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EXHIBIT 1
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 1 of 69 Page ID #:17136
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AMENDED SETTLEMENT AGREEMENT AND RELEASE
This Amended Settlement Agreement and Release (“Amended Settlement
Agreement”) is made and entered into by and between (1) plaintiffs Jose
Hernandez, Kathryn Pike, Robert Randall, Bertram Robison, Camille Chapman,
and Lewis Mann, individually and as representatives of the 23(b)(3) Settlement
Class as defined below; (2) Equifax Information Services LLC; (3) Experian
Information Solutions, Inc.; and (4) TransUnion LLC. This Amended Settlement
Agreement is intended by the Parties to fully, finally, and forever resolve,
discharge, and settle all released rights and claims, to the extent set forth below,
subject to the terms and conditions set forth herein.
RECITALS
A. WHEREAS, on or about October 3, 2005, plaintiff Jose Hernandez
filed an action against Defendants in the United States District Court for the
Northern District of California, in which he asserted claims on behalf of a putative
nationwide class of consumers relating to each of Defendants’ procedures for
reporting pre-bankruptcy debts of consumers who have obtained discharges
through Chapter 7 bankruptcy proceedings;
B. WHEREAS, on or about November 2, 2005, plaintiffs Terri N. White,
et al., filed separate actions against each of the Defendants in this Court, in which
she asserted claims on behalf of a putative nationwide class of consumers relating
to each Defendants’ procedures for reporting and reinvestigating pre-bankruptcy
debts of consumers who have obtained discharges through Chapter 7 bankruptcy
proceedings;
C. WHEREAS, on or about August 11, 2006, plaintiff Jose Hernandez
and the other plaintiffs filed three separate Second Amended Consolidated Class
Action Complaints, one against each Defendant, in which they assert claims for (i)
willful and/or negligent violation of Section 1681e(b) of the Fair Credit Reporting
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Act, 15 U.S.C. § 1681, et seq., and Section 1785.14(b) of its California state
counterpart, the Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785,
et seq., for failure to maintain reasonable procedures to assure maximum possible
accuracy; (ii) willful and/or negligent violation of Section 1681i of the FCRA and
its California counterpart, Cal. Civ. Code Section 1785.16, for failure to reasonably
investigate consumer disputes regarding the status of the discharged accounts; and
(iii) violation of California’s Unfair Competition Law, Bus. & Prof. Code Section
17200, et seq.;
D. WHEREAS, in or around September 2006, Defendants answered the
various Second Amended Complaints, denying the allegations therein, denying that
the actions are suitable for certification pursuant to Federal Rule of Civil Procedure
23, and asserting affirmative defenses that Defendants contend are meritorious
notwithstanding their willingness to enter into this Amended Settlement
Agreement;
E. WHEREAS, plaintiff Jose L. Acosta, Jr., filed an action against
TransUnion in California Superior Court on or around May 12, 2003, and later
filed a new action against TransUnion in federal court on August 14, 2006, joined
by plaintiffs Robert Randall and Bertram Robison, and plaintiff Kathryn Pike filed
an action in California Superior Court against Equifax on or around October 14,
2005, in which they also assert claims on behalf of a putative California class of
consumers relating to TransUnion’s or Equifax’s procedures for reporting pre-
bankruptcy debts of consumers who have obtained discharges through Chapter 7
bankruptcy proceedings;
F. WHEREAS, all of these cases, which collectively comprise the
Litigation, have been either filed, transferred, or removed such that they are before
the Honorable Judge David O. Carter in the Central District of California under the
following case numbers: Terri N. White, et al. v. Experian Information Solutions,
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Inc., Case No. cv 05-01070 (lead case number); Terri N. White, et al. v. Equifax
Information Services LLC, Case No. cv 05-7821; Terri N. White, et al. v.
TransUnion LLC, cv 05-1073; Jose Hernandez v. Equifax Information Services,
LLC, et al., Case No. cv 06-3924; Jose L. Acosta et al., v. TransUnion LLC, et al.,
Case No. cv 06-5060; and Kathryn L. Pike v. Equifax Information Services, LLC,
Case No. cv 05-1172;
G. WHEREAS, Plaintiffs in the various cases have undertaken
substantial investigation and formal discovery in the Litigation (including review
of tens of thousands of pages of documents, retention and consultation of
numerous experts in the fields of credit reporting and consumer bankruptcies,
interviews with numerous consumers, review of thousands of consumer credit
reports, creation and review of several credit scoring analyses, creation and review
of several accuracy analyses, and about 50 depositions) in support of the
prosecution of the Litigation and settlement negotiations relating thereto;
H. WHEREAS, the Parties have vigorously litigated these matters, which
included more than 40 depositions, a motion to dismiss, a motion for summary
judgment on willfulness, voluminous document productions and review, and four
rounds of briefing concerning class certification;
I. WHEREAS, on or about August 15, 2007, the Court urged the Parties
to proceed to mediation and, since then, the Parties have conducted arms-length,
contentious, lengthy, and complicated negotiations (with the participation of
Defendants’ insurance carriers) that have included at least six in-person mediation
sessions with the Hon. Lourdes Baird (Ret.), four in-person mediation sessions
with mediator Randall Wulff, one in-person mediation session with the Hon.
Daniel Weinstein (Ret.), one in-person mediation session with the Hon. Dickran
Tevrizian (Ret.), and numerous telephonic sessions involving counsel for the
Parties;
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J. WHEREAS, on or about April 3, 2008, the Parties to the Litigation
entered into the Injunctive Relief Settlement Agreement in which Defendants
agreed to retroactively update the credit files of 23(b)(2) Settlement Class
Members to reflect the discharge of certain categories of pre-bankruptcy civil
judgments and tradelines. Defendants also agreed to adopt new procedures for the
update of certain pre-bankruptcy civil judgments and tradelines when a public
record entry of the bankruptcy has been added to the consumer’s file. On August
19, 2008, the Court approved these new procedures, found them to be reasonable
under the FCRA, and entered an Approval Order Regarding Settlement and
Release regarding the injunctive relief pursuant to the Injunctive Relief Settlement
Agreement (Docket No. 290)1;
K. WHEREAS, each Defendant separately represents that since on or
about August 19, 2008, and continuously to the present, it has fully complied with
the terms of the Injunctive Relief Settlement;
L. WHEREAS, on January 26, 2009, counsel for the parties to the
Litigation appeared for a hearing on Plaintiffs’ Motion for Class Certification and,
prior to the scheduled hearing, the Court issued a tentative ruling denying
Plaintiffs’ Motion for Class Certification pursuant to Fed. R. Civ. P. 23(b)(3) and
directed the Parties to make a final attempt to settle the Litigation;
M. WHEREAS, on February 5, 2009, the parties and their counsel
appeared for a mediation and reported to the Court that they had reached an
agreement in principle for what would later be memorialized as the 2009 Proposed
Settlement;
1 Unless otherwise indicated, all references herein to Docket Numbers refer
to filings in lead case White, et al. v. Experian, No. 05-cv-1070-DOC.
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N. WHEREAS, the Parties entered into the written 2009 Proposed
Settlement in April 2009, which provided for a $45 Million settlement fund ($15
Million per Defendant);
O. WHEREAS, the Court granted preliminary approval of the 2009
Proposed Settlement on May 7, 2009;
P. WHEREAS, on June 12, 2009, the Court issued an Order to Deposit
the Settlement Fund into the Registry Account of the Court;
Q. WHEREAS, Defendants made their respective deposits, totaling $45
Million from all Defendants, into the Registry Account of the Court by June 19,
2009;
R. WHEREAS, funds totaling $7,649,333.82 were withdrawn from the
Registry Account of the Court for costs associated with the notice program under
the 2009 Proposed Settlement, pursuant to Court Orders, on the following dates:
October 6, 2009, December 7, 2009, March 25, 2010, May 7, 2010, July 10, 2010,
March 25, 2011, August 24, 2011, September 12, 2011, and March 17, 2016;
S. WHEREAS, interest has been accruing on the funds in the Registry
Account of the Court and as of December 31, 2016, a total of $273,256.87 in
interest has accrued, and additional interest will continue to accrue on those funds;
T. WHEREAS, in connection with the 2009 Proposed Settlement, GCG
signed a form of acknowledgment and agreement to be bound by the
Confidentiality Agreement on or about February 26, 2010, which the Parties agree
shall remain in full force and effect and any new Confidential Information, as
defined in the Confidentiality Agreement, shall be subject to the Confidentiality
Agreement;
U. WHEREAS, the Court granted final approval of the 2009 Proposed
Settlement on July 15, 2011, and a corrected order issued on September 10, 2011
(Docket No. 837);
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V. WHEREAS, the 2009 Proposed Settlement was appealed, and
although the United States Circuit Court of Appeals for the Ninth Circuit vacated
the District Court judgment which approved the 2009 Proposed Settlement, it made
no comment or ruling regarding the substantive terms of the 2009 Proposed
Settlement (other than with respect to the class representatives’ service awards);
W. WHEREAS, the Parties resumed settlement negotiations and attended
a mediation with the Hon. Daniel Weinstein (Ret.) on August 25, 2016, but were
unable to reach a settlement at that time;
X. WHEREAS, Plaintiffs filed a Motion for Leave to File a Third
Amended Complaint on September 19, 2016, seeking leave to amend the alleged
class definition and add two additional class representatives (Docket No. 1005),
and Defendants filed an Opposition thereto on September 27, 2016 (Docket No.
1007);
Y. WHEREAS, the Court tentatively denied Plaintiffs’ Motion for Leave
to File a Third Amended Complaint on October 11, 2016, and directed the Parties
to attend a mediation with the Hon. Dickran Tevrizian (Ret.);
Z. WHEREAS, this Amended Settlement Agreement memorializes the
agreement in principle reached with the efforts of the Hon. Dickran Tevrizian
(Ret.) on November 7, 2016, as amended in response to the Court’s comments at
the hearing on May 30, 2017;
AA. WHEREAS, Defendants represent that this Amended Settlement
Agreement was reached only after each Defendant’s respective insurance carriers
agreed to fund such Defendant’s required payments under this Amended
Settlement Agreement, subject to such Defendant’s exhaustion of any remaining
self-insured retention.
