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Case 3:16-cv-04300-JD Document 118 Filed 02/14/19 Page 1 of 20

1 Class Action Settlement Agreement

2 This Settlement Agreement (“Agreement” or “Settlement Agreement”) is entered into by and

3 among (i) Scott Dodich and Jayme Gotts-Dodich; The Villas of Positano Condominium Association,

4 Inc., on behalf of its members (“Villas”); Jill M. Barbarise; Jason Sarkis; Melissa Perez; Congshan

5 “Sam” Hao; Bruce Garton; Sally Rogers; Deborah J. Pimentel; and Loren Morgan (“Plaintiffs”); and

6 (ii) Defendant Niantic, Inc. (“Defendant” or “Niantic,” and together with Plaintiffs, the “Parties” or

7 singularly “Party”). This Agreement is intended by the Parties to fully, finally, and forever resolve,

8 discharge, and settle all the claims specified below, upon and subject to the terms and conditions of

9 this Agreement, and subject to approval of the Court.

10 RECITALS

11 A. On July 27, 2016, Jeffrey Marder1 filed a Class Action Complaint in the Northern

12 District of California, Case No. 4:16-cv-04300-KAW, asserting claims for nuisance and unjust

13 enrichment against Niantic, The Pokémon Company, and Nintendo Co. Ltd., on behalf of himself and

14 all others similarly situated.

15 B. On August 10, 2016, Scott Dodich and Jayme Gotts-Dodich filed a Class Action

16 Complaint in the Northern District of California, Case No. 3:16-cv-04556-DMR, asserting claims for

17 nuisance and unjust enrichment against Niantic, The Pokémon Company, and Nintendo Co. Ltd., on

18 behalf of themselves and all others similarly situated.

19 C. On September 2, 2016, Villas filed a Class Action Complaint in the Northern District

20 of California, Case No. 3:16-cv-05091, asserting claims for nuisance and unjust enrichment against

21 Niantic, The Pokémon Company, and Nintendo Co. Ltd., on behalf of themselves and all others

22 similarly situated.

23 D. On September 15, 2016, the Court granted a Motion for Administrative Relief to

24 Consider Whether Cases Should be Related, and related the three aforementioned cases under Case

25 No. 3:16-cv-04300-JD (the “Action”).

26 E. On November 25, 2016, Jeffrey Marder, Scott Dodich and Jayme Gotts-Dodich, and

27

28 1
Plaintiffs’ dropped Jeffrey Marder as a Named Plaintiff on or around October 2018.
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1 Villas filed a Consolidated Amended Class Action Complaint in the Northern District of California

2 against Niantic, The Pokémon Company, and Nintendo Co. Ltd., under Case No. 3:16-cv-04300-JD,

3 asserting claims for nuisance, trespass and unjust enrichment.

4 F. On January 27, 2017, Niantic filed a Motion to Dismiss the Consolidated Amended

5 Class Action Complaint. Plaintiffs filed an Opposition on March 2, 2017, and Niantic filed a Reply

6 on March 23, 2017.

7 G. On April 6, 2017, Plaintiffs voluntarily dismissed claims against Nintendo Co. Ltd.

8 H. On July 19, 2017, Plaintiffs voluntarily dismissed claims against The Pokémon

9 Company.

10 I. On July 27, 2018, the Court issued an Order dismissing the Consolidated Amended

11 Class Action Complaint without prejudice for lack of subject matter jurisdiction under the Class

12 Action Fairness Act. Plaintiffs were ordered to amend the pleadings by August 28, 2017. The Court

13 stayed all aspects of the case, including discovery, pending the Court’s determination that it had

14 subject matter jurisdiction to hear the case.

15 J. On August 28, 2017, Plaintiffs filed a Second Consolidated Amended Complaint

16 (“SAC”), under Case No. 3:16-cv-04300-JD against Niantic. The SAC added Plaintiffs Jill M.

17 Barbarise; Jason Sarkis; Melissa Perez; Congshan “Sam” Hao; Bruce Garton; Sally Rogers; Deborah

18 J. Pimentel; and Loren Morgan. The SAC also redefined the putative class to the following:

19 All persons in the United States who own or lease property within 100 meters of any location
that Niantic has designated, without prior consent of such property owner or lessee, as a
20 Pokéstop or Pokémon Gym in the Pokémon Go mobile application.

21 K. The SAC brought claims for nuisance and trespass.

22 L. On November 17, 2017, Niantic filed a Motion to Dismiss the SAC. Plaintiffs filed an

23 Opposition on January 16, 2018, and Niantic filed a Reply on February 15, 2018.

24 M. On March 29, 2018, the Court denied Niantic’s Motion to Dismiss, and lifted the stay

25 previously imposed on discovery.

26 N. Following the Court’s decision on the Motion to Dismiss the SAC, the Parties engaged

27 in written discovery, including Niantic serving interrogatories and requests for admission on each

28 named Plaintiff. Each party also served requests for production and Niantic produced more than
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1 260,000 documents in response to Plaintiffs’ requests. Plaintiffs took the deposition of Niantic’s VP,

2 Product Management for Pokémon GO.

3 O. On November 1, 2018, the parties conducted a formal, in-person mediation with Greg

4 Lindstrom of Phillips ADR in San Francisco, California. Each party submitted an opening mediation

5 statement and a reply mediation statement to Mr. Lindstrom and the other parties. Based on a

6 framework developed at the mediation, the Parties engaged in further negotiations in the subsequent

7 weeks. As part of the settlement communications, Niantic provided additional discovery in response

8 to specific questions from Plaintiffs. On November 28, 2018, the Parties reached a mutually agreeable

9 resolution, reflected herein.

10 P. The Parties have investigated the facts and analyzed the relevant legal issues in regard

11 to the claims and defenses asserted in the Action.

12 Q. At all times, Niantic has denied and continues to deny that it committed, or threatened,

13 or attempted to commit any wrongful act or violation of law or duty alleged in the Action. Niantic

14 also denies: (1) all charges of wrongdoing or liability against Niantic or its agents arising out of any

15 conduct, statements, acts or omissions alleged in the Action; and (2) that Plaintiffs or the Class are

16 entitled to any form of relief based on the conduct alleged in the Action.

17 R. In addition, Niantic maintains that it has meritorious defenses to the claims alleged in

18 the Action and is prepared to vigorously defend all aspects of the Action. Nonetheless, taking into

19 account the uncertainty and risks inherent in any litigation, Niantic has concluded that further defense

20 of the Action would be protracted, burdensome, and expensive, and that it is desirable and beneficial

21 that the Action be fully and finally settled and terminated in the manner and upon the terms and

22 conditions set forth in this Agreement.

23 S. Plaintiffs believe that the claims asserted in the Action against Niantic have merit and

24 that they would ultimately be successful in prevailing on the merits at summary judgment or trial.

25 Nonetheless Plaintiffs and Plaintiffs’ Counsel recognize and acknowledge that Niantic has raised

26 factual and legal defenses in the Action that present a risk that Plaintiffs may not prevail. Plaintiffs

27 and Plaintiffs’ Counsel also have taken into account the uncertain outcome and risks of any litigation,

28 especially in complex actions, as well as the difficulties and delays inherent in such litigation.
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1 Therefore, Plaintiffs and Plaintiffs’ Counsel believe that it is desirable that the Action be fully and

2 finally compromised, settled, and resolved with prejudice, and barred pursuant to the terms set forth

3 herein. Based on their evaluation, Plaintiffs’ Counsel have concluded that the terms and conditions of

4 this Agreement are fair, reasonable, and adequate to the Class, and that it is in the best interests of the

5 Class to settle the claims raised in the Action pursuant to the terms and provisions of this Agreement.

6 T. Given all the above, and considering all other risks and uncertainties of continued

7 litigation and all factors bearing on the merits of settlement, the Parties are satisfied that the terms and

8 conditions of this Settlement Agreement are fair, reasonable, adequate, and in their respective best

9 interests.

10 AGREEMENT
11 1. DEFINITIONS.

12 While certain terms have been defined above, they are included in this Definitions section

13 again for convenience. To the extent that there is a difference between the terms as defined, the

14 following Definitions shall prevail.

15 1.1 “Action” means the action entitled In re Pokémon Go Nuisance Litigation, Case No.

16 3:16-cv-04300-JD pending in the United States District Court for the Northern District of California.

17 1.2 “Approval Order” means the Order Approving Class Action Settlement and Entry of

18 Final Judgment attached hereto as Exhibit B. The Approval Order shall be in form and substance the

19 same as attached hereto as Exhibit B.

20 1.3 “Class” means “All persons in the United States who own or lease property within 100

21 meters of any location that Niantic has designated, without prior consent of such property owner or

22 lessee, as a Pokéstop or Pokémon Gym in the Pokémon Go mobile application.”

23 1.4 “Court” means the United States District Court, Northern District of California, the

24 Honorable James Donato presiding, or any judge of this court who shall succeed him as the judge

25 assigned to this Action.

26 1.5 “Commercially Reasonable Efforts” or “CRE” shall be construed as it has been

27 construed in relevant case law and other relevant authorities, such as Black’s Law Dictionary.

28 1.6 “Defendant” or “Niantic” means Niantic, Inc.


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1 1.7 “Final Settlement Date” means one business day after the Final Judgment becomes

2 “Final.” For purposes of this Section, “Final” means that the following has occurred: either (i) the

3 time expires for filing or noticing any appeal of the Approval Order and Final Judgment and no appeal

4 has been filed; or (ii) if there is an appeal or appeals, completion, in a manner that finally affirms and

5 leaves in place the Approval Order and Final Judgment without any material modification, of all

6 proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all

7 deadlines for motions for reconsideration, rehearing en banc, or petitions for review and/or certiorari,

8 all proceedings ordered on remand, and all proceedings arising out of any subsequent appeal or appeals

9 following decisions on remand); or (iii) final dismissal of any appeal or the final dismissal of any

10 proceeding on certiorari.

11 1.8 “Final Judgment” means the final judgment to be entered by the Court approving

12 class settlement in accordance with this Agreement.

13 1.9 “Niantic’s Counsel” means Cooley LLP.

14 1.10 “Parties” (singular “Party”) means Plaintiffs and Defendant.

