Beruflich Dokumente
Kultur Dokumente
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
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
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
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
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,
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
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
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.
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
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,
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
10 P. The Parties have investigated the facts and analyzed the relevant legal issues in regard
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
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
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
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
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
27 construed in relevant case law and other relevant authorities, such as Black’s Law Dictionary.
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
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.
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
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
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,
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
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
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
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
17 will instruct that reviewer to remove the POI from the property. In cases where
19 will use CRE to perform that removal within five business days of the
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
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
1 Niantic does so in the future during the settlement period, Niantic agrees to use
3 property.
4 (e) For Raids which Niantic’s systems indicate will involve more than 10
9 (f) Niantic will add specific instructions to the current review form that Niantic’s
14 will include directions for the user-reviewer to examine the proposed POI using
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
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
25 POI that are located within that park. Niantic also agrees to comply with
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
5 (i) Niantic will agree to confirm compliance with its obligations under Section
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
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
19 discretion.
20 2.2 The injunctive relief specified in Section 2.1(a) through (j) shall be in effect for at least
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
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
7 (a) The Parties agree to conduct a good faith, confidential mediation of the Named
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
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,
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
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
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
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.
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,
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
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
19 (a) find that the Court has personal jurisdiction over the Class and that the Court
21 (b) certify the Class under Federal Rule of Civil Procedure 23(b)(2) for settlement
22 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
28 and provisions; and declare the Agreement to be binding on, and have res
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1 judicata and preclusive effect in, all pending and future lawsuits or other
3 (f) find that Plaintiffs’ Counsel adequately represented the Class for purposes of
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
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
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
16 (k) without affecting the finality of the Final Judgment for purposes of appeal,
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
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’
15 but not limited to any declaration or brief filed in support of the motion for
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
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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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
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
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
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
23 (a) is, may be deemed, or shall be used, offered or received against the Released
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
2 (b) is, may be deemed, or shall be used, offered, or received against the Released
6 agency, or other tribunal. However, the settlement, this Agreement, and any
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
14 res judicata, collateral estoppel, release, good faith settlement, judgment bar or
16 defense or counterclaim;
17 (c) is, may be deemed, or shall be construed against Plaintiffs, the Class, or each
20 to, less than, or greater than that amount that could have or would have been
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’
26 7.7 The headings used in this Agreement are used for the purpose of convenience only and
28 7.8 The Recitals are incorporated by this reference and are part of the Settlement
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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
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
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
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
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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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
9 7.19 Where this Settlement Agreement requires notice to the Parties, such notice shall be
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Exhibit A
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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
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
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’
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
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):
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
22 (d) Plaintiffs have fairly and adequately represented the interests of the Settlement
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,
28 Class.
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.
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,
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.
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
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
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
27
28
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
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
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
4 Any Settlement Class Member who wishes to comment on or object to the Settlement or Fee
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
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
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
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
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
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
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
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.
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
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
10
11 THE HON. JAMES DONATO
12 UNITED STATES DISTRICT JUDGE
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Exhibit A-1
Case 3:16-cv-04300-JD Document 118-2 Filed 02/14/19 Page 2 of 7
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.
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.
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
{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).
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
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.
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
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.
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
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;
14 (C) the relief provided for the class is adequate, taking into account:
18 (iii) the terms of any proposed award of attorney's fees, including timing
19 of payment; 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
28 Members and such benefits are not disproportionate to the attorneys’ fees and expenses
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:
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
15 property, Niantic will instruct that reviewer to remove the POI from the
17 removal of a POI, Niantic will use CRE to perform that removal within five
21 year from the date of the complaint. Niantic will also continue to use CRE to
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
27 cases where Niantic does so in the future during the settlement period,
28
1 Niantic agrees to use CRE to avoid re-placing that POI on that same single-
3 (e) For Raids which Niantic’s systems indicate will involve more than 10
8 (f) Niantic will add specific instructions to the current review form that
13 such instructions will include directions for the user-reviewer to examine the
16 After such review, Niantic will use CRE to avoid placing the POI on any
18 property.
21 the principal purpose of trying to avoid POI that are more likely to lead to
23 (h) Niantic agrees to maintain a mechanism for parks whereby it provides parks
25 applied to POI that are located within that park. Niantic also agrees to
28 parks within their jurisdiction. In addition to any notice of the settlement that
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
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
13 Niantic’s expense, during the settlement period, with at least 30 days’ notice
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:
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,
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
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:
21 9. Class Members individually and on behalf of each of their present, former, and future
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
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
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
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
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
15 Plaintiffs or the other Settlement Class Members that their claims lack merit or that the
17 any defenses or claims he, she, or it may have in the Action or in any other proceeding.
19
20 THE HON. JAMES DONATO
21 UNITED STATES DISTRICT JUDGE
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