BB. WHEREAS, the Parties are willing to enter into this Amended
Settlement Agreement to settle the monetary claims of the 23(b)(3) Settlement
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Class because of, among other reasons, the attendant expense, risks, difficulties,
delays, and uncertainties of continued litigation;
CC. WHEREAS, Plaintiffs and Proposed 23(b)(3) Settlement Class
Counsel believe that this Amended Settlement Agreement provides fair,
reasonable, and adequate relief to the 23(b)(3) Settlement Class, and is in the best
interests of the 23(b)(3) Settlement Class as a whole;
DD. WHEREAS, Defendants deny all claims asserted against them in the
Litigation, deny that class certification would be appropriate if the cases are
litigated rather than settled, deny all allegations of wrongdoing and liability, and
deny that anyone was harmed by the conduct alleged, but nevertheless desire to
settle Plaintiffs’ monetary claims on the terms and conditions set forth in this
Amended Settlement Agreement solely for the purpose of avoiding the burden,
expense, risk and uncertainty of continuing the proceedings on those issues in the
Litigation, and for the purpose of putting to rest the controversies engendered;
NOW THEREFORE, IT IS AGREED, by and among the Parties, without
(i) any admission or concession on the part of Plaintiffs of the lack of merit of the
Litigation whatsoever, or (ii) any admission or concession of liability or
wrongdoing or the lack of merit of any defense whatsoever by Defendants, that the
Litigation and all claims of the 23(b)(3) Settlement Class for monetary damages be
settled, compromised, and dismissed on the merits and with prejudice as to
Defendants on the terms set forth below, subject to the approval of the Court.
The recitals stated above are true and accurate and are hereby made a part of
the Amended Settlement Agreement.
I. DEFINITIONS
As used in this Amended Settlement Agreement, the terms defined below
shall have the meanings assigned to them when capitalized in the same fashion as
in this Part I, and any other terms that relate to the credit reporting industry shall
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have the customary meaning accorded to those terms in the credit reporting
industry.
1.1 “Actual Damage Award” means the cash payment that may be
available to an eligible 23(b)(3) Settlement Class Member who elects to receive an
actual damage award on his or her Claim Form or is deemed to have submitted a
Claim for an actual damage award pursuant to Subsection 7.1a.
1.2 “Actual Damage Award Claimant” means a 23(b)(3) Settlement Class
Member who elected to receive an Actual Damage Award on his or her Claim
Form, or who is deemed to have submitted a Claim for an Actual Damage Award
pursuant to Subsection 7.1a.
1.3 “Amended Settlement Agreement” means this Amended Settlement
Agreement and Release.
1.4 “Available Convenience Award Funds” means the remaining portion
of the Settlement Fund after subtracting from the total amount of the Settlement
Fund the sum of all (1) costs in connection with the Notice Plan; (2) Service
Awards, if any, paid to Plaintiffs; (3) amounts paid for Monetary Relief Fees; and
(4) estimated amounts to be paid for Actual Damage Awards, which shall be
calculated by the Settlement Administrator by identifying the highest award to
which each Actual Damage Award Claimant may be entitled, multiplying the total
number of such Claims in each category, and totaling the results for all categories;
in no event shall the Available Convenience Award Funds be less than $10
Million.
1.5 “Bankruptcy Date” means the month during which—according to an
entry in the public records section as reflected in the applicable Defendant’s
computer systems—a Consumer filed a bankruptcy petition that later led to a
public record in the Consumer’s File of the entry of a discharge order pursuant to
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Chapter 7 of the United States Bankruptcy Code. The “Bankruptcy Date” may be
reflected as the “date filed” in the public records section of a Consumer’s File.
1.6 “CAFA Notice” means the notice requirements interposed by 28
U.S.C. § 1715.
1.7 “CCRAA” means the California Consumer Credit Reporting Agencies
Act, Cal. Civ. Code § 1785, et seq.
1.8 “Claim Deadline” shall be sixty (60) days following the Notice
Deadline.
1.9 “Claim Form” or “Claim” means the claim form (in a form
substantially similar to that attached hereto as Exhibit D and approved by the
Court) to be submitted by 23(b)(3) Settlement Class Members in order to be
eligible to receive a Monetary Award or a Non-Monetary Award.
1.10 “Claimant” means a proposed 23(b)(3) Settlement Class Member who
properly registers or submits a Claim pursuant to Subsection 7.1a, or who is
deemed to have submitted a Claim pursuant to that Subsection.
1.11 “Closed Account” means that an account is reporting with a zero
balance and has a narrative or other code indicating that the account was closed by
a consumer or creditor in a month that predates the Bankruptcy Date.
1.12 “Confidentiality Agreement” means the Stipulated Protective Order
entered by the Court on December 20, 2006.
1.13 “Consumer” means a natural person residing in the United States of
America or its territories whose File in a Defendant’s computer systems includes,
or at any time from March 15, 2002 to May 11, 2009 (or for residents of the State
of California in the case of Defendant TransUnion, from May 12, 2001 to May 11,
2009) included, a public record entry reporting an order of discharge pursuant to
Chapter 7 of the United States Bankruptcy Code, as determined from the
Defendant’s current Files and/or archived files as retrieved on an annual basis.
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1.14 “Convenience Award” means the cash payment that may be available
to an eligible 23(b)(3) Settlement Class Member who elects to receive a
convenience award on his or her Claim Form or is deemed to have submitted a
Claim for a convenience award pursuant to Subsection 7.1a.
1.15 “Convenience Award Claimant” means a 23(b)(3) Settlement Class
Member who elected to receive a Convenience Award on his or her Claim Form,
or who is deemed to have submitted a Claim for a Convenience Award pursuant to
Subsection 7.1a.
1.16 “Court” means the United States District Court for the Central District
of California.
1.17 “Date of Initial Delinquency” means the first month during which a
derogatory event is reported for a tradeline, as shown in the applicable Defendant’s
records. Based upon differences in reporting methods, each Defendant may, at its
option, use such dates as the Purge Date, Date of First Delinquency or Date of Last
Activity to determine the Date of Initial Delinquency for purposes of compliance
with this Amended Settlement Agreement.
1.18 “Defendants” means Equifax, Experian, and TransUnion.
1.19 “Defendants’ Counsel” means Jones Day, Troutman Sanders LLP,
and Stroock & Stroock & Lavan LLP.
1.20 “Effective Date” means the date on which this Court’s entry of the
Final Approval Order and this Court’s orders regarding Monetary Relief Fees and
Injunctive Relief Fees have all become final because either (i) no appeal of the
Final Approval Order or the Court’s orders referenced above have been filed and
the time provided in the applicable rules of procedure within which an appeal may
be filed has lapsed, or (ii) if one or more timely appeals have been filed, all such
appeals are finally resolved, with no possibility of further appellate review,
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resulting in final judicial approval of this Settlement. For purposes of this
definition, the term “appeal” includes writ proceedings.
1.21 “Email Notice” means the notice (in a form substantially similar to
that attached hereto as Exhibit A and approved by the Court) that will be
transmitted via email to certain proposed 23(b)(3) Settlement Class Members
pursuant to the Notice Plan.
1.22 “Equifax” means Equifax Information Services LLC.
1.23 “Equifax’s Counsel” means Troutman Sanders LLP.
1.24 “Experian” means Experian Information Solutions, Inc.
1.25 “Experian’s Counsel” means Jones Day.
1.26 “FCRA” means the federal Fair Credit Reporting Act, 15 U.S.C. §
1681, et seq.
1.27 “FCRA State Equivalents” means any statute or regulation of any
state, U.S. territory, the District of Columbia, or Puerto Rico, that has the purpose
or effect of regulating the collection or reporting of consumer credit information
(including, without limitation, the CCRAA, and New York’s Fair Credit Reporting
Act, General Business Law Article 25, §§ 380-380-u).
1.28 “File” means a “file,” as defined in 15 U.S.C. § 1681a(g), in a
Defendant’s computer system.
1.29 “Final Approval” means the approval of the Amended Settlement
Agreement by the Court at or after the Final Approval Hearing, and entry on the
Court’s docket of the Final Approval Order.
1.30 “Final Approval Order” means a final order and judgment entered by
the Court giving Final Approval of the Amended Settlement Agreement and
dismissing with prejudice Plaintiffs’ claims for monetary relief that is in a form
mutually agreeable to the Parties, and entering a judgment according to the terms
set forth in this Amended Settlement Agreement.
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1.31 “Final Approval Hearing” or “Final Fairness Hearing” means the
hearing at which the Court will consider and finally decide whether to approve this
Settlement, enter a judgment, and make such other rulings as are contemplated by
this Settlement. The Final Approval Hearing shall not be scheduled for a date less
than 90 days following CAFA Notice as set forth in Section 6.4.
1.32 “GCG” means the Garden City Group, LLC and all of its successors,
assigns, agents and/or representatives.
1.33 “Injunctive Relief Fee Agreement” means the settlement agreement
addressing the payment of 23(b)(2) Settlement Class Counsel’s fees in connection
with the Injunctive Relief Settlement, filed with the Court on May 1, 2009 (Docket
No. 413-2).
1.34 “Injunctive Relief Fees” means the attorneys’ fees and expenses,
including fees for expert witnesses, incurred by 23(b)(2) Settlement Class Counsel
and to be awarded in connection with their efforts in achieving the Injunctive
Relief Settlement.
1.35 “Injunctive Relief Settlement” means the Settlement Agreement and
Release filed with the Court in this action on April 3, 2008, pursuant to which on
August 19, 2008, the Court entered an Approval Order Regarding Settlement
Agreement and Release (Docket No. 290).
1.36 “Litigation” means Terri N. White, et al. v. Experian Information
Solutions, Inc., Case No. cv 05-01070 (lead case number); Terri N. White, et al. v.
Equifax Information Services LLC, Case No. cv 05-7821; Terri N. White, et al. v.
TransUnion LLC, cv 05-1073; Jose Hernandez v. Equifax Information Services,
LLC, et al., Case No. cv 06-3924; Jose L. Acosta et al., v. TransUnion LLC, et al.,
Case No. cv 06-5060; and Kathryn L. Pike v. Equifax Information Services, LLC,
Case No. cv 05-1172.
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1.37 “Mail Notice” means the notice (in a form substantially similar to that
attached hereto as Exhibit B and approved by the Court) that will be mailed to
certain proposed 23(b)(3) Settlement Class Members pursuant to the Notice Plan.
1.38 “Monetary Award” means a cash payment that may be available to
eligible 23(b)(3) Settlement Class Members pursuant to Section 7.2 of this
Agreement.
1.39 “Monetary Award Claimant” means a 23(b)(3) Settlement Class
Member who elected to receive a Monetary Award on his or her Claim Form or is
deemed to have submitted a Claim for a Monetary Award pursuant to Subsection
7.1a.
1.40 “Monetary Relief Fees” means the attorneys’ fees and expenses,
including fees for expert witnesses, incurred by Proposed 23(b)(3) Settlement
Class Counsel in prosecuting and settling the Litigation, but excluding the
Injunctive Relief Fees, as defined in Section 1.34.
1.41 “Non-Monetary Award” means the non-monetary relief that may be
available to eligible 23(b)(3) Settlement Class Members pursuant to Section 7.3 of
this Agreement.
1.42 “Non-Monetary Award Claimant” means a 23(b)(3) Settlement Class
Member who elected to receive a Non-Monetary Award on his or her Claim Form.