15 1.11 “Plaintiffs” means Scott Dodich and Jayme Gotts-Dodich; The Villas of Positano

16 Condominium Association, Inc., on behalf of its members; Jill M. Barbarise; Jason Sarkis; Melissa

17 Perez; Congshan “Sam” Hao; Bruce Garton; Sally Rogers; Deborah J. Pimentel; and Loren Morgan.

18 1.12 “Plaintiffs’ Counsel” means Pomerantz LLP.

19 1.13 “Person(s)” mean, without limitation, any individual, corporation, partnership,

20 limited partnership, limited liability partnership, limited liability company, association, joint stock

21 company, estate, legal representative, trust, unincorporated association, and any business or legal

22 entity and their spouses, heirs, predecessors, successors, representatives, or assigns.

23 1.14 “POI” means a PokéStop and/or Gym in the mobile game Pokémon GO.

24 1.15 “Preliminary Approval Order” means the Order Granting Preliminary Approval of

25 Settlement and Directing Notice to Settlement Class attached hereto as Exhibit A.

26 1.16 “Released Parties” means Niantic and any and all of its past or present predecessors,

27 successors, assigns, parents, subsidiaries, associates, affiliated and related entities, employers,

28 employees, agents, representatives, consultants, independent contractors, directors, managing


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1 directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors,

2 investment bankers, insurers, underwriters, shareholders, lenders, auditors, investment advisors, and

3 any and all present and former companies, firms, trusts, corporations, officers, directors, other

4 individuals or entities in which Niantic has a controlling interest or which is affiliated with any of

5 them, or any other representatives of any of these Persons and entities.

6 2. SETTLEMENT RELIEF

7 2.1 Injunctive Relief for the Benefit of Plaintiffs and the Class: In consideration for the

8 settlement of this Action and the dismissal contemplated herein, Niantic agrees to the following

9 injunctive relief. With respect to Pokémon GO in the United States:

10 (a) For complaints properly received through Niantic’s website related to nuisance,

11 trespass, or a request to remove a POI, Niantic will use CRE to resolve the

12 complaints and communicate a resolution within no more than 15 (fifteen) days

13 of wait time for the requestor, for 95% of cases each year.

14 (b) In cases where the complaining party in Section 2.1(a) is the owner of a single-

15 family residential property and the party reviewing the complaint determines

16 that the complained of POI is on or within 40 meters of that property, Niantic

17 will instruct that reviewer to remove the POI from the property. In cases where

18 the resolution specified in 2.1(a) or 2.1(b) requires removal of a POI, Niantic

19 will use CRE to perform that removal within five business days of the

20 communication from Niantic agreeing to such action.

21 (c) Niantic will use CRE to maintain a database of complaints related to nuisance

22 or trespass and requests to remove a POI, for a minimum of 1 (one) year from

23 the date of the complaint. Niantic will also continue to use CRE to avoid the

24 placement of new POI on single-family residential property.

25 (d) Niantic will maintain a form on its website whereby an owner of single-family

26 residential property can request that any POI on or within 40 meters of their

27 property be removed. In cases where Niantic has previously removed a POI

28 from the property of a single-family residential home, and in cases where


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1 Niantic does so in the future during the settlement period, Niantic agrees to use

2 CRE to avoid re-placing that POI on that same single-family residential

3 property.

4 (e) For Raids which Niantic’s systems indicate will involve more than 10

5 participants, Niantic will use CRE to cause a warning message to appear on

6 participants’ screens before the raid begins reminding players to be courteous

7 to others and respectful of their real-world surroundings. Precise final language

8 will be determined by Niantic, in its sole discretion.

9 (f) Niantic will add specific instructions to the current review form that Niantic’s

10 user-reviewers use to evaluate new POI submissions that direct user-reviewers

11 to increase scrutiny regarding any proposed POI that may be located on or

12 within 40 meters of a private single-family residential property, and POI that

13 appear to be located in neighborhood parks. At a minimum, such instructions

14 will include directions for the user-reviewer to examine the proposed POI using

15 a variety of sources, including but not limited to mapping services maintained

16 by private companies such as Google Maps. After such review, Niantic will

17 use CRE to avoid placing the POI on any property that appears to the reviewer

18 to be a single-family residential property.

19 (g) Niantic agrees that it shall manually review a statistically significant percentage

20 of new POI submissions via a Niantic employee or contractor for the principal

21 purpose of trying to avoid POI that are more likely to lead to issues with

22 nuisance or trespass.

23 (h) Niantic agrees to maintain a mechanism for parks whereby it provides parks the

24 opportunity to request that a specific park’s Hours of Operation be applied to

25 POI that are located within that park. Niantic also agrees to comply with

26 requests related to existing POI located in parks from governmental parks

27 authorities to apply Hours of Operation to POI located in parks within their

28 jurisdiction. In addition to any notice of the settlement that Plaintiffs determine


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1 is required per Section 2.4 below, at least once in each of the three years of the

2 settlement period, Niantic will make a public post on its website that includes a

3 notification that Niantic will limit the hours of operation of POI within public

4 parks upon request from the proper park administrator.

5 (i) Niantic will agree to confirm compliance with its obligations under Section

6 2.1(a) above by way of an audit, at Niantic’s expense, conducted by an

7 independent firm that Niantic will select, at the time of Plaintiffs’ choosing

8 during the 3 (three) year period, with at least 30 days’ notice to Niantic before

9 the commencement of the audit. Should the audit conclude that Niantic was

10 materially non-compliant with the settlement terms in Section 2.1(a) during the

11 audited period, a second audit will be conducted, at Niantic’s expense, during

12 the settlement period, with at least 30 days’ notice to Niantic before

13 commencement of the second audit.

14 (j) Niantic will add a new warning to the rotating warnings that appear at the

15 launch of the game (which currently include “do not trespass while playing

16 Pokémon GO” and “do not play Pokémon GO while driving”) that states: “Be

17 courteous to members of real-world communities as you play Pokémon GO” or

18 something similar, with final specific language subject to Niantic’s sole

19 discretion.

20 2.2 The injunctive relief specified in Section 2.1(a) through (j) shall be in effect for at least

21 three (3) years from the Final Settlement Date.

22 2.3 Fee Payment to Plaintiffs’ Counsel. Plaintiffs and Plaintiffs’ counsel will petition

23 the Court to approve an amount of attorneys’ fees and expenses, which amount shall be wholly

24 inclusive of all fees, expenses, cost disbursements, and expert and consulting fees in the Action.

25 Niantic (or its successor(s)-in-interest) agrees to pay the attorneys’ fees, costs and expenses that the

26 Court awards (the “Fee and Expense Award”). Niantic will make best efforts to pay the Fee and

27 Expense Award to Plaintiffs’ counsel within twenty-one (21) business days after the later of 1) the

28 Court’s order awarding such Fee and Expense Award and (2) the Approval Order, notwithstanding
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1 any appeals that may be taken by any Class Member, subject to the obligation of Plaintiffs’ Counsel

2 to make the requisite refund or repayment, with interest at a fixed rate per annum equal to the lesser

3 of (i) LIBOR plus 2% or (ii) 6%, to Niantic if the Fee and Expense Award is lowered or the Settlement

4 is disapproved by a final order not subject to further review. In no event shall Niantic be required to

5 make a payment of attorneys’ fees to class counsel in the event the settlement is not finally approved.

6 The Settlement is not conditioned upon any award of attorneys’ fees and costs, and any objection to

7 or appeal from such an award shall not affect the finality of the Settlement or the judgment of

8 dismissal.

9 (a) If the Final Settlement Date does not occur or if this Stipulation is terminated,

10 then Plaintiffs’ Counsel shall within ten (10) business days from the event

11 which precludes the Final Settlement Date from occurring or the termination of

12 this Stipulation, refund to Niantic any Fee and Expense Award or any portion

13 thereof that has already been paid to Plaintiffs’ Counsel, plus interest at a fixed

14 rate per annum equal to the lesser of (i) LIBOR plus 2% or (ii) 6%.

15 (b) If the Fee and Expense Award is reduced or reversed on appeal, Plaintiffs’

16 Counsel shall within ten (10) business days from the date of a final order by the

17 Court of Appeals or the Supreme Court directing such reduction or reversal,

18 make such refunds as are required by such final order, plus interest at a fixed

19 rate per annum equal to the lesser of (i) LIBOR plus 2% or (ii) 6%.

20 2.4 Notice of Settlement. Public notice of the Settlement and notice to the Class shall

21 be effectuated solely in the following manner and no other: (1) Niantic shall cause the Long-Form

22 Notice, substantially in the form attached hereto as Exhibit A-1, to be posted on the Pokémon GO

23 support website within ten (10) business days following the Court granting preliminary approval of

24 the Settlement and will remain until the Objection Deadline set forth in the Court’s order granting

25 preliminary approval of the Settlement has passed. (2) The Short-Form Notice, substantially in the

26 form attached hereto as Exhibit A-2, shall be published in several nationally prominent news

27 publications and in two prominent publications targeted towards public parks and/or public park

28 systems within thirty (30) business days following the Court granting preliminary approval of the
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1 Settlement. (3) The Long-Form Notice and Short-Form Notice shall be posted on a case-specific

2 website established by Class Counsel (the “Class Settlement Website”) within ten (10) business days

3 following the Court granting preliminary approval of the Settlement, along with the Stipulation and

4 all relevant Court orders in this Action. Niantic shall bear all reasonable and necessary costs of the

5 Class Notice program.

6 2.5 Agreement to Mediate Named Plaintiffs’ Individual, Unreleased Claims.

7 (a) The Parties agree to conduct a good faith, confidential mediation of the Named

8 Plaintiffs’ individual, unreleased claims.

9 (b) This term (2.5(a)) is expressly severable from the remainder of the settlement

10 agreement, in the event that the Court will not approve the inclusion of this term

11 (2.5(a)) in the class settlement.

