Thomas G. Jarrard The Law Office of Thomas G. Jarrard, PLLC€¦ · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Thomas G. Jarrard The Law Office of Thomas G. Jarrard,

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Thomas G. Jarrard

The Law Office of Thomas G. Jarrard, PLLC

1020 N. Washington

Spokane, WA 99201

Telephone: (425) 239-7290

Email: [email protected]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

Jade Wilcox, on behalf of herself and

all others similarly situated,

Plaintiffs,

v.

Swapp Law, PLLC, d/b/a Craig

Swapp and Associates, and James

Craig Swapp, individually,

Defendants

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Case No. 2:17-cv-275-RMP

Related to Case No. 2:17-cv-122-

RMP

PLAINTIFF’S UNOPPOSED

MOTION FOR PRELIMINARY

APPROVAL OF CLASS ACTION

SETTLEMENT

11/25/2019

With Oral Argument: 1:30 p.m.

920 West Riverside Ave., Rm. 901

Spokane, Washington

Case 2:17-cv-00275-RMP ECF No. 139 filed 10/25/19 PageID.2231 Page 1 of 34

mailto:[email protected]

Plaintiff’s Motion for Preliminary Approval of Class Action Settlement - ii

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TABLE OF CONTENTS

Memorandum of Points and Authorities ............................................................... 2

I. History and Status of the Case ........................................................... 3

A. Statement of Facts ..................................................................... 3

B. The Claim and Relief Requested ............................................. 5

C. Procedural History .................................................................... 6

II. Terms of the Settlement ...................................................................... 8

III. The Proposed Settlement Merits Preliminary Approval ..............10

A. The Settlement is a Result of Serious, Informed, and Non-

Collusive Negotiations ............................................................12

B. The Settlement Provides Significant Benefits to the Class

and is Well Within the Range of Reasonableness ................14

C. The Settlement has No Obvious Deficiencies .......................18

IV. The Notices and Plan of Notice Should be Approved ....................22

V. The Court Should Establish Dates for Effectuating Final

Approval of the Settlement ...............................................................25

Conclusion ...............................................................................................................25


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TABLE OF AUTHORITIES

Page(s)

Cases

Anderson-Butler v. Charming Charlie Inc.,

No. 14 CV 1921, 2015 WL 4599420 (E.D. Cal. July 29, 2015) ........................ 21

In re Bluetooth Headset Prods. Liab. Litig.,

654 F.3d 935 (9th Cir. 2011) .............................................................................. 19

Burnett v. W. Customer Mgmt. Grp., LLC,

No. 10 CV 56, 2011 WL 13290339 (E.D. Wash. Feb. 22, 2011) ................ 14, 23

Carideo v. Dell Inc.,

No. 06 CV 1772, 2010 WL 11530601 (W.D. Wash. Sept. 13,

2010) ................................................................................................................... 12

De La O v. Arnold-Williams,

No. 04 CV 192, 2008 WL 11426817 (E.D. Wash. Aug. 12, 2008) ................... 24

Dennings v. Clearwire Corp.,

No. 10 CV 1859, 2013 WL 1858797 (W.D. Wash. May 3, 2013),

aff'd No. 13-35491 (9th Cir. Sept. 9, 2013) ........................................................ 20

Dunakin v. Quigley,

No. 14 CV 567, 2017 WL 123011 (W.D. Wash. Jan. 10, 2017) ........................ 12

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) ............................................................................................ 24

Fresco v. Auto. Directions, Inc.,

No. 03 CV 61063, 2009 WL 9054828 (S.D. Fla. Jan. 20, 2009) ................. 16, 20

Gabriel v. Nationwide Life Ins. Co.,

No. 09 CV 508, 2010 WL 11684279 (W.D. Wash. May 17, 2010) ............. 11, 14

Hall v. L-3 Commc'ns Corp.,

No. 15 CV 231, 2019 WL 3845462 (E.D. Wash. Jan. 25, 2019) ................. 11, 15

Hesse v. Sprint Corp.,

598 F.3d 581 (9th Cir. 2010) .............................................................................. 18


Plaintiff’s Motion for Preliminary Approval of Class Action Settlement - iv

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Logan v. Hargraves,

No. 04 CV 214, 2008 WL 11425713 (E.D. Wash. Sept. 25, 2008) ................... 22

Maracich v. Spears,

570 U.S. 48 (2013) ................................................................................................ 5

Officers for Justice v. Civil Serv. Comm’n of City & Cnty. of S.F.,

688 F.2d 615 (9th Cir. 1982) .............................................................................. 10

Peters v. Nat'l R.R. Passenger Corp.,

966 F.2d 1483 (D.C. Cir. 1992) .......................................................................... 24

Rinky Dink, Inc. v. World Bus. Lenders, LLC,

No. 14 CV 268, 2016 WL 4052588 (W.D. Wash. Feb. 3, 2016) ........... 12, 14, 16

Roberts v. Source for Pub. Data, LP,

No. 08 CV 4167, 2010 WL 2195523 (W.D. Mo. May 28, 2010) ...................... 17

Rosas v. Sarbanand Farms, LLC,

No. 18 CV 112, 2019 WL 859225 (W.D. Wash. Feb. 22, 2019) ................. 23, 24

Scott v. United Servs. Auto. Ass'n,

No. 11 CV 1422, 2013 WL 12251170 (W.D. Wash. Jan. 7, 2013) .............. 11, 19

Smith v. Legal Helpers Debt Resolution, LLC,

No. 11 CV 5054, 2012 WL 12863173 (W.D. Wash. Aug. 30, 2012) ................ 10

Taylor v. City of Amboy,

No. 14 CV 722, 2017 WL 4075163 (D. Minn. Sept. 14, 2017) ......................... 20

Util. Reform Project v. Bonneville Power Admin.,

869 F.2d 437 (9th Cir. 1989) .............................................................................. 10

Vinh Nguyen v. Radient Pharm. Corp.,

No. 11 CV 406, 2014 WL 1802293 (C.D. Cal. May 6, 2014) ........................... 22

Wilcox v. Bastiste,

No.17 CV 122, 2017 WL 2525309 (E.D. Wash. June 9, 2017) ........................... 4

Wiles v. Sw. Bill Tel. Co.,

No. 09 CV 4236, 2011 WL 2416291 (W.D. Mo. June 9, 2011) ........................ 15


Plaintiff’s Motion for Preliminary Approval of Class Action Settlement - v

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Zamora Jordan v. Nationstar Mortg., LLC,

No. 14 CV 175, 2019 WL 1966112 (E.D. Wash. May 2, 2019) ........................ 12

Statutes

18 U.S.C. § 2721 ........................................................................................................ 5

18 U.S.C. § 2721(b) ............................................................................................... 5, 6

18 U.S.C. § 2721(b)(4)............................................................................................... 5

18 U.S.C. § 2722(a) ............................................................................................... 5, 6

18 U.S.C. § 2724(b) ........................................................................................... 16, 20

18 U.S.C. § 2724(b)(1)............................................................................................... 6

18 U.S.C. § 2725 ........................................................................................................ 5

Other Authorities

Fed. R. Civ. P. 12(b)(6) .............................................................................................. 6

Fed. R. Civ. P. 23 ........................................................................................... 1, 24, 25

Fed. R. Civ. P. 23(b)(3) ............................................................................................ 23

Fed. R. Civ. P. 23(c)(2) ........................................................................................ 1, 24

Fed. R. Civ. P. 23(c)(2)(B) ................................................................................ 23, 24

Fed. R. Civ. P. 23(c)(3) ............................................................................................ 23

Fed. R. Civ. P. 23(d) .................................................................................................. 1

Fed. R. Civ. P. 23(e)................................................................................... 1, 2, 10, 22

Fed. R. Civ. P. 23(e)(1)(B) .................................................................................. 1, 24

Fed. R. Civ. P. 23(f) ............................................................................................. 8, 16

Fed. R. Civ. P. 30(b)(6) .............................................................................................. 6

Manual for Complex Litigation (4th ed. 2004) ............................................ 11, 23, 24


Plaintiff’s Motion for Preliminary Approval of Class Action Settlement - vi

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William B. Rubenstein et al., Newberg on Class Actions § 13:10 (5th

ed. 2013) ............................................................................................................. 19


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INDEX OF EXHIBITS

Declaration of R. Joseph Barton with the following attachments:

Exhibit A Settlement Agreement;

Exhibit B Proposed Class Notice; and

Exhibit C Plan of Allocation.

Declaration of Colin M. Downes with the following attachments:

Exhibit A Proposal for Settlement Administration Services Submitted by

Angeion Group; and

Exhibit B Proposal for Settlement Administration Services Submitted by

RG/2 Claims Administration.


Plaintiff’s Motion for Preliminary Approval of Class Action Settlement - 1

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Plaintiff Jade Wilcox moves this Court to enter an order under Rule 23 of

the Federal Rules of Civil Procedure:

1. Preliminarily approving the Settlement Agreement between Plaintiff

and Defendants (attached as Exhibit A) as fair, reasonable, and adequate under

Rule 23(e) of the Federal Rules of Civil Procedure;

2. Approving the proposed Class Settlement Notice (attached as Exhibit

B) as to form and content and the plan for dissemination of notice to the Class as

satisfying the requirements of Rule 23(c)(2) and (e)(1) and appointing the

Settlement Administrator;

3. Approving the proposed Plan of Allocation; and

4. Setting dates and deadlines under Rule 23(d) and (e) of the Federal

Rules of Civil Procedure in order for the Court to evaluate whether the settlement

should be given final approval (after distribution of the proposed class notices to

the Class and submission of any objections to or requests for exclusion from the

settlement, and for a fairness hearing on final approval of the settlement), to

evaluate Class Counsel’s request for an award of attorneys’ fees and

reimbursement of costs and expenses and Plaintiff’s request for a service award as

follows:

Deadline for Settlement Administrator

to provide notice to the Class

30 days after the Preliminary Approval

Date

Deadline for Class Counsel to file 14 days before deadline for date for



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motion for award of attorneys’ fees and

costs for Service Award for Class

Representative

objections or exclusions

Last day for requests for exclusion

from the Class to be submitted by Class

Members


Date

Last day for Class Members to file

objections to the Settlement


Date

Last day for Class Counsel to file

Motion for Final Approval of

Settlement

105 days after the Preliminary

Approval Date

Hearing on motion for final approval of

settlement and application for

attorneys’ fees and costs

At least 120 days after the Preliminary

Approval Date

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff Jade Wilcox respectfully submits this Memorandum in support of

her motion to preliminarily approve the proposed Class Action Settlement with

Defendants pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to

approve the proposed notice to the Class, and to set various dates related to the

approval of the Settlement.