1.43 “Notice Deadline” shall be ninety (90) days following entry of the
Preliminary Approval Order.
1.44 “Notice Plan” means the plan for disseminating notice to 23(b)(3)
Settlement Class Members as described in Section VI.
1.45 “Objection” means a written objection to the Settlement filed by a
23(b)(3) Settlement Class Member as described in Section IX.
1.46 “Objection Deadline” shall be sixty (60) days following the Notice
Deadline.
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1.47 “Opt-Out Deadline” shall be sixty (60) days following the Notice
Deadline.
1.48 “Original Class List” means the list of identified 23(b)(3) Settlement
Class Members prepared pursuant to the procedures set forth in the 2009 Proposed
Settlement Agreement.
1.49 “Original Monetary Contribution” means the $45 Million contribution
from Defendants into the Registry of the Court in June 2009 in connection with the
2009 Proposed Settlement.
1.50 “Parties” means Plaintiffs, Equifax, Experian, and TransUnion, and
“Party” means Plaintiffs, Equifax, Experian, or TransUnion.
1.51 “Plaintiffs” means the settling plaintiffs, specifically, Jose Hernandez,
Robert Randall, Bertram Robison, Kathryn Pike, Camille Chapman, and Lewis
Mann.
1.52 “Post-bankruptcy Credit Report” means a credit report, as defined in
15 U.S.C. § 1681a(d), that is issued by a Defendant on or after the Bankruptcy
Date and before May 11, 2009.
1.53 “Pre-bankruptcy Civil Judgment” means a public record judgment that
a Defendant reported in a Consumer’s File with either a month filed or a month of
judgment (or both) that predates or is equal to the Bankruptcy Date in such File.
1.54 “Pre-bankruptcy Collection Account” means an account identified by
a Defendant as reflecting the collection activity of a third party collection agency
or debt buyer on behalf of the original creditor that is reported with a Date of
Initial Delinquency, a date referred to collection, or an date opened month that
predates or is equal to the Bankruptcy Date.
1.55 “Pre-bankruptcy Installment or Mortgage Loan” means an installment
or mortgage loan that a Defendant reported in a Consumer’s File with a date
opened month that predates or is equal to the Bankruptcy Date in such File.
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1.56 “Pre-bankruptcy Revolving Account” means a revolving account,
open account, or line of credit that at least one of the Defendants reported in a
Consumer’s File with a date opened month that predates or is equal to the
Bankruptcy Date in such File.
1.57 “Preliminary Approval” means the preliminary approval of the
Amended Settlement Agreement by the Court, conditional certification of the
23(b)(3) Settlement Class, and approval of the method and content of notice to the
23(b)(3) Settlement Class.
1.58 “Proposed 23(b)(3) Settlement Class Counsel” or “23(b)(3)
Settlement Class Counsel” means Leonard A. Bennett, Consumer Litigation
Associates, P.C.; Michael Caddell and Cynthia Chapman, Caddell & Chapman;
Michael W. Sobol, Lieff Cabraser Heimann & Bernstein; Charles Delbaum and
Stuart T. Rossman, National Consumer Law Center; Jim Francis, Francis &
Mailman, PC; F. Paul Bland and Arthur Bryant, Public Justice, P.C.; and Lee A.
Sherman, Callahan Thompson Sherman & Caudill LLP.
1.59 “Registry Account” means the account with the Registry of the Court
created by the Court’s June 12, 2009 Order (Docket No. 439).
1.60 “Rejection Notice” means the notice provided by the Settlement
Administrator to any Claimant whose Claim Form has been rejected.
1.61 “Released Claims” means and includes any and all duties, obligations,
demands, claims, actions, causes of action, suits, damages, rights or liabilities of
any nature and description whatsoever, whether arising under local, state or federal
law, whether by Constitution, statute (including, but not limited to, the FCRA and
FCRA State Equivalents), tort, contract, common law or equity or otherwise,
whether known or unknown, concealed or hidden, suspected or unsuspected,
anticipated or unanticipated, asserted or unasserted, foreseen or unforeseen, actual
or contingent, liquidated or unliquidated, fixed or contingent, that have been or
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could have been asserted in the Litigation based upon the Defendants’ furnishing
of consumer reports during the Class period identified in Section 1.75 based upon
the fact or allegation that they contained false or misleading reporting of debts,
accounts, judgments, or public records, or other obligations, that had been
discharged in bankruptcy or their alleged failure to have properly reinvestigated
such inaccuracies, by Plaintiffs or the 23(b)(3) Settlement Class Members or any of
their respective heirs, spouses, executors, administrators, partners, attorneys,
predecessors, successors, assigns, agents and/or representatives, and/or anyone
acting or purporting to act on their behalf, except for any such claims that were the
subject of pending litigation on November 7, 2016, against an unaffiliated vendor
of any of the Defendants. Released Claims include, but are not limited to, all
claimed or unclaimed compensatory damages, damages for emotional distress,
actual damages, statutory damages, consequential damages, incidental damages,
treble damages, punitive and exemplary damages, as well as all claims for
equitable, declaratory or injunctive relief under any federal or state statute or
common law or other theory that was alleged or could have been alleged based on
the facts forming the basis for the Litigation, including but not limited to any and
all claims under deceptive or unfair practices statutes, or any other statute,
regulation or judicial interpretation. Released Claims further include interest, costs
and fees arising out of any of the claims asserted or that could have been asserted
in the Litigation. Notwithstanding the foregoing, nothing in this Amended
Settlement Agreement shall be deemed a release of the Parties’ respective rights
and obligations under this Amended Settlement Agreement.
1.62 “Released Parties” means and refers to: (i) Equifax and its present,
former and future officers, directors, partners, employees, agents, attorneys,
servants, heirs, administrators, executors, members, member entities, shareholders,
predecessors, successors, affiliates (including, without limitation, CSC Credit
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Services, Inc.), subsidiaries, parents, representatives, trustees, principals, insurers,
investors, vendors and assigns, individually, jointly and severally; (ii) Experian and
its present, former and future officers, directors, partners, employees, agents,
attorneys, servants, heirs, administrators, executors, members, member entities,
shareholders, predecessors, successors, affiliates, subsidiaries, parents,
representatives, trustees, principals, insurers, investors, vendors and assigns,
individually, jointly and severally; and (iii) TransUnion and its present, former and
future officers, directors, partners, employees, agents, attorneys, servants, heirs,
administrators, executors, members, member entities, shareholders, predecessors,
successors, affiliates, subsidiaries, parents, representatives, trustees, principals,
insurers, investors, vendors and assigns, individually, jointly and severally.
1.63 “Second Amended Complaints” means the three separate Second
Amended Consolidated Class Action Complaints, one against each Defendant filed
in the Litigation.
1.64 “Settlement” means the agreement between Plaintiffs, on behalf of
themselves and as proposed representatives of the 23(b)(3) Settlement Class, and
Equifax, Experian, and TransUnion, to settle and compromise all of Plaintiffs’ and
the 23(b)(3) Settlement Class’ claims in the Litigation for monetary damages,
including without limitation actual, statutory and punitive damages, (and all issues
relating thereto), fully, finally and forever, as memorialized in this Amended
Settlement Agreement and the accompanying documents attached hereto.
1.65 “Settlement Administrator” means the settlement administrator
selected by the Parties and approved by the Court with regard to this Settlement.
1.66 “Settlement Fund” means the already-existing amounts in the
Registry Account paid by Defendants in connection with the 2009 Proposed
Settlement, together with any accrued interest on those amounts, and the additional
$1,000,000 to be paid by Defendants.
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1.67 “Settlement Website” means the Internet Website established by GCG
and maintained by the Settlement Administrator for purposes of facilitating notice
to, and communicating with, the 23(b)(3) Settlement Class.
1.68 “Taxes” means any taxes, including any estimated taxes, interest or
penalties, arising with respect to the income earned by the Registry Account,
including any taxes or tax detriments that may be imposed upon the Released
Parties with respect to any income earned by the Settlement Fund for any period
during which the Settlement Fund does not qualify as a “qualified settlement fund”
for federal or state income tax purposes.
1.69 “Tax Expenses” means expenses and costs incurred in connection
with the operation and implementation of Taxes in connection with the Registry
Account, including, without limitation, expenses of tax attorneys and/or
accountants and mailing and distribution costs and expenses relating to filing (or
failing to file) the returns described in Subsection 4.2b.
1.70 “TransUnion” means TransUnion LLC.
1.71 “TransUnion’s Counsel” means Stroock & Stroock & Lavan LLP.
1.72 “2009 Proposed Settlement” or “2009 Proposed Settlement
Agreement” means the Settlement Agreement and Release for monetary relief
entered into by the Parties in April 2009 (Docket No. 384).
1.73 “Updated Class List” means the Original Class List updated by the
Defendants and the Settlement Administrator with the last known mailing address
as well as email address for each Consumer on the Original Class List as more
fully detailed in paragraph 6.1.
1.74 “23(b)(2) Settlement Class” means the defined class of persons as set
forth in paragraph 3.35 in the Injunctive Relief Settlement Agreement.
1.75 “23(b)(3) Settlement Class” or “23(b)(3) Settlement Class Member”
shall mean and refer to all Consumers who have received an order of discharge
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pursuant to Chapter 7 of the United States Bankruptcy Code and who, any time
between and including March 15, 2002 and May 11, 2009 (or, for California
residents in the case of TransUnion, any time between and including May 12, 2001
and May 11, 2009), have been the subject of a Post-bankruptcy Credit Report
issued by a Defendant in which one or more of the following appeared:
a. A Pre-bankruptcy Civil Judgment that was reported as
outstanding (i.e., it was not reported as vacated, satisfied, paid, settled or
discharged in bankruptcy) and without information sufficient to establish that it
was, in fact, excluded from the bankruptcy discharge;
b. A Pre-bankruptcy Installment or Mortgage Loan that was
reported as delinquent or with a derogatory notation (other than “discharged in
bankruptcy,” “included in bankruptcy” or similar description) and without
information sufficient to establish that it was, in fact, excluded from the
bankruptcy discharge;
c. A Pre-bankruptcy Revolving Account that was reported as
delinquent or with a derogatory notation (other than “discharged in bankruptcy,”
“included in bankruptcy” or similar description) and without information sufficient
to establish that it was, in fact, excluded from the bankruptcy discharge; and/or
d. A Pre-bankruptcy Collection Account that remained in
collection after the Bankruptcy Date.
This definition is intended to be coterminous with the definitions of
“23(b)(3) Settlement Class” and “23(b)(3) Settlement Class Member” in the 2009
Proposed Settlement.