12 3. RELEASES

13 3.1 Plaintiffs’ Limited Release of Injunctive Claims Only. Upon the Final Settlement

14 Date, Plaintiffs and their present, former, and future heirs, executors, administrators, representatives,

15 agents, attorneys, partners, predecessors-in-interest, successors, assigns, and legatees, fully, finally

16 and forever release, relinquish, and discharge the Released Parties from all claims for equitable,

17 injunctive or declaratory relief based on the facts that were or could have been alleged in the SAC,

18 including but not limited to injunctive claims arising out of or relating to any of the facts, transactions,

19 events, occurrences, acts, disclosures, statements, misrepresentations, omissions, failures to act, or

20 other conduct that was or could have been alleged, including, but not limited to, claims regarding

21 Niantic’s conduct, practices, disclosures, terms, and policies relating to the placement of POI,

22 spawning of Pokémon , and/or design of the Pokémon GO game through the date on which the Court

23 enters the Approval Order.

24 The foregoing release includes all claims for equitable, injunctive or declaratory relief that

25 Plaintiffs do not know or suspect to exist, which, if known by them might affect their agreement to

26 release the Released Parties for the claims specified in this Section 3 or might affect their decision to

27 agree to the Settlement Agreement. Upon the Final Settlement Date, Plaintiffs shall be deemed to

28 have, and shall have, expressly waived and relinquished, to the fullest extent permitted by law, the
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1 provisions, rights, and benefits of Section 1542 of the California Civil Code, and any law or legal

2 principle of similar effect in any jurisdiction, whether federal or state. Section 1542 of the California

3 Civil Code provides as follows:

4 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE


CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
5 EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY
6 AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.
7
Plaintiffs individually and on behalf of each of their present, former, and future heirs,
8
executors, administrators, representatives, agents, attorneys, partners, predecessors-in-interest,
9
successors, assigns, and legatees, fully understand that the facts upon which this Agreement is
10
executed may hereafter be other than or different from the facts now believed by Plaintiffs, and/or
11
Plaintiffs’ Counsel to be true and expressly accept and assume the risk of such possible difference in
12
facts and agree that this Agreement shall remain effective notwithstanding any such difference in facts.
13
Plaintiffs acknowledge and agree that this waiver is an essential and material term of this release and
14
the settlement that underlies it and that without such waiver the settlement would not have been
15
accepted.
16
The release set forth in this section does not include any claim for monetary relief.
17
3.2 Plaintiffs represent and warrant that they have not assigned, granted, or transferred any
18
claim or right or interest therein as against the Released Parties to any other Person and that they are
19
fully entitled to release the same.
20
3.3 Class Members’ Limited Release of Injunctive Claims Only. Upon the Final
21
Settlement Date, the members of the Class and their present, former, and future heirs, executors,
22
administrators, representatives, agents, attorneys, partners, predecessors-in-interest, successors,
23
assigns, and legatees, fully, finally and forever release, relinquish, and discharge the Released Parties
24
from all claims for equitable, injunctive or declaratory relief based on the facts that were or could have
25
been alleged in the SAC, including but not limited to injunctive claims arising out of or relating to any
26
of the facts, transactions, events, occurrences, acts, disclosures, statements, misrepresentations,
27
omissions, failures to act, or other conduct that was or could have been alleged, including, but not
28
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1 limited to, claims regarding Niantic’s conduct, practices, disclosures, terms, and policies relating to

2 the placement of POI spawning of Pokémon, and design of the Pokémon GO game through the date

3 on which the Court enters the Approval Order.

4 The foregoing release includes all claims for equitable, injunctive or declaratory relief that

5 Class Members do not know or suspect to exist, which, if known by them might affect their decision

6 not to object to the release of the Released Parties for the claims specified in this Section 3 or might

7 affect their decision not to object to the Settlement Agreement. Upon the Final Settlement Date, Class

8 Members shall be deemed to have, and shall have, expressly waived and relinquished, to the fullest

9 extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil

10 Code, and any law or legal principle of similar effect in any jurisdiction, whether federal or state.

11 Section 1542 of the California Civil Code provides as follows:

12 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE


CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
13 EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY
14 AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.
15
Class Members individually and on behalf of each of their present, former, and future heirs,
16
executors, administrators, representatives, agents, attorneys, partners, predecessors-in-interest,
17
successors, assigns, and legatees, fully understand that the facts upon which this Agreement is
18
executed may hereafter be other than or different from the facts now believed by Class Members,
19
and/or Plaintiffs’ Counsel or other counsel for Class Members to be true and expressly accept and
20
assume the risk of such possible difference in facts and agree that this Agreement shall remain effective
21
notwithstanding any such difference in facts. Class Members acknowledge and agree that this waiver
22
is an essential and material term of this release and the settlement that underlies it and that without
23
such waiver the settlement would not have been accepted.
24
The release set forth in this section does not include any claim for monetary relief.
25
3.4 Released Claims. The releases set forth in Sections 3.1 and 3.3 shall, collectively,
26
constitute the “Released Claims.”
27
4. NIANTIC’S DENIAL OF WRONGDOING
28
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1 4.1 Niantic denies that it committed, threatened, or attempted to commit any wrongful act

2 or violation of law or duty alleged in the Action. Niantic also denies: (1) all charges of wrongdoing

3 or liability against Niantic or its agents arising out of any conduct, statements, acts or omissions alleged

4 in the Action and (2) that Plaintiffs or the Class is entitled to any form of relief based on the conduct

5 alleged in the Action. In addition, Niantic maintains that it has meritorious defenses to the claims

6 alleged in the Action and is prepared to vigorously defend all aspects of the Action.

7 4.2 This Agreement reflects the Parties’ compromise and settlement of the disputed claims

8 and this Action. This Agreement’s provisions, and all related drafts, communications and discussions,

9 cannot be construed as or deemed to be evidence of an admission or concession by Niantic of any

10 wrongdoing, by any Person or entity and cannot be offered or received into evidence or requested in

11 discovery in this Action or any other action or proceeding as evidence of an admission, concession, or

12 presumption regarding such matters.

13 5. APPROVAL ORDER AND FINAL JUDGMENT

14 5.1 Promptly after the execution of this Settlement Agreement, Plaintiffs’ Counsel shall

15 submit this Agreement together with Exhibit A to the Court and shall move the Court for entry of the

16 Approval Order approving the settlement set forth in this Agreement (attached hereto as Exhibit A).

17 5.2 Plaintiffs’ Counsel on behalf of the Plaintiffs shall request from the Court a Final

18 Judgment. The Final Judgment will (among other things):

19 (a) find that the Court has personal jurisdiction over the Class and that the Court

20 has subject matter jurisdiction to approve the Agreement;

21 (b) certify the Class under Federal Rule of Civil Procedure 23(b)(2) for settlement

22 purposes only;

23 (c) appoint Plaintiffs as class representatives for settlement purposes only;

24 (d) appoint Plaintiffs’ Counsel as Class Counsel for settlement purposes only;

25 (e) approve the Agreement and the proposed settlement as fair, reasonable, and

26 adequate as to, and in the best interests of, the Class; direct the Parties and their

27 counsel to implement and consummate the Agreement according to its terms

28 and provisions; and declare the Agreement to be binding on, and have res
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CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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1 judicata and preclusive effect in, all pending and future lawsuits or other

2 proceedings maintained by or on behalf of Plaintiffs and the Class;

3 (f) find that Plaintiffs’ Counsel adequately represented the Class for purposes of

4 entering into and implementing the Agreement;

5 (g) dismiss the Action (including all individual claims and class action claims

6 presented thereby) on the merits and with prejudice, without fees or costs to any

7 Party except as provided in this Settlement Agreement;

8 (h) incorporate the releases set forth in Section 3, make the releases effective as of

9 the Final Settlement Date, and forever discharge the Released Parties as set

10 forth in this Agreement;

11 (i) enjoin Niantic in the manner provided in Sections 2.1 and 2.2;

12 (j) authorize the Parties, without further approval from the Court, to agree to and

13 adopt such amendments, modifications and expansions of the Settlement

14 Agreement and its implementing documents as shall be consistent in all material

15 respects with the Final Judgment; and

16 (k) without affecting the finality of the Final Judgment for purposes of appeal,

17 retain jurisdiction as to all matters relating to administration, consummation,

18 enforcement, and interpretation of the Settlement Agreement and the Final

19 Judgment, and for any other necessary purpose.

20 6. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION,


OR TERMINATION
21
6.1 This Settlement Agreement is being entered into for settlement purposes only. Unless
22
Plaintiffs’ Counsel and Niantic’s Counsel agree otherwise in writing, if the Court conditions its
23
approval of either the Approval Order or the Final Judgment on any modifications of this Settlement
24
Agreement that are not acceptable to all Parties, or if the Court does not approve the Settlement or
25
enter the Final Judgment, or if the Final Settlement Date does not occur for any reason, then:
26
(a) This Settlement Agreement will be deemed null and void ab initio;
27
(b) The Approval Order, the Final Judgment, any order on the Fee Petition, or any
28
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CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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1 other order entered by the Court pursuant to the terms of this Settlement

2 Agreement (except any orders sealing confidential information from the public

3 record), together with all of their provisions shall be treated as vacated, nunc

4 pro tunc;

5 (c) The Action will revert to the status quo ante that existed before the Settlement

6 Agreement’s execution date and the Parties shall be restored to their respective

7 positions in the Action as of the date before the Settlement Agreement’s

8 execution date;

9 (d) All motions pending in the Action prior to the Final Settlement Date will be

10 deemed reinstated;

11 (e) The Parties will endeavor to agree to a new case schedule to present for Court

12 approval;

13 (f) No term or draft of this Settlement Agreement, nor any part of the Parties’

14 settlement discussions, negotiations, or documentation, or briefing (including

15 but not limited to any declaration or brief filed in support of the motion for

16 approval or any declaration or brief filed in support of or in opposition to the

17 petition for fee award, and including any proceedings on appeal), will have any

18 effect or be admissible into evidence for any purpose in the Action or any other

19 proceeding; and

20 (g) Niantic shall retain all its rights, for example, to object to the certification of the

21 Action as a class action, to move for summary judgment, and to assert defenses

22 at trial, and nothing in this Settlement Agreement or other papers or proceedings

23 related to the settlement shall be used as evidence or argument by any Party

24 concerning whether the Action may properly be maintained as a class action, or

25 for any other purpose.

