Full opinion text
MEMORANDUM AND ORDERS Jack B. Weinstein, Senior United States District Judge: TABLE OF CONTENTS I.Introduction ... 125 II. Facts ... 126 A. Prior Practice of Defendants ... 126 B. Present Practice of Defendants ... 127 III. Procedural History .., 128 IV. Proposed Settlement ... 129 V. Law ... 130 VI. Preliminary approval is appropriate ... 131 A. Generally, settlements that can be characterized as “coupon” settlements are disfavored .,. 131 B. The special nature of the class in this case and social utility that has already been achieved make the proposed coupon settlement appropriate ... 133 C. Fee Award ... 133 VII. Conclusion ... 134 Appendix 1: Settlement Agreement and Release, Claim Form, Proposed Preliminary and Final Approval Orders, and Notices to Class Members ..; 135 Appendix 2: Second Amended Class Action Complaint ... 172 Appendix 3: Signed Order Granting Motion for Preliminary Approval of Class Action, Certifying the Class and Subclasses, Directing Dissemination of Class Notice, Setting Hearing on Fairness of Settlement, and Setting Dates ... 184 I. Introduction This putative class action involves the purchase of internet service connections (“Wi-Fi”) on air flights. Denied was defendants’ motion to transfer venue, compel arbitration and dismiss; found inadequate was notice, given through a computer hyperlink, of waiver of normal court rights. Berkson v. Gogo LLC, 97 F.Supp.3d 359, 403-05 (E.D.N.Y.2015) (“Berkson I”). That decision and a contrary district court decision, Nicosia v. Amazon.com, 84 F.Supp.3d 142 (E.D.N.Y.2015), have been appealed. Notice of Appeal, Apr. 28, 2015, ECF No. 61; Notice of Appeal, Nicosia v. Amazon.com, No. 14-CV-4513 (E.D.N.Y. Feb. 13, 2015). This memorandum and order does not cover those issues; it was not raised by . the pleadings. Cf. Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 17-19 (2d Cir.1981) (“claims ,.. which were not within the description of claims assertable by the class” are not part of settlement). The parties have now agreed on a settlement. Preliminary approval of the proposed settlement appears to be appropriate. II. Facts A detailed factual background is in the court’s April 8, 2015 memorandum and order. Berkson I, 97 F.Supp.3d at 368-76. It is deemed incorporated in this memorandum and order. Gogo is the dominant provider of Wi-Fi access on domestic airlines. Its website advertised the cost of a monthly Wi-Fi subscription and the cost of a single day pass. Monthly access cost approximately $40; a day pass went for about $10. Plaintiffs allege that, when potential customers registered for the monthly service, no notice was given about a recurring monthly charge. Gogo, it is claimed, obtained no signature or affirmative authorization to charge plaintiffs for recurring fees if they failed to cancel the service by telephone. Nor did Gogo, it is claimed, send any communication to plaintiffs on a monthly basis, as is customary, to notify them of continuing new charges if the service was not cancelled by the subscriber. After the month-long period from the date of original sign-up ended, Gogo continued to bill each of plaintiffs’ credit cards monthly. A. Prior Practice of Defendants In August 2011, when named plaintiff Welsh claims to have purchased Gogo’s inflight Wi-Fi, a potential user of the service was not required by Gogo to affirmatively assent to the website’s “Terms of Use” when creating an account. An image of the sign-up page is set out below: Id. at 372 (enhancements added). If a user clicked on the underlined phrase “Terms of Use,” a hyperlink would have been activated, connecting him to a separate screen where, after scrolling down, he or she would have found detailed choice of law and venue notice. In September 2012, when plaintiff Berkson claims to have purchased Gogo’s Wi-Fi service, there was no arbitration provision in the “terms of use.” It was insértéd in December 2012. Id. at 376. B. Present Practice of Defendants After the case was brought, defendants’ practice was changed to alert the customer of continuing costs. The new interface on defendants’ website, displays an easy-to-read matrix that clearly identifies which of its products automatically renews each month, and which do not. The new interface is a significant and meaningful improvement in warning consumers of their financial obligations to defendants. See infra Parts VI. A and B; Expert Report of Dr. Michael A. Kamins, Nov. 10, 2015, ECF No. 93-1 (“Kamins Report”), at ¶ 9. The present sign-up page is:, Kamins Report at App’x C (enhancements added). There has not been any change to defendants’ website with respect to the “terms of use” hyperlink. III. Procedural History Named plaintiff Adam Berkson filed a complaint on February 25, 2014.against Gogo LLC and Gogo Inc. (collectively, “Gogo,” “the company,” or “defendants”). Class Action Compl., Feb. 25, 2014, ECF No. 1. On behalf of a New York sub-class, he alleged violation of New York General Business Law § 349, and, on behalf of a nationwide class, he claimed breach of the implied covenant of good faith and fair dealing, and violation of various consumer protection statutes. Id. A cause of action on behalf of the nationwide class, unjust enrichment/was alleged in the alternative. Id. On the same day, a motion for class certification-was filed. Pl.’s Mot. for Class Certification, Feb. 25, 2014, ECF No. 5. On April 4, 2014, defendants filed a motion to compel arbitration or transfer the action to the Northern District of Illinois, or,' alternatively, to dismiss the action for lack of standing or failure to state a claim. Notice of Mot., Apr. 4, 2014, ECF No/ 9 (“Defs,’ Mot. to Dismiss”). Plaintiff Berkson, joined by plaintiff Welsh, filed an amended class action complaint adding ¡three new causes of action for purported violations of several California statutes on April 24, 2014. Am. Class Action Compl., Apr. 24, 2014, ECF No. 17. On May 12, 2014, defendants again filed a motion to compel arbitration or transfer the action to the Northern District of Illinois, or, alternatively, to dismiss the amended complaint for lack of standing or failure to state a claim. Defs.’ Mots, to Dismiss, May 12, 2014, ECF No.'21.' '" Oral argument was heard on October 15, 2014. See Hr’g Tr., Oct. 15, 2014. Following a period for additional discovery, the parties submitted supplemental, briefing. Order, Feb. 23, 2015, ECF No. 53. On April 8, 2015, the court denied defendants’ motions. See Berkson I. The parties then engaged in settlement discussions with the help of a settlement adviser they chose. Plaintiffs, on consent, have moved for an order (1) certifying a settlement class pursuant to' Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure for the purpose of consummating the agreement, (2) preliminarily approving it, (3) ordering the form and manner of notice, and (4) setting a date and time for a fairness hearing. See Notice of Pis.’ Unopposed Mot. for Prelim. Approval of Settlement, Prelim'. Certification of Settlement Class, & Approval of Notice Plan, Oct. 8, 2015, ECF No. 85. Annexed to plaintiffs’ motion was a draft Settlement Agreement and Release. See Settlement Agreement "& Release, Oct. 8, 2015, ECF No. 85-2 (“Settlement Agreement”). Plaintiffs' filed an amended motion on December 1, 2015, seeking leave to file a second i amended complaint. See Amended Notice of Pis.’ Unopposed Mot. for Prelim. Approval of Settlement, Leave to File a Second Amended Compl., Prelim. Certification of Settlement Class, & Approval of Notice Plan, Dec. 1, 2015, ECF No. 104. Relevant papers and orders filed in connection with plaintiffs’ motion are appendices 1, 2, and 3 to this opinion. ' A preliminary hearing on plaintiffs’ motion was conducted on November 12, 2015 and December 4,2015* IV. Proposed Settlement The Settlement Agreement proposes the creation of two classes, an Initial Class and a Supplemental Class. ■ The Initial Class would include “All Gogo Customers who, during the Initial Class Period, subscribed to a Monthly Pass but only used the Gogo Service; during the first month of their Subscription Period.” The Initial Class Period is defined as April 1, 2010, to December 31, 2012. The Supplemental Class would include “All Gogo Customers who, during the Supplemental Class Period, subscribed to a Monthly Pass but only used the Gogo Service during the first month of their subscription.” The Supplemental Class Period is defined as January 1, 2013, to March 31, 2015. The significance of the January 1, 2013 date dividing the two proposed classes is-that it was on that date that an arbitration clause was added to defendants’ “terms of use.” The parties contend that the addition of the arbitration clause reduces the strength of a customer’s claim to damages from litigation, warranting the creation of a separate class for settlement purposes. See Hr’g Tr., Nov. 12, 2015, at 51:14-21. Compensation for class members with promotional codes (“promo codes”) allows for limited “free” use of Gogo’s service. The length of free use awarded varies based on which class the member is in and how many months of unused service the member had. For members in the Initial Class, the Settlement Agreement creates three tiers: • 1 to 4 months of unused Gogo Service — 1 One-Day Pass; • 5 to 8 months of unused Gogo Service — 4 One-Day Passes; • 9 or more months of unused Gogo Service&emdash;6 One-Day Passes. For members in the Supplemental Class, the Settlement Agreement awards each member 1 One-Hour Pass. Each promo code would be valid for one year from the Final Settlement Date. The codes would be transferrable and could be aggregated to permit more than one hour or day of use at a time. Class members would need to complete a claim form and certify under penalty of perjury that she or he (i) purchased a Monthly Pass during the Initial Class Period or Supplemental Class Period and used the Gogo Service only during the first month of the subscription period, (ii) had no knowledge of the recurring monthly charges for the Monthly Pass, and (iii) personally paid the recurring Monthly Pass charge(s) and was not reimbursed by a third party or refunded by Gogo. The Settlement Agreement provides up to $5,000 to each named plaintiff as a service award. Up to $750,000 as a fee to class counsel is also agreed upon. V. Law “A district court may approve a settlement of a class action only if it determines that the settlement is ‘fair, adequate, and reasonable, and not a product of collusion.’” In re Sony Corp. SXRD, 448 Fed.Appx. 85, 86 (2d Cir.2011) (quoting Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir.2000)). The determination begins with a preliminary review by the court of the fairness of the proposed settlement agreement. Passafiume v. NRA Grp., LLC, 274 F.R.D. 424, 430 (E.D.N.Y.2010) (citing In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y.1997)); see also Manual for Complex Litigation § 21.632 (4th ed.). Preliminary approval of a proposed settlement is appropriate where it is the result of serious, informed, non-collusive (“arm’s length”) negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies (such as unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for attorneys), and where the settlement appears to fall within the range of possible approval. Cohen v. J.P. Morgan Chase & Co., 262 F.R.D. 153, 157 (E.D.N.Y.2009). “[W]here the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant .preferential treatment to class representative or segments of the class and falls within the reasonable range of approval, preliminary approval is granted.” Bourlas v. Davis Law Assocs., 237 F.R.D. 345, 355 (E.D.N.Y.2006) (quoting In re Nasdaq Antitrust Litig., 176 F.R.D. at 102). Once the court has made a preliminary determination that the settlement agreement is fair or within the range of reasonableness, Federal Rule of Civil Procedure 23(e) sets' forth the procedures that must be followed: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (5) Any class member may object to the proposal if it requires court-approval under this subdivision (e); the objection may be withdrawn only with the court’s approval. Fed. R. Civ. P. 23(e). If the proposed class settlement includes the awarding of “coupons,” “the court may approve the proposed settlement only after a hearing to determine whether, and making a written finding that, the settlement is fair, reasonable, and adequate for class members.” 28 U.S.C. § 1712(e). At this second stage, “[t]o evaluate whether a class settlement is fair,, a district court examines (1) the negotiations that led up to the settlement, and (2) the substantive terms of the settlement.” In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-MD-1775, 2009 WE 3077396, *6 (E.D.N.Y. Sept. 25, 2009) (citing In re Holocaust Victim Assets Litig., 105 F.Supp.2d 139, 145 (E.D.N.Y.2000)). The fairness of the substantive terms of the proposed settlement is governed .by Grinnell factors. They include: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining, the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000). It is proper to consider as a tenth factor the social utility of the proposed settlement. Meeting the tenth requirement of social utility may entail going beyond the four-corners of the complaint, considering issues related to the specific claims alleged, and evaluating how the proposed settlement will impact those issues and persons not in the class. It includes such matters as the effect of arbitration, venue and choice of law clauses previously ruled upon. See Berkson I. Only after considering each of these ten factors may this court approve this class action settlement agreement. VI. Preliminary approval is appropriate A. Generally, settlements that can be characterized as “coupon” settlements are disfavored In the class action settlement context, “a coupon is a discount on another product or service offered by the defendant in the lawsuit, with the critical factor being that the nonpecuniary benefit forces future business with the defendant.” William B. Rubenstein, 4 Newberg on Class Actions § 12:11 (5th ed.2015); see, e.g., In re Sw. Airlines Voucher Litig., 799 F.3d 701, 706 (7th Cir.2015) (rejecting narrow definition of coupon, finding term applies to vouchers for a free product). ■Coupon settlements have been widely criticized. See, e.g., Eubank v. Pella Corp., 753 F.3d 718, 725 (7th Cir.2014) (identifying the use of coupons as “a warning sign of a questionable settlement”); Figueroa v. Sharper