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Lane v. Facebook (Kamber Declaration)

Lane v. Facebook (Kamber Declaration)

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Published by: Venkat Balasubramani on Mar 18, 2010
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08/23/2010

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 S. Kamber Decl. in Support of Plaintiffs’ 1 No. C 08-3845 RSMotion for Final Settlement Approval12345678910111213141516171819202122232425262728Scott A. Kamber
skamber@kamberlaw.com
 David A. Stampley
dstampley@kamberlaw.com
 KamberLaw, LLC11 Broadway, 22nd Floor.New York, NY. 10004Telephone: (212) 920-3072Facsimile: (212) 202-6364David Parisi (Cal. Bar. No. 162248)
dparisi@parisihavens.com
 Parisi & Havens LLP15233 Valleyheart DriveSherman Oaks, California 91403Telephone: (818) 990-1299Facsimile: (818) 501-7852
 
Attorneys for Plaintiff (Additional attorneys listed on Memorandum of Law)
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN JOSE DIVISION
SEAN LANE,
et al
.,Plaintiffsv.FACEBOOK, INC.,
et al.
,Defendants.
No. C 08-3845 RS
 [Assigned to the Hon. Richard Seeborg]
DECLARATION OF SCOTT A. KAMBERIN SUPPORT OF PLAINTIFFS’ MOTIONFOR FINAL APPROVAL OF CLASSACTION SETTLEMENT
Judge: The Hon. Richard SeeborgDate: February 26, 2010Time: 9:30 a.m.Location: Courtroom 8280 South First StreetSan Jose, California 95113I, Scott A. Kamber, declare as follows:1.
 
I am an attorney-at-law duly licensed to practice before all of the courts of theState of New York and am admitted
 pro hac vice
before this court. I am a managing member of KamberLaw, LLC (“KamberLaw”). I am the attorney primarily responsible for the handling of 
Case5:08-cv-03845-RS Document107 Filed02/10/10 Page1 of 16
 
 S. Kamber Decl. in Support of Plaintiffs’ 2 No. C 08-3845 RSMotion for Final Settlement Approval12345678910111213141516171819202122232425262728this litigation on behalf of KamberLaw, LLC. I make this declaration based upon my ownpersonal knowledge. If called to testify, I could and would testify to the facts contained herein.2.
 
I represent that the disclosures contained herein relating to mediation andnegotiation between the parties are with the consent of Michael Rhodes of Cooley GodwardKronish LLP and are not violative of any settlement or mediation privilege.
I. PRELIMINARY STATEMENT ON THE SETTLEMENT
3.
 
This case has been vigorously litigated from its commencement in August 2008through the settlement in September 2009, which was only reached after two full-day mediationsessions with mediator Antonio Piazza and dozens of hours of negotiation sessions with defensecounsel over a period from December 2008 through September 2009.4.
 
At every stage of the litigation, counsel for defendants asserted aggressivedefenses, contested plaintiffs’ positions on nearly every issue, and expressed their belief that theClass could not prevail on the claims asserted. The settlement was not reached until our lawfirms,
inter alia
, (1) thoroughly investigated the potential claims, including consultation withexperts; (2) defendants filed a motion to dismiss the Complaint; (3) defendants produced certaindocuments for discussion purposes; (4) two mediation sessions and many hours of negotiations;and (5) motions to intervene and/or stay the proceedings were fully briefed.5.
 
The settlement of this litigation was negotiated with the assistance and oversight of Mr. Antonio Piazza, who presided over two full day mediation sessions, after which the partiescontinued settlement discussions. The settlement is the product of dozens of hours of arm’s lengthnegotiations over the course of over six months between counsel for the parties. The parties didnot discuss the amounts of any incentive fee or payment to class counsel until after the terms of the settlement were agreed upon.6.
 
The settlement is product of hard-fought litigation and takes into consideration thesignificant risks specific to the case. It was negotiated by experienced counsel for plaintiffs anddefendants with a solid understanding of both the strengths and weaknesses of their respectivepositions.
Case5:08-cv-03845-RS Document107 Filed02/10/10 Page2 of 16
 
 S. Kamber Decl. in Support of Plaintiffs’ 3 No. C 08-3845 RSMotion for Final Settlement Approval123456789101112131415161718192021222324252627287.
 
Plaintiffs believe that this settlement represents an excellent result for the class,especially under the circumstances of this case. Substantial investigation, the motion to dismissfiled by defendant Facebook and legal research informed plaintiffs that, while they believe theircase meritorious, it also had weaknesses which had to be carefully evaluated in determining whatcourse (
i.e.
, whether to settle and on what terms, or to continue to litigate through classcertification, summary judgment and a trial on the merits) was in the best interests of the class. Asset forth in further detail below, despite the fact that plaintiffs’ allegations and claims werearguably supported by legal authority, expert opinion and other evidence, the specificcircumstances involved here presented many uncertainties in plaintiffs’ ability to prevail if thecase proceeded to a motion for class certification, summary judgment, and/or trial.8.
 
Plaintiffs also took into account the actual costs of making any distribution to theClass, the size of the class and the financial wherewithal of the defendants to be able to pay any judgment that may be able to be obtained after judgment and appeal.9.
 
These issues and others were considered by plaintiffs and their counsel in decidingto settle the litigation on terms which would provide the class with a benefit of $9.5 million andinjunctive relief that directly redresses the harm alleged in the complaint. In reaching thedetermination to settle, plaintiffs and lead counsel have weighed the documentary evidence andlegal authority supporting their allegations against the documents and legal authority thatdefendants assert undercut plaintiffs’ claims, as well as defendants’ characterizations andinterpretations of the evidence in this case.10.
 
On balance, considering all the circumstances and risks both sides faced, plaintiffscame to the conclusion that settlement on the terms agreed upon was in the best interests of theclass. The settlement confers substantial benefit on the class and eliminates the prejudice to theClass that may come with delay in resolution and continued use of Beacon, the significant costsof continued litigation, the risk that certification would be denied, and the risk that summary judgment and/or trial would not be in plaintiffs’ favor. It is respectfully submitted that thesettlement should be approved as fair, reasonable, and adequate.
Case5:08-cv-03845-RS Document107 Filed02/10/10 Page3 of 16

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