 09-cv-00261, 2012 WL

5878390, at *7 (N.D. Cal. Nov. 21, 2012) (granting preliminary approval to settlement calling for

$10,000 incentive award); Cordy, 2014 WL 212587, at *1, 3 (granting preliminary approval to

settlement calling for $9,500 in “enhanced payments” to class representatives); Boring, 2013 WL

6145706, at *2, 8 (granting preliminary approval to settlement calling for $7,500 incentive award);

Ching, 2013 WL 6200190, at *6 (noting that requests for incentive payments of up to $5,000 are

“presumptively reasonable”).

D. The Settlement Falls Within the Range of Possible Approval

Finally, the proposed settlement falls well within the range of possible approval. In

evaluating this factor, “courts primarily consider plaintiffs’ expected recovery balanced against the

value of the settlement offer.” In re Tableware Antitrust Litig., 484 F. Supp. 2d at 1080. Here,


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Plaintiff alleges that the game he and other class members purchased was inferior to the game that

had been advertised, but does not allege that the game was completely valueless or non-functional.

Consequently, a full recovery for class members after complete victory at trial would be the

difference between the price they paid for the game as advertised and the value of the game they

actually received. See, e.g., In re Vioxx Class Cases, 103 Cal. Rptr. 3d 83, 96 (Cal. Ct. App. 2009)

(“The difference between what the plaintiff paid and the value of what the plaintiff received is a

proper measure of restitution.”). If the value of the game actually received were zero, full recovery

would be the purchase price of the game, which varied from $50–$60.9 See supra note 3. But the

game actually received was not completely worthless—indeed, one member of the proposed class,

former named plaintiff Damion Perrine, played the game and re-sold his copy of it for $17. (Dkt.

26 ¶¶ 90–97.) Thus, assuming a complete victory at trial, class members would likely be entitled

to something more like $33–$43.10

Balanced against this potential recovery, the value to class members of the proposed

settlement puts it well within the range of possible approval. As noted above, after payment of

administrative costs, an incentive award, and attorneys’ fees, the balance of the $1.25 million

settlement fund will be distributed to class members submitting a valid claim form, up to their

purchase price. Thus, given that administrative costs will not exceed $200,000, and assuming this

Court ultimately approves the requested incentive award and attorneys’ fees in the amounts of

$2,500 and $312,500 respectively, there will be $735,000 remaining in the fund to be distributed

to class members.

If all 135,000 class members submitted a claim, each would receive over five dollars

9 While some class members, including Plaintiff, purchased the collector’s edition of the game for $100, that edition included the same console version of the game that sold for $60, as well as a collectible figure and special packaging. See supra note 3. Plaintiff does not assert that the figure and packaging are worth less than the $40 he paid for them.

10 Further, given that complete victory is far from certain, the expected value to class members of proceeding with litigation is actually lower than $33–$43. For example, even if the class had a 75% chance of obtaining a full victory at trial, the expected value of each class member’s recovery would be between $24.75 and $32.25 (75% of $33–$43).


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($735,000 / 135,000 = $5.44). That amount represents over 12–16% of the $33–$43 recoverable

after trial, which places the proposed settlement within the range of possible approval. See, e.g., In

re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) (“It is well-settled law that a

cash settlement amounting to only a fraction of the potential recovery does not per se render the

settlement inadequate or unfair.”); Villegas, 2012 WL 5878390, at *6–7 (finding settlement

providing approximately 15% of potential recovery was “within the range of possible approval”).

Further, the $33–$43 potential recovery amount represents a full victory at trial against both

Defendants. But the proposed settlement here releases only claims against Sega, and class

members retain all rights to seek additional recovery against Gearbox. The retention of claims

against Gearbox is valuable, as Gearbox was an active participant in the allegedly deceptive

marketing, having made some of the key misrepresentations that product demonstrations showed

“actual gameplay.” (Dkt. 26 ¶¶ 31, 34, 37, 44.) Thus, even though the proposed settlement

provides a recovery that would be within the range of possible approval even if it were against

both Defendants, the fact that class members retain their claims against Gearbox makes the

settlement fall even more within the range of possible approval.

In addition, $5.44 is the absolute floor of an individual class member’s recovery under the

proposed settlement, and given that not every class member will likely file a claim, class members

submitting claims are in a position to recover substantially more. For example, as one circuit court

has noted, claims rates in consumer class action settlements rarely exceed 7%. Sullivan v. DB

Invs., Inc., 667 F.3d 273, 329 n.60 (3d Cir. 2013). If 7% of the 135,000 class members here submit

valid claim forms, the pro rata distribution amount would be over $77 (with the understanding

that no claimant may receive more than their purchase price). In that case, every claimant who

paid less than $77 for the game would receive a full refund, and even those who purchased the

$100 collector’s edition would receive at least a 77% refund. This is well in excess of the $33–$43

recovery class members could expect after a full victory at trial.

For all these reasons, the proposed settlement falls well within the range of possible

approval. And because the proposed settlement satisfies each of the four factors generally

considered by courts in this District on preliminary approval, this Court should preliminarily


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approve the Partial Settlement Agreement.

VII. THE PROPOSED NOTICE PLAN SHOULD BE APPROVED

Rule 23(c)(2)(B) provides that, “[f]or any class certified under Rule 23(b)(3), a court must

direct to class members the best notice practicable under the circumstances, including individual

notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P.

23(c)(2)(B); accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). Rule 23(c)(2)(B)

also provides that the substance of the “notice must clearly and concisely state in plain, easily

understood language” the nature of the action, the definition of the class to be certified, and the

class claims and defenses at issue; explain that class members may enter an appearance through

counsel if so desired or request to be excluded from the settlement class; and describe the binding

effect of a class judgment. Fed. R. Civ. P. 23(c)(2)(B). Notice is “adequate if it may be understood

by the average class member.” Newberg, § 11:53 at 167. Rule 23(e)(1) similarly advises that

“[t]he court must direct notice in a reasonable manner to all class members who would be bound

by the proposal.” Fed. R. Civ. P. 23(e)(1). Here, as described below, the parties have agreed on a

notice plan that satisfies these requirements (the “Notice Plan”), and respectfully request that this

Court approve it.

Direct notice to class members is not possible here; neither Sega nor Gearbox sold Aliens:

Colonial Marines directly to consumers, and thus cannot identify individual purchasers.11 Because

direct notice is not possible, the parties asked KCC to design a publication notice plan that would

reach at least 70% of class members. (Balabanian Decl. ¶ 13.)12

KCC analyzed marketing data, such as consumer demographics and product and brand

usage, to determine the characteristics, interests, and habits of class members (i.e., individuals who

11 Direct notice is not required in such circumstances. See Weeks v. Kellogg Co., No. 09-cv-08102, 2013 WL 6531177, at *3 (C.D. Cal. Nov. 23, 2013) (approving proposed notice when no direct notice was provided to class members because defendant did not sell directly to customers).

12 The Federal Judicial Center has suggested that 70% is a reasonable target for a notice plan. Federal Judicial Center, Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide at 3 (2010), available at http://www.fjc.gov/public/pdf.nsf/lookup/NotCheck.pdf/$file/NotCheck.pdf.


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play first-person-shooter video games, and would have been early purchasers of Aliens: Colonial

Marines). (Balabanian Decl. ¶ 14.) KCC then proposed a publication plan to best reach these

individuals. (Id. ¶¶ 14–15.) KCC’s proposal included print publication in three widely-circulated

magazines whose readers are more than twice as likely as the general public to play shooter and

war video games: ESPN: The Magazine, Guns & Ammo, and Rolling Stone. (Id. ¶ 15.) In addition,

KCC’s proposal called for the placement of internet banner ads designed to create 39 million

unique impressions among men aged 18–49 on automotive, sports, news, and technology sites.

(Id.) The Notice Plan adopts each of these proposals. (See Agreement §§ 4.1, 4.2.) Further,

consistent with the CLRA, the Notice Plan requires four consecutive weekly notices in either the

San Francisco Chronicle or the Modesto Bee, which is the largest circulation paper where Plaintiff

resides (Turlock, Stanislaus County, California). (Agreement § 4.2.)13 In addition, the controversy

surrounding Aliens: Colonial Marines has been widely covered by video game industry press—

including on the same websites where the allegedly misleading gameplay demonstrations were

shown, featured, and viewed by Settlement Class Members—and Plaintiff’s counsel anticipates

that such outlets will widely report on this settlement should it be given preliminary approval.

(Balabanian Decl. ¶ 17.)

The magazine and newspaper notice (a copy of which is attached to the Settlement

Agreement as Exhibit C) will, among other things, reference a settlement website to be established

by KCC. (See Agreement §§ 4.3, 6.5.) The internet banner ads (copies of which are attached to the

Settlement Agreement as Exhibit D) will also redirect potential class members to the settlement

website. The settlement website will serve as the traditional long form notice and provide class

members with the ability to file claim forms on-line. The settlement website will contain, in plain

language, all required elements of Rule 23(c)(2)(B), regarding the nature of the lawsuit and class

members’ rights, including their rights to exclude themselves from the class or object to the

proposed settlement. It will also provide access to relevant court documents, instructions on how

13 The Settlement also requires Sega to serve upon the required government officials, notice of the proposed settlement in accordance with 28 U.S.C. § 1715. (Agreement § 4.4.)


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to access the case docket via PACER or in person, the date of the final approval hearing, answers

to frequently asked questions, and a toll-free number to reach proposed class counsel. (Balabanian

Decl. ¶ 16.)

The Notice Plan—carefully designed to reach members of the proposed class through

specifically-targeted but widely-viewed media—comports with Rule 23, and should be approved

by this Court as well.

VIII. CONCLUSION

For the foregoing reasons, Plaintiff John Locke respectfully requests that this Court enter

an order (1) certifying the proposed settlement class for settlement purposes; (2) naming Plaintiff

as class representative; (3) appointing Rafey Balabanian and Benjamin Thomassen of Edelson

P.C. as class counsel; (4) granting preliminary approval to the Partial Settlement Agreement; (5)

approving the proposed Notice Plan; (6) scheduling a final fairness hearing; and (7) granting such

other and further relief as the Court deems equitable and just. Dated: August 11, 2014

Respectfully Submitted, JOHN LOCKE, individually and on behalf of the Class of similarly situated individuals,

/s/ Rafey S. Balabanian___ ____ One of His Attorneys

Rafey S. Balabanian (Admitted pro hac vice) [email protected] Benjamin S. Thomassen (Admitted pro hac vice) [email protected] EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiff Locke and the Putative Class


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CERTIFICATE OF SERVICE

I, Rafey S. Balabanian, an attorney, hereby certify that on August 11, 2014, I caused the foregoing document to be electronically filed with the Clerk of the United States District Court for the Northern District of California, using the CM/ECF electronic filing system, which will send notification of filing to counsel of record for each party.

Dated: August 11, 2014 /s/ Rafey S. Balabanian


Exhibit 1

Case3:13-cv-01962-JD Document78-1 Filed08/11/14 Page1 of 47

CLASS ACTION SETTLEMENT AGREEMENT CASE NO. 3:13-CV-01962-JD

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Mark S. Eisen (SBN - 289009) [email protected] EDELSON PC 555 West Fifth Street, 31st Floor Los Angeles, California 90013 Tel: 213.533.4100 Fax: 213.947.4251 Rafey S. Balabanian (Admitted Pro Hac Vice) [email protected] Christopher L. Dore (Admitted Pro Hac Vice) [email protected] Benjamin S. Thomassen (Admitted Pro Hac Vice) [email protected] EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiff John Locke and the Putative Class

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN LOCKE, individually and on behalf of all others similarly situated, Plaintiff, v. SEGA OF AMERICA, INC., a California corporation, and GEARBOX SOFTWARE, L.L.C., a Texas limited liability company, Defendants.

Case No. 3:13-cv-01962-JD PARTIAL CLASS ACTION SETTLEMENT AGREEMENT Judge: Honorable James Donato Action Filed: April 29, 2013

This Partial Settlement Agreement (“Agreement”) is entered into by and among Plaintiff

John Locke (“Locke” or “Plaintiff,” as defined below), for himself individually and on behalf of

the Settlement Class, and Defendant Sega of America, Inc. (“Sega”) (Plaintiff and Sega are

collectively referred to herein as the “Parties,” as defined below). This Agreement is intended by

the Parties to fully, finally, and forever resolve, discharge, and settle against Sega the Released

Claims (as the term is defined below) upon and subject to the terms and conditions hereof, and


CLASS ACTION SETTLEMENT AGREEMENT CASE NO. 3:13-CV-01962-JD 2

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subject to the approval of the Court. This partial settlement does not resolve the claims of Plaintiff

against Gearbox Software L.L.C.

RECITALS

A. WHEREAS, on April 29, 2013, Damion Perrine (“Perrine”) filed a putative class

action in the United States District Court for the Northern District of California, now captioned

Locke v. Sega of America, Inc. et al., Case No. 3:13-cv-01962-JD (the “Action”), regarding the

recently released video game, Aliens: Colonial Marines (“Aliens: Colonial Marines”). In the

Action, Perrine sought monetary damages and an injunction, amongst other relief. (Dkt. 1);

B. WHEREAS, on June 14, 2013, Defendants Sega of America, Inc. (“Sega”) and

Gearbox Software, L.L.C. (“Gearbox”) (collectively with Sega, “Defendants”) moved to dismiss

Perrine’s initial Complaint, arguing that Perrine’s California state law claims failed as a matter of

law and that Perrine failed to properly state any other claim. (Dkt. 14);

C. WHEREAS, on July 5, 2013, Perrine filed an Amended Complaint responding to

Defendants’ Motion to Dismiss as well as adding John Locke (“Locke”) as a party-plaintiff (in

these Recitals, Perrine and Locke are collectively referred to as the “Plaintiffs”). (Dkt. 26);

D. WHEREAS, on July 22, 2013, Defendants filed a motion to dismiss two counts of

the Amended Complaint. (Dkt. 29);

E. WHEREAS, on October 3, 2013, the Court denied Defendants’ motion to dismiss

the Amended Complaint in its entirety. (Dkt. 40);

F. WHEREAS, shortly after the Court’s decision on the motion to dismiss, beginning

in October 2013, the Plaintiffs and Defendants engaged in discovery. Plaintiffs propounded their

first round of discovery requests—including both interrogatories and requests for the production of

documents—on Defendants, Defendants in turn noticed the depositions of both Plaintiffs, and all

Parties exchanged their initial disclosures;

G. WHEREAS, on October 31, 2013, Defendants answered Plaintiffs’ Amended

Complaint, denying any wrongdoing and the material allegations of the Amended Complaint and

setting forth eight affirmative defenses. (Dkt. 43);



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H. WHEREAS, shortly after the pleadings were set, the Plaintiffs and Defendants

scheduled an in-person mediation to take place in January 2014 and exchanged information in

anticipation of the mediation, including information regarding the size of the potential class, the

marketing of Aliens: Colonial Marines, and the contractual relationships surrounding the

development of Aliens: Colonial Marines;

I. WHEREAS, on January 21, 2014, the Plaintiffs and Defendants engaged in an all-

day mediation presided over by Judge Rebecca Westerfield (Ret.) of JAMS. The Plaintiffs and

Defendants did not reach an agreement, but settlement negotiations remained ongoing with

Defendants requesting three weeks to consider Plaintiffs’ last offer;

J. WHEREAS, on March 31, 2014, the Plaintiffs and Sega (but not Gearbox) reached

agreement on the material terms of a settlement;

K. WHEREAS, following the June 26, 2014 Case Management Conference and after

additional negotiation and discussion by and among Plaintiffs and Defendants, the Parties agreed

to modify certain terms of their settlement agreement in several respects, including so as to make

clear that Gearbox is not settling the claims asserted by Plaintiff in this lawsuit and is excluded as

a Released Party;

L. WHEREAS, on July 30, 2014, Plaintiff Perrine moved the Court to voluntarily

dismiss his claims against Defendants and withdraw as a named Plaintiff in this matter, which

motion remains pending before the Court as of the date of the Parties’ execution of this

Agreement;

M. WHEREAS, at all times, Defendant Sega has denied and continues to deny any

wrongdoing whatsoever or that it committed, or threatened, or attempted to commit any wrongful

act or violation of law or duty alleged in the Action and contends that it has acted properly in all

regards in connection with its development and marketing practices, and the Settlement Class.

Nonetheless, taking into account the costs, burden, and uncertainty inherent in any litigation,

Plaintiff and Defendant Sega have each concluded that it is desirable and beneficial that the Action

be fully and finally settled and terminated in the manner and upon the terms and conditions set



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forth in this Agreement. This Agreement is a compromise, and the Agreement, any related

documents, and any negotiations resulting in it shall not be construed as or deemed to be evidence

of or an admission or concession of liability or wrongdoing on the part of Defendant Sega with

respect to any claim of any fault or liability or wrongdoing or damage whatsoever;

N. WHEREAS, Plaintiff believes that the claims asserted in the Action have merit and

Defendant Sega believes the claims asserted in the Action have no merit. Consequently, Plaintiff

and Class Counsel recognize and acknowledge the expense and length of continued prosecution of

the Action against Sega through trial and any subsequent appeals. Plaintiff and Class Counsel also

have taken into account the uncertain outcome and risks of any litigation, especially in complex

actions, as well as the difficulties and delays inherent in such litigation. Therefore, Plaintiff

believes that it is desirable that the Released Claims be fully and finally compromised, settled and

resolved with prejudice, and barred pursuant to the terms set forth herein. Based on their

evaluation, Class Counsel have concluded that the terms and conditions of this Agreement are fair,

reasonable, and adequate to the Settlement Class, and that it is in the best interests of the

Settlement Class to settle the claims raised in the Action pursuant to the terms and provisions of

this Agreement. Class Counsel and Plaintiff also believe that this Agreement has been entered in

good faith given the risks that Plaintiff has in the lawsuit against Sega, that the settlement amount

Sega is prepared to pay reflects the risk and burdens that the Plaintiff faces in the lawsuit, and,

given that risk, both that the settlement amount is within the reasonable range of what Plaintiff

contends is Sega’s proportional share of comparative liability for the Settlement Class’ injuries,

and the amount Sega is paying to settle the suit is, according to Plaintiff and Class Counsel, a

rough approximation of Sega’s proportionate liability of Plaintiff’s total potential recovery against

any defendant.

O. WHEREAS, the Parties agree that the Action was resolved in good faith, following

arm’s-length bargaining through a mediator, and that the settlement reflected herein confers

substantial benefits upon the Parties, and each of them;

P. WHEREAS, the Parties agree that all Persons shall have an individual right to



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exclude themselves from the Settlement Class, such that participation in the settlement by

accepting the benefits provided by this Agreement shall be voluntary;

NOW, THEREFORE, the Parties stipulate and agree that any and all Released Claims

against Sega, and all other Released Parties, shall be finally settled and resolved on the terms and

conditions set forth in this Agreement, subject to Court approval, as a fair, reasonable, and

adequate settlement.

