Common use of Certification of the Settlement Class Clause in Contracts

Certification of the Settlement Class. 18 4.1 The Parties stipulate and agree that, subject to Court approval, the Settlement Class 19 should be conditionally certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure 20 solely for purposes of the Settlement embodied in this Amended Settlement Agreement. If, for 21 any reason, this Amended Settlement Agreement is not approved by the Court, the stipulation for 22 certification and all of the agreements contained herein shall be considered null and void as 23 provided in Section 12.6. 1 4.2 Google does not consent to certification of the Settlement Class, or to the propriety 2 of class certification for any purpose, other than to effectuate this Settlement. For the avoidance of 3 doubt, Google does not agree that this, or any, class of Developers could be certified for litigation 4 purposes or that a trial of these claims would be manageable. Google’s agreement to provisional 5 certification for purposes of settlement does not constitute an admission of wrongdoing, fault, 6 liability, or damage of any kind, or that any class certification would be appropriate for litigation 7 or any other purpose other than to effectuate this Settlement. 8 4.3 If for any reason the Effective Date does not occur or this Amended Settlement 9 Agreement is terminated, disapproved by any court (including any appellate court), or not 10 consummated for any reason, the order certifying the Settlement Class for purposes of effectuating 11 the Settlement (and all preliminary and final findings regarding that class certification order) shall 12 be automatically vacated upon notice of the same to the Court. The Action shall then proceed as 13 though the Settlement Class had never been certified pursuant to this Amended Settlement 14 Agreement and such findings had never been made, and the Action shall return to its procedural 15 posture as of May 25, 2022. Additionally, the Parties and their counsel shall not contend that 16 certification (or agreement to certification) of the Settlement Class supports certification of any 17 litigation class if this Amended Settlement Agreement is not consummated and the Action is later 18 litigated and certification is contested by Google under Rule 23 or any equivalent statute or rule.

Certification of the Settlement Class. 18 4.1 The Parties stipulate 3.1 This Agreement is for settlement purposes only, and agree thatneither the fact of, subject to Court approvalnor any provision contained in, this Agreement, nor any action taken hereunder, shall constitute or be construed as an admission of: (a) the validity of any claim or allegation or of any defense asserted 3.2 For further clarity, the Settlement Class 19 should be conditionally certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure 20 solely for purposes of the Settlement embodied in this Amended Settlement Agreement. If, for 21 any reason, this Amended Settlement Agreement is not approved by the Court, the stipulation for 22 certification and all of the agreements contained herein shall be considered null and void as 23 provided in Section 12.6. 1 4.2 Google does not consent Parties will agree to certification of the Settlement Class, or Class as described above solely for the purposes of the Settlement. The Parties’ stipulation to the propriety 2 certification of class certification for any purpose, other than to effectuate this Settlement. For the avoidance of 3 doubt, Google does not agree that this, or any, class of Developers could be certified for litigation 4 purposes or that a trial of these claims would be manageable. Google’s agreement to provisional 5 certification Settlement Class is for purposes of settlement this Agreement only. The Parties’ agreement to the certification of the Settlement Class solely for the purpose of this Agreement does not constitute an admission of wrongdoingnot, faultand shall not, 6 liabilityconstitute, or damage of any kind, or that any class certification would be appropriate for litigation 7 in this or any other purpose proceeding, an admission by any of the Defendant or any of the other than Released Parties of any kind or any determination that certification of a class for trial or other litigation purposes in the Action or any other separate action is, or would be, appropriate. If the Settlement is not granted a Final Approval Order or this Agreement is otherwise terminated or rendered null and void, the certification of the Settlement Class shall be automatically vacated and shall not constitute evidence or any determination that the requirements for certification of a class for trial or other litigation purposes in the Action or any other action are satisfied; in such circumstances, the Parties agree that Defendant have reserved all rights to effectuate this challenge certification of any class or subclass for trial or other litigation purposes in the Action or in any other action on all available grounds as if no class had been certified in the Action for purposes of the Settlement. 8 4.3 3.3 For the purpose of implementing this Agreement, and for no other purpose, the Parties stipulate to the conditional certification of the Settlement Class in this Action as set forth in the Proposed Preliminary Approval Order. If for any reason the Effective Date does not occur or this Amended Settlement 9 Agreement is terminated, disapproved by any court (including any appellate court), or not 10 consummated for any reasonshould fail to become effective, the order certifying the Settlement Class for purposes of effectuating 11 the Settlement (and all preliminary and final findings regarding that class certification order) shall 12 be automatically vacated upon notice of the same to the Court. The Action shall then proceed as 13 though the Settlement Class had never been certified pursuant to this Amended Settlement 14 Agreement and such findings had never been made, and the Action shall return to its procedural 15 posture as of May 25, 2022. Additionally, the Parties and their counsel shall not contend that 16 certification (or Parties’ agreement to certification) certification of the Settlement Class supports certification of provided for in this Section III, or to any 17 litigation other class if this Amended Settlement Agreement is not consummated or subclass, shall be null and void, and the Parties, and the Released Parties, shall return to their respective positions in the Action is later 18 litigated and certification is contested by Google under Rule 23 or any equivalent statute or rulebefore this Agreement was executed.