Pursuant to the Settlement, Defendants have agreed, to (1) pay $2 million,

(2) cease making use of the personal information of the Class, (3) destroy any

records containing personal information of the Class obtained from police traffic

collision reports (“PCTRs”), (4) cease purchasing police traffic collision reports in

or from the state of Washington for the purpose of acquiring contact information

for potential clients, (5) identify any third parties to whom they provided any

records containing the personal information of Class Members, and (6) advise any



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such third parties that Plaintiff and the Class consider those records to contain

information protected by the DPPA. Given the uncertainty of establishing both

liability and damages, the risk on appeal, and uncertainty regarding the ability of

Defendants to satisfy a judgment reached at trial, the Settlement should be

preliminarily approved by the Court.

I. History and Status of the Case

A. Statement of Facts

In the State of Washington, law enforcement officers use standard PTCRs to

document vehicle accidents. ECF No. 62-2 at 8:9-16; ECF No. 61-2 at 23:5-8. In

collecting information for the PTCR, officers are trained to and do ask drivers for

their licenses, registrations, and insurance information and then ask if the

information on the registration and drivers’ licenses is current. ECF No. 61-3 at

13:15-21; ECF No. 61-4 at 41:2-9; Declaration of Pete Cozzitorto ¶ 3, Wilcox v.

Batiste, No. 17-cv-00122-RMP (E.D. Wash.). If the information is current, officers

scan the barcode on a license or registration and if the barcode is scannable, a

software application—SECTOR—auto-populates the PTCR with information from

those documents, including the names and addresses of the driver. ECF No. 61-3 at

13:13-25; ECF No. 61-4 at 42:18-43:8; Declaration of Pete Cozzitorto ¶ 4, Wilcox

v. Batiste, No. 17-cv-00122-RMP (E.D. Wash.). If the barcode is not scannable,

officers manually enter the information from the license or registration (whichever



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is current). ECF No. 61-8 at 17-18.

Once officers complete their PTCRs, SECTOR transmits the PTCRs to the

Department of Transportation and to the Washington State Patrol (“WSP”). ECF

No. 61-3 at 37:9-38:2; ECF No. 62-2 at 13:13-17. WSP’s Collision Records

Section maintains all PTCRs for the State of Washington, regardless of whether

they were prepared by WSP troopers, or local law enforcement. ECF No. 62-2 at

8:9-16. At least prior to June 9, 2017, the WSP routinely sold PTCRs – containing

drivers’ names and addresses – to anyone who wished to buy them through the

WSP website. ECF No. 62-2 at 25:21-26:22; see Wilcox v. Bastiste, No.17 CV 122,

2017 WL 2525309 at *4 (E.D. Wash. June 9, 2017).

Defendants, a personal injury attorney and his law firm, purchased 10,555

PTCRs between September 1, 2017 and June 23, 2017, of which 8,835 involved

individuals who were not then – and never became – clients of Swapp Law. ECF

No. 61-7 at Nos. 2(a), (b) and (c). Two of these PCTRs contained the personal

information of Plaintiff, who was involved in car accidents in 2015 and 2016. After

her 2016 accident, Ms. Wilcox received a letter from Defendants that offered their

legal services and stated they learned “from Washington public records” that she

was “involved in a serious accident on July 9.” ECF No. 62-1 at 1. The letter also

enclosed a booklet advertising Defendants’ firm. Id. Ms. Wilcox considered the

way “they got my address” to be “an invasion of [her] privacy.” ECF No. 62-3 at



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94:19-24.

B. The Claim and Relief Requested

The Complaint alleges a single claim under the Driver’s Privacy Protection

Act, 18 U.S.C. § 2721, et seq. Am. Compl. ¶¶ 6.1-6.11. The DPPA makes it

“unlawful for any person knowingly to obtain or disclose personal information,

from a motor vehicle record, for any use not permitted under Section 2721(b)” of

the DPPA. 18 U.S.C. § 2722(a). The DPPA defines personal information to mean

“information that identifies an individual, including an individual's photograph,

social security number, driver identification number, name, [and] address….”18

U.S.C. § 2725. A “motor vehicle record” is defined as “any record that pertains to

a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or

identification card issued by a department of motor vehicles.” Id. Because PTCRs

contain information identifying individuals, including names and addresses, and

this information is from the motor vehicle records used by police to prepare

PTCRs, the PTCRs obtained by Defendants contained personal information of

Class Members under the DPPA. The marketing of legal services is not a

“permissible use” of personal information under the DPPA. 18 U.S.C. § 2721(b);

see Maracich v. Spears, 570 U.S. 48, 61, (2013) (holding bulk attorney solicitation

of clients not a proper purpose under 18 U.S.C. § 2721(b)(4)). Thus, Defendants

undisputedly had no permissible purpose, within the meaning of 18 U.S.C. §



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2722(a) or § 2721(b), to obtain the personal information of Plaintiff or the Class.

The Complaint requested relief on behalf of Plaintiff and a Class of other

drivers whose personal information was illegally obtained or used by Defendants

consisting of declaratory and injunctive relief aimed at preventing and restraining

Defendants’ practice of illegally obtaining PCTRs, an injunction preventing and

restraining Defendants from disclosing or using the DPPA-protected information in

their possession, an injunction requiring Defendants to destroy such information,

an injunction requiring Defendants to identify under oath how and to who such

information was disclosed, and monetary damages in the amount of the statutorily

provided liquidated damages of $2500 for each violation of the DPPA under 18

U.S.C. 2724(b)(1). Am Compl. at Prayer for Relief ¶¶ A-I.

C. Procedural History

The original complaint was filed on August 9, 2017. ECF No. 1. Defendants

responded by filing a motion to dismiss under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, which the Court denied, ECF No. 21. Defendants then

answered the Complaint and asserted 14 defenses. ECF No. 22. Class Counsel

issued 24 interrogatories and 33 documents requests to Defendants, and reviewed

thousands of pages produced by Defendants and non-parties in discovery. Barton

Decl. ¶ 3. Class Counsel took depositions under Rule 30(b)(6) of the Washington

Department of Licensing, the Washington State Patrol, the Washington State



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Criminal Justice Training Commission, and the Spokane Police Department.

Barton Decl. ¶ 5. Class Counsel also defended Defendants’ deposition of Plaintiff.

Id. Class Counsel filed two motions to compel seeking responses to interrogatories,

which were granted in part. Barton Decl. ¶ 3; ECF Nos. 65 & 79. Class Counsel

also successfully opposed Defendants motion to compel discovery from one of

Plaintiffs’ counsel. Barton Decl. ¶ 4; ECF Nos. 75, 84, 106.

Based on information obtained in discovery, Plaintiff filed an Amended

Complaint that added to the factual allegations, but did not add any new legal

claim. ECF No. 69. Defendants moved to dismiss the Amended Complaint, which

the Court denied. ECF Nos. 80, 108. After extensive discovery, Plaintiff moved for

Class Certification of the Class, which the Court granted. ECF Nos. 61 & 109. The

Class certified by the Court is defined as:

All drivers identified in Police Traffic Collision Reports whose

Personal Information, as defined by the DPPA, was derived from a

Department of Licensing record (e.g. license, registration or database)

and the Report was obtained or used by the Swapp Law Firm (d/b/a

Craig Swapp & Associates) or Mr. Swapp from the Washington State

Patrol between September 1, 2013 and June 23, 2017.

Excluded from the Class are (a) current and former clients of

Defendants; (b) individuals identified on the same PTCRs as

Defendants’ clients; (c) individuals who provided written consent to

Defendants for the disclosure of their Personal Information (as defined

by the DPPA) prior to Defendants obtaining their personal information;

(d) employees (and attorneys) of Defendants and members of their

immediate families; and (e) the presiding judge and anyone working in

the presiding judge’s chambers and the members of their families.



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Id. at 30. Defendants subsequently filed motions to reconsider class certification, to

certify the order on the Second Motion to Dismiss for interlocutory review, and

announced the intention to seek interlocutory review of class certification by the

Ninth Circuit under Rule 23(f), ECF No. 113, 115 at 3 n.1.

At the request of the parties, the case was stayed and referred to Hon. Lonny

Suko for mediation. ECF No. 117. Before mediation, Class Counsel requested,

obtained and reviewed a significant amount of financial materials from Defendants

in order to evaluate Defendants’ ability to satisfy a potential judgment in this case.

Barton Decl. ¶ 7. As part of the review of those materials, Class Counsel hired an

economist to assist them in reviewing and understanding Defendants’ financial

information. Id.. The Parties exchanged pre-mediation settlement offers and then

attended an in-person mediation session on May 23, 2019 with Senior Judge Lonny

Suko. Id. ¶ 9. An agreement in principle was reached only at the end of the all-day

mediation session. Id. The parties then entered into the formal Settlement

Agreement.

II. Terms of the Settlement

The terms of the proposed settlement between Plaintiff and Defendants

provide both a monetary and non-monetary consideration. Agmt. §§ 4, 6. Under

the Settlement, effective as of the execution of the Settlement Agreement,

Defendants agree that they will refrain from purchasing PTCRs in or from the State



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of Washington for the purpose of acquiring contact information for potential

clients and sending marketing materials to them. Id. § 6.1. Defendants also agree

that they will cease using any such PTCRs for those purposes, and will, within 120

days after the final distribution to the Class Members, destroy all such PTCRs and

personal information taken from them. Id. § 6.3-4. Defendants also agreed to notify

Class Counsel of any third parties to whom Defendants have provided such PTCRs

(or personal information from the PTCRs), and will notify such third parties that

Plaintiff and the Class consider those records to contain information protected by

the DPPA. Id. § 6.5-6

In addition to this non-monetary consideration, Defendants have agreed to

pay the following amounts: (1) $950,000 into a Settlement Fund, which minus only

settlement administration expenses, will be paid to the Class (and which will be

fully funded by no later than June 1, 2020); and (2) between $900,000 and $1.05

million (depending on whether the amount is paid by December 1, 2020 or paid

over three years), out of which any award of attorneys’ fees, litigation expenses

and class representative service award, and if there are any remaining amounts, the

remainder will be paid to the Settlement Fund.