26 7. MISCELLANEOUS PROVISIONS

27 7.1 The Parties (a) acknowledge that it is their intent to consummate this Settlement

28 Agreement; and (b) agree, subject to their fiduciary and other legal obligations, to cooperate to the
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CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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1 extent reasonably necessary to effectuate and implement all terms and conditions of this Agreement

2 and to exercise their reasonable best efforts to accomplish the foregoing terms and conditions of this

3 Agreement. The Parties, Plaintiffs’ Counsel, and Niantic’s Counsel agree to cooperate with one

4 another in seeking Court approval of the Approval Order, the Settlement Agreement, and the Final

5 Judgment, and promptly to agree upon and execute all such other documentation as may be reasonably

6 required to obtain final approval of the Agreement.

7 7.2 All time periods and dates described in this Settlement Agreement are subject to the

8 Court’s approval. These time periods and dates may be changed by the Court and the Parties reserve

9 the right, subject to the Court’s approval, to make any reasonable extensions of time that might be

10 necessary to carry out any provisions of this Agreement.

11 7.3 The Parties intend this Settlement Agreement to be a final and complete resolution of

12 all disputes between them with respect to the Released Claims by Plaintiffs and the Class specified in

13 Section 3, on the one hand, against the Released Parties, and each or any of them, on the other hand.

14 7.4 The Parties executed this Settlement Agreement voluntarily and without duress or

15 undue influence.

16 7.5 The Parties have relied upon the advice and representation of counsel, selected by them,

17 concerning their respective legal liability for the claims hereby released. The Parties have read and

18 understand fully this Agreement and have been fully advised as to the legal effect thereof by counsel

19 of their own selection and intend to be legally bound by the same.

20 7.6 Whether or not the Final Settlement Date occurs or the Settlement Agreement is

21 terminated, neither this Agreement nor the settlement contained in this Agreement, nor any act

22 performed or document executed pursuant to or in furtherance of this Agreement or the settlement:

23 (a) is, may be deemed, or shall be used, offered or received against the Released

24 Parties, or each or any of them, as an admission, concession, or evidence of, the

25 validity of any Released Claims, the truth of any fact alleged by the Plaintiffs,

26 the deficiency of any defense that has been or could have been asserted in the

27 Action, the violation of any law or statute, the reasonableness of the injunctive

28 relief or the fee award, or of any alleged wrongdoing, liability, negligence or


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CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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1 fault of the Released Parties, or any of them;

2 (b) is, may be deemed, or shall be used, offered, or received against the Released

3 Parties, or each or any of them, as an admission or concession with respect to

4 any liability, negligence, fault or wrongdoing as against any Released Parties,

5 in any civil, criminal, or administrative proceeding in any court, administrative

6 agency, or other tribunal. However, the settlement, this Agreement, and any

7 acts performed and/or documents executed in furtherance of or pursuant to this

8 Agreement and/or Settlement may be used in any proceedings as may be

9 necessary to effectuate the provisions of this Agreement. However, if this

10 Settlement Agreement is approved by the Court and the Final Settlement Date

11 occurs, any of the Parties or any of the Released Parties may file this Agreement

12 and/or the Final Judgment in any action that may be brought against such Party

13 or Parties in order to support a defense or counterclaim based on principles of

14 res judicata, collateral estoppel, release, good faith settlement, judgment bar or

15 reduction, or any other theory of claim preclusion or issue preclusion or similar

16 defense or counterclaim;

17 (c) is, may be deemed, or shall be construed against Plaintiffs, the Class, or each

18 or any of them, or against the Released Parties, or each or any of them, as an

19 admission or concession that the consideration to be given hereunder is equal

20 to, less than, or greater than that amount that could have or would have been

21 recovered after trial; and

22 (d) is, may be deemed, or shall be construed as or received in evidence as an

23 admission or concession against Plaintiffs, the Class, or each and any of them,

24 or against the Released Parties, or each or any of them, that any of Plaintiffs’

25 claims or allegations are with or without merit.

26 7.7 The headings used in this Agreement are used for the purpose of convenience only and

27 are not meant to have legal effect.

28 7.8 The Recitals are incorporated by this reference and are part of the Settlement
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CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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1 Agreement.

2 7.9 The waiver by one Party of any breach of this Agreement by any other Party shall not

3 be deemed as a waiver of any other prior or subsequent breaches of this Agreement.

4 7.10 This Agreement sets forth the entire agreement and understanding of the Parties with

5 respect to the matter set forth herein, and supersedes all prior negotiations, agreements, arrangements,

6 and undertakings with respect to the matters set forth herein. No representations, warranties, or

7 inducements have been made to any Party concerning this Settlement Agreement other than the

8 representations, warranties, and covenants contained and memorialized in such documents. This

9 Agreement may be amended or modified only by a written instrument signed by or on behalf of all

10 Parties or their respective successors-in-interest.

11 7.11 Except as otherwise provided in this Agreement, each Party shall bear its own fees and

12 costs.

13 7.12 Nothing in this Agreement, the negotiations, and the mediation relating thereto is

14 intended to or shall be deemed to constitute a waiver of any applicable privilege or immunity,

15 including without limitation the attorney-client privilege or work product immunity, by any Party.

16 7.13 Each counsel or other Person executing this Settlement Agreement or any related

17 settlement documents on behalf of any party to this Agreement warrants and represents that such

18 Person has the full authority to do so and has the authority to take appropriate action required or

19 permitted to be taken pursuant to the Agreement to effectuate its terms.

20 7.14 This Agreement may be executed in one or more counterparts. Signature by digital,

21 facsimile, or in PDF format will constitute sufficient execution of the Agreement. All executed

22 counterparts and each of them shall be deemed to be one and the same instrument. A complete set of

23 original executed counterparts shall be filed with the Court if the Court so requests.

24 7.15 This Settlement Agreement shall be binding on, and inure to the benefit of, the

25 successors and assigns of the Parties to this Agreement and the Released Parties.

26 7.16 The Court shall retain jurisdiction with respect to implementation and enforcement of

27 the terms of this Agreement, and all Parties to this Agreement submit to the jurisdiction of the Court

28 for purposes of implementing and enforcing the settlement embodied in this Agreement.
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CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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1 7.17 This Settlement Agreement and any claim, cause of action, or dispute among the Parties

2 arising out of or relating to this Settlement Agreement shall be governed by, interpreted under, and

3 enforced in accordance with the laws of the State of California without regard to any conflict-of-law

4 principles that may otherwise provide for the application of the law of another jurisdiction.

5 7.18 This Agreement is deemed to have been prepared by counsel for all Parties, as a result

6 of arm’s-length negotiations among the Parties with the aid of a neutral mediator. Whereas all Parties

7 have contributed substantially and materially to the preparation of this Agreement, it shall not be

8 construed more strictly against one party than another.

9 7.19 Where this Settlement Agreement requires notice to the Parties, such notice shall be

10 sent electronically to Plaintiffs’ Counsel and Niantic's Counsel listed below.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
COOLEY LLP
CLASS ACTION SETTLEMENT AGREEMENT
ATTORNEYS AT LAW
SAN FRANCISCO
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Case 3:16-cv-04300-JD Document 118-1 Filed 02/14/19 Page 1 of 10

Exhibit A
Case 3:16-cv-04300-JD Document 118-1 Filed 02/14/19 Page 2 of 10

UNITED STATES DISTRICT COURT


1
NORTHERN DISTRICT OF CALIFORNIA
2 SAN FRANCISCO DIVISION
3
Case No. 3:16-cv-04300-JD
4
5 CLASS ACTION
IN RE POKÉMON GO
6 [PROPOSED]
NUISANCE LITIGATION
7 ORDER GRANTING PRELIMINARY APPROVAL OF
SETTLEMENT AND DIRECTING NOTICE TO
8 SETTLEMENT CLASS
9
10
11 On March 14, 2019, a hearing was held on the motion of Plaintiffs Scott Dodich and Jayme

12 Gotts-Dodich; The Villas of Positano Condominium Association, Inc., on behalf of its members;

13 Jill M. Barbarise; Jason Sarkis; Melissa Perez; Congshan “Sam” Hao; Bruce Garton; Sally Rogers;

14 Deborah J. Pimentel; and Loren Morgan (“Plaintiffs”) for an order to: (1) certify the Settlement

15 Class, for settlement purposes only; (2) preliminarily approve the parties’ proposed class action

16 settlement (“Settlement”); (3) appoint Plaintiffs as Class Representatives and their counsel

17 Pomerantz LLP as Class Counsel; (4) approve the proposed Long-Form Notice and Short-Form

18 Notice and the proposed manner of dissemination to the Settlement Class; (5) set deadlines for

19 Plaintiffs’ Counsel to file their motion for final approval of the Settlement (“Final Approval

20 Motion”) and motion for an award of reasonable attorneys’ fees, costs and expenses (“Fee

21 Motion”), for Settlement Class Members to file objections to the Settlement Agreement or Fee

22 Motion, and for Plaintiffs’ Counsel to respond to any such objections; and (6) schedule a hearing on

23 the final approval of the Settlement and Fee Motion.

24 Having considered the papers on the motion, the arguments of counsel, and relevant legal

25 authority, and good cause appearing, the Court hereby ORDERS that the Motion for Preliminary

26 Approval of Class Action Settlement is GRANTED as follows:

27
28
{00311000;7 }
Case 3:16-cv-04300-JD Document 118-1 Filed 02/14/19 Page 3 of 10

1 I. Nature of Action

2 Plaintiffs allege that Niantic violated state trespass and nuisance laws by enticing and/or

3 causing Pokémon Go players to invade the use and enjoyment of, as well as enter, privately owned

4 property by placing virtual game locations, called “Pokéstops” and “Gyms,” on or near such

5 property without prior permission. Defendant Niantic, Inc. (“Niantic”) disputes all of Plaintiffs’

6 claims and denies any wrongdoing or legal violation.

7 II. Class Certification

8 The Court hereby certifies, for purposes of settlement only, and conditioned on the entry of

9 the Final Judgment and Order Approving Settlement, the following Settlement Class:

10 All persons in the United States who own or lease property within 100 meters of

11 any location that Niantic has designated, without prior consent of such property

12 owner or lessee, as a Pokéstop or Pokémon Gym in the Pokémon Go mobile

13 application.