Certification of the Settlement Class. 18 25 4.1 The Parties stipulate and agree that, subject to Court approval, the Settlement Class 19 26 should be conditionally certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure 20 27 solely for purposes of the Settlement embodied in this Amended Settlement Agreement. If, for 21 any reason, this Amended 28 Settlement Agreement is not approved by the Court, the stipulation for 22 certification and all of the 1 agreements contained herein shall be considered null and void as 23 provided in Section 12.6paragraph 7.5. 1 2 4.2 Google Apple does not consent to certification of the Settlement Class, Class (or to the propriety 2 of 3 class certification treatment) for any purpose, purpose other than to effectuate this Settlement. For the avoidance of 3 doubt, Google does not agree that this, or any, class of Developers could be certified for litigation 4 purposes or that a trial of these claims would be manageable. GoogleApple’s agreement to 4 provisional 5 certification for purposes of settlement does not constitute an admission of wrongdoing, fault, 6 liability, or damage of 5 any kind, or that any class certification would be appropriate for litigation 7 or any other purpose other 6 than to effectuate this Settlement. 8 7 4.3 If for any reason the Effective Date does not occur or this Amended Settlement 9 Agreement is 8 terminated, disapproved by any court (including any appellate court), or not 10 consummated for any 9 reason, the order certifying the Settlement Class for purposes of effectuating 11 the Settlement (and all 10 preliminary and final findings regarding that class certification order) shall 12 be automatically vacated 11 upon notice of the same to the Court. The Action Actions shall then proceed as 13 though the Settlement Class 12 had never been certified pursuant to this Amended Settlement 14 Agreement and such findings had never been made, 13 and the Action Actions shall return to its their procedural 15 posture as of May 25, 2022postures on the date this Settlement Agreement was 14 signed. Additionally, the Parties and their counsel shall not contend that 16 certification (refer to or agreement invoke the vacated findings 15 and/or order relating to certification) class settlement or Rule 23 of the Settlement Class supports certification Federal Rules of any 17 litigation class Civil Procedure if this Amended 16 Settlement Agreement is not consummated and the Action is Actions are later 18 litigated and certification is contested by Google Apple 17 under Rule 23 or any equivalent statute or rule.

