Frequently Asked Questions
- Why was the Notice issued?
- Which company is part of the settlement?
- What is this lawsuit about?
- Why is this a class action?
- Why is there a settlement?
- How do I know if I am part of the settlement?
- Are there exceptions to being included?
- I’m not sure if I am included.
- What does the settlement provide?
- What else has POPSUGAR agreed to do in this settlement?
- How can I get a cash payment?
- When will I get my cash payment?
- What am I giving up if I get a cash payment or if I do nothing and stay in the Class?
- How do I get out of the settlement?
- If I don’t exclude myself, can I sue Defendant for the same thing later?
- If I exclude myself, can I get a cash payment from this settlement?
- Do I have a lawyer in the case?
- How will the lawyers be paid?
- How do I tell the Court that I don’t like or object to the settlement?
- What’s the difference between objecting and excluding myself?
- When and where will the Court decide whether to approve the settlement?
- Do I have to come to the Hearing?
- May I speak at the Hearing?
- What happens if I do nothing at all?
- How do I get more information about the settlement?
- Why was the Notice issued?
Judge Kuhnle of the Superior Court for the State of California for the County of Santa Clara is overseeing this class action lawsuit. The lawsuit is known as O’Brien et al. v. POPSUGAR Inc. et al, Case No. 18CV329645. The persons who sued are called the Plaintiffs, and the company they sued is called the Defendant.
The Court authorized the Notice because you have a right to know about a proposed settlement of this class action, including the right to make a claim for a cash payment from the settlement, and about all of your options, before the Court decides whether to give “final approval” to the settlement. If the Court approves the settlement, and after any objections and appeals are resolved, cash payments will be distributed to those who qualify and submit a valid claim.
The Notice explains the lawsuit, the settlement, your legal rights, what benefits are available under the settlement, who is eligible for them, and how to get them.
Top - Which company is part of the settlement?
This settlement involves POPSUGAR Inc. and POPSUGAR MEDIA Inc. (together “POPSUGAR”). The Notice also sometimes refers to POPSUGAR as “Defendant.”
Top - What is this lawsuit about?
Plaintiffs are influencers who posted “shoppable content” on Instagram using LIKEtoKNOW.it affiliate links. Plaintiffs allege that between May 1, 2017 and June 7, 2018, POPSUGAR reproduced, or otherwise used, on its website their and other Class Members’ images, names and likenesses, removed their LIKEtoKNOW.it links, and replaced them with another affiliate link that would pay commissions to POPSUGAR. Plaintiffs further allege that POPSUGAR removed from their images other accompanying information, including links to the Class Members’ social media pages and other personal information. Plaintiffs allege POPSUGAR violated several California laws as well as federal intellectual property laws. The lawsuit sought money damages and an injunction preventing POPSUGAR from continuing this practice.
POPSUGAR vigorously denies that it has infringed on anyone’s intellectual property or publicity rights, or that it has violated any laws or otherwise engaged in any wrongdoing or unlawful conduct.
Top - Why is this a class action?
In a class action lawsuit, one or more people called “Class Representatives” (in this case, Cathy O’Brien and Laura Adney) sue on behalf of people who have similar claims. The people together are a “Class”, and individually they are “Class Members.” One court resolves the issues for everyone in the Class, except for those people who choose to exclude themselves from the settlement.
Top - Why is there a settlement?
The Court did not decide in favor of Plaintiffs or Defendant, and has not found that POPSUGAR did anything wrong. POPSUGAR does not admit any wrongdoing. Instead, both sides agreed to a settlement. That way, the parties avoid the risk and cost of a trial, and the people affected will get compensation. The Class Representatives and Class Counsel think that the settlement is in the best interest of the Class and that the settlement is fair, adequate, and reasonable.
Top - How do I know if I am part of the settlement?
The Settlement Class includes all natural persons (A) for whom POPSUGAR’s records indicate that (i) POPSUGAR displayed a Profile Page during the Class Period or (ii) whose Image(s), after being posted to a POPSUGAR webpage, generated a Commission during the Class Period, or (B) who provide verifiable proof, prior to the Bar Date, that POPSUGAR displayed a Profile Page relating to that individual during the Class Period.