Image Corp., 517 F.Supp.2d 1292, 1321 (S.D.Fla.2007) (“coupon settlements have been severely criticized by commentators in the field ... [and] are strongly disfavored by the Attorneys General of most of the states”). Professor Christopher Leslie explained that the “three major problems with coupon settlements” are: first, “it is doubtful that coupon settlements provide meaningful compensation to most class members”; second, “coupon settlements often fail to disgorge ill-gotten gains from the defendant”; and third, “coupon settlements ... raise concerns because they may require the class members to do future business with the defendant in order to receive compensation.” Christopher Leslie, The Need to Study Coupon Settlements in Class Action Litigation, 18 Geo. J. Legal Ethics 1395,1396-97 (2005); see also New-berg on Class Actions, supra, at § 12:8 (identifying the problems with coupon settlements to include that they “may offer scant compensation, [are] unlikely to disgorge or deter, and compel a class to continue its relationship with an alleged wrong-doer,” and summarizing the status of the use of coupons in class settlements as “generally disfavored”); Nat’l Ass’n of Consumer Advocates, Standards and Guidelines for■ Litigating and Settling Consumer Class Actions, 24-28 (3d ed.2014) (discussing problems with, coupon class settlements). Of particular note is Congress’s explicit disfavoring of coupon settlements. The Senate Committee on the Judiciary, in its report on The Class Action Fairness Act of 2005 (“CAFA”), explained that one of the problems that CAFA was designed to address was “[a]busive class action settlements in which plaintiffs receive promotional coupons or other nominal damages while class counsel receive large fees...,” S.Rep. No. 109-14, at 33 (2005), as reprinted in 2005 U.S.C.C.A.N. 3, 33. Part of the solution CAFA provided to the coupon problem was the inclusion of a consumer class action, bill of rights in which Congress made the following finding: “Class members often receive little or no benefit from class actions, and are sometimes harmed, such as where — (A) counsel are awarded large fees, while leaving class inembers with coupons or other awards of little or no value Class Action Fairness Act of 2005, Pub.L. No. 109-2, § 2(a)(3), 119 Stat. 4 (2005) (emphasis added). Often rejected are proposed settlements that offer injured class members coupon-like compensation. See, e.g., Reed v. Cont’l Guest Servs. Corp., No. 10-CV-5642, 2011 WL 1311886, *3 (S.D.N.Y. Apr. 4, 2011) (discussing problems with proposed settlement agreement that provided vouchers and discount codes); Wilson v. DirectBuy, Inc., No. 09-CV-590, 2011 WL 2050537, *6-7 (D.Conn. May 16, 2011) (denying final approval of settlement agreement-that provided for a period of free membership to defendant’s service); In re Compact Disc Minimum Advert. Price Antitrust Litig., 216 F.R.D. 197, 219-222 (D.Me.2003) (denying final approval of settlement agreement that created a discount program of insignificant value that only some of the class members might want to, or could, use). The principal component of the proposed Settlement Agreement is the provision of promo codes. Plaintiff argues that the promo codes that will be the primary part of the Settlement Agreement “are not discounts or coupons in any manner.” Mem. of Law in Supp. ■ of Pis.’ Unopposed Mot. for Prelim. Approval of Settlement, Prelim. Certification of Settlement Class, and Approval of Notice Plan, Oct. 8,2015, ECF No. 85-1, at 4. Promo codes in this case do have the flavor and scent of coupohs. As part of the final settlement, the court suggests that the administrator' ’ carrying out notice and other execution requirements attempt to set up a market for the promo codes enabling recipients to convert them to a cash equivalent. Such a market will supplement existing online marketplaces such as E-Bay and Craigslist by providing a forum where promo code recipients will be able exchange their codes for cash without needing to find a thirdr party purchaser. The market would act as a cashier’s desk. This market would tak.q the curse of a “coupon” characterization out of the case. The creation of such a market is not essential to approval of the present settlement. B. The special nature of the class in this case and social utility that has already been achieved make the proposed coupon settlement appropriate The proposed settlement is found to be the result of serious, informed, and non-collusive negotiations. The parties utilized the services of Hon. Arthur J. Boylan, former Chief Magistrate Judge for the United States District Court for the District of Minnesota, during their, settlement negotiations. See Hr’g Tr., Nov. 12, 2015, at 3:25-4:3. Although a cash payment would be preferable, a settlement which provides what might be characterized as coupons as a primary benefit is “within the range of possible approval.” Cohen, 262 F.R.D. at 157. Specifically, the parties submitted convincing evidence that a significant portion of the class consists of repeat consumers who are sophisticated business persons likely to use defendants’ service and the promo codes during the next year. See, e.g., Hr’g Tr., Nov. 12, 2015, at 17:10-22. The promo codes are likely to -provide meaningful compensation. See Letter from Anthony J. Laura, Dec. 1,- 2015, ECF No. 107; "Deck of Richard Simmons, Dec. 1, 2015, ECF No. 106. The action has already achieved a social utility. In response to the instant suit, defendants have changed their website to clearly indicate that their plans are automatically renewing and will result in a recurring monthly charge. That this change has already been made obviates the need for injunctive relief as part of the settlement. The opinion of April 8, 2015 ruling the references to arbitration, venue and choice of law unenforceable remain in force. It is a factor to be relied upon in deciding reasonableness of the limited relief provided by the settlement. C. Fee Award The proposed Settlement Agreement provides for incentive awards to each named plaintiff in the amount of $5,000. Such fee awards are subject to strict scrutiny and are based upon the named plaintiffs’ effort in the case: The guiding standard in determining an incentive award is broadly stated as being the existence of special circumstances including the personal risk (if any) incurred by the plaintiff-applicant in becoming and continuing as a litigant, the time and effort expended by that plaintiff in assisting in the prosecution of the litigation or in bringing to bear added value (e.g., factual expertise), any other burdens sustained by that plaintiff in lending himself or herself to the prosecution of the claim, and, of course, the ultimate recovery. Roberts v. Texaco, Inc., 979 F.Supp. 185, 200 (S.D.N.Y.1997) (granting incentive award where named . plaintiffs faced threats of retaliation and physical harm); cf. Torres v. Toback, Bernstein & Reiss LLP, No. 11-CV-1368, 2014 WL 1330957, at *4 .