Opinion
MDL No. M-00-1381-MMC
February 21, 2003
Bryan L. Clobes, MILLER FAUCHER AND CAFFERTY LLP, Philadelphia, PA, Dennis Stewart, William J. Doyle III, MILBERG WEISS BERSHAD HYNES LERACH LLP, San Diego, CA, Steven E. Cauley, CAULEY, GELLER, BOWMAN COATES, LLP, Little Rock, AR, Seth R. Lesser, BERNSTEIN LITOWITZ BERGER GROSSMANN LLP, New York, NY, COUNSEL FOR PLAINTIFF(S)
Dennis J. Block, CADWALADER, WICKERSHAM TAFT, New York, NY, Michael E. Molland, Kelly C. Wooster, Michael D. Adams, BROBECK, PHLEGER HARRISON LLP, San Francisco, CA, Melvin R. Goldman, Lori A. Schechter, MORRISON FOERSTER LLP, San Francisco, CA, COUNSEL FOR DEFENDANTS
Richard Schauseil, Oldsmar, FL, OBJECTOR
FINAL JUDGMENT AND ORDER OF DISMISSAL OF CLASS ACTION
WHEREAS, this matter having come before the Court for approval of settlement, in accordance with a Settlement Agreement and Release dated November 13, 2002 ("Settlement Agreement"), by and between Toys R Us, Inc. and Toysrus.com, Inc. (collectively "Toys R Us") and Coremetrics, Inc. ("Coremetrics"), on the one hand, and plaintiffs on behalf of themselves and the members of the general public of California and the purported Settlement Class (collectively "Plaintiffs"), on the other hand, in the action entitled: In re Toys R Us, Inc. Privacy Litigation, Master File No. C-00-2746-MMC, MDL No. M-00-1381-MMC (United States District Court for the Northern District of California) (the "Action"); and
A hearing having been held before the Court on February 21, 2003, pursuant to this Court's Order Regarding (1) Preliminary Approval of Settlement; (2) Approval of Published Notice of Pendency and Settlement of Class Action; and (3) Setting Hearing Date dated November 22, 2002 ("Notice and Hearing Order"), the respective parties having appeared by their attorneys of record; the Court having heard and considered evidence in support of the proposed settlement of the Action, the attorneys for the parties having been heard, an opportunity to be heard having been given to all other persons requesting to be heard in accordance with the Notice and Hearing Order, the Court having determined for settlement purposes that this action meets all of the prerequisites of Rule 23 of the Federal Rules of Civil Procedure, including numerosity, ascertainability, commonality of interest, predominance and typicality, and that Plaintiffs are adequate representatives of the class provisionally certified in this action (the "Settlement Class") pursuant to the Notice and Hearing Order, notice to the Settlement Class was adequate and sufficient and complied with all the requirements of due process, the Court having determined that it has jurisdiction over the subject matter of the Action and over all parties to the Action, including all members of the Settlement Class, and one objection having been filed by a Settlement Class Member, and having been overruled;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. The definitions and terms set forth in the Settlement Agreement are hereby incorporated in this Final Judgment and Order of Dismissal.
2. The Court has jurisdiction over the subject matter of the Action, the Settlement Class Members, and the Defendants.
3. With respect to the Settlement Class, this Court finds and concludes that: (a) the Members of the Settlement Class are so numerous that joinder of all Settlement Class Members in the Litigation is impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over any individual questions; (c) the claims of the representative Plaintiffs are typical of the claims of the Settlement Class; (d) the representative Plaintiffs and their counsel have fairly and adequately represented and protected the interests of all Settlement Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy, considering: (i) the interests of the Members of the Settlement Class in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by Members of the Settlement Class; (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum; and (iv) the difficulties likely to be encountered in the management of the class action. Furthermore, as to the injunctive relief only, this Court finds that injunctive relief with respect to the Settlement Class as a whole is appropriate.
4. The proposed nationwide class is certified for purposes of settlement only, under Rule 23(b)(3) of the Federal Rules of Civil Procedure and, as to the injunctive relief only, Rule 23(b)(2) of the Federal Rules of Civil Procedure, with the named plaintiffs in the Action serving as the representatives of the Settlement Class. The Settlement Class consists of:
All persons who, from since June 1, 1998 to August 6, 2002, while visiting any Web site owned or operated in whole or in part by Toys R Us, had their online Web browsing activities or online shopping information disclosed to Coremetrics.
5. The Notice of Pendency and Proposed Settlement of Class Action provided to the Settlement Class was the best notice practicable under the circumstances. The Notice satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process.