Provided, however, that for purposes of this Agreement, “23(b)(3)
Settlement Class” and “23(b)(3) Settlement Class Member” shall exclude: (i) all
persons who timely and validly request exclusion from the Class as set forth in this
Agreement; (ii) all Consumers who would qualify for membership in the “23(b)(3)
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Settlement Class” based solely on a Post-bankruptcy Credit Report for which the
Consumer has separately released all claims as to the issuing Defendant; (iii)
Defendants’ officers, directors, and employees; (iv) Defendants’ attorneys; (v)
Plaintiffs’ attorneys; and (vi) any judge or judges assigned to preside over or
review this matter, and the members of his or her immediate family.
II. NO ADMISSION OF LIABILITY OR ELEMENTS OF CLASS
CERTIFICATION AND CONDITIONAL CERTIFICATION OF
23(B)(3) SETTLEMENT CLASS
2.1 Defendants’ Denial of Wrongdoing or Liability
Defendants have asserted and continue to assert many defenses to this
Litigation and have expressly denied and continue to deny any fault, wrongdoing
or liability whatsoever arising out of the conduct alleged in the Litigation.
Defendants expressly deny any fault, wrongdoing or liability whatsoever, as well
as the validity of each of the claims and prayers for relief asserted in the Litigation.
The Parties expressly acknowledge and agree that neither the fact of, nor any
provision contained in, this Amended Settlement Agreement nor any of the
implementing documents or actions taken under them, shall constitute or be
construed as any admission of the validity of any claim, any status, or any fact
alleged in the Litigation or any fault, wrongdoing, violation of law, or liability of
any kind on the part of Defendants, or any admission by Defendants of any claim
or allegation made in any action or proceeding against Defendants. Defendants
have denied and continue to deny each and all of the claims and allegations in the
Litigation. Neither this Amended Settlement Agreement nor any document
referred to herein, nor any action taken to carry out this Amended Settlement
Agreement and/or the Settlement, nor their willingness to enter into this Amended
Settlement Agreement, nor any or all negotiations, communications, and
discussions associated with them are, or may be construed as, or may be used in
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any proceeding as, an admission by or against any or all Defendants of any fault,
wrongdoing or liability whatsoever, or any infirmity of any defenses asserted by
any or all Defendants.
2.2 No Admission by Defendants of Elements of Class Certification
Defendants deny that a class should be certified other than for purposes of
this Settlement and reserve their rights to contest any litigation class motion.
Defendants contend that this Litigation could not be certified as a class action
under Federal Rule of Civil Procedure 23(b)(3) and, indeed, this Court has issued
written tentative rulings denying certification of a litigation class that had been
proposed by Plaintiffs as well as denying leave to amend Plaintiffs’ proposed
litigation classes. Nothing in this Amended Settlement Agreement shall be
construed as an admission by any Defendant that this Litigation or any similar case
is amenable to class certification for trial purposes. Furthermore, nothing in this
Amended Settlement Agreement shall prevent any Defendant from opposing class
certification or seeking de-certification of the conditionally certified 23(b)(3)
Settlement Class if Final Approval of this Settlement is not obtained, or not upheld
on appeal, including review by the United States Supreme Court.
2.3 Motion for Preliminary Approval
As soon as practicable, Proposed 23(b)(3) Settlement Class Counsel shall
file this Amended Settlement Agreement with the Court together with a motion for
Preliminary Approval that seeks entry of an order that would, for settlement
purposes only: (i) preliminarily approve the Settlement reflected herein as fair,
adequate and reasonable to the 23(b)(3) Settlement Class Members as described in
Section 1.75, and within the reasonable range of possible final approval;
(ii) conditionally certify the Settlement Class for settlement purposes only and
appoint 23(b)(3) Settlement Class Counsel as counsel for the 23(b)(3) Settlement
Class for settlement purposes only; (iii) approve the proposed class notices to the
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23(b)(3) Settlement Class in forms substantially similar to those attached hereto as
Exhibits A-C and find that the Notice Program constitutes the best notice
practicable under the circumstances, provides due and sufficient notice to the
23(b)(3) Settlement Class, and fully satisfies the requirements of due process and
Federal Rule of Civil Procedure 23; (iv) direct that notice be provided to the
23(b)(3) Settlement Class, in accordance with this Agreement; (v) set a deadline
sixty (60) days after the Notice Deadline, after which no one shall be allowed to
submit a Claim, object to the Settlement or exclude himself or herself from the
Settlement Class or seek to intervene; (vi) approve the Claim Form, attached hereto
as Exhibit D; (vii) establish a procedure for Settlement Class Members to submit a
Claim, object to the Settlement or exclude themselves from the Settlement Class;
(viii) pending determination of whether the Settlement should be finally approved,
bar and enjoin all persons in the 23(b)(3) Settlement Class, directly, on a
representative basis or in any other capacity, from commencing or prosecuting
against any of the Released Parties any action, arbitration, or proceeding in any
court, arbitration forum or tribunal asserting any of the Released Claims unless
they timely opt out of the Settlement; (ix) pending final determination of whether
the Settlement should be approved, stay all proceedings except those related to
effectuating the Settlement; (x) appoint a Settlement Administrator; and (xi)
schedule a hearing to consider Final Approval of the Settlement, which shall be
scheduled in compliance with 28 U.S.C. § 1715(d) no earlier than thirty (30) days
after the Objection Deadline.
III. CONSIDERATION TO THE CLASS
3.1 Monetary Consideration
a. Waiver of Right to Original Monetary Contribution. All
outstanding amounts from the Original Monetary Contribution remaining in the
Registry of the Court, including interest earned through date of distribution, shall
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be used for the benefit of the 23(b)(3) Settlement Class Members consistent with
this Amended Settlement Agreement. As of the Effective Date, Defendants will
waive their rights to have the Original Monetary Contribution returned.
b. $1 Million Additional Contribution. Defendants shall
contribute, in total, an additional $1 Million (i.e., $333,333.33 per Defendant as set
forth in Section 4.1 below) into the Registry of the Court to be used to the benefit
of the 23(b)(3) Settlement Class Members consistent with this Amended
Settlement Agreement within five (5) business days of the Effective Date.
3.2 Non-Monetary Consideration
Defendants shall provide non-monetary consideration to the 23(b)(3)
Settlement Class as set forth in Schedule 3.2 hereto.
IV. SETTLEMENT FUND
4.1 Deposit into the Settlement Fund
a. Pursuant to an Order of this Court, within five (5) court days
following the Effective Date, each Defendant shall cause to be deposited into the
Registry Account an amount equal to three hundred thirty-three thousand and three
hundred thirty-three dollars and thirty-three cents ($333,333.33). The Defendants’
obligations to pay are several, and not joint.
b. Until such time as the Settlement Fund shall be used or
disbursed as provided in this Amended Settlement Agreement and as approved by
the Court, the Settlement Fund shall be held in the Registry Account and invested
in accordance with 28 U.S.C. § 2041.
4.2 Settlement Fund Tax Status
a. Settlement Fund and the Registry Account in which the
Settlement Fund is deposited shall continue to be treated as being at all times a
“qualified settlement fund” within the meaning of Treas. Reg. § 1.468B-1. Each
Defendant’s deposit shall, therefore, be treated as being at all times a “qualified
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settlement fund” or part of a previously established qualified settlement fund, as
the case may be.
b. The Settlement Administrator shall timely make such elections
as necessary or advisable to carry out the provisions of this Subsection, including
the “relation-back election” (as defined in Treas. Reg. § 1.468B-1) back to the
earliest permitted date. Such elections shall be made in compliance with the
procedures and requirements contained in such regulations. It shall be the
responsibility of the Settlement Administrator to timely and properly prepare and
deliver the necessary documentation for signature by all necessary parties, and
thereafter to cause the appropriate filing to occur.
c. For the purpose of Treasury Regulation § 1.468B of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder,
the “administrator” shall be the Settlement Administrator. The Settlement
Administrator shall timely and properly file all informational and other tax returns
necessary or advisable with respect to the Settlement Fund (including, without
limitation, the returns described in Treas. Reg. § 1.468B-2(k)). Such returns (as
well as the election described in Subsection a above) shall be consistent with this
Subsection and in all events shall reflect that all Taxes (including any estimated
Taxes, interest or penalties) on the income earned by the Settlement Fund shall be
paid out of the Settlement Fund as provided in Subsection d below.
d. All Taxes and Tax Expenses shall be paid out of the Settlement
Fund; in no event shall the Released Parties have any responsibility for or liability
with respect to the Taxes or the Tax Expenses. The Settlement Administrator shall
indemnify and hold the Released Parties harmless for Taxes and Tax Expenses
(including, without limitation, Taxes payable by reason of any such
indemnification). Further, Taxes and Tax Expenses shall be timely paid by the
Settlement Administrator out of the Settlement Fund without prior order from the
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Court, and the Escrow Agent shall be obligated (notwithstanding anything herein
to the contrary) to withhold from distribution any funds necessary to pay such
amounts, including the establishment of adequate reserves for any Taxes and Tax
Expenses (as well as any amounts that may be required to be withheld under Treas.
Reg. § 1.468B-2(l)); the Released Parties are not responsible therefor nor shall they
have any liability with respect thereto. The Parties hereto agree to cooperate with
the Settlement Administrator, each other, and their tax attorneys and accountants to
the extent reasonably necessary to carry out the provisions of this Section.
4.3 Use and Disbursement of Settlement Fund
The Settlement Fund shall be used only in the manner and for the purposes
provided for in this Amended Settlement Agreement. No part of the Settlement
Fund shall revert to the Defendants. No portion of the Settlement Fund shall be
disbursed except as expressly provided for herein:
a. After Preliminary Approval, the Parties shall jointly petition the
Court to release funds from the Settlement Fund in the Registry of the Court to the
Settlement Administrator for the costs of notice and related administrative
expenses incurred with respect to effecting the Notice Plan as provided in Section
VI;
b. Within ten (10) days of the Effective Date, the Parties shall
jointly petition the Court to release funds from the Settlement Fund in the Registry
of the Court to the Settlement Administrator for payment of the Monetary Relief
Fees as approved by the Court to 23(b)(3) Settlement Class Counsel as provided in
Section 11.1 to the extent that 23(b)(3) Settlement Class Counsel has fulfilled the
obligations set forth in the Agreement.
c. Within ten (10) days of the Effective Date, the Parties shall
jointly petition the Court to release funds from the Settlement Fund in the Registry
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of the Court to the Settlement Administrator to pay the Settlement Fund Service
Awards approved by the Court, if any, as provided in paragraph 12.1; and
d. Within ten (10) days of the Effective Date, the Parties shall
jointly petition the Court to pay the funds remaining in the Registry of the Court
(after deduction of notice and settlement administration expenses (including
estimated expenses post-Effective Date), paragraph 6.3, Settlement Fund Service
Awards, paragraph 12.1, and the Monetary Relief Fees, paragraph 11.1) to the
Settlement Administrator in trust for distribution to the Claimants. The Settlement
Administrator shall pay all Claims for Monetary Awards, pursuant to the
distribution plan for Monetary Awards, within thirty (30) days of the date that the
funds remaining in the Registry of the Court are paid to the Settlement
Administrator in trust for distribution to the Claimants.