(E.D.N.Y. Mar. 31, 2014) (expressing “concern” over proposed incentive award of $8,500 for plaintiff who “retain[ed] and organized] papers that were crucial to the prosecution of this case, and ... withdrew individual claims against Defendants that did not generally apply to the sub-classes,” concluding amount was “grossly disproportionate,” to the $60 or $67 absent class members, would receive); Sheppard v. Consol. Edison Co., No. 94-CV-403, 2000 WL 33313540, at *6 (E.D.N.Y. Dec. 21, 2000) (rejecting settlement with incentive award where basis for award was that named plaintiffs sat for depositions). The value a class member will receive from the proposed Settlement Agreement is likely to be less than $100. It does not appear that named plaintiffs risked any extraordinary harm or lend- any special expertise to the action. In light of these facts, the proposed $5,000 must be justified at the hearing as reasonable. There appears to be no bar for finding that “the interests of the class have been relegated to the back seat.” Reed, 2011 WL 1311886, at *4 (quoting Women’s Comm. For Equal Employ’t Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y.1977)). The proposed Settlement Agreement provides for class counsel to be awarded up to $750,000. Although counsel has spent time responding to motions, engaging in discovery, and negotiating a settlement, the fee sought must be justified at the hearing on reasonableness. See 28 U.S.C. § 1712(a)-(c) (providing how attorney’s fees are to be awarded in settlements involving coupons); Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (court must. consider “the relationship between the amount of the fee awarded and the results obtained” in awarding, counsel fees); In re HP Inkjet Printer Litig., 716 F.3d 1173, 1182 (9th Cir.2013) (counsel’s fee must be based on value of relief obtained for class, which is the redemption value of the coupons). VII. "Conclusion Plaintiffs’ motion for an order (1) certifying a settlement class pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure for the purpose of consummating the agreement, (2) preliminarily and conditionally approving the settlement, (3) ordering the form and manner of notice, (4) setting a date and time for the fairness hearing, and (5) permitting further amendment of the amended complaint is granted. The court is today signing the necessary documents to order a fairness hearing. Plaintiffs may file a second amended class action complaint in the form previously submitted. All further proceedings in this matter are stayed. The fairness hearing shall be held on April 5, 2016 at 11:00 a.m. in Courtroom 10 B South. Attached to and made a part of this memorandum and order are the following appendices: 1. Proposed Settlement Agreement and Release, EOF No. 104-1;" 2. Second Amended Class Action Complaint, EOF No. 104-2; and 3. Order Granting Motion for Preliminary Approval of Class Action Set- . .tlement, Granting Leave to File a Second Amended Complaint, Provisionally Certifying the Classes, and Directing Dissemination of Class Notice. SO ORDERED. APPENDIX 1 SETTLEMENT AGREEMENTAND RELEASE This Class Settlement Agreement' and Release (“Settlement Agreement”) is entered into by, between, and among Plaintiffs Adam Berkson (“Berkson”), Kerry Welsh (“Welsh”) and Kathy LePenske (collectively, “Plaintiffs”), individually and in their capacity as proposed representatives of the Class, and Defendants Gogo LLC (“Gogo”) and Gogo Inc. (collectively, “Defendants”) (Plaintiffs and Defendants collectively, “Parties,” or singularly, “Party”), subject to approval of the Court pursuant to Rule 23 of the Federal Rulés of Civil Procedure. . / RECITALS A. On February 25, 2014/ Bérkson commenced a civil action in the United States District Court for the Eastern District of New York entitled Adam Berkson v. Gogo LLC and Gogo Inc., Civ. No. 14— 1199(JBW) (the “Action”) by filing a Class Action Complaint. B. On April 24, 2014, Berkson and Welsh filed an Amended Class Action Complaint (the “Amended Complaint”). . C. On May 12, 2014, Defendants filed a motion to compel arbitration, transfer venue and/or dismiss the Amended Complaint. D. On April 9, 2015, the Court entered a Memorandum and Order denying Defendants’ motion in its entirety. E. On April 28, 2015, Defendants filed a Notice of Appeal from the Memorandum and Order. . F. On July 6, 2015 and July 16, 2015, the Parties participated in two full-day mediation sessions before the Hon. Arthur Boylan, U.S.M.J. .(Ret.), who assisted the Parties in negotiating a Memorandum of Understanding outlining the principal terms of a settlement which the parties intended to lead to this definitive Settlement Agreement. Gi The Parties have thoroughly investigated the facts, have analyzed the relevant legal issues with regard to the claims and defenses available to them, and have considered the uncertainties of litigation, the substantial benefits of the proposed settlement to Class Members, the costs and risks associated with continued prosecution of this litigation, the desirability of consummating this Settlement Agreement promptly in order to provide an expeditious and effective resolution of the Action, the pendency and merits of Defendants’ current appeal, and likely appeals of future rulings in favor of either Party. H. In light of these considerations, and without admitting fault or liability on the part of Defendants, it is the Parties’ intention and the objective of this Settlement Agreement to dispose of, fully, completely and forever, th.e claims and causes of action which were asserted, or which could have been .asserted, in the Action. AGREEMENT I. DEFINITIONS. 1.1 The term “Claim” means a request submitted by a Class Member in the form annexed hereto as Exhibit A for compensation in accordance with the eligibility criteria set forth in paragraph 2.1(e) of the Settlement Agreement. 1.2 The term “Claimant” means a Class Member who files a Claim. The process and eligibility criteria for filing a Claim are set forth • in this Settlement Agreement. 1.3 The term “Claims Administrator” means Analytics LLC and will be responsible for, among others things, (i) providing notice as contemplated herein; (ii) receiving and tracking Claims and opt-out notices; (iii) verifying the valid, full and complete submission of Claims; (iv) verifying the eligibility criteria for compensation to Claimants using the information submitted in the Claims and records maintained by Gogo; and (v) calculating and advising Gogo of the compensation due under the Settlement Agreement, if any, to each Claimant.' 1.4 The term “Class Counsel” means the law firm of Reese LLP. 1.5 The term “Class Settlement Website” means the Internet website to be established by the Administrator as set forth in Section 3.5, below. 1.6 The term “Court” means the United States District Court for the Eastern District New York. 1.7 The term “Email Notice” means the email notices to be provided pursuant to Section 3.2 below. 1.8 The term “Eligible Class Members” means Class Members who', after verification by the Claims Administrator, have validly and fully completed and submitted a Claim form and are deemed to satisfy the eligibility criteria set forth in paragraph 2.1(d) of this Settlement Agreement. 1.9 The term “Fairness Hearing” means the hearing at which the Court decides whether to- approve this Settlement Agreement as being fair, reasonable, and adequate. 