- “Class Period” means between May 1, 2017 and June 7, 2018.
- “Commission” means money received by POPSUGAR as a result of a “click” on an affiliate link related to a product featured in an Image or a sale made in connection with such a “click.”
- “Image” means a photograph posted by a Class Member to Instagram during the Class Period.
- “Profile Page” means a POPSUGAR webpage with a URL containing an Instagram handle used by the individual.
See Question 7 below for exceptions to the Class definition. Also, a complete definition of the Settlement Class can be found at Paragraph II of the Order re: Motion for Preliminary Approval of Class Action Settlement (available at the case documents tab of this website).
Top - Are there exceptions to being included?
Excluded from the Settlement Class are:
(a) Class Counsel and their immediate family members;
(b) the Court presiding over this settlement, the Court’s immediate family, and the Court staff;
(c) any person that timely and properly excludes himself or herself from the Settlement Class; and
(d) the plaintiffs in the following actions: Memari v. Popsugar Inc., 4:18-cv-05589-HSG (N.D. Cal.), and Friedman v. Popsugar, Inc., 4:18-cv-06623-HSG (N.D. Cal.).
Top - I’m not sure if I am included.
If you are not sure whether you are included, you can get free help. You can call the Claims Administrator toll-free at 1-866-523-2946; or visit www.InfluencerClassSettlement.com for more information. Or you can fill out and return the Claim Form available on the documents tab of this website or submit a Claim electronically at the website listed above to see if you qualify.
Top - What does the settlement provide?
The total settlement amount is $2,115,000. The “Net Common Fund” is the amount of the $2,115,000 total settlement amount that remains after deducting Claims Administration Expenses, Class Counsel Fees, Plaintiffs’ Litigation Expenses, Incentive Awards, and any other cost, tax, or expense related to the settlement. An explanation of each of these fees and expenses is available in the Order re: Motion for Preliminary Approval of Class Action Settlement at Paragraph III.C. The Class Counsel Fees, Plaintiffs’ Litigation Expenses, and Incentive Awards are also further explained below at Question 18.
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Under the settlement, Class Members who submit a timely and valid Claim Form will receive a cash payment, estimated to exceed $200. The value of the cash payment is calculated pro rata by dividing the Net Common Fund by the number of Settlement Class Members who submit a timely and valid Claim Form. The exact amount you will receive depends on the total number of Class Members who submit valid claims. - What else has POPSUGAR agreed to do in this settlement?
POPSUGAR has also agreed (1) not to display a profile page on its website of any Settlement Class Member without obtaining authorization from the Settlement Class Member, and (2) to expand the training POPSUGAR currently provides its employees on its policies governing the use of third-party copyrights and publicity rights with additional training related to those policies as reviewed by POPSUGAR’s outside legal counsel.
Top - How can I get a cash payment?
To be eligible to receive a cash payment, you must submit a valid and timely Claim Form. You may get a Claim Form from the Internet at www.InfluencerClassSettlement.com, or by calling the Toll-Free line at 1-866-523-2946.
The Claim Form must be submitted online or, if mailed, postmarked no later than Friday, December 13, 2019. If you are submitting your Claim Form by mail, send it to the following address:
O’Brien v. POPSUGAR Claims Administrator
P.O. Box 43502
Providence, RI 02940-3502
Do not send a copy of the Claim Form to the Court, the Judge, counsel for the parties or the Defendant. If you mail your Claim Form so that it is not postmarked by the deadline, you will not be eligible to receive a cash payment from this settlement. It is recommended that you keep a copy of the completed Claim Form.
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You should read the instructions on the Claim Form carefully and fill out the entire Claim Form. You’ll need to include your full name, mailing address, telephone number, Instagram handle(s) used during the Class Period, email address, and your signature. - When will I get my cash payment?
The distribution of the cash payments will be made to eligible Class Members who submit valid and timely Claim Forms after the claims period has expired and the Court has granted “final approval” of the settlement and after any appeals are resolved.