The Net Settlement Fund will be paid to the Class Members pursuant to a

Plan of Allocation that proposes that Settlement Fund will be evenly divided

among all Class Members and that Class Members will receive a payment without



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needing to complete a claim form. The benefit of being able to distribute the

Settlement Funds to Class Members is that it should greatly increase the number of

persons who actually benefit from the Settlement.

In exchange for these benefits, the Class will release and dismiss with

prejudice all claims arising out of Defendants’ acquisition and use of PCTRs that

Defendants have identified as involving Class Members and will dismiss with

prejudice their claims asserted in this action. Defendants will likewise release

Plaintiff and each Class Member from all claims that could have been asserted in

this case, including any claims for attorneys’ fees, costs, expenses, or sanctions,

that relate to the filing, commencement, prosecution, or settlement of this case.

III. The Proposed Settlement Merits Preliminary Approval

As a matter of public policy, settlement is a strongly favored method for

resolving disputes. Util. Reform Project v. Bonneville Power Admin., 869 F.2d

437, 443 (9th Cir. 1989). This is especially true in class actions. Officers for

Justice v. Civil Serv. Comm’n of City & Cnty. of S.F., 688 F.2d 615, 625 (9th Cir.

1982); Smith v. Legal Helpers Debt Resolution, LLC, No. 11 CV 5054, 2012 WL

12863173, at *3 (W.D. Wash. Aug. 30, 2012) (“Strong judicial policy favors

settlements, particularly where complex class action litigation is concerned.”). To

protect the interests of the class, Rule 23(e) provides that a class action cannot be

settled without court approval. Fed. R. Civ. P. 23(e). “At this stage of the



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proceedings, the Court must initially consider whether to grant preliminary

approval of the settlement as a first step toward final approval.” Hall v. L-3

Commc'ns Corp., No. 15 CV 231, 2019 WL 3845462, at *3 (E.D. Wash. Jan. 25,

2019).

The request for preliminary approval only requires an “initial evaluation” of

the fairness of the proposed settlement. Manual for Complex Litigation § 21.632

(4th ed. 2004). The purpose of preliminary approval is to determine “whether to

direct notice of the proposed settlement to the class, invite the class’s reaction, and

schedule a fairness hearing.” William B. Rubenstein et al., Newberg on Class

Actions § 13:10 (5th ed. 2013). Because the approval is only preliminary, courts

generally undertake a limited review of the proposed settlement. Id. “The general

rule is that a court will grant preliminary approval where the proposed settlement is

neither illegal nor collusive and is within the range of possible approval.” Id. “In

granting preliminary approval, the Court considers whether the Settlement

Agreement appears to be the product of serious, informed, non-collusive

negotiations; has no obvious deficiencies; does not grant preferential treatment to

class representatives, and falls within the range of possible approval.” Hall, 2019

WL 3845462, at *3; Scott v. United Servs. Auto. Ass'n, No. 11 CV 1422, 2013 WL

12251170, at *1 (W.D. Wash. Jan. 7, 2013) (same); Gabriel v. Nationwide Life Ins.

Co., No. 09 CV 508, 2010 WL 11684279, at *6 (W.D. Wash. May 17, 2010)



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(same). The Settlement readily satisfies the requirements for preliminary approval.

A. The Settlement is a Result of Serious, Informed, and Non-

Collusive Negotiations

“A presumption of fairness and adequacy attaches to a class action

settlement reached in arm’s-length negotiations by experienced class counsel after

meaningful discovery.” Dunakin v. Quigley, No. 14 CV 567, 2017 WL 123011, at

*2 (W.D. Wash. Jan. 10, 2017). The fact that experienced counsel has been

actively engaged in the litigation and has diligently pursued the necessary

discovery evidences the non-collusive nature of the settlement. Rinky Dink, Inc. v.

World Bus. Lenders, LLC, No. 14 CV 268, 2016 WL 4052588, at *5 (W.D. Wash.

Feb. 3, 2016) (“The presence of substantial formal discovery is an indicator that

the parties were informed regarding the wisdom of settlement and engaged in

arms-length bargaining.”). The assistance of a neutral mediator in the settlement

negotiations further evidences the non-collusive nature of the negotiations. Zamora

Jordan v. Nationstar Mortg., LLC, No. 14 CV 175, 2019 WL 1966112, at *3 (E.D.

Wash. May 2, 2019) (finding no collusion where “the Settlement Agreement was

achieved under the supervision of a trusted third-party mediator following

extensive settlement negotiations”); Carideo v. Dell Inc., No. 06 CV 1772, 2010

WL 11530601, at *3 (W.D. Wash. Sept. 13, 2010) (“The assistance of an

experienced mediator … confirms that the settlement is non-collusive.”).

In this case, a settlement was not reached until Plaintiff’s counsel had



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conducted substantial discovery. Plaintiff’s counsel did not only seek, obtain, and

review thousands of pages of documents and answers to interrogatories, but also

met and conferred with Defendants on numerous discovery matters and, ultimately,

twice moved to compel Defendants to provide futher responses to interrogatories.

Barton Decl. ¶ 3. Plaintiff’s counsel also took the depositions of the Washington

Department of Licensing, the Washington State Patrol, the Washington State

Criminal Justice Training Commission, and the Spokane Police Department, and

defended the deposition of Ms. Wilcox. Barton Decl. ¶ 5.

The terms of the Settlement resulted from hard-fought negotiations. Id. ¶¶ 6-

13. The Parties negotiated the principal terms of the agreement in an in-person

mediation facilitated by Senior Judge Hon. Lonny Suko on May 23, 2019, in

Yakima, Washington. Id. ¶ 9. The Parties reached the principal terms of the

Settlement only after Plaintiff had received and reviewed documents produced by

Defendants regarding their financial circumstances and ability to satisfy a potential

judgment in this case. Barton Decl. ¶ 7. After reaching the principal terms of the

Settlement at the May 23 session, Plaintiff and Defendants spent additional time

crafting the detailed terms of a formal agreement and finalizing them in the

Settlement Agreement. Barton Decl. ¶ 11.

The opinion of experienced class action attorneys is to be considered on

preliminary approval. See Burnett v. W. Customer Mgmt. Grp., LLC, No. 10 CV



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56, 2011 WL 13290339, at *6 (E.D. Wash. Feb. 22, 2011). As previously

demonstrated on their Motion for Class Certification, Class Counsel are

experienced in class action litigation. Pl.’s Mot. for Class Cert. (ECF No. 61).

Class Counsel believe that the proposed Settlement is a very good result and that

they received sufficient discovery to reach that conclusion. Barton Decl. ¶¶ 3-5, 12.

Accordingly, as a product of extensive negotiations aided by a neutral

professional mediator and conducted by informed and experienced counsel over 26

months of hard-fought litigation, the Settlement Agreement is the product of

informed, vigorous, arms-length bargaining.

B. The Settlement Provides Significant Benefits to the Class and

is Well Within the Range of Reasonableness

While the Court’s ultimate assessment of whether the proposed settlement is

fair, reasonable, and adequate depends on many factors, at preliminary approval,

the Court must only be satisfied that the settlement “falls within the range of

possible approval” and has no “obvious deficiencies.” Gabriel v. Nationwide Life

Ins. Co., No. 09 CV 508, 2010 WL 11684279, at *6 (W.D. Wash. May 17, 2010)

(emphasis added); Rinky Dink, Inc. v. World Bus. Lenders, LLC, No. 14 CV 268,

2016 WL 4052588, at *4 (W.D. Wash. Feb. 3, 2016) (“[A]t this preliminary

approval stage, the Court conducts a less searching inquiry of each factor and only

requires that the proposed settlement be within the range of final approval”). “To

determine whether a settlement amount falls within the range of reasonableness,



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courts primarily consider plaintiffs' expected recovery balanced against the value

of the settlement offer.” Hall, 2019 WL 3845462, at *4 (citations and quotation

marks removed). Here, the Settlement Agreement will provide for at least

$950,000 to be paid into a Settlement Fund for the benefit of the Class, which

results in at least a per Class Member value of $ 29.41 (before settlement

administration expenses) and $26.34 (after payment of estimated settlement

administration expenses).1 Agmt. § 4.1. The total amount is in line with class

settlements approved in DPPA cases by other courts. E.g. Wiles v. Sw. Bill Tel.

Co., No. 09 CV 4236, 2011 WL 2416291, at *1 (W.D. Mo. June 9, 2011) (finding

a $900,000 settlement reasonable for a class of all drivers licensed in Missouri).

Particularly in light of the other factors, this Settlement is a very good result for the

Class.

First, the expense, risk, and length of continued proceedings necessary to

prosecute the litigation against Defendants through trial and appeals, including the

risk that the claim might fail on a motion for summary judgment, following a trial

on the merits, or on appeal, weighs in favor of settlement. Defendants filed

1 Defendants purchased 10,555 PTCRs between September 1, 2017 and June 23,

2017, of which 8,835 involved individuals who were not then – and never became

– clients of Swapp Law. ECF No. 61-7 at Nos. 2(a), (b) and (c). After reviewing

the data, eliminating duplicates, eliminating persons excluded from the Class,

Class Counsel estimates the Class to consist of approximately 32,300 individuals.

Barton Decl. ¶13. An express condition of the Settlement is that Defendants

purchased no more than 9,000 PCTRs during the Class Period. Agrmt. § 14.2.



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motions for reconsideration and interlocutory appeal of this Court’s order

certifying the Class, and stated the intention to pursue a petition to the Ninth

Circuit for review of the same under Rule 23(f). ECF No. 113, 115 at 3 n.1.

Second, the uncertainty introduced by the remedial provisions of the DPPA

weighs in favor of settlement. The DPPA provides that “[t]he court may award—

(1) actual damages, but not less than liquidated damages in the amount of $2,500;

(2) punitive damages upon proof of willful or reckless disregard of the law; (3)

reasonable attorney's fees and other litigation costs reasonably incurred; and (4)

such other preliminary and equitable relief as the court determines to be

appropriate.” 18 U.S.C. § 2724(b). Some courts have taken the position that relief

is awarded “at the discretion of the district court,” and “statutory damages are not

mandatory recovery in a DPPA case.” Fresco v. Auto. Directions, Inc., No. 03 CV

61063, 2009 WL 9054828, at *4 (S.D. Fla. Jan. 20, 2009) (holding proposed

DPPA settlement within range of potential recovery). In that case, the Class may

receive far less than the $25 million and the jury may award far less than $25

million or perhaps nothing at all.