14 The Court hereby finds, for purposes of settlement only, and conditioned on the entry of the

15 Final Judgment and Order Approving Settlement, that the Settlement Class satisfies all of the

16 requirements for certification under Federal Rules of Civil Procedure 23(a) and (b)(2):

17 (a) joinder of all Settlement Class Members in a single proceeding would be

18 impracticable, if not impossible, because of their numbers and dispersion;

19 (b) there are questions of law and fact common to the Settlement Class;

20 (c) Plaintiffs’ claims are typical of the claims of the Settlement Class that they seek

21 to represent for purposes of settlement;

22 (d) Plaintiffs have fairly and adequately represented the interests of the Settlement

23 Class and will continue to do so;

24 (e) Plaintiffs and the Settlement Class are represented by qualified, reputable

25 counsel who are experienced in preparing and prosecuting class actions; and

26 (f) Niantic has acted or refused to act on grounds that apply to the Settlement Class,

27 so that final declaratory and injunctive relief is appropriate to the Settlement

28 Class.

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2
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1 Accordingly, the Court certifies the Settlement Class under Federal Rule of Civil Procedure

2 23(b)(2) and appoints named Plaintiffs and their counsel as representatives of the Settlement Class.

3 III. Preliminary Approval of Settlement

4 The Court has reviewed the terms of the Settlement, including the injunctive relief provided

5 to the Settlement Class and the release of claims. Based on review of those papers and the Court’s

6 familiarity with this case, the Court finds and concludes that the Settlement is the result of good-

7 faith, prolonged, serious, and non-collusive arms’-length negotiations conducted after Class

8 Counsel had adequately investigated Plaintiffs’ claims and become familiar with their strengths and

9 weaknesses. The assistance of Greg Lindstrom of Phillips ADR, an experienced mediator, in the

10 settlement process supports the finding that the Settlement is non-collusive. It also appears to the

11 Court that settlement at this time will avoid substantial additional costs to all Parties, as well as

12 avoid the delay and the risks presented by further prosecution of issues either in the current or

13 separate litigation proceedings which are addressed by the Agreement. Based on all of these factors,

14 the Court concludes that the proposed Settlement meets the criteria for preliminary settlement

15 approval. The Settlement has no obvious defects and falls within the range of possible approval as

16 fair, adequate, and reasonable, such that notice to the Settlement Class is appropriate. Accordingly,

17 the Settlement is hereby preliminarily approved.

18 IV. Notice

19 The Court approves, as to form and content, the proposed Long-Form Notice and Short-

20 Form Notice, attached as Exhibits A-1 and A-2 respectively to the Settlement Agreement. The

21 Long-Form Notice fairly, plainly, accurately, and reasonably informs Settlement Class Members

22 about: (1) the nature of this action, the definition of the Class, the identity of Class Counsel, and the

23 essential terms of the Settlement; (2) Plaintiff’s forthcoming application for Attorneys’ Fees and

24 Costs and Class Representative Service Awards; (3) the Final Approval Hearing and the Court’s

25 procedures for final approval of the Settlement; and (4) the procedures for filing an objection to the

26 Settlement. The Short-Form Notice fairly, plainly, accurately, and reasonably informs Settlement

27 Class Members about the nature of this action, the definition of the Class, the essential terms of the

28 Settlement, the Final Approval Hearing, the Objection Deadline, and the identity of Class Counsel.

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1 The Short-Form Notice further directs Settlement Class Members to the Class Settlement Website

2 and to the Long-Form Notice for additional details about (1) the Settlement and the injunctive relief

3 it provides; (2) Class Counsel’s request for attorneys’ fees and costs; and (3) the procedures for

4 objecting to the Settlement or request for attorneys’ fees.

5 The proposed plan for disseminating notice likewise is a reasonable method calculated to

6 reach Settlement Class members who would be bound by the Settlement. The Long-Form Notice

7 will be posted on the Pokémon GO support website and on a case-specific settlement website. The

8 Short-Form Notice will be published in several nationally prominent news publications including

9 USA Today and two prominent publication targeted towards public parks and/or public park

10 systems. Accordingly, the Court finds and concludes that the proposed Notice Plan will provide

11 notice in a reasonable manner and satisfies the notice requirements of Rule 23(e) and all other legal

12 and due process requirements.

13 Promptly following the entry of this order, Class Counsel will prepare final versions of the

14 Long-Form Notice and Short-Form Notice, incorporating into them the relevant dates and deadlines

15 set forth in this order. Then, pursuant to the deadlines set forth at the end of this Order: (1) the

16 Long-Form Notice and Short-Form Notice (as revised) shall be posted on a case-specific website

17 established by Class Counsel (the “Class Settlement Website”), along with the Stipulation and all

18 relevant Court orders in this Action; (2) Niantic shall cause the Long-Form Notice to be posted on

19 the Pokémon GO support website; and (3) the Short-Form Notice will be published in several

20 nationally prominent news publications including USA Today and in two prominent publications

21 targeted towards public parks and/or public park systems. Defendant shall pay the cost of the Notice

22 Plan.

23 The foregoing is the best notice practicable under the circumstances and shall constitute due

24 and sufficient notice to the Settlement Class. As part of the motion for final approval of the

25 Settlement (“Final Approval Motion”), Plaintiffs shall submit declarations to the Court confirming

26 compliance with the notice provisions set forth above.

27
28

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1 V. CAFA Notice

2 The Court finds that Niantic has complied with the Class Action Fairness Act (“CAFA”).

3 Under CAFA, within “10 days after a proposed settlement of a class action is filed in court, each

4 defendant that is participating in the proposed settlement” must serve notice of the proposed

5 settlement upon “the appropriate State official of each State in which a class member resides and

6 the appropriate Federal official.” 28 U.S.C. § 1715. The Motion for Preliminary Approval of Class

7 Action Settlement was filed on February 14, 2019. Niantic has filed a Notice of Compliance with

8 CAFA attesting that, no later than February 24, 2019, notice of the Settlement containing all

9 documents required by 28 U.S.C. § 1715(b)(1)-(8) was served upon the Attorney General of the

10 United States of America and the appropriate state official in California and all the other states in

11 which a Class Member is known to reside.

12 VI. Final Approval Hearing

13 The Court hereby schedules a hearing (the “Final Approval Hearing”) to determine whether

14 to grant final approval to the Settlement as well as to rule on Class Counsel’s motion for an award

15 of reasonable attorneys’ fees, costs and expenses (“Fee Motion”). The Final Approval Hearing shall

16 take place at the date and time set forth at the end of this Order. The date of the Final Approval

17 Hearing may be changed without further notice to the Settlement Class. However, Plaintiffs are

18 responsible for promptly updating the Class Settlement Website with information about any such

19 change.

20 Pending the Final Approval Hearing, all proceedings in this Action, other than proceedings

21 necessary to carry out and enforce the terms and conditions of the Settlement Agreement and this

22 Order, are stayed. Additionally, the Court enjoins all Settlement Class Members from asserting or

23 maintaining any claims to be released by the Settlement Agreement until the date of the Final

24 Approval Hearing.

25 VII. Objections

26 Any Settlement Class Member may comment on or object to any aspect of the proposed

27 Settlement or Fee Motion, either on his or her own or through an attorney hired at his or her

28 expense, by following the procedures set forth herein. These procedures and requirements are

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1 intended to ensure the efficient administration of justice and the orderly presentation of any

2 Settlement Class Member’s objection to the Settlement Agreement, in accordance with the due

3 process rights of all Settlement Class Members.

4 Any Settlement Class Member who wishes to comment on or object to the Settlement or Fee

5 Motion must do so in writing. To be considered, any comment on or objection to the Settlement or

6 Fee Motion must be mailed, postmarked no later than the Objection Deadline set forth below,

7 to the Court at the following address: Class Action Clerk, United States District Court for the

8 Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102. It must also

9 include the following:

10 (a) the case name and number (In re Pokémon Go Nuisance Litigation, Case No. 3:16-cv-

11 04300-JD);

12 (b) the name, mailing address, e-mail address, and signature of the Settlement Class

13 Member and, if represented by counsel, of his or her counsel;

14 (c) the specific aspect of the Settlement or Fee Motion to which the Settlement Class

15 Member objects or wishes to comment upon, along with any legal support the

16 Settlement Class Member wishes to bring to the Court’s attention and any evidence the

17 Settlement Class Member wishes to introduce;

18 (d) A statement of membership in the Settlement Class that clearly identifies every property

19 that the Settlement Class Member contends is or was within 100 meters of any location

20 that Niantic has designated, without prior consent of such property owner or lessee, as a

21 Pokéstop or Pokémon Gym in the Pokémon Go mobile application,

22 (e) Documentary proof of ownership or leasehold interest for every property or properties

23 that the Settlement Class Member contends is within 100 meters of any location that

24 Niantic has designated, without prior consent of such property owner or lessee, as a

25 Pokéstop or Pokémon Gym in the Pokémon Go mobile application; and

26 Settlement Class Members who have timely commented on or objected to the Settlement in

27 writing may also appear at the Final Approval Hearing in person or by counsel and be heard, to the

28 extent allowed by the Court, either in support of or in opposition to the matters to be considered at

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1 the hearing. Any Settlement Class Member who wishes to appear at the Final Approval Hearing

2 must submit a Notice of Intention to Appear along with their written comment or objection. If a

3 Settlement Class Member intends to appear at the Final Approval Hearing through counsel, the

4 Notice of Intention to Appear must also identify all attorneys who will appear at the Final Approval

5 Hearing.

6 Any Class Member who does not timely submit such a written comment or objection will

7 not be permitted to raise such comment or objection or appear at the Final Approval Hearing,

8 except for good cause shown, and any Class Member who fails to object in the manner prescribed

9 by this order will be deemed to have waived, and will be foreclosed from raising, any such

10 comment or objection, except for good cause shown. The Court will only require substantial

11 compliance with the requirements for submitting an objection.

12 VIII. Scheduling Order

13 The following table summarizes all relevant dates and deadlines set forth in this Order:

14 Date Event
15 No later than ten (10) business The Long-Form Notice and Short-Form Notice (as revised)
16 days following the entry of this shall be posted on the Class Settlement Website, along with
17 Order the Stipulation and all relevant Court orders in this Action.
18 No later than ten (10) business
Niantic shall cause the Long-Form Notice to be posted on
19 days following the entry of this
the Pokémon GO support website.
20 Order
21 The Short-Form Notice will be published in several
22 No later than thirty (30) days nationally prominent news publications including USA
23 following the entry of this Order Today and also in at least one prominent publication that is
24 targeted towards public parks and/or public park systems.
25 Subject to the Court’s discretion.
26 The Parties recommend 45 Deadline for Plaintiffs to file Final Approval Motion and
27 calendar days before the Final Fee Motion
28 Approval Hearing.