1.10 The term “Final Order and Judgment” means an order and judgment finally approving the Settlement of this Action, as agreed upon by the Parties and submitted to the Court in the form annexed hereto as Exhibit B. 1.11 The term “Final Settlement Date” means the date on which either of the following events has occurred: (a) if no appeal or request for review is filed or made, thirty-one (31) days after Defendants receive ECF notice from Plaintiffs’ Counsel or the Court that the Court entered the Final Order and Judgment or (b) if ány appeal or request for review is filed or made, fourteen (14) days after the date on which' Plaintiffs file and Defendants receive ECF notice that a court entered an order affirming the Final Order and Judgment or dismissed the appeal or otherwise denied review and the time for seeking all appeals has expired. 1.12 The term “Gogo’s Counsel” means the law firm of Epstein Becker & Green, P.C. 1.13. The terms “Initial Class” and “ Initial Class Members” mean all Gogo Customers who, during the Initial Class Period, subscribed to a Monthly Pass but only used the Gogo Service during the first month of their Subscription Period. The terms “Supplemental Class” and “Supplemental Class Members” mean alí Gogo Customers who, during the Supplemental Class Period, subscribed to a Monthly Pass but only used the Gogo Service during the first month of their subscription. The tern “Class” means the Initial Class and the .Supplemental Class. The term “Class Members” means the Initial Class Members and the Supplemental Class Members. 1.14 The term “Initial Class Period” means April 1, 2010 to December 31, 2012. The term “Supplemental Class Period” means January 1, 2013 to March 31, 2015. The term “Class Period” means the Initial Class Period and Supplemental Class Period. 1.15 The term “Monthly Pass”»means a monthly subscription to Gogo Service purchased by a Gogo customer comprised of a recurring monthly charge and continuous monthly access to Gogo Service until cancelled. 1.16 The term “Notice” means the legal notice of the proposed Settlement terms, as approved by Class Counsel, Gogo’s Counsel, and the Court, to be provided to Class Members under Section 3 of this Settlement Agreement. 1.17 The term “Notice Plan” means the plan for providing Notice of this Settlement to the Settlement Class Members, as set forth in Section IV below. 1.18 The term “Named Plaintiffs” means Plaintiff Adam Berkson, Kerry Welsh and Kathy LePenske. 1.19. The term “One-Day Pass” means access to Gogo Service on one Internet-ready device for one calendar day. . 1.20 The term “One-Hour Pass” means access to Gogo Service on one Internet-ready device for one consecutive hour. 1.21 The term “Preliminary Approval and Provisional Class Certification Order” or “ Preliminary Approval Order” means an order, in the form annexed,here-; to as Exhibit C, preliminarily approving the Settlement of this Action and provisionally certifying the Class. The- Parties agree that the proposed form of Preliminary Approval and Provisional Class- Certification Order shall be submitted with Plaintiffs’ motion for Preliminary Approval of tiie Settlement and for Provisional Class Certification. 1.22 The term “Promo Code” means a promotional code issued by Gogo through the Claims Administrator as compensation to Claimants whose Claims are determined to have validly submitted a Claim Form and who have satisfied the eligibility criteria. 1.23 The term “Settlement” means the settlement of this Action and related claims. 1.24 The - plural of any term defined herein includes the singular and vice versa. 2. SETTLEMENT TERMS 2.1 Settlement Compensation. As consideration- for the Settlement, and subject to Court approval of this Settlement Agreement without alteration of the Settlement Terms, the Claims Administrator will provide Promo Codes, in type and amount as set forth in paragraph 2.1(c) of this Settlement Agreement, to Class Members who satisfy the eligibility criteria set forth in paragraph 2.i(b) of this Settlement Agreement. In no circumstance will Defendants be obligated- to ' pay any amount or issue any Promo Codes other than to Eligible Class Members and in the type and amounts specified in the compensation tiers set forth in paragraph 2.1(c) of this Settlement Agreement. (a) Administrative Costs. Any and all costs and fees charged by the Claims Administrator shall be borne by Defendants. Defendants shall also bear all costs, of notice. (b) Eligibility Criteria for Class Members to Receive Compensation. In order to be eligible to receive compensation under- the Settlement, a Class Member must, subject to verification by the Claims Administrator: , ■ 1.- Fully complete and submit to the Claims Administrator a Claim in the form specified in Exhibit A. 2. Certify under-penalty of perjury that (s)he purchased a Monthly Pass during the Initial Class Period or Supplemental Class Period and used the Gogo Service only during the first month of the subscription period; 3.' Certify under penalty of perjury that (s)he had no knowledge of the recurring monthly charges for -the Monthly Pass; 4. Certify under penalty of perjury that (s)he personally paid the recurring Monthly Pass charge(s) and was not reimbursed those charges by a third party or refunded those charges by Gogo. (c) Compensation and Compensation Tiers. Eligible Class Members shall receive Gogo Promo Codes according to the following compensation tiers: 1) Initial Class Member Tiers and Compensation 1 to 4 months of unused Gogo Service — 1 One-Day Pass. 5 to 8 months of unused Gogo Service — 4 One-Day Passes. 9 or more months of unused Gogo Service — 6 One-Day Passes. 2) Supplemental Class Member Compensation: 1 One-Hour Pass. (d) Issuance of Promo Codes (i) The Claims Administrator shall notify Gogo of the type and amount of Promo Codes to be awarded to each Eligible Class Member under paragraph 2.1(c). Within fifteen (15) days of such notification, Gogo shall provide the Promo Codes to the Claims Administrator and the Claims Administrator shall then issue the requisite Promo Code(s) by email to the Eligible Class Member at the email address provided in the Claim form. (11) The Promo Codes shall be redeemable for the use of Gogo Service for a period of up to one year from the Final Settlement Date, at which point they shall expire. The Promo Codes may be transferred by an Eligible Class Member to another individual (a “Transferee”). The Promo Codes may be aggregated. The Promo Codes also may be consolidated for use, such that more than one One-Hour Passes may be combined for two or more consecutive hours of use of Gogo Service. (iii) The Promo Codes are not discounts or coupons in any man'ner, and shall be redeemable for Gogo Service without any requirement by an Eligible Class Member to make any accompanying payment to Gogo along with, or to otherwise effect, such redemption. The Promo Codes are not eligible for use in any manner other than continuous use, such that any unused time remaining on a Promo Code after its use shall be forfeited. (e) Each Claimant’s eligibility or disqualification from eligibility for compensation under this Settlement shall be determined by the Claims Administrator. These determinations will be deemed final as to Class Members, and Class Members will not be entitled to contest the accuracy of these determinations. (f) In issuing the Promo Codes, Gogo will rely on the Claims Administrator to determine the recipients of the Promo Codes and their type and amount, and shall not be responsible to any Class Members in any manner for any potential errors in the determinations and calculations by the Claims Administrator. (g) Gogo and Class Counsel may, ..but are not obligated to, verify the Claims Administrator’s determinations, including whether each individual Claimant is a Class Member and/or entitled to receive any compensation. . , . 