Third, there is a substantial risk that even if the Class obtained a judgment

against Defendants, Defendants would not be able to satisfy the judgment. Barton

Decl. ¶ 8. In Rinky Dink, Inc. v. World Bus. Lenders, LLC, No. 14 CV 268, 2016

WL 4052588 (W.D. Wash. Feb. 3, 2016), the court recognized that prior to seeking



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preliminary approval, class counsel had reviewed detailed financial documents

establishing that defendants “d[id] not have the ability to pay a larger settlement,”

and held that “[t]his factor weighs in favor of preliminary approval.” Id. at *4.

Here, Defendants produced a substantial volume of financial records to allow Class

counsel to assess the financial position of the Defendants and their ability to satisfy

a judgment. Barton Decl. ¶ 7. Based on those records, Defendants do not have the

capacity to pay anything more than a fraction of the judgement. Id. ¶ 8. A

judgment of full damages for the Class would likely bankrupt Defendants and

require liquidation of the Defendants’ assets in court proceedings (further depleting

the funds available to satisfy the judgment and placing the Class in the position of

junior, unsecured creditors). Id.

Additionally, non-monetary relief in the form of changes to business

practices and the removal of protected information from the possession of

Defendants accomplishes the privacy purposes of the DPPA. See Roberts v. Source

for Pub. Data, LP, No. 08 CV 4167, 2010 WL 2195523, at *3 (W.D. Mo. May 28,

2010) (holding return and removal of DPPA-protected information alone, even

with no monetary component, constituted reasonable and satisfactory terms of

settlement). Under the terms of the Settlement, Defendants will be required to

destroy the PTCRs or other records in their possession containing the personal

information of Class Members and to cease and refrain from using that personal



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information for any purpose. Agmt. § 6.2-4. Defendants are also required to notify

third parties to whom they have transmitted the personal information of Class

Members that the Class consider that information protected by the DPPA. Agmt. §

6.6. And Defendants will no longer purchase PCTRs in or from the State of

Washington for the purpose of soliciting clients. Agmt. § 6.1. Accordingly, both

the monetary and the non-monetary component of the Settlement are well within

the range of reasonableness.

The scope of the releases in a proposed settlement is acceptable where the

claims released are limited to those based upon the facts set forth in the complaint.

Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010) (“A settlement agreement

may preclude a party from bringing a related claim in the future even though the

claim was not presented and might not have been presentable in the class action,

but only where the released claim is based on the identical factual predicate as that

underlying the claims in the settled class action”). Here, the Settlement only

releases claims based on allegations in the Amended Complaint. Agmt. § 12.2.

C. The Settlement has No Obvious Deficiencies

The final factor considered on preliminary approval is whether the

agreement has any obvious deficiencies, such as “unduly preferential treatment of

class representatives or of segments of the class, or excessive compensation of

attorneys.” Scott v. United Servs. Auto. Ass'n, No. 11 CV 1422, 2013 WL



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12251170, at *1 (W.D. Wash. Jan. 7, 2013); Newberg on Class Actions § 11:25

(4th ed. 2010). The Ninth Circuit has advised courts to be concerned (a) “when

counsel receive a disproportionate distribution of the settlement, or when the class

receives no monetary distribution but class counsel are amply rewarded”; (b)

“when the parties negotiate a ‘clear sailing’ arrangement providing for the payment

of attorneys' fees separate and apart from class funds, which carries ‘the potential

of enabling a defendant to pay class counsel excessive fees and costs in exchange

for counsel accepting an unfair settlement on behalf of the class’”; and (c) “when

the parties arrange for fees not awarded to revert to defendants rather than be

added to the class fund.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,

947 (9th Cir. 2011). Such signs do not necessarily mean that a settlement is

improper, but only that it is supported by an explanation of why the fee is justified

and does not betray the class's interests. Id. at 949.

With respect to the first potential area of concern, the Class is to receive a

monetary distribution and counsel’s distribution will not be disproportionate. The

Settlement Agreement provides for the prompt payment of equal amounts to Class

Members out of an $950,000 Settlement Fund. Agmt. § 4.1. In light of the limits of

Defendants financial capacities, it was necessary in order to reach Settlement for

the monetary component of the Settlement to be paid over time. Barton Decl. ¶ 10.

The structure of the Settlement requires payment to the Class before Class Counsel



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will be paid. Compare Agmnt §§ 4.1, 10.3. Class Counsel agreed to allow fee and

expense amounts paid over time in order to accomplish the settlement and

negotiated the terms of fees and expenses only after agreement had been reached

on the underlying settlement for the Class. Barton Decl. ¶ 10. Class Counsel will

also only seek attorneys’ fees calculated under the lodestar method. Id. Plaintiff

would have been entitled to attorneys’ fees and expenses as a remedy if Plaintiff

prevailed at trial. See 18 U.S.C. § 2724(b) (“The Court may award… reasonable

attorneys fees and other litigation costs reasonably incurred….”); Taylor v. City of

Amboy, No. 14 CV 722, 2017 WL 4075163, at *1 (D. Minn. Sept. 14, 2017)

(applying lodestar method to award attorneys fees in DPPA case); Fresco, 2009

WL 9054828, at *8 (same).

While the Settlement Agreement does provide for payment of attorneys’ fees

separate from class funds, this structure is appropriate in this case and does not

raise concerns that Plaintiff’s counsel is accepting an unfair settlement on behalf of

the class. Paying the Class from the Settlement Fund and paying Plaintiff’s counsel

from the later payments ensures both that the Class will be promptly paid and that

Class Counsel—not the Class—will bear the default risk for these later payments

by Defendants. In Dennings v. Clearwire Corp., No. 10 CV 1859, 2013 WL

1858797, at *9 (W.D. Wash. May 3, 2013), aff'd No. 13-35491 (9th Cir. Sept. 9,

2013), the court held that there was no evidence of collusion despite the existence



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of a “clear sailing” provision. Id. at 8. Specifically, the Court noted that the

negotiations had been conducted at arm’s length with the assistance of a mediator,

as here. Id. And the Court also held that where the “clear sailing” feature provides

any amounts not awarded will revert to the Class that there is no indication of

collusion. Id. at 9. Here the settlement likewise provides that any amount of these

later payments by Defendants that the Court does not award as attorneys fees will

revert to the Settlement Fund. Agmt § 4.2.

At this point, the question is merely whether the agreement is preliminarily

fair. In Anderson-Butler v. Charming Charlie Inc., No. 14 CV 1921, 2015 WL

4599420 (E.D. Cal. July 29, 2015), proposed class settlement allowed plaintiff’s

counsel to apply for a fee award to be paid by the defendant separate and apart

from the recovery of the class, which defendant had agreed not to oppose. Id. at *2.

The court preliminarily approved the settlement, and declined to “evaluate the fee

award at length” in “considering whether the settlement is adequate,” because “[i]f

the court, in ruling on the fees motion, finds that the amount of the settlement

warrants a fee award at a rate lower than what plaintiff’s counsel requested” the

court had the power to reduce the award accordingly. Id. at 11. Likewise, here the

specific amounts of attorneys’ fees and any class representative incentive award

can be reserved on this preliminary approval motion to the final approval hearing

and the discretion of the Court.



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No Class Member or group of Class Members will receive unduly favorable

treatment under the terms of the Settlement. The Plan of Allocation proposes that

the Settlement Fund will be equally divided among all Class Members. See Barton

Decl. Ex. C at ¶ 3. “[C]ourts recognize that an allocation formula need only have a

reasonable, rational basis, particularly if recommended by experienced and

competent counsel.” Vinh Nguyen v. Radient Pharm. Corp., No. 11 CV 406, 2014

WL 1802293, at *5 (C.D. Cal. May 6, 2014) (internal quotation marks and

modifications omitted). Here the Plan of Allocation has a reasonable basis because

Class Members would each be entitled to seek liquidated damages in the amount of

$2,500 in the event their respective claims succeeded on the merits. While Plaintiff

will be entitled to apply for an incentive award, the amount will be in the discretion

of the Court and will come from the funds marked for application for attorneys’

fees, not the Settlement Fund. Agmt. § 4.2.

IV. The Notices and Plan of Notice Should be Approved

Once the parties obtain preliminary approval of the settlement, Rule 23(e)

requires that the court to direct notice in a reasonable manner to all Class Members

who would be bound by the settlement. Logan v. Hargraves, No. 04 CV 214, 2008

WL 11425713, at *3 (E.D. Wash. Sept. 25, 2008). A proper notice should (1)

describe the facts underlying the action and the class, (2) describe the terms of the

settlement, (3) disclose any benefits provided to class representatives, (4) provide



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information regarding attorney’s fees, (5) state the time and place of the final

hearing, (6) provide counsel’s contact information and instructions on how to

object and/or make inquiries, and (7) explain the procedure for allocation. Manual

for Complex Litigation, supra, § 21.312; see Rosas v. Sarbanand Farms, LLC, No.

18 CV 112, 2019 WL 859225, at *3 (W.D. Wash. Feb. 22, 2019) (approving notice

that provided such information); Burnett v. W. Customer Mgmt. Grp., LLC, No. 10

CV 56, 2011 WL 13290339, at *4 (E.D. Wash. Feb. 22, 2011) (same). Here, the

proposed notice to the Class provides information on all of these subjects and

informs Class Members about their rights under the Settlement as well as their

right to be heard at the final fairness hearing. See Barton Decl. Ex. B at 8.

For any class certified under Rule 23(b)(3), Rule 23(c)(3) requires that the

notice inform class members of the following: “(i) the nature of the action; (ii) the

definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a

class member may enter an appearance through an attorney if the member so

desires; (v) that the court will exclude from the class any member who requests

exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding

effect of a class judgment on members under Rule 23(c)(3).” Fed. R. Civ. P.

23(c)(2)(B). Here, the proposed notice to the Class meets these requirements. See

Barton Decl. Ex. B at 1, 6-8. Thus the form of the proposed notice to the Class

should be approved.