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The Court will hold a Hearing on January 10, 2020 at 9:00 a.m., in Department 5, to decide whether to approve the settlement (see the section below titled “The Court’s Final Approval Hearing”). If Judge Kuhnle approves the settlement, there may be appeals. Resolving any appeals that are made can take a long time. Please be patient. Please check the settlement website, www.InfluencerClassSettlement.com, for updates and other important information about the settlement. You may also call 1-866-523-2946 toll-free for settlement updates. - What am I giving up if I get a cash payment or if I do nothing and stay in the Class?
Unless you exclude yourself, you are staying in the Class, and cannot sue or be part of any other lawsuit against Defendant about the legal claims and issues asserted in this case. And, unless you exclude yourself, all of the Court’s orders will apply to you and legally bind you. If you submit a Claim Form, or simply stay in the Class, you will have agreed to release and discharge all claims against POPSUGAR, as described in Section III.1 of the Settlement Agreement.
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A complete copy of the Settlement Agreement can be obtained at www.InfluencerClassSettlement.com, or by calling 1-866-523-2946 toll-free. The Settlement Agreement specifically describes the Released Claims in necessarily accurate legal terminology. Speak with Class Counsel (see the section below on “The Lawyers Representing You”) or your own lawyer if you have questions about the Released Claims or what they mean. - How do I get out of the settlement?
To exclude yourself from the settlement, you must send a letter to the Claims Administrator by U.S. Mail, including a clear statement that you want to be excluded from the POPSUGAR Litigation settlement.
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Be sure to include your name, address, telephone number, Instagram handle(s) used during the Class Period, e-mail address, and your signature. You must sign the exclusion.
You must mail your exclusion request, postmarked no later than Thursday, November 14, 2019, to:
O’Brien v. POPSUGAR Claims Administrator
P.O. Box 43502
Providence, RI 02940-3502
You can’t exclude yourself by telephone, by e-mail, or on the website. If you ask to be excluded, you will not get a cash payment from the settlement, and you cannot object to the settlement or intervene in the case. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Defendant. - If I don’t exclude myself, can I sue Defendant for the same thing later?
No. Unless you exclude yourself, you give up any right to sue Defendant for any of the claims that this settlement resolves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately.
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Remember, the deadline to postmark your exclusion request is Thursday, November 14, 2019. - If I exclude myself, can I get a cash payment from this settlement?
No. If you exclude yourself, do not send in a Claim Form to ask for a cash payment from the settlement.
Top - Do I have a lawyer in the case?
The Court has appointed the following attorneys and law firms to represent you and other Class Members:
Michael L. Schrag
Gibbs Law Group LLP
505 14th Street, Suite 1110
Oakland, CA 94612
(510) 350-9700
mls@classlawgroup.com
Hirlye R. “Ryan” Lutz, III
Cory Watson Attorneys'
2131 Magnolia Avenue South
Birmingham, AL 35205
(205) 328-2200
RLutz@CoryWatson.com
Jonathan M. Rotter
Glancy Prongay & Murray LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
(310) 201-9150
jrotter@glancylaw.com
Michael N. Cohen
Cohen IP Law Group, PC
9025 Wilshire Blvd., Suite 301
Beverly Hills, CA 90211
(310) 288-4500
mcohen@cohenip.com
These lawyers are called Class Counsel. You will not be charged for services performed by Class Counsel. If you want to be represented by your own lawyer, you may hire one at your own expense.
Top - How will the lawyers be paid?
Class Counsel will ask the Court to approve a payment of up to one-third of the settlement for attorneys’ fees and up to $28,254 for reimbursement of expenses incurred during the litigation. Class Counsel will also ask for a payment of up to $7,500 for each of the Named Plaintiffs, Cathy O’Brien and Laura Adney, for their services as Class Representatives. The Court may award less than these amounts. The costs for administrating the settlement will also be paid out of the settlement fund.
Top - How do I tell the Court that I don’t like or object to the settlement?
If you’re a Class Member and you don’t exclude yourself from the settlement, you can object to the proposed settlement or part of it if you don’t like it. You must stay in the settlement as a Class Member to submit an objection.