6. The settlement is approved as fair, reasonable, adequate and in the best interest of the Settlement Class and shall be consummated in accordance with the terms and conditions of the Settlement Agreement. In addition, the objection of Richard Schauseil is without merit and shall be overruled.
7. Except as to any individual (identified on Exhibit 1 hereto) who has validly and timely requested exclusion from the Settlement Class, this Court hereby dismisses with prejudice and without costs (except as otherwise provided in the Settlement Agreement) the litigation against the Defendants.
8. Upon the Effective Date, the Plaintiffs, for themselves and as representatives of the Settlement Class, and on behalf of each Settlement Class Member and their respective agents, successors, heirs, or assigns, shall be deemed to have, and by operation of this Final Judgment and Order of Dismissal, shall have fully, finally, and forever irrevocably released, relinquished and discharged with prejudice the Released Parties from any and all claims, rights (including, without limitation, rights to reimbursement or restitution), demands, actions, causes of action, suits, matters, issues, debts, liens, damages, attorneys' fees, obligations, contracts, liabilities, agreements, costs, expenses or losses of any nature, whether known or unknown, matured or unmatured, contingent or absolute, existing or potential, suspected or unsuspected, whether under federal statutory law, federal common law or federal regulation, or the statutory or common laws or regulations of any and all states or subdivisions which are alleged or which could or might have been alleged in the Action, including, without limitation, claims arising out of or otherwise directly related to the allegations, factual assertions, events, transactions, acts, occurrences, statements, representations, omissions, or any other matter, embraced by, involved or set forth in, or otherwise related to, the Action.
9. Upon the Effective Date, Plaintiffs, on their own behalf and on behalf of all Settlement Class Members, represent and acknowledge that they fully understand that if any fact relating to any matter covered by this Settlement Agreement is found hereafter to be other than or different from the facts now believed by any of them to be true, each of them expressly accepts and assumes the risk of such possible other facts or differences in fact and agrees that this Settlement Agreement shall nevertheless remain in effect, and that each such person expressly waives all of the rights and benefits of Section 1542 of the California Civil Code, which reads as follows:
Section 1542. Certain Claims Not Affected by General Release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
10. Upon the Effective Date, each of the Plaintiffs and the Settlement Class Members shall be deemed to have, and by operation of this Final Judgment and Order of Dismissal shall have, waived any and all provisions, rights and benefits conferred by Section 1542 of the California Civil Code or any law of any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to Section 1542 of the California Civil Code.
11. Upon the Effective Date, each of the Released Parties shall be deemed to have, and by operation of this Final Judgment and Order shall have, fully, finally and forever released, relinquished and discharged each and all of the Plaintiffs and Settlement Class Members and their attorneys from all claims arising out of the institution, prosecution, assertion, or resolution of the Action.
12. Class Counsel are hereby awarded the total sum of $1,300,000.00, for their reasonable fees and expenses in prosecuting the Action, such amounts to be paid to Plaintiffs' Counsel as provided for in the Settlement Agreement, with the sum of $900,000.00 to be paid by or on behalf of Toys R Us and the sum of $400,000.00 to be paid by or on behalf of Coremetrics.
13. Without affecting the finality of this Final Judgment and Order of Dismissal in any way, this Court hereby retains continuing jurisdiction over: (a) implementation of the Settlement; and (b) this action until this Final Judgment and Order of Dismissal becomes Final and each and every act agreed to be performed by the parties has been performed pursuant to the Settlement Agreement.
14. Neither this Final Judgment and Order of Dismissal, nor the Settlement Agreement, nor any of its terms or provisions, shall constitute an admission by Defendants of any liability or wrongdoing whatsoever, nor is this Final Judgment and Order of Dismissal a finding of the validity or invalidity of any claims in the Action or a finding of any wrongdoing by the Defendants. Neither this Final Judgment and Order of Dismissal nor the Settlement Agreement shall be used or construed as an admission, concession, or presumption or inference of any fault, liability or wrongdoing by any person. Neither this Final Judgment and Order of Dismissal, the Settlement Agreement, the fact of settlement and the settlement proceedings, nor the settlement negotiations, nor any related document, shall be offered or received in evidence as an admission, concession, or presumption or inference against any party in any proceeding other than (i) in such proceedings as may be necessary to consummate or enforce the Settlement Agreement, or (ii) in any subsequent action against or by the Released Parties, or any of them, to support a defense of res judicata, collateral estoppel, release, or other theory of claim preclusion, issue preclusion, or similar defense.