AGREEMENT

1. DEFINITIONS

As used herein, in addition to any definitions set forth elsewhere in this Agreement, the

following terms shall have the meanings set forth below:

1.1 “Action” means the case captioned Locke v. Sega of America, Inc. et al., Case No.

3:13-cv-01962-JD (N.D. Cal.), and any amendments thereto.

1.2 “Agreement” means this Partial Class Action Settlement Agreement (including all

exhibits hereto).

1.3 “Approved Claim” means a Claim Form submitted by a Settlement Class Member

that: (i) is timely and submitted in accordance with the directions on the Claim Form and the terms

of this Agreement, (ii) is physically signed or electronically verified by the Settlement Class

Member, and (iii) satisfies the conditions of eligibility for a Settlement Payment as set forth in

Section 2.1.

1.4 “Claim Form” means the form attached hereto as Exhibit B, as approved by the

Court. The Claim Form shall be available for download from the Settlement Website in electronic

format and from the Settlement Administrator in hard-copy form. The Claim Form will require the

Settlement Class Member to provide the following information: (i) full name, current address,

telephone number (optional), and e-mail address, (ii) the date on which he, she, or it purchased a

copy of Aliens: Colonial Marines (that date being no later than February 12, 2013), (iii) the place

he, she or it purchased Aliens: Colonial Marines (not merely the city or state), and (iv) the amount

he, she, or it paid for a copy of Aliens: Colonial Marines. In lieu of the information required by



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item nos. (ii), (iii) and (iv), the Settlement Class Member may provide proof that he, she, or it

purchased a copy of Aliens: Colonial Marines on or before February 12, 2013. The Claim Form

will not require notarization, but will require the Person supplying the information to sign the

Claim Form under penalty of perjury.

1.5 “Claims Deadline” means the date by which all Claim Forms must be received to

be considered timely and shall be set as the date sixty (60) days after the Fairness Hearing. The

Claims Deadline shall be clearly set forth in the Notice to be provided to the Settlement Class, the

Claim Form, the Court’s order granting Preliminary Approval, and the Judgment.

1.6 “Class Counsel” means attorneys Rafey S. Balabanian, Christopher L. Dore,

Benjamin S. Thomassen, and Mark S. Eisen of Edelson PC.

1.7 “Class Representative” means the named Plaintiff in this Action, John Locke.

1.8 “Court” means the United States District Court for the Northern District of

California, the Honorable James Donato presiding, or any judge who shall succeed him as the

presiding judge in this Action.

1.9 “Cy Pres Recipient” means the National Consumer Law Center and Consumers

Union, as selected by the Parties and approved by the Court.

1.10 “Effective Date” means one business day following the later of: (i) the date upon

which the time expires for filing or noticing any appeal of the Judgment, (ii) if there is an appeal or

appeals, other than an appeal or appeals solely with respect to attorneys’ fees and reimbursement

of expenses, the date of completion, in a manner that finally affirms and leaves in place the

Judgment without any material modification, of all proceedings arising out of the appeal or appeals

(including, but not limited to, the expiration of all deadlines for motions for reconsideration or

petitions for review and/or certiorari, all proceedings ordered on remand, and all proceedings

arising out of any subsequent appeal or appeals following decisions on remand), or (iii) the date of

final dismissal of any appeal or the final dismissal of any proceeding on certiorari with respect to

the Judgment.

1.11 “Fairness Hearing” means the hearing before the Court where the Parties will



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request the Judgment be entered by the Court finally approving the settlement as fair, reasonable,

and adequate, and entered between Plaintiff and Sega in good faith, and approving the Fee Award

and any incentive award to the Class Representative.

1.12 “Fee Award” means the amount of attorneys’ fees and reimbursement of costs

approved and awarded by the Court to Class Counsel.

1.13 “Gearbox” means Gearbox Software, L.L.C., a Texas limited liability company.

1.14 “Judgment” means the order of final judgment to be entered by the Court finally

approving this Agreement, without material modifications that are unacceptable to the Parties.

1.15 “Nationwide” means the fifty (50) states, the District of Columbia, and the

territories of the United States of America.

1.16 “Notice” or “Settlement Class Notice” means the notice of this proposed

Settlement Agreement and Fairness Hearing, which is to be sent to the Settlement Class

substantially in the manner set forth in this Agreement, and that is substantially in the form of

Exhibits A, C, and D, attached hereto.

1.17 “Notice Date” means the date upon which Notice to the Settlement Class is

completed, which shall be no later than 20 days after Preliminary Approval, or such other date as

the Court may order.

1.18 “Notice Plan” means the plan described in Section 4 of this Agreement for

disseminating notice to the Settlement Class of the terms of this Agreement and the Fairness

Hearing.

1.19 “Objection/Exclusion Deadline” means the date by which a written objection to

this Settlement Agreement or a request for exclusion submitted by a Person within the Settlement

Class must be filed or postmarked, which shall be designated as a date no later than forty-five (45)

days after the Notice Date.

1.20 “Parties” means, collectively, Plaintiff John Locke and Defendant Sega of America,

Inc.

1.21 “Person” means any individual, corporation, trust, partnership, limited liability



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company, or other legal entity and their respective predecessors, successors or assigns. The

definition of “Person” is not intended to include any governmental agencies or governmental

actors, including, without limitation, any state Attorney General office.

1.22 “Preliminary Approval” means the Court’s entry of an order preliminarily

approving this Agreement, certifying the Settlement Class for settlement purposes, approving the

form of the Notice and the Notice Plan, directing that Notice be disseminated to the Settlement

Class in accordance with this Agreement, and scheduling the date for the Fairness Hearing.

1.23 “Purchase Price” means the amount of money paid to purchase a copy of Aliens:

Colonial Marines.

1.24 “Released Claims” means any and all claims or causes of action of every kind and

description (including any causes of action in law, claims in equity, complaints, suits, or petitions)

and any allegations of wrongdoing (including any assertions of liability, debts, legal duties, torts,

unfair or deceptive practices, statutory violations, contracts, agreements, obligations, promises,

promissory estoppel, detrimental reliance, or unjust enrichment) and any demands for legal,

equitable, or administrative relief (including any claims for injunction, rescission, reformation,

restitution, disgorgement, constructive trust, compensatory damages, consequential damages,

penalties, exemplary damages, punitive damages, attorneys’ fees, costs, interest, or expenses) that

the Releasing Parties had or have (including assigned claims and “Unknown Claims” as defined

below) that have been or could have been asserted in the Action or in any other action or

proceeding before any court, arbitrator(s), tribunal or administrative body (including any state,

local or federal regulatory body), in any jurisdiction worldwide, regardless of whether the claims

or causes of action are based on federal, state, or local law, statute, ordinance, regulation, contract,

common law, or any other source, and regardless of whether they are known or unknown, foreseen

or unforeseen, suspected or unsuspected, or fixed or contingent, arising out of, or related in any

way to: (1) Aliens: Colonial Marines, including but not limited to the design, use, functionality,

operation, and/or performance of Aliens: Colonial Marines, (2) the marketing and advertising of

Aliens: Colonial Marines as it relates to the design, use, functionality, operation, and/or



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performance of Aliens: Colonial Marines, (3) warranties, representations, or omissions relating to

the design, use, functionality, operation, and/or performance of Aliens: Colonial Marines, and (4)

all claims that were brought, alleged, argued, raised, or asserted in any pleading or court filing in

the Action. Nothing herein is intended to release any claims any governmental agency or

governmental actor has against the Released Parties.

1.25 “Released Parties” means Sega, its respective predecessors, successors, assigns,

parents, subsidiaries, divisions, departments, and any and all of its past, present, and future

officers, directors, employees, stockholders, partners, servants, successors, attorneys,

representatives, insurers, subrogees, and assigns of any of the foregoing. However, this

Agreement shall not operate to release Sega and Gearbox as to any claims they may have against

each other, nor shall it operate to release any claims that Plaintiff or the other members of the

putative class pleaded in the Complaint or other members of the Settlement Class may have against

Gearbox.

1.26 “Releasing Parties” means Plaintiff, and those Members of the Settlement Class

who do not exclude themselves from the Settlement Class by the Objection/Exclusion Deadline

(whether or not such Persons submit claims). To the extent a Member of the Settlement Class is

not a natural person, this definition shall include all of its present, former, and future direct and

indirect parent companies, affiliates, subsidiaries, divisions, agents, franchisees, successors,

predecessors-in-interest, and all of the aforementioned present, former, and future officers,

directors, employees, shareholders, attorneys, agents, and independent contractors; and, to the

extent any Member of the Settlement Class is a natural person, any present, former, and future

spouses, as well as the present, former, and future heirs, executors, administrators, representatives,

agents, attorneys, partners, successors, predecessors-in-interest, and assigns of each of them.

1.27 “Request for Exclusion” is the written communication by or on behalf of a Member

of the Settlement Class in which he, she, or it requests to be excluded from the Settlement Class.

1.28 “Sega” means Defendant Sega of America, Inc., a California corporation.

1.29 “Sega’s Counsel” means Claude M. Stern and Karin Kramer of Quinn Emanuel



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Urquhart & Sullivan, LLP.

1.30 “Settlement Administration Expenses” means the expenses incurred by the

Settlement Administrator in administering the settlement, including expenses relating to providing

Notice to the Settlement Class, processing Claim Forms, and mailing checks for Approved Claims,

as well as any expenses incurred in the sending of notice to the relevant governmental agencies

pursuant to the Class Action Fairness Act of 2005 (28 U.S.C. § 1715) (“CAFA”), with all such

expenses to be paid from the Settlement Fund. Settlement Administration Expenses shall not

exceed two hundred thousand dollars ($200,000), in accordance with the agreement between the

Settlement Administrator and Sega.

1.31 “Settlement Administrator” means, subject to approval of the Court, KCC Class

Action Services, which will oversee the dissemination of Notice and the processing and payment

of Settlement Class Members’ Claim Forms as set forth in this Agreement, as well as other aspects

of administering the settlement.

1.32 “Settlement Class” means all Persons in the United States and its territories that,

prior to or on February 12, 2013, paid for a copy of Aliens: Colonial Marines. Excluded from the

Settlement Class are the following: (a) all Persons who file timely Requests for Exclusion, (b) all

Persons who had their claims discharged in bankruptcy, finally adjudicated on the merits, or

otherwise released against Sega, (c) Sega, the Settlement Administrator, and any respective parent,

subsidiary, affiliate, or control person of either, as well as their officers, directors, agents, servants,

or employees, (d) any judge presiding over this Action, and (e) the immediate family members of

any such Person(s).

1.33 “Settlement Class Member” or “Class Member” means a Person who falls within

the definition of the Settlement Class as set forth in this Agreement and who has not submitted a

valid Request for Exclusion.

1.34 “Settlement Fund” means a non-reversionary cash settlement fund of one million,

two hundred fifty thousand dollars ($1,250,000) from which Sega shall pay all Approved Claims,

Settlement Administration Expenses, the incentive award to the Class Representative, the Fee



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Award to Class Counsel, and any Cy Pres Distribution. The Settlement Fund represents the limit

and extent of Sega’s monetary obligations under this Agreement. The Settlement Fund shall be

kept in a separate interest-bearing account of Sega’s choosing, but with permissions granted to the

Settlement Administrator to access said funds until such time as the above-listed payments are

made in accordance with this Agreement.

1.35 “Settlement Payment” means the payments to be made on Approved Claims as

described in Section 2.1 of this Agreement.

1.36 “Settlement Website” means the website to be created, launched, and maintained by

the Settlement Administrator, that allows for the electronic submission of claims, provides access

to relevant case documents including the Settlement Class Notice and information about the

submission of Claim Forms, and that includes downloadable Claim Forms.

1.37 “Unknown Claims” means claims that could have been raised in this litigation and

that Plaintiff, any Member of the Settlement Class, or any Releasing Party, do not know or suspect

to exist, which, if known by him, her, or it, might affect his, her, or its agreement to release the

Released Parties or the Released Claims or might affect his, her, or its decision to agree, object, or

not to object to the settlement. Upon the Effective Date, Plaintiff, any Member of the Settlement

Class, and any Releasing Party shall be deemed to have, and shall have, expressly waived and

relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of

Section 1542 of the California Civil Code, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Upon the Effective Date, each of the Releasing Parties shall be deemed to have, and shall have,

waived any and all provisions, rights, and benefits conferred by any law of any state, the District of

Columbia, or territory of the United States, by federal law, or principle of common law, or the law

of any jurisdiction outside of the United States, which is similar, comparable, or equivalent to

Section 1542 of the California Civil Code. Plaintiff, the Settlement Class, and the Releasing Parties



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acknowledge that they may discover facts in addition to or different from those that they now

know or believe to be true with respect to the subject matter of the Released Claims, but that it is

their intention to finally and forever settle and release the Released Claims, notwithstanding any

Unknown Claims they may have, as that term is defined in this Paragraph.

2. SETTLEMENT RELIEF TO THE CLASS

2.1 Payment of Claims and the Claims Process.

(a) Individual Settlement Payments to Class Members. Each Settlement Class

Member with an Approved Claim will be paid a pro rata share of the amount in the

Settlement Fund, after payment of Settlement Administration Expenses, the Fee Award,

and any incentive award to the Class Representative, up to a maximum payment of (and not

to exceed) his, her, or its Purchase Price.

(b) Cy Pres Distribution. To the extent that any funds remain in the Settlement

Fund after all payments to Settlement Class Members with Approved Claims have been

made, such funds shall be given to the Cy Pres Recipient.

(c) Uncashed Checks. All cash payments issued to Settlement Class Members

via check will state on the face of the check that it will expire and become null and void

unless cashed within ninety (90) days after the date of issuance. To the extent that a check

issued to a Settlement Class Member is not cashed within such time period, such funds

shall be directed to the cy pres recipient or escheat to the state in accordance with the law.

3. RELEASES

3.1 The obligations incurred pursuant to this Agreement shall be a full and final

disposition of the Action, including any and all Released Claims, as against all Released Parties.

3.2 Upon the Effective Date, the Releasing Parties, and each of them, shall be deemed

to have, and by operation of the Judgment shall have, fully, finally, and forever released,

relinquished and discharged all Released Claims against the Released Parties, and each of them. In

addition, the Releasing Parties agree that, before they (or any of them) seek (whether informally,

by notice or subpoena or otherwise) any written or other discovery (including but not limited to



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depositions, requests to inspect or obtain documents, requests for interrogatory answers, or

requests for admission) from Sega or any of its Affiliates in this action, they will first seek such

discovery from Gearbox or from any third party, and only if such information cannot be obtained

from Gearbox or such third party may Releasing Parties then seek such discovery from Sega or its

Affiliates. Any discovery sought from Sega by the Releasing Parties will be limited to information

relevant to establishing liability against Gearbox.

4. NOTICE TO THE CLASS

4.1 Online Media. Within thirty (30) days of Preliminary Approval, the Settlement

Administrator, within the budget approved for administration, will implement an online media

campaign, which shall include Internet banner ads to appear through a prominent nationwide

online advertisement network, including both Xaxis Premium Network and the social media site

Facebook, and be completed by the Notice Date. Such banner ads will be substantially in the form

attached hereto as Exhibit D.

4.2 Print Publication Notice. The Settlement Administrator shall also cause notice to

be disseminated to the Settlement Class by purchasing a one-day 1/2 page ad in Guns & Ammo,

ESPN, and Rolling Stone magazines, to be published by the Notice Date. The Settlement

Administrator shall also cause notice to be disseminated to the Settlement Class by causing eighth-

page notices to appear once a week for four consecutive weeks in the Main News or Legal section

of either the San Francisco Chronicle or the Modesto Bee. The form and content of such

publication notice shall be substantially the same as that attached hereto as Exhibit C, but may be

modified as appropriate by the Settlement Administrator, with the approval of the Parties, to fit

space limitations. Costs for this notice shall come out of the budget approved for settlement

administration in this Agreement.

4.3 Settlement Website. Within twenty-one (21) days after Preliminary Approval of

this Agreement, the Settlement Administrator shall cause the Settlement Website to be launched on

the Internet in accordance with Section 6.5 of this Agreement.



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4.4 CAFA Notice. Pursuant to 28 U.S.C. § 1715, not later than ten (10) days after the

Agreement is filed with the Court, the Settlement Administrator shall serve upon the Attorneys

General of each U.S. State, the Attorney General of the United States, and other required

government officials, notice of the proposed settlement, which shall include (1) a copy of the most

recent complaint and all materials filed with the complaint or notice of how to electronically access

such materials; (2) notice of scheduled judicial hearings in the Action; (3) all proposed forms of

Notice; and (4) a copy of this Agreement.

4.5 Additional Forms of Notice. Should the Settlement Administrator determine that

additional methods of notice are required, they shall be included as part of the Notice Plan.

4.6 Contents of the Settlement Class Notice. The Notice shall advise the Settlement

Class of their rights, including the right to be excluded from or object to the Settlement Agreement

or its terms. The Notice shall specify that any objection to this Settlement Agreement, and any

papers submitted in support of said objection, shall be considered by the Court at the Fairness

Hearing, only if, on or before the Objection/Exclusion Deadline approved by the Court and

specified in the Notice, the Person making an objection submits copies of such papers to the Court

either by mailing them to the Class Action Clerk, or by filing them in person at any location of the

United States District Court for the Northern District of California, except that any objection made

by a Settlement Class Member represented by counsel must be filed through the Court’s CM/ECF

system.

5. OPT-OUT AND OBJECTIONS

5.1 Right to Exclusion. Any Member of the Settlement Class may submit a Request

for Exclusion from the settlement at any time on or before the Objection/Exclusion Deadline. To

be valid, any Request for Exclusion must be in writing; identify the case name Locke v. Sega of

America, Inc. et al., No. 3:13-cv-01962-JD; state the name, address and telephone of the Person

seeking exclusion; be physically signed by the Person(s) seeking exclusion; affirm that the Person

submitting the Request for Exclusion purchased a copy of Aliens: Colonial Marines on or before

February 12, 2013; and must be postmarked or received by the Settlement Administrator on or



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before the Objection/Exclusion Deadline. Each Request for Exclusion must also contain a

statement to the effect that the Person submitting the Request for Exclusion is a Member of the

Class and wishes to be excluded for purposes of this partial settlement. Any requests to be

excluded that do not include all of the foregoing information, that are sent to an address other than

that designated in the Notice, or that are not postmarked within the time specified shall be invalid,

and the Persons listed in such a request shall be Members of the Settlement Class and shall be

bound as Settlement Class Members by the Agreement, if approved. Any Member of the

Settlement Class who elects to be excluded shall not: (i) be bound by any orders or the Judgment;

(ii) be entitled to relief under this Agreement; (iii) gain any rights by virtue of this Agreement; or

(iv) be entitled to object to any aspect of this Agreement. No Person may opt out of the Settlement

Class through “mass” or “class” opt-outs.