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You can give reasons why you think the Court should not approve the settlement. The Court will consider your views. To object by mail, you must mail your objection to the Claims Administrator postmarked no later than Thursday, November 14, 2019 at the following address:
O’Brien v. POPSUGAR Claims Administrator
P.O. Box 43502
Providence, RI 02940-3502
Mailed objections must: (1) be in writing, signed by the Settlement Class Member (and his or her attorney, if individually represented); (2) contain a caption or title that identifies it as “Objection to Class Settlement in O’Brien et al. v. POPSUGAR Inc. et al, Case No. 18CV329645”; (3) include the objecting Settlement Class Member’s full name, current address, telephone number, Instagram handle(s) used during the Class Period, e-mail address, and signature, as well as a clear and concise statement of the Settlement Class Member’s objection, the facts supporting the objection, and the legal grounds on which the objection is based; and (5) include a statement whether the objector intends to appear at the Final Approval Hearing, either in person or through counsel and, if through counsel, a statement identifying that counsel by name, bar number, address and telephone number.
You may also object by appearing and speaking at the Final Approval Hearing without filing a written objection. - What’s the difference between objecting and excluding myself?
Objecting is simply telling the Court that you don’t like something about the settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you don’t want to be part of the Class. If you exclude yourself, you have no basis to object, because the case no longer affects you. If you object and the Court approves the settlement anyway, you will still be legally bound by the result. You can still complete and submit a valid and timely Claim Form to be eligible for the cash payment if you file an objection.
Top - When and where will the Court decide whether to approve the settlement?
The Court will hold a Final Approval Hearing to decide whether to finally approve the proposed settlement. You may attend and you may ask to speak, but you don’t have to do either one.
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The Final Approval Hearing will be on January 10, 2020 before Judge Thomas E. Kuhnle in Department 5.
At this Hearing, the Court will consider whether the proposed settlement and all of its terms are adequate, fair, and reasonable. If there are objections, the Court will consider them. The Court may listen to people who wish to speak at the Hearing. The Court may also decide how much to award Class Counsel for fees and expenses for representing the Class and whether and how much to award the Class Representatives for representing the Class.
At or after the Hearing, the Court will decide whether to finally approve the proposed settlement. There may be appeals after that. We do not know how long these decisions will take.
The Court may change deadlines listed in the Notice without further notice to the Class. To keep up on any changes in the deadlines, please contact the Claims Administrator or review the settlement website, www.InfluencerClassSettlement.com. - Do I have to come to the Hearing?
No. Class Counsel will answer any questions asked by the Court. But, you are welcome to come at your own expense. You may appear and speak at the Final Approval Hearing without filing or serving any papers and without providing any advance notice.
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If you send an objection by mail, you don’t have to come to Court to talk about it. As long as you mailed your written objection on time and complied with the other requirements for a proper written objection, the Court will consider it. - May I speak at the Hearing?
If you have not excluded yourself from the settlement, you may speak at the Final Approval Hearing. You may appear and speak at the Final Approval Hearing without filing or serving any papers and without providing any advance notice.
Top - What happens if I do nothing at all?
If you do nothing, you will get no cash payment from this settlement, and you will be legally bound by the Court’s decisions in this settlement. Unless you exclude yourself, you won’t be able to sue or be part of any other lawsuit against the Defendant about the legal issues in this case, ever again.
Top - How do I get more information about the settlement?
You may obtain additional information by:
• Calling the Claims Administrator toll-free at 1-866-523-2946.
• Writing to the Claims Administrator at the following address:O’Brien v. POPSUGAR Claims Administrator P.O. Box 43502
Providence, RI 02940-3502• Visiting the settlement website, www.InfluencerClassSettlement.com, where you will find answers to frequently asked questions about the settlement, a Claim Form, settlement documents, plus other information to help you.
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• Reviewing legal documents that have been filed with the Clerk of Court in this lawsuit at the Court offices provided in Question 21 during regular office hours.
• Contacting Class Counsel listed in Question 17 above.