Certification of the Settlement Class. 18 4.1 The Parties stipulate (a) Only for the purposes of Settlement and agree thatthe proceedings contemplated herein for effectuating the Settlement, subject Settlement Class Counsel shall move the Court to Court approval, provisionally certify the Settlement Class 19 should be conditionally certified (as defined herein) pursuant to Rule 23(b)(3Fed. R. Civ. P. 23(a) of and (b)(3). (b) For the Federal Rules of Civil Procedure 20 solely for purposes of settlement only, Settlement Class Counsel shall move for the appointment of Plaintiff as the Settlement embodied in this Amended Class Representative and the following attorneys as Settlement Agreement. If, for 21 any reason, this Amended Settlement Agreement is not approved by the Court, the stipulation for 22 certification Class Counsel: Xxxxxxx X. XxXxxx and all Xxxxxx Xxxxx of the agreements contained herein shall be considered null XxXxxx Xxxxxx Xxxxxxx; and void as 23 provided in Section 12.6Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx of Xxxxx Cabraser Xxxxxxx & Xxxxxxxxx LLP. 1 4.2 Google (c) Bank of America does not consent to oppose certification of the Settlement Class, or to the propriety 2 appointments of class certification for any purposethe Settlement Class Representative and Settlement Class Counsel, other than to effectuate this Settlement. For the avoidance of 3 doubt, Google does not agree that this, or any, class of Developers could be certified for litigation 4 purposes or that a trial of these claims would be manageable. Google’s agreement to provisional 5 certification for purposes of settlement does not constitute an admission of wrongdoing, fault, 6 liability, or damage of any kind, or that any class certification would be appropriate for litigation 7 or any other purpose other than to effectuate this Settlement. 8 4.3 only. If for any reason the Effective Date of the Settlement does not occur or this Amended Settlement 9 Agreement is terminated, disapproved by any court (including any appellate court), or not 10 consummated for any reason, certification of the Settlement Class, and any Settlement Class Representative or Settlement Class Case 2:14-cv-01855-GW-GJS Document 112-1 Filed 12/27/19 Page 12 of 80 Page ID #:5806 Counsel appointments shall be deemed void and vacated; any preliminary or final order certifying a class for settlement purposes only shall be deemed void and vacated; nothing related to the Settlement or negotiations shall be admissible in connection with a contested class certification motion, or otherwise; and each Party shall retain all of their respective rights as they existed prior to execution of this Settlement Agreement. By entering into this Settlement Agreement, Bank of America does not waive its right to challenge or contest the maintenance of any lawsuit against it as a class action or to oppose certification of any class other than the Settlement Class for purposes of effectuating 11 in connection with the settlement memorialized in this Settlement (and all preliminary and final findings regarding that class certification order) shall 12 be automatically vacated upon notice of the same to the Court. The Action shall then proceed as 13 though the Settlement Class had never been certified pursuant to this Amended Settlement 14 Agreement and such findings had never been made, and the Action shall return to its procedural 15 posture as of May 25, 2022. Additionally, the Parties and their counsel shall not contend that 16 certification (or agreement to certification) of the Settlement Class supports certification of any 17 litigation class if this Amended Settlement Agreement is not consummated and the Action is later 18 litigated and certification is contested by Google under Rule 23 or any equivalent statute or ruleAgreement.

Certification of the Settlement Class. 18 4.1 2.01. The Parties stipulate to this Agreement agree that the Settlement Class shall be certified solely for purposes of settlement under Fed. R. Civ. P. 23(e), in accordance with the requirements of Fed. R. Civ. P. 23(b)(3), consisting of all Settlement Class members, with the Named Plaintiffs as the Settlement Class representatives and agree thatcurrent Class Counsel as counsel for the Settlement Class. 2.02. This Agreement and certification of the Settlement Class is for settlement purposes only, and neither the fact of, nor any provision contained in, this Agreement or its Exhibits, nor any action taken hereunder, shall constitute, be construed as, or be admissible in evidence as, an admission of the validity of any claim or any fact alleged by Plaintiffs in this Action or in any other pending or subsequently filed action of any wrongdoing, violation of law, or liability of any kind on the part of BNY Mellon. This Agreement shall, however, be admissible in an action or proceeding to enforce the terms of the Agreement. 2.03. Any certification of a conditional, preliminary, or final Settlement Class pursuant to the terms of this Agreement shall not constitute, and shall not be construed as, an admission on the part of BNY Mellon that this Action, or any other proposed or certified class action, is appropriate for class treatment pursuant to Fed. R. Civ. P. 23 or any similar state or federal class action rule or statute outside the settlement context. This Agreement is without prejudice to the rights of BNY Mellon to: (1) oppose final certification in this Action should this Settlement not be approved or implemented for any reason; (2) oppose certification in any other proposed or certified class action; or (3) use the certification of this Settlement Class to oppose certification of any other proposed class action arising out of the issues and claims that are asserted herein. 