5.2 Right to Object. Any Settlement Class Member may comment in support of or in

opposition to this Agreement or its terms and may do so in writing, in person, or through counsel,

at his or her own expense, to be heard at the Fairness Hearing. Except as the Court may order

otherwise, no Settlement Class Member objecting to the settlement shall be heard and no papers,

briefs, pleadings, or other documents submitted by any such Settlement Class Member shall be

received and considered by the Court unless such Settlement Class Member shall mail to or file

with the Court by the Objection/Exclusion Deadline a written objection with the caption Locke v.

Sega of America, Inc. et al., No. 3:13-cv-01962-JD, that includes: (i) the Settlement Class

Member’s full name and current address, (ii) a signed declaration why he, she, or it believes

himself, herself, or itself to be a Member of the Settlement Class, or (iii) proof that he, she, or it

purchased Aliens: Colonial Marines on or before February 12, 2013, (iv) the specific grounds for

the objection, (v) all documents or writings that the Settlement Class Member desires the Court to

consider, (vi) the name and contact information of any and all attorneys representing, advising, or

in any way assisting the objector in connection with the preparation or submission of the objection

or who may profit from the pursuit of the objection (the “Objecting Attorneys”); and (vii) a

statement indicating whether the objector intends to appear at the Fairness Hearing (either



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personally or through counsel who must file an appearance or seek pro hac vice admission). If a

Settlement Class Member or any of the Objecting Attorneys has objected to any class action

settlement where the objector or the Objecting Attorneys asked for or received any payment in

exchange for dismissal of the objection, or any related appeal, without any modification to the

settlement, then the objection must include a statement identifying each such case by full case

caption. Any Settlement Class Member who fails to timely mail or file a written objection to or

with the Court and notice of his or her intent to appear at the Fairness Hearing in accordance with

the terms of this paragraph and as detailed in the Notice shall not be permitted to object to this

Agreement at the Fairness Hearing, shall be foreclosed from seeking any review of this Agreement

by appeal or other means and shall be deemed to have waived his, her, or its objections and be

forever barred from making any such objections in the Action or any other related action or

proceeding.

6. SETTLEMENT ADMINISTRATION

Under the supervision of the Court:

6.1 The Settlement Administrator shall disseminate the Notice as provided in Section 4

supra.

6.2 The Settlement Administrator shall administer the relief provided by this

Agreement by processing Claim Forms in a rational, responsive, cost effective, and timely manner.

The Settlement Administrator shall maintain reasonably detailed records of its activities performed

under this Agreement. The Settlement Administrator shall maintain all such records as is required

by applicable law in accordance with its normal business practices, and such records will be made

available to Class Counsel and Sega’s Counsel upon request. The Settlement Administrator shall

also provide reports and other information to the Court as the Court may require. The Settlement

Administrator shall provide Class Counsel and Sega’s Counsel with information concerning

Notice, the Notice Plan, and the administration and implementation of the Agreement. Should the

Court request, the Parties, in conjunction with the Settlement Administrator, shall submit a timely

report to the Court summarizing the work performed by the Settlement Administrator, including a



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report of all amounts from the Settlement Fund paid to Settlement Class Members on account of

Approved Claims. Without limiting the foregoing, the Settlement Administrator shall:

(a) Forward to Sega’s Counsel all original documents and other materials

received in connection with the administration of the Settlement Agreement within thirty

(30) days after the date on which all Claim Forms have been finally approved or disallowed

per the terms of the Settlement Agreement;

(b) Receive Requests for Exclusion from Settlement Class Members and

promptly provide to Class Counsel and Sega’s Counsel a copy thereof upon receipt. If the

Settlement Administrator receives any Requests for Exclusion from Settlement Class

Members after the Objection/Exclusion Deadline, the Settlement Administrator shall

immediately provide copies thereof to Class Counsel and Sega’s Counsel;

(c) Provide weekly reports to Class Counsel and Sega’s Counsel, including

without limitation, reports regarding the number of Claim Forms received; and

(d) Upon request, make available for inspection by Class Counsel or Sega’s

Counsel the Claim Forms and any other documents or correspondence received by the

Settlement Administrator relating to the Settlement Agreement at any time upon reasonable

notice.

6.3 The Settlement Administrator shall employ reasonable procedures to screen Claim

Forms for abuse or fraud. The Settlement Administrator shall reject a Claim Form, or any part of a

claim for a payment reflected therein, where there is evidence of abuse or fraud. The Settlement

Administrator shall also reject a Claim Form that does not contain all requested information

necessary to screen the Claim Form for fraud or abuse, after giving the Person submitting the

Claim Form a reasonable opportunity to provide any requested missing information. Both Sega’s

Counsel and Class Counsel shall have the right to challenge the acceptance or rejection of a Claim

Form submitted by Settlement Class Members. The Settlement Administrator shall follow any

agreed decisions of Sega’s Counsel and Class Counsel. To the extent Sega’s Counsel and Class

Counsel are not able to agree on the disposition of a challenge, the Settlement Administrator shall



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timely decide such challenge. Within thirty (30) days after the Claims Deadline, the Settlement

Administrator shall provide to Sega the names of all Settlement Class Members who submitted

Approved Claim Forms.

6.4 In the exercise of its duties outlined in this Agreement, the Settlement

Administrator shall have the right to reasonably request additional information from the Parties or

any Settlement Class Member.

6.5 The Settlement Administrator shall create the Settlement Website. The Settlement

Website shall contain claims information and relevant documents, including but not limited to a

copy of the Notice, the Claim Form, this Agreement, the order entered by the Court preliminarily

approving this Agreement, and the operative complaint in the Action and Defendants’ answers.

The Settlement Website shall also include a toll free telephone number and mailing address

through which the Members of the Settlement Class may contact the Settlement Administrator

directly.

6.6 The Settlement Administrator shall make all Settlement Payments by check and

mail them to Settlement Class Members ninety (90) days after the Effective Date.

7. TERMINATION OF SETTLEMENT

7.1 Subject to Paragraph 10 below, the Class Representative, on behalf of the

Settlement Class, or Sega, shall have the right to terminate this Settlement Agreement by providing

written notice of the election to do so (“Termination Notice”) to all other Parties hereto within ten

(10) days of any of the following events: (i) the Court’s refusal to grant Preliminary Approval of

this Agreement in any material respect, or this Court’s refusal to find that this Agreement was

entered into in good faith between Plaintiff and Sega; (ii) the Court’s refusal to grant final approval

of this Agreement in any material respect; (iii) the Court’s refusal to enter the Judgment in this

Action in any material respect; (iv) the date upon which the Judgment is modified or reversed in

any material respect by the Court of Appeals or the Supreme Court; or (v) the date upon which an

Alternative Judgment, as defined in Section 10.1(d) of this Agreement, is modified or reversed in

any material respect by the Court of Appeals or the Supreme Court.



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8. PRELIMINARY AND FINAL APPROVAL

8.1 Promptly after the execution of this Agreement, Class Counsel shall submit this

Agreement together with its exhibits to the Court and shall move the Court for Preliminary

Approval of the settlement set forth in this Agreement, appointment of Class Counsel and the

Class Representative, and entry of Preliminary Approval, which order shall set a Fairness Hearing

date and approve the Notice and Claim Form for dissemination in accordance with the Notice Plan.

8.2 At the time of the submission of this Agreement to the Court as described above,

Class Counsel shall request that, after Notice is disseminated to the Settlement Class, the Court

hold a Fairness Hearing and approve the settlement of the Action as set forth herein. At the same

time, Sega may move the Court for an order to determine that this Agreement has been entered

into between Plaintiff and Sega in good faith under California Code of Civil Procedure sections

877 and 877.6 et seq.

8.3 After Notice is disseminated to the Settlement Class, the Parties shall request and

obtain from the Court a Final Judgment. The Final Judgment will (among other things):

(a) find that the Court has personal jurisdiction over all Settlement Class

Members and that the Court has subject matter jurisdiction to approve this Agreement,

including all exhibits thereto;

(b) approve this Agreement and the proposed settlement as fair, reasonable and

adequate as to, and in the best interests of, the Settlement Class Members, and that the

Agreement has been entered into between Plaintiff and Sega in good faith; direct the

Parties and their counsel to implement and consummate this Agreement according to its

terms and provisions; and declare this Agreement to be binding on, and have res judicata

and preclusive effect in, all pending and future lawsuits or other proceedings maintained by

or on behalf of Plaintiff and all other Settlement Class Members, and Releasing Parties;

(c) find that the Notice and the Notice Plan implemented pursuant to this

Agreement (1) constitute the best practicable notice under the circumstances, (2) constitute

notice that is reasonably calculated, under the circumstances, to apprise the Settlement



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Class of the pendency of the Action, their right to object to or exclude themselves from this

Agreement and to appear at the Fairness Hearing, (3) are reasonable and constitute due,

adequate and sufficient notice to all Persons entitled to receive notice, and (4) meet all

applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause of

the United States Constitution and the rules of the Court;

(d) find that the Class Representative and Class Counsel adequately represented

the Settlement Class for purposes of entering into and implementing this Agreement;

(e) dismiss the Action against Sega (including all individual claims and

Settlement Class claims presented thereby) on the merits and with prejudice, without fees

or costs to any party except as provided in this Agreement and determined by the Court;

(f) incorporate the Release set forth above, make the Release effective as of the

date of the Judgment, and forever discharge the Released Parties as set forth herein;

(g) permanently bar and enjoin all Settlement Class Members who have not

been properly excluded from the Settlement Class from filing, commencing, prosecuting,

intervening in, or participating (as Settlement Class Members or otherwise) in, any lawsuit

or other action against Sega in any jurisdiction based on or arising out of the Released

Claims;

(h) authorize the Parties, without further approval from the Court, to agree to

and adopt such amendments, modifications and expansions of this Agreement and its

implementing documents (including all exhibits to this Agreement) as (1) shall be

consistent in all material respects with the Judgment, or (2) do not limit the rights of

Settlement Class Members;

(i) without affecting the finality of the Judgment for purposes of appeal, retain

jurisdiction as to all matters relating to administration, consummation, enforcement and

interpretation of the Agreement and the Judgment, and for any other necessary purpose;

and

(j) incorporate any other provisions, as the Court deems necessary and just.



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9. CLASS COUNSEL’S ATTORNEYS’ FEES AND REIMBURSEMENT OF

EXPENSES; INCENTIVE AWARD.

9.1 Sega agrees that Class Counsel shall be entitled to reasonable attorneys’ fees and

reimbursement of expenses up to a cap of three hundred twelve thousand five hundred dollars

($312,500) to be paid from the Settlement Fund as the Fee Award.

9.2 If there have been no objections to the Agreement, Sega shall pay to Class Counsel

from the Settlement Fund the Fee Award, as determined by the Court, within three (3) business

days after the date that the Court enters the Judgment. If there have been objections to the

Agreement, then Sega shall pay to Class Counsel from the Settlement Fund the Fee Award, as

determined by the Court, within three (3) business days after the Effective Date. Payment of the

Fee Award shall be made via wire transfer to an account designated by Class Counsel after

providing necessary information for electronic transfer.

9.3 In addition to any payment to which he may be entitled under this Agreement on

account of an Approved Claim, and in recognition of the time and effort he expended on behalf of

the Settlement Class, subject to the Court’s approval, Sega shall pay to the Class Representative

from the Settlement Fund an incentive award in the amount of two thousand five hundred US

dollars ($2,500.00).

9.4 If there have been no objections to the Agreement, Sega shall pay to the Class

Representative from the Settlement Fund the incentive award, as determined by the Court, within

three (3) business days after the date that the Court enters the Final Judgment. If there have been

objections to the Agreement, then Sega shall pay to the Class Representative from the Settlement

Fund the incentive award, as determined by the Court, within three (3) business days after the

Effective Date. Payment of the incentive award to the Class Representative shall be made via wire

transfer to an account designated by Class Counsel after providing necessary information for

electronic transfer. 10. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL,

CANCELLATION OR TERMINATION.

10.1 The Effective Date of this Settlement Agreement shall not occur unless and until



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each of the following events occurs and shall be the date upon which the last (in time) of the

following events occurs:

(a) This Agreement has been signed by the Parties, Class Counsel and Sega’s

Counsel;

(b) The Court has entered an order granting Preliminary Approval of the

Agreement;

(c) The Court has entered an order finally approving the Agreement, following

Notice to the Settlement Class and a Fairness Hearing, as provided in the Federal Rules of

Civil Procedure, and has entered the Judgment, or a judgment substantially consistent with

this Agreement; and

(d) The Judgment has become Final, as defined above, or, in the event that the

Court enters an order and final judgment in a form other than that provided above

(“Alternative Judgment”) and that has the consent of the Parties, such Alternative Judgment

becomes Final.

10.2 If some or all of the conditions specified in Paragraph 10.1 are not met, or in the

event that this Agreement is not approved by the Court, or the settlement set forth in this

Agreement is terminated or fails to become effective in accordance with its terms, then this

Agreement shall be canceled and terminated subject to Paragraph 10.3 unless Class Counsel and

Sega’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in

material breach of the terms hereof, any other Party, provided that it is in substantial compliance

with the terms of this Agreement, may terminate this Agreement on notice to all Parties.

Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the

Fee Award to Class Counsel set forth above, regardless of the amount awarded, shall not prevent

the Agreement from becoming effective, nor shall it be grounds for termination.

10.3 If this Agreement is terminated or fails to become effective for the reasons set forth

in Paragraphs 7.1, 10.1, or 10.2 above, the Parties shall be restored to their respective positions in

the Action as of the date of the signing of this Agreement. In such event, any Judgment or other



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order entered by the Court in accordance with the terms of this Agreement shall be treated as

vacated, nunc pro tunc, and the Parties shall be returned to the status quo ante with respect to the

Action as if this Agreement had never been entered into.

11. MISCELLANEOUS PROVISIONS

11.1 The Parties shall request that the Court stay all pending case deadlines relating to

Sega.

11.2 The Parties (a) acknowledge that it is their intent to consummate this Agreement;

and (b) agree, subject to their fiduciary and other legal obligations, to cooperate to the extent

reasonably necessary to effectuate and implement all terms and conditions of this Agreement and

to exercise their reasonable best efforts to accomplish the foregoing terms and conditions of this

Agreement. Class Counsel and Sega’s Counsel agree to cooperate with one another in seeking

entry of an order granting Preliminary Approval of this Agreement, as well as entry of the

Judgment, and promptly to agree upon and execute all such other documentation as may be

reasonably required to obtain final approval of the Agreement.

11.3 The Parties acknowledge that (a) any certification of the Settlement Class as set

forth in this Agreement, including certification of the Settlement Class for settlement purposes in

the context of Preliminary Approval, shall not be deemed a concession that certification of a

litigation class is appropriate, nor would Sega be precluded from challenging class certification in

further proceedings in the Action or in any other action if the Settlement Agreement is not

finalized or finally approved; (b) if the Settlement Agreement is not finally approved by the Court

for any reason whatsoever, then any certification of the Settlement Class will be void, the Parties

and the Action shall be restored to the status quo ante, and no doctrine of waiver, estoppel or

preclusion will be asserted in any litigated certification proceedings in the Action or in any other

action; and (c) no agreements made by or entered into by Sega in connection with the Settlement

may be used by Plaintiff, any person in the Settlement Class, or any other person to establish any

of the elements of class certification in any litigated certification proceedings, whether in the

Action or any other judicial proceeding.



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11.4 The Parties intend this Agreement to be a final and complete resolution of all

disputes between them with respect to the Released Claims by Plaintiff and the Settlement Class,

and each or any of them, on the one hand, against the Released Parties, and each or any of the

Released Parties, on the other hand. Accordingly, the Parties agree not to assert in any forum that

this Action, and only this Action, was brought by Plaintiff or defended by Sega, or each or any of

them, in bad faith or without a reasonable basis. Notwithstanding the foregoing language, this

Agreement does not preclude subsequent litigation between the Defendants regarding the subject

matter of this Action, nor limit any claims or defenses Defendants could assert in such litigation

against each other.

11.5 The Parties have relied upon the advice and representation of counsel, selected by

them, concerning their respective legal liability for the claims hereby released. The Parties have

read and understand fully the above and foregoing Agreement and have been fully advised as to

the legal effect thereof by counsel of their own selection and intend to be legally bound by the

same. Whether or not the Effective Date occurs or this Agreement is terminated, neither this

Agreement nor the settlement contained herein, nor any act performed or document executed

pursuant to or in furtherance of this Agreement or the settlement:

(a) is, may be deemed, or shall be used, offered or received against the Released

Parties, or each or any of them, as an admission, concession or evidence of, the validity of

any Released Claims, the truth of any fact alleged by Plaintiff, the deficiency of any

defense that has been or could have been asserted in the Action, the violation of any law or

statute, the reasonableness of the settlement amount or the Fee Award, or of any alleged

wrongdoing, liability, negligence, or fault of the Released Parties, or any of them, except

that this provision shall have no effect as to any claims that Sega and Gearbox may have

against each other;

(b) is, may be deemed, or shall be used, offered or received against Defendant

Sega, as an admission, concession or evidence of any fault, misrepresentation or omission

with respect to any statement or written document approved or made by the Released



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Parties, or any of them;

(c) is, may be deemed, or shall be used, offered or received against Plaintiff or

the Settlement Class, or each or any of them, as an admission, concession or evidence of,

the infirmity or strength of any claims raised in the Action, the truth or falsity of any fact

alleged by Defendants, or the availability or lack of availability of meritorious defenses to

the claims raised in the Action;

(d) is, may be deemed, or shall be used, offered or received against the Released

Parties, or each or any of them, as an admission or concession with respect to any liability,

negligence, fault or wrongdoing as against any Released Parties, in any civil, criminal or

administrative proceeding in any court, administrative agency or other tribunal. However,

the settlement, this Agreement, and any acts performed and/or documents executed in

furtherance of or pursuant to this Agreement and/or settlement may be used in any

proceedings as may be necessary to effectuate the provisions of this Agreement. If this

Agreement is approved by the Court, any party or any of the Released Parties may file this

Agreement and/or the Judgment in any action that may be brought against such party or

parties in order to support a defense or counterclaim based on principles of res judicata,

collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other

theory of claim preclusion or issue preclusion or similar defense or counterclaim; for the

avoidance of doubt, this provision shall be of no force and effect with respect to any action

that Sega or Gearbox may bring against each other;

(e) is, may be deemed, or shall be construed against Plaintiff, the Settlement

Class, or each or any of them, or against the Released Parties, or each or any of them, as an

admission or concession that the consideration to be given hereunder represents an amount

equal to, less than, or greater than the amount that could have or would have been

recovered after trial; and

(f) is, may be deemed, or shall be construed as or received in evidence as an

admission or concession against Plaintiff, the Settlement Class, or each and any of them, or



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against the Released Parties, or each or any of them, that any of Plaintiff’s claims are with

or without merit or that damages recoverable in the Action would have exceeded or would

have been less than any particular amount.