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1 Date Event
2 Subject to the Court’s discretion.
3 The Parties recommend 30
Objection Deadline
4 calendar days before the Final
5 Approval Hearing.
6 Subject to the Court’s discretion.
7 The Parties recommend 15
Deadline for Plaintiffs to file reply briefs
8 calendar days before the Final
9 Approval Hearing.
10 ____________, 2019 at __:__ Final Approval Hearing
11 Upon application of the parties and good cause shown, the deadlines set forth in this
12 Preliminary Approval Order may be extended by order of the Court without further notice to the
13 Class. Class members must check the Class Settlement Website regularly for updates and further
14 details regarding extensions of these deadlines.
15 IX. Other Provisions
16 In the event the Court does not grant final approval of the Settlement, or for any reason the
17 Parties fail to obtain a Final Judgment and Order as contemplated by the Settlement Agreement, or
18 the Settlement Agreement is terminated pursuant to its terms for any reason or the Final Settlement
19 Date does not occur for any reason, then the Settlement Agreement and all orders and findings
20 entered in connection with the Settlement Agreement and the Settlement shall become null and void
21 and be of no further force and effect whatsoever, shall not be used or referred to for any purpose
22 whatsoever, and shall not be admissible or discoverable in this or any other proceeding.
23 This Order shall not be construed or used as an admission, concession, or declaration by or
24 against Niantic of any fault, wrongdoing, breach, or liability, and shall not be deemed to be a
25 stipulation as to the propriety of class certification, or any admission of fact or law regarding any
26 request for class certification, in any other action or proceeding, whether or not involving the same
27 or similar claims. Nor shall this Order be construed or used as an admission, concession, or
28 declaration by or against Plaintiffs or the other Settlement Class Members that their claims lack

{00311000;7 } [PROPOSED] PRELIMINARY APPROVAL ORDER —CASE NO. 3:16-cv-04300-JD


8
Case 3:16-cv-04300-JD Document 118-1 Filed 02/14/19 Page 10 of 10

1 merit or that the relief requested is inappropriate, improper, or unavailable, or as a waiver by any

2 Party of any defenses or claims he, she, or it may have in the Action or in any other proceeding.

3 Class Counsel and Defense Counsel are hereby authorized to use all reasonable procedures

4 in connection with the approval and administration of the Settlement Agreement that are not

5 materially inconsistent with this Preliminary Approval Order or the Settlement Agreement,

6 including making, without further approval of the Court, minor corrections or non-substantive

7 changes to the form or content of the Long-Form Notice or Short-Form Notice that they jointly

8 agree are reasonable or necessary.

9 SO ORDERED in the Northern District of California on _____________, 2019.

10
11 THE HON. JAMES DONATO
12 UNITED STATES DISTRICT JUDGE
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

{00311000;7 } [PROPOSED] PRELIMINARY APPROVAL ORDER —CASE NO. 3:16-cv-04300-JD


9
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 1 of 7

Exhibit A-1
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 2 of 7

NOTICE OF PROPOSED CLASS-ACTION SETTLEMENT

Attention: all persons in the United States who own or lease property within 100 meters of
any location that Niantic has designated, without prior consent, as a Pokémon gym or
Pokéstop in the Pokémon Go mobile app.

READ THIS NOTICE AND INSTRUCTIONS CAREFULLY. A CLASS ACTION


LAWSUIT MAY AFFECT YOUR LEGAL RIGHTS.

A federal court has authorized this Notice. This is not a solicitation from a lawyer.

A proposed settlement has been reached in a class action lawsuit about the location-based mobile
game Pokémon Go, styled In re Pokemon Go Nuisance Litigation, Case No. 3:16-cv-04300-JD
(N.D. Cal.). The lawsuit alleges that Niantic, Inc. (“Niantic”), the developer of Pokémon Go,
violated state trespass and nuisance laws by placing game items called “Pokémon Gyms” and
“PokéStops” on or near privately-owned property without prior permission and by enticing
and/or causing Pokémon Go players to trespass upon such properties and/or interfere with
property owners’ use and enjoyment of such properties. Niantic denies any and all wrongdoing
or legal violation. The settlement, if approved by the Court, will resolve the lawsuit by requiring
Niantic to follow a series of procedures, detailed below, intended to minimize interference with
the rights of private property owners.
The settlement does not provide any monetary relief, and it will not affect any claim for
monetary relief that you may otherwise have against Niantic.
If you are a Class member and the Settlement is approved by the Court, you cannot opt out from
the Settlement and you will be bound by the release of injunctive and equitable claims. If you
wish to object to the Settlement, you must do so by following the procedures outlined below.

Class Definition

Solely for purposes of effectuating this Settlement, Judge James Donato of the United States
District Court for the Northern District of California has conditionally certified a Settlement
Class for injunctive relief of:
All persons in the United States who own or lease property within 100
meters of any location that Niantic has designated, without prior
consent of such property owner or lessee, as a Pokéstop or Pokémon
Gym in the Pokémon Go mobile application.

Summary of the Proposed Settlement

The settlement provides only injunctive (non-monetary) relief to the Class. If approved by the
Court, it will require Niantic to follow a series of procedures outlined below.

{00311772;11 }
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 3 of 7

Specifically, for at least the next three years, Niantic has agreed to the following in connection
with Pokémon Go in the United States:
1. A straightforward complaint process for complaints about alleged trespass or
nuisance by Pokémon Go players:
a. Niantic will maintain a form on its website at
https://pokemongolive.com/en/report-location/ (or a similar URL) where you can
submit complaints to Niantic relating to any alleged interference with your private
property rights by people you believe to be Pokémon Go players, and where you
can request that Niantic remove from the Pokémon Go game any Pokémon Gym
or Pokéstop located near your property that you believe may be related to such
alleged interference.
b. For complaints properly submitted to Niantic through the form listed above
relating to nuisance or trespass or a request to remove a Pokéstop or Pokémon
Gym, Niantic will use commercially reasonable efforts to resolve the complaints
and communicate a resolution within no more than 15 days of wait time for the
requestor, for 95% of cases each year.
c. Niantic will agree to confirm compliance with these obligations by way of an
audit, at Niantic’s expense, conducted by an independent firm that Niantic will
select. Should the audit conclude that Niantic was materially non-compliant with
the settlement terms) during the audited period, a second audit will be conducted,
at Niantic’s expense, after 30 days’ notice.
d. For complaints where the resolution requires the removal of a Pokémon Gym or
Pokéstop from the Pokémon Go game, Niantic will use commercially reasonable
efforts to perform that removal within five business days of the communication
from Niantic agreeing to such action.
2. Removal of any Pokémon Gym or Pokéstop located on or within 40 meters of single-
family residential property:
a. Using the form on Niantic’s website listed above, you can request that any
Pokémon Gym or Pokéstop located on or within 40 meters of your single-family
residential property be removed from the Pokémon Go game. You can make this
request regardless of whether you have experienced any specific interference with
your private property rights by people you believe to be Pokémon Go players.
b. If Niantic determines that the complained-of Pokéstop or Pokémon Gym is on or
within 40 meters of your property, Niantic will use commercially reasonable
efforts to perform that removal within five business days of the communication
from Niantic agreeing to such action.

{00311772;11 }
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 4 of 7

3. Niantic will maintain a database of complaints so as to avoid problems recurring in


the future:
a. Niantic will use commercially reasonable efforts to maintain a database of
complaints related to nuisance or trespass and requests to remove a Pokémon
Gym or Pokéstop, for a minimum of 1 (one) year from the date of the complaint.
b. Where Niantic has previously removed a Pokémon Gym or Pokéstop from a
single-family residential property, and in cases where Niantic does so in the future
during the settlement period, Niantic will use commercially reasonable efforts to
avoid replacing that Pokémon Gym or Pokéstop on that same single-family
residential property.
4. Niantic will honor requests for limited hours of operation for Pokémon Gyms and
Pokéstops in parks:
a. Niantic will maintain a form on its website where public parks can request that the
Hours of Operation of a specific park be applied to any Pokémon Gym or
Pokéstop located within that park. Government parks authorities can also use this
form to request that the “Hours of Operation” of each park within their
jurisdiction be applied to any Pokémon Gyms and Pokéstops located within each
park.
b. At least once a year, Niantic will make a public post on its website reminding
parks that Niantic has agreed to limit the hours of operation of Pokémon Gyms
and Pokéstops within public parks upon request from the proper park
administrator.
5. Additional reminders to Pokémon Go players to be respectful of private property:
a. Niantic will add a new warning to the rotating warnings that appear at the launch
of the game (which currently include “do not trespass while playing Pokémon
GO” and “do not play Pokémon GO while driving”) that states: “Be courteous to
members of real-world communities as you play Pokémon GO” or similar.
b. For Raids which Niantic’s systems indicate will involve more than 10
participants, Niantic will use commercially reasonable efforts to cause a warning
message to appear on participants’ screens before the raid begins reminding
players to be courteous to others and respectful of their real-world surroundings.
6. Additional safeguards to avoid placing new Pokémon Gyms or Pokéstops in
locations that are likely to lead to issues with nuisance or trespass:
a. Niantic will add specific instructions to the current review form that Niantic’s
user-reviewers use to evaluate new locations nominated to become Pokémon
Gyms or Pokéstops that direct user-reviewers to increase scrutiny regarding any
proposed locations that may be on or within 40 meters of a private single-family
residential property or that appear to be in neighborhood parks. (For more

{00311772;11 }
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 5 of 7

information about Niantic’s process for evaluating new locations for Pokéstops,
see https://niantic.helpshift.com/a/pokemon-
go/?l=en&p=web&s=pokestops&f=what-makes-a-high-quality-pokestop.) At a
minimum, such instructions will include directions for the user-reviewer to
examine the proposed new location using a variety of sources, including but not
limited to mapping services maintained by private companies, such as Google
Maps.
b. After such review, Niantic will use commercially reasonable efforts to avoid
placing a new Pokémon Gym or Pokéstop on any property that appears to the
reviewer to be a single-family residential property.
c. Niantic will manually review a statistically significant percentage of new
locations nominated to become Pokémon Gyms or Pokéstops via a Niantic
employee or contractor for the principal purpose of trying to avoid placing new
Pokémon Gyms or Pokéstops in locations that are more likely to lead to issues
with nuisance or trespass.