3. CLASS NOTICE 3.1 Long-Form Notice. If the Court enters the Preliminary Approval Order, the Long-Form Notice, substantially in the form attached as Exhibit D, shall be posted on the Class Settlement Website. The Long-Form Notice is designed to provide comprehensive and easily understandable notice of the terms of the Settlement Agreement. 3.2 Summary Notice. If the Court enters the Preliminary Approval Order, the Summary Notice, substantially in th'e form attached as Exhibit E, shall be transmitted to each Class Member. The Summary Notice is designed to provide thé Class Members material information about the class-action settlement and direct-them to the Long-Form Notice posted on the Class Settlement Website. 3.3 Time for Transmission of Summary Notice. Within fifteen (15) calendar days after entry of the Preliminary Approval Order, Gogo shall provide to the Claims Administrator the email address currently associated with each Class Member’s Gogo account. Within fifteen (15) calendar days after receiving class the aforesaid email addresses, the Claims Administrator will- transmit the Summary Notice to each Class Member’s email address provided by Gogo. The Summary Notice will also provide a link to the Class Settlement Website described below in paragraph 3.5 that shall contain; among other items, the Long-Form Notice, this Settlement Agreement, and othert documents identified below in paragraph 3.5 ■3.4 CAFA Notice. The Parties agree that the Claims Administrator shall serve notice of the settlement (via Federal Express) that meets the requirements of CAFA, 28 U.S.C. § 1715, on the appropriate federal and state officials no later than 10 days after the filing of this Settlement Agreement with the Court. 3.5 Class Settlement Website. The Claims Administrator will create and maintain the Class Settlement Website, to be activated within 15 days of Preliminary Approval. The Administrator’s responsibilities will also include securing an appropriate URL, such as www.gogoclassaction settlement.com. The Class Settlement Website - will post the settlement documents and ease-related documents such as the Settlement Agreement, the Summary Notice, the Long-Form Notice, and the Preliminary Approval Order. In addition, the Class Settlement Website will include procedural information regarding the status of the Court-approval process, such as an announcement of the Final Approval Hearing Date, when the Final Approval Order and Judgment has been entered, and when the Effective Date has been reached. 3.6 Cost of Notice. The cost of the above Notice Plan shall be paid by Defendants. 3.7 Proof of Notice. No later than seven (7) calendar days before the filing of Plaintiffs’ motion in support of the Final Order and Judgment, Class Counsel will obtain a declaration from the Claims Administrator confirming that it has provided the Class with notice of the proposed Settlement in accordance with this Section. 4. CLAIMS PROCESS. 4.1 The Claims Administrator shall implement an online process for Class Members to submit Claims, which shall be directly accessible via a hyperlink from the email Notice. Class Members shall be required to subrnit a Claim no' later than four (4) months from the Final Settlement Date. 4.2 In order to submit a Claim, Claimants will be required tq certify under oath to the items specified in paragraph 2.1(b). Claimants also will be required to provide their Gogo account User ID or email address associated with their Gogo account, name, and mailing address so that the Claims Administrator may verify that they are a Class Member. 4.3 No Claimant shall be permitted* to submit more than one Claim-for the same Monthly Pass subscription. A Claimant shall be permitted to submit more than one Claim form if the Claimant had more than one Monthly Pass subscription. 4.4 The Parties agree to cooperate in finalizing any other details needed to implement the Claims process. 5. APPROVAL PROCEDURES 5.1 Cooperation to Obtain Court Approval. Plaintiffs will take all reasonable steps necessary to secure the Courtfs approval of this Settlement Agreement and the Settlement. Defendants shall provide no objection to the submission of this Settlement Agreement for approval in its current form. 5.2 Preliminary Approval and Provisional Class Certification. The Plaintiffs’ motion or application for preliminary approval of the settlement must request the Court to: (a) preliminarily approve this Settlement Agreement as being fair, reasonable and adequate; (b) preliminarily approve the form, manner, and content of the Notice described in Section 3; (c) set deadlines for objections, opting out, :and the date and -time of the Fairness Hearing; (d) provisionally certify the Initial Class and Supplemental Class under Rule 23(b)(3) of the Federal Rules of Civil Procedure for settlement purposes only; (e) stay all proceedings in the Action until, the Court renders a final decision on approval of the Settlement; (f) appoint the Named Plaintiffs as representative for the Classes as appro- ' priate for settlement purposes only; , and- (g) appoint the law firm of Reese LLP as Class Counsel for settlement purposes only. The Plaintiffs will submit a proposed Preliminary Approval and Provisional Class Certification Order in the form attached hereto as Exhibit C, for consideration and entry by the Court on Plaintiffs’ Motion for. Preliminary Approval of the Settlement and for Provisional Class Certification. 5.3Dismissal -without Prejudice of Appeal. If the Preliminary Approval Order is entered by the Court in the form annexed to Plaintiffs’ Motion for Preliminary Approval or, if entered in any modified form, the Parties accept the Court-ordered or Court-proposed modifications as set forth in section 5.6, the Parties agree to jointly submit a Stipulation of Dismissal without Prejudice' (pursuant to Local Rule 42.1 of the Second Circuit) with respect to.the appeal in the Action currently pending in the Second Circuit. Either Party may seek to reactivate the appeal in the event the Court does not grant Final Approval or any other of the bases for termination of the Settlement in section 5.6 occur. 