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“District courts possess broad discretion to shape such notice to comply with

Rule 23.” Rosas, 2019 WL 859225, at *1; Fed. R. Civ. P. 23(e)(1)(B); see Fed. R.

Civ. P. 23(c)(2)(B) (requiring “the best notice practicable under the

circumstances”). It is well-established that notice sent by first class mail is

sufficient when the names and addresses of the class members are known. Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 173-77 (1974); Peters v. Nat'l R.R. Passenger

Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (“It is beyond dispute that notice by

first class mail ordinarily satisfies rule 23(c)(2)'s requirement that class members

receive ‘the best notice practicable under the circumstances.’”); see Manual for

Complex Litigation, supra, § 21.311 (explaining that individual notice via mail is

preferred when names and addresses are known). In such circumstances, courts

have authorized notice only by mail. See De La O v. Arnold-Williams, No. 04 CV

192, 2008 WL 11426817, at *5 (E.D. Wash. Aug. 12, 2008). Here, the members of

the Class will receive notice by U.S. Mail. Agmt. § 3.3.2 Thus, these procedures

satisfy due process, meet the requirements of Rule 23, and should be approved.

Publication notice is not necessary in this case, because data identifies the

2 Class Counsel has analyzed data produced by Defendants identifying the

individuals appearing on PTCRs they purchased during the class period. Downes

Decl. ¶ 4. By running searches over this data, Class Counsel has excluded entries

that are duplicative, excluded from the class definition (e.g., business or

government entities rather than individuals), or bear indicia that a driver’s personal

information was not sourced from a motor vehicle record (e.g., an address of

“UNKNOWN”). Downes Decl. ¶ 5.



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names and addresses of Class Members. Due to the nature of this case, many Class

Members are unlikely to know that Defendants possess their personal information,

ECF No. 85 at 27. Not only would publication notice be of minimal value in

alerting potential Class Members, but it would likely increase the costs of

administration and decrease the benefits available to pay Class Members.

Class Counsel has solicited bids for class notice and administration services

through a competitive process. Class Counsel solicited responses to a request for

proposals from six reputable service providers, of which four submitted bids.

Downes Decl. ¶ 2-3. Following extensive discussion with the respondents to ensure

an apples to apples comparison of services, Class Counsel has submitted the two

lowest priced bids for this Court’s consideration. See Downes Decl. ¶ 7 and Exs. A

and B. The Court should appoint either RG/2 Claims Administration or Angeion

Group as the Settlement Administrator under the Settlement Agreement.

V. The Court Should Establish Dates for Effectuating Final Approval

of the Settlement

In order to send out an effective Notice, Plaintiff requests that the Court

establish the dates set forth in Plaintiff’s motion.

CONCLUSION

For the forgoing reasons, the Court should grant Plaintiff’s motion to

preliminarily approve the proposed Settlement, approve the proposed Class notice,

authorize its distribution to the Class, and set dates outlined above.



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Dated: October 25, 2019 Respectfully submitted,

/s/ Thomas G. Jarrard

Thomas G. Jarrard

The Law Office of Thomas G. Jarrard, PLLC

1020 N. Washington

Spokane, WA 99201

Telephone: (425) 239-7290


R. Joseph Barton

Block & Leviton LLP

1735 20th Street, N.W.

Washington D.C. 20009

Telephone: 202-734-7046


Jason Leviton

Block & Leviton LLP

155 Federal Street, Suite 400

Boston MA 02110

Telephone: 617-398-5660


James R. Sweetser

Marcus Sweetser

Sweetser Law Office

1020 N. Washington St.

Spokane WA 99201

Telephone: 509-328-0678



Attorneys for Plaintiff and the Class








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CERTIFICATE OF SERVICE

I hereby certify that on October 25, 2019 I caused to be filed electronically a

true copy of the foregoing document using the CM/ECF system which effected

service of the same upon all counsel of record.

/s/ Thomas G. Jarrard

Thomas G. Jarrard


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JADE WILCOX, on behalf of herself

and all others similarly situated,

Plaintiffs,

v.

SWAPP LAW, PLLC, D/B/A

CRAIG SWAPP AND

ASSOCIATES, AND JAMES

CRAIG SWAPP, individually,

Defendants

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RMP

DECLARATION OF R. JOSEPH

BARTON IN SUPPORT OF




SETTLEMENT

Case 2:17-cv-00275-RMP ECF No. 139-1 filed 10/25/19 PageID.2265 Page 1 of 6

Decl. of R. Joseph Barton in Support of Pls’ Unopposed Mo. for Preliminary

Approval of Class Action Settlement

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I, R. Joseph Barton, hereby declare under penalty of perjury of the laws of

the United States as follows:

1. I am an attorney and a partner in the law firm of Block & Leviton,

LLP. I am counsel for Plaintiff and Co-Lead Counsel for the Class in this case

(together with Thomas Jarrard, “Class Counsel”). I am an active member of the

bars of the State of California and the District of Columbia. I am admitted pro hac

vice to practice before this Court.

2. At Block & Leviton, I was the partner in charge of supervising this

litigation and had an active role in litigating the case, including taking a number of

the depositions and arguing many of the substantive motions.

3. During discovery Class Counsel issued 24 interrogatories and 33

documents requests to Defendants, reviewed thousands of pages produced by

Defendants and non-parties in discovery, met and conferred with Defendants on

numerous discovery matters, and twice moved to compel Defendants to provide

further responses to interrogatories.

4. During discovery, Defendants’ counsel moved to compel Plaintiff’s

counsel James R. Sweetser to produce attorney client communications and attorney

work product materials directly related to this litigation. Mr. Sweetser responded

through separate counsel and sought a protective order. ECF No. 84. The Court




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held the sought discovery was irrelevant and sought work product, and on that

basis quashed Defendants’ subpoena. ECF No. 106.

5. Class Counsel took four depositions in this litigation: (1) a Rule

30(b)(6) of the Washington Department of Licensing, (2) a Rule 30(b)(6) the

Washington State Patrol (by four different designated witnesses), (3) a Rule

30(b)(6) the Washington State Criminal Justice Training Commission, and (4) a

Rule 30(b)(6) the Spokane Police Department. Class Counsel defended the

deposition of Plaintiff.

6. Originally Plaintiff made an initial offer to settle this case on behalf of

the Class more than a year before the mediation; however, Defendants did not

respond to that offer and expressed no interest in discussing settlement until after

the Court certified the Class.

7. Before mediation, Class Counsel requested, obtained and reviewed a

significant amount of financial materials provided by Defendants in order to

evaluate Defendants’ ability to satisfy a potential judgment in this case. As part of

the review of those materials, Class Counsel hired an economist to assist them in

reviewing and understanding Defendants’ financial information. In addition, Class

Counsel conducted research on their own. After reviewing those materials, Class

Counsel concluded that Defendants probably would not have been able to satisfy a

full judgment of liquidated damages.




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8. Based on my review and analysis of the financial materials obtained

from Defendants and the analysis by the economist retained by Class Counsel,

Class Counsel concluded that there was a substantial risk that even if the Class

obtained a judgment against Defendants, Defendants would not be able to satisfy

such a judgment. Indeed, Class Counsel considered the substantially likelihood that

a full judgment for the Class would likely bankrupt Defendants and require

liquidation of the Defendants’ assets in court proceedings and even then

Defendants’ assets would likely satisfy only a fraction of the judgement.

9. Prior to the mediation, the parties to this case exchanged settlement

offers. The Parties and their counsel attended an in-person mediation session on

May 23, 2019 with Senior Judge Lonny Suko. An agreement in principle was

reached only at the end of the all-day mediation session. An agreement to settle the

underlying claims of the Class was reached before negotiating and an agreeing on

an amount available to pay attorneys’ fees and costs.

10. In light of the limits of Defendants financial capacities and likely

cash-flow, it was necessary in order to reach Settlement some portion of the

monetary component of the Settlement to be paid over time. While the Parties

could have structured the settlement to have a portion of the Settlement Fund to be

paid over time, Class Counsel agreed to have the Settlement Fund to be paid to the

Class paid first and agreed to have the amounts used to pay attorneys’ fees and




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expense to be paid over time in order to accomplish the settlement. The amount in

attorneys’ fees and expenses was designed to pay Class Counsel only for the actual

lodestar amount for which Plaintiff would have been entitled to seek as an award

of fees pursuant to 18 U.S.C. 2724(b)(3).

11. Following the in-person mediation session, Class Counsel drafted the

detailed terms of a formal agreement, Defendants’ counsel proposed edits to the

Agreement and Class Counsel and Defendants’ Counsel finalized the terms in the

Settlement Agreement, which is attached here as Exhibit A.

12. In considering whether to settle these claims on the terms set forth in

the Settlement Agreement, Class Counsel considered a number of factors including

the risks and expense of further litigation (including the possibility of an

immediate appeal pursuant to either Rule 1292(b) and/or Rule 23(f), the continued

expense and further delay of further litigation, the likely inability of Defendants to

satisfy a judgment and the risks, expense and delay of collection proceedings. At

the time that this settlement was reached, Class Counsel had engaged in significant

discovery and briefing and had more than a sufficient understanding of

Defendants’ arguments. Based on consideration of these factors, Class Counsel

believe that the proposed Settlement is a very good result for the Class.

13. As part of the discovery obtain in this litigation, Class Counsel

obtained data about the Class from the Washington State Patrol and Defendants.




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Class Counsel conducted a review and analysis of that data, including the

elimination of duplicates and persons who either did not meet the Class definition

or were explicitly excluded from the Class. Based on that analysis, the members

Class should not exceed 32,000 individuals. That number may be further reduced

after receiving additional information from Defendants identifying other persons

who are excluded from the Class or further analysis of the Class data.

14. Attached as Exhibit B is the proposed Class Notice which has been

approved by Defendants’ counsel.

15. Attached as Exhibit C is the proposed Plan of Allocation.

Executed this 25th day of October, 2019, in Philadelphia, PA.

R. Joseph Barton


Exhibit A

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SETTLEMENT AGREEMENT

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Plaintiffs,

v.