2.04. In the event this Agreement is terminated pursuant to its own terms, or a Final Approval of the Settlement for any reason does not occur (subject to Court approvalthe Effect of Disapproval provisions of paragraph 13.17 and Termination provisions in section 12, below), the Settlement Class 19 should be conditionally certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure 20 solely for purposes of the Settlement embodied in this Amended Settlement Agreement. If, for 21 any reason, this Amended Settlement Agreement is not approved by the Court, the stipulation for 22 certification and all of the agreements contained defined herein shall be considered null and void as 23 provided in Section 12.6. 1 4.2 Google does not consent cease to certification of the Settlement Class, or to the propriety 2 of class certification for any purpose, other than to effectuate this Settlement. For the avoidance of 3 doubt, Google does not agree that this, or any, class of Developers could be certified for litigation 4 purposes or that a trial of these claims would be manageable. Google’s agreement to provisional 5 certification for purposes of settlement does not constitute an admission of wrongdoing, fault, 6 liability, or damage of any kind, or that any class certification would be appropriate for litigation 7 or any other purpose other than to effectuate this Settlement. 8 4.3 If for any reason the Effective Date does not occur or this Amended Settlement 9 Agreement is terminated, disapproved by any court (including any appellate court), or not 10 consummated for any reason, the order certifying the Settlement Class for purposes of effectuating 11 the Settlement (and all preliminary and final findings regarding that class certification order) shall 12 be automatically vacated upon notice of the same to the Court. The Action shall then proceed as 13 though the Settlement Class had never been certified pursuant to this Amended Settlement 14 Agreement and such findings had never been made, exist and the Action shall return to its procedural 15 posture as of May 25, 2022. Additionally, the Parties and their counsel shall not contend that 16 certification (or agreement to certification) of the Settlement Class supports certification of any 17 litigation class if this Amended Settlement Agreement is not consummated and the Action is later 18 litigated and certification is contested by Google under Rule 23 or any equivalent statute or rule.shall

Certification of the Settlement Class. 18 4.1 65. The Parties stipulate agree that this Action shall be certified and agree that, subject to Court approval, the Settlement Class 19 should be conditionally certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure 20 proceed as a class action solely for purposes of settlement under FED. R. CIV. P. 23(b)(2) and (b)(3), consisting of all Settlement Class members, with the named Plaintiffs as the Settlement embodied in this Amended Settlement Agreement. If, Class representatives and Class Counsel as counsel for 21 any reason, this Amended Settlement Agreement is not approved by the Court, the stipulation for 22 certification and all of the agreements contained herein shall be considered null and void as 23 provided in Section 12.6. 1 4.2 Google does not consent to certification of the Settlement Class. This Agreement is for settlement purposes only, may not be cited or otherwise used to seek or support the certification of any class or subclass for any other purpose in this Action or for any purpose in any other action or proceeding, whether pursuant to Rule 23 or any similar state or federal class action statute or rule. Further, any certification of a conditional, preliminary or final Settlement Class pursuant to the propriety 2 terms of class certification for any purpose, other than to effectuate this Settlement. For the avoidance of 3 doubt, Google does Agreement shall not agree that this, or any, class of Developers could be certified for litigation 4 purposes or that a trial of these claims would be manageable. Google’s agreement to provisional 5 certification for purposes of settlement does not constitute an admission nor evidence of wrongdoingan admission on the part of Defendants that this Action, fault, 6 liability, or damage of any kind, or that any class certification would be appropriate for litigation 7 or any other purpose proposed or certified class action, is appropriate for trial class treatment pursuant to Rule 23 or any similar state or federal class action statute or rule. This Agreement is without prejudice to the rights of Defendants to: (a) oppose final certification in this Action should this Settlement not be approved or implemented for any reason; (b) oppose certification in any other than proposed or certified class action; or (c) use the certification of this Settlement Class to effectuate this Settlementoppose certification of any other proposed class action arising out of the issues and claims that are asserted herein. 8 4.3 If for any reason 66. In the Effective Date does not occur or event that this Amended Settlement 9 Agreement is terminated, disapproved by any court (including any appellate court), or not 10 consummated terminated for any reason, the order certifying or a Final Judgment and Order of Dismissal is not entered for any reason, then Defendants’ stipulation and agreement to the Settlement Class for purposes of effectuating 11 the Settlement (shall be void and all preliminary and final findings regarding that Defendants shall not have waived any rights it might have to oppose class certification order) shall 12 be automatically vacated upon notice of the same to the Court. The Action shall then proceed as 13 though the Settlement Class had never been certified pursuant to this Amended Settlement 14 Agreement and such findings had never been madecertification, and to defend itself against the Action shall return to its procedural 15 posture as allegations of May 25, 2022. Additionally, the Parties and their counsel shall not contend that 16 certification (or agreement to certification) of the Settlement Class supports certification of any 17 litigation class if this Amended Settlement Agreement is not consummated and the Action is later 18 litigated and certification is contested by Google under Rule 23 or any equivalent statute or rulePlaintiffs’ Complaint.