5.4 Objections. Any Class - Member who has not submitted a timely written exclusion request pursuant to Section 5.5 below and who wishes to object to the fairness, reasonableness or adequacy of the Settlement Agreement or the proposed Settlement, to the attorneys’ fees and costs award, or to the service awards for the Named Plaintiffs, must do so by-filing a written objection with the Court and delivering a copy of the objection to Class Counsel and Gogo’s Counsel no later than the date approved by the Court ¡and specified in the Notice provided for in Section 3 above. The delivery date is deemed to be the date when the objection is deposited in the U.S. mail as evidenced by the postmark. It shall be the objector’s1 responsibility to ensure receipt of any objection by the Court, Class Counsel, and Gogo’s Counsel. To be considered by the Court, the objection must include: (1) a heading containing the name and case number of the Action; (2) the Class Member’s name, email address, postal- address, Gogo account user ID, telephone number that were used in conjunction with the Class Member’s Gogo account, as well as include the first month of purchase of the Monthly Pass by the Class Member; (3) a detailed statement of each objection and the-factual and legal basis for each objection, and the relief that the Class Member is requesting; (4) a list of and copies of all documents or other exhibits which the Class-Member may seek to use at the Fairness Hearing; and (5) a statement of whether, ¡the Class Member intends to appear, either in person or through. counsel, at the Fairness Hearing, and if through counsel, -a statement identifying the counsel’s name, postal address, phone number, email'address;-,and the state bar(s) to which the counsel is admitted. Any Class Member who files and serves a written objection,' as described in this section, has the option to appear at the Fairness Hearing, either in person or through personal counsel hired at the objector’s expense, to object to the fairness, reasonableness, or ■ adequacy of the Settlement Agreement or the proposed Settlement, to the award of attorneys’ fees and costs, or to the service awards for Named Plaintiffs. However, Class Members or their attorneys intending to make an appearance at the Fairness Hearing must include a statement of intention to appear in the- written objection filed with the Court and delivered to Class Counsel, and Gogo’s Counsel, and only those Class Members who- include such a statement may speak at the Fairness Hearing. If a Class Member makes an objection or appears at the Fairness Hearing through an attorney, that objector will be responsible for his or her personal attorney’s fees and costs. 5.5 Opt-Out/Exclusion Requests. Class Members may elect not to be bound by this Settlement Agreement and not to receive the compensation contemplated by this Settlement Agreement. (a) Manner of Making Exclusion Request. To make an Opt-Out/Exclusion Request, Class Members must send a letter or postcard or other written document to the Claims Administrator providing: (a) the title of the Action; (b) the full name, address, Gogo account user ID, email address associated with the Gogo account of the person requesting exclusion and the first month of purchase of the Monthly Pass of the Class Member; (c) a statement that (s)he does not wish to participate in the Settlement; and (d) a signature of the Class Member requesting exclusion. No Opt-Out/Exclusion Request will be valid unless all of the information above is included. So-called “mass” or “class” opt-outs purporting to be made on behalf of multiple persons or classes of persons shall not be allowed and shall be deemed invalid. The letter, postcard or form on which the request for exclusion is made must be postmarked on or before the date approved by the Court and specified in the notices provided for in Section 3 above, with postage paid by the person requesting exclusion. The Opt-Out/Exclusion Request must be postmarked on or before the date approved by the Court and specified in the Notice provided for in Section 3, which shall be sixty (60) days from the date the Notice is emailed to Class Members by the Claims Administrator. Any Class Member who does not mail a valid and timely written Opt-Out/Exclusion Request shall be bound by all subsequent proceedings, orders and judgments. Only Class Members who serve valid and timely Opt-Out/Exclusion Requests will be deemed to have opted out of the Class, unless the Court orders otherwise. (b) Exclusion List. On or before ten (10) calendar days after the Objection and Opt-Out deadline, the Claims Administrator shall provide Gogo’s Counsel and Class.- Counsel with a list of Class Members who have timely and validly excluded themselves from the Class. The Parties must file with the Court a complete list of all Class Members who have validly and timely excluded themselves from the Class. (c) Termination Clause. If more than 500 Class Members request exclusion, then Gogo may, in its sole discretion, notify Class Counsel in writing that it has elected to terminate this Settlement Agreement. Such notification of intent to terminate the Settlement Agreement must be provided a minimum of seven (7) calendar days before the filing deadline for the motion seeking final approval of the Settlement Agreement . and entry of a proposed Final Order and Judgment. If this Settlement Agreement is terminated for this or any other reason, it will be deemed null and void.- In that event: (i) the Preliminary Approval Order and all of its provisions will be vacated by its own terms; (ii) the Action will • revert to the status.that-existed before the Settlement Agreement’s execution date; and (iii) no term or draft-of this Settlement Agreement, or any part or aspect of the Parties’ settlement discussions, negotiations, or documentation (including any declarations and briefs filed in support of the motion for preliminary or final approval) will have any effect or be admissible into evidence, for any purpose, in this Action or any other proceeding. 5.6 Termination of Settlement and Right to Terminate Settlement. This Settlement Agreement is being entered into for settlement purposes only. Except as set-forth below, this Settlement Agreement will be deemed- null and void if: (a) the Court orders or proposes modifications of, or additions to, the Parties’ proposed Preliminary Approval Order, their proposed Final Order and Judgment, the Settlement Agreement, or the proposed Notice pursuant to: Section 3 that are not acceptable to all Parties; -(b) the Court orders or otherwise requires any party or its Counsel to make any distribution, in cash or in kind, to any charitable or governmental organization, (c) the Court does not preliminarily approve the Settlement or enter the Final Order and Judgment; or (d) the opt-out threshold in subsection 5.5(c) is reached and Gogo has terminated the Settlement Agreement in accordance therewith. In the event the Court orders or proposes modifications as described;in subsections 5.6(a) or- 5.6(b) above, the Parties will each have seven (7) business days from the date of the Court’s order to determine whether or not they will accept the Court-ordered or Court-proposed-modification and to notify the other Party of such acceptance. In determining whether any Court-ordered or Court-proposed modifications of the Parties’ proposed Pre-. liminary Approval Order, proposed Final Order and Judgment, the Settlement Agreement, or the proposed Notice pursuant to Section 3 are acceptable, the Parties each agree to exercise their judgment in good faith and will not reject additions or modifications that are merely technical or otherwise immaterial to the substance „of the Settlement Agreement. If either Party notifies the other