CRAIG SWAPP AND



Defendants

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RMP

SETTLEMENT AGREEMENT

35


SETTLEMENT AGREEMENT - 1

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TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 2

RECITALS ............................................................................................................... 2

1. Definitions. ....................................................................................................... 5

2. Class Certification. ......................................................................................... 9

3. Class Notice ...................................................................................................11

4. Settlement Fund ............................................................................................13

5. Distributions from the Settlement Fund ....................................................16

6. Non-Monetary Settlement Consideration ..................................................17

7. Plan of Allocation..........................................................................................19

8. Settlement Administration ...........................................................................20

9. Approval of the Settlement ..........................................................................25

10. Attorneys Fees, Expenses, and Service Award .......................................29

11. Notice Under Class Action Fairness Act .................................................34

12. Releases. ......................................................................................................34

13. No Admission of Wrongdoing ..................................................................35

14. Conditions of Settlement ...........................................................................36

15. Effect of Disapproval, Cancellation or Termination .............................38

16. Miscellaneous Provisions ..........................................................................40

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INTRODUCTION

Subject to approval by the United States District Court for the Eastern

District of Washington, this Agreement is made and entered into by Plaintiff and

Class Representative Jade Wilcox, on behalf of herself and the Class, and

Defendants James Craig Swapp, and Swapp Law, PLLC, d/b/a Craig Swapp and

Associates, a Utah Professional Limited Liability Company to settle claims against

Defendants subject to the terms and conditions below.

RECITALS

A. On August 9, 2017, Plaintiff filed a Complaint as a putative class

action pursuant to Rule 23 of the Federal Rules of Civil Procedure, docketed as

Case No. 2:17-CV-275-RMP in the Eastern District of Washington (the “Action”),

alleging that Defendants purchased police traffic collision reports (“PTCRs”) from

the Washington State Patrol containing personal information protected by the

Drivers’ Privacy Protection Act, 18 U.S.C. § 2721 (the “DPPA”), and that

Defendants obtained and used personal information in the PTCRs to send Plaintiff

and the Class marketing materials in violation of the DPPA.

B. Defendants initially responded to Plaintiff’s Complaint by filing a

Motion to Dismiss on October 20, 2017, which the Court denied by Order dated

December 21, 2017. After Defendants’ Motion to Dismiss was denied, Defendants

filed an Answer to the Complaint.

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C. During the course of the litigation, Plaintiff served written discovery

on Defendants and document subpoenas on third parties and reviewed thousands of

pages of documents produced in the course of discovery in the Action.

D. During the course of the litigation, Plaintiff took the depositions of

representatives of the Washington State Patrol, the Washington Department of

Licensing, the Spokane Police Department, and the Washington State Criminal

Justice Training Commission in the course of discovery in the Action.

E. On August 7, 2018, Plaintiff filed a Motion for Class Certification

(DKT), which the Court granted by Order dated January 25, 2019 (Dkt. 109).

F. On August 20, 2018, Plaintiff filed an Amended Complaint (Dkt. 69)

based on information learned through the course of discovery.

G. On September 12, 2018, Defendants responded to the Amended

Complaint with a Second Motion to Dismiss (Dkt. 80), which the Court denied by

Order dated January 24, 2019 (Dkt. 109).

H. Prior to mediation and as part of settlement negotiations, Defendants

provided Class Counsel with confidential information and significant amounts of

documentation regarding Defendants financial position. Defendants provided that

information to Class Counsel with the intent that Class Counsel would rely upon

the financial information in formulating settlement offers, evaluating and

negotiation a settlement of this Action. Class Counsel represents that they did rely

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on the financial information and documents provided by Defendants about

Defendants’ financial position in providing advice to Plaintiff as to whether to

settle this case, in making recommendations concerning settlement offers, in

evaluating the benefits of a settlement versus continued litigation, in negotiating a

settlement, and in recommending the settlement and Plaintiff relied on that

information in deciding to agree to this Settlement.

I. Plaintiff along with Co-Lead Class Counsel and Defendants along

with Defendants’ Counsel participated in and conducted arms-length negotiations

at a mediation session with Hon. Lonny R. Suko on May 23, 2019 and reached an

oral agreement in principle on this Settlement that same day.

J. As of the date of the signing of this Agreement, Class Counsel is not

aware of any information suggesting that the data provided by Defendants in

discovery regarding the members of the Class or the information regarding

Defendants financial position were materially inaccurate.

K. As of the date of the signing of this Agreement, Defendants and

Defendants’ Counsel is not aware of any information suggesting that the data

provided by Defendants in discovery regarding the members of the Class or the

information regarding Defendants financial position were materially inaccurate.

L. As a result of the factual investigation and legal research conducted

by Class Counsel concerning the claims asserted in the Action and discovery, Class

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Counsel have concluded that terms of this Settlement are fair, reasonable, adequate

and in the best interests of the Class.

M. Each of the undersigned counsel have informed their respective

clients of and each of the parties are fully informed of the provisions set forth

below.

N. The parties want to promptly and fully resolve and settle all claims on

the terms of this agreement, subject to the approval of the Court.

The Parties therefore agree as follows:

1. Definitions.

1.1 “Agreement in Principle” means the verbal agreement reached

by Plaintiff on behalf of the Class with Defendants on May 23, 2019.

1.2 “CAFA” means the Class Action Fairness Act of 2005, 28

U.S.C. §§ 1332(d), 1453, 1711-1715.

1.3 “Class” means the Class previous certified by this Court on

January 25, 2019 as set forth in Section 2.1.

1.4 “Class Counsel” or “Co-Lead Class Counsel” means Thomas

Jarrard of the Law Offices of Thomas Jarrard and R. Joseph Barton of Block &

Leviton LLP.

1.5 “Class Member” means a driver who is included in the Class

and is not excluded from the Class Definition.

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1.6 “Class Notice” means the notice summarizing the settlement

terms contained herein, as approved by the Court and to be sent to Class Members

as set forth herein in accordance with Section 3.3.

1.7 “Class Period” means the period from September 1, 2013 to

June 23, 2017, inclusive.

1.8 “Court” means the United States District Court for the Eastern

District of Washington.

1.9 “Defendants” means James Craig Swapp, and Swapp Law,

PLLC, d/b/a Craig Swapp and Associates.

1.10 “Defendants’ Counsel” means Evans, Craven & Lackie, PS

and Lane Powell PC.

1.11 “DPPA” means the Drivers’ Privacy Protection Act, 18 U.S.C.

§ 2721.

1.12 “Effective Date” means the date on which the Final Order and

Judgment in the Action becomes Final.

1.13 “Escrow Account” has the meaning set forth in Section 4.1.

1.14 “Escrow Agent” means the Bank with the authority over the

Escrow Account.

1.15 “Expense Award” means the amount of reimbursement

expenses sought by or awarded to Class Counsel by the Court.

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1.16 “Fairness Hearing” means the hearing that is to take place

after the entry of the Preliminary Approval Order and after the Notice is sent to the

Class for purposes of: (a) entering the Final Order and Judgment fully and finally

resolving the Action; (b) determining whether the Settlement should be approved

as fair, reasonable, and adequate; and (c) ruling upon an application by Class

Counsel for an award of attorneys’ fees and the Plaintiff’s service award.

1.17 “Fee Award” means the award of attorneys’ fees sought by or

awarded to Class Counsel and Plaintiff’s Counsel by the Court.

1.18 “Final” means (a) if no objections to the Settlement are filed, or

if any objections are filed and voluntarily withdrawn prior to the entry of the Final

Order and Judgment, the date after the time to file any appeals of the Final Order

and Judgment has expired; or (b) if any objections are filed and not voluntarily

withdrawn prior to the entry of the Final Order and Judgment, the later of (i) the

expiration of the time to file or notice any appeal or move for reargument from the

Court’s judgment approving this agreement, or (ii) the date of final affirmance of

any appeals therefrom.

1.19 “Final Order and Judgment” means the final judgment of the

Court approving the Settlement.

1.20 “First Year Cashout Option” has the meaning set forth in

Section 10.4.

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1.21 “Net Class Settlement Fund” has the meaning set forth in

Section 5.3

1.22 “Party” or “Parties” means Plaintiff on behalf of herself and

the Class and/or the Defendants.

1.23 “Plan of Allocation” has the meaning set forth in Section 7.1.

1.24 “PTCR” means a police traffic collision report (and does not

include a collision report completed only by non-police officers (i.e. civilians).

1.25 “Plaintiff” means Jade Wilcox.

1.26 “Plaintiff’s Counsel” means Block & Leviton LLP, the Law

Office of Thomas Jarrard and the Sweetser Law Office.

1.27 “Preliminary Approval Order” means the order preliminarily

approving the Settlement and conditionally certifying the Class, as approved by the

Court.

1.28 “Released Claims” has the meaning set forth in Section 12.1.

1.29 “Second Year Cashout Option” has the meaning set forth in

Section 10.6.

1.30 “Settled Claims” means the claims that the Parties have agreed

to resolve as set forth in Section 12.

1.31 “Settlement” means the settlement of this matter as described

in this Agreement.

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1.32 “Settlement Fund” has the meaning set forth in Section 4.3.

1.33 “Settlement Administrator” means the third-party

administrator, who will be proposed by Class Counsel and approved by the Court

to administer the Settlement.

1.34 “Swapp Law” means Swapp Law, PLLC, d/b/a Craig Swapp

and Associates, a Utah Professional Limited Liability Company.

2. Class Certification.

2.1 Class Definition. The Settlement Class will be the Class

previously certified by the Court on January 25, 2019 as follows:

All drivers identified in Police Traffic Collision Reports whose Personal

Information, as defined by the DPPA, was derived from a Department of

Licensing record (e.g. license, registration or database) and the Report was

obtained or used by Swapp Law or James Craig Swapp from the

Washington State Patrol between September 1, 2013 and June 23, 2017.

Excluded from the Class are (a) current and former clients of

Defendants; (b) individuals identified on the same PTCRs as Defendants’

clients; (c) individuals who provided written consent to Defendants for the

disclosure of their Personal Information (as defined by the DPPA) prior to

Defendants obtaining their personal information; (d) employees (and

attorneys) of Defendants and members of their immediate families; and (e)

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the presiding judge and anyone working in the presiding judge’s chambers

and the members of their families.

2.2 Determination of Status as a Class Member. Status as a Class

Member will be determined based on a person being identified as a driver on the

electronic data produced by the Washington State Patrol and the records produced

by Defendants and who meets the definition of a member of the Class. A person

who is not identified as a driver on a PTCR purchased by Defendants in either the

data produced by the Washington State Patrol or the records produced by

Defendants will not be considered a Class Member. To the extent that there is a

conflict between the records produced by the Washington State Patrol and the

records produced by Defendants as to whether a driver meets the Class Definition,

the Settlement Administrator will resolve any reasonable differences in favor of

finding that a driver is a Class Member (unless the individual does not otherwise

fall within the Class Definition or requests exclusion from the Settlement).