11.6 The headings used herein are used for the purpose of convenience only and are not

meant to have legal effect.

11.7 The waiver by one party of any breach of this Agreement by any other party shall

not be deemed as a waiver of any other prior or subsequent breaches of this Agreement.

11.8 All of the exhibits to this Settlement Agreement are material and integral parts

thereof and are fully incorporated herein by this reference.

11.9 This Agreement and its exhibits set forth the entire agreement and understanding of

the Parties with respect to the matters set forth herein and supersede all prior negotiations,

agreements, arrangements, and undertakings with respect to the matters set forth herein. No

representations, warranties or inducements have been made to any party concerning this

Agreement or its exhibits other than the representations, warranties and covenants contained and

memorialized in such documents. This Agreement may be amended or modified only by a written

instrument signed by or on behalf of all Parties or their respective successors-in-interest.

11.10 Except as otherwise provided herein, each Party shall bear its own costs.

11.11 Plaintiff represents and warrants that he has not assigned any claim or right or

interest therein as against the Released Parties to any other Person or party and that he is fully

entitled to release the same.

11.12 Each counsel or other Person executing this Agreement, any of its exhibits, or any

related settlement documents on behalf of any party hereto hereby warrants and represents that

such Person has the full authority to do so and has the authority to take appropriate action required

or permitted to be taken pursuant to the Agreement to effectuate its terms.

11.13 This Agreement may be executed in one or more counterparts. All executed

counterparts and each of them shall be deemed to be one and the same instrument. Signature by

digital, facsimile, or in PDF format will constitute sufficient execution of this Agreement. A



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complete set of original executed counterparts shall be filed with the Court if the Court so requests.

11.14 This Settlement Agreement shall be binding upon, and inure to the benefit of, the

successors and assigns of the Parties hereto.

11.15 The Court shall retain jurisdiction with respect to implementation and enforcement

of the terms of this Agreement, and all Parties hereto submit to the jurisdiction of the Court for

purposes of implementing and enforcing the settlement embodied in this Agreement.

11.16 This Settlement Agreement shall be governed by and construed in accordance with

the laws of the State of California.

11.17 This Settlement Agreement is deemed to have been prepared by counsel for all

Parties, as a result of arm’s-length negotiations among the Parties with the aid of a neutral

mediator.

11.18 The Parties agree they have each contributed substantially and materially to the

preparation of this Agreement, and that it shall not be construed more strictly against one party

than another.

11.19 Where this Settlement Agreement requires notice to the Parties, such notice shall be

sent to the undersigned counsel: Rafey S. Balabanian, Edelson PC, 350 North LaSalle Street, Suite

1300, Chicago, Illinois 60654 and Claude M. Stern, Quinn Emanuel Urquhart & Sullivan, LLP,

555 Twin Dolphin Drive, 5th Floor, Redwood Shores, California 94065.

11.20 As is made clear in various provisions of this Agreement, and for the avoidance of

doubt, this Agreement shall not limit the ability of Sega and Gearbox to bring claims against each

other related to the subject matter of this Action and shall not limit the causes of action or defenses

each may assert against the other.



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IT IS SO AGREED TO BY THE PARTIES:

JOHN LOCKE,

Dated: August ___, 2014 __________________________________________

Individually and as representative of the Class

SEGA OF AMERICA, INC.

Dated: August ___, 2014 By (signature):

Name (printed):

Its (title):

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http://www.rightsignature.com/documents/UWEPPUJ4ZLDR6DD45KU2DR

1 IT IS SO STIPULATED BY COUNSEL FOR THE PARTIES:

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3 Dated: August , 2014 EDELSON P.C.

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9 Dated: August t( 2014 QUINN EMANUEL URQUHART AND Su LIVAN, LLP

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11 BY:

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28 CLASS ACTION SETTLEMENT AGREEMENT CASE NO. 3:13-Cv-01962-.113

By:

Rafey S. Balabanian Attorney for Plaintiff and the Class

Claude M. Stem Attorney for Defendant Sega of America, Inc.

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Exhibit A


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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

IF YOU PURCHASED ALIENS: COLONIAL MARINES, YOU MAY BE ENTITLED TO A PAYMENT FROM A PARTIAL CLASS ACTION SETTLEMENT.

A federal court authorized this notice. You are not being sued. It is not a solicitation from a lawyer.

! A partial settlement has been reached in a class action lawsuit against Sega of America, Inc. (“Sega”)

and Gearbox Software, L.L.C. (“Gearbox”) (collectively, “Defendants”). The class action lawsuit is about whether Defendants’ marketing for the Aliens: Colonial Marines video game (“Aliens: Colonial Marines”) misled consumers into purchasing Aliens: Colonial Marines. Sega denies these allegations, but has agreed to a proposed Settlement that will only settle Plaintiff’s claims against Sega. The case filed by Plaintiff will continue against Gearbox.

! You are included in this Settlement if you purchased a copy of Aliens: Colonial Marines either on or before February 12, 2013.

! Those included in the Settlement will be eligible to receive an equal (called “pro rata”) share of the established $1,250,000 Settlement Fund, up to the amount they paid for Aliens: Colonial Marines, as described below. The total amount of each payment will depend on the total number of valid claims submitted.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

SUBMIT A COMPLETED CLAIM FORM

This is the only way to receive a payment.

DO NOTHING

You will receive no payment under the Settlement, and will give up your rights to sue the Sega about the issues in this case.

ASK TO BE EXCLUDED FROM THE SETTLEMENT WITH SEGA

You will receive no payment under the Settlement, but you will keep any rights you may have to separately sue Sega about the same legal issues resolved by this Settlement.

OBJECT TO THE SETTLEMENT WITH SEGA

Write to the Court explaining why you don’t like the Settlement.

GO TO THE SETTLEMENT HEARING

Ask to speak in court about the Settlement.

• These rights and options—and the deadlines to exercise them—are explained in this notice.

• The Court still has to decide whether to approve the Settlement. Payments will be provided only after any issues with the Settlement are first resolved by the Court. Please be patient.

BASIC INFORMATION

1. Why was this notice issued?


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A Court authorized this notice to let you know about a proposed partial Settlement with Sega. This is only a partial settlement of the lawsuit. Plaintiff will continue to seek a recovery against Gearbox. You have legal rights and options that you may act on before the Court decides whether to approve the proposed Settlement. This notice explains the lawsuit, the Settlement, and your legal rights.

Judge James Donato of the U.S. District Court for the Northern District of California is overseeing this class action. The case is known as Locke v. Sega of America, Inc. et al., No. 3:13-cv-01962-JD. The individual who sued is called the Plaintiff. The companies he sued, Sega and Gearbox, are called the Defendants.

2. What is a class action?

In a class action, one or more people called “Class Representatives” (in this case, John Locke) sue on behalf of a group of people who have similar claims. Together, these people are called a “Class” or “Class Members.” In a class action, the Court resolves the issues for all Class Members, except for those who exclude themselves from the Class.

THE CLAIMS IN THE LAWSUIT AND THE SETTLEMENT

3. What is this lawsuit about?

This lawsuit alleges that Defendants each made false statements about specific qualities about Aliens: Colonial Marines in their marketing of the game. The lawsuit claims that the Defendants committed fraud, breached certain express warranties, and violated certain California consumer protection laws. A more complete description of the allegations is set forth in the Second Amended Class Action Complaint, which is available by clicking [URL].

Sega has denied and continues to deny any wrongdoing whatsoever, or that it committed, or threatened, or attempted to commit any wrongful act or violation of law or duty alleged in the Action, and contends that it has acted properly in all regards in connection with its development and marketing practices. The Settlement is not an admission of wrongdoing, and the Court has not decided and will not decide in favor of the Plaintiff or Sega. A more complete description of the defenses raised by the Defendants is set forth in Sega’s Answer and Affirmative Defenses, which is available by clicking [URL].

4. Why is there a Settlement with Sega?

The Court has not decided whether the Plaintiff or the Defendants should win this case. Instead, Sega and the Plaintiff agreed to a Settlement. That way, they avoid the time burden and expenses associated with ongoing litigation, and Class Members get compensation now rather than years from now, if at all. The Class Representative and their attorneys (“Class Counsel”) believe that the Settlement with Sega is in the best interests of the Class Members, and has been entered in good faith given the risks that Plaintiff has in the lawsuit against Sega, that the settlement amount Sega is prepared to pay reflects the risks that the plaintiff has in the lawsuit, and, given those risks, both: is within the reasonable range of what the Plaintiff contends is Sega’s proportional share of comparative liability for the class’ injuries, and that the amount Sega is paying to settle the suit is according to Plaintiff and his counsel a rough approximation of Sega’s proportionate liability for amount that Plaintiff contends are the potential total recovery against. The case will continue against Gearbox and Plaintiff will ask the Court to award Class Members damages against Gearbox, including exemplary damages up to three times the full purchase price for Aliens: Colonial Marines.


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WHO IS INCLUDED IN THE SETTLEMENT

You need to determine whether you are affected by this Settlement. 5. Am I part of the Partial Settlement?

The Settlement includes a Class of “all persons in the United States who paid for a copy of the Aliens: Colonial Marines video game either on or before February 12, 2013.” Everyone who fits this description is a Member of the Class. If you’re still not sure whether you are a Member of the Class, then view the Frequently Asked Questions (“FAQs”) section of this website [link] for further explanation. You can also call the Class Action Administrator at [1-XXX-XXXX]. Or, you can get free help by calling or writing the lawyers in this case, at the phone number and addresses listed in Questions 9 and 21.

THE SETTLEMENT BENEFITS

6. What does the Settlement provide?

Sega has agreed to create a $1,250,000 million Settlement Fund. The Settlement Fund will be used to pay all valid claims, costs of administering the settlement, attorneys’ fees, and incentive payment to the class representative. The settlement also provides that Plaintiff can seek discovery against Sega only after being unable to obtain from Gearbox or any third party such discovery. Payments to Class Members: As part of the Settlement, Class Members who submit valid Claim Forms before the deadline of [claims deadline] will each receive an equal (or “pro rata”) share of the monies in the Settlement Fund, but in no event will any such payment exceed the amount that any claimant paid for Aliens: Colonial Marines. The total amount paid to each claimant will depend on the number of valid claims submitted by Settlement Class Members (there is an estimated 135,000 people in the Settlement Class). If the number of valid claims submitted by Class Members is low, then the amount of individual payments to those Class Members who submitted valid claims will rise— up to the amount each person paid for their copy of Aliens: Colonial Marines. But if the number of valid claims submitted by Class Members is high, then the amount of individual payments to those Class Members who submitted valid claims will go down. There is also a chance that a portion of the Settlement Fund will be distributed to either the National Consumer Law Center, a not-for-profit organization, or Consumers Union, a not-for-profit organization, if there is money remaining in the Settlement Fund after all claims, fees, and expenses have been paid. Class members who wish to better understand the expected amount that will be paid on valid claims based on the number of claims filed at that point can contact Class Counsel for further information at (866) 354-3015.

7. When will I get my payment?

The final hearing to consider the fairness of the Settlement is scheduled for [Fairness Hearing Date]. If the Court approves the Settlement, and after any appeals process is completed, eligible Class


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Members whose claims were approved by the Settlement Administrator will be sent a check. Please be patient. All checks will expire and become void 90 days after they are issued.

HOW TO GET BENEFITS

8. How do I get benefits?

If you are a Class Member and you want to participate in the Settlement, you must complete and submit a truthful Claim Form by [Claims Deadline]. Claim Forms can be found and submitted online. To submit a Claim Form online or to request a paper copy to submit by mail, go to www.[settlementwebsite.net].

THE LAWYERS REPRESENTING YOU

9. Do I have a lawyer in this case?

Yes. The Court has appointed lawyers Rafey S. Balabanian, Christopher L. Dore, and Benjamin S. Thomassen from Edelson PC as the attorneys to represent you and the other Class Members. These attorneys are called “Class Counsel.” You can reach Class Counsel with any questions about the case, settlement process, or claims process at (866) 354-3015 or at the address listed in response to Question 21, below.

10. Should I get my own lawyer?

You don’t need to hire your own lawyer because Class Counsel is working on your behalf. But, if you want your own lawyer, you will have to pay that lawyer yourself. For example, you can ask your lawyer to appear in Court for you if you want someone other than Class Counsel to represent you.

11. How will the lawyers get paid?

Class Counsel will ask the Court for attorneys’ fees of up to 25% of the Settlement Fund and will also ask the Court to award the Class Representative $2,500 for serving as the Plaintiff in this case. The Court will determine the proper amount of any attorneys’ fees and expenses to award Class Counsel and the proper amount of any award to the Class Representative. The Court may award less than the amounts requested and any money not awarded will stay in the Settlement Fund to pay Class Members.

YOUR RIGHTS AND OPTIONS

12. What happens if I do nothing?

If you do nothing, you won’t get any payment or any other benefits under the Settlement. But, unless you exclude yourself, you won’t be able to start a lawsuit or be part of any other lawsuit against Sega for the claims or legal issues being resolved by this Settlement.

13. What happens if I ask to be excluded?


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If you exclude yourself from the Settlement, you can’t claim any money or receive any benefits as a result of the Settlement. You will keep your right to start or continue your own lawsuit against Sega for the same legal claims made in this lawsuit. You will not be legally bound by the Court’s judgments related to the Class and Sega in this class action.

14. How do I ask to be excluded?

You can ask to be excluded from the Settlement. To do so, you must send a signed letter stating that you want to be excluded from the Settlement in Locke v. Sega of America, Inc. et al., No. 3:13-cv-01962-JD. Your letter must also include (1) your full name, telephone number, and your current address; and (2) a statement that you paid for a copy of Aliens: Colonial Marines on or before February 12, 2013. Your exclusion request must be postmarked and mailed no later than [objection/exclusion deadline] to:

Locke v. Sega of America, Inc. et al. Settlement Administrator

0000 Street City, ST 00000

15. If I don’t exclude myself, can I sue Sega for the same thing later?

No. Unless you exclude yourself, you give up any right to sue Sega for the claims in this lawsuit and resolved by this Settlement.

16. How do I object to the Settlement?

If you do not exclude yourself from the Settlement Class, you can object to the Settlement if you don’t like any part of it. You can give reasons why you think the Court should deny approval by filing an objection. You can’t ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit against Sega will continue. If that is what you want to happen, you must object. The Court will consider your views. No later than [objection / exclusion deadline], your objection to the Settlement must be filed in person at any location of the United States District Court for the Northern District of California or postmarked to the Court at:

Class Action Clerk United States District Court for the Northern District of California Phillip Burton Federal Building & United States Courthouse

450 Golden Gate Avenue San Francisco, CA 94102

To object, you must mail or file a letter or brief to or with the Court stating that you object to the Settlement in Locke v. Sega of America, Inc. et al., No. 3:13-cv-01962-JD. Your letter or brief must also include (1) the Settlement Class Member’s full name and current address, (ii) a signed declaration that he or she believes himself or herself to be a Member of the Settlement Class and an explanation of the basis for such belief, or (iii) proof of purchase of Aliens: Colonial Marines on or before February 12, 2013, (iv) the specific grounds for the objection, (v) all documents or writings that the Settlement Class Member desires the Court to consider, (vi) the name and contact information of any and all attorneys representing, advising, or in any way assisting the objector in connection with the preparation or submission of the objection or who may profit from the pursuit of the objection (the “Objecting Attorneys”); and (vii) a statement indicating whether the objector


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intends to appear at the Fairness Hearing (either personally or through counsel who must file an appearance or seek pro hac vice admission). If a Settlement Class Member or any of the Objecting Attorneys has objected to any class action settlement where the objector or the Objecting Attorneys asked for or received any payment in exchange for dismissal of the objection, or any related appeal, without any modification to the settlement, then the objection must include a statement identifying each such case by full case caption. (See Questions 18-20). Class Counsel will file with the Court and post on this Settlement Website its request for attorneys’ fees two weeks prior to [objection/exclusion deadline]. 17. What’s the difference between objecting to the Settlement and excluding myself?

Objecting is telling the Court that you don’t like something about the Settlement. You can object to the Settlement only if you stay in the Class (i.e., you don’t exclude yourself from the Settlement). Excluding yourself is telling the Court that you don’t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object because the Settlement no longer affects you.

THE COURT’S FAIRNESS HEARING

18. When and where will the Court decide whether to approve the Settlement?

The Court will hold the Final Approval Hearing at [time] a.m./p.m. on [date], 2014 before Judge James Donato in Courtroom 11 (19th Floor) of the United States District Court for the Northern District of California (San Francisco Division), 450 Golden Gate Avenue, San Francisco, CA 94102. The purpose of this hearing will be for the Court to determine whether (1) to approve the Settlement as fair, reasonable, adequate, and in the best interests of the Class; (2) to consider Class Counsel’s request for attorneys’ fees and expenses; and (3) to consider the request for an incentive award to the Class Representative. At the same time, the Court may also conduct a hearing on a motion by Sega for a ruling that the settlement has been entered into by Plaintiff and Sega in good faith. At that hearing, the Court will listen to any objections and arguments concerning the fairness of the Settlement.

Note: The date and time of the fairness hearing are subject to change by Court Order, but any changes will be posted at the settlement website, [www.website.net] or through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov.

19. Do I have to come to the Fairness Hearing?

No. Class Counsel will answer any questions the Court may have. But you are welcome to come at your own expense. If you send an objection, you don’t have to come to Court to talk about it. As long as your written objection was filed and mailed on time and meets the other criteria described in the Settlement, the Court will consider it. You may also pay another lawyer to attend, but you don’t have to.

20. May I speak at the hearing?


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If you do not exclude yourself from the Settlement Class, you may ask the Court for permission to speak at the hearing concerning any part of the proposed Settlement by asking to speak in your objection by following the instructions above.

GETTING MORE INFORMATION

21. How do I get more information? You can visit www.[settlementwebsite.net] for Court Documents, the precise terms of the settlement, and updated information about the lawsuit and the Settlement as it becomes available. These are also available by accessing the Court docket in this case through the Court’s PACER system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California, Phillip Burton Federal Building & United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays. You may also call the Settlement Administrator at [1-XXX-XXXX] or contact Class Counsel by phone (866) 354-3015 or by mail at Ben Thomassen, Edelson PC, 350 N. LaSalle Street, Suite 1300, Chicago, Illinois 60654, if you have any questions. Before doing so, however, please read this full notice carefully. You may also find additional information elsewhere on this website. Questions may not be directed to the Court. PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANTS WITH QUESTIONS ABOUT THE SETTLEMENT.

QUESTIONS? CALL 1-XXX-XXXX TOLL FREE, OR VISIT WWW.[SETTLEMENTWEBSITE.NET]


Exhibit B


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!