4.4 Capped Fund
Except for the costs of CAFA Notice pursuant to Section 6.4 hereof, all of
the following must be paid from the Settlement Fund: (i) notice and administration
costs; (ii) payments to the Claimants; (iii) Service Awards, if any, and (iv)
payments to 23(b)(3) Settlement Class Counsel for Monetary Relief Fees. The
Parties and their respective counsel agree that under no circumstance will each
Defendant pay or cause to be paid more than $333,333.33, in addition to the $15
Million each Defendant already paid into the Registry of the Court in June 2009 in
connection with the 2009 Proposed Settlement, for a total of $15,333,333.33, or
provide any additional non-monetary benefit except as provided pursuant to this
Settlement, except for the Injunctive Relief Fees as provided for in the Injunctive
Relief Fee Agreement.
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V. RELEASE
5.1 Release of All Claims
Upon the Effective Date, Plaintiffs and each 23(b)(3) Settlement Class
Member and his or her respective spouses, heirs, executors, administrators,
representatives, agents, attorneys, partners, successors, predecessors and assigns
and all those acting or purporting to act on their behalf acknowledge full
satisfaction of, and shall be conclusively deemed to have fully, finally and forever
settled, released and discharged the Released Parties of and from all Released
Claims. Subject to the Court’s approval, all 23(b)(3) Settlement Class Members
shall be bound by this Amended Settlement Agreement and all of their Released
Claims shall be dismissed with prejudice and released as against the Released
Parties, even if they never received actual notice of the Settlement prior to the
hearing on final approval of the Settlement.
5.2 Waiver of California Civil Code Section 1542 and Section 20-7-11 of
the South Dakota Codified Laws.
Plaintiffs, for themselves and for each 23(b)(3) Settlement Class Member,
acknowledge that they are aware that they may hereafter discover facts in addition
to or different from those that they or 23(b)(3) Settlement Class Counsel now
knows or believes to be true with respect to the subject matter of these releases, but
it is their intention to, and they do hereby, upon the Effective Date of this
Amended Settlement Agreement, fully, finally and forever settle and release any
and all Released Claims, without regard to the subsequent discovery or existence
of such different or additional facts. Plaintiffs, for themselves and for each
23(b)(3) Settlement Class Member, waive any and all rights and benefits afforded
by California Civil Code Section 1542, which provides as follows:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Plaintiffs, for themselves and for each 23(b)(3) Settlement Class Member,
also waive any and all rights and benefits afforded by Section 20-7-11 of the South
Dakota Codified Laws, 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.
Plaintiffs, each 23(b)(3) Settlement Class Member and Proposed 23(b)(3)
Settlement Class Counsel understand and acknowledge the significance of this
waiver of California Civil Code Section 1542, Section 20-7-11 of the South Dakota
Codified Laws and/or of any other applicable federal or state law relating to
limitations on releases.
VI. NOTICE
6.1 Update of Original Class List
The Original Class List shall be updated by Defendants within thirty (30)
days of Preliminary Approval with the last known mailing address and Social
Security Number contained in their files for each 23(b)(3) Settlement Class
Member. The Settlement Administrator will then confirm and/or update the last
known mailing addresses as well as obtain email address(es) for each Consumer on
the Updated Class List, to the extent they are not provided on the Updated Class
List and are reasonably available. Defendants shall, without charge, assist the
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Settlement Administrator in using commercially reasonable procedures to create
the final Updated Class List. 23(b)(3) Settlement Class Counsel will have five (5)
business days to object to the Updated Class List to Defendants in writing, after
which it will be deemed final.
6.2 Notice to Proposed 23(b)(3) Settlement Class by the Settlement
Administrator
For purposes of providing Court-approved class notices and establishing that
the best practicable notice has been given, the provision of class notice will be
accomplished in accordance with the provisions of this Section 6.2.
a. Email Notice or Mail Notice: To the extent email or mail
addresses are not available in the Updated Class List, the Settlement Administrator
will perform reverse look ups in an effort to determine Settlement Class Members’
most recent email and/or mailing address information. The Settlement
Administrator shall rely on Email Notice to notify persons in the Settlement Class;
Mail Notice shall be used to provide notice if: (1) the Settlement Administrator
cannot locate an email address; (2) the Settlement Administrator learns that an e-
mail was undeliverable; and/or (3) the Settlement Administrator does not receive
notice the email was opened by the recipient within a reasonable time period. To the
extent necessary, the Settlement Administrator will perform a search using the
National Change of Address database and update its records prior to mailing. The
Email Notice and Mail Notice shall be in the form attached hereto as Exhibits A
and B, respectively. The Email Notice shall have a “return receipt” or other such
function that permits the Settlement Administrator to reasonably determine
whether emails have been delivered and opened. The Email Notice also shall have
a hyperlink that Settlement Class Member recipients may click and be taken to a
landing page on the Settlement Website. Not later than thirty (30) days before the
Final Fairness hearing, the Settlement Administrator shall cause proof of the
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mailing of the Email Notice and Mail Notice to be filed with the Court. Neither
the Parties nor the Settlement Administrator shall have any further obligation to
send notice of the Settlement to 23(b)(3) Settlement Class Members.
b. Settlement Website. The Settlement Administrator shall
continue to maintain the Settlement Website dedicated to the Settlement,
http://www.bankruptcydischargesettlement.com, which was established in
connection with the 2009 Proposed Settlement. The Website Notice in the form
attached hereto as Exhibit C, the Claim Form, a copy of this Agreement, the
Preliminary Approval Order and the operative Complaint, in addition to other
relevant case documents, will be available on the Settlement Website beginning
five (5) days following the entry of the Preliminary Approval Order and remain
until the Effective Date. The Settlement Website also shall provide for online
submission of Claim Forms and provide for persons in the Settlement Class to
update their contact information. In addition, the Settlement Website will provide
the text, functionality and means by which 23(b)(3) Settlement Class Members
may elect and receive the non-monetary consideration for the 23(b)(3) Settlement
Class as set forth in Schedule 3.2, and information related thereto. The Parties
agree that, if at any point the domain name for the Settlement Website is changed,
it shall not include the names of any of the Defendants. In addition, the domain
name shall not bear or include Defendants’ or any of their parents’, affiliates’ or
subsidiaries’ logos or trademarks. The Parties agree that the Settlement Website
shall not link to, or appear on, the website(s) of Defendants and/or their parents,
affiliates or subsidiaries. Ownership of the Settlement Website URL shall be
transferred to Defendants within ten (10) days of the date on which operation of
the Settlement Website ceases. Not later than thirty (30) days before the Final
Fairness hearing, the Settlement Administrator shall cause proof of the
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establishment and maintenance of the Settlement Website to be filed with the
Court.
c. Telephone Assistance Program: The Settlement Administrator
shall continue to operate the toll-free telephone number established in connection
with the 2009 Proposed Settlement to answer questions from 23(b)(3) Settlement
Class Members. The toll-free number will continue to provide access to live
support, a voice response unit or a combination of live support and a voice
response unit. Not later than thirty (30) days before the Final Fairness hearing, the
Settlement Administrator will cause proof of the establishment and maintenance of
the Telephone Assistance Program to be filed with the Court. In addition, 23(b)(3)
Settlement Class Counsel will provide an appropriate means for 23(b)(3)
Settlement Class Members to seek and obtain assistance from 23(b)(3) Settlement
Class Counsel in obtaining the non-monetary consideration for the 23(b)(3)
Settlement Class as set forth in Schedule 3.2.
6.3 Expenses of Notice and Administration
a. All notice, Claims and other administration costs, excluding the
costs associated with CAFA Notice as described in Section 6.4, shall be invoiced
by the Settlement Administrator and paid promptly from the Settlement Fund,
subject to the Court’s approval.
b. Within thirty (30) days after the Effective Date, the Settlement
Administrator will provide to the 23(b)(3) Settlement Class Counsel and
Defendants a detailed statement of the costs that will be incurred in generating and
disbursing checks to Claimants. Within sixty (60) days of the Effective Date and
subject to 23(b)(3) Settlement Class Counsel’s approval, the Settlement
Administrator shall retain this amount from the Settlement Fund to pay for such
costs.
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c. The total expenses associated with notice, Claims, and
administration shall not increase the amount paid by Defendants as part of the
Settlement under any circumstances. All payments shall come from the Settlement
Fund.
6.4 CAFA Notice
Defendants will send CAFA Notice to the appropriate federal and state
officials identified in 28 U.S.C. § 1715(a), not later than ten (10) days after this
Amended Settlement Agreement is filed with the Court. Defendants shall bear
equal shares of the costs of this CAFA Notice.
VII. CLAIMS AND DISTRIBUTION PLAN
7.1 Claims Administration
a. Claims Procedure. 23(b)(3) Settlement Class Members who do
not opt out of the Settlement Class may submit Claims before the Claim Deadline
(1) by registering for a Claim on the Settlement Website; or (2) returning to the
Settlement Administrator via U.S. mail a Claim Form available on the Settlement
Website or through the Settlement Administrator. Those Consumers who
previously submitted a Claim in connection with the 2009 Proposed Settlement
shall be permitted, but are not required, to renew their Claims by maintaining their
Claim for a Monetary Award or they may elect to instead receive a Non-Monetary
Award. Consumers who previously submitted a valid Claim in connection with the
2009 Proposed Settlement but do not submit a Claim in connection with the
Settlement shall be deemed to have submitted a Claim for an Actual Damage
Award or a Convenience Award, corresponding to the type of Claim approved in
connection with the 2009 Proposed Settlement, if a review by the Settlement
Administrator determines that the 23(b)(3) Settlement Class Member is still alive,
or if the Settlement Administrator has previously received information regarding
who may represent the deceased 23(b)(3) Settlement Class Member’s estate.
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b. Deceased Claimants. Claims may be filed by deceased
Claimants through representatives of their estate if appropriate documentation is
provided, as determined by the Settlement Administrator. Any Claims paid to a
deceased Claimant shall be made payable to the estate of the deceased Claimant.
c. Determining Adequacy of Claims. Claim Forms, whether
submitted electronically via the Settlement Website or by U.S. Mail, that do not
meet the requirements as set forth in this Amended Settlement Agreement and in
the Claim Form instructions shall be rejected by the Settlement Administrator.
