PLAINTIFFS’ UNOPPOSED MOTION FOR AN ORDER TO THE

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

DAVID NEW, individually and on behalf CASE NO.: 1:14-CV-20589-JEM of all others similarly situated, and ACCESS NOW, INC., a Florida not-for-profit corporation,

Plaintiffs,

v.

LULULEMON USA, INC., Defendant. _____________________________________/

PLAINTIFFS’ UNOPPOSED MOTION FOR AN ORDER APPROVING REVISIONS TO THE STIPULATION OF SETTLEMENT, A REVISED NOTICE PLAN TO THE

CLASS, AND SCHEDULING THE FAIRNESS HEARING, WITH INCORPORATED MEMORANDUM OF LAW

Come now Plaintiffs David New (“Mr. New”) and Access Now, Inc. (“Access Now”)

(collectively, “Plaintiffs”), by and through their undersigned attorneys, and state as follows:

A. INTRODUCTION

The Parties were unable to provide notice to the settlement class in the manner required by

this Court’s January 14, 2015 Order Granting Preliminary Approval to Class Settlement

(“Preliminary Approval Order”) because the American Council for the Blind (the “ACB”) failed

to publish the notice despite previously agreeing to do so. Because the Parties remain committed

to providing the best notice practicable to the settlement class and to explicit compliance with

this Court’s orders, they respectfully request that this Court approve revisions to the Stipulation

of Settlement, approve their revised notice plan, and reschedule a Fairness Hearing.

Case 1:14-cv-20589-DPG Document 41 Entered on FLSD Docket 07/01/2015 Page 1 of 8

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B. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs brought this action individually and on behalf of all others similarly situated

against lululemon USA, Inc. (“Defendant” or “lululemon”). Plaintiffs allege violations of Title

III of the Americans with Disabilities Act, 42 U.S.C § 12101 et seq. (the “ADA”), and its

implementing regulations. Specifically, Plaintiffs allege that lululemon failed to design,

construct, and/or own or operate Point of Sale Devices (“POS Devices”) that are fully accessible

to, and independently usable by, blind individuals. Instead, lululemon’s POS Devices have

touch screen surfaces with features that are not discernible to individuals who are blind or

visually impaired. Plaintiffs seek certification of a class of all blind individuals who have

attempted, or will attempt, to make a debit purchase with lululemon’s POS Devices at its stores

throughout the United States. [D.E. 19].

After arms-length negotiations, the Parties preliminarily agreed to terms of a

comprehensive class settlement. Among other things, the preliminary settlement required

lululemon to begin installing tactile POS Devices that are independently usable by blind

individuals in each of its stores. [D.E. 23-1, p. 12]. The terms of the Stipulation of Settlement

require lululemon to have at least one such device installed in each of its stores by May 31, 2015.

Id.

On July 22, 2014, Plaintiffs filed their Unopposed Motion for an Order Granting

Preliminary Approval of the Joint Stipulation, Conditionally Certifying the Settlement Class, and

Scheduling the Fairness Hearing with Incorporated Memorandum of Law (the “Motion for

Preliminary Approval,” D.E. 23). The Court held a hearing on the Motion for Preliminary

Approval on December 19, 2014. Thereafter, on January 14, 2015, the Court entered its

Preliminary Approval Order. [D.E. 27].


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The Preliminary Approval Order, among other things, preliminarily approved the terms

of the settlement reached between the Parties, preliminarily certified a settlement class,

appointed counsel for Plaintiffs as class counsel, approved a form of publication notice to the

settlement class (the “Publication Notice,” attached to the Preliminary Approval Order as Exhibit

3), directed the manner in which notice of the settlement should be provided to the members of

the settlement class, set a deadline for settlement class members to object to the terms of the

settlement, and set a Fairness Hearing for May 7, 2015. [D.E. 27]. Pursuant to the Preliminary

Approval Order, the Court ordered lululemon to “publish, or cause to be published, Publication

Notice in a minimum 1/3 page ad in . . . “Braille Forum”, the newsletter of the American

Council for the Blind, which has a circulation notice of 15,000 addresses.” Id. at p. 8, ¶5.

Plaintiffs worked with ACB to publish the Publication Notice in the ACB’s Braille

Forum newsletter, as required in the Preliminary Approval Order. ACB agreed to publish the

notice free of charge, but reserved the right to edit it “according to available space.” On January

29, 2015, in accordance with the instructions of ACB’s representative, Plaintiffs’ counsel sent to

ACB a copy of the Publication Notice to be published in ACB’s next issue of Braille Forum.

ACB never indicated that there could be any reason that it would not publish the Publication

Notice. See email correspondence between counsel for Plaintiffs and ACB, attached as Exhibit

A.

Despite agreeing to do so, ACB did not publish the Publication Notice in Braille Forum.

Moreover, ACB never informed Plaintiffs or lululemon that it did not publish the Publication

Notice. Because the Parties remain committed to providing the best notice practicable to the

settlement class and to strict compliance with this Court’s orders, they submit the following

Amended Stipulation, revised notice plan, and proposed date for the Fairness Hearing.


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C. ARGUMENT

1. Approval of Revisions to the Joint Stipulation Is Proper Because the Settlement

Remains Fair, Reasonable, and Adequate.1

Under Rule 23(e)(1) the Court will approve a class-action settlement if it is “fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1). Approval of a class-action settlement is a

two-step process. Fresco v. Auto Data Direct, Inc., Case No. 0361063CIV-MARTINEZ, 2007

WL 2330895, at *4 (S.D. Fla. May 14, 2007). In the first step, the Court determines whether the

proposed settlement should be preliminarily approved. Id. At the preliminary-approval step, the

Court is required to “make a preliminary determination on the fairness, reasonableness, and

adequacy of the settlement terms.” Id. (citations omitted). A proposed settlement should be

preliminarily approved if it “is ‘within the range of possible approval’ or, in other words, [if]

there is ‘probable cause’ to notify the class of the proposed settlement.” Id. (citing Horton v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 855 F. Supp. 825, 827 (E.D.N.C. 1994) (quoting

Armstrong v. Board of School Directors, 616 F.2d 305, 312 (7th Cir. 1980))). In the second step,

following appropriate notice to the class and after hearing from any potential objectors, the Court

makes a final decision as to whether to approve the proposed settlement. Id. In evaluating the

proposed settlement and considering whether it should be preliminarily approved, a court will

consider the following factors: (a) the absence of any collusion among the parties; (b) the

significant risks of continued litigation; (c) the complexity, expense, and duration of the

litigation; (d) the substantial injunctive relief that will be provided under the proposed

settlement; (e) the advanced stage of the litigation; and (f) the judgment of experienced counsel

for the parties. Id.

1 An executed copy of the Amended Stipulation of Settlement is attached as Exhibit B.


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In this case, all of the factors weigh in favor of the Court approving the Amended

Stipulation of Settlement. First, there is no evidence of collusion amongst the parties. To the

contrary, the settlement outlined in the Amended Stipulation of Settlement was reached after

many months of arms-length settlement discussions, during which the parties and their

counsel had a full opportunity to appraise the strengths and weaknesses of the case. The

parties have now engaged in further arms-length negotiations with the Objectors and have

revised the Released Claims in the Amended Stipulation of Settlement. Second, the parties

face significant risks from continued litigation, which also favors preliminary approval of the

settlement. Plaintiffs have advanced a novel claim under the ADA with relatively little case

law interpreting it. Moreover, Defendant has denied any such violation of the ADA or its

interpreting regulations. Third, were this matter to continue, numerous, complex issues of law

would have to be resolved at the cost of considerable time and expense to the parties and the

Court. Fourth, under the terms of the Amended Stipulation of Settlement, Defendant has

agreed to modify its POS Devices to improve accessibility for blind patrons, even though

Defendant disputes that its POS Devices violate the ADA and no finding of liability has been

made. The Amended Stipulation of Settlement provides the greatest degree of uniformity in

modifications to Defendant’s stores. Finally, the advanced stage of the litigation and the

judgment of experienced counsel for the parties favor preliminary approval. “The unanimous

support of counsel for this settlement weighs strongly in favor of its approval.” Id. at *6.

Accordingly, because the proposed settlement is fair, reasonable, and adequate, Plaintiffs

respectfully request that this Court approve the revisions to the Amended Stipulation of

Settlement.

2. The Proposed Revised Notice Plan is Adequate.


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Rule 23(e) of the Federal Rules of Civil Procedure states “[t]he court must direct

notice in a reasonable manner to all class members who would be bound by the proposal.” Fed.

R. Civ. P. 23(e)(1). Unlike class actions certified under Rule 23(b)(3), actions certified

under Rule 23(b)(2) do not contain strict notice requirements, leaving it to the Court’s

discretion to determine what notice, if any, should be given. See Fed. R. Civ. P. 23(c)(2). Here,

the Parties propose to revise the notice plan to ensure publication of notice in Access Now’s

electronic newsletter, the American Council for the Blind’s electronic newsletter, and the

National Federation of the Blind’s electronic newsletter. The publication notice will fairly,

accurately, and reasonably inform members of the putative class of: (1) the nature of this

litigation and the essential terms of the Amended Stipulation; (2) how to obtain additional

information regarding this matter and the Amended Stipulation; and (3) how to challenge, or

exclude themselves from the settlement if they wish to do so. This notice will adequately

provide notice to the class and comply with the due process requirements of Rule 23. See In

re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1342 (S.D. Fla. 2011) (finding the

notice “was sufficient to satisfy the requirements of due process because it described ‘the

substantive claims . . . [and] contained information reasonably necessary to [allow Settlement

Class Members to] make a decision to remain a class member and be bound by the final

judgment’”).

3. The Proposed Time Schedule Is Reasonable.

Finally, the Parties propose the following time schedule for the revised notice plan,

comment, and final approval of the Amended Stipulation of Settlement. See Proposed Order

Granting Preliminary Approval to Class Action Settlement, attached as Exhibit C. First, the

Parties request thirty-five (35) days from the date of this Court’s Order approving the revised


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notice plan to publish notice in Access Now’s electronic newsletter, the American Council

for the Blind’s electronic newsletter, and the National Federation of the Blind’s electronic

newsletter. Second, the Parties request that members of the class who wish to be excluded

mail their requests for exclusion to the settlement administrator no later than ninety-one (91)

days after this Court’s Order approving the revised notice plan . Third, the Parties request that

members of the class who wish to object and appear at the Fairness Hearing file their

objection and notice of intention to appear no later than ninety-one (91) days after this

Court’s Order approving the revised notice plan. Finally, the Parties request that the Fairness

Hearing take place no later than one hundred and twelve (112) days after this Court’s Order

approving the revised notice plan. The Parties agree that this time line is reasonable and

reserve the right to request changes in the schedule to the extent any such change becomes

necessary.

D. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court approve revisions

to the Amended Stipulation of Settlement, approve their revised notice plan, and reschedule a

Fairness Hearing.

CERTIFICATE OF COMPLIANCE WITH S.D. FLA. L.R. 7.1(a)(3)

Pursuant to S.D. Fla. L.R. 7.1(a)(3), Plaintiffs’ counsel certifies that they made a good

faith effort to resolve the matter referred to in this Motion. Specifically, Plaintiffs’ counsel

conferred with Defendant’s counsel regarding the relief requested in this Motion, and

Defendant’s counsel agreed to the requested relief.


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Dated: July 1, 2015 Respectfully Submitted,

By: s/Tiffany L. Anderson

Andrew B. Boese, Esq.

Florida Bar No. 824771

Tiffany L. Anderson, Esq.

Florida Bar No. 83995

LEÓN COSGROVE, LLC

255 Alhambra Circle, Suite 800

Coral Gables, FL 33134

Telephone: (305) 740-1975

Facsimile: (305) 437-8158

[email protected]

[email protected]

[email protected]

Counsel for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 1, 2015, a true and correct copy of the foregoing

document was automatically forwarded upon filing via the CM/ECF system to the following:

Edward C. Thompson, Esq.

Fredrick H. Lebron McClure, Esq.

DLA Piper, LLP

100 North Tampa Street, Suite 2200

Tampa, FL 33602

Tel: (813) 229-2111

Email: [email protected]

Email: [email protected]

Counsel for Defendant

s/Tiffany L. Anderson

Tiffany L. Anderson


Exhibit A

Case 1:14-cv-20589-DPG Document 41-1 Entered on FLSD Docket 07/01/2015 Page 1 of 5





Exhibit B


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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:14-CV-20589-JEM

DAVID NEW and ACCESS NOW, INC., individually and on behalf of all others similarly situated,

Plaintiffs,

v.


STIPULATION OF SETTLEMENT

This Stipulation of Settlement (“Stipulation”) is entered into by and among Plaintiffs

David New and Access Now, Inc., on behalf of himself and itself and the Settlement Class

Members (“Class Representatives”), and Defendant lululemon usa inc. (“Lululemon”).

Capitalized terms used herein are defined in Section II of this Stipulation or indicated in

parentheses elsewhere in this Stipulation. Subject to the Court’s approval, the Parties hereby

stipulate and agree that, in consideration for the promises and covenants set forth in the

Stipulation and upon the entry by the Court of a Final Judgment and Order Approving

Settlement and the occurrence of the Effective Date, the Action shall be settled and

compromised upon the terms and conditions contained herein.

I. RECITALS

A. On February 17, 2014, Plaintiff David New filed this Action against Lululemon

on behalf of himself and all legally blind consumers who attempted, or will attempt, to make a

debit purchase at Lululemon Stores throughout the United States by using the Point of Sale

Devices (“POS Devices”) but were unable to do so independently. Plaintiff Access Now, Inc.


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was joined as a party Plaintiff in this Action pursuant to a First Amended Complaint filed on

June 9, 2014. Plaintiffs allege in the Amended Complaint that during visits to a Lululemon

Store in Miami Beach, Florida, they attempted to make a purchase with a debit card but were

unable to make the purchase independently because, at the time of the visit, Lululemon's touch

screen POS Device was not fully accessible to, and independently usable by, blind people.

Plaintiffs contend that Lululemon’s use of the touch screen POS Devices discriminates against

blind and visually impaired consumers in violation of the ADA.

B. Lululemon strongly denies Plaintiffs’ allegations and claims. On March 31,

2014, Lululemon answered the Original Complaint denying all allegations in the Complaint and

asserting multiple affirmative defenses. On June 18, 2014, Lululemon likewise answered

Plaintiffs’ First Amended Complaint consistent with its Answer and Affirmative Defenses to the

Original Complaint.

C. Following preliminary fact investigation and voluntary information exchanges,

the Parties have engaged in extensive settlement discussions and communications over a period

of nearly three months. As a result of the settlement negotiations, the Parties have reached a

resolution of the dispute, as set forth in this Stipulation.

D. Class Counsel have determined that a settlement of the Action on the terms

reflected in this Stipulation is fair, reasonable, adequate, and in the best interests of Plaintiffs and

the Settlement Class.

E. Lululemon, to avoid the costs, disruption and distraction of further litigation, and

without admitting the truth of any allegations made in the Action, or any liability with respect

thereto, has concluded that it is desirable that the claims against it be settled and dismissed on

the terms reflected in this Stipulation.

II. DEFINITIONS

As used in this Stipulation and the attached exhibits (which are an integral part of the

Stipulation and are incorporated in their entirety by reference) the following terms shall have the


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meanings set forth below, unless this Stipulation specifically provides otherwise:

1. “Action” means David New and Access Now Inc. v. Lululemon USA, Inc.,

Case No. 1:14-cv-20589, U.S.D.C., S.D. Florida.

2. “ADA” or “American with Disabilities Act” means Title III of the

Americans with Disabilities Act of 1990, 42 U.S.C. sec. 12101, et seq., and the Title III

implementing regulations, 28 C.F.R., Part 36.

3. “Administration Expenses” means reasonable fees and expenses incurred

by the Settlement Administrator for all tasks the Settlement Administrator and any third parties

perform in furtherance of the administration of the Settlement, including: (1) preparation and

distribution of the Settlement Notice; (2) preparation of status reports to the Parties; and (3)

processing and administration of exclusions and objections.

4. “Application” means the application to be filed by Class Counsel in this

Action by which they will seek an award of attorneys’ fees and reimbursement of costs they

incurred prosecuting this Action, as well as awards to be paid to Plaintiffs.

5. “Attorneys’ Fees and Expenses” means such funds as may be awarded by

the Court based on the stipulation described herein to compensate Class Counsel as determined

by the Court, as described more particularly in Section VI of this Stipulation.

6. “Class Representatives” means Plaintiffs David New and Access Now,

Inc.

7. “Class Counsel” means the attorneys of record for the Plaintiffs and

means the following individuals: Andrew Boese and Tiffany Anderson of the law firm León

Cosgrove, LLC.

8. “Class Period” means January 1, 2010 through the Effective Date.

9. “Court” means the United States District Court, Southern District of

Florida.

10. “Defendant” or “Lululemon” means lululemon usa, inc.


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11. “Effective Date” means the first date after all the following have

occurred: (i) the Court has entered an order granting final approval of the Settlement in

accordance with the terms of this Stipulation; (ii) the time for any challenge to the Settlement,

both in the Court and on appeal, has elapsed; and (iii) the Settlement has become final, either

because no timely challenge was made to it or because any timely challenge has been finally

adjudicated and rejected or dismissed.