Locke v. Sega of America, Inc. et al., Case No. 3:13-cv-01962-JD (N.D. Cal.) CLAIM FORM

NOTE: If you are a Settlement Class Member and believe you are entitled to receive a cash

payment for your purchase of the Aliens: Colonial Marines video game, you must complete this Claim Form pursuant to the terms of the Settlement Agreement. For your claim to be considered valid, you must complete this form. Failing to fill in a blank or filling in a blank with the words “I don’t know” or equivalent substance will invalidate your claim. Your Claim Form must be postmarked or completed online on or before [date]. Please note that the Settlement Administrator may contact you to request more information about your submitted Claim Form and will reject any Claim Form that contains evidence of fraud. Class Counsel and Sega also have the right to challenge the acceptance or rejection of any submitted Claim Form.

Please fill out the information below completely. If the information you provide is insufficient to

determine whether you are a Settlement Class Member, your claim may be rejected. Name:

Address:

Email Address:

Phone Number (Optional. The Settlement Administrator may call you for additional information to process your claim, if necessary):

PRODUCT PURCHASE INFORMATION:

1. I, (your name), believe I am a member of the Settlement Class.

2. Indicate on what date you purchased, how much you paid, and where you purchased Aliens: Colonial Marines:

Date of Purchase: ______________________________________________________________________

Amount Paid:

Place of Purchase (name of retail, internet or other specific location; identifying only city or state is inadequate):

OPTIONAL PURCHASE EVIDENCE:

If you cannot provide the information required to complete the Product Purchase Information above, you have the option of submitting other proof showing that you pre-ordered Aliens: Colonial Marines. This may include a receipt, a credit card statement, or anything else which demonstrates that you pre-ordered and purchased the game. You can use the form on this page to submit your optional purchase evidence to the Settlement Administrator.

3. Are you submitting optional purchase evidence?

___ Yes ___ No

I declare under penalty of perjury of the laws of the United States that all of the foregoing information I have provided is true and correct. Dated: Sign Here INSTRUCTIONS FOR COMPLETION OF THIS CLAIM FORM:


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1. Please print or type all information legibly and carefully. If and when the Settlement receives final approval from the Court and any appeals of such determination have been resolved in favor of approval of the Settlement, a check will be sent to all Settlement Class Members whose names appear on a valid Claim Form. The Parties have the right to audit all claims for accuracy, veracity, and compliance with the terms and conditions of the Settlement Agreement. 2. You may submit a claim only if you purchased a copy of Aliens: Colonial Marines either on or before February 12, 2013. 3. If your claim is valid and timely, you may recover a one-time payment from the $1,250,000 Settlement Fund. Each valid claimant will receive an equal, “pro rata,” share from the fund, but in no event more than the amount he, she, or it paid for Aliens: Colonial Marines. Please note that the per-claim amount will change depending on the number of valid claims submitted.


Exhibit C


IF YOU PURCHASED ALIENS: COLONIAL MARINES, YOU MAY BE ENTITLED TO PAYMENT FROM A PARTIAL CLASS ACTION SETTLEMENT

www.[settlementwebsite.net]

COURT AUTHORIZED NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT

A partial settlement has been reached in a class action lawsuit involving Sega of America, Inc. (“Sega”) and Gearbox Software, L.L.C. (“Gearbox”) (collectively, “Defendants”) regarding the Aliens: Colonial Marines video game (“Aliens: Colonial Marines”). If you are a part of the Settlement Class, your legal rights may be affected whether or not you act. Please read this notice carefully. Visit www.[settlementwebsite.net] to read the full notice and view other court documents.

What is the Lawsuit About? The lawsuit claims that certain marketing materials for the

game released on or before February 12, 2013 misled consumers into purchasing Aliens: Colonial Marines. Plaintiff alleges each of the Defendants misled consumers into purchasing Aliens: Colonial Marines in violation of certain California consumer protection statutes—including California’s Consumers Legal Remedies Act, Unfair Competition Law, and False Advertising Law—and common law. Sega vigorously denies that it violated any law or committed any wrongdoing. The Court has not determined who is right. Rather, Sega and the Plaintiff have agreed to settle the lawsuit only against Sega to avoid the time, burden, and expenses associated with further litigation. The case will continue against Gearbox.

How Do I Know if I am a Class Member? You are a Class Member if you purchased Aliens: Colonial

Marines either on or before February 12, 2013. More detailed information concerning the Class can be found at www.[settlementwebsite.net]. The Class is estimated to number approximately 135,000 people.

What Can I Get From the Settlement? Sega has agreed to establish a $1.25 million Settlement Fund,

which will be used to pay the claims of Class Members, as well as other costs of the Settlement. If you are a Settlement Class Member and the Court approves the Settlement, you may be entitled to money. Each Settlement Class Member who submits a valid claim will be entitled to an equal (“pro rata”) share of the monies remaining in the Settlement Fund, but not to exceed the amount he, she, or it paid for Aliens: Colonial Marines, after payment of the other costs of the Settlement. The total amount paid to each claimant will depend on the total number of valid claims submitted by Settlement Class Members. There is also a chance that a portion of the Settlement Fund could be distributed to the National Consumer Law Center, a not-for-profit organization, based on the number of valid claims submitted. Further information about how the money will be set aside and distributed can be found at www.[settlementwebsite.net].

How Do I Submit a Claim for Payment?

To qualify for a cash payment, you must submit a timely and properly completed Claim Form signed under penalty of perjury. You may submit this online at [website] no later than [deadline], or you may mail a completed Claim Form postmarked no later than [deadline] to Locke v. Sega of America, Inc. et al., Settlement Administrator, [address]. Only claims that meet the requirements of the Settlement Agreement will be eligible for payment.

What are My Other Options? You will be a Member of the Settlement Class unless you exclude yourself from the Settlement. If you do not wish to be a Settlement Class Member, you may exclude yourself by sending a letter to the Settlement Administrator no later than [deadline]. If you choose to exclude yourself, you give up your right to any

payment or to object to the Settlement, but you retain any rights you may currently have to sue Sega over the legal issues in this action. If you choose to bring your own lawsuit, you will have to hire and pay for your own lawyer.

You and/or your lawyer also have the right to appear before the Court and/or object to the proposed Settlement. Objecting is telling the Court you don’t like something about the Settlement. You can object ONLY if you stay in the Settlement Class. Your written objection must be filed with, or mailed to, the Court no later than [objection/exclusion deadline]. Specific instructions about how to object to, or exclude yourself from, the Settlement are available at www.[settlementwebsite.net].

If you do nothing, you will remain a Settlement Class Member,

and if the Court approves the Settlement, you will be bound by all orders and judgments of the Court. However, you need to timely submit a valid Claim Form to get a payment. If the Settlement is approved, your claims against Sega relating to the alleged deception used to market Aliens: Colonial Marines will be fully and finally resolved and released.

Who Represents Me? The Court has appointed lawyers from Edelson PC that

brought the lawsuit to represent the Class. These attorneys are referred to as Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer in this case, you may hire one at your own expense.

When will the Court Consider the Proposed Settlement? The Court will hold a Fairness Hearing to determine the

fairness of the Settlement on [date] in Courtroom 11, 19th Floor, 450 Golden Gate Avenue, San Francisco, CA 94102. At the same time as the Fairness Hearing, Sega may also ask the Court to determine that the settlement between Plaintiff and Sega has been entered into in good faith. There, the Court will hear any objections concerning the Settlement. The hearing may be postponed to a different date or time without notice. You are not required to come to this hearing.

At the hearing to determine the fairness of the Settlement,

Class Counsel will ask the Court for attorneys’ fees and expenses of up to 25% of the Settlement Fund. This amount reimburses Class Counsel for investigating the facts, litigating the case, and negotiating the Settlement. The Court has also appointed a Class Representative, and Class Counsel will ask the Court for an incentive award of $2,500 to this individual for his services in helping bring and settle this case. Class Counsel’s attorneys’ fees and the Class Representative’s incentive award will be paid from the Settlement Fund. The Court may award less than these amounts.

How Do I Get More Information? This notice is only a summary of the lawsuit and proposed

Settlement. For more information, including the full notice, go to www.[settlementwebsite.net], contact the Settlement Administrator at (XXX) XXX-XXXX or [address], or call Class Counsel at (866) 354-3015. Please do not contact the Court, the Judge, or the Defendants with questions about this Settlement. By Order of the Court Dated: [date]


Exhibit D


If you bought the following video game on or before February 12, 2013, you may be entitled to money from a class action settlement: Aliens: Colonial Marines.

If you purchased Aliens: Colonial Marines on or before February 12, 2013, you may get money

from a class action settlement.

If you paid for Aliens: Colonial Marines on or before February 12, 2013, you may be entitled to money from a class action settlement.

If you purchased Aliens: Colonial Marines on or before February 12, 2013, you may get money

from a class action settlement involving Sega of America, Inc.

If you paid for Aliens: Colonial Marines on or before February 12, 2013, you may be entitled to money from a class action settlement involving Sega of America, Inc.


Exhibit 2


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Declaration of Rafey S. Balabanian


Mark S. Eisen (SBN 289009) [email protected] EDELSON PC 555 West Fifth Street, 31st Floor Los Angeles, California 90013 Tel: 213.533.4100 Fax: 213.947.4251 Rafey S. Balabanian (Admitted pro hac vice) [email protected] Benjamin S. Thomassen (Admitted pro hac vice) [email protected] EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiffs and the Putative Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA


DAMION PERRINE and JOHN LOCKE, individually and on behalf of all others similarly situated, Plaintiffs, v. SEGA OF AMERICA, INC., a California corporation, and GEARBOX SOFTWARE, L.L.C., a Texas limited liability company, Defendants.

Case No. 3:13-cv-01962-JD DECLARATION OF RAFEY S. BALABANIAN IN SUPPORT OF PLAINTIFF LOCKE’S MOTION FOR PRELIMINARY APPROVAL OF A CLASS ACTION SETTLEMENT AGREEMENT Date: September 17, 2014 Time: 9:30 a.m.

Judge: Honorable James Donato Action Filed: April 29, 2013


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Declaration of Rafey S. Balabanian 2


Pursuant to 28 U.S.C. § 1746, I hereby declare and state as follows:

1. I am an attorney admitted pro hac vice in the above-captioned matter. I am

submitting this declaration in support of Plaintiff’s Motion for Preliminary Approval of a Class

Action Settlement Agreement. I am fully competent to make this declaration, which is based upon

my personal knowledge except where expressly noted otherwise. If called upon to testify as to the

matters attested to herein, I could and would competently do so.

2. I am a partner in the law firm of Edelson PC and represent Plaintiff John Locke

(“Plaintiff”) in the above-captioned matter.

3. Plaintiff brought this case on behalf of himself and a proposed class of consumers

who, as alleged in the First Amended Complaint, purchased the video game Aliens: Colonial

Marines on or before its retail release date, February 12, 2013, in reliance on Defendants’

misrepresentations of the game’s quality and features.

4. Following the parties’ Rule 26(f) conference, Plaintiff propounded interrogatories

and requests for production on both Defendant Sega of America, Inc. (“Sega”) and Defendant

Gearbox Software, L.L.C. (“Gearbox”) (collectively, the “Defendants”). Defendants, in turn,

noticed the depositions of Damion Perrine and Plaintiff John Locke.

5. During the discovery process, however, the parties began discussing the possibility

of attempting to resolve this matter through private mediation. To that end, the parties agreed to

focus the exchange of discovery on issues each side would need to effectively advocate their

respective settlement position, including information regarding the size of the class and the

marketing and sale of the game.

6. Thus, Sega and Gearbox produced (i) information that indicated the number of

copies of Aliens: Colonial Marines that were sold on or before the game’s release date of February

12, 2013, (ii) a copy of the agreement, along with the many amendments thereto, entered into

between Sega and Gearbox to develop and publish the game, (iii) a complete list of all trailers

advertising the game, (iv) links and descriptions of the code used to create the game trailers, and

(v) a detailed description of a live gameplay event that took place shortly before the game’s

February 2013 release date.


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7. Sega and Gearbox initially indicated that about 150,000 consumers had purchased

Aliens; Colonial Marines on or before February 12, 2013, but Sega later clarified that that figure

included purchasers from Mexico and Canada. According to Sega, the number of U.S. purchasers

of Aliens: Colonial Marines on or before February 12, 2013 is estimated to be in the range of

132,000–135,000.

8. In preparation for their scheduled in-person mediation at JAMS, the parties drafted

and exchanged mediation briefs that contained additional factual information along with each

side’s ultimate legal position.

9. Counsel for the parties participated in a day-long mediation before Judge Rebecca

Westerfield (ret.) at JAMS in San Francisco on January 21, 2014. Although the parties made

significant progress during these talks, they were unable to come to a final agreement. At the end

of the day, Mr. Perrine and Mr. Locke left Sega and Gearbox with a best-and-final offer that

included a $1.25 million non-reversionary settlement to release Sega, but not Gearbox, or a $2

million non-reversionary settlement to release both defendants.

10. The parties continued to negotiate after the mediation, and later reached the

principal terms of a compromise settlement agreement that would have resolved all claims against

Sega and Gearbox in exchange for the creation of a $2 million settlement fund with a partial

reverter of $750,000.

11. During the June 26, 2014 case management conference, after counsel for Plaintiff

explained the general contours of the compromise settlement agreement to the Court, the Court

expressed certain concerns with some of the terms, namely the reversionary aspect of the

settlement. Subsequently, and in light of the Court’s expressed concerns about that agreement, the

parties attempted to re-negotiate the agreement so as to address the different issues raised at the

conference. Over the course of those negotiations, Plaintiff reached a revised settlement agreement

with Sega but not with Gearbox. The structure of that revised agreement—wherein Plaintiff and

the settlement class would release their claims against Sega alone for a $1.25 million, non-

reversionary fund—is identical to the structure of Plaintiff’s best-and-final offer made at the

conclusion of the January 21st mediation overseen by Judge Westerfield.


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12. Because Plaintiff was unable to reach an agreement with Gearbox, Gearbox is not a

party to this settlement nor is it contributing to the proposed settlement payout in any way. Thus, I

expect litigation against Gearbox to continue, even if the Court approves the proposed settlement

with Sega.

13. Over the course of the parties’ negotiations, Defendants confirmed that they do not

have individual contact information for settlement class members (i.e., for individual purchasers of

Aliens: Colonial Marines), which makes direct notice to class members impossible. Therefore, the

parties asked the proposed settlement administrator, KCC Class Action Services, to propose a

publication notice plan that would reach at least 70% of class members.

14. To create its plan, KCC analyzed marketing data, such as consumer demographics

and product and brand usage, to determine the characteristics, interests, and habits of class

members (i.e., individuals who play first-person-shooter video games, and would have been early

purchasers of Aliens: Colonial Marines).

15. Based on its analysis, KCC proposed a multifaceted notice plan, which included

print publication in three widely-circulated magazines whose readers are more than twice as likely

as the general public to play shooter and war video games: ESPN: The Magazine, Guns & Ammo,

and Rolling Stone. The proposal also called for additional print publication in the form of four

consecutive weekly notices in the San Francisco Chronicle or Modesto Bee, consistent with the

requirements of the CLRA. In addition to print advertising, KCC’s recommended notice plan

called for the placement of internet banner ads designed to create 39 million unique impressions

among men aged 18–49 on automotive, sports, news, and technology sites.

16. Additionally, the magazine and newspaper notice recommended by KCC will direct

settlement class members to a settlement website that will serve as the long-form notice required

by Federal Rule of Civil Procedure 23(c)(2)(B). It will contain a plain language explanation of

both the nature of the lawsuit and of class members’ rights (including the right to opt-out or

object). The website will also include relevant court documents, instructions on how to access the

docket (either online via PACER or in person), the date of the final approval hearing, answers to

frequently asked questions, and a toll-free number to reach proposed class counsel. Settlement


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class members will be able to fill out and submit a simple, easy to read, three-question claim form

directly through the settlement website, and will not be required to submit documentation of their

purchases (although they have the option of doing so, if they so choose).

17. Separate from, and in addition to, the notice plan recommended by KCC and

adopted by the Settlement Agreement, it should be noted that many online news outlets that cover

the video game industry have been following the controversy surrounding the release of Aliens:

Colonial Marines—including articles directly discussing this lawsuit. These online news outlets

were the same ones that initially showcased the misleading gameplay demonstrations at issue in

this case. Given this coverage and related consumer interest, and should the Court grant

preliminary approval, I anticipate that these sources will broadly cover news of this partial

settlement, and result in significant exposure of the settlement to settlement class members.

18. Attached hereto as Exhibit A is a true and accurate copy of Edelson PC’s firm

resume. As shown in Exhibit A, Edelson PC has extensive experience in prosecuting class actions

and other complex litigation of a similar nature, scope, and complexity. Further Edelson PC has

intimate knowledge of the law in the field of consumer goods and has prosecuted numerous class

actions involving the fraudulent design and marketing of such goods.

19. My firm has expended substantial resources prosecuting this case, including

significant motion practice and independent investigation. We have successfully negotiated a

settlement agreement for the benefit of the proposed class, and we will continue to work diligently

to resolve this case.

20. Plaintiff has been injured in the same way as—and therefore has the same interests

as—proposed class members. Mr. Locke pre-ordered his copy of Aliens: Colonial Marines based

on the same representations available to every other member of the proposed settlement class.

Accordingly, Plaintiff has no interests antagonistic to those of the settlement class and will

continue to adequately represent the interests of that class—both through supporting this

settlement and in the ongoing case against Gearbox.

21. I am confident that the Plaintiff has alleged a strong claim against Sega, and I

believe, had settlement not been reached, that the Court would have certified a class and granted


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summary judgment in favor of Plaintiff on some key issues. However, Sega is represented by

highly experienced attorneys from one of the most preeminent law firms in the world, and has

made clear that without a settlement, it was prepared to continue vigorously defending this case,

including by contesting Plaintiff’s claims both at class certification and on the merits. Plaintiff is

also aware that in the absence of a settlement, he would be subject to the uncertainty and expense

of trial, and the risks and delays of inevitable appeals. Based on my experience in other diminution

of value consumer class action cases analogous to this one, and balancing the strength of

Plaintiff’s claims against the remaining legal and factual obstacles, I believe that the relief

afforded to the proposed Settlement Class through the settlement with Sega is in the best interest

of the proposed Class.

22. Both John Locke and Sega have agreed and committed to execute the Settlement

Agreement that is attached to Plaintiff Locke’s Motion for Preliminary Approval as Exhibit 1.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 11th day of August 2014 at Chicago, Illinois.

/s/ Rafey S. Balabanian Rafey S. Balabanian


Exhibit A


EDELSON PC Firm Resume as of August 2014

EDELSON PC FIRM RESUME

EDELSON PC is a plaintiff’s class action and commercial litigation firm with attorneys in Illinois, Colorado, and California.