Attorneys’ Fees

The attorneys at Pomerantz LLP, who represent the Class (“Class Counsel”), intend to seek up to
$8 million in attorneys’ fees and $130,000 in expenses for their work on the case. These
amounts, to the extent awarded by the Court, will be paid by Defendant separate and apart from
the other relief provided by the settlement. Class Counsel also intend to request service awards of
up to $1,000 for each of the eleven named plaintiffs who will serve as class representatives for
their time and effort working on this case for the benefit of the Class. Class Counsels’ motion for
attorneys’ fees and costs will be available after ________, 2019 by visiting [website] or by
contacting Class Counsel (contact information below).

Effect of the Settlement on the Rights of Class Members

If the Settlement is approved by the Court, all Class Members will release and forever discharge
claims for injunctive or equitable relief that were or could have had been brought against Niantic
arising out of Pokémon Go, the design of Pokémon Go, or the locations of Pokémon, Pokéstops,
or Pokémon Gyms in Pokémon Go.
The Settlement will only release claims for equitable or injunctive relief; it will not release
any rights any Class Member may otherwise have to sue Niantic for money damages.
Class members cannot opt out from the Settlement. If you are a Class member and the
Settlement is approved by the Court, you will be bound by the release of injunctive and/or
equitable claims. In other words, if you want to preserve your right to sue Niantic individually on
similar grounds in the future, you must object to the Settlement as described below.

{00311772;11 }
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 6 of 7

How to Comment on or Object to the Settlement

You have the right to file an objection to the settlement. You can’t ask the Court to order a
different settlement; the Court can only approve or reject the settlement. If the Court denies
approval, the proposed settlement will not take effect and the lawsuit will continue. If that is
what you want to happen, you must object.
Any objection to the proposed settlement must be in writing and sent only to the Court. If you
file a timely written objection, you may, but are not required to, appear at the Final Approval
Hearing, either in person or through your own attorney. If you appear through your own attorney,
you are responsible for hiring and paying that attorney. All written objections and supporting
papers must (a) clearly identify the case name and number (In re Pokemon Go Nuisance
Litigation, Case Number 3:16-cv-04300-JD), (b) be submitted to the Court either by mailing
them to the Class Action Clerk, United States District Court for the Northern District of
California, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102-3489, or by filing
them in person at any location of the United States District Court for the Northern District of
California, (c) state with specificity the grounds for the comment or objection, (d) state whether
the comment or objection applies only to the commentor or objector, to a specific subset of the
class, or to the entire class; and (e) be postmarked no later than _______, 2019.

Final Approval Hearing

The District Court will hold a Final Approval Hearing to decide whether to approve the
settlement. The Final Approval Hearing will be held on ____________ at __:__ at the United
States District Court for the Northern District of California, San Francisco Courthouse,
Courtroom 11, 19th Floor, 450 Golden Gate Avenue, San Francisco, CA 94102. At this hearing,
the Court will consider whether the settlement is fair, reasonable and adequate. If there are
objections or requests to be heard, the Court may consider them at the hearing. The Court may
also decide the amount of attorneys’ fees and costs to be paid to Class Counsel.
The date of the Final Approval Hearing may change without further notice to the class. You
should check the settlement website at www.____________.com to get the most current
information concerning the date of the hearing. You may also access the Court’s docket in this
case, for a fee, through the Court’s Public Access to Court Electronic Records (“PACER”)
system at https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?301537.

Further Information

This notice summarizes the proposed settlement. For the precise terms and conditions of the
settlement, please see the Settlement Agreement available at www.____________.com, by
contacting Class Counsel via the contact information provided below, by accessing the Court’s
docket through the PACER system at the URL provided above, or by visiting the office of the
Clerk for the United States District Court for the Northern District of California, San Francisco

{00311772;11 }
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 7 of 7

Division, 450 Golden Gate Avenue, San Francisco, CA 94102, between 9:00 a.m. and 4:00 p.m.,
Monday through Friday, excluding Court holidays.

To obtain a copy of this notice in alternate accessible formats, contact Class Counsel.
PLEASE DO NOT CONTACT THE COURT, THE COURT CLERK’S OFFICE, OR
NIANTIC’S COUNSEL WITH QUESTIONS ABOUT THIS SETTLEMENT.
Any questions must be directed to Class Counsel at (212) 661-1100 or the address below:
Pomerantz LLP
600 Third Avenue, 20th Floor
New York, New York 10016
www.pomlaw.com

{00311772;11 }
Case 3:16-cv-04300-JD Document 118-3 Filed 02/14/19 Page 1 of 2

Exhibit A-2
Case 3:16-cv-04300-JD Document 118-3 Filed 02/14/19 Page 2 of 2

NOTICE OF PROPOSED CLASS-ACTION SETTLEMENT

Attention: all persons in the United States who own or lease property within 100 meters of
any location that Niantic has designated, without prior consent, as a Pokémon Gym or
Pokéstop in the Pokémon Go mobile app.

READ THIS NOTICE AND INSTRUCTIONS CAREFULLY. A CLASS ACTION


LAWSUIT MAY AFFECT YOUR LEGAL RIGHTS.

A federal court has authorized this Notice. This is not a solicitation from a lawyer.

A proposed settlement has been reached in a class action lawsuit about the location-based mobile
game Pokémon Go, styled In re Pokémon Go Nuisance Litigation, Case No. 3:16-cv-04300-JD
(N.D. Cal.). The lawsuit alleges that Niantic, Inc. (“Niantic”), the developer of Pokémon Go,
violated state trespass and nuisance laws by placing game items called “Pokémon Gyms” and
“PokéStops” on or near privately-owned property without prior permission and by enticing
and/or causing Pokémon Go players to trespass upon such properties and/or interfere with
property owners’ use and enjoyment of such properties. Niantic denies any and all wrongdoing
or legal violation. The settlement, if approved by the Court, will resolve the lawsuit by requiring
Niantic to follow a series of procedures intended to minimize interference with the rights of
private property owners, including (1) maintaining a straightforward complaint process for
complaints about alleged trespass or nuisance by Pokémon Go players, (2) removal upon request
of any Pokémon Gym or Pokéstop located on or within 40 meters of single-family residential
property, and (3) a commitment to honor requests for limited hours of operation for Pokémon
Gyms and Pokéstops in parks.
The settlement does not provide any monetary relief, and it will not affect any claim for
monetary relief that you may otherwise have against Niantic.
For more information, please visit the settlement website at [URL], where you can find a more
detailed Notice with information about (1) the Settlement and the injunctive relief it provides; (2)
Class Counsel’s request for attorneys’ fees and costs; and (3) the procedures for objecting to the
Settlement or request for attorneys’ fees, as well as the Settlement Agreement.
The Court will hold a Final Approval Hearing on ____________ at __:__ to decide whether to
approve the settlement. If you are a Class member and the Settlement is approved by the Court,
you cannot opt out from the Settlement and you will be bound by the release of injunctive and
equitable claims. If you wish to object to the Settlement, you must do so no later than [Objection
Deadline] and in accordance with the procedures outlined in the Notice.
PLEASE DO NOT CONTACT THE COURT, THE COURT CLERK’S OFFICE, OR
NIANTIC’S COUNSEL WITH QUESTIONS ABOUT THIS SETTLEMENT.
Any questions must be directed to Class Counsel: Pomerantz LLP, 600 Third Avenue, 20th
Floor, New York, NY 10016, www.pomlaw.com, (212) 661-1100.

{00311843;3 }
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 1 of 8

Exhibit B
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 2 of 8

UNITED STATES DISTRICT COURT


1
NORTHERN DISTRICT OF CALIFORNIA
2 SAN FRANCISCO DIVISION
3
Case No. 3:16-cv-04300-JD
4
5 CLASS ACTION
IN RE POKÉMON GO NUISANCE
6 LITIGATION [PROPOSED]
7 ORDER APPROVING CLASS ACTION
SETTLEMENT AND ENTRY OF FINAL
8 JUDGMENT
9 This matter came on for hearing on ___________, 2019. The Court has considered the
10 Settlement Agreement dated February 14, 2019, ECF No. 174-3 (“Settlement”), any objections or
11 comments received regarding the Settlement, the record in the Action, and the arguments and
12 authorities of counsel. Good cause appearing,
13 IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
14 1. The Court, for purposes of this Order Approving Class Action Settlement and Entry of
15 Final Judgment (“Final Judgment”), adopts the terms and definitions set forth in the
16 Settlement.
17 2. The Court has jurisdiction over this Action, the subject matter of the Action, and all
18 parties to the Action, including Class Members, and venue is proper in this District.
19 3. The Court finds that the notice to the Class of the pendency of the Action and of this
20 Settlement, Class Counsel’s application for attorneys’ fees and expenses, and the
21 application for service awards for Class Representatives, as provided for in the
22 Settlement and by Order of this Court, has been implemented and fully complied with
23 the requirements of Federal Rule of Civil Procedure 23 and due process.
24 4. The Court finds that Niantic properly and timely notified the appropriate state and
25 federal officials of the Settlement, pursuant to the Class Action Fairness Act, 28 U.S.C.
26 §1715.
27 5. The Court approves the Settlement as fair, reasonable, and adequate and in the best
28
{00311000;4 }
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 3 of 8

1 interests of the Class Members. The Court has specifically considered the factors

2 relevant to class settlement approval set forth in Ninth Circuit precedents, including the

3 strength of Plaintiffs’ case; the risk, expense, complexity, and likely duration of further

4 litigation; the risk of maintaining class action status throughout trial; the relief provided

5 for in the Settlement; the extent of discovery completed and stage of the proceedings;

6 the experience and views of Class Counsel and the mediator; and the reaction of Class

7 Members to the proposed settlement. See, e.g. Churchill Village, L.L.C. v. General

8 Elec., 361 F.3d 566 (9th Cir. 2004). The Court has also specifically considered the

9 factors relevant to class settlement approval set forth in Fed. R. Civ. P. 23(e)(2),

10 including whether:

11 (A) the class representatives and class counsel have adequately represented the

12 class;

13 (B) the proposal was negotiated at arm's length;

14 (C) the relief provided for the class is adequate, taking into account:

15 (i) the costs, risks, and delay of trial and appeal;

16 (ii) the effectiveness of any proposed method of distributing relief to the

17 class, including the method of processing class-member claims;

18 (iii) the terms of any proposed award of attorney's fees, including timing

19 of payment; and

20 (iv) any agreement required to be identified under Rule 23(e)(3); and

21 (D) the proposal treats class members equitably relative to each other.