12. “Fairness Hearing” means the final hearing, to be held after notice has

been provided to the Settlement Class in accordance with this Stipulation, where the court will:

(a) determine whether to grant final approval to the certification of the Settlement Class; (b)

determine whether to designate Plaintiffs as the representatives of the Settlement Class; (c)

determine whether to designate Class Counsel as counsel for the Settlement Class; and the

Settlement; (d) rule on Class Counsel’s Application for an award of attorneys’ fees and

reimbursement of costs and for awards to Plaintiffs; and (e) consider whether to enter the Final

Approval Order.

13. “Final Approval Order” means the proposed Order Granting Final

Approval to the Class Action Stipulation and Entry of Final Judgment, to be entered by the

Court with the provisions and in the form of Exhibit B attached to this Stipulation.

14. “Lululemon Stores” means lululemon athletic stores, lululemon athletica

showrooms, ivivva stores and ivivva showrooms.

15. “Parties” means Plaintiffs David New and Access Now, Inc. and

Defendant Lululemon.

16. “Person” means any natural person, corporation, partnership, business

organization or association, or other type of legal entity.

17. “PIN” or “Personal Identification Number” means a unique numerical

code used by individual customers that must be entered into a POS Device before conducting

certain transactions on the POS Device.


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18. “Plaintiffs” means David New and Access Now, Inc.

19. “POS Device” or “Point of Sale Device” means a device that is staffed by

a Lululemon employee and used by a customer at a point of purchase to pay for items with a

debit, credit or other electronic funds card.

20. “Posted Notice” means the proposed notice, with the terms and form of

the document attached to the Preliminary Approval Order as Exhibit 1, to be approved by the

Court and to be posted online in accordance with paragraph VII of this Stipulation.

21. “Preliminary Approval Order” means the proposed Order Granting

Preliminary Approval to Class Action Settlement, to be entered by the Court with the terms and

form of Exhibit A attached to this Stipulation.

22. “Publication Notice” means the proposed notice, with the terms and form

of the document attached to the Preliminary Approval Order as Exhibit 2, to be approved by the

Court and to be published in accordance with paragraph VII of this Stipulation.

23. “Released Claims” means all claims, actions, causes of action,

administrative claims, demands, debts, damages, costs, attorney’s fees, obligations, judgments,

expenses, or liabilities, in law or in equity, whether now known or unknown, contingent or

absolute, other than claims for personal injury, that Plaintiffs or any member of the Settlement

Class now have or, absent this Stipulation, may in the future have had, against Releasees, or any

of them, by reason of any act, omission, harm, matter, cause, or event whatsoever that has

occurred at any time up to and including the entry of the Preliminary Approval Order, that has

been alleged in this Action or could have been alleged in the Action or in another court action,

and relates (i) to any of the alleged inadequacies, misstatements, or issues of or associated with

the POS Devices alleged in this Action or (ii) to any act, omission, damage, matter, cause, or

event whatsoever arising out of or related to the initiation, defense, or settlement of the Action or

the claims or defenses asserted or that could have been asserted in the Action. Provided,

however any claims for money damages based upon any state disability statutes are specifically


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excluded from the Released Claims.

24. “Released Parties” means Lululemon and its direct and indirect

subsidiaries and affiliates, franchisees, distributors, wholesalers, retailers, advertising and

production agencies, licensors, and agents, including all officers, directors, employees,

shareholders, consultants, insurers and assigns of all such persons or entities.

25. “Settlement Administrator” means KCC Class Action Services, the entity

selected by the Parties to administer the Settlement.

26. “Stipulation” means this Stipulation of Settlement and the exhibits

attached hereto.

27. “Settlement Class” means all blind and visually impaired consumers in

the United States who have attempted or who will attempt to independently use a debit card to

purchase goods at a Lululemon Store but could not because of the touch screen POS Device in

use at Lululemon Stores during the Class Period. Excluded from the Settlement Class are

officers, directors, and employees of Lululemon and their parents and subsidiaries, as well as

judicial officers and employees of the Court.

28. “Settlement Class Members” means all Persons who are members of the

Settlement Class and do not exclude themselves from the Settlement Class in the manner and

time prescribed by the Court in the proposed Preliminary Approval Order attached hereto as

Exhibit A.

29. The “Settlement Website” means www.accessnowsettlement.com which

Settlement Class Members can visit to read or request additional information regarding the

Settlement.

Other capitalized terms in this Stipulation but not defined in Section II.A. shall have the

meanings ascribed to them elsewhere in this Stipulation.

III. CERTIFICATION OF THE SETTLEMENT CLASS

This Stipulation is for settlement purposes only, and neither the fact of, nor any provision


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contained in this Stipulation, nor any action taken hereunder, shall constitute or be construed as

an admission of: (a) the validity of any claim or allegation by Plaintiffs or of any defense

asserted by Lululemon in the Action; or (b) any wrongdoing, fault, violation of law, or liability

on the part of any Party, Released Party, Settlement Class Member, or their respective counsel.

For the purpose of implementing this Stipulation, and for no other purpose, Defendant

stipulates to the conditional certification of the nationwide Settlement Class in this Action as set

forth in the Preliminary Approval Order. If for any reason this Stipulation should fail to become

effective, Defendant’s stipulation to certification of the Settlement Class provided for in this

Section III, or to any other class or subclass, shall be null and void, and the Parties shall return to

their respective positions in this Action as those positions existed as of March 13, 2014.

Nothing stated in this Stipulation shall be deemed an admission or waiver of any kind by any of

the Parties or used as evidence against, or over the objection of, any of the Parties for any

purpose in this action or in any other action or proceeding of any kind and all communications

between counsel for the Parties from February 1, 2014 through the date of the submission of the

Plaintiffs’ Motion seeking entry of the Preliminary Approval Order, and all communications

regarding and in furtherance of the Settlement, are and shall be considered settlement

communications conducted to aid in the compromise of the Action and may not be admitted as

against any Party to the Action.

IV. REQUIRED EVENTS

A. As soon as practicable after the execution of this Stipulation, Plaintiffs shall file

in this Action this Stipulation and a motion seeking entry of the Preliminary Approval Order,

which Lululemon agrees not to oppose, and which by its terms shall accomplish all of the

following:


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1. Preliminarily approve the Settlement and this Stipulation as fair and

reasonable to the Settlement Class;

2. Conditionally certify the Settlement Class for the purpose of effecting the

Settlement;

3. Designate Plaintiffs as the representatives of the Settlement Class;

4. Designate Class Counsel as counsel for the Settlement Class;

5. Designate KCC Class Action Services as the Settlement Administrator

and instruct the Settlement Administrator to perform the following functions in accordance with

the terms of this Stipulation, the Preliminary Approval Order, and the Final Approval Order:

a. Process requests for exclusion from the Settlement in accordance with

this Stipulation;

b. Before disseminating the Publication Notice, establish the Settlement

Website, which Settlement Class Members can visit to read or request additional information

regarding the Settlement;

c. Set up and operate a toll-free automated interactive voice response

system through which Settlement Class Members can access settlement information and

facilitate notice packet requests; and

d. Send via e-mail or mail notice packets to all those who may request same

via the toll-free number or mail. Notice in Braille will be provided upon request.

6. Approve the form, contents, and method of notice to be given to the

Settlement Class as set forth in Section VII of this Stipulation, and direct Lululemon to provide,

and cause to be provided, such notice and to file with the Court a declaration of compliance

with those notice requirements, as set forth in Section VII of this Stipulation;


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7. Establish procedures and schedule deadlines for Persons in the Settlement

Class to object to the Settlement or certification of the Settlement Class, and to exclude

themselves from the Settlement, all consistent with the terms of this Stipulation;

8. Schedule the Fairness Hearing for a date approximately, but no fewer

than, sixteen (16) weeks/one hundred and twelve (112) days after the date of the Court’s entry

of the Preliminary Approval Order; and

9. Schedule deadlines for the filing of: (a) papers in support of final

approval of the certification of the Settlement Class, the designation of Plaintiffs as the

representatives of the Settlement Class, the appointment of Class Counsel as counsel for the

Settlement Class, and the Settlement; (b) Class Counsel’s Application for attorneys’ fees and

expenses; and (c) objections to certification of the Settlement Class, to the designation of

Plaintiffs as the representatives of the Settlement Class, to the appointment of Class Counsel as

counsel for the Settlement Class, or to the Settlement.

B. At the Fairness Hearing the Parties will jointly request the Court to enter the

Final Approval Order, which: (1) grants final approval of the certification of the Settlement

Class, designates Plaintiffs as the representatives of the Settlement Class, and designates Class

Counsel as counsel for the Settlement Class, all as conditionally approved in the Preliminary

Approval Order; (2) grants final approval of the Settlement and this Stipulation as fair,

reasonable, and adequate to the Settlement Class; (3) provides for the release of all Released

Claims and enjoins Settlement Class Members from asserting, filing, maintaining, or

prosecuting any of the Released Claims; (4) orders the dismissal with prejudice of all claims,

causes of action, and counts alleged in the Action, and incorporates the releases and covenant

not to sue stated in this Stipulation, with each of the Parties to bear its or his/her own costs and


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attorney’s fees, except as provided in Section VI below; and (5) preserves the Court’s

continuing jurisdiction over the administration of the Settlement and enforcement of this

Stipulation.

Plaintiffs, Class Counsel, and Defendant will cooperate and take all reasonable actions to

accomplish the above. If the Court fails or refuses to enter either the Preliminary Approval

Order or the Final Approval Order, Plaintiffs, Class Counsel, and Defendant will use all

reasonable efforts that are consistent with this Stipulation to cure any defect identified by the

Court. If, despite such efforts, the Court does not enter the Preliminary Approval Order and the

Final Approval Order, the Parties will return to their prior positions in the Action, in accordance

with Section II of this Stipulation.

V. BENEFITS TO SETTLEMENT CLASS MEMBERS AND PROCEDURES FOR

PROVIDING BENEFITS TO SETTLEMENT CLASS MEMBERS

After the Effective Date, and in accordance with the terms of this Stipulation and its

exhibits, Lululemon will provide benefits as follows:

1. As soon as reasonably practicable after the Effective Date, but no later

than January 1, 2015, Lululemon will begin equipping each existing Lululemon Store with

VeriFone MX 915 Tactile PIN Pads as set forth herein. Provided, however, all new Lululemon

Stores that are opened during the Term of this Stipulation will be equipped with VeriFone MX

915 Tactile PIN Pads as set forth in Section V. as soon as the equipment is programmed and

certified as usable in Lululemon Stores.

2. VeriFone MX 915 Tactile PIN Pads shall be programmed so that blind

and visually-impaired customers may independently perform the same POS functions, that may


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be performed by fully-sighted customers using the VeriFone MX 915 Device without utilizing

the Tactile PIN Pad.

3. Lululemon shall provide at least one VeriFone MX 915 Tactile PIN Pad

in each Lululemon Store, and all Lululemon Stores will be equipped with VeriFone MX 915

Tactile PIN Pads as required by Section V. no later than May 31, 2015, unless extended by

Order of the Court.

4. In the event Lululemon changes the POS systems and or methods in the

Lululemon Stores after implementation of this Stipulation, any such new POS system and/or

methods shall be enabled in such a way that blind and visually-impaired customers can

independently use the POS functions that are available to fully-sighted customers.

VI. CLASS COUNSEL’S APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND FOR PLAINTIFFS’ SERVICE AWARD

A. Class Counsel will submit to the Court an application seeking an award of not

more than $37,000.00 in attorneys’ fees, expenses, and costs and a joint Class Representative

service award to Plaintiffs in the amount of $7,000.00 face value in Lululemon gift cards.

Neither Class Counsel nor Plaintiffs will request nor will they accept more than these amounts.

B. Lululemon agrees that it will not object to the amount of Class Counsel’s

Application up to the amounts set forth in the preceding paragraph, and agrees that it will,

contingent on entry of the Final Approval Order, pay the amounts approved by the Court up to

the amounts set forth in the preceding paragraph within 10 days of the Effective Date.

Lululemon shall make the cash payments by depositing through a wire exchange into an account

to be identified by Class Counsel, the sum so awarded and approved by the Court. Class

Counsel shall provide to Lululemon in a timely manner all wiring and account information

necessary to enable Lululemon to make these payments within the time required. Payment of

the Lululemon gift cards shall be made by forwarding same to Class Counsel by a national


{00074376. 1 } 12 EAST\76357598.3

courier service within 10 days of the Effective Date.

C. Class Counsel and Plaintiffs shall provide Lululemon with all necessary

accounting and tax information, including W-9 forms, with reasonable advance notice to allow

Lululemon to make the Attorneys’ Fees and Expenses award and incentive award payments as

set forth above.

VII. NOTICE TO THE SETTLEMENT CLASS

A. Notice

The Parties agree that the Publication Notice provides the Settlement Class and

Settlement Class Members information sufficient to inform them of: (1) the essential terms of

this Stipulation; (2) appropriate means for obtaining additional information regarding the

Stipulation and the Action; and, (3) appropriate information concerning the procedure for

challenging or excluding themselves from the Settlement, if they should wish to do so. To

facilitate the efficient administration of this Settlement, and to ensure appropriate notice

regarding the Settlement, the Parties have drafted the Settlement Notice. The Parties will

request the Court to approve the Settlement Notice in the Preliminary Approval Order.

B. Methods for Dissemination of Notice

As soon as practicable, but no later than three (3) weeks/ twenty-one (21) days after the

Court’s entry of the Preliminary Approval Order, the Posted Notice will be posted on the

Settlement Website, and linked to Access Now, Inc.’s website, www.adaaccessnow.org.

Within five (5) weeks/ thirty-five (35) days after the entry of the Preliminary Approval Order,

Lululemon shall publish, cause to be published, or ensure that the Settlement Administrator

provided for below has published, the Publication Notice in Access Now, Inc.’s electronic


http://www.adaaccessnow.org/

{00074376. 1 } 13 EAST\76357598.3

newsletter, the electronic newsletter of the American Council for the Blind, and the electronic

newsletter of the National Federation of the Blind.

The Parties agree that disseminating the Publication Notice in the manner specified in

this Section VII satisfies the notice requirements of due process, Rule 23 of the Federal Rules of

Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and any other

applicable laws, and constitutes the best notice practicable under the circumstances and shall

constitute due and sufficient notice to all persons entitled thereto. The Parties will jointly

request the Court to approve, in the Preliminary Approval Order, the dissemination of notice as

set forth above in this Section VII.

At or before the Fairness Hearing, Lululemon will file with the Court a declaration of

compliance with this plan of notice, including a statement of the number of addresses to which

the Settlement Notice was e-mailed or mailed.

VIII. COSTS OF NOTICE AND ADMINISTRATION

In addition to providing to Settlement Class Members the benefits described in Section V

above, Lululemon will pay: (A) the costs of preparing and disseminating the notices provided

for in Section VII above; and (B) the other Administration Expenses, including payments made

for the services of the Settlement Administrator. Notwithstanding the foregoing, Lululemon

shall not be responsible for any cost that may be incurred by, on behalf of, or at the direction of

Plaintiffs or Class Counsel in: (A) responding to inquiries about the Stipulation, the Settlement,

or the Action; (B) posting the Publication Notice on Class Counsel’s and/or Access Now, Inc.’s

websites, should that occur; (C) defending the Stipulation or the Settlement against any

challenge to it; or (D) defending against any challenge to any order or judgment entered

pursuant to the Stipulation.


{00074376. 1 } 14 EAST\76357598.3

IX. PROCEDURES FOR SETTLEMENT APPROVAL

Plaintiffs shall move the Court to enter the Preliminary Approval Order, which request

Lululemon will not oppose, and to set the following deadlines and Fairness Hearing date, all as

measured from the date on which the Court enters the Preliminary Approval Order:

Ten (10) weeks/ seventy (70) days after entry of the Preliminary

Approval Order: Date on or before which Class Counsel must file with

the Court, and serve on Defendant, Class Counsel’s Application for an

award of attorneys’ fees and reimbursement of costs incurred in the

Action and for Class Representative service awards to Plaintiffs.

Thirteen (13) weeks/ ninety-one (91) days after entry of the Preliminary

Approval Order: Date on or before which requests by members of the

Settlement Class to be excluded from the Settlement must be either

postmarked by the United States Postal Service or actually received by

the Settlement Administrator.


Approval Order: Date on or before which objections to certification of

the Settlement Class, the designation of Plaintiffs as class

representatives, the appointment of Class Counsel, the Settlement, the

Stipulation, or Class Counsel’s Application, together with all

supporting memoranda and other material, must be filed with the Court

and served on Class Counsel and Defendant.


Approval Order: Date on or before which any Person or attorney

seeking to appear at the Fairness Hearing, for the purpose of objecting

to certification of the Settlement Class, the designation of Plaintiffs as

representatives of the Settlement Class, the appointment of Class

Counsel, the Settlement, or the Stipulation, must file with the Court and

serve on Class Counsel and Defendant an entry of appearance in the

Action and notice of intention to appear at the Fairness Hearing.

Fifteen (15) weeks/ one hundred and five (105) days after entry of the

Preliminary Approval Order: Date on or before which the Parties and

any other Persons must file with the Court and serve on each other any

memorandum or other material they wish to submit in response to any

objections to certification of the Settlement Class, the designation of

Plaintiffs as representatives of the Settlement Class, the appointment of

Class Counsel, the Settlement, the Stipulation, or Class Counsel’s

Application, or otherwise in support of certification of the Settlement

Class, the Settlement, or the Stipulation.