This shall include but is not limited to any failure to provide accurate information,
and any failure to sign a Claim Form submitted by U.S. Mail. The Settlement
Administrator shall have the authority to determine whether the claim submitted by
any 23(b)(3) Settlement Class Member is complete and timely. Any 23(b)(3)
Settlement Class Member whose Claim is rejected shall be barred from receiving
any payment from the Settlement Fund, but shall in all other respects be bound by
the terms of this Amended Settlement Agreement and by the Final Approval Order
entered in the Litigation, unless such 23(b)(3) Settlement Class Member has
submitted a timely request to opt out or is deemed to have opted out of the
Settlement pursuant to Subsection VIII. The Settlement Administrator shall mail,
in a timely fashion, a Rejection Notice to any Claimant whose Claim Form has
been rejected, setting forth the reasons therefor and instructions for curing any
deficiencies and/or resolving any disputes. The Settlement Administrator shall
timely provide copies of all Rejection Notices to Proposed 23(b)(3) Settlement
Class Counsel and to Defendants. Claimants receiving Rejection Notices shall be
notified that they have until the Claim Deadline or two weeks from the postmark
date of the Rejection Notice, whichever is later, to cure any deficiencies or resolve
any disputes.
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d. No Liability for Determinations Relating to Adequacy of
Claims. No person shall have any claim against Defendants, Plaintiffs, the
23(b)(3) Settlement Class, Proposed 23(b)(3) Settlement Class Counsel,
Defendants’ Counsel, or the Settlement Administrator based on any eligibility
determinations made in accordance with this Amended Settlement Agreement.
7.2 Distribution Plan of Monetary Awards
Each Monetary Award Claimant shall be entitled to receive a Monetary
Award from the Settlement Fund, as provided herein. The Settlement
Administrator shall pay all accepted Claims for Monetary Awards via check sent
via U.S. mail to the last and best known address of the Monetary Award Claimant.
Checks will be valid for 120 days from the date of the check.
a. Convenience Awards. The Settlement Administrator shall pay
each Convenience Award Claimant an equal pro rata share of the Available
Convenience Award Funds (i.e., the amount of such equal, pro rata share shall be
determined by dividing the total amount of Available Convenience Award Funds
by the total number of Convenience Award Claimants), via check sent via U.S.
mail to the last and best known address of the Convenience Award Claimant.
b. Actual Damage Awards. The Settlement Administrator shall
pay each Actual Damage Award Claimant as provided herein:
(i) The Settlement Administrator shall review each Claim
for an Actual Damage Award and will determine whether the claim information
submitted by each Actual Damage Award Claimant provides sufficient information
and documentation, consistent with Schedule 6.2. The Settlement Administrator
shall accept all Claims for Actual Damage Awards which meet the criteria outlined
in Schedule 6.2, unless the Settlement Administrator has a basis for believing that
any Actual Damage Award Claim is fraudulent or otherwise invalid, in which case
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the Settlement Administrator may withhold payment of such Claims and advise the
Court accordingly.
(ii) The Settlement Administrator shall pay all accepted
Claims for Actual Damage Awards via check sent via U.S. mail to the last and best
known address of the Actual Damage Award Claimant according Schedule 6.2.
(iii) The Settlement Administrator shall pay to the Actual
Damage Award Claimant the highest award for which he or she is eligible.
Awards hereunder shall not be cumulative. The Actual Damage Award Claimants
will be paid the fixed amount indicated per category and Convenience Awards will
be adjusted pro rata based on the number of Claims and funds available after
payment of costs, fees, and Actual Damage Awards.
(iv) If the Settlement Administrator determines that an Actual
Damage Award Claimant is ineligible for an Actual Damage Award, then such
Actual Damage Award Claimant’s Claim shall be converted into a Claim for a
Convenience Award.
c. Remaining Funds, Redistribution and Cy Pres. The amounts of
any checks that remain uncashed more than 120 days after the date on the check
will be redistributed on a pro rata basis to Convenience Award Claimants who
cashed their first check, if, after consideration of costs of administration, the
redistribution is economically feasible, as reasonably determined by Class
Counsel. The Settlement Administrator shall continue to make subsequent
redistributions to the extent any settlement checks remain uncashed 120 days after
the date on the check mailed in connection with the redistribution, until the
redistribution is no longer economically feasible. It shall be presumed that if each
redistribution check would be for $3 or less, then redistribution is no longer
economically feasible. Any funds remaining in the Settlement Fund following
such redistribution(s) shall be distributed through a residual cy pres program.
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Class Representatives have proposed the American College of Bankruptcy
Foundation and the National Legal Aid and Defender Association for a fund to
provide scholarships for Legal Services attorneys to attend trainings on the FCRA
or bankruptcy law. Defendants have proposed the Credit Abuse Resistance
Education, Credit Builders Alliance, Inc., and the consumer financial education
program of the Actuarial Foundation. Any changes to the list of proposed cy pres
recipients, including when the final recipients are selected and approved by the
Court, shall be posted on the Settlement Website. All parties reserve the right to
object to the proposed recipients. Any residual cy pres distribution shall be paid as
soon as reasonably possible following the completion of distribution of Monetary
Awards and Non-Monetary Awards to 23(b)(3) Settlement Class Members.
7.3 Distribution Plan of Non-Monetary Awards.
The Settlement Administrator shall maintain in a separate file the Claims of
all Non-Monetary Award Claimants as provided herein. Non-Monetary Awards
shall be distributed to each Non-Monetary Award Claimant within thirty (30) days
of the Effective Date pursuant to Schedule 3.2 hereto.
VIII. REQUESTS FOR EXCLUSION/OPT-OUTS
8.1 Procedure for Submitting a Request for Exclusion/Opt-Out
A proposed 23(b)(3) Settlement Class Member may request to be excluded
from the 23(b)(3) Settlement Class by sending a written request for exclusion to
“Exclusion Requests – Hernandez Settlement Administrator.” The 23(b)(3)
Settlement Class Member’s opt-out request must contain the class member’s
original signature, current postal address and telephone number, and the last four
digits of the class member’s Social Security number, and a specific statement that
the proposed 23(b)(3) Settlement Class Member wants to be excluded from the
23(b)(3) Settlement Class. Requests for exclusion must be postmarked no later
than the Opt-Out Deadline. Consumers who previously submitted a valid request
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for exclusion in connection with the 2009 Proposed Settlement but do not submit a
request for exclusion in connection with the Settlement or otherwise take any
action in the Settlement shall nevertheless be deemed to have submitted a valid
request for exclusion in connection with the Settlement. In no event shall persons
who purport to exclude themselves out of the 23(b)(3) Settlement Class as a group,
aggregate, or class involving more than one Claimant be considered valid opt-outs.
Requests for exclusion that do not comply with any of the foregoing requirements
are invalid.
8.2 List of Opt-Outs
No later than fourteen (14) business days after Opt Out Deadline, the
Settlement Administrator shall provide to Proposed 23(b)(3) Settlement Class
Counsel and Defendants’ Counsel a complete list of all persons who have properly
opted out of the Settlement together with copies of the exclusion requests.
IX. OBJECTIONS
9.1 Procedure for Filing Objections
Any 23(b)(3) Settlement Class Member who does not opt out and who
wishes to object to the proposed Settlement must mail, hand-deliver, or otherwise
file with the Court a written Objection to the Settlement, and simultaneously mail
or hand-deliver copies of same to 23(b)(3) Settlement Class Counsel and
Defendants’ Counsel at the addresses set forth in the Court-approved class notices.
Counsel may file Objections on behalf of 23(b)(3) Settlement Class Members.
Each Objection must (i) set forth the 23(b)(3) Settlement Class Member’s
full name, current address, email address and telephone number, as well as the
name, address, email address and telephone number of all attorneys representing
the objector; (ii) contain the 23(b)(3) Settlement Class Member’s original signature
or the signature of counsel for the 23(b)(3) Settlement Class Member; (iii) state
that the 23(b)(3) Settlement Class Member objects to the Settlement, in whole or in
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part; (iv) set forth a statement of the legal and factual basis for the Objection; (v)
include a list of all cases, by name and case number, in which the objector and/or
his/her counsel has filed or in any way participated in—financially or otherwise—
objections to a class action settlement in the previous five (5) years; and (vi)
provide copies of any documents that the 23(b)(3) Settlement Class Member
wishes to submit in support of his/her position.
The Parties shall request that all Objections must be mailed or hand-
delivered to the Court and mailed or hand-delivered to 23(b)(3) Settlement Class
Counsel and Defendants’ Counsel so that the Objection and supporting materials
are received by the Court and the Parties by the Objection Deadline. An objector
is not required to attend the Final Approval Hearing.
Any 23(b)(3) Settlement Class Member who does not submit a timely
Objection in complete accordance with this Agreement and otherwise as ordered
by the Court shall not be treated as having filed a valid Objection to the Settlement
and shall lack standing and forever be barred from raising any objection to the
Settlement and from seeking any adjudication or review of the Settlement by
appeal or otherwise.
X. FINAL FAIRNESS HEARING AND FINAL APPROVAL
10.1 Final Fairness Hearing
Any 23(b)(3) Settlement Class Member who wishes to appear at the Final
Fairness Hearing, whether pro se or through counsel, must, within the time set by
the Court, (i) mail or hand-deliver to the Court a notice of appearance in the
Litigation, (ii) provide copies of any exhibits or other documents that the 23(b)(3)
Settlement Class Member intends to present or use as evidence at the Final
Fairness Hearing, (iii) provide a list of all witnesses that the 23(b)(3) Settlement
Class Member intends to call to give evidence at the Final Fairness Hearing, (iv)
take all other actions or make any additional submissions as may be ordered by the
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Court, and (v) mail or hand-deliver any documents set forth in (i) through (iv),
above, to 23(b)(3) Settlement Class Counsel and Defendants’ Counsel as provided
in the Court-approved class notices by the Objection Deadline. Unless so
permitted by the Federal Rules of Civil Procedure or the Court’s local rules, no
23(b)(3) Settlement Class Member shall be permitted to raise matters at the Final
Approval Hearing that the 23(b)(3) Settlement Class Member could have raised in
an Objection, but failed to do so. Any 23(b)(3) Settlement Class Member who
fails to comply with this Agreement, the Court-approved class notices, and any
other order of the Court shall be barred from appearing at the Final Approval
Hearing.
10.2 Final Approval
All of the relief contemplated by this Amended Settlement Agreement is
expressly contingent upon the Amended Settlement Agreement receiving the
Court’s Final Approval and the occurrence of the Effective Date. The Parties
agree that the Final Approval Order constitutes a dismissal of this Litigation with
prejudice.