Our attorneys have been recognized as leaders in these fields by state and federal legislatures, national and international media groups, the courts, and our peers. Our reputation for leadership in class action litigation has led state and federal courts to appoint us lead counsel in many high-profile class actions, including privacy suits against comScore, Netflix, Time, Microsoft, and Facebook; numerous Telephone Consumer Protection Act (“TCPA”) cases against companies such as Google, Twentieth Century Fox, and Simon & Schuster; class actions against Citibank, Wells Fargo, and JP Morgan Chase related to reductions in home equity lines of credit; fraudulent marketing cases against software companies such as Symantec; mobile content class actions against all major cellular telephone carriers; the Thomas the Tank Engine lead paint class actions; and the tainted pet food litigation. We have testified before the United States Senate on class action issues and have repeatedly been asked to work on federal and state legislation involving cellular telephony, privacy, and other issues. Our attorneys have appeared on dozens of national and international television and radio programs to discuss our cases and class action and consumer protection issues more generally. Our attorneys speak regularly at seminars on consumer protection and class action issues, lecture on class actions at law schools, and are asked to serve as testifying experts in cases involving class action and consumer issues.

PLAINTIFFS’ CLASS AND MASS ACTION PRACTICE GROUP

EDELSON PC is a leader in plaintiffs’ class and mass action litigation, with a particular emphasis on consumer technology class actions, and has been called a “class action ‘super firm.’” (Decalogue Society of Lawyers, Spring 2010.) As recognized by federal courts nationwide, our firm has an “extensive histor[y] of experience in complex class action litigation, and [is a] well-respected law firm[] in the plaintiffs’ class action bar.” In re Pet Food Prod. Liab. Litig., MDL Dkt. No. 1850, No. 07-2867 (NLH) (D.N.J. Nov. 18, 2008). A leading arbitrator concurred, finding that Edelson was “extraordinarily experienced” in “consumer protection class actions generally,” including “technology consumer protection class action[s].”

In appointing our firm interim co-lead in one of the most high profile cases in the country, a federal court pointed to our ability to be “vigorous advocates, constructive problem-solvers, and civil with their adversaries.” In Re JPMorgan Chase Home Equity Line of Credit Litig., No. 10 C 3647 (N.D. Ill, July 16, 2010). After hard fought litigation, that case settled, resulting in the reinstatement of between $3.2 billion and $4.7 billion in home credit lines.

We have been specifically recognized as “pioneers in the electronic privacy class action field, having litigated some of the largest consumer class actions in the country on this issue.” In re Facebook Privacy Litig., No. C 10-02389, Dkt. 69 at 5 (N.D. Cal. Dec. 10, 2010) (order appointing the firm interim co-lead of privacy class action); see also In re Netflix Privacy Litig., No. 11-cv-00379, Dkt. 59 at 5 (N.D. Cal. Aug. 12, 2011) (appointing us the sole lead counsel due, in part, to our “significant and particularly specialized expertise in electronic privacy litigation and class actions[.]”).



Similarly, as recognized by a recent federal court, our firm has “pioneered the application of the TCPA to text-messaging technology, litigating some of the largest consumer class actions in the country on this issue.” Ellison v Steve Madden, Ltd., No. 11-cv-5935 PSG, Dkt. 73 at 9 (C.D. Cal. May 7, 2013).

We have several sub-specialties within our plaintiffs’ class action practice:

PRIVACY/DATA LOSS

Data Loss/Unauthorized Disclosure of Data

We have litigated numerous class actions involving issues of first impression against Facebook, Apple, Netflix, Sony, Redbox, Pandora, Sears, Storm 8, Google, T-Mobile, Microsoft, and others involving failures to protect customers’ private information, security breaches, and unauthorized sharing of personal information with third parties. Representative settlements and ongoing cases include:

• Dunstan v. comScore, Inc., No. 11-cv-5807 (N.D. Ill.): Lead counsel in certified class action accusing internet analytics company of improper data collection practices. The court has preliminarily approved a $14 million settlement.

• Resnick v. Avmed, No. 10-cv-24513 (S.D. Fla.): Lead counsel in data breach case filed against health insurance company. Obtained landmark appellate decision endorsing common law unjust enrichment theory, irrespective of whether identity theft occurred. Case also resulted in the first class action settlement in the country to provide data breach victims with monetary payments irrespective of identity theft.

• In re Netflix Privacy Litigation, No. 11-cv-00379 (N.D. Cal.): Sole lead counsel in suit alleging that defendant violated the Video Privacy Protection Act by illegally retaining customer viewing information. Case resulted in a $9 million dollar cy pres settlement that has been finally approved (pending appeal).

• Halaburda v. Bauer Publishing Co., No. 12-cv-12831 (E.D. Mich.); Grenke v. Hearst Communications, Inc., No. 12-cv-14221 (E.D. Mich.); Fox v. Time, Inc., No. 12-cv-14390 (E.D. Mich.): Consolidated actions brought under Michigan’s Video Rental Privacy Act, alleging unlawful disclosure of subscribers’ personal information. In a ground-breaking decision, the court denied three motions to dismiss finding that the magazine publishers were covered by the act and that the illegal sale of personal information triggers an automatic $5,000 award to each aggrieved consumer.

• Standiford v. Palm, No. 09-cv-05719-LHK (N.D. Cal.): Sole lead counsel in data loss class action, resulting in $640,000 settlement.



• In re Zynga Privacy Litigation, No. 10-cv-04680 (N.D. Cal.): Appointed co-lead counsel in suit against gaming application designer for the alleged unlawful disclosure of its users' personally identifiable information to advertisers and other third parties.

• In re Facebook Privacy Litigation, No. 10-cv-02389 (N.D. Cal.): Appointed co-lead counsel in suit alleging that Facebook unlawfully shared its users’ sensitive personally identifiable information with Facebook's advertising partners.

• In re Sidekick Litigation, No. C 09-04854-JW (N.D. Cal.): Co-lead counsel in cloud computing data loss case against T-Mobile and Microsoft. Settlement provided the class with potential settlement benefits valued at over $12 million.

• Desantis v. Sears, No. 08 CH 00448 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in injunctive settlement alleging national retailer allowed purchase information to be publicly available through the internet.

Telephone Consumer Protection Act

Edelson has been at the forefront of TCPA litigation for over six years, having secured the groundbreaking Satterfield ruling in the Ninth Circuit applying the TCPA to text messages. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). In addition to numerous settlements totaling over $100 million in relief to consumers, we have over two dozen putative TCPA class actions pending against companies including Santander Consumer USA, Inc., Walgreen Co., Path, Inc., Nuance Communications, Inc., Stonebridge Life Insurance, Inc., GEICO, DirectBuy, Inc., and RCI, Inc. Representative settlements and ongoing cases include:

• Rojas v CEC, No. 10-cv-05260 (N.D. Ill.): Lead counsel in text spam class action that settled for $19,999,400.

• In re Jiffy Lube Int’l Text Spam Litigation, No. 11-md-2261, 2012 WL 762888 (S.D. Cal.): Co-lead counsel in $35 million text spam settlement.

• Ellison v Steve Madden, Ltd., No. cv 11-5935 PSG (C.D. Cal.): Lead counsel in $10 million text spam settlement.

• Kramer v. B2Mobile, No. 0-cv-02722-CW (N.D. Cal.): Lead counsel in $12.2 million text spam settlement.

• Pimental v. Google, Inc., No. 11-cv-02585 (N.D. Cal.): Lead counsel in class action alleging that defendant co-opted group text messaging lists to send unsolicited text messages. $6 million settlement provides class members with an unprecedented $500 recovery.



• Robles v. Lucky Brand Dungarees, Inc., No. 10-cv-04846 (N.D. Cal.): Lead counsel in $10 million text spam settlement.

• Miller v. Red Bull, No. 12-CV-04961 (N.D. Ill.): Lead counsel in $6 million text spam settlement.

• Woodman v. ADP Dealer Services, No. 2013 CH 10169 (Cook County, IL): Lead counsel in $7.5 million text spam settlement.

• Lozano v. 20th Century Fox, No. 09-cv-05344 (N.D. Ill.): Lead counsel in class action alleging that defendants violated federal law by sending unsolicited text messages to cellular telephones of consumers. Case settled for $16 million.

• Satterfield v. Simon & Schuster, No. C 06 2893 CW (N.D. Cal.): Co-lead counsel in in $10 million text spam settlement.

• Weinstein v. Airit2me, Inc., No. 06 C 0484 (N.D. Ill): Co-lead counsel in $7 million text spam settlement.

CONSUMER TECHNOLOGY

Fraudulent Software

In addition to the settlements listed below, EDELSON PC has consumer fraud cases pending in courts nationwide against companies such as McAfee, Inc., Avanquest North America Inc., PC Cleaner, AVG, iolo Technologies, LLC, among others. Representative settlements include:

• Drymon v. Cyberdefender, No. 11 CH 16779 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $9.75 million.

• Gross v. Symantec Corp., No. 12-cv-00154-CRB (N.D. Cal.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $11 million.

• LaGarde v. Support.com, Inc., No. 12-cv-00609-JSC (N.D. Cal.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $8.59 million.

• Ledet v. Ascentive LLC, No. 11-CV-294-PBT (E.D. Pa.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $9.6 million.



• Webb v. Cleverbridge, Inc., No. 1:11-cv-04141 (N.D. Ill.): Lead counsel in class action alleging that defendant deceptively designed and marketed its computer repair software. Case settled for $5.5 million.

Video Games

EDELSON PC has litigated cases video-game related cases against Activision Blizzard Inc., Electronic Arts, Inc., Google, and Zenimax Media, Inc., and has active litigation pending, including:

• Locke v. Sega of America, No. 13-cv-01962-MEJ (N.D. Cal.): Pending putative class action alleging that Sega of America and Gearbox Software released video game trailer that falsely represented the actual content of the game.

MORTGAGE & BANKING

EDELSON PC has been at the forefront of class action litigation arising in the aftermath of the federal bailouts of the banks. Our suits include claims that certain banks unlawfully suspended home credit lines based on pre-textual reasons, and that certain banks have failed to honor loan modification programs. We achieved the first federal appellate decision in the country recognizing the right of borrowers to enforce HAMP trial plans under state law. The court noted that “[p]rompt resolution of this matter is necessary not only for the good of the litigants but for the good of the Country.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 586 (7th Cir. 2012) (Ripple, J., concurring). Our settlements have restored billions of dollars in home credit lines to people throughout the country. Representative cases and settlements include:

• In re JP Morgan Chase Bank Home Equity Line of Credit Litigation, No. 10-cv-3647 (N.D. Ill.): Court appointed interim co-lead counsel in nationwide putative class action alleging illegal suspensions of home credit lines. Settlement restored between $3.2 billion and $4.7 billion in credit to the class.

• Hamilton v. Wells Fargo Bank, N.A., No. 09-cv-04152-CW (N.D. Cal.): Lead counsel in class actions challenging Wells Fargo’s suspensions of home equity lines of credit. Nationwide settlement restores access to over $1 billion in credit and provides industry leading service enhancements and injunctive relief.

• In re Citibank HELOC Reduction Litigation, No. 09-cv-0350-MMC (N.D. Cal.): Lead counsel in class actions challenging Citibank’s suspensions of home equity lines of credit. The settlement restored up to $653,920,000 worth of credit to affected borrowers.



• Wigod v. Wells Fargo, No. 10-cv-2348 (N.D. Ill.): In ongoing putative class action, obtained first appellate decision in the country recognizing the right of private litigants to sue to enforce HAMP trial plans.

GENERAL CONSUMER PROTECTION CLASS ACTIONS

We have successfully prosecuted countless class actions against computer software companies, technology companies, health clubs, dating agencies, phone companies, debt collectors, and other businesses on behalf of consumers. In addition to the settlements listed below, EDELSON PC have litigated consumer fraud cases in courts nationwide against companies such as Motorola Mobility, Stonebridge Benefit Services, J.C. Penney, Sempris LLC, and Plimus, LLC. Representative settlements include:

Mobile Content

We have prosecuted over 100 cases involving mobile content, settling numerous nationwide class actions, including against industry leader AT&T Mobility, collectively worth over a hundred million dollars.

• McFerren v. AT&T Mobility, LLC, No. 08-CV-151322 (Fulton Cnty. Super. Ct., Ga.): Lead counsel class action settlement involving 16 related cases against largest wireless service provider in the nation. “No cap” settlement provided virtually full refunds to a nationwide class of consumers who alleged that unauthorized charges for mobile content were placed on their cell phone bills.

• Paluzzi v. Cellco Partnership, No. 07 CH 37213 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving 27 related cases alleging unauthorized mobile content charges. Case settled for $36 million.

• Gray v. Mobile Messenger Americas, Inc., No. 08-CV-61089 (S.D. Fla.): Lead counsel in case alleging unauthorized charges were placed on cell phone bills. Case settled for $12 million.

• Parone v. m-Qube, Inc., No. 08 CH 15834 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving over 2 dozen cases alleging the imposition of unauthorized mobile content charges. Case settled for $12.254 million.

• Williams v. Motricity, Inc., No. 09 CH 19089 (Cir. Ct. Cook Cnty., Ill.): Lead counsel in class action settlement involving 24 cases alleging the imposition of unauthorized mobile content charges. Case settled for $9 million.



• VanDyke v. Media Breakaway, LLC, No. 08 CV 22131 (S.D. Fla.): Lead counsel in class action settlement alleging unauthorized mobile content charges. Case settled for $7.6 million.

• Gresham v. Cellco Partnership, No. BC 387729 (L.A. Super. Ct., Cal.): Lead counsel in case alleging unauthorized charges were placed on cell phone bills. Settlement provided class members with full refunds.

• Abrams v. Facebook, Inc., No. 07-05378 (N.D. Cal.): Lead counsel in injunctive settlement concerning the transmission of allegedly unauthorized mobile content.

Deceptive Marketing

• Van Tassell v. UMG, No. 1:10-cv-2675 (N.D. Ill.): Lead counsel in negative option marketing class action. Case settled for $2.85 million.

• McK Sales Inc. v. Discover Bank, No. 10-cv-02964 (N.D. Ill.): Lead counsel in class action alleging deceptive marketing aimed at small businesses. Case settled for $6 million.

• Farrell v. OpenTable, No 11-cv-01785-si (N.D. Cal.): Lead counsel in gift certificate expiration case. Settlement netted class over $3 million in benefits.

• Ducharme v. Lexington Law, No. 10-cv-2763-crb (N.D. Cal): Lead counsel in CROA class action. Settlement resulted in over $6 million of benefits to the class.

• Pulcini v. Bally Total Fitness Corp., No. 05 CH 10649 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in four class action lawsuits brought against two health clubs and three debt collection companies. A global settlement provided the class with over $40 million in benefits, including cash payments, debt relief, and free health club services.

• Kozubik v. Capital Fitness, Inc., 04 CH 627 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in state-wide suit against a leading health club chain, which settled in 2004, providing the over 150,000 class members with between $11 million and $14 million in benefits, consisting of cash refunds, full debt relief, and months of free health club membership.

• Kim v. Riscuity, No. 06 C 01585 (N.D. Ill.): Co-lead counsel in suit against a debt collection company accused of attempting to collect on illegal contracts. The case settled in 2007, providing the class with full debt relief and return of all money collected.



• Jones v. TrueLogic Financial Corp., No. 05 C 5937 (N.D. Ill.): Co-lead counsel in suit against two debt collectors accused of attempting to collect on illegal contracts. The case settled in 2007, providing the class with approximately $2 million in debt relief.

• Fertelmeyster v. Match.com, No. 02 CH 11534 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in a state-wide class action suit brought under Illinois consumer protection statutes. The settlement provided the class with a collective award with a face value in excess of $3 million.

• Cioe v. Yahoo!, Inc., No. 02 CH 21458 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in a state-wide class action suit brought under state consumer protection statutes. The settlement provided the class with a collective award with a face value between $1.6 million and $4.8 million.

• Zurakov v. Register.com, No. 01-600703 (N.Y. Sup. Ct., N.Y. Cnty.): Co-lead counsel in a class action brought on behalf of an international class of over one million members against Register.com for its allegedly deceptive practices in advertising on “coming soon” pages of newly registered Internet domain names. Settlement required Register.com to fully disclose its practices and provided the class with relief valued in excess of $17 million.

PRODUCTS LIABILITY CLASS ACTIONS

We have been appointed lead counsel in state and federal products liability class settlements, including a $30 million settlement resolving the “Thomas the Tank Engine” lead paint recall cases and a $32 million settlement involving the largest pet food recall in the history of the United States and Canada. Representative settlements include:

• Barrett v. RC2 Corp., No. 07 CH 20924 (Cir. Ct. Cook Cnty., Ill.): Co-lead counsel in lead paint recall case involving Thomas the Tank toy trains. Settlement is valued at over $30 million and provided class with full cash refunds and reimbursement of certain costs related to blood testing.

• In re Pet Food Products Liability Litigation, No. 07-2867 (D.N.J.): Part of mediation team in class action involving largest pet food recall in United States history. Settlement provided $24 million common fund and $8 million in charge backs.

INSURANCE CLASS ACTIONS

We have prosecuted and settled multi-million dollar suits against J.C. Penney Life Insurance for allegedly illegally denying life insurance benefits under an unenforceable policy exclusion and against a Wisconsin insurance company for terminating the health insurance policies of groups of self-insureds. Representative settlements include:



• Holloway v. J.C. Penney, No. 97 C 4555, (N.D. Ill.): One of the primary attorneys in a multi-state class action suit alleging that the defendant illegally denied life insurance benefits to the class. The case settled in or around December of 2000, resulting in a multi-million dollar cash award to the class.

• Ramlow v. Family Health Plan (Wisc. Cir. Ct., WI): Co-lead counsel in a class action suit challenging defendant's termination of health insurance to groups of self-insureds. The plaintiff won a temporary injunction, which was sustained on appeal, prohibiting such termination and eventually settled the case ensuring that each class member would remain insured.

MASS/CLASS TORT CASES

Our attorneys were part of a team of lawyers representing a group of public housing residents in a suit based upon contamination related injuries, a group of employees exposed to second-hand smoke on a riverboat casino, and a class of individuals suing a hospital and national association of blood banks for failure to warn of risks related to blood transfusions. Representative settlements include:

• Aaron v. Chicago Housing Authority, No. 99 L 11738, (Cir. Ct. Cook Cnty., Ill.): Part of team representing a group of public housing residents bringing suit over contamination-related injuries. Case settled on a mass basis for over $10 million.

• Januszewski v. Horseshoe Hammond, No. 2:00CV352JM (N.D. Ind.): Part of team of attorneys in mass suit alleging that defendant riverboat casino caused injuries to its employees arising from exposure to second-hand smoke.