{00074376. 1 } 15 EAST\76357598.3

Fifteen (15) weeks/ one hundred and five (105) days after entry of the

Preliminary Approval Order: Date on or before which Class Counsel

must file with the Court and serve on Defendant’s counsel, both by

first-class United States Mail and e-mail, any memorandum or

additional material they wish to submit in support of Class Counsel’s

Application.

Sixteen (16) weeks/ one hundred and twelve (112) days or more after

entry of the Preliminary Approval Order: Date of Fairness Hearing.

B. Final Approval

At the Fairness Hearing, the Parties will jointly request the Court to enter the Final

Approval Order, which: (1) grants final approval of the certification of the Settlement Class,

designates the Class Representatives, and designates Class Counsel conditionally approved in

the Preliminary Approval Order; (2) grants final approval to the Settlement and establishes this

Stipulation as fair, reasonable, and adequate to the Settlement Class; (3) provides for the release

of all Released Claims and enjoins Settlement Class Members from asserting, filing,

maintaining, or prosecuting any of the Released Claims; (4) orders the entry of judgment for

Defendant on all claims, causes of action, and counts alleged in the Action, and incorporates the

releases stated in this Stipulation, with each of the Parties to bear its or his own costs and

attorneys’ fees, except as provided in Section VI above; (5) authorizes the payment by

Lululemon of Class Counsel’s attorneys’ fees and expenses in accordance with Section VI above

and the terms of the Stipulation; and (6) preserves the Court’s continuing jurisdiction over the

administration of the Settlement and enforcement of the Stipulation.

X. RELEASES

A. By executing this Stipulation, the Parties acknowledge that, upon both the entry

of the Final Approval Order by the Court, and the passing of the Effective Date, the Action shall

be dismissed with prejudice, an order of dismissal with prejudice shall be entered, and all


{00074376. 1 } 16 EAST\76357598.3

Released Claims shall thereby be conclusively settled, compromised, satisfied, and released as

to the Releasees. The Final Approval Order shall provide for and effect the full and final

release, by Plaintiffs and all Settlement Class Members, of all Released Claims.

B. The Released Claims include all known and unknown claims, actions, and causes

of action relating to the POS Devices, other than claims for personal injury, and/or claims for

money damages under any state disability statutes and this Stipulation is expressly intended to

cover and include all such claims, actions, and causes of action, for losses or damages of any

type. Settlement Class Members hereby expressly, knowingly, and voluntarily waive any

provision of any state or federal statutory or case law that provide that a general release does not

extend to claims that 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 the creditor must have materially affected his or her

settlement with the debtor. Settlement Class Members hereby expressly, knowingly, and

voluntarily waive the provisions of Section 1542 of the California Civil Code, which provides

as follows:

A general release does not extend to claims which the

creditor does not know or suspect to exist in his favor at

the time of executing the release, which if known by him

must have materially affected his settlement with the

debtor.

Settlement Class Members expressly waive and relinquish all rights and benefits that they may

have under, or that may be conferred upon them by, the provisions of Section 1542 of the

California Civil Code and of all similar laws of other States, to the fullest extent that they may

lawfully waive such rights or benefits pertaining to the Released Claims.

C. The Settlement Class Members hereby expressly waive and relinquish all rights

and benefits that they may have under, or that may be conferred upon them by, the provisions of


{00074376. 1 } 17 EAST\76357598.3

state and federal statutory or case law, to the fullest extent that they may lawfully waive such

rights or benefits pertaining to the Released Claims. The Settlement Class Members hereby

acknowledge that they are aware that they or their attorneys may hereafter discover claims or

facts in addition to or different from those which they now know or believe to exist with respect

to the Released Claims, but that it is their intention to hereby fully, finally, and forever settle

and release all of the Released Claims, known or unknown, suspected or unsuspected, that they

have against Releasees. In furtherance of such intention, the release herein given by the

Settlement Class Members to the Releasees shall be and remain in effect as a full and complete

general release of all claims notwithstanding the discovery or existence of any such additional

different claims or facts.

D. The Final Approval Order shall further provide for and effect the release of all

actions, causes of action, claims, administrative claims, demands, debts, damages, costs,

attorney’s fees, obligations, judgments, expenses, compensation, or liabilities, in law or in

equity, whether now known or unknown, contingent or absolute, that Lululemon now has

against Plaintiffs, Settlement Class Members, Class Counsel, or Plaintiffs’ Counsel by reason of

any act, omission, harm, matter, cause, or event whatsoever arising out of the initiation,

prosecution, or settlement of the Action or the claims and defenses asserted in the Action.

Notwithstanding the above, the Court shall retain jurisdiction over the Parties and the

Stipulation with respect to the future performance of the terms of the Stipulation, and to assure

that all payments and other actions required of any of the Parties by the Settlement are properly

made or taken.

XI. FINAL JUDGMENT AND SETTLEMENT APPROVAL

This Stipulation is subject to and conditioned upon the issuance by the Court of the Final


{00074376. 1 } 18 EAST\76357598.3

Judgment and Order Approving Settlement that finally certifies the Settlement Class for the

purposes of this settlement, grants final approval of the Stipulation, and provides the relief

specified herein, which relief shall be subject to the terms and conditions of the Stipulation and

the Parties’ performance of their continuing rights and obligations hereunder. Such Final

Judgment and Order Approving Settlement shall be in substantially the form attached hereto as

Exhibit B.

XII. REPRESENTATIONS AND WARRANTIES

Each of the Parties represents and warrants to, and agrees with, each of the other Parties

as follows:

A. Each of the Parties has had the opportunity to receive, and has received,

independent legal advice from his or its attorneys regarding the advisability of making the

Settlement, the advisability of executing this Stipulation, and the legal and income tax

consequences of this Stipulation, and fully understands and accepts the terms of this Stipulation.

B. Lululemon represents and warrants: (1) that it has the requisite corporate power

and authority to execute, deliver and perform the Stipulation and to consummate the transactions

contemplated hereby; (2) that the execution, delivery and performance of the Stipulation and the

consummation by it of the actions contemplated herein have been duly authorized by necessary

corporate action on the part of Lululemon; and (3) that the Stipulation has been duly and validly

executed and delivered by Lululemon and constitutes its legal, valid and binding obligation.

C. Plaintiff New represents and warrants that he is entering into the Stipulation on

behalf of himself individually and as a proposed representative of the Settlement Class

Members, of his own free will and without the receipt of any consideration other than what is

provided in the Stipulation or disclosed to, and authorized by, the Court. Plaintiff New

represents and warrants that he has reviewed the terms of the Stipulation in consultation with

Class Counsel and believes them to be fair and reasonable, and covenants that he will not file a


{00074376. 1 } 19 EAST\76357598.3

Request for Exclusion from the Settlement Class or object to the Stipulation.

D. Plaintiff Access Now, Inc. represents and warrants that it is entering into the

Stipulation on behalf of itself individually and as a proposed representative of the Settlement

Class Members, of its own free will and without the receipt of any consideration other than what

is provided in the Stipulation or disclosed to, and authorized by, the Court. Plaintiff Access

Now, Inc. represents and warrants that it has reviewed the terms of the Stipulation in

consultation with Class Counsel and believes them to be fair and reasonable, and covenants that

it will not file a Request for Exclusion from the Settlement Class or object to the Stipulation.

Plaintiff Access Now, Inc. further represents and warrants: (1) that it has the requisite corporate

power and authority to execute, deliver and perform the Stipulation and to consummate the

transactions contemplated hereby; (2) that the execution, delivery and performance of the

Stipulation and the consummation by it of the actions contemplated herein have been duly

authorized by necessary corporate action on the part of Access Now, Inc.; and (3) that the

Stipulation has been duly and validly executed and delivered by Access Now, Inc. and

constitutes its legal, valid and binding obligation.

E. Plaintiffs represent and warrant that no portion of any claim, right, demand,

action, or cause of action against any of the Releasees that Plaintiffs have or may have arising

out of the Action or pertaining to the design, manufacture, testing, marketing, purchase, use,

sale, servicing, or disposal of the POS Device otherwise referred to in this Stipulation, and no

portion of any recovery or settlement to which Plaintiffs may be entitled, has been assigned,

transferred, or conveyed by or for Plaintiffs in any manner; and no Person other than Plaintiffs

has any legal or equitable interest in the claims, demands, actions, or causes of action referred to

in this Stipulation as those of Plaintiffs themselves.

F. None of the Parties relies or has relied on any statement, representation,

omission, inducement, or promise of any other party (or any officer, agent, employee,

representative, or attorney for any other party) in executing this Stipulation, or entering the


{00074376. 1 } 20 EAST\76357598.3

Settlement provided for herein, except as expressly stated in this Stipulation.

XIII. NO ADMISSIONS OF FAULT

The Stipulation and every stipulation and term contained in it is conditioned upon final

approval of the Court and is made for settlement purposes only. Whether or not consummated,

this Stipulation shall not be construed as, offered in evidence as, received in evidence as, and/or

deemed to be, evidence of a presumption, concession or an admission by Plaintiffs, Lululemon,

any Settlement Class Member or Released Party, of the truth of any fact alleged or the validity

of any claim or defense that has been, could have been, or in the future might be asserted in any

litigation, or the deficiency of any claim or defense that has been, could have been, or in the

future might be asserted in any litigation, or of any liability, fault, wrongdoing or otherwise of

such Party.

XIV. MISCELLANEOUS PROVISIONS

A. Conditional Nature of Settlement and Termination

Defendant and Plaintiffs shall each have the right to terminate the Settlement by providing

written notice of their election to do so to the other within thirty (30) days of: (a) the Court’s

declining to enter the Preliminary Approval Order in any material respect; (b) the Court’s

refusal to approve this Stipulation or any material part of it; (c) the Court’s declining to enter

the Final Approval Order in any material respect; (d) the date upon which the Final Approval

Order is modified or reversed in any material respect by the Court of Appeals or the Supreme

Court; or (e) in the event that the Court enters an order and final judgment in a form other than

that provided above (“Alternative Judgment”) and none of the parties hereto elect to terminate

this Settlement, the date that such Alternative Judgment is modified or reversed in any material

respect by the Court of Appeals or the Supreme Court.


{00074376. 1 } 21 EAST\76357598.3

B. Effectiveness, Amendments, and Binding Nature

This Stipulation may be amended only by a written Stipulation signed by the Parties.

Except as otherwise stated above, each of the Parties, including Plaintiffs on behalf of

themselves and the Settlement Class, expressly accepts and assumes the risk that, if facts or laws

pertinent to matters covered by this Stipulation are hereafter found to be other than as now

believed or assumed by that party to be true or applicable, this Stipulation shall nevertheless

remain effective.

This Stipulation is binding on, and shall inure to the benefit of, the Parties and their

respective agents, employees, representatives, officers, directors, parents, subsidiaries, assigns,

executors, administrators, insurers, and successors in interest. All Releasees other than

Defendant, which is a Party, are intended to be third-party beneficiaries of this Stipulation.

C. Cooperation in Implementation

Defendant, Plaintiffs, and their respective counsel agree to prepare and execute any

additional documents that may reasonably be necessary to effectuate the terms of this

Stipulation.

D. Governing Law

This Stipulation shall be construed and governed in accordance with the laws of the State

of Florida, without regard to Florida’s conflict-of-laws principles.

E. No Admission of Liability

The Parties are entering into this Stipulation for the purpose of compromising and

settling disputed claims. Nothing in this Stipulation or in the documents relating to this

Stipulation shall be construed, deemed, or offered as an admission by any of the Parties, or by

any member of the Settlement Class, for any purpose in any judicial or administrative action or


{00074376. 1 } 22 EAST\76357598.3

proceeding, whether in law or in equity, regardless of whether this Stipulation ultimately

becomes effective.

F. Stay Pending Court Approval

Plaintiffs’ Counsel and Defendant’s counsel agree to stay all proceedings, other than

those proceedings necessary to carry out or enforce the terms and conditions of the Settlement,

until the Effective Date of the Settlement has occurred. If, despite the Parties’ best efforts, this

Stipulation should fail to become effective, the Parties will return to their prior positions in the

Action, in accordance with Section III of this Stipulation.

The Parties also agree to use their best efforts to seek the stay and dismissal of, and to

oppose entry of any interim or final relief in favor of any Settlement Class Member in, any other

proceedings against any of the Releasees which challenges the Settlement or otherwise asserts or

involves, directly or indirectly, a Released Claim.

G. Signatures

This Stipulation may be executed in counterparts, and, when so executed, shall

constitute a binding original.

H. Notices

Whenever this Stipulation requires or contemplates that one Party shall or may give

notice to the other, notice shall be provided in writing by first class US Mail and email to:

1. If to Plaintiffs or Class Counsel:

Andrew Boese

León Cosgrove LLC

255 Alhambra Circle – Suite 424


[email protected]

2. If to Lululemon or Lululemon’s counsel:

Fredrick H. L. McClure


{00074376. 1 } 23 EAST\76357598.3

DLA PIPER LLP (US) 100 North Tampa Street Suite 2200 Tampa, FL 33602-5809 [email protected]

I. Good Faith

The Parties agree that they will act in good faith and will not engage in any conduct that

will or may frustrate the purpose of this Stipulation. The Parties further agree, subject to Court

approval as needed, to reasonable extensions of time to carry out any of the provisions of the

Stipulation.

J. Protective Orders

All orders, settlement agreements and designations regarding the confidentiality of

documents and information (“Protective Orders”) remain in effect, and all Parties and counsel

remain bound to comply with the Protective Orders, including the provisions to certify the

destruction of “Confidential” documents.

K. Binding on Successors

The Stipulation shall be binding upon, and inure to the benefit of, the heirs, and Released

Parties.

L. Arms-Length Negotiations

The determination of the terms and conditions contained herein and the drafting of the

provisions of this Stipulation has been by mutual understanding after negotiation, with

consideration by, and participation of, the Parties hereto and their counsel. This Stipulation

shall not be construed against any Party on the basis that the Party was the drafter or

participated in the drafting. Any statute or rule of construction that ambiguities are to be

resolved against the drafting party shall not be employed in the implementation of this

Stipulation and the Parties agree that the drafting of this Stipulation has been a mutual

undertaking.

M. Waiver: The waiver by one Party of any provision or breach of the Stipulation

shall not be deemed a waiver of any other provision or breach of the Stipulation.


{00074376. 1 } 24 EAST\76357598.3

N. Variance: In the event of any variance between the terms of this Stipulation and

any of the Exhibits hereto, the terms of this Stipulation shall control and supersede the

Exhibit(s).

O. Exhibits: All Exhibits to this Stipulation are material and integral parts hereof,

and are incorporated by reference as if fully rewritten herein.

P. Taxes: No opinion concerning the tax consequences of the Stipulation to any

Settlement Class Member is given or will be given by Lululemon, Lululemon’s counsel, or Class

Counsel; nor is any Party or their counsel providing any representation or guarantee respecting

the tax consequences of the Stipulation as to any Settlement Class Member. Each Settlement

Class Member is responsible for his/her tax reporting and other obligations respecting the

Stipulation, if any.

Q. Retain Jurisdiction: The Court shall retain jurisdiction with respect to the

implementation and enforcement of the terms of this Stipulation, and all Parties hereto submit to

the jurisdiction of the Court for purposes of implementing and enforcing the agreements

embodied in this Stipulation.

R. Attorneys’ Fees: Notwithstanding any other provision of this Stipulation, if any

party finds it necessary to institute legal proceedings to enforce another party’s obligation under

this Stipulation, the prevailing party in any such action shall be entitled to recover its reasonable

attorneys’ fees and costs.

IN WITNESS WHEREOF, the Parties hereto have caused this Stipulation to be executed

by their duly authorized representatives.


Respectfully Submitted, •

Dated this ~-flay of July, 2015

An . Boese Florida Bar No. 824771 [email protected] Tiffany L. Anderson Florida Bar No. 083995 tandersonleoncosg,rove.com LEON COSGROVE 255 Alhambra Circle Suite 800 Coral Gables, FL 33134 Phone: (305) 740-1975 Fax: (305) 437-8158 Attorneys for Plaintiffs David New and Access Now, Inc.

Fredrick H.L. McClure Florida Bar No. 147354 [email protected] E. Colin Thompson Florida Bar No. 684929 colin.thompson(Dt,dlapiper.com DLA PIPER LLP (US) 100 North Tampa Street Suite 2200 Tampa, FL 33602-5809 Phone: (813) 229-2111 Fax: (813) 229-1447 Attorneys for Defendant lululemon usa inc.

)00074376. I ) 25 EAST176357598.3


Exhibit A


{00074395. 1 }



CASE NO. 1:14-CV-20589-MARTINEZ/GOODMAN

DAVID NEW and ACCESS NOW, INC., individually and on behalf

of all others similarly situated,

Plaintiff,

v.

LULULEMON USA, INC.,

Defendant.

_____________________________________/

[PROPOSED] ORDER GRANTING PRELIMINARY

APPROVAL TO CLASS ACTION SETTLEMENT

On July 18, 2014, Plaintiffs David New and Access Now, Inc., on behalf of themselves

and a putative nationwide class (the “Settlement Class”), and Defendant lululemon usa, inc

(“Lululemon”) (collectively, the “Parties”), executed a proposed Stipulation of Settlement (the

“Stipulation”). Pursuant to the Stipulation, Plaintiffs moved for entry of an order granting

preliminary approval to the settlement provided for in the Amended Stipulation (the

“Settlement”). Having reviewed the Stipulation and considered the submissions in support of

preliminary approval of the Settlement, the Court now finds, concludes, and Orders as follows:

I. CERTIFICATION OF A NATIONWIDE SETTLEMENT CLASS

The Stipulation provides for a nationwide class settlement of the claims that are the

subject of this litigation.