2.3 Defendants’ Non-Opposition. For purposes of settlement only,

Defendants will withdraw their currently pending motions for reconsideration of

the Court’s order certifying the Class. Defendants shall make no other objection to

certification of the Class. Defendants’ agreement to Class certification is

conditioned on this Court’s approval of the Settlement becoming Final.

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3. Class Notice

3.1 Provision of Class Notice. Upon the Court’s preliminary

approval of this Settlement Agreement and by the date specified by the Court, the

Settlement Administrator will be responsible for providing Class Notice to the Class

Members.

3.2 Contents. The Class Notice will contain a brief description of

the claims advanced by the Class, a summary of the terms of the Settlement

Agreement, information on the attorneys’ fees and costs sought by Co-Lead Class

Counsel, describe the proposed Plan of Allocation of the Settlement Fund to the

Class, the estimated settlement allocation for the Class Member, and provide

information about the Fairness Hearing, in the form approved by the Court.

3.3 Method of Providing Class Notice. Class Notice will be

provided to each individual Class Member: (a) by either electronic notification (if

available and approved by the Court) to Class Members, or, if unavailable or not

approved by the Court, by mailing via first class US Mail to all Class Members,

and (b) by posting the Class Notice on websites maintained by Co-Lead Class

Counsel and the Settlement Administrator. Defendants will cooperate with Co-

Lead Class Counsel to facilitate providing Class Notice and other settlement-

related communications by providing any known email addresses and mailing

addresses for all Class Members, to the extent such information is reasonably

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available in the records of Defendants.

3.4 Cooperation with the Settlement Administrator. The Parties

and their counsel will reasonably cooperate with the Settlement Administrator to

facilitate providing Class Notice and other settlement-related communications and

administration.

3.5 Undeliverable Notices. In the event that a Class Notice sent by

U.S. Mail is returned as undeliverable, the Settlement Administrator will make

reasonable efforts to obtain a valid mailing address and promptly resend the Class

Notice to the Class Member by U.S. Mail.

3.6 Class Data. To the extent not already provided, Defendants

will provide Class Counsel and the Settlement Administrator with the following:

(a) Within 21 days after this Settlement Agreement is executed, the

name and street mailing address in electronic form for each Class

Member, to the extent such information is reasonably available

in Defendants’ files.

(b) Within 30 days after this Settlement Agreement is executed, the

identifying information, in electronic form if available for the

following: (i) current and former clients of Defendants who

reasonably might be included on a PTCR; (ii) individuals

identified on the same PTCRs as Defendants’ clients; (iii)

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individuals who provided written consent to Defendants for the

disclosure of their Personal Information (as defined by the

DPPA) prior to Defendants obtaining their personal information

from a PTCR; (iv) employees (and attorneys) of Defendants and

members of their immediate families who reasonably might be

listed on a PTCR;

(c) Timely provide other information reasonably requested by Co-

Lead Class Counsel or the Settlement Administrator.

3.7 Declaration Regarding Class Notice. Within 30 days after the

date on which Notice is required to be sent, the Settlement Administrator will file a

declaration with the Court confirming that the Notice and related information was

sent in accordance with the Preliminary Approval Order.

4. Settlement Fund

4.1 Payment of Cash Settlement Amount into Escrow Account.

As settlement of the Class’ claims, Defendants will pay or cause to be paid the

Class Cash Settlement Amount of $950,000.00 into the Escrow Account in the

name of “Swapp DPPA Litigation Settlement Fund” on the following schedule:

(a) Defendants have previously made a payment of $100,000.00 to

the Escrow Account.

(b) Defendants shall make a payment of $400,000.00 to the Escrow

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Account and cause the payment to be received by the Escrow

Agent of the Escrow Account (or in other manner as directed by

Co-Lead Class Counsel Block & Leviton), by no later than 10

days before the Fairness Hearing.

(c) Defendants shall make a payment of $450,000 to the Escrow

Account and cause the payment to be received by the Escrow

Agent of the Escrow Account (or in other manner as directed by

Co-Lead Class Counsel Block & Leviton), by no later than June

1, 2020 or 180 days following the Fairness Hearing, whichever

is earlier.

4.2 Amounts Not Awarded as Attorneys’ Fees: In addition to the

amounts paid in Paragraph 4.1, Swapp Law will pay $1,050,00.00, which subject

to the approval by the Court, will be used to pay attorneys’ fees, litigation expenses

and costs in the amounts awarded by the Court to Co-Lead Class Counsel and

Plaintiff’s Counsel as well as any service award to Plaintiff in the amount ordered

by the Court. In the event that the Court awards an amount for attorneys’ fees,

litigation expenses, costs and service award that is less than $1,050,000, then the

difference between the $1,050,000.00 (or the amount actually paid Defendants

pursuant to the First Year Cashout Option or the Second Year Cashout Option) and

the amount awarded by the Court will paid to and become part of the Settlement

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Fund.

4.3 The Settlement Fund. The Settlement Fund will consist of the

monies paid by Defendants into the Escrow Account together with any earnings or

interest thereon. The Settlement Fund held in the Escrow Account will be deemed

to be in the custody of the Court and will remain subject to the jurisdiction of the

Court and will be administered in accordance with the terms of this Agreement and

the orders of the Court. Except as otherwise provided by this Agreement, the

Settlement Fund will not be released from the Escrow Account until the Final

Order and Judgment becomes Final.

4.4 Management of the Settlement Fund. Until the Final Order

and Judgment becomes Final, the Settlement Fund will be held in the Escrow

Account established by Class Counsel, for which the Escrow Agent will act

pursuant to the terms of the respective escrow agreement or as ordered by the

Court. After the Final Order and Judgment becomes Non-Appealable, Class

Counsel will have the sole right and duty to manage the Settlement Fund in

compliance with the terms of the Final Order and Judgment subject only to the

directions and orders of the Court. At no time after the Final Order and Judgment

becomes Non-Appealable will Defendants have any duty or authority to hold,

manage, or invest any portion of the Settlement Fund. Any earnings or interest

earned by the Settlement Fund will become part of the Settlement Fund.

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4.5 Qualified Settlement Fund. The Settlement Fund is intended

by the Parties to be a “qualified settlement fund” for federal income tax purposes

under Treas. Reg. § 1.468B-1 at the earliest date possible

5. Distributions from the Settlement Fund

5.1 Expenses Before the Effective Date. Until the Final Order and

Judgment becomes Final, Class Counsel will be authorized to pay from the

Settlement Fund (a) any actual or estimated taxes on any income earned on the

Settlement Fund, (b) upon notice to Defendants, all costs and expenses related to the

preparation of such tax filings or payments, and (c) upon notice to Defendants costs

and expenses related to providing the Class Notice not to exceed $100,000.00. Any

dispute regarding the reasonableness of any expense incurred, paid or owing will be

adjudicated by the Court, but in no event will the Parties cause or allow the

Settlement Fund to fail to make a tax payment in a timely manner or fail to send

notice to the Class consistent with any Order of the Court.

5.2 Tax & Expense Reserve After the Effective Date. Upon the

Final Order and Judgment becoming Final, Co-Lead Class Counsel will be

authorized to establish a reserve from the Settlement Fund to pay any taxes that are

or will be owed (but not yet due) and for expenses related to payment of taxes or

filing of tax returns or to the extent that there are other costs of administration of the

Settlement.

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5.3 Distributions to the Class. After the deduction of any Court-

approved expenses (limited to expenses for Class Notice or administration of the

settlement) and the payment of any taxes or tax-related expenses and the creation of

the reserve for future expenses, the remaining amount of the Settlement Fund (i.e.

the “Net Class Settlement Fund”) will be distributed to Class Members pursuant to

the Plan of Allocation that will be proposed by Co-Lead Class Counsel and as

approved by the Court.

5.4 Residual Monies in the Settlement Fund. To the extent that

there are additional monies that remain in the Settlement Fund after any Court-

approved administration expenses have been paid, including as a result of any

uncashed distribution checks, any such residual monies will be paid as follows: (a)

to pay all or a portion of the service award, (b) to the extent that there are additional

attorneys’ fees, expenses, or costs that were not paid from the separate payment in

Section 10, Co-Lead Class Counsel can seek permission from the Court to have such

amounts paid, and (c) any remaining monies will be paid to a non-profit charitable

organization recommended by Class Counsel and approved by the Court that has

privacy as a primary or significant goal of the organization.

6. Non-Monetary Settlement Consideration. In addition to and

separate from the Class Cash Settlement Amount and any other monetary amounts

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to be paid under this Settlement Agreement, Defendants agree to do the following:

6.1 Effective on the execution of this Settlement Agreement,

Defendants will refrain from purchasing Police Traffic Collision Reports in or

from the State of Washington for the purpose of acquiring contact information for

potential clients and sending marketing materials to them.

6.2 Effective on the execution of this Settlement Agreement,

Defendants will cease using any Police Traffic Collision Reports obtained from the

State of Washington or any law enforcement within the State of Washington for

either the purpose of acquiring contact information for potential clients or to send

marketing materials to persons who are identified on such PTCRs.

6.3 Within 120 days after the final distribution to the Class

Members, Defendants will destroy all PTCRs involving Class Members in their

possession and certify in writing to the Court that such reports have been

destroyed.

6.4 Within 120 days after the final distribution to the Class

Members, Defendants will destroy all records containing photographs of social

security numbers, driver’s license identification numbers, names, addresses,

telephone numbers, and medical or disability information that they obtained from

police traffic collision reports involving Class Members and certify in writing to

Plaintiff that such records have been destroyed.

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6.5 Wwithin 30 days following entry of the Preliminary Approval

Order, Defendants will identify in writing to Co-Lead Class Counsel any third

parties to whom they provided any of the records referenced in Section 3.6(b)-(c)

that they have been able to reasonably identify.

6.6 Wwithin 30 days following the Effective Date, Defendants will

notify the third parties whom Defendants have been able to reasonably identify as

receiving any of the records referenced in Section 3.6(b)-(c), that Plaintiff and the

Class consider those records to contain information protected by the DPPA and

Defendants will certify in writing to the Court that they have so notified such third

parties.