The firm’s cases regularly receive attention from local, national, and international media. Our cases and attorneys have been reported in the Chicago Tribune, USA Today, the Wall Street Journal, the New York Times, the LA Times, by the Reuters and UPI news services, and BBC International. Our attorneys have appeared on numerous national television and radio programs, including ABC World News, CNN, Fox News, NPR, and CBS Radio, as well as television and radio programs outside of the United States. We have also been called upon to give congressional testimony and other assistance in hearings involving our cases.

GENERAL COMMERCIAL LITIGATION

Our attorneys have handled a wide range of general commercial litigation matters, from partnership and business-to-business disputes, to litigation involving corporate takeovers. We have handled cases involving tens of thousands of dollars to “bet the company” cases involving up to hundreds of millions of dollars. Our attorneys have collectively tried hundreds of cases, as well as scores of arbitrations and mediations.



OUR ATTORNEYS

JAY EDELSON is the founder and Managing Partner of EDELSON PC. He has been recognized as a leader in class actions, technology law, corporate compliance issues, and consumer advocacy by his peers, the media, state and federal legislators, academia, and courts throughout the country.

Jay has been appointed lead counsel in numerous state, federal, and international class actions, resulting in hundreds of millions of dollars for his clients. He is regularly asked to weigh in on federal and state legislation involving his cases. He testified to the U.S. Senate about the largest pet food recall in the country's history and is advising state and federal politicians on consumer issues relating to the recent federal bailouts, as well as technology issues, such as those involving mobile marketing. Jay also counsels companies on legal compliance and legislative issues in addition to handling all types of complex commercial litigation.

Jay has litigated class actions that have established precedent concerning the ownership rights of domain name registrants, the applicability of consumer protection statutes to Internet businesses, and the interpretation of numerous other state and federal statutes including the Telephone Consumer Protection Act and the Video Privacy Protection Act. As lead counsel, he has also secured settlement in cases of first impression involving Facebook, Microsoft, AT&T, and countless others, collectively worth hundreds of millions of dollars.

In addition to technology based litigation, Jay has been involved in a number of high-profile "mass tort" class actions and product recall cases, including cases against Menu Foods for selling contaminated pet food, a $30 million class action settlement involving the Thomas the Tank Engine toy train recall, and suits involving damages arising from second-hand smoke.

In 2009, Jay was named one of the top 40 Illinois attorneys under 40 by the Chicago Daily Law Bulletin. In giving Jay that award, he was heralded for his history of bringing and winning landmark cases and for his “reputation for integrity” in the “rough and tumble class action arena.” In the same award, he was called “one of the best in the country” when it “comes to legal strategy and execution.” Also in 2009, Jay was included in the American Bar Association’s “24 hours of Legal Rebels” program, where he was dubbed one of “the most creative minds in the legal profession” for his views of associate training and firm management. In 2010, he was presented with the Annual Humanitarian Award in recognition of his “personal integrity, professional achievements, and charitable contributions” by the Hope Presbyterian Church. Starting in 2011, he has been selected as an Illinois Super Lawyer and, separately, as a top Illinois class action lawyer by Benchmark Plaintiff.

Jay is frequently asked to participate in legal seminars and discussions regarding the cases he is prosecuting, including serving as panelist on national symposium on tort reform and, separately, serving as a panelist on litigating high-profile cases. He has also appeared on dozens of television and radio programs to discuss his cases. He has taught classes on class action law at Northwestern Law School and The John Marshall Law School, and has co-chaired a 2-day national symposium on class action issues. He has been an adjunct professor, teaching a seminar on class action litigation at Chicago-Kent College of Law since 2010.



Jay is a graduate of Brandeis University and the University of Michigan Law School.

RYAN D. ANDREWS is a Partner at EDELSON PC, and the Chair of the Telecommunications Practice Group. Ryan has been appointed class counsel in numerous state and federal class actions nationwide that have resulted in nearly $100 million dollars in refunds to consumers, including Satterfield v. Simon & Schuster, Inc., No. C 06 2893 CW (N.D. Cal.); Gray v. Mobile Messenger Americas, Inc., No. 08-CV-61089 (S.D. Fla.); Lofton v. Bank of America Corp., No. 07-5892 (N.D. Cal.); Paluzzi v. Cellco Partnership, No. 07 CH 37213 (Cir. Ct. Cook Cnty., Ill.), Parone v. m-Qube, Inc. No. 08 CH 15834 (Cook County, Ill.); and Kramer v. Autobytel, Inc., No. 10-cv-2722 (N.D. Cal. 2010).

In addition, Ryan has achieved groundbreaking court decisions protecting consumers through the application of the Telephone Consumer Protection Act to emerging text-messaging technology. Representative reported decisions include: Lozano v. Twentieth Century Fox, 702 F. Supp. 2d 999 (N.D. Ill. 2010); Satterfield v. Simon & Schuster, Inc. 569 F.3d 946 (9th Cir. 2009); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010); In re Jiffy Lube Int’l Text Spam Litig, No. 11-md-2261, 2012 WL 762888 (S.D. Cal. March 9, 2012).

Ryan received his J.D. with High Honors from the Chicago-Kent College of Law and was named Order of the Coif. Recently, Ryan has returned to Chicago-Kent as an Adjunct Professor of Law, teaching a third-year seminar on Class Actions. While in law school, Ryan was a Notes & Comments Editor for The Chicago-Kent Law Review, as well as a teaching assistant for both Property Law and Legal Writing courses. Ryan externed for the Honorable Joan B. Gottschall in the United States District Court for the Northern District of Illinois.

A native of the Detroit area, Ryan graduated from the University of Michigan, earning his B.A., with distinction, in Political Science and Communications.

Ryan is licensed to practice in Illinois state courts, the United States District Court for the Northern District of Illinois, the U.S. Court of Appeals for the Seventh Circuit, and the U.S. Court of Appeals for the Ninth Circuit.

RAFEY S. BALABANIAN is a Partner and the Chair of the Corporate Governance and Business Litigation Practice Group. Rafey’s practice focuses upon a wide range of complex consumer class action litigation, as well as general business litigation.

On the plaintiff’s side, Rafey has been appointed lead counsel in numerous class actions, including landmark settlements involving the telecom industry worth hundreds of millions of dollars. Rafey has been appointed Class Counsel in nationwide class action settlements against the major wireless carriers, aggregators, and providers of “mobile content,” including Van Dyke v. Media Breakaway, LLC, No. 08-cv-22131 (S.D. Fla.); Parone v. m-Qube, Inc., No. 08 CH 15834 (Cir. Ct. Cook County, Ill.); Williams v. Motricity, Inc., et al., No. 09 CH 19089 (Cir. Ct. Cook County, Ill.); and Walker v. OpenMarket, Inc., et al., No. 08 CH 40592 (Cir. Ct. Cook County, Ill.).

On the business side, Rafey has counseled clients ranging from “emerging technology” companies, real estate developers, hotels, insurance companies, lenders, shareholders and



attorneys. He has successful litigated numerous multi-million dollar cases, including several “bet the company” cases.

Rafey has first chaired jury and bench trials, mediations, and national and international arbitrations.

Rafey received his J.D. from the DePaul University College of Law in 2005. While in law school, he received a certificate in international and comparative law. Rafey received his B.A. in History, with distinction, from the University of Colorado – Boulder in 2002.

CHRISTOPHER L. DORE is a Partner at Edelson and a member of the Technology and Fraudulent Marketing Group. Chris focuses his practice on emerging consumer technology issues, with his cases relating to online fraud, deceptive marketing, consumer privacy, negative option membership enrollment, and unsolicited text messaging. Chris is also a member of the firm’s Incubation and Startup Development Group wherein he consults with emergent businesses.

Chris has been appointed class counsel in multiple class actions, including one of the largest text-spam settlements under the Telephone Consumer Protection Act, ground breaking issues in the mobile phone industry and fraudulent marketing, as well as consumer privacy. See Pimental v. Google, Inc., No. 11-cv-02585 (N.D.Cal.); Turner v. Storm8, LLC, No. 09-cv-05234 (N.D. Cal.); Standiford v Palm, Inc., No. 09-cv-05719-LHK (N.D. Cal.); and Espinal v Burger King Corporation, No. 09-cv-20982 (S.D. Fla.). In addition, Chris has achieved groundbreaking court decisions protecting consumer rights. Representative reported decisions include: Claridge v. RockYou, Inc., 785 F. Supp. 2d 855 (N.D. Cal. 2011); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010); and Van Tassell v. United Marketing Group, LLC, 795 F. Supp. 2d 770 (N.D. Ill. 2011). In total, his suits have resulted in hundreds of millions of dollars to consumers.

Prior to joining Edelson, Chris worked for two large defense firms in the areas of employment and products liability. Chris graduated magna cum laude from The John Marshall Law School, where he served as the Executive Lead Articles for the Law Review, as well as a team member for the D.M. Harish International Moot Court Competition in Mumbai, India. Chris has since returned to his alma mater to lecture on current issues in class action litigation and negations.

Before entering law school, Chris received his Masters degree in Legal Sociology, graduating magna cum laude from the International Institute for the Sociology of Law, located in Onati, Spain. Chris received his B.A. in Legal Sociology from the University of California, Santa Barbara.

BENJAMIN H. RICHMAN is a Partner at EDELSON PC and is a member of the firm’s Corporate Governance and Business Litigation Practice Group. He handles plaintiff’s-side consumer class actions, focusing mainly on technology-related cases, represents corporate defendants in class actions, and handles general commercial litigation matters.

On the plaintiff’s side, Ben has brought industry-changing lawsuits involving the marketing practices of the mobile industry, print and online direct advertisers, and Internet companies. He has successfully prosecuted cases involving privacy claims and the negligent storage of consumer data. His suits have also uncovered complex fraudulent methodologies of Web 2.0



companies, including the use of automated bots to distort the value of consumer goods and services. In total, his suits have resulted in hundreds of millions of dollars to consumers.

On the defense side, Ben has represented large institutional lenders in the defense of employment class actions. He also routinely represents technology companies in a wide variety of both class action defense and general commercial litigation matters.

Ben received his J.D. from The John Marshall Law School, where he was an Executive Editor of the Law Review and earned a Certificate in Trial Advocacy. While in law school, Ben served as a judicial extern to the Honorable John W. Darrah of the United States District Court for the Northern District of Illinois, in addition to acting as a teaching assistant for Prof. Rogelio Lasso in several torts courses. Ben has since returned to the classroom as a guest-lecturer on issues related to class actions, complex litigation and negotiation. He also lectures incoming law students on the core first year curriculums. Before entering law school, Ben graduated from Colorado State University with a B.S. in Psychology.

Ben is the director of EDELSON PC’S Summer Associate Program.

ARI J. SCHARG is a Partner at EDELSON PC. He handles technology-related class actions, focusing mainly on cases involving the unlawful geo-locational tracking of consumers through their mobile devices, the illegal collection, storage, and disclosure of personal information, fraudulent software products, data breaches, and text message spam. His settlements have resulted in tens of millions of dollars to consumers, as well as industry-changing injunctive relief. Ari has been appointed class counsel by state and federal courts in several nationwide class action settlements, including Webb v. Cleverbridge, No. 11-cv-4141 (N.D. Ill.); Ledet v. Ascentive, No. 11-cv-294 (E.D. Penn.); and Drymon v. CyberDefender, No. 11 CH 16779 (Cir. Ct. Cook Cnty., Ill.); and was appointed sole-lead class counsel in Loewy v. Live Nation, No. 11-cv-4872 (N.D. Ill.), where the court praised his work as “impressive” and noted that he “understand[s] what it means to be on a team that’s working toward justice.” Ari was selected as an Illinois Rising Star (2013) by Super Lawyers.

Prior to joining the firm, Ari worked as a litigation associate at a large Chicago firm, where he represented a wide range of clients including Fortune 500 companies and local municipalities. His work included representing the Cook County Sheriff’s Office in several civil rights cases and he was part of the litigation team that forced Craigslist to remove its “Adult Services” section from its website.

Ari is very active in community groups and legal industry associations. He is a member of the Board of Directors of the Chicago Legal Clinic, an organization that provides legal services to low-income families in the Chicago area. Ari acts as Outreach Chair of the Young Adult Division of American Committee for the Shaare Zedek Medical Center in Jerusalem, and is actively involved with the Anti-Defamation League. He is also a member of the Standard Club Associates Committee.

Ari received his B.A. in Sociology from the University of Michigan – Ann Arbor and graduated magna cum laude from The John Marshall Law School where he served as a Staff Editor for The John Marshall Law Review and competed nationally in trial competitions. During law school, he



also served as a judicial extern to The Honorable Bruce W. Black of the U.S. Bankruptcy Court for the Northern District of Illinois.

STEVEN LEZELL WOODROW is a Partner and Chair of the firm’s Banking and Financial Services Practice Group. Steven focuses his practice on complex national class actions against some of the Country's largest financial institutions. Representative matters include cases against national banks and mortgage servicers for improper loan modification practices, unlawful home equity line of credit (“HELOC”) account suspensions and reductions, and claims regarding the misapplication of payments.

Steven delivered the winning oral argument in Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), the first federal appellate court decision to allow borrowers to challenge bank failures to follow the federal Home Affordable Modification Program (“HAMP”) under state law.

Courts have also appointed Steven as class counsel in nationwide class action settlements against cellphone companies, aggregators, and mobile content providers related to unauthorized charges for ringtones and other mobile content, including Paluzzi v. Cellco Partnership, No. 08-cv-00405 (N.D. Ill.); Williams v. Motricity, Inc., No. 09 CH 19809 (Cir. Ct. Cook Cnty., Ill.); and Walker v. OpenMarket Inc., No. 08 CH 40592 (Cir. Ct. Cook Cnty., Ill.).

Steven has also served as an Adjunct Professor of Law at Chicago-Kent College of Law where he co-taught a seminar on class actions. Prior to joining the firm, he worked as a litigator at a Chicago boutique where he tried and arbitrated a range of consumer protection and real estate matters.

Steven received his J.D. High Honors, Order of the Coif, from Chicago-Kent College of Law in 2005. During law school, Mr. Woodrow served as a Notes and Comments Editor for The Chicago-Kent Law Review, competed on Moot Court, and served as President of the Student Bar Association. He additionally spent a semester as a judicial extern for the Honorable Ann C. Williams on the United States Court of Appeals for the Seventh Circuit. Steven received the ALI-ABA Scholarship and Leadership Award for best representing the combination of leadership and scholarship in his graduating class as well as the Lowell H. Jacobson Memorial Scholarship, which is awarded competitively each year to a student from one of the law schools in the Seventh Circuit to recognize personal commitment and achievement.

Steven is admitted to practice in Colorado (2011) and Illinois (2005).

Steven received his B.A. in Political Science with Distinction from the University of Michigan—Ann Arbor in 2002.

COURTNEY BOOTH is an Associate at EDELSON PC. Courtney focuses her practice on consumer class actions.

Courtney received her J.D., magna cum laude, from The John Marshall Law School. While in law school, she was a staff editor of The John Marshall Law Review, a teaching assistant for Legal Writing and Civil Procedure, and a member of the Moot Court Honor Society. Courtney represented John Marshall at the Mercer Legal Ethics and Professionalism Competition where



she was a semi-finalist and won Best Respondent’s Brief and at the Cardozo/BMI Entertainment and Communications Law Competition where she placed in the top three oralists. Courtney was recently nominated as a 2013 Member of the National Order of Scribes.

Prior to law school, Courtney attended Saint Louis University where she earned a B.A. in Communication. While there, she was a community relations intern for the St. Louis Blues.

MARK EISEN is an Associate at EDELSON PC, where he focuses on consumer class actions. Prior to joining the firm, Mark clerked for the Honorable Gary Allen Feess, United States District Court for the Central District of California. Mark received his J.D., magna cum laude, from the Boston University School of Law. While in law school, he won the Homer Albers Prize Moot Court Competition, represented BU on the National Moot Court team, and was a note development editor on the BU International Law Journal. Mark’s academic note, Who’s Running This Place? A Comparative Look at the Political Appointment System in the United States and Britain, and What the United States Can Learn, was published in the International Law Journal in the spring of 2012. Most importantly, Mark was active with the Boston University School of Law Softball Team. Prior to law school, Mark attended the University of Southern California where he earned a B.A., magna cum laude, in Political Science and Economics. While there, Mark was a teaching assistant to Professor Dan Schnur. Mark also traveled the country as part of the advance team for John McCain’s 2008 presidential campaign. CHANDLER GIVENS is an Associate at EDELSON PC, where his practice focuses on technology and privacy class actions. His lawsuits have centered on fraudulent software development, unlawful tracking of consumers through mobile devices and computers, illegal data retention, and data breach litigation.

Chandler leads a group of researchers in investigating complex technological fraud and privacy related violations. His team’s research has lead to cases that have helped cause significant reforms to the utility software industry and resulted in tens of millions of dollars to U.S. consumers. On the privacy litigation front, Chandler plays an instrumental role in applying new technologies to federal and state statutes. His briefing of these issues has helped produce seminal rulings under statutes like the Stored Communications Act and establish data breach jurisprudence favorable to consumers.

A frequent speaker on emerging law and technology issues, Chandler has presented to legal panels and state bar associations on topics ranging from data privacy and security to complex litigation and social media. He has been featured on syndicated radio, quoted in major publications such as Reuters and PCWorld, and been an invited cyberlaw guest lecturer at his alma mater.

Chandler graduated from the University of Pittsburgh School of Law where he was a research assistant for Cyberlaw Professor Dr. Kevin Ashley, and a judicial extern for the Honorable David S. Cercone of the United States District Court for the Western District of Pennsylvania. He graduated cum laude from Virginia Polytechnic Institute and State University, with a B.S. in



business information technology, with a focus on computer-based decision support systems. Chandler sits on the ABA committees for Information Security and e-Discovery.

Before joining the legal profession, Chandler worked as a systems analyst. He has also interned at the Virginia Attorney General’s Office as well as the U.S. Department of Justice in Washington, D.C.

ALICIA HWANG is an Associate at EDELSON PC. Alicia practices in the area of consumer class action and general litigation.

Alicia received her J.D. from the Northwestern University School of Law in May 2012, where she was an articles editor for the Journal of Law and Social Policy. During law school, Alicia was a legal intern for the Chinese American Service League, served as president of the Asian Pacific American Law Student Association and the Student Animal Legal Defense Fund, and was Chair of the Student Services Committee. She also worked as a student in the Northwestern Entrepreneurship Law Clinic and Complex Civil Litigation and Investor Protection Clinic.

Prior to joining EDELSON PC, Alicia worked as an Executive Team Leader for the Target Corporation, as well as a public relations intern for a tourism-marketing agency in London.

Alicia graduated magna cum laude from the University of Southern California, earning her B.A. in Communication in 2007. She is a member of the Phi Beta Kappa honor society.

NICK LARRY is an Associate at EDELSON PC. Nick practices in the area of consumer class action and general litigation.

Nick received his J.D., cum laude, from Northwestern University School of Law, where he was a senior editor of the Northwestern University Journal of International Law and Business.