A. The Court has considered (1) the allegations, information, arguments, and

authorities provided by the Parties in connection with pleadings previously filed in this case; (2)

information, arguments, and authorities provided by Plaintiffs in their memorandum of law

submitted in support of their unopposed motion for entry of an order granting preliminary


{00074395. 1 }

approval of the Settlement; (3) the terms of the Stipulation, including, but not limited to, the

definition of the Settlement Class and the benefits to be provided to the Settlement Class; and (4)

the Settlement’s elimination of any potential manageability issue, ascertainability issue, and

individualized issues of fact and law that could have had a bearing on the certification of a

nationwide class for trial in this case. Based on those considerations, the Court hereby finds as

follows:

1. Since at least January 1, 2010, Lululemon has used a touch screen point of

sale device (the “POS Devices”), in its lululemon athletic stores, lululemon athletica

showrooms, ivivva stores and ivivva showrooms (the “Lululemon Stores”) that does not

permit blind customers to make purchases independently because of the non-tactile touch

screens.

2. Lululemon owns and/or operates 221 Lululemon Stores throughout the

United States and its territories. There are no records maintained with respect to what

number or percentage of those customers are blind or visually impaired. However, the

Parties believe that the number readily satisfies the numerosity requirement of Rule 23 of

the Federal Rules of Civil Procedure.

3. There are questions of law and fact common to all members of the

Settlement Class based on Lululemon’s use of the POS Devices in all of its Lululemon

Stores. Such questions include, but are not necessarily limited to, the following:

a. Whether Lululemon Stores are places of public accommodation

under the Americans With Disabilities Act (the “ADA”);

b. Whether members of the Settlement class were bona fide patrons

of the Lululemon Stores, as defined by the ADA;


{00074395. 1 }

c. Whether Lululemon’s use of the POS Devices in the Lululemon

Stores had the effect of discriminating against blind and visually impaired

patrons;

d. Whether Lululemon provided auxiliary aids and services to its

patrons that were implemented to make the POS Devices fully accessible and

independently usable by its blind patrons;

e. If Lululemon did not provide auxiliary aids and services to its

blind patrons, whether doing so would fundamentally alter the nature of

Lululemon’s business and/or impose an undue burden upon Lululemon.

4. Plaintiffs’ claims are typical of the claims of the Settlement Class.

Plaintiffs are members of the Settlement Class and allege that they have been

discriminated against by the same conduct of Lululemon that they allege has

discriminated against other members of the Settlement Class. Plaintiffs’ claims are not in

conflict with or antagonistic to the claims of the Settlement Class as a whole. The claims

of Plaintiffs and other members of the Settlement Class are based upon corresponding

theories.

5. The Settlement Class is ascertainable. The unnamed members of the

Settlement Class have in common that each of them shopped at a Lululemon Store and

was unable to use the POS Device independently, including but not limited to the use of

their debit card as payment without providing the Personal Identification Number

(“PIN”) to the Lululemon sales personnel.

6. Plaintiffs can fairly, fully, and adequately protect the interests of the

Settlement Class. Plaintiffs’ counsel are experienced in prosecuting complex class action


{00074395. 1 }

litigation, and Plaintiffs and their counsel have no interest that conflicts with, or is

adverse to, the interests of the Settlement Class.

7. Questions of law and fact common to all members of the Settlement Class

predominate over any questions affecting only individual members for settlement

purposes.

8. A nationwide class action for settlement purposes is superior to other

available methods for the fair and efficient adjudication of this controversy.

B. Pursuant to Federal Rule of Procedure 23, the Court hereby provisionally certifies

the following Settlement Class for settlement purposes only:

Each blind or visually impaired individual in the United States and its territories

who from January 1, 2010 to the date of this Order purchased or attempted to

purchase goods at a Lululemon Store with a debit card and was unable to

independently use the POS Device in the Lululemon Store to complete their

purchase. Excluded from the Settlement Class are officers, directors, and

employees of Lululemon and its parents and subsidiaries, as well as judicial

officers and employees of the Court.

C. Plaintiffs are appointed as the representatives of the Settlement Class, and the law

firm Leon Cosgrove, LLP is appointed as Class Counsel for the Settlement Class.

D. If for any reason the Stipulation ultimately does not become effective,

Lululemon's conditional stipulation to certification of the Settlement Class provided for in this

paragraph D shall be null and void, and the Parties shall return to their respective positions in this

Lawsuit as those positions existed as of March 13, 2014. Nothing stated in the Stipulation or in

this Order shall be deemed an admission or waiver of any kind by either of the Parties or used as

evidence against, or over the objection of, either of the Parties for any purpose in this action or in

any other action or proceeding of any kind.


{00074395. 1 }

II. PRELIMINARY APPROVAL OF THE TERMS OF THE SETTLEMENT

Lululemon has at all times disputed, and continues to dispute, Plaintiffs’ factual

allegations in this lawsuit and to deny any liability for any of the claims that have or could have

been alleged by Plaintiffs or other members of the Settlement Class.

A. The Settlement provides prospective injunctive relief in the form of Lululemon’s

cessation of use of the POS Devices. Lululemon will, pursuant to a defined schedule, install

Verifone MX915 Tactile PIN Pad POS equipment in all Lululemon Stores in the United States

and its territories, and provide a joint service award to Plaintiffs in the amount of $7,000 face

value in Lululemon gift cards.

B. On a preliminary basis, therefore, taking into account (1) the value of the benefits

to be provided by the Settlement to the eligible members of the Settlement Class, (2) the

defenses asserted by Lululemon in pleadings before this Court, (3) the risks to the members of

the Settlement Class that Lululemon would successfully defend against claims arising out of the

facts and legal theories pled and asserted in this case, whether litigated by members of the

Settlement Class themselves or on their behalf in a class action, and (4) the length of time that

would be required for members of the Settlement Class, or any group of members of the

Settlement Class, to obtain a final judgment through one or more trials and appeals, the

Settlement appears fair, reasonable, and adequate. Moreover, the parties have reached the

Settlement after a lengthy arms-length negotiation, significant investigation and informal

discovery conducted by Plaintiffs, Class Counsel, and Lululemon. For all these reasons, the

Settlement falls within the appropriate range of possible approval and does not appear in any

way to be the product of collusion.


{00074395. 1 }

C. Accordingly, the Stipulation and corresponding Settlement are hereby

preliminarily approved.

D. The Court hereby adopts and incorporates the terms of the Stipulation for the

purposes of this Preliminary Approval Order, including the Definitions set forth in the

Stipulation.

III. APPROVAL OF THE SETTLEMENT NOTICE, THE PUBLICATION NOTICE,

AND THE PLANS FOR DISTRIBUTING THE NOTICES

As provided for in the Stipulation, the Parties have submitted a proposed Settlement; a

proposed Posted Notice, a copy of which is attached to this Order as Exhibit 1; a proposed

Publication Notice, a copy of which is attached to this Order as Exhibit 2; and a plan for

distributing the Publication Notice to the Settlement Class. Having reviewed each, the Court

finds and concludes as follows:

A. Distribution of the Posted Notice and Publication Notice as proposed is the only

notice required, and such notice satisfies the requirements of due process, Rule 23 of the Federal

Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and any

other applicable laws, and constitutes the best notice practicable under the circumstances and

shall constitute due and sufficient notice to all persons entitled thereto.

B. The Posted Notice and Publication Notice fairly, accurately, and reasonably

inform members of the Settlement Class of: (1) appropriate information about the nature of this

litigation and the essential terms of the Stipulation; (2) appropriate information about how to

obtain additional information regarding this matter and the Stipulation; and (3) appropriate

information about how to challenge, or exclude themselves from, the Settlement, if they wish to

do so. The Posted Notice and Publication Notice also fairly and adequately inform members of

the Settlement Class that if they do not comply with the specified procedures and the deadline for


{00074395. 1 }

objections, they will lose any opportunity to have any objection considered at the Fairness

Hearing (as that term is defined in the Stipulation ) or otherwise to contest approval of the

Settlement or to appeal from any order or judgment entered by the Court in connection with the

Settlement.

Accordingly, the Court hereby Orders as follows:

1. The form and content of the proposed Posted Notice and Publication

Notice are hereby approved.

2. Promptly following the entry of this Order, the Parties shall prepare final

versions of the Posted Notice and the Publication Notice, and incorporate into each of

them the Fairness Hearing date and deadlines set forth in paragraph IV of this Order.

3. Within three (3) weeks/twenty-one (21) days after the entry of this Order,

Lululemon, through the Settlement Administrator, shall cause the Posted Notice to be

posted on the Settlement Administrator’s website, www.accessnowsettlement.com (the

“Settlement Website”), and linked to Plaintiff Access Now, Inc.’s website,

www.adaaccessnow.com.

4. Within five (5) weeks/thirty-five (35) days after the entry of the

Preliminary Approval Order, Lululemon shall publish, or cause to be published, the

Publication Notice in Plaintiff Access Now, Inc.’s electronic newsletter, the American

Council for the Blind’s electronic newsletter, and the National Federation of the Blind’s

electronic newsletter.

5. This civil action was commenced after February 18, 2005. As a result, the

Court directs Lululemon to notify the appropriate Federal and State officials under the

Class Action Fairness Act of 2005, 28 U.S.C. § 1715. Lululemon’s Counsel shall file


http://www.adaaccessnow.com/

{00074395. 1 }

with the Court proof of compliance with the Class Action Fairness Act of 2005, 28

U.S.C. § 1715.

6. At or before the Fairness Hearing, Lululemon shall file with this Court a

declaration of compliance with paragraphs 3, 4, 5 and 6 above.

7. KCC Class Action Services is hereby approved as the Settlement

Administrator, whose reasonable costs in administering the Settlement are to be paid by

Lululemon.

8. The Settlement Administrator shall perform the following functions in

accordance with the Stipulation, this Order, and subsequent orders that may be entered by

this Court in this case:

a. Establish a postal address to which Settlement Class Members can

request to be excluded from the Settlement Class.

b. Establish the Settlement Website, which Settlement Class

Members can visit to review the Settlement Notice and the Stipulation and obtain

information on how to request exclusion from the Settlement Class, how to object

to the Settlement, and other information regarding the Settlement


system through which Settlement Class Members can access settlement

information and facilitate requests for the Settlement Notice, information on

how to request exclusion from the Settlement Class, how to object to the

Settlement and other settlement information, can be sent to them via mail or

email.


{00074395. 1 }

d. Send via email or mail notice packets to all those who may request

via the toll-free number or mail.

e. Process requests for exclusion from the Settlement in accordance

with Section IV. of the Stipulation.

f. Promptly provide to Class Counsel and Lululemon’s counsel

copies of the requests for exclusion and a list of the names of all persons who

submitted requests for exclusion. Class Counsel and Lululemon shall jointly

report in writing to the Court, within fifteen (15) weeks/one hundred and five

(105) days after the entry of this Order, the names of all such persons.

g. Provide to Class Counsel and Lululemon’s counsel, in the time and

manner specified in the Stipulation, all information and materials that the

Stipulation specifies are to be provided to them by the Settlement Administrator.

IV. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT

A. Fairness Hearing

The Court hereby schedules on ____________________, 2015, which date is

approximately (and no less than) sixteen (16) weeks/one hundred and twelve (112) days after the

entry of this Order, a Fairness Hearing to determine whether the certification of the Settlement

Class, the designation of Plaintiffs as class representatives, the appointment of Class Counsel, the

Stipulation, and the Settlement should receive final approval. At that time, the Court also will

consider an application for an award of attorneys’ fees and costs to Class Counsel and for awards

to Plaintiffs, all in accordance with the terms of the Stipulation (the “Application”).

B. Deadline for Requests for Exclusion from the Settlement Class


{00074395. 1 }

Members of the Settlement Class who wish to be excluded from the Settlement Class

must mail their requests for exclusion to the Settlement Administrator by first-class United States

mail, postmarked by the United States Postal Service no later than thirteen (13) weeks/ninety-one

(91) days after the entry of this Order. Any request for exclusion submitted in any other manner

shall be deemed to have been submitted when actually received by the Settlement Administrator.

Settlement Class Members shall be bound by all determinations and judgments in this Lawsuit,

whether favorable or unfavorable, unless such persons request exclusion from the Class in a

timely and proper manner.

C. Deadline for Class Counsel to File Fee Application

No later than ten (10) weeks/seventy (70) days after the entry of this Order, Class

Counsel shall file with this Court, and serve on Lululemon, Class Counsel’s Application,

pursuant to the Stipulation, for an award of attorneys’ fees and reimbursement of costs incurred

in the lawsuit and for awards to Plaintiffs.

D. Deadline for Filing Objections and Requests to Appear

All objections to certification of the Settlement Class, the designation of Plaintiffs as

class representatives, the appointment of Class Counsel, the Settlement, the Stipulation, or Class

Counsel’s Application, shall be made in writing and, no later than thirteen (13) weeks/ninety-one

(91) days after the entry of this Order, filed with this Court and mailed to Class Counsel and

Lululemon’s counsel, by first-class United States Mail, at the following addresses:

To Lululemon’s Counsel: To Class Counsel:


DLA PIPER LLP


Tampa, FL 33602

John Bosco

Andrew Boese

Leon Cosgrove, LLP




{00074395. 1 }

Any written objection must include (1) the name of this lawsuit, David New and Access

Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-JEM; (2) the objector’s name,

address, and telephone number; (3) a statement confirming that the objector is a Settlement Class

Member; (4) a written statement, under penalty of perjury, setting forth the date and the address

of the Lululemon Store at which a purchase was made or attempted to be made using a debit

card; a written statement under penalty of perjury will constitute sufficient proof of any actual or

attempted purchase; (5) each specific reason for the objection; (6) all evidence and supporting

papers (including, but not limited to, all briefs, written evidence, and declarations) that the

objector wants the Court to consider in support of the objection; (7) the objector’s signature; and

(8) the date of the objector’s signature. Any papers not filed and served in the prescribed manner

and time will not be considered at the Fairness Hearing, and all objections not made in the

prescribed manner and time shall be deemed waived.

Any memorandum or other material the Parties wish to submit in response to any

objections to the certification of the Settlement Class, the designation of Plaintiffs as

representatives of the Settlement Class, the appointment of Class Counsel, the Settlement, the

Stipulation, or Class Counsel’s Application, or otherwise in support of the Settlement Class, the

Settlement, the Stipulation, or Class Counsel’s Application, shall be made in writing and, no later

than fifteen (15) weeks/one hundred and five (105) days after the entry of this Order, filed with

this Court and served on each other.

All persons wishing to appear at the Fairness Hearing, either in person or by counsel, for

the purpose of objecting to any aspect of the certification of the Settlement Class, the designation

of Plaintiffs as representatives of the Settlement Class, the appointment of Class Counsel, the

Settlement, the Stipulation, or Class Counsel’s Application, must file with the Court and serve,


{00074395. 1 }

on Class Counsel and Lululemon’s counsel, no later than thirteen (13) weeks/ninety-one (91)

days after the entry of this Order, a notice of their intention to appear setting forth the basis of

their objections and summarizing the nature and source of any evidence they intend to present at

the Fairness Hearing.

V. STAY OF PROCEEDINGS

Pending final determination of whether the Settlement should be approved, the Plaintiffs,

all other Settlement Class Members, and each of them, and anyone who acts or purports to act on

their behalf, shall not institute, commence or prosecute any action which asserts Released Claims

against any Releasee. Pending the Fairness Hearing, the Court stays all proceedings in the

Lawsuit, other than those proceedings necessary to carry out or enforce the terms and conditions

of the Stipulation.

IT IS SO ORDERED.

Dated: ________________, 2015

Darrin P. Gayles, United States District Judge


Exhibit 1


{00074321. 1 } WEST\253998588.2

LULULEMON USA, INC.

POINT OF SALE DEVICES

CLASS SETTLEMENT

YOUR LEGAL RIGHTS MAY BE AFFECTED BY THIS

SETTLEMENT.

PLEASE READ THIS NOTICE CAREFULLY

A proposed settlement of a class action lawsuit against lululemon usa, inc. ("Lululemon") has been

reached. You may be a member of the Settlement Class if you are blind and purchased or attempted

to purchase goods with a debit card at a lululemon athletic store, lululemon athletica showroom,

ivivva store or ivivva showroom (the “Lululemon Stores”) between January 1, 2010, and January 14,

2015, and were unable to independently use the point of sale device (the “POS Device”) to conclude

your purchase because the POS Device was not tactile enabled. The lawsuit alleged, among other

things, that the POS Devices in Lululemon Stores are effectively inaccessible to blind patrons of the

stores because the POS Devices are not tactile enabled. As a consequence, blind patrons cannot

independently use the POS Devices. Plaintiffs contend that Lululemon’s use of the POS Devices

discriminates against blind patrons. Lululemon denies any wrongdoing and any liability whatsoever,

and no court or other entity has made any judgment or other determination of any liability .

As part of the settlement, Lululemon has agreed to replace the POS Devices in all of the Lululemon

Stores with new devices that are tactile enabled and programmed so that blind patrons can make full and

independent use of the devices in the same manner as fully sighted patrons. More information

is available at www.accessnowsettlement.com.