XI. ATTORNEYS’ FEES
11.1 Application for Monetary Relief Fees and Costs
Proposed 23(b)(3) Settlement Class Counsel shall file an application or
applications to the Court for payment of Monetary Relief Fees (and reimbursement
of costs and litigation expenses) from the Settlement Fund (and only from the
Settlement Fund). The application or applications shall be noticed to be heard at
the Final Fairness Hearing. The application or applications for Monetary Relief
Fees, and any and all matters related thereto, shall be considered by the Court
separately from the Court’s consideration of the fairness, reasonableness and
adequacy of the Settlement. Plaintiffs and Proposed 23(b)(3) Settlement Class
Counsel agree that this Amended Settlement Agreement is not conditional on the
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Court’s approval of Monetary Relief Fees or Injunctive Relief Fees in the
requested amount or in any amount whatsoever. The Court’s ruling on the
application or applications for such fees shall not operate to terminate or cancel the
Settlement. Except as provided under the Injunctive Relief Fee Agreement,
Defendants shall have no responsibility for, or any liability with respect to, the
payment of attorneys’ fees and expenses to 23(b)(3) Settlement Class Counsel, and
the sole source of any award of Monetary Relief Fees shall be the Settlement Fund.
That amount includes not only the payment of all attorneys’ fees, costs, and
expenses to 23(b)(3) Settlement Class Counsel, but also payment for all attorneys
and other persons working under the direction of 23(b)(3) Settlement Class
Counsel in the Litigation.
11.2 Reaffirmation of Injunctive Relief Fees Agreement. The Parties
hereby reaffirm the terms of the Injunctive Relief Fees Agreement and agree that
all of the Parties’ respective rights and obligations under the Injunctive Relief Fees
Agreement shall be contingent upon the Court’s entry and ultimate finality of the
Final Approval Order with regard to this Agreement. Defendants shall have no
obligation to pay any sums contemplated under the Injunctive Relief Fees
Agreement unless and until the Effective Date of this Amended Settlement
Agreement occurs.
11.3 Attorneys’ Fees and Costs Not a Condition of the Settlement
The application or applications for Monetary Relief Fees, and any and all
matters related thereto, shall not be considered part of the Amended Settlement
Agreement, and shall be considered by the Court separately from the Court’s
consideration of the fairness, reasonableness and adequacy of the Settlement.
Plaintiffs and Proposed 23(b)(3) Settlement Class Counsel agree that this Amended
Settlement Agreement is not conditional on the Court’s approval of Monetary
Relief Fees or Injunctive Relief Fees in the requested amount or in any amount
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whatsoever. The Court’s ruling on the application or applications for such fees
shall not operate to terminate or cancel the Settlement.
XII. SERVICE AWARDS
12.1 Application for a Service Award
Plaintiffs shall make an application to the Court for the Court’s approval of a
Service Award as compensation for time, effort, and resources each Plaintiff has
put into representing the 23(b)(3) Settlement Class, regardless of whether each of
them supports the Settlement. Said application shall be submitted with the motion
for final approval of the Settlement. These Service Awards shall constitute the
sole consideration for such individuals being the Plaintiffs, but will be in addition
to their rights to obtain benefits of the Settlement as any other 23(b)(3) Settlement
Class Member.
12.2 Any 23(b)(3) Settlement Class Member who believes he or she made
a substantial contribution to the resolution of the Litigation or otherwise to benefit
the 23(b)(3) Settlement Class may apply, through counsel or otherwise, to the
Court for a Service Award no later than fourteen (14) days before the Objection
Deadline. The Settlement Administrator shall promptly post all such applications
on the Settlement Website. The Court shall determine whether the applicant is
entitled to a Service Award and, if so, the amount thereof.
12.3 Service Awards, if any, shall be paid from the Settlement Fund and
paid at the same time as Monetary Relief Fees.
12.4 Service Awards Not a Condition of the Settlement
Neither Court approval nor the amount of any Service Award is a condition
of the Settlement. Moreover, the right of any 23(b)(3) Settlement Class Member to
petition or apply for a Service Award is not conditioned in any way upon his or her
support for the Settlement.
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XIII. TERMINATION AND SUSPENSION
13.1 Rights to Terminate Agreement
Defendants’ willingness to settle this Litigation on a class-action basis and to
agree to the certification of a conditional 23(b)(3) Settlement Class is dependent
upon achieving finality in this Litigation, the desire to avoid the expense of this
and other litigation, and the ability and willingness of each Defendant’s insurers to
fund the Settlement Fund. Consequently, each Defendant shall have the unilateral
and unfettered right to individually terminate this Amended Settlement Agreement,
declare it null and void, and have no further obligations under this Amended
Settlement Agreement to the Plaintiffs, 23(b)(3) Settlement Class Members, or
Proposed 23(b)(3) Settlement Class Counsel if any of the following conditions
subsequently occurs:
a. The Court fails to grant Preliminary Approval;
b. More than 3,000 individuals request exclusion from the
Settlement in compliance with Section VIII;
c. The Court fails to enter a Final Approval Order as contemplated
by this Agreement;
d. The Court does not enter an order approving Injunctive Relief
Fees in an amount equal to or less than the amount set forth in the Injunctive Relief
Fee Agreement; and
e. The Effective Date does not occur for any reason, including the
entry of an order by any court that would require either material modification or
termination of the Settlement.
13.2 Agreement Among Defendants is Not Required
In determining whether to exercise its right to terminate this Amended
Settlement Agreement pursuant to the circumstances described in Subsection 13.1,
each Defendant may act independently and agreement among Defendants to
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terminate is not required. The Amended Settlement Agreement shall remain in full
force and effect as to any settling Defendant who does not want to terminate
pursuant to this Section, and the termination of the Amended Settlement
Agreement by one or more other Defendants shall not increase any non-settling
Defendant’s obligations under any provision in this Amended Settlement
Agreement.
13.3 Plaintiffs’ Right to Terminate This Amended Settlement Agreement
Plaintiffs shall have the unilateral and unfettered right to terminate this
Amended Settlement Agreement, declare it null and void, and have no further
obligations under this Amended Settlement Agreement to any of the Defendants in
the event that any two of the three Defendants exercise their right to terminate this
Amended Settlement Agreement pursuant to Section 13.1 hereof, and Plaintiffs
exercise their termination right within thirty (30) days of the second Defendant’s
exercise of its termination right.
13.4 Plaintiffs’ Right to Seek Modification of This Amended Settlement
Agreement
Plaintiffs shall have the unilateral and unfettered right to seek from the Court
a modification of this Amended Settlement Agreement in the event that one of the
three Defendants exercises its right to terminate this Amended Settlement
Agreement pursuant to Section 13.1 hereof. Plaintiffs’ right to seek such
modification extends to, but is not limited to, the amount and manner of payments
of Convenience Awards or Actual Damage Awards, the manner and method of
notice to the Class, and the general administration of the Settlement, but shall
expressly exclude any modification to the scope of the releases provided herein or
any modification to the amounts paid by Defendants as provided herein.
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13.5 Failure to Approve Monetary Relief Fees or the Injunctive Relief Fees
The failure of any Court to approve the Monetary Relief Fees or the
Injunctive Relief Fees in the requested amounts or any amounts whatsoever, shall
not be grounds for Plaintiffs or Proposed 23(b)(3) Settlement Class Counsel to
terminate this Amended Settlement Agreement.
13.6 Effect of Termination on This or Future Litigation
If this Amended Settlement Agreement is terminated and only as to those
Parties to the extent the Amended Settlement Agreement has been terminated as to
them:
a. the class-certification portions of the Amended Settlement
Agreement shall have no further force and effect and shall not be offered in
evidence or used in the Litigation or any other proceeding;
b. the Amended Settlement Agreement and all negotiations,
proceedings, and documents prepared, and statements made in connection with
either of them, shall be without prejudice to any Party and shall not be deemed or
construed to be an admission or confession by any Party of any fact, matter, or
proposition of law; and
c. the Parties shall stand in the same procedural position as if the
Amended Settlement Agreement had not been negotiated, made, or filed with the
Court.
13.7 Effect of Termination on Monies Paid by Defendants Pursuant to the
Amended Settlement Agreement
In the event this Settlement Agreement is terminated as to certain
Defendants, the Settlement Fund, including interest earned, less Taxes, Tax
Expenses, and notice, Claims, and other administration costs (including fees, costs,
and other expenses of the Court Registry) that have not been properly disbursed
pursuant to this Amended Settlement Agreement, shall be returned to such
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Defendant(s) and such Defendant’s insurers in equal proportions to their
contributions into the Settlement Fund.
XIV. PUBLIC STATEMENTS
14.1 Press Releases and Other Forms of Public Statements Concerning the
Settlement
The Parties will negotiate and agree upon the language that may be used in
press releases and other forms of public statements concerning the Settlement that
would be issued prior to entry by the Court of the Final Approval Order. The
Parties and/or their counsel shall make no statements to any third party regarding
the Settlement prior to entry by the Court of the Final Approval Order, without the
reasonable consent of the other Parties or his, her or its counsel, unless such
statements are reasonably necessary in effecting the terms of this Amended
Settlement Agreement or are required by law. Notwithstanding the foregoing,
23(b)(3) Settlement Class Counsel may place factual notices on their websites and
social media platforms informing viewers of the case status, with links to the
Settlement Website. In addition, if any Party or attorney is contacted by a member
of the press or other person seeking a public comment on the Settlement, the Party
or attorney may provide the inquiring party with the details of the Settlement as
published pursuant to the preliminary approval order, without additional editorial
statements, expression of personal opinion, or estimates of Settlement valuation.
Nothing in this Section shall be interpreted to limit representations that the
Parties or their attorneys may make to the Court to assist it in its evaluation of the
proposed Settlement; nor shall it prohibit 23(b)(3) Settlement Class Counsel from
communicating directly with a 23(b)(3) Settlement Class Member or Class
Members. If a Party is required by a valid, enforceable subpoena or government
information request to disclose the Settlement or information about the Settlement,
such Party shall provide reasonable prior written notice (to the extent permitted by
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applicable law) to the other Parties to allow the other Parties to seek to prevent
such disclosure. Defendants may also provide necessary and accurate information
about the Settlement to their officers, directors, stockholders and other persons or
entities as required by securities laws or other applicable laws or regulations.
No Party or their counsel shall disparage any other Party or their counsel.
14.2 Extra-Judicial Statements
Proposed 23(b)(3) Settlement Class Counsel and all Defendants’ Counsel
agree that all extra-judicial statements in regard to the Settlement will comport
with Rule 5-120 of the California Rules of Professional Conduct. Proposed
23(b)(3) Settlement Class Counsel may communicate with Claimants, 23(b)(3)
Settlement Class Members, clients, or potential clients.
XV. MISCELLANEOUS PROVISIONS
15.1 Admissibility of Amended Settlement Agreement
This Settlement Agreement shall not be offered or be admissible in evidence
in any action or proceeding except (1) the hearings necessary to obtain and
implement Court approval of this Settlement; or (2) any hearing to enforce the
terms of this Amended Settlement Agreement or any related order by the Court.
15.2 Successors and Assigns
The terms of this Amended Settlement Agreement shall apply to and bind
the Parties as well as their heirs, successors and assigns.