Nick attended Michigan State University, where he graduated with a B.A. in General Business Administration/Pre-law in 2008 and played on the school’s rugby team.

MEGAN LINDSEY is an Associate at EDELSON PC. Megan practices in the area of consumer class action, focusing on complex class actions in the banking industry.

Prior to joining EDELSON PC, Megan worked for several years as a commercial loan underwriter and portfolio officer at Merrill Lynch, Pierce, Fenner & Smith. Megan also worked as an analyst in the troubled asset group at Bank of America, helping to monitor and restructure high-risk loans.

Megan received her J.D. from Chicago-Kent College of Law in May 2011. During law school Megan externed for the Honorable William Bauer in the United States Court of Appeals for the Seventh Circuit and served as Vice President-Evening Division of the Student Bar Association and Vice President of the Moot Court Honor Society. Megan also represented Chicago-Kent at the National First Amendment Moot Court Competition in Nashville, Tennessee and the National Cultural Heritage Law Moot Court Competition in Chicago, Illinois.



Megan graduated with High Honors from DePaul University in July 2005, earning her B.S. in Finance.

DAVID I. MINDELL is an Associate at EDELSON PC. David practices in the area of technology and privacy class actions.

David has worked on cases involving fraudulent software products, unlawful collection and retention of consumer data, and mobile-device privacy violations. David also serves as a business consultant to private companies at all stages of development, from start-up to exit.

Prior to joining EDELSON PC, David co-founded several technology companies that reached multi-million dollar valuations within 12 months of launch. David has advised or created strategic development and exit plans for a variety of other technology companies.

While in law school, David was a research assistant for University of Chicago Law School Kauffman and Bigelow Fellow, Matthew Tokson, and for the preeminent cyber-security professor, Hank Perritt at the Chicago-Kent College of Law. David’s research included cyberattack and denial of service vulnerabilities of the Internet, intellectual property rights, and privacy issues.

David has given speeches related to his research to a wide-range of audiences.

AMIR MISSAGHI is an Associate at Edelson, where he focuses on technology and privacy class actions.

Amir received his J.D. from the Chicago-Kent College of Law, where he was a member of the Moot Court Honor Society and a teaching assistant in Property. Before law school, he attended the University of Minnesota, where he received his B.S. in Applied Economics. He then began working at a Fortune 50 company as a programmer and data analyst. During that time Amir started working on his graduate studies in Applied Economics where he focused on analyzing consumer choice in healthcare markets.

JOHN OCHOA is an associate at EDELSON PC, focusing his practice on protecting consumers with a special emphasis on plaintiffs' privacy class action litigation, including cases brought under the Telephone Consumer Protection Act. John prosecutes cases in both state and federal courts at the trial and appellate levels.

John has secured important court decisions protecting the rights of consumers, including Elder v. Pacific Bell Telephone Co, 205 Cal. App. 4th 841 (2012), where the California Court of Appeal held that consumers may pursue claims against telecommunications companies for placing unauthorized charges on consumers’ telephone bills, a practice known as “cramming.” John was also appointed class counsel in Lee v. Stonebridge Life Insurance Co, 289 F.R.D. 292 (N.D. Cal. 2013), a case where the defendants are alleged to have caused the transmission of unauthorized text messages to the cellular telephones of thousands of consumers.

He graduated magna cum laude from the John Marshall Law School in May 2010 and served as Managing Editor for the John Marshall Law Review. His student Comment, which examines bicycling and government tort immunity in Illinois, appears in Vol. 43, No. 1 of the John



Marshall Law Review. While in law school, John externed with Judge Thomas Hoffman at the Illinois Appellate Court, and competed in the ABA National Appellate Advocacy Competition.

John is active in the Illinois legal community, and serves as Co-Chair of the Membership Committee on the Young Professionals Board of Illinois Legal Aid Online (ILAO). ILAO is a non-profit organization committed to using technology to increase access to free and pro bono legal services for underserved communities throughout Illinois.

He received his B.A. with Honors in Political Science from the University of Iowa in 2004.

ROGER PERLSTADT is an Associate at EDELSON PC, where he concentrates on appellate and complex litigation advocacy. Roger graduated from the University of Chicago Law School, where he was a member of the University of Chicago Law Review. After law school, he served as a clerk to the Honorable Elaine E. Bucklo of the United States District Court for the Northern District of Illinois.

Prior to joining the firm, Roger spent several years at a litigation boutique in Chicago where his practice included employment and housing discrimination claims, constitutional litigation, and general commercial matters. In 2011, he was named a Rising Star by Illinois Super Lawyers Magazine.

Roger also spent time as a Visiting Assistant Professor at the University of Florida Law School where he taught Arbitration, Conflict of Laws, and Employment Discrimination, and has published articles on the Federal Arbitration Act in various law reviews.

EVE-LYNN RAPP is an Associate at EDELSON PC. Eve-Lynn focuses her practice in the areas of consumer and technology class action litigation.

Prior to joining EDELSON PC, Eve-Lynn was involved in numerous class action cases in the areas of consumer and securities fraud, debt collection abuses and public interest litigation. Eve-Lynn has substantial experience in both state and federal courts, including successfully briefing issues in both the United States and Illinois Supreme Courts.

Eve-Lynn received her J.D. from Loyola University of Chicago-School of Law, graduating cum laude, with a Certificate in Trial Advocacy. During law school, Eve-Lynn was an Associate Editor of Loyola’s International Law Review and externed as a “711" at both the Cook County State’s Attorney’s Office and for Cook County Commissioner Larry Suffredin. Eve-Lynn also clerked for both civil and criminal judges (Honorable Yvonne Lewis and Plummer Lott) in the Supreme Court of New York.

Eve-Lynn graduated from the University of Colorado, Boulder, with distinction and Phi Beta Kappa honors, receiving a B.A. in Political Science.

BEN THOMASSEN is an Associate at EDELSON PC. At the firm, Ben’s practice centers on the prosecution of class actions cases that address federally protected privacy rights and issues of consumer fraud—several of which have established industry-changing precedent. Among other high profile cases, Ben recently played key roles in delivering the winning oral argument before the United States Court of Appeals for the Eleventh Circuit in Curry v. AvMed, 693 F.3d 1317



(11th Cir. 2012) (a data breach case that has, following the Eleventh Circuit’s decision, garnered national attention both within and without the legal profession) and securing certification of a massive consumer class in Dunstan v. comScore, No. 11 C 5807, 2013 WL 1339262 (N.D. Ill. Apr. 2, 2013) (estimated by several sources as the largest privacy case ever certified on an adversarial basis).

Ben received his J.D., magna cum laude, from Chicago-Kent College of Law, where he also earned his certificate in Litigation and Alternative Dispute Resolution and was named Order of the Coif. At Chicago-Kent, Ben was Vice President of the Moot Court Honor Society and earned (a currently unbroken firm record of) seven CALI awards for receiving the highest grade in Appellate Advocacy, Business Organizations, Conflict of Laws, Family Law, Personal Income Tax, Property, and Torts.

Before settling into his legal career, Ben worked in and around the Chicago and Washington, D.C. areas in a number of capacities, including stints as a website designer/developer, a regular contributor to a monthly Capitol Hill newspaper, and a film projectionist and media technician (with many years experience) for commercial theatres, museums, and educational institutions. Ben received his Bachelor of Arts, summa cum laude, from St. Mary’s College of Maryland and his Master of Arts from the University of Chicago.

JACK YAMIN is an Associate at EDELSON PC, where he focuses on privacy and consumer class actions.

Jack graduated cum laude from Northwestern University’s Accelerated (2-year) JD Program. While in law school, Jack was a member of the Center for Wrongful Convictions, where he worked on post-conviction cases in Illinois appellate courts. Jack also served as a judicial extern to the Honorable Marvin Aspen, a senior judge of the United States District Court for the Northern District of Illinois. Throughout law school, Jack was a member of the Center for Conflict Resolution, where he mediated cases in Illinois courts throughout Chicago.

Prior to joining the firm, Jack worked as a tax consultant for business owners throughout the country, representing clients before the Internal Revenue Service, negotiating installment agreements, and handling tax audits. Jack also spent some time working at a literary agency, helping writers publish novels and marketing their work. Jack graduated summa cum laude from Binghamton University, earning his B.A. in philosophy and English literature. He is a member of the Phi Beta Kappa honor society.


[PROPOSED] ORDER 3:13-cv-01962-JD

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


DAMION PERRINE and JOHN LOCKE, individually and on behalf of a class of similarly situated individuals,

Plaintiffs,

v.

SEGA OF AMERICA, INC., a California corporation, and GEARBOX SOFTWARE L.L.C. a Texas limited liability company, Defendants.


[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF PARTIAL CLASS ACTION SETTLEMENT AGREEMENT

Judge: Hon. James Donato


-1- [PROPOSED] ORDER 3:13-cv-01962-JD

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This matter coming before the Court upon Plaintiff’s motion for preliminary approval of a

partial class action settlement agreement between Plaintiff John Locke, individually and on behalf

of all others similarly situated (“Plaintiff”), and Defendant Sega of America, Inc. (“Sega”)

(collectively, the “Settling Parties”), good cause being shown, the Court having read and considered

the settlement agreement between the Settling Parties (the “Settlement Agreement”), as well as all

papers filed in support of and in opposition to said settlement agreement, and otherwise being fully

advised in the premises,

IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS:

Class Certification

1. The following class is hereby certified for purposes of settling the claims in this

action asserted against Sega: All persons in the United States and its territories that, prior to or on February 12, 2013, paid for a copy of Aliens: Colonial Marines.1

(the “Settlement Class”).

2. The Settlement Class satisfies the requirements for class certification under Fed. R.

Civ. P. 23(a). It consists of approximately 135,000 consumers, there are questions of law and fact

common to the Settlement Class, Plaintiff’s claims are typical of those of the Settlement Class, and

Plaintiff will fairly and adequately protect the interests of the Settlement Class.

3. In addition, the questions of law and fact common to the Settlement Class

predominate over any individual questions, and the class action mechanism is superior to other

available methods for the fair and efficient adjudication of this controversy. Consequently, the

Settlement Class satisfies the requirements of Fed. R. Civ. P. 23(b)(3).

4. The Court hereby appoints Plaintiff Locke as class representative, and Rafey

Balabanian and Ben Thomassen of Edelson PC as class counsel.

1 Excluded from the class are: (1) all persons who file timely requests for exclusion; (2) all persons who had their claims discharged in bankruptcy, finally adjudicated on the merits, or otherwise released against Sega; (3) Sega, the settlement administrator, and any respective parent, subsidiary, affiliate, or control person of either, as well as their officers, directors, agents, servants, or employees; (4) any judge presiding over this action; and (5) the immediate family members of any such person.



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Preliminary Approval

5. The Court has conducted a preliminary evaluation of the Settlement Agreement for

fairness, adequacy, and reasonableness. Based on this preliminary evaluation, the Court finds that

(i) there is cause to believe the settlement is fair, reasonable, and adequate, and within the range of

possible approval, (ii) the settlement has been negotiated in good faith at arms-length between

experienced attorneys familiar with the legal and factual issues of this case made with the assistance

of the Honorable Rebecca Westerfield (ret.), and (iii) the notice of the material terms of the

settlement to members of the proposed settlement class for their consideration and reaction is

warranted.

Notice and Administration

6. The Court hereby approves the notice plan set forth in section 4 of the Settlement

Agreement (the “Notice Plan”). The Court finds that the form, method, and content of the Notice

Plan and all forms of notice to the Settlement Class as set forth in the Settlement Agreement and

Exhibits A, C, and D thereto comply with the requirements of Rule 23 and due process, and

constitutes the best notice practicable under the circumstances. The Court further finds that the

Notice Plan is reasonably calculated to, under all circumstances, apprise the members of the

Settlement Class of the pendency of this action, the certification of the Settlement Class, the terms

of the Settlement Agreement, and the right of members to object to the settlement or to exclude

themselves from the Settlement Class. The Settling Parties, by agreement, may revise the notice

documents in ways that are not material, or in ways that are appropriate to update those documents

for purposes of accuracy or formatting.

7. KCC Class Action Services (“KCC”) is hereby appointed as Settlement

Administrator and shall be required to perform all the duties of the Settlement Administrator as set

forth in the Settlement Agreement and this Order.

Exclusion

8. Class Members who wish to exclude themselves from the Settlement Class for

purposes of this settlement may do so by complying with the exclusion procedures set forth below.



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Any member of the Settlement Class who timely requests exclusion consistent with those

procedures shall not be bound by the terms of the Settlement Agreement.

9. To request exclusion, the class member must submit a request for exclusion to the

Settlement Administrator on or before _____________, 2014 (the “Objection/Exclusion Deadline”).

The request for exclusion must identify the case name Locke v. Sega of America, Inc. et al., No.

3:13-cv-01962-JD; state the person’s name, address, and telephone number; affirm that the person

purchased a copy of Aliens: Colonial Marines on or before February 12, 2013; be physically signed

by the person; and otherwise comply with the exclusion procedures set forth in the Settlement

Agreement.

10. Any member of the Settlement Class who opts out of the Settlement Agreement shall

not (i) be bound by the final judgment; (ii) be entitled to relief under this Settlement Agreement;

(iii) gain any rights by virtue of the Settlement Agreement; or (iv) be entitled to object to any aspect

of the Settlement Agreement. However, class members who fail to submit a valid and timely

request for exclusion shall be bound by all terms of the Settlement Agreement and the final

judgment, regardless of whether they have requested exclusion from the Settlement Agreement.

Objections

11. Any member of the Settlement Class who has not timely filed a request for exclusion

may object to the fairness, reasonableness, or adequacy of the Settlement Agreement, to final

judgment being entered and dismissing the action with prejudice as to Sega in accordance with the

terms of the Settlement Agreement, to the attorneys’ fees and expense reimbursement sought by

class counsel, or to the award sought by the class representative as set forth in the Notice and

Settlement Agreement. Class members may object on their own, or may do so through separate

counsel at their own expense.

12. To object, a class member must mail to or file with the Court by the

Objection/Exclusion Deadline a written objection with the caption Locke v. Sega of America, Inc. et

al., No. 3:13-cv-01962-JD, that includes (i) the class member’s full name and current address, (ii) a

signed declaration why he, she, or it believes himself, herself, or itself to be a member of the

Settlement Class, (iii) proof that he, she, or it purchased Aliens: Colonial Marines on or before



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February 12, 2013, (iv) the specific grounds for the objection, (v) all documents or writings that the

class member wishes the Court to consider, (vi) the name and contact information of any and all

attorneys representing, advising, or in any way assisting the class member in connection with the

preparation or submission of the objection or who may profit from the pursuit of the objection (the

“Objecting Attorney”); and (vii) a statement indicating whether the objector intends to appear at the

fairness hearing (either personally or through counsel, who must file an appearance or seek pro hac

vice admission). If a member of the Settlement Class or an Objecting Attorney has objected to any

class action settlement where the objector or the Objecting Attorney asked for or received any

payment in exchange for dismissal of the objection, or any related appeal, without any modification

to the settlement, then the objection must also include a statement identifying each such case by full

case caption.

13. All objections must otherwise comply with paragraph 5.2 of the Settlement

Agreement.

14. Any member of the Settlement Class who fails to timely mail or file a written

objection to or with the Court and notice of his or her intent to appear at the fairness hearing in

accordance with this Order and the Settlement Agreement, shall be foreclosed from seeking any

review of the Settlement Agreement, and shall be deemed to have waived his, her, or its objections

and be forever barred from making any such objections in this action or any other related action or

proceeding.

Fairness Hearing

15. A fairness hearing shall be held before this Court on __________, 2014 at

__.m. in Courtroom 11 on the 19th Floor of the Phillip Burton Federal Building & United States

Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102 to consider: (a) whether the

proposed settlement of the action on the terms and conditions provided for in the Settlement

Agreement is fair, reasonable and adequate and should be given final approval by the Court; (b)

whether a final judgment should be entered as to Sega; (c) whether to award payment of attorneys’

fees and expenses to class counsel; and (d) whether to award payment of an incentive award to the



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class representative. The Court may adjourn the fairness hearing without further notice to class

members.

16. No later than ____________, 2014, Plaintiff shall file with the Court his papers in

support of Class Counsel’s petition for attorneys’ fees and costs, and payment of his incentive

award.

17. No later than ___________, 2014, Plaintiff shall file with the Court his papers in

support of final approval of the Settlement Agreement and in response to any objections.

Further Matters

18. In order to protect its jurisdiction to consider the fairness of this Settlement

Agreement and to enter a final order and judgment having binding effect on all members of the

Settlement Class, the Court hereby enjoins all members of the Settlement Class, and anyone who

acts or purports to act on their behalf, from pursuing all other proceedings in any state or federal

court that seeks to address any Released Party’s or Class Member’s rights or claims relating to, or

arising out of, any of the Released Claims, as those terms are defined in the Settlement Agreement.

19. Class members shall be bound by all determinations and judgments in the action

concerning the action and/or Settlement Agreement, whether favorable or unfavorable.

20. In the event that the Settlement Agreement is terminated pursuant to the provisions

of the Settlement Agreement, then (i) the Settlement Agreement shall be null and void, and shall

have no further force and effect with respect to any party in this action, and shall not be used in this

action or in any other proceeding for any purpose; (ii) all negotiations, proceedings, and statements

made in connection therewith shall be without prejudice to any person or party hereto, shall not be

deemed or construed to be an admission by any party of any act, matter, or proposition, and shall

not be used in any manner or for any purpose in any subsequent proceeding in this action or in any

other action in any court or other proceeding, provided, however, that the termination of the

Settlement Agreement shall not shield from subsequent discovery any factual information provided

in connection with the negotiation of this Settlement Agreement that would ordinarily be

discoverable but for the attempted settlement; and (iii) other than as expressly preserved by the

Settlement Agreement in the event of its termination, the Settlement Agreement shall have no



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further force and effect with respect to any party and shall not be used in the action or any other

proceeding for any purpose.

21. The certification of the Settlement Class shall be binding only with respect to the

settlement of the action. In the event that the Settlement Agreement is terminated pursuant to its

terms or is not approved in all material respects by the Court, or such approval is reversed, vacated,

or modified in any material respect by this or any other court, the certification of the Settlement

Class shall be deemed vacated, the action shall proceed as if the Settlement Class had never been

certified (including Sega’s right to oppose any subsequent motion for class certification), and no

reference to the Settlement Class, the Settlement Agreement, or any documents, communications, or

negotiations related in any way thereto shall be made for any purpose.

IT IS SO ORDERED this _____ day of __________, 2014.

_____________________________________ THE HONORABLE JAMES DONATO UNITED STATES DISTRICT JUDGE


tentative aliens: colonial marines settlement

Documents

class counsel

proposed settlement

plaintiff lockes motion

class representative

plaintiff john locke

jd notice of motion

putative class case3

appointment of plaintiff