The Court will hold a hearing at the Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami

Ave., Room 11-2, Miami FL 33128 on ______, 2015 at ___:00 a.m. to determine whether the settlement

is fair, reasonable and adequate. If you wish, you or your lawyer may ask to appear and speak at the

hearing at your own expense. Class Counsel will also file a motion seeking attorneys' fees and expenses up to $37,000.00 and an award of up to $7,000.00 face value in Lululemon gift cards to the two plaintiffs,

jointly. You or your lawyer may ask to appear and speak at your own expense, but you don't have to.

If the proposed settlement is approved by the Court, certain legal claims that class members may have

against Lululemon related to the POS Devices will be released. If you do not wish to be bound by the

terms of the settlement, you must mail a written request for exclusion to Lululemon POS Device Class

Settlement, Settlement Administrator, P.O. Box 40007, College Station, TX 77842-4007 postmarked by

________, 2015. Or, you may file a formal written objection to the settlement by ________, 2015. Visit

the settlement website, www.accessnowsettlement.com for specific information on how to do so.

For more settlement details, including copies of a long-form notice and the signed Stipulation, visit the settlement website, www.accessnowsettlement.com. You may also write to Lululemon POS Device Class Settlement, Settlement Administrator, P.O. Box 40007, College Station, TX 77842-4007 or telephone the settlement administrator toll-free at 1-866-371-8991.

Do not contact the Court or Lululemon. This Notice is only a summary.


http://www.accessnowsettlement.com/


Exhibit 2


{00074320. 1 } WEST\253998584.2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

NOTICE OF PROPOSED CLASS SETTLEMENT If you are blind and purchased or attempted to purchase goods with a

debit card at a lululemon athletic store, lululemon athletica showroom,

ivivva store or ivivva showroom (the “Lululemon Stores”) between

January 1, 2010, and January 14, 2015, and were unable to

independently use the point of sale equipment (the “POS Device”) to

conclude your purchase because the POS Device was not tactile enabled,

your rights may be affected by a proposed class action settlement.

Excluded from the Settlement Class are officers, directors, and

employees of lululemon usa, inc. and its parents and subsidiaries

(collectively, “Lululemon”), as well as judicial officers and employees of

the Court.

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

The Settlement resolves a lawsuit over Lululemon’s use of a touch screen POS

Device in Lululemon Stores that impedes blind patrons’ ability to independently

make a debit card purchase.

Lululemon has agreed to replace the POS Devices in all Lululemon Stores with

new, tactile enabled devices that will be programmed to allow blind patrons to use

the devices in the same manner as fully-sighted patrons.

Your legal rights are affected whether you act or do not act. Please read this notice

carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

EXCLUDE YOURSELF

BY____, 2015 You will not be giving up your right to sue Lululemon, but you

cannot object and you will not be a part of the Settlement.

OBJECT BY ___, 2015 20152015201522015202015015

Write to the Court about why you do not like the Settlement.

GO TO A HEARING ON

__, 2015

Ask to speak in Court about the Settlement.

DO NOTHING

You give up the right to sue on your own regarding any claims that

are part of the Settlement.


{00074320. 1 } WEST\253998584.2

These rights and options—and the deadlines to exercise them—are

explained below.

The Court in charge of this case has preliminarily approved the Settlement,

but still must decide whether to give final approval. The relief to be provided

to settlement class members will only be provided if the Court gives final

approval to the Settlement and after any appeals are resolved. Please be

patient.

BACKGROUND INFORMATION

1. Why did I get this notice?

If you are blind or visually impaired and attempted to or did use a debit card to purchase

goods at a Lululemon Store between January 1, 2010, and January 14, 2015, but could not

do so independently because of the POS Device used in the Lululemon Store, then your

rights could be affected under the proposed settlement that has been reached in a class

action lawsuit against Lululemon.

The Court directed that this Notice be posted because settlement class members have a

right to know about the proposed settlement, and about all of their options, before the

Court decides whether to approve the Settlement. If the Court approves the Settlement,

and after objections and appeals are resolved, Lululemon will implement the benefits

that the Settlement provides.

This Notice explains the nature of the lawsuit, the general terms of the proposed settlement,

what benefits are available, who is eligible for them, and how to get them.

The Court in charge of this case is the United States District Court for the Southern

District of Florida, and the case is known as David New and Access Now, Inc. v.

Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG. The person and entity who sued,

David New and Access Now, Inc., are called "Plaintiffs" and the company they sued,

Lululemon USA, Inc., is called the "Defendant."

2. What is this lawsuit about?

The lawsuit claimed, among other things, that the POS Devices Defendant uses in the

Lululemon Stores are inaccessible to blind patrons of the store because the POS Devices

are not tactile enabled. As a consequence, blind patrons cannot independently use the

POS Devices. Plaintiffs contend that Defendant’s use of the POS Devices discriminates

against blind patrons. Defendant denies any wrongdoing and any liability whatsoever,

and no court or other entity has made any judgment or other determination of any

liability.

The above description of the lawsuit is general and does not cover all of the issues and

proceedings that have occurred. In order to see the complete file for the Action, you

should visit the website of the Administrative Office of the U.S. Courts, PACER Service

Center, located at http://www.pacer.gov/. You can also review a number of documents

pertinent to this case, including the Stipulation of Settlement at

www.accessnowsettlement.com.



{00074320. 1 } WEST\253998584.2

3. Why is this a class action?

In a class action, one or more individuals and or entities, called class representatives (in

this case Plaintiffs David New and Access Now, Inc.), sue on behalf of people who have

similar claims. All these people are a class or class members. One court resolves the

issues for all class members, except those who exclude themselves from the class. U.S.

District Court Judge Darrin P. Gayles is in charge of this class action.

4. Why is there a settlement?

The Court has not decided in favor of Plaintiffs or Defendant. Instead, both sides agreed to a

settlement. That way, they avoid the cost of a trial, and the Settlement Class Members receive

relief now rather than years from now, if at all. The Class Representatives and their attorneys

believe the settlement is in the best interest of the settlement class.

5. How do I know if I am part of the settlement?

You first have to decide if you are a settlement class member.

As described above, the Court decided that everyone who fits this description is a settlement

class member:

Each blind person in the United States and its territories who from

January 1, 2010 to January 14, 2015 purchased or attempted to purchase

goods at a Lululemon Store with a debit card and was unable to

independently use the POS Device in the Lululemon Store to complete

their purchase. Excluded from the Settlement Class are officers,

directors, and employees of Lululemon and its parents and subsidiaries,

as well as judicial officers and employees of the Court.

THE PROPOSED SETTLEMENT

6. What does the Settlement provide?

Lululemon has agreed to replace all POS Devices in Lululemon Stores with new, tactile

enabled devices that will be programmed to allow blind patrons to independently use

all functions of the device to the same extent as fully sighted patrons.

To read more about the new devices, visit the website, www.accessnowsettlement.com.

7. When will the class receive this benefit?

The Court will hold a hearing on ____, 2015 to decide whether to approve the Settlement. If

Judge Gayles approves the Settlement after that, there may be appeals. It is always uncertain

whether these appeals can be resolved, and resolving them can take time, perhaps more than a

year. Please be patient.



{00074320. 1 } WEST\253998584.2

DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS

8. What am I giving up to receive these benefits or stay in the class?

Unless you exclude yourself, you are staying in the Settlement Class, and that means you

cannot sue, continue to sue, or be part of any other lawsuit against Defendant about the

legal issues in this case. It also means that all of the Court's orders will apply to you and

legally bind you. If you do not exclude yourself, upon the "Effective Date," you will

release all "Released Claims" (as defined below) against the "Releasees" (as defined

below).

"Released Claims" means all claims, actions, causes of action, administrative claims,

demands, debts, damages, costs, attorney's fees, obligations, judgments, expenses, or

liabilities, in law or in equity, whether now known or unknown, contingent or absolute,

other than claims for personal injury, that Plaintiffs or any member of the Settlement

Class now have or, absent this Stipulation, may in the future have had, against Releasees,

or any of them, by reason of any act, omission, harm, matter, cause, or event whatsoever

that has occurred at any time up to and including the entry of the Preliminary Approval

Order, that has been alleged in this Lawsuit or could have been alleged in the Lawsuit or

in another court action, and relates (i) to any of the alleged inadequacies, misstatements,

or issues of or associated with the POS Devices alleged in this Lawsuit or (ii) to any act,

omission, damage, matter, cause, or event whatsoever arising out of or related to the

initiation, defense, or settlement of the Lawsuit or the claims or defenses asserted or that

could have been asserted in the Lawsuit. Claims under any state disability law are

specifically excluded from the Released Claims.

"Releasees" means (a) Lululemon, together with its respective predecessors and

successors in interest, parents, subsidiaries, affiliates, and assigns, past, present, and

future officers, directors, agents, representatives, employees, attorneys, and insurers; and

(b) all suppliers, distributors, dealers, retailers, trade partners, licensors, licensees,

franchisees, public relations firms, advertising and production agencies, and other entities,

whether foreign or domestic, who were or are in the chain of or played any role in, the

design, testing, manufacture, assembly, distribution, marketing, sale, lease, installation, or

servicing of the POS Devices or their component parts.

The "Effective Date" will occur when an order entered by the Court approving the Settlement

becomes final and not subject to appeal.

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you do not want a payment from this settlement, but you want to keep any right you may

have to sue or continue to sue the Defendant and the other Releasees, on your own, about the

Released Claims, then you must take steps to get out. This is called excluding yourself — or is

sometimes referred to as "opting out" of the settlement class.

9. How do I get out of the Settlement?

To exclude yourself from the Settlement Class, you must send a letter or postcard

stating: (a) the name of the Action, David New and Access Now, Inc. v. Lululemon USA,


{00074320. 1 } WEST\253998584.2

Inc., Case No. 1:14-CV-20589-DPG; (b) your full name, address, telephone number,

and signature; and (c) a statement that you want to be excluded from the Settlement,

postmarked no later than ____, 2015 to the Claims Administrator at:

Lululemon POS Device Class Settlement

Claims Administrator

P.O. Box 40007

College Station, TX 77842-4007

You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you

cannot object to the Settlement. However, you will not be legally bound by anything that

happens in this lawsuit.

10. If I do not exclude myself, can I sue the Defendant and the other Releasees for the same

thing later?

No. Unless you exclude yourself, you give up the right to sue Defendant for the claims that the

Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that pending

lawsuit immediately. You must exclude yourself from this Settlement Class to continue your

own lawsuit. Remember, the exclusion deadline is ____, 2015.

THE LAWYERS REPRESENTING THE CLASS

11. Do I have a lawyer in this case?

The Court ordered that the law firm of Leon Cosgrove, LLP in Coral Gables, FL will

represent the Settlement Class. Those lawyers are called Class Counsel. You will not be

charged for these lawyers. If you want to be represented by your own lawyer, you may

hire one at your own expense.

12. How will the lawyers be paid?

Class Counsel will ask the Court for up to $37,000.00 to cover all of their attorneys' fees

and costs and for payment of up to $7,000.00 face value in Lululemon gift cards to the

Plaintiffs David New and Access Now, Inc. jointly for their services as class

representatives. The Court may award less than these amounts. Defendant will separately

pay the attorneys' fees and expenses and plaintiff payments that the Court awards and no

additional payments will be required from the Settlement Class Members. Defendant has

agreed not to oppose these attorneys' fees and expenses and plaintiff payment. Defendant

will also separately pay the costs to administer the Settlement.

Copies of Class Counsel's applications for attorneys' fees, expenses, and plaintiff award will

be available on the settlement website, www.accessnowsettlement.com.

OBJECTING TO THE SETTLEMENT

You can tell the Court that you do not agree with the settlement or some part of it.

13. How do I tell the Court that I do not like the settlement?



{00074320. 1 } WEST\253998584.2

If you are a settlement class member, you can object to the settlement if you do not like any

part of it. You can give reasons why you think the Court should not approve it. The Court will

consider your views.

To object, you must send a signed letter stating that you object to the proposed settlement

in David New and Access Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-

DPG. Your written objection must include: (i) your name, address, and telephone

number; (ii) the full case name and number (David New and Access Now, Inc. v.

Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG); (iii) a statement that you are a

Settlement class member; (iv) a statement of each objection asserted; (v) a detailed

description of the facts underlying each objection; (vi) a detailed description of the legal

authorities supporting each objection; (vii) a statement of whether you intend to appear

and speak at the Fairness Hearing and, if so, how much time you anticipate needing to

present the objection; (viii) a list of the exhibits that you may offer during the Fairness

Hearing, along with copies of such exhibits; and (ix) your signature. In addition, if

applicable, please include: (i) the identity of all counsel who represent you, including any

former or current counsel who may be entitled to compensation for any reason related to

your objection; (ii) the number of times in which you, your counsel (if any), or your

counsel's law firm (if any) has objected to a class action settlement within the three years

preceding the date that the objector files the objection and the caption of each case in

which such objection was made; and (iii) a statement disclosing any consideration that

you, your counsel (if any), or your counsel's law firm (if any) has received in connection

with the resolution or dismissal of an objection to a class action settlement within the three

years preceding the date that the objector files the objection. The deadline to file your

objection is _____, 2015. The objection must be filed with the Court by that date. The

address to file your written objection with the United States District Court is:

Clerk of the Court

U.S. District Court for the Southern District of Florida

Wilkie D. Ferguson, Jr. United States Courthouse

400 North Miami Avenue

Miami, FL 33128

You must also send a copy of your written objection to counsel for both parties at the

addresses below:

CLASS COUNSEL: DEFENDANT'S COUNSEL:

Andrew Boese, Esq.

Leon Cosgrove, LLP



Fredrick McClure, Esq. DLA Piper LLP (US) 100 North Tampa Street, Suite 2200 Tampa, FL 33602-5809

If you do not timely make your objection, you will be deemed to have waived all objections

and will not be entitled to speak at the fairness hearing.

14. What is the difference between objecting and excluding?

Objecting is simply telling the Court that you do not like something about the

Settlement. You can object only if you remain a settlement class member. Excluding


{00074320. 1 } WEST\253998584.2

yourself is telling the Court that you do not want to be a part of the case and wish to

forgo the relief provided by the Settlement. If you exclude yourself, you have no basis

to object because the case no longer affects you.

THE COURT'S FAIRNESS HEARING

The Court has preliminarily approved the Settlement Agreement and will hold a hearing on

____, 2015 to decide whether to give final approval to the proposed settlement. You may attend and you

may ask to speak, but you do not have to.

15. When and where will the Court decide whether to approve the proposed

settlement?

The Court will hold the Fairness Hearing at ___:00 a.m. on ___, 2015 at the Wilkie D.

Ferguson, Jr. United States Courthouse, 400 North Miami Avenue, Miami, Florida 33128 in

Room 11-2. At this hearing, the Court will consider whether the Settlement is fair,

reasonable, and adequate.

If there are objections, the Court will consider them. Judge Gayles will listen to people

who have asked to speak at the hearing. See question 17 for more information about

speaking at the hearing. After the Fairness Hearing, the Court will decide whether to

approve the Settlement and whether to award any attorneys' fees and expenses and

awards to Plaintiffs David New and Access Now, Inc. We do not know how long these

decisions will take.

16. Do I have to come to the hearing?

No. Class Counsel will answer questions Judge Gayles may have. But, you are welcome

to come at your own expense. If you send an objection, you do not have to come to the

Court to talk about it. As long as you filed your written objection on time, the Court will

consider it. You may also pay your own lawyer to attend, but it is not necessary.

Settlement class members do not need to appear at the hearing or take any other action

to indicate their approval.

17. May I speak at the hearing?

You may ask the Court for permission to speak at the Fairness Hearing. To do so, you

must send a letter saying that it is your "Notice of Intention to Appear in David New and

Access Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG." Be sure to

include your name, address, telephone number, and your signature. Your Notice of

Intention to Appear must be postmarked no later than ___, 2015, and be sent to the Clerk

of the Court, Class Counsel, and Defense Counsel, at the three addresses in question 13.

Unless otherwise ordered by the Court, you cannot speak at the Fairness Hearing if you

excluded yourself from the Settlement Class or if you have not provided written notice of

your intention to speak at the Fairness Hearing by the deadline identified, and in

accordance with the procedures described in this section and question 13 above.


{00074320. 1 } WEST\253998584.2

IF YOU DO NOTHING

18. What happens if I do nothing at all?

If you do nothing, you will not be able to start a lawsuit, continue with a lawsuit, or be a

party to any other lawsuit against Defendant and the other Releasees about the legal

issues in this case, ever again.

GETTING MORE INFORMATION

19. Are there more details about the Settlement?

This notice summarizes the proposed settlement. More detailed terms are in the signed

Stipulation. You can get a copy of the Stipulation by writing to Class Counsel at the

address above or by visiting www.accessnowsettlement.com, where you will also find

answers to common questions about the Settlement, Class Counsel's papers in support of

the Settlement and their applications for attorneys' fees, expenses, and plaintiff awards

(after they are filed), and other documents. All other papers that have been filed in the

Action may be inspected at the Office of the Clerk of the Court of the United States

District Court for the Southern District of Florida, Wilkie D. Ferguson, Jr. United States

Courthouse, 400 North Miami Avenue, Miami, FL 33128, during regular business hours.

PLEASE DO NOT CALL THE COURT OR THE CLERK OF COURT FOR

ADDITIONAL INFORMATION ABOUT THE SETTLEMENT.



Exhibit B


{00074396. 1 } 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:14-CV-20589-JEM

DAVID NEW, individually and on behalf of all others similarly situated,

Plaintiff,

v.