15.3 Communications Relating to the Amended Settlement Agreement
All notices or other formal communications under this Amended Settlement
Agreement shall be in writing and sent by mail to counsel for the Party to whom
the notice is directed at the following addresses:
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Equifax: Cindy D. Hanson, Esq. TROUTMAN SANDERS LLP 600 Peachtree Street, NE
Atlanta, GA 30308
Experian: Daniel J. McLoon, Esq. JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071
TransUnion: Julia B. Strickland, Esq. Stephen J. Newman, Esq. STROOCK & STROOCK & LAVAN LLP 2029 Century Park East, Suite 1800 Los Angeles, CA 90067
Plaintiffs: Michael W. Sobol, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Fl. San Francisco, California 94111
Michael Caddell, Esq. CADDELL & CHAPMAN 628 East 9th Street Houston, TX 77007
Lee A. Sherman, Esq. CALLAHAN THOMPSON SHERMAN & CAUDILL LLP 2601 Main Street #800, Irvine, CA 92614
Any Party may, by written notice to all the other Parties, change its designated
recipient(s) or notice address provided above.
15.4 Defendants’ Communications with Consumers in the Ordinary Course
of Business
Defendants reserve the right to continue communicating with their
customers and Consumers, including 23(b)(3) Settlement Class Members, in the
ordinary course of business. To the extent Consumers initiate communications
regarding this Amended Settlement Agreement, Defendants may confirm the fact
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of a settlement and refer inquiries to the Settlement Administrator. Nothing herein
is intended to prohibit Defendants from communicating with Consumers, or
23(b)(3) Settlement Class Members from communicating with Defendants,
regarding requests for a consumer disclosure, fraud, or other alerts or blocks, or
disputes relating to tradelines and the reporting of Chapter 7 bankruptcies.
15.5 Efforts to Support Settlement
The Parties (who support the settlement) and their counsel agree to
cooperate fully in seeking Court approval for this Amended Settlement Agreement
and to use their best efforts to effect the consummation of the Settlement and to
protect the Amended Settlement Agreement by applying for appropriate orders
enjoining others from initiating or prosecuting any action arising out of or related
to facts or claims alleged in the Litigation, if so required.
15.6 Procedures for Disputes Between Parties Relating to the Amended
Settlement Agreement
To the extent any disputes or issues arise with respect to documenting or
effecting the Amended Settlement Agreement, the Parties agree to use their best
efforts to informally resolve any such disputes or issues; but in the event any such
dispute or issue cannot be resolved informally, to bring any such dispute or issue to
the Court for resolution.
15.7 Entire and Voluntary Agreement
The Parties intend the Amended Settlement Agreement to be a final and
complete resolution of all disputes between them, except for any disputes relating
to the Injunctive Relief Fee Agreement and the distribution of funds thereunder
and except as further specifically provided for herein. The Parties agree that the
terms of the Amended Settlement Agreement were negotiated at arm’s length and
in good faith and were reached voluntarily after consultation with competent legal
counsel. This Amended Settlement Agreement contains the entire agreement and
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understanding concerning the subject matter between the Parties, excluding those
subjects that relate to the Injunctive Relief Fee Agreement, and supersedes all prior
negotiations and proposals, whether written or oral, including but not limited to the
2009 Proposed Settlement Agreement, the November 7, 2016 term sheet signed at
the mediation before the Hon. Dickran Tevrizian (Ret.), and the Settlement
Agreement and Release signed by the Parties and filed with the Court on April 14,
2017 (Docket No. 1047-1) and refiled again on May 25, 2017 (Docket No. 1060-
1). No other Party or any agent or attorney of any other Party has made any
promise, representation or warranty whatsoever not contained in this Amended
Settlement Agreement and the other documents referred to in this Amended
Settlement Agreement to induce them to execute the same. The Parties represent
that they have not executed this instrument or the other documents in reliance on
any promise, representation or warranty not contained in this Amended Settlement
Agreement and the other documents referred to in this Amended Settlement
Agreement.
15.8 Headings for Convenience Only
The headings in this Amended Settlement Agreement are for the
convenience of the reader only and shall not affect the meaning or interpretation of
this Amended Settlement Agreement.
15.9 Amended Settlement Agreement Controls
All of the exhibits attached hereto are hereby incorporated by reference as
though fully set forth. To the extent that there is any conflict between the terms of
this Amended Settlement Agreement and the exhibits attached hereto, this
Amended Settlement Agreement shall control.
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15.10 Amendments
The Amended Settlement Agreement may be amended or modified only by a
written instrument signed by Defendants and 23(b)(3) Settlement Class Counsel, or
their respective successors-in-interest.
15.11 Authorization of Counsel
a. Proposed 23(b)(3) Settlement Class Counsel, on behalf of the
23(b)(3) Settlement Class, are expressly authorized by Plaintiffs to take all
appropriate action required or permitted to be taken by the 23(b)(3) Settlement
Class pursuant to the Amended Settlement Agreement to effectuate its terms, and
also are expressly authorized to enter into any modifications or amendments to the
Amended Settlement Agreement on behalf of the 23(b)(3) Settlement Class which
they deem necessary or appropriate.
b. Each attorney executing the Amended Settlement Agreement
on behalf of any Party hereto hereby warrants that such attorney has the full
authority to do so.
15.12 Confidentiality
The Settlement Administrator (and any person retained by the Settlement
Administrator) shall sign the Confidentiality Agreement, and all information
provided to the Settlement Administrator, including the Original Class List and the
Updated Class List, shall be subject to the Confidentiality Agreement. All
agreements made and Orders entered during the course of the Litigation relating to
the confidentiality of information shall survive this Amended Settlement
Agreement.
15.13 Court’s Jurisdiction
The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of the Amended Settlement Agreement.
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15.14 Construction
Each of the Parties has cooperated in the drafting and preparation of this
Amended Settlement Agreement. Hence, in any construction to be made of this
Amended Settlement Agreement, the same shall not be construed against any of
the Parties. Before declaring any provision of this Amended Settlement
Agreement invalid, a court should first attempt to construe the provision valid to
the fullest extent possible consistent with applicable precedent so as to find all
provisions of this Amended Settlement Agreement valid and enforceable.
15.15 No Claims Arising from this Amended Settlement Agreement
No person shall have any claim against any Defendant, Defendant’s
Counsel, or 23(b)(3) Settlement Class Counsel based on distribution of benefits
made substantially in accordance with this Amended Settlement Agreement or any
Amended Settlement Agreement related order(s) of the Court.
15.16 Applicable Law
This Amended Settlement Agreement shall, in all respects, be interpreted,
construed and governed by and under the laws of the United States of America. To
the extent state law applies for any reason, the laws of the State of California shall
be applied. All judicial proceedings regarding this Amended Settlement
Agreement shall be brought only in the Court. Any notice period set forth in this
Amended Settlement Agreement shall be calculated pursuant to the Federal Rules
of Civil Procedure and the Central District of California’s Civil Local Rules.
15.17 Counterparts
This Amended Settlement Agreement may be executed in one or more
counterparts and by facsimile. All executed counterparts and each of them shall be
deemed to be one and the same instrument. Counsel for the Parties shall exchange
among themselves signed counterparts and a complete set of executed counterparts
shall be filed with the Court.
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Dated: LIEFF CABRASER HEIMANN & BERNSTEIN LLP By: Michael Sobol Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: CADDELL & CHAPMAN By: Michael Caddell Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: FRANCIS & MAILMAN, P.C. By: James A. Francis Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: PUBLIC JUSTICE, P.C. By: F. Paul Bland Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 54 of 69 Page ID #:17189
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Dated: LIEFF CABRASER HEIMANN & BERNSTEIN LLP By: Michael Sobol Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: CADDELL & CHAPMAN By: Michael Caddell Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: FRANCIS & MAILMAN, P.C. By: James A. Francis Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: PUBLIC JUSTICE, P.C. By: F. Paul Bland Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 55 of 69 Page ID #:17190
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Dated: LIEFF CABRASER HEIMANN & BERNSTEIN LLP
By: Michael Sobol
Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class
Dated: CADDELL & CHAPMAN
By: Michael Caddell
Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class
Dated: FRANCIS & MAILMAN, P.C.
By: James A. Francis
Co-Lead Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class
Dated: PUBLIC JUSTICE, P.C.
By: F. Paul Bland
Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class
June 8, 2017
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 56 of 69 Page ID #:17191
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 57 of 69 Page ID #:17192
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Dated: PUBLIC JUSTICE, P.C. By: Arthur H. Bryant Counsel for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: CALLAHAN THOMPSON SHERMAN & CAUDILL LLP By: Lee A. Sherman Attorneys for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: NATIONAL CONSUMER LAW CENTER By: Stuart T. Rossman Charles M. Delbaum Attorneys for Plaintiffs and Proposed 23(b)(3) Settlement Class Dated: CONSUMER LITIGATION ASSOCIATES, P.C. By: Leonard A. Bennett Attorneys for Plaintiffs and Proposed 23(b)(3) Settlement Class
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 58 of 69 Page ID #:17193
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 59 of 69 Page ID #:17194
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 60 of 69 Page ID #:17195
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 61 of 69 Page ID #:17196
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 62 of 69 Page ID #:17197
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 63 of 69 Page ID #:17198
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 64 of 69 Page ID #:17199
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 65 of 69 Page ID #:17200
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Dated: PLAINTIFF JOSE HERNANDEZ By: Jose Hernandez Dated: PLAINTIFF ROBERT RANDALL By: Robert Randall Dated: PLAINTIFF BERTRAM ROBISON By: Bertram Robison Dated: PLAINTIFF KATHRYN PIKE By: Kathryn Pike
Dated: PLAINTIFF CAMILLE CHAPMAN By: Camille Chapman
Dated: PLAINTIFF LEWIS MANN By: Lewis Mann
DocuSign Envelope ID: 8C953877-6428-44CC-983E-B73B9236717C
06/12/2017
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 66 of 69 Page ID #:17201
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 67 of 69 Page ID #:17202
Dated: STROOCK & STROOCK &LAVAN LLPJulia B. Strickland, Esq.Stephen J. Newman, Esq.2029 Century Park East, Suite 1800Los Angeles CA 90067
By:Stephen J. Newman, Esq.
Dated:
Dated:
Dated:
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Counsel for TransUnion
TRANSLTNION LLC
John W. Blenke
TROUTMAN SANDERS LLPCindy Hanson, Esq.600 Peachtree St., NEAtlanta GA 3030 -2216
By:Cindy Hanson
Counsel for Equifax
EQUIFAX INFORMATIONSERVICES LLC
By:Joh J. K ley III
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 68 of 69 Page ID #:17203
Case 8:05-cv-01070-DOC-MLG Document 1066-1 Filed 06/14/17 Page 69 of 69 Page ID #:17204