22 6. The Court has scrutinized the Settlement and negotiation history for any signs of

23 potential collusion, and finds that the Settlement is not the product of collusion. See,

24 e.g., In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011). This

25 finding is supported by, among other things: the fact that the Settlement was negotiated

26 by experienced, well-qualified counsel and with the active involvement and assistance of

27 a neutral, well-qualified mediator; the Settlement provides substantial benefits to Class

28 Members and such benefits are not disproportionate to the attorneys’ fees and expenses

{00311000;4 } [PROPOSED] ORDER AND FINAL JUDGMENT —CASE NO. 3:16-cv-04300-JD


2
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 4 of 8

1 sought by Class Counsel; the benefits provided to Class Members are appropriate under

2 the circumstances of this case; and the parties began negotiating regarding attorneys’

3 fees and expenses only after reaching an agreement regarding the key deal terms.

4 7. The injunctive relief set forth in Section 2.1 of the Settlement Agreement shall be in

5 effect for at least three (3) years from the Final Settlement Date. Specifically, Section

6 2.1 of the Settlement Agreement provides that, with respect to Pokémon GO in the

7 United States:

8 (a) For complaints properly received through Niantic’s website related to

9 nuisance, trespass, or a request to remove a POI, Niantic will use CRE to

10 resolve the complaints and communicate a resolution within no more than 15

11 (fifteen) days of wait time for the requestor, for 95% of cases each year.

12 (b) In cases where the complaining party in Section 2.1(a) is the owner of a

13 single-family residential property and the party reviewing the complaint

14 determines that the complained of POI is on or within 40 meters of that

15 property, Niantic will instruct that reviewer to remove the POI from the

16 property. In cases where the resolution specified in 2.1(a) or 2.1(b) requires

17 removal of a POI, Niantic will use CRE to perform that removal within five

18 business days of the communication from Niantic agreeing to such action.

19 (c) Niantic will use CRE to maintain a database of complaints related to

20 nuisance or trespass and requests to remove a POI, for a minimum of 1 (one)

21 year from the date of the complaint. Niantic will also continue to use CRE to

22 avoid the placement of new POI on single-family residential property.

23 (d) Niantic will maintain a form on its website whereby an owner of single-

24 family residential property can request that any POI on or within 40 meters

25 of their property be removed. In cases where Niantic has previously

26 removed a POI from the property of a single-family residential home, and in

27 cases where Niantic does so in the future during the settlement period,

28

{00311000;4 } [PROPOSED] ORDER AND FINAL JUDGMENT —CASE NO. 3:16-cv-04300-JD


3
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 5 of 8

1 Niantic agrees to use CRE to avoid re-placing that POI on that same single-

2 family residential property.

3 (e) For Raids which Niantic’s systems indicate will involve more than 10

4 participants, Niantic will use CRE to cause a warning message to appear on

5 participants’ screens before the raid begins reminding players to be courteous

6 to others and respectful of their real-world surroundings. Precise final

7 language will be determined by Niantic, in its sole discretion.

8 (f) Niantic will add specific instructions to the current review form that

9 Niantic’s user-reviewers use to evaluate new POI submissions that direct

10 user-reviewers to increase scrutiny regarding any proposed POI that may be

11 located on or within 40 meters of a private single-family residential property,

12 and POI that appear to be located in neighborhood parks. At a minimum,

13 such instructions will include directions for the user-reviewer to examine the

14 proposed POI using a variety of sources, including but not limited to

15 mapping services maintained by private companies such as Google Maps.

16 After such review, Niantic will use CRE to avoid placing the POI on any

17 property that appears to the reviewer to be a single-family residential

18 property.

19 (g) Niantic agrees that it shall manually review a statistically significant

20 percentage of new POI submissions via a Niantic employee or contractor for

21 the principal purpose of trying to avoid POI that are more likely to lead to

22 issues with nuisance or trespass.

23 (h) Niantic agrees to maintain a mechanism for parks whereby it provides parks

24 the opportunity to request that a specific park’s Hours of Operation be

25 applied to POI that are located within that park. Niantic also agrees to

26 comply with requests related to existing POI located in parks from

27 governmental parks authorities to apply Hours of Operation to POI located in

28 parks within their jurisdiction. In addition to any notice of the settlement that

{00311000;4 } [PROPOSED] ORDER AND FINAL JUDGMENT —CASE NO. 3:16-cv-04300-JD


4
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 6 of 8

1 Plaintiffs determine is required per Section 2.4 below, at least once in each of

2 the three years of the settlement period, Niantic will make a public post on its

3 website that includes a notification that Niantic will limit the hours of

4 operation of POI within public parks upon request from the proper park

5 administrator.

6 (i) Niantic will agree to confirm compliance with its obligations under Section

7 2.1(a) above by way of an audit, at Niantic’s expense, conducted by an

8 independent firm that Niantic will select, at the time of Plaintiffs’ choosing

9 during the 3 (three) year period, with at least 30 days’ notice to Niantic

10 before the commencement of the audit. Should the audit conclude that

11 Niantic was materially non-compliant with the settlement terms in Section

12 2.1(a) during the audited period, a second audit will be conducted, at

13 Niantic’s expense, during the settlement period, with at least 30 days’ notice

14 to Niantic before commencement of the second audit.

15 (j) Niantic will add a new warning to the rotating warnings that appear at the

16 launch of the game (which currently include “do not trespass while playing

17 Pokémon GO” and “do not play Pokémon GO while driving”) that states:

18 “Be courteous to members of real-world communities as you play Pokémon

19 GO” or something similar, with final specific language subject to Niantic’s

20 sole discretion.

21 8. The Parties and Settlement Class Members are bound by the terms and conditions of the

22 Settlement. Upon the Final Settlement Date, the members of the Class and their present,

23 former, and future heirs, executors, administrators, representatives, agents, attorneys,

24 partners, predecessors-in-interest, successors, assigns, and legatees, fully, finally and

25 forever release, relinquish, and discharge the Released Parties from all claims for

26 equitable, injunctive or declaratory relief based on the facts that were or could have been

27 alleged in the SAC, including but not limited to injunctive claims arising out of or

28 relating to any of the facts, transactions, events, occurrences, acts, disclosures,

{00311000;4 } [PROPOSED] ORDER AND FINAL JUDGMENT —CASE NO. 3:16-cv-04300-JD


5
Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 7 of 8

1 statements, misrepresentations, omissions, failures to act, or other conduct that was or

2 could have been alleged, including, but not limited to, claims regarding Niantic’s

3 conduct, practices, disclosures, terms, and policies relating to the placement of POI

4 spawning of Pokémon, and design of the Pokémon GO game through the date on which

5 the Court enters the Approval Order. The foregoing release includes all claims for

6 equitable, injunctive or declaratory relief that Class Members do not know or suspect to

7 exist, which, if known by them might affect their decision not to object to the release of

8 the Released Parties for the claims specified in this Section or might affect their decision

9 not to object to the Settlement Agreement. Upon the Final Settlement Date, Class

10 Members shall be deemed to have, and shall have, expressly waived and relinquished, to

11 the fullest extent permitted by law, the provisions, rights, and benefits of Section 1542

12 of the California Civil Code, and any law or legal principle of similar effect in any

13 jurisdiction, whether federal or state. Section 1542 of the California Civil Code

14 provides as follows:

15 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE

16 CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO

17 EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE

18 RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE

19 MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE

20 DEBTOR OR RELEASED PARTY.

21 9. Class Members individually and on behalf of each of their present, former, and future

22 heirs, executors, administrators, representatives, agents, attorneys, partners,

23 predecessors-in-interest, successors, assigns, and legatees, fully understand that the facts

24 upon which this Agreement is executed may hereafter be other than or different from the

25 facts now believed by Class Members, and/or Plaintiffs’ Counsel or other counsel for

26 Class Members to be true and expressly accept and assume the risk of such possible

27 difference in facts and agree that this Agreement shall remain effective notwithstanding

28 any such difference in facts. Class Members acknowledge and agree that this waiver is

{00311000;4 } [PROPOSED] ORDER AND FINAL JUDGMENT —CASE NO. 3:16-cv-04300-JD


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Case 3:16-cv-04300-JD Document 118-4 Filed 02/14/19 Page 8 of 8

1 an essential and material term of this release and the settlement that underlies it and that

2 without such waiver the settlement would not have been accepted. The release set forth

3 in this section does not include any claim for monetary relief.

4 10. The Action and all claims asserted in the Action are dismissed with prejudice as to the

5 Class Representatives and all Class Members.

6 11. The Court reserves exclusive and continuing jurisdiction over the Action, the Class

7 Representatives, the Class Members, and Niantic for the purposes of supervising the

8 implementation, enforcement, and construction of the Settlement and this Judgment.

9 12. This Judgment shall not be construed or used as an admission, concession, or declaration

10 by or against Niantic of any fault, wrongdoing, breach, or liability, and shall not be

11 deemed to be a stipulation as to the propriety of class certification, or any admission of

12 fact or law regarding any request for class certification, in any other action or

13 proceeding, whether or not involving the same or similar claims. Nor shall this

14 Judgment be construed or used as an admission, concession, or declaration by or against

15 Plaintiffs or the other Settlement Class Members that their claims lack merit or that the

16 relief requested is inappropriate, improper, or unavailable, or as a waiver by any Party of

17 any defenses or claims he, she, or it may have in the Action or in any other proceeding.

18 SO ORDERED in the Northern District of California on _____________, 2019.

19
20 THE HON. JAMES DONATO
21 UNITED STATES DISTRICT JUDGE
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{00311000;4 } [PROPOSED] ORDER AND FINAL JUDGMENT —CASE NO. 3:16-cv-04300-JD


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