[PROPOSED] ORDER GRANTING FINAL APPROVAL TO CLASS ACTION

SETTLEMENT AND ENTRY OF FINAL JUDGMENT

Plaintiffs David New and Access Now, Inc. on behalf of themselves and a

nationwide class (the “Settlement Class”), and Defendant lululemon usa, inc

(“Lululemon”) (collectively "the Parties"), have entered into an Amended Stipulation of

Settlement (the “Stipulation”). The Parties previously submitted the Amended

Stipulation to this Court for preliminary approval of the class action settlement provided

for therein (the “Settlement”). On , 2015, this Court entered an Order

Granting Preliminary Approval to Class Action Settlement ("Preliminary Approval Order"). On

, 2015, the Parties filed a declaration confirming the timely distribution to

the Settlement Class of the Settlement Notice and Publication Notice required by the

Preliminary Approval Order. Now, the matter having come before the Court for hearing on

, 2015, on the Parties' request for the entry of an order granting final

approval to the proposed Settlement and for entry of final judgment in this matter, the

Court finds and concludes that it has jurisdiction over the Parties and the subject matter


{00074396. 1 } 2

and finds, concludes, and orders as follows:

I. JURISDICTION OF THE COURT

The Parties and the Settlement Class Members have submitted to the jurisdiction

of the Court for purposes of the Settlement; the Court has personal jurisdiction over the

Parties and the Settlement Class Members; the Court has subject matter jurisdiction to

release all claims and causes of action released in the Settlement; and the Court has

subject matter jurisdiction to approve the Settlement.

II. CLASS CERTIFICATION

In the Preliminary Approval Order, this Court granted conditional class certification to

the following nationwide Settlement Class:

Each blind or visually impaired individual in the United States and its

territories who from January 1, 2010 to DATE OF THE

PRELIMINARY APPROVAL ORDER purchased or attempted to




directors, and employees of Lululemon and their parents and subsidiaries,


The Court found and concluded that the Settlement Class satisfied all the

requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, the Class

Action Fairness Act of 2005, 28 U.S.C. § 1715, and any other applicable laws; appointed

Plaintiffs as class representatives; and appointed Plaintiffs' counsel, the law firm Leon

Cosgrove, LLP as counsel for the Settlement Class ("Class Counsel"). Having

considered all submissions timely filed with the Court pursuant to the Preliminary

Approval Order, the Court now finds and concludes that the provisions of the

Preliminary Approval Order conditionally certifying the Settlement Class, appointing

Plaintiffs as representatives of the Settlement Class, appointing KCC Class Action


{00074396. 1 } 3

Services as the Claims Administrator, and appointing Class Counsel should be, and

hereby are, confirmed in all respects as a final class certification order under Federal

Rule of Civil Procedure 23 for the purposes of implementing the nationwide class

settlement provided for in the Stipulation and Settlement, and entering final judgment in

this action.

III. N O T I C E

The Preliminary Approval Order approved: (1) the form and content of a posted

notice (the "Posted Notice") to be posted on the Claims Administrator's website,

www.accessnowsettlement.com, and linked to Access Now, Inc.’s website,

adaaccessnow.org; (2) the form and content of a publication notice (the "Publication

Notice"); and (3) the plan specified in the Stipulation for distributing the Posted

Notice and a Publication Notice.

The Publication Notice fairly, accurately, and reasonably informed members of

the Settlement Class of: (1) appropriate information about the nature of this litigation

and the essential terms of the Stipulation; (2) appropriate information about, and

means for obtaining, additional information regarding this litigation and the

Stipulation; and (3) appropriate information about the right of Settlement Class

Members to exclude themselves from the Settlement, object to the terms of the

Settlement Agreement, or object to Class Counsel's application for an award of

attorneys' fees and reimbursement of expenses ("Application"), and the procedures to

do so.

The Publication Notice fairly and adequately informed members of the

Settlement Class that if they did not comply with the specified procedures and deadline for


{00074396. 1 } 4

filing objections, they would lose any opportunity to have any objection considered by this

Court at the Fairness Hearing or otherwise to contest approval of the Settlement or to appeal

from any order or judgment entered by this Court in connection with the Settlement.

The plan specified in the Preliminary Approval Order for distributing the

Publication Notice has been implemented and has provided to the Settlement Class

reasonable notice of the Settlement. There is no additional mode of distribution that

would be reasonably likely to notify members of the Settlement Class who may not

already have received notice pursuant to that distribution plan. The Preliminary

Approval Order also required that the Posted Notice be posted on the Claim

Administrator's website, www.accessnowsettlement.com, and linked to the website of

Access Now, Inc., www.adaaccessnow.org.

The Preliminary Approval Order required Lululemon to file with the Court a declaration

of its compliance with the foregoing notice requirements. Pursuant to the Preliminary Approval

Order, Lululemon has filed the required declaration. Additionally, Lululemon's Counsel has

filed with the Court proof of compliance with the Class Action Fairness Act of 2005.

Based on the foregoing, the Court hereby finds and concludes that members of the Settlement

Class have been provided the best notice practicable of the Settlement and that such notice satisfies all

requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, the Class Action Fairness

Act of 2005, 28 U.S.C. § 1715, and all other applicable laws.

IV. PERSONS EXCLUDED FROM THE SETTLEMENT CLASS

The Claims Administrator may have received, from certain Settlement Class Members,

requests for exclusion from the Settlement Class and has provided Class Counsel and Lululemon's

Counsel copies of any such requests. Class Counsel and Lululemon's Counsel have filed with the Court


{00074396. 1 } 5

a list of any persons who have timely elected to be excluded. All persons named in the list attached

hereto as Exhibit 1 are hereby excluded from the Settlement Class and will not be bound by the terms of

the Settlement.

V. FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT

In the Preliminary Approval Order, the Court found that the Stipulation appeared to be

fair, reasonable, and adequate and fell within the appropriate range of possible approval. In essence, the

Settlement provides the Settlement Class with the benefits described in Section V. of the Stipulation. The

Stipulation provides these benefits to the Settlement Class even though Lululemon has at all times

disputed, and continues to dispute, Plaintiffs' allegations in this lawsuit and to deny any liability for any

of the claims that have been or could have been alleged by Plaintiffs or other members of the Settlement

Class.

Taking into account: (1) the defenses asserted by Lululemon in pleadings filed with this

Court, (2) the risk to Settlement Class Members that Lululemon would successfully defend, at trial or

on appeal or both, against claims arising out of the facts and legal theories pled and asserted in

this case, whether litigated by Settlement Class Members themselves or on their behalf in a

class action, and (3) the length of time that would be required for Settlement Class

Members to obtain a final judgment through one or more trials and appeals, the

Settlement Agreement is fair, reasonable, and adequate. Moreover, the Parties have

reached the Settlement after vigorous litigation, significant investigation and discovery

by Plaintiffs, Class Counsel, and Lululemon, and a protracted, arm's-length negotiation

process, and the Settlement is not in any way the product of collusion.

Accordingly, having considered the foregoing, the number of class members

who have requested to be excluded from the Settlement, the level of opposition to the


{00074396. 1 } 6

Settlement, the strengths and weaknesses of the claims that have been and could be

asserted by or on behalf of the members of the Settlement Class, the strengths and

weaknesses of the defenses that have been and could be asserted by Lululemon, the

damages and other relief that have been and could be claimed on behalf of the

members of the Settlement Class, the value of the Settlement, and the complexity,

length, expense, and uncertain outcome of continued litigation, and there being no

suggestion of improper collusion among the parties, the Court finds that the

Settlement is fair, reasonable, and adequate to members of the Settlement Class, and

the Court hereby grants final approval of the Settlement Agreement and enters this

Judgment implementing its terms. The Court hereby adopts and incorporates the terms of

the Stipulation for the purposes of this Final Approval Order, including the Definitions set forth

in the Stipulation.

VI. ADMINISTRATION OF THE SETTLEMENT

For the purposes of consummating the administration of the Settlement, the

Court orders as follows:

1. As soon as reasonably practicable after the Effective Date, but no later than

January 1, 2015, Lululemon will begin equipping each existing Lululemon Store with VeriFone

MX 915 Tactile PIN Pads as set forth herein. Provided, however, all new Lululemon Stores

that are opened during the Term of the Stipulation will be equipped with VeriFone MX 915

Tactile PIN Pads as set forth herein as soon as the equipment is programmed and certified as

usable in Lululemon Stores.

2. VeriFone MX 915 Tactile PIN Pads shall be programmed so that blind and

visually-impaired customers may independently perform the same POS functions that


{00074396. 1 } 7

may be performed by fully-sighted customers using the VeriFone MX 915 Device without

utilizing the Tactile PIN Pad.

3. Lululemon shall provide at least one VeriFone MX 915 Tactile PIN Pad in

each Lululemon Store, and all Lululemon Stores will be equipped with VeriFone MX 915

Tactile PIN Pads no later than May 31, 2015.

4. Subsequent to implementation of this Order, if Lululemon changes the POS

Devices and or methods in the Lululemon Stores, any new POS Device and or methods shall be

enabled in such a way to facilitate the same usages as required herein for the VeriFone MX 915

Tactile PIN Pads.

5. The Court hereby awards $7,000.00 face value in Lululemon gift cards to

the Plaintiffs, jointly, in compensation for the time, effort, and risk they undertook as

representatives of the Settlement Class.

6. The Court hereby awards attorneys' fees and costs to compensate Class

Counsel for their time incurred and expenses advanced. The Court has concluded that:

(a) Class Counsel achieved a favorable result for the Class by obtaining Lululemon’s

agreement to certain operational changes both now and into the future; (b) Class

Counsel devoted substantial effort to pre-and post-filing investigation, legal analysis,

and litigation; (c) Class Counsel prosecuted the Settlement Class's claims on a

contingent fee basis, investing significant time and accumulating costs with no

guarantee that they would receive compensation for their services or recover their

expenses; (d) Class Counsel employed their knowledge of and experience with class

action litigation in achieving a valuable settlement for the Settlement Class, in spite of

Lululemon’s possible legal defenses and its experienced and capable counsel; (e) Class


{00074396. 1 } 8

Counsel have standard contingent fee agreements with Plaintiffs, who have reviewed the Amended

Stipulation and been informed of Class Counsel's Application and have approved; and (f) the

Notice informed Settlement Class Members of the amount and nature of Class Counsel's fee and

cost request under the Amended Stipulation, Class Counsel filed and posted their Application in

time for Settlement Class Members to make a meaningful decision whether to object to the Class

Counsel's Application, and [ ] Settlement Class Members objected. For these reasons, the

Court hereby approves Class Counsel's Application and awards to Class Counsel fees and costs in the

total aggregate amount of $37,000.00.

7. Lululemon shall pay the awards to Class Counsel and to Plaintiffs in accordance

with and at the times prescribed by the Stipulation.

VII. RELEASES AND EFFECT OF SETTLEMENT AGREEMENT

A. Releases

In consideration of the terms of the Stipulation, all members of the Settlement Class who

have not timely excluded themselves from the Settlement ("Settlement Class Members"),

including Plaintiffs, are hereby found, deemed, and adjudged to have fully, finally, and forever

released and discharged all Released Claims against any and all Releasees.

"Released Claims" include all known and unknown claims, actions, and causes of action

relating to the POS Devices, other than claims for personal injury, and/or any money damages under

any state disability law, and this Stipulation is expressly intended to cover and include all such

claims, actions, and causes of action, for losses or damages of any type. Settlement Class Members

hereby expressly, knowingly, and voluntarily waive any provision of any state or federal statutory or

case law that provide that a general release does not extend to claims that 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 the


{00074396. 1 } 9

creditor must have materially affected his or her settlement with the debtor. Settlement Class

Members hereby expressly, knowingly, and voluntarily waive the provisions of Section 1542 of the

California Civil Code, which provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to

exist in his favor at the time of executing the release, which if known by him must have materially

affected his settlement with the debtor.

Settlement Class Members expressly waive and relinquish all rights and benefits that they

may have under, or that may be conferred upon them by, the provisions of Section 1542 of the

California Civil Code and of all similar laws of other States, to the fullest extent that they may

lawfully waive such rights or benefits pertaining to the Released Claims.

The Settlement Class Members hereby expressly waive and relinquish all rights and

benefits that they may have under, or that may be conferred upon them by, the provisions of state

and federal statutory or case law, to the fullest extent that they may lawfully waive such rights or

benefits pertaining to the Released Claims. The Settlement Class Members hereby acknowledge

that they are aware that they or their attorneys may hereafter discover claims or facts in addition to or

different from those which they now know or believe to exist with respect to the Released Claims,

but that it is their intention to hereby fully, finally, and forever settle and release all of the Released

Claims, known or unknown, suspected or unsuspected, that they have against Releasees. In

furtherance of such intention, the release herein given by the Settlement Class Members to the

Releasees shall be and remain in effect as a full and complete general release of all claims

notwithstanding the discovery or existence of any such additional different claims or facts.

Settlement Class Members further release all actions, causes of action, claims,

administrative claims, demands, debts, damages, costs, attorney’s fees, obligations, judgments,


{00074396. 1 } 10

expenses, compensation, or liabilities, in law or in equity, whether now known or unknown,

contingent or absolute, that they have or may have against Lululemon.

"Releasees" means: (a) Lululemon, together with its respective predecessors

and successors in interest, parents, subsidiaries, affiliates, and assigns, its past,

present, and future officers, directors, agents, representatives, employees, attorneys,

and insurers.

In consideration of the terms of the Stipulation, Lululemon and its predecessors,

successors and assigns, are hereby found, deemed, and adjudged to have fully, finally,

and forever released and discharged all actions, causes of action, claims, administrative

claims, demands, debts, damages, costs, attorney's fees, obligations, judgments,

expenses, or liabilities, in law or in equity, whether now known or unknown, contingent

or absolute, that Lululemon now has against Plaintiffs, Settlement Class Members, Class

Counsel, or Plaintiffs' Counsel by reason of any act, omission, harm, matter, cause, or

event whatsoever arising out of the initiation, prosecution, or settlement of the Lawsuit

or the claims asserted in the Lawsuit.

B. Amended Stipulation as Exclusive Remedy for Released Claims

Upon the entry of this Final Approval Order: (1) enforcement of the Amended

Stipulation shall be the exclusive remedy for Settlement Class Members with respect to

all Released Claims of Settlement Class Members; and (2) the Releasees shall not be

subject to liability or expense of any kind to any of the Settlement Class Members, all of

whom are hereby permanently barred and enjoined from initiating, asserting, or

prosecuting against any of the Releasees, in any federal or state court or tribunal, any

Released Claim. Settlement Class Members who are prosecuting or asserting any of the


{00074396. 1 } 11

Released Claims are ordered to take whatever measures are necessary to effectuate the

dismissal of their claims.

C. Effect of a Final Judicial Determination of Invalidity or Unenforceability

If, after the entry by this Court of this Final Approval Order, a notice of appeal of this

Final Approval Order is timely filed by any party, objector, claimant, or other person or

entity, and if an appellate court makes a final determination that this Final Approval Order is

in any respect invalid, contrary to law, or unenforceable, Lululemon’s stipulation to

certification of the Settlement Class provided for in this Order shall be null and void,

and the Parties shall return to their respective positions in this Lawsuit as those

positions existed as of March 13, 2014.

The final Court-ordered amount of any award of attorneys' fees and costs to

Class Counsel is a matter separate and apart from the Stipulation and this Final

Approval Order. Neither the decision by the Court concerning the award of attorneys'

fees and costs nor any appeal of the Court's order concerning attorneys' fees and costs

shall affect the validity or finality of the Settlement.

VIII. NO ADMISSION OF LIABILITY

The Parties entered into the Amended Stipulation for the purpose of

compromising and settling disputed claims. Nothing in the Amended Stipulation or in

the documents relating to Stipulation shall be construed, deemed, or offered as an

admission by any of the Parties, or by any member of the Settlement Class, for any

purpose in any judicial or administrative action or proceeding, whether in law or in equity,

regardless of whether the Amended Stipulation ultimately becomes effective.


{00074396. 1 } 12

IX. ENTRY OF FINAL JUDGMENT

The Court hereby orders dismissal with prejudice of all claims alleged in the

Class Action Complaint in this case. The Court further orders the entry of, and

hereby enters, this Judgment. The Court expressly retains jurisdiction over all matters

relating to the adjudication of claims and the provision of benefits as provided by the

Preliminary Approval Order and by this Order, as well as all other matters relating to the

administration and consummation of the Settlement, including, but not limited to, requests

by Lululemon, Class Counsel, or Settlement Class Members for review of the Settlement

Administrator.

IT IS SO ORDERED.

Dated: , 2015



Exhibit C


{00074395. 1 }



CASE NO. 1:14-CV-20589-MARTINEZ/GOODMAN

DAVID NEW and ACCESS NOW, INC., individually and on behalf

of all others similarly situated,

Plaintiff,

v.

LULULEMON USA, INC.,

Defendant.