Party within seven (7) days of their lack of concurrence with the Court’s ordered or proposed modifications, or in the case of the event described-in 5.6(c) and 5.6(d), above, then: (i) the Preliminary Approval Order and. all of its provisions and/or the Final Order and Judgment and all of its provisions, as applicable, will be vacated by its or-their own terms, including, but not limited to, vacating provisional certification of the Class, provisional appointment of the Named Plaintiffs as class representatives and provisional appointment of Reese LLP as Class Counsel, (ii) the Action will revert to the status that existed before this Settlement Agreement’s execution date, (iii) no term or draft of this Settlement Agreement, or any part of the Parties’ settlement discussions, negotiations or documentation will have any effect or be admissible into evidence for any purpose in the Action or any other proceeding, and (iv) Defendants shall retain all their rights to object to the maintenance of the Action as a class action, and nothing in this Settlement Agreement or other papers or proceedings related to the Settlement shall be used as evidence or argument by any Party concerning whether the Action may properly be maintained as a class action. 5.7 Fairness Hearing and Final Order and Judgment. Before the Fairness Hearing, Plaintiffs must move or apply for Court approval of a proposed Final Order and Judgment, which shall be in the form annexed as Exhibit B. The Final Order and Judgment must be consistent with the material terms of this Settlement Agreement, including, but not limited to, the definition of the Class and the scope of the release to be provided by Class Members, and the compensation to Eligible Class Members. Class Counsel must file with the Court a complete list of all Class Members who have validly and timely excluded themselves from the Class. Class Counsel must also draft the application papers and give Gogo’s Counsel drafts of the motion or application and proposed order to review at least seven (7) calendar days before the application’s filing deadline. Gogo shall be permitted, but not required, to file its own joint or individual brief or statement of non-opposition in support of the motion or application for Final Order and Judgment. 6. DISMISSAL OF ACTION AND RELEASES 6.1 Named Plaintiffs’ and Class Members’ Releases. Upon entry of the Final Order and Judgment, the Named Plaintiffs and all Class Members who do not validly and timely request to be excluded from the proposed Settlement, and each of their respective successors, assigns, legatees, heirs, and personal representatives release and forever discharge Defendants, and each, of their respective direct or indirect parents, wholly or majority owned subsidiaries (including but not limited to those owned in whole or in part during some or all of the Class Period), affiliated and related entities, predecessors, successors and assigns, partners, privies, and any of their present and former directors, officers, employees, shareholders, agents, representatives, attorneys, accountants, insurers, and all persons acting by, through, under or in concert with them, or any of them, from all maimer of action, causes of action, claims, demands, rights, suits, obligations, debts, contracts, agreements, promises, liabilities, damages, charges, penalties, losses, costs, expenses, and attorneys’ fees, of any nature whatsoever, known or unknown, in law or equity, fixed or contingent, which they have or may have arising out of or relating in any way to any of. the factual allegations or legal theories that were raised by Plaintiffs in connection with Gogo’s Monthly Pass subscriptions in the Actions (the “Released Claims”). With respect to the Released Claims, each'Named Plaintiff and all'Class Members who do not validly and timely request to be excluded from the Settlement, and each of their respective successors, assigns, legatees, heirs, and personal representatives, expressly waive and relinquish, to-the fullest extent permitted by law, the provisions, rights and benefits of Section 1542 of the California Civil Code, or any other similar provision under federal or state law, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor,” Each Named Plaintiff and all Class Members fully understand that the facts in existence • at the time this Settlement Agreement is executed and entry of the Preliminary Approval Order may be different from the facts now believed by the Named Plaintiffs and Class Members and Class Counsel to be true and expressly accept *and assume the risk of this possible difference in facts and agree that this Settlement Agreement remains effective despite -any difference in facts. Further, each Named Plaintiff and all Class Members agree that this waiver is an essential and material term of this release and the Settlement Agreement that underlies it and that without such waiver the Settlement Agreement would not have been accepted or agreed to. ' 6.2 Upon entry of the Final Order and Judgment, each of the Defendants shall forever release and discharge all claims that could have been 'biought or are ever brought in the future by Defendants against the Named Plaintiffs, in their individual capacity and as- Class -Representatives, against Settlement Class Members, and against Class Counsel whether known or unknown, asserted or unasserted, under or pursuant to any statute, regulation or common law, that arise out of or relate in any way to the institution, prosecution or settlement of the Claims against Defendants, except for claims relating to the enforcement of this Settlement Agreement. 7. ' ATTORNEYS’' FEES, COSTS AND, EXPENSES AND CLASS REPRESENTATIVE SERVICE AWARDS (a) Named Plaintiffs Service Awards. Plaintiff intends to seek and Gogo does not object to an award in the gross amount of $15,000 to be divided among the three Named Plaintiffs equally (ie. $5;000'each)i The award is in consideration for the covenants in this Settlement Agreement and intended to compensate the Named Plaintiffs for their individual and respective participation in this Action. The Named Plaintiffs will not seek any other compensation nor petition the Court for or otherwise seek more than this amount for a service award, other than being permitted to submit a Claim. A reduction by the Court or by an appellate court of the service award sought by the Named Plaintiffs shall not affect any of the Parties’, rights and obligations under the Settlement Agreement. (b) Attorneys’ Fees and Costs Award. On or before the' date specified in the Preliminary Approval Order, Class Counsel will submit an application seeking approval of an award of attorney’s fees and costs for Class Counsel. Class Counsel agree that they shall not seek an award in excess of $750,000.00. Defendants agree not to object to any such application or award up to such amount, and Class Counsel shall not accept any award in excess of such amount. The award of attorneys’ fees and costs for Class Counsel shall not in any fashion impair the compensation paid to Eligible Class Members. Class Counsel agrees that if any other, attorney or firm previously or currently associated with, or otherwise collaborating with, Class Counsel in this Action (i