_____________________________________/

[PROPOSED] ORDER GRANTING PRELIMINARY

APPROVAL TO CLASS ACTION SETTLEMENT

On July 18, 2014, Plaintiffs David New and Access Now, Inc., on behalf of themselves

and a putative nationwide class (the “Settlement Class”), and Defendant lululemon usa, inc

(“Lululemon”) (collectively, the “Parties”), executed a proposed Stipulation of Settlement (the

“Stipulation”). Pursuant to the Stipulation, Plaintiffs moved for entry of an order granting

preliminary approval to the settlement provided for in the Amended Stipulation (the

“Settlement”). Having reviewed the Stipulation and considered the submissions in support of

preliminary approval of the Settlement, the Court now finds, concludes, and Orders as follows:

I. CERTIFICATION OF A NATIONWIDE SETTLEMENT CLASS

The Stipulation provides for a nationwide class settlement of the claims that are the

subject of this litigation.

A. The Court has considered (1) the allegations, information, arguments, and

authorities provided by the Parties in connection with pleadings previously filed in this case; (2)

information, arguments, and authorities provided by Plaintiffs in their memorandum of law

submitted in support of their unopposed motion for entry of an order granting preliminary


{00074395. 1 }

approval of the Settlement; (3) the terms of the Stipulation, including, but not limited to, the

definition of the Settlement Class and the benefits to be provided to the Settlement Class; and (4)

the Settlement’s elimination of any potential manageability issue, ascertainability issue, and

individualized issues of fact and law that could have had a bearing on the certification of a

nationwide class for trial in this case. Based on those considerations, the Court hereby finds as

follows:

1. Since at least January 1, 2010, Lululemon has used a touch screen point of

sale device (the “POS Devices”), in its lululemon athletic stores, lululemon athletica

showrooms, ivivva stores and ivivva showrooms (the “Lululemon Stores”) that does not

permit blind customers to make purchases independently because of the non-tactile touch

screens.

2. Lululemon owns and/or operates 221 Lululemon Stores throughout the

United States and its territories. There are no records maintained with respect to what

number or percentage of those customers are blind or visually impaired. However, the

Parties believe that the number readily satisfies the numerosity requirement of Rule 23 of

the Federal Rules of Civil Procedure.

3. There are questions of law and fact common to all members of the

Settlement Class based on Lululemon’s use of the POS Devices in all of its Lululemon

Stores. Such questions include, but are not necessarily limited to, the following:

a. Whether Lululemon Stores are places of public accommodation

under the Americans With Disabilities Act (the “ADA”);

b. Whether members of the Settlement class were bona fide patrons

of the Lululemon Stores, as defined by the ADA;


{00074395. 1 }

c. Whether Lululemon’s use of the POS Devices in the Lululemon

Stores had the effect of discriminating against blind and visually impaired

patrons;

d. Whether Lululemon provided auxiliary aids and services to its

patrons that were implemented to make the POS Devices fully accessible and

independently usable by its blind patrons;

e. If Lululemon did not provide auxiliary aids and services to its

blind patrons, whether doing so would fundamentally alter the nature of

Lululemon’s business and/or impose an undue burden upon Lululemon.

4. Plaintiffs’ claims are typical of the claims of the Settlement Class.

Plaintiffs are members of the Settlement Class and allege that they have been

discriminated against by the same conduct of Lululemon that they allege has

discriminated against other members of the Settlement Class. Plaintiffs’ claims are not in

conflict with or antagonistic to the claims of the Settlement Class as a whole. The claims

of Plaintiffs and other members of the Settlement Class are based upon corresponding

theories.

5. The Settlement Class is ascertainable. The unnamed members of the

Settlement Class have in common that each of them shopped at a Lululemon Store and

was unable to use the POS Device independently, including but not limited to the use of

their debit card as payment without providing the Personal Identification Number

(“PIN”) to the Lululemon sales personnel.

6. Plaintiffs can fairly, fully, and adequately protect the interests of the

Settlement Class. Plaintiffs’ counsel are experienced in prosecuting complex class action


{00074395. 1 }

litigation, and Plaintiffs and their counsel have no interest that conflicts with, or is

adverse to, the interests of the Settlement Class.

7. Questions of law and fact common to all members of the Settlement Class

predominate over any questions affecting only individual members for settlement

purposes.

8. A nationwide class action for settlement purposes is superior to other

available methods for the fair and efficient adjudication of this controversy.

B. Pursuant to Federal Rule of Procedure 23, the Court hereby provisionally certifies

the following Settlement Class for settlement purposes only:

Each blind or visually impaired individual in the United States and its territories

who from January 1, 2010 to the date of this Order purchased or attempted to


independently use the POS Device in the Lululemon Store to complete their

purchase. Excluded from the Settlement Class are officers, directors, and

employees of Lululemon and its parents and subsidiaries, as well as judicial

officers and employees of the Court.

C. Plaintiffs are appointed as the representatives of the Settlement Class, and the law

firm Leon Cosgrove, LLP is appointed as Class Counsel for the Settlement Class.

D. If for any reason the Stipulation ultimately does not become effective,

Lululemon's conditional stipulation to certification of the Settlement Class provided for in this

paragraph D shall be null and void, and the Parties shall return to their respective positions in this

Lawsuit as those positions existed as of March 13, 2014. Nothing stated in the Stipulation or in

this Order shall be deemed an admission or waiver of any kind by either of the Parties or used as

evidence against, or over the objection of, either of the Parties for any purpose in this action or in

any other action or proceeding of any kind.


{00074395. 1 }

II. PRELIMINARY APPROVAL OF THE TERMS OF THE SETTLEMENT

Lululemon has at all times disputed, and continues to dispute, Plaintiffs’ factual

allegations in this lawsuit and to deny any liability for any of the claims that have or could have

been alleged by Plaintiffs or other members of the Settlement Class.

A. The Settlement provides prospective injunctive relief in the form of Lululemon’s

cessation of use of the POS Devices. Lululemon will, pursuant to a defined schedule, install

Verifone MX915 Tactile PIN Pad POS equipment in all Lululemon Stores in the United States

and its territories, and provide a joint service award to Plaintiffs in the amount of $7,000 face

value in Lululemon gift cards.

B. On a preliminary basis, therefore, taking into account (1) the value of the benefits

to be provided by the Settlement to the eligible members of the Settlement Class, (2) the

defenses asserted by Lululemon in pleadings before this Court, (3) the risks to the members of

the Settlement Class that Lululemon would successfully defend against claims arising out of the

facts and legal theories pled and asserted in this case, whether litigated by members of the

Settlement Class themselves or on their behalf in a class action, and (4) the length of time that

would be required for members of the Settlement Class, or any group of members of the

Settlement Class, to obtain a final judgment through one or more trials and appeals, the

Settlement appears fair, reasonable, and adequate. Moreover, the parties have reached the

Settlement after a lengthy arms-length negotiation, significant investigation and informal

discovery conducted by Plaintiffs, Class Counsel, and Lululemon. For all these reasons, the

Settlement falls within the appropriate range of possible approval and does not appear in any

way to be the product of collusion.


{00074395. 1 }

C. Accordingly, the Stipulation and corresponding Settlement are hereby

preliminarily approved.

D. The Court hereby adopts and incorporates the terms of the Stipulation for the

purposes of this Preliminary Approval Order, including the Definitions set forth in the

Stipulation.

III. APPROVAL OF THE SETTLEMENT NOTICE, THE PUBLICATION NOTICE,

AND THE PLANS FOR DISTRIBUTING THE NOTICES

As provided for in the Stipulation, the Parties have submitted a proposed Settlement; a

proposed Posted Notice, a copy of which is attached to this Order as Exhibit 1; a proposed

Publication Notice, a copy of which is attached to this Order as Exhibit 2; and a plan for

distributing the Publication Notice to the Settlement Class. Having reviewed each, the Court

finds and concludes as follows:

A. Distribution of the Posted Notice and Publication Notice as proposed is the only

notice required, and such notice satisfies the requirements of due process, Rule 23 of the Federal

Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and any

other applicable laws, and constitutes the best notice practicable under the circumstances and

shall constitute due and sufficient notice to all persons entitled thereto.

B. The Posted Notice and Publication Notice fairly, accurately, and reasonably

inform members of the Settlement Class of: (1) appropriate information about the nature of this

litigation and the essential terms of the Stipulation; (2) appropriate information about how to

obtain additional information regarding this matter and the Stipulation; and (3) appropriate

information about how to challenge, or exclude themselves from, the Settlement, if they wish to

do so. The Posted Notice and Publication Notice also fairly and adequately inform members of

the Settlement Class that if they do not comply with the specified procedures and the deadline for


{00074395. 1 }

objections, they will lose any opportunity to have any objection considered at the Fairness

Hearing (as that term is defined in the Stipulation ) or otherwise to contest approval of the

Settlement or to appeal from any order or judgment entered by the Court in connection with the

Settlement.

Accordingly, the Court hereby Orders as follows:

1. The form and content of the proposed Posted Notice and Publication

Notice are hereby approved.

2. Promptly following the entry of this Order, the Parties shall prepare final

versions of the Posted Notice and the Publication Notice, and incorporate into each of

them the Fairness Hearing date and deadlines set forth in paragraph IV of this Order.

3. Within three (3) weeks/twenty-one (21) days after the entry of this Order,

Lululemon, through the Settlement Administrator, shall cause the Posted Notice to be

posted on the Settlement Administrator’s website, www.accessnowsettlement.com (the

“Settlement Website”), and linked to Plaintiff Access Now, Inc.’s website,

www.adaaccessnow.com.

4. Within five (5) weeks/thirty-five (35) days after the entry of the

Preliminary Approval Order, Lululemon shall publish, or cause to be published, the

Publication Notice in Plaintiff Access Now, Inc.’s electronic newsletter, the American

Council for the Blind’s electronic newsletter, and the National Federation of the Blind’s

electronic newsletter.

5. This civil action was commenced after February 18, 2005. As a result, the

Court directs Lululemon to notify the appropriate Federal and State officials under the

Class Action Fairness Act of 2005, 28 U.S.C. § 1715. Lululemon’s Counsel shall file


http://www.adaaccessnow.com/

{00074395. 1 }

with the Court proof of compliance with the Class Action Fairness Act of 2005, 28

U.S.C. § 1715.

6. At or before the Fairness Hearing, Lululemon shall file with this Court a

declaration of compliance with paragraphs 3, 4, 5 and 6 above.

7. KCC Class Action Services is hereby approved as the Settlement

Administrator, whose reasonable costs in administering the Settlement are to be paid by

Lululemon.

8. The Settlement Administrator shall perform the following functions in

accordance with the Stipulation, this Order, and subsequent orders that may be entered by

this Court in this case:

a. Establish a postal address to which Settlement Class Members can

request to be excluded from the Settlement Class.

b. Establish the Settlement Website, which Settlement Class

Members can visit to review the Settlement Notice and the Stipulation and obtain

information on how to request exclusion from the Settlement Class, how to object

to the Settlement, and other information regarding the Settlement


system through which Settlement Class Members can access settlement

information and facilitate requests for the Settlement Notice, information on

how to request exclusion from the Settlement Class, how to object to the

Settlement and other settlement information, can be sent to them via mail or

email.


{00074395. 1 }

d. Send via email or mail notice packets to all those who may request

via the toll-free number or mail.

e. Process requests for exclusion from the Settlement in accordance

with Section IV. of the Stipulation.

f. Promptly provide to Class Counsel and Lululemon’s counsel

copies of the requests for exclusion and a list of the names of all persons who

submitted requests for exclusion. Class Counsel and Lululemon shall jointly

report in writing to the Court, within fifteen (15) weeks/one hundred and five

(105) days after the entry of this Order, the names of all such persons.

g. Provide to Class Counsel and Lululemon’s counsel, in the time and

manner specified in the Stipulation, all information and materials that the

Stipulation specifies are to be provided to them by the Settlement Administrator.

IV. PROCEDURES FOR FINAL APPROVAL OF THE SETTLEMENT

A. Fairness Hearing

The Court hereby schedules on ____________________, 2015, which date is

approximately (and no less than) sixteen (16) weeks/one hundred and twelve (112) days after the

entry of this Order, a Fairness Hearing to determine whether the certification of the Settlement

Class, the designation of Plaintiffs as class representatives, the appointment of Class Counsel, the

Stipulation, and the Settlement should receive final approval. At that time, the Court also will

consider an application for an award of attorneys’ fees and costs to Class Counsel and for awards

to Plaintiffs, all in accordance with the terms of the Stipulation (the “Application”).

B. Deadline for Requests for Exclusion from the Settlement Class


{00074395. 1 }

Members of the Settlement Class who wish to be excluded from the Settlement Class

must mail their requests for exclusion to the Settlement Administrator by first-class United States

mail, postmarked by the United States Postal Service no later than thirteen (13) weeks/ninety-one

(91) days after the entry of this Order. Any request for exclusion submitted in any other manner

shall be deemed to have been submitted when actually received by the Settlement Administrator.

Settlement Class Members shall be bound by all determinations and judgments in this Lawsuit,

whether favorable or unfavorable, unless such persons request exclusion from the Class in a

timely and proper manner.

C. Deadline for Class Counsel to File Fee Application

No later than ten (10) weeks/seventy (70) days after the entry of this Order, Class

Counsel shall file with this Court, and serve on Lululemon, Class Counsel’s Application,

pursuant to the Stipulation, for an award of attorneys’ fees and reimbursement of costs incurred

in the lawsuit and for awards to Plaintiffs.

D. Deadline for Filing Objections and Requests to Appear

All objections to certification of the Settlement Class, the designation of Plaintiffs as

class representatives, the appointment of Class Counsel, the Settlement, the Stipulation, or Class

Counsel’s Application, shall be made in writing and, no later than thirteen (13) weeks/ninety-one

(91) days after the entry of this Order, filed with this Court and mailed to Class Counsel and

Lululemon’s counsel, by first-class United States Mail, at the following addresses:

To Lululemon’s Counsel: To Class Counsel:


DLA PIPER LLP


Tampa, FL 33602

John Bosco

Andrew Boese

Leon Cosgrove, LLP




{00074395. 1 }

Any written objection must include (1) the name of this lawsuit, David New and Access

Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-JEM; (2) the objector’s name,

address, and telephone number; (3) a statement confirming that the objector is a Settlement Class

Member; (4) a written statement, under penalty of perjury, setting forth the date and the address

of the Lululemon Store at which a purchase was made or attempted to be made using a debit

card; a written statement under penalty of perjury will constitute sufficient proof of any actual or

attempted purchase; (5) each specific reason for the objection; (6) all evidence and supporting

papers (including, but not limited to, all briefs, written evidence, and declarations) that the

objector wants the Court to consider in support of the objection; (7) the objector’s signature; and

(8) the date of the objector’s signature. Any papers not filed and served in the prescribed manner

and time will not be considered at the Fairness Hearing, and all objections not made in the

prescribed manner and time shall be deemed waived.

Any memorandum or other material the Parties wish to submit in response to any

objections to the certification of the Settlement Class, the designation of Plaintiffs as

representatives of the Settlement Class, the appointment of Class Counsel, the Settlement, the

Stipulation, or Class Counsel’s Application, or otherwise in support of the Settlement Class, the

Settlement, the Stipulation, or Class Counsel’s Application, shall be made in writing and, no later

than fifteen (15) weeks/one hundred and five (105) days after the entry of this Order, filed with

this Court and served on each other.

All persons wishing to appear at the Fairness Hearing, either in person or by counsel, for

the purpose of objecting to any aspect of the certification of the Settlement Class, the designation

of Plaintiffs as representatives of the Settlement Class, the appointment of Class Counsel, the

Settlement, the Stipulation, or Class Counsel’s Application, must file with the Court and serve,


{00074395. 1 }

on Class Counsel and Lululemon’s counsel, no later than thirteen (13) weeks/ninety-one (91)

days after the entry of this Order, a notice of their intention to appear setting forth the basis of

their objections and summarizing the nature and source of any evidence they intend to present at

the Fairness Hearing.

V. STAY OF PROCEEDINGS

Pending final determination of whether the Settlement should be approved, the Plaintiffs,

all other Settlement Class Members, and each of them, and anyone who acts or purports to act on

their behalf, shall not institute, commence or prosecute any action which asserts Released Claims

against any Releasee. Pending the Fairness Hearing, the Court stays all proceedings in the

Lawsuit, other than those proceedings necessary to carry out or enforce the terms and conditions

of the Stipulation.

IT IS SO ORDERED.

Dated: ________________, 2015



Exhibit 1


{00074321. 1 } WEST\253998588.2

LULULEMON USA, INC.

POINT OF SALE DEVICES

CLASS SETTLEMENT

YOUR LEGAL RIGHTS MAY BE AFFECTED BY THIS

SETTLEMENT.

PLEASE READ THIS NOTICE CAREFULLY

A proposed settlement of a class action lawsuit against lululemon usa, inc. ("Lululemon") has been

reached. You may be a member of the Settlement Class if you are blind and purchased or attempted

to purchase goods with a debit card at a lululemon athletic store, lululemon athletica showroom,

ivivva store or ivivva showroom (the “Lululemon Stores”) between January 1, 2010, and January 14,

2015, and were unable to independently use the point of sale device (the “POS Device”) to conclude

your purchase because the POS Device was not tactile enabled. The lawsuit alleged, among other

things, that the POS Devices in Lululemon Stores are effectively inaccessible to blind patrons of the

stores because the POS Devices are not tactile enabled. As a consequence, blind patrons cannot

independently use the POS Devices. Plaintiffs contend that Lululemon’s use of the POS Devices

discriminates against blind patrons. Lululemon denies any wrongdoing and any liability whatsoever,

and no court or other entity has made any judgment or other determination of any liability .

As part of the settlement, Lululemon has agreed to replace the POS Devices in all of the Lululemon

Stores with new devices that are tactile enabled and programmed so that blind patrons can make full and

independent use of the devices in the same manner as fully sighted patrons. More information

is available at www.accessnowsettlement.com.

The Court will hold a hearing at the Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami

Ave., Room 11-2, Miami FL 33128 on ______, 2015 at ___:00 a.m. to determine whether the settlement

is fair, reasonable and adequate. If you wish, you or your lawyer may ask to appear and speak at the

hearing at your own expense. Class Counsel will also file a motion seeking attorneys' fees and expenses up to $37,000.00 and an award of up to $7,000.00 face value in Lululemon gift cards to the two plaintiffs,

jointly. You or your lawyer may ask to appear and speak at your own expense, but you don't have to.

If the proposed settlement is approved by the Court, certain legal claims that class members may have

against Lululemon related to the POS Devices will be released. If you do not wish to be bound by the

terms of the settlement, you must mail a written request for exclusion to Lululemon POS Device Class

Settlement, Settlement Administrator, P.O. Box 40007, College Station, TX 77842-4007 postmarked by

________, 2015. Or, you may file a formal written objection to the settlement by ________, 2015. Visit

the settlement website, www.accessnowsettlement.com for specific information on how to do so.

For more settlement details, including copies of a long-form notice and the signed Stipulation, visit the settlement website, www.accessnowsettlement.com. You may also write to Lululemon POS Device Class Settlement, Settlement Administrator, P.O. Box 40007, College Station, TX 77842-4007 or telephone the settlement administrator toll-free at 1-866-371-8991.

Do not contact the Court or Lululemon. This Notice is only a summary.




Exhibit 2


{00074320. 1 } WEST\253998584.2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

NOTICE OF PROPOSED CLASS SETTLEMENT If you are blind and purchased or attempted to purchase goods with a

debit card at a lululemon athletic store, lululemon athletica showroom,

ivivva store or ivivva showroom (the “Lululemon Stores”) between

January 1, 2010, and January 14, 2015, and were unable to

independently use the point of sale equipment (the “POS Device”) to

conclude your purchase because the POS Device was not tactile enabled,

your rights may be affected by a proposed class action settlement.

Excluded from the Settlement Class are officers, directors, and

employees of lululemon usa, inc. and its parents and subsidiaries

(collectively, “Lululemon”), as well as judicial officers and employees of

the Court.

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

The Settlement resolves a lawsuit over Lululemon’s use of a touch screen POS

Device in Lululemon Stores that impedes blind patrons’ ability to independently

make a debit card purchase.

Lululemon has agreed to replace the POS Devices in all Lululemon Stores with

new, tactile enabled devices that will be programmed to allow blind patrons to use

the devices in the same manner as fully-sighted patrons.

Your legal rights are affected whether you act or do not act. Please read this notice

carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

EXCLUDE YOURSELF

BY____, 2015 You will not be giving up your right to sue Lululemon, but you

cannot object and you will not be a part of the Settlement.

OBJECT BY ___, 2015 20152015201522015202015015

Write to the Court about why you do not like the Settlement.

GO TO A HEARING ON

__, 2015

Ask to speak in Court about the Settlement.

DO NOTHING

You give up the right to sue on your own regarding any claims that

are part of the Settlement.


{00074320. 1 } WEST\253998584.2

These rights and options—and the deadlines to exercise them—are

explained below.

The Court in charge of this case has preliminarily approved the Settlement,

but still must decide whether to give final approval. The relief to be provided

to settlement class members will only be provided if the Court gives final

approval to the Settlement and after any appeals are resolved. Please be

patient.

BACKGROUND INFORMATION

1. Why did I get this notice?

If you are blind or visually impaired and attempted to or did use a debit card to purchase

goods at a Lululemon Store between January 1, 2010, and January 14, 2015, but could not

do so independently because of the POS Device used in the Lululemon Store, then your

rights could be affected under the proposed settlement that has been reached in a class

action lawsuit against Lululemon.

The Court directed that this Notice be posted because settlement class members have a

right to know about the proposed settlement, and about all of their options, before the

Court decides whether to approve the Settlement. If the Court approves the Settlement,

and after objections and appeals are resolved, Lululemon will implement the benefits

that the Settlement provides.

This Notice explains the nature of the lawsuit, the general terms of the proposed settlement,

what benefits are available, who is eligible for them, and how to get them.

The Court in charge of this case is the United States District Court for the Southern

District of Florida, and the case is known as David New and Access Now, Inc. v.

Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG. The person and entity who sued,

David New and Access Now, Inc., are called "Plaintiffs" and the company they sued,

Lululemon USA, Inc., is called the "Defendant."

2. What is this lawsuit about?

The lawsuit claimed, among other things, that the POS Devices Defendant uses in the

Lululemon Stores are inaccessible to blind patrons of the store because the POS Devices

are not tactile enabled. As a consequence, blind patrons cannot independently use the

POS Devices. Plaintiffs contend that Defendant’s use of the POS Devices discriminates

against blind patrons. Defendant denies any wrongdoing and any liability whatsoever,

and no court or other entity has made any judgment or other determination of any

liability.

The above description of the lawsuit is general and does not cover all of the issues and

proceedings that have occurred. In order to see the complete file for the Action, you

should visit the website of the Administrative Office of the U.S. Courts, PACER Service

Center, located at http://www.pacer.gov/. You can also review a number of documents

pertinent to this case, including the Stipulation of Settlement at

www.accessnowsettlement.com.



{00074320. 1 } WEST\253998584.2

3. Why is this a class action?

In a class action, one or more individuals and or entities, called class representatives (in

this case Plaintiffs David New and Access Now, Inc.), sue on behalf of people who have

similar claims. All these people are a class or class members. One court resolves the

issues for all class members, except those who exclude themselves from the class. U.S.

District Court Judge Darrin P. Gayles is in charge of this class action.

4. Why is there a settlement?

The Court has not decided in favor of Plaintiffs or Defendant. Instead, both sides agreed to a

settlement. That way, they avoid the cost of a trial, and the Settlement Class Members receive

relief now rather than years from now, if at all. The Class Representatives and their attorneys

believe the settlement is in the best interest of the settlement class.

5. How do I know if I am part of the settlement?

You first have to decide if you are a settlement class member.

As described above, the Court decided that everyone who fits this description is a settlement

class member:

Each blind person in the United States and its territories who from

January 1, 2010 to January 14, 2015 purchased or attempted to purchase

goods at a Lululemon Store with a debit card and was unable to



directors, and employees of Lululemon and its parents and subsidiaries,


THE PROPOSED SETTLEMENT

6. What does the Settlement provide?

Lululemon has agreed to replace all POS Devices in Lululemon Stores with new, tactile

enabled devices that will be programmed to allow blind patrons to independently use

all functions of the device to the same extent as fully sighted patrons.

To read more about the new devices, visit the website, www.accessnowsettlement.com.

7. When will the class receive this benefit?

The Court will hold a hearing on ____, 2015 to decide whether to approve the Settlement. If

Judge Gayles approves the Settlement after that, there may be appeals. It is always uncertain

whether these appeals can be resolved, and resolving them can take time, perhaps more than a

year. Please be patient.



{00074320. 1 } WEST\253998584.2

DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS

8. What am I giving up to receive these benefits or stay in the class?

Unless you exclude yourself, you are staying in the Settlement Class, and that means you

cannot sue, continue to sue, or be part of any other lawsuit against Defendant about the

legal issues in this case. It also means that all of the Court's orders will apply to you and

legally bind you. If you do not exclude yourself, upon the "Effective Date," you will

release all "Released Claims" (as defined below) against the "Releasees" (as defined

below).

"Released Claims" means all claims, actions, causes of action, administrative claims,

demands, debts, damages, costs, attorney's fees, obligations, judgments, expenses, or

liabilities, in law or in equity, whether now known or unknown, contingent or absolute,

other than claims for personal injury, that Plaintiffs or any member of the Settlement

Class now have or, absent this Stipulation, may in the future have had, against Releasees,

or any of them, by reason of any act, omission, harm, matter, cause, or event whatsoever

that has occurred at any time up to and including the entry of the Preliminary Approval

Order, that has been alleged in this Lawsuit or could have been alleged in the Lawsuit or

in another court action, and relates (i) to any of the alleged inadequacies, misstatements,

or issues of or associated with the POS Devices alleged in this Lawsuit or (ii) to any act,

omission, damage, matter, cause, or event whatsoever arising out of or related to the

initiation, defense, or settlement of the Lawsuit or the claims or defenses asserted or that

could have been asserted in the Lawsuit. Claims under any state disability law are

specifically excluded from the Released Claims.

"Releasees" means (a) Lululemon, together with its respective predecessors and

successors in interest, parents, subsidiaries, affiliates, and assigns, past, present, and

future officers, directors, agents, representatives, employees, attorneys, and insurers; and

(b) all suppliers, distributors, dealers, retailers, trade partners, licensors, licensees,

franchisees, public relations firms, advertising and production agencies, and other entities,

whether foreign or domestic, who were or are in the chain of or played any role in, the

design, testing, manufacture, assembly, distribution, marketing, sale, lease, installation, or

servicing of the POS Devices or their component parts.

The "Effective Date" will occur when an order entered by the Court approving the Settlement

becomes final and not subject to appeal.

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you do not want a payment from this settlement, but you want to keep any right you may

have to sue or continue to sue the Defendant and the other Releasees, on your own, about the

Released Claims, then you must take steps to get out. This is called excluding yourself — or is

sometimes referred to as "opting out" of the settlement class.

9. How do I get out of the Settlement?

To exclude yourself from the Settlement Class, you must send a letter or postcard

stating: (a) the name of the Action, David New and Access Now, Inc. v. Lululemon USA,


{00074320. 1 } WEST\253998584.2

Inc., Case No. 1:14-CV-20589-DPG; (b) your full name, address, telephone number,

and signature; and (c) a statement that you want to be excluded from the Settlement,

postmarked no later than ____, 2015 to the Claims Administrator at:

Lululemon POS Device Class Settlement

Claims Administrator

P.O. Box 40007

College Station, TX 77842-4007

You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you

cannot object to the Settlement. However, you will not be legally bound by anything that

happens in this lawsuit.

10. If I do not exclude myself, can I sue the Defendant and the other Releasees for the same

thing later?

No. Unless you exclude yourself, you give up the right to sue Defendant for the claims that the

Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that pending

lawsuit immediately. You must exclude yourself from this Settlement Class to continue your

own lawsuit. Remember, the exclusion deadline is ____, 2015.

THE LAWYERS REPRESENTING THE CLASS

11. Do I have a lawyer in this case?

The Court ordered that the law firm of Leon Cosgrove, LLP in Coral Gables, FL will

represent the Settlement Class. Those lawyers are called Class Counsel. You will not be

charged for these lawyers. If you want to be represented by your own lawyer, you may

hire one at your own expense.

12. How will the lawyers be paid?

Class Counsel will ask the Court for up to $37,000.00 to cover all of their attorneys' fees

and costs and for payment of up to $7,000.00 face value in Lululemon gift cards to the

Plaintiffs David New and Access Now, Inc. jointly for their services as class

representatives. The Court may award less than these amounts. Defendant will separately

pay the attorneys' fees and expenses and plaintiff payments that the Court awards and no

additional payments will be required from the Settlement Class Members. Defendant has

agreed not to oppose these attorneys' fees and expenses and plaintiff payment. Defendant

will also separately pay the costs to administer the Settlement.

Copies of Class Counsel's applications for attorneys' fees, expenses, and plaintiff award will

be available on the settlement website, www.accessnowsettlement.com.

OBJECTING TO THE SETTLEMENT

You can tell the Court that you do not agree with the settlement or some part of it.

13. How do I tell the Court that I do not like the settlement?



{00074320. 1 } WEST\253998584.2

If you are a settlement class member, you can object to the settlement if you do not like any

part of it. You can give reasons why you think the Court should not approve it. The Court will

consider your views.

To object, you must send a signed letter stating that you object to the proposed settlement

in David New and Access Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-

DPG. Your written objection must include: (i) your name, address, and telephone

number; (ii) the full case name and number (David New and Access Now, Inc. v.

Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG); (iii) a statement that you are a

Settlement class member; (iv) a statement of each objection asserted; (v) a detailed

description of the facts underlying each objection; (vi) a detailed description of the legal

authorities supporting each objection; (vii) a statement of whether you intend to appear

and speak at the Fairness Hearing and, if so, how much time you anticipate needing to

present the objection; (viii) a list of the exhibits that you may offer during the Fairness

Hearing, along with copies of such exhibits; and (ix) your signature. In addition, if

applicable, please include: (i) the identity of all counsel who represent you, including any

former or current counsel who may be entitled to compensation for any reason related to

your objection; (ii) the number of times in which you, your counsel (if any), or your

counsel's law firm (if any) has objected to a class action settlement within the three years

preceding the date that the objector files the objection and the caption of each case in

which such objection was made; and (iii) a statement disclosing any consideration that

you, your counsel (if any), or your counsel's law firm (if any) has received in connection

with the resolution or dismissal of an objection to a class action settlement within the three

years preceding the date that the objector files the objection. The deadline to file your

objection is _____, 2015. The objection must be filed with the Court by that date. The

address to file your written objection with the United States District Court is:

Clerk of the Court

U.S. District Court for the Southern District of Florida

Wilkie D. Ferguson, Jr. United States Courthouse

400 North Miami Avenue

Miami, FL 33128

You must also send a copy of your written objection to counsel for both parties at the

addresses below:

CLASS COUNSEL: DEFENDANT'S COUNSEL:

Andrew Boese, Esq.

Leon Cosgrove, LLP



Fredrick McClure, Esq. DLA Piper LLP (US) 100 North Tampa Street, Suite 2200 Tampa, FL 33602-5809

If you do not timely make your objection, you will be deemed to have waived all objections

and will not be entitled to speak at the fairness hearing.

14. What is the difference between objecting and excluding?

Objecting is simply telling the Court that you do not like something about the

Settlement. You can object only if you remain a settlement class member. Excluding


{00074320. 1 } WEST\253998584.2

yourself is telling the Court that you do not want to be a part of the case and wish to

forgo the relief provided by the Settlement. If you exclude yourself, you have no basis

to object because the case no longer affects you.

THE COURT'S FAIRNESS HEARING

The Court has preliminarily approved the Settlement Agreement and will hold a hearing on

____, 2015 to decide whether to give final approval to the proposed settlement. You may attend and you

may ask to speak, but you do not have to.

15. When and where will the Court decide whether to approve the proposed

settlement?

The Court will hold the Fairness Hearing at ___:00 a.m. on ___, 2015 at the Wilkie D.

Ferguson, Jr. United States Courthouse, 400 North Miami Avenue, Miami, Florida 33128 in

Room 11-2. At this hearing, the Court will consider whether the Settlement is fair,

reasonable, and adequate.

If there are objections, the Court will consider them. Judge Gayles will listen to people

who have asked to speak at the hearing. See question 17 for more information about

speaking at the hearing. After the Fairness Hearing, the Court will decide whether to

approve the Settlement and whether to award any attorneys' fees and expenses and

awards to Plaintiffs David New and Access Now, Inc. We do not know how long these

decisions will take.

16. Do I have to come to the hearing?

No. Class Counsel will answer questions Judge Gayles may have. But, you are welcome

to come at your own expense. If you send an objection, you do not have to come to the

Court to talk about it. As long as you filed your written objection on time, the Court will

consider it. You may also pay your own lawyer to attend, but it is not necessary.

Settlement class members do not need to appear at the hearing or take any other action

to indicate their approval.

17. May I speak at the hearing?

You may ask the Court for permission to speak at the Fairness Hearing. To do so, you

must send a letter saying that it is your "Notice of Intention to Appear in David New and

Access Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG." Be sure to

include your name, address, telephone number, and your signature. Your Notice of

Intention to Appear must be postmarked no later than ___, 2015, and be sent to the Clerk

of the Court, Class Counsel, and Defense Counsel, at the three addresses in question 13.

Unless otherwise ordered by the Court, you cannot speak at the Fairness Hearing if you

excluded yourself from the Settlement Class or if you have not provided written notice of

your intention to speak at the Fairness Hearing by the deadline identified, and in

accordance with the procedures described in this section and question 13 above.


{00074320. 1 } WEST\253998584.2

IF YOU DO NOTHING

18. What happens if I do nothing at all?

If you do nothing, you will not be able to start a lawsuit, continue with a lawsuit, or be a

party to any other lawsuit against Defendant and the other Releasees about the legal

issues in this case, ever again.

GETTING MORE INFORMATION

19. Are there more details about the Settlement?

This notice summarizes the proposed settlement. More detailed terms are in the signed

Stipulation. You can get a copy of the Stipulation by writing to Class Counsel at the

address above or by visiting www.accessnowsettlement.com, where you will also find

answers to common questions about the Settlement, Class Counsel's papers in support of

the Settlement and their applications for attorneys' fees, expenses, and plaintiff awards

(after they are filed), and other documents. All other papers that have been filed in the

Action may be inspected at the Office of the Clerk of the Court of the United States

District Court for the Southern District of Florida, Wilkie D. Ferguson, Jr. United States

Courthouse, 400 North Miami Avenue, Miami, FL 33128, during regular business hours.

PLEASE DO NOT CALL THE COURT OR THE CLERK OF COURT FOR

ADDITIONAL INFORMATION ABOUT THE SETTLEMENT.



Documents

PLAINTIFFS’ UNOPPOSED MOTION FOR AN ORDER TO THE