7. Plan of Allocation

7.1 Proposed Plan of Allocation. Co-Lead Class Counsel will

propose and submit a Plan of Allocation to the Court as to the recommended method

of determining and distributing the proceeds of the Net Class Settlement Fund to

members of the Class.

7.2 Defendants’ Non-Involvement. Defendants shall have no input

and shall take no position on the Plan of Allocation, including the method of

allocation, or the distribution of the Net Class Settlement Fund to Class Members

except to the extent the Plan of Allocation is inconsistent with this Settlement

Agreement or purports to impose duties or requirements upon Defendants other than

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those agreed to in this Agreement.

7.3 Modification of Plan of Allocation. If the proposed Plan of

Allocation is rejected or modified by the Court or on appeal, such rejection or

modification will not constitute a material modification of this Settlement, will not

void this agreement, and will not provide a basis for any party to withdraw from this

agreement.

7.4 No Claim Based on Distribution in Accordance with the

Plan of Allocation. The Class will not have any claim against Plaintiff,

Defendants, or counsel to any of the foregoing, including any of the individuals

involved in the distribution under the Plan of Allocation (e.g. the Settlement

Administrator), based on any distributions of the Settlement Fund made

substantially in accordance with this agreement or as authorized by the Court.

8. Settlement Administration

8.1 Appointment of Settlement Administrator. Co-Lead Class

Counsel will propose a Settlement Administrator to be approved by the Court. The

Settlement Administrator will be appointed to administer the Settlement and will

report to Co-Lead Class Counsel and the Court. Any Settlement Administrator will

have experience providing notice to Class Members in consumer or privacy class

action settlements, and in supervising and administering settlement funds.

8.2 Settlement Administrator’s Responsibilities. The Settlement

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Administrator will undertake the following tasks to administer this Settlement

consistent with the terms of this Settlement, the Plan of Allocation, and the Orders

of the Court and such other procedures required by the Court or as directed by Co-

Lead Class Counsel:

(a) Print and email and/or mail the Class Notice (and any

accompanying documents) to the Class Members in accordance with

this Settlement Agreement and any order of the Court and undertake

to trace and re-mail all undeliverable Class Notices or take other

reasonable steps to locate missing Class Members;

(b) Create and maintain a website until at least 180 days after the

final distribution to the Class that will contain a summary of the action

and the settlement and at least the following information and

documents: the Complaint, Order on Class Certification, Orders on

Motions to Dismiss, this Agreement, Preliminary Approval Order,

Class Notice, Class Counsel’s application for attorneys’ fees and costs

(when filed), the Final Approval Order, Plan of Allocation and any

other information about the Settlement;

(c) Provide Co-Lead Class Counsel and Defendants Counsel with

copies of any request for exclusions from the Class and make

recommendations regarding such requests;

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(d) Provide Co-Lead Class Counsel and Defendants’ Counsel with

copies of any objections to the Settlement (to the extent such

objections are not filed with the Court);

(e) Respond to questions from Class Members and confer with

Class Counsel concerning any questions or, as necessary refer Class

Members to Class Counsel for responses;

(f) Maintain and staff a toll-free phone number until at least six

(6) months after distributions of the Settlement Fund have been made

to Class Members;

(g) File with the Court a declaration confirming compliance with

the procedures approved by the Court for providing notice and

distribution to the Class;

(h) Calculate the amounts to be paid to Class Members, consistent

with instructions from Class Counsel and the court-approved Plan of

Allocation as well as any orders of the Court, as to how the Cash

Settlement Amount is allocated among the members of the Class;

(i) Monitor the Qualified Settlement Fund and file all

informational and other tax returns necessary or advisable with respect

to the Settlement Fund (including without limitations the returns

described in Treas. Reg. Section 1.468B-2(k));

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(j) Pay the Net Class Settlement Fund to Class Members,

consistent with instructions from Class Counsel and the court-

approved Plan of Allocation;

(k) To the extent feasible, and as approved by the Court, arrange

for uncashed settlement checks to be escheated; and

(l) Any other responsibilities set forth in this Agreement and any

other responsibilities directed by Co-Lead Class Counsel related to

administration of the Settlement and consistent with the orders of the

Court or any other responsibilities ordered by the Court.

8.3 Request for Exclusion. Any Class Member who wishes to

exclude themselves from the Class must deliver a signed written request to Class

Counsel, Defendants’ Counsel, and the Court. Subject to the approval of or

modification by the Court, the request for exclusion must be postmarked by the

date set by the Court prior to the Fairness Hearing. Subject to the approval of or

modification by the Court, the request for exclusion must include: (1) the name and

case number of the Action; (2) the full name, address, and telephone number of the

person requesting exclusion; (3) a signed written statement clearly setting forth that

the person wants to be excluded from the Class.

8.4 Objections. Any Class Member who wishes to object to the

fairness, reasonableness, or adequacy of this agreement must deliver a written

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objection to Class Counsel, Defendants’ Counsel, and the Court. Subject to the

approval of or modification by the Court, the written objection sent to Class

Counsel, Defendants’ Counsel, and the Court must be postmarked at date set by the

Court prior to the Fairness Hearing. Subject to the approval of or modification by

the Court, a written objection must include: (1) the name and case number of the

Action; (2) the full name, address, and telephone number of the person objecting;

(3) a signed written statement detailing the specific reasons, if any, for each

objection, including any legal and factual support the objector wishes to bring to

the Court’s attention and any evidence the objector wishes to introduce in support

of the objection(s); and (4) if the Class Member is represented by an attorney, the

name, firm name, address, telephone and email address of the attorney. If a Class

Member intends to appear at the Fairness Hearing, either with or without counsel,

the Class Member must file and serve a timely objection and any Class Member

who fails to timely file and serve a written objection and notice of his, her, or its

intent to appear at the Fairness Hearing may not be permitted to object to the

approval of the Settlement at the Fairness Hearing and shall be foreclosed from

seeking any review of the Settlement or the terms of this agreement by appeal or

other means.

8.5 Administration Costs. Costs of administering the Settlement,

including payment of the Settlement Administrator, costs of the Escrow Agent,

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costs of Class Notice, and taxes and tax-related expenses, will be paid out of the

Settlement Fund. In the event that the Settlement is not approved or approval is

revised on appeal, the costs and expenses paid or incurred to administer the

Settlement and Settlement Fund will be deducted from any amounts to be returned

to Defendants and will not be reimbursed to Defendants.

9. Approval of the Settlement

9.1 Preliminary Approval. Co-Lead Class Counsel, on behalf of

the Class will move the Court for preliminary approval of the class action

settlement (the “Preliminary Approval Motion”). The Preliminary Approval

Motion will seek an order in a form to be agreed upon by the Parties requesting the

Court as follows:

(a) Preliminarily approve the Settlement on behalf of the Class as

being fair, reasonable, and adequate, subject to further hearing

and determination under Fed. R. Civ. P. Rule 23(e);

(b) Approve the form, manner, and content of the Class Notice and

the manner of distribution and publication which is consistent

with this Agreement, Rule 23 and the requirements of due

process;

(c) Appoint the Settlement Administrator;

(d) Direct that Notice be sent to the Class as set forth herein;

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(e) Set the date and time of the Fairness Hearing at least 90

calendar days after entry of the Preliminary Approval Order,

subject to the Court’s availability;

(f) Provide that any objections by any members of the Class to the

proposed Settlement, and/or the entry of the Final Order and

Judgment, shall be heard and any papers submitted in support

of said objections shall be considered by the Court at the

Fairness Hearing only if any objector files a written objection

and notice of appearance, within the time set by the Court

consistent with this Agreement;

(g) Establish a date and methods by which any Class Member must

request exclusion consistent with this Agreement;

(h) Establish dates for filing the Final Approval Motion;

(i) Provide that the Fairness Hearing may be continued from time

to time by Order of the Court without further notice;

(j) Preliminarily approve the form of the Final Order and

Judgment;

(k) Require that Defendants produce the Class Data required by

this Settlement and cooperate with the Settlement

Administrator;

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(l) Continue the stay all proceedings, other than for purposes of

settlement, until the Court renders a final decision on approval

of the Settlement; and

(m) Enjoin Class Members from commencing or prosecuting, either

directly or indirectly, any action asserting any of the Released

Claims as set forth herein.

9.2 Final Approval of the Settlement. If the Court preliminarily

approves this Settlement, and if Co-Lead Class Counsel has not exercised its right

to withdraw under this Agreement, Co-Lead Class Counsel will file a motion seeking

Final Approval of the Settlement (“Final Approval Motion”). Defendants will

either join in or not oppose the Final Approval Motion. The Final Approval Motion

will seek entry of a proposed Final Approval Order in a form to be agreed-upon by

the Co-Lead Class Counsel and Defendants and will, among other things:

(a) Order Final Approval of the Settlement set forth in

this Settlement Agreement;

(b) Adjudge that the Settlement is fair, reasonable and adequate

to the Class pursuant to Rule 23(e);

(c) Dismiss the Action against Defendants with prejudice;

(d) Provide that the term “Final Disposition” in the Protective

Order (ECF No. 38) will be modified to mean until Defendants

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have paid all monetary amounts required under the Settlement.

(e) Adjudge that Plaintiffs and the Class will be deemed

conclusively to have released and waived any and all Settled

Claims against the Defendants as provided in this Settlement

Agreement;

(f) Bar and permanently enjoin Plaintiffs and the Class from

prosecuting any and all Settled Claims, as provided in this

Settlement Agreement, against the Defendants;

(g) Determine Co-Lead Class Counsel’s request(s) for Fee

Award, Service Awards, and Expense Award;

(h) Retain exclusive jurisdiction, without affecting the finality

of the Order entered, with regard to: (i) implementation of this

Settlement Agreement; (ii) disposition of the Settlement Fund;

and (iii) enforcement and administration of this Settlement

Agreement, including the release provisions thereof; and

(i) Find that notice to the appropriate state and federal

officials has been provided as required by CAFA and that

Defendants have satisfied their obligations pursuant to 28

U.S.C. § 1715.

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10. Payment of Amounts for Attorneys’ Fees, Expenses, and Service Award

10.1 Plaintiff’s Counsel’s Fees and Expenses & Service Award.

Pursuant to any deadline set by the Court and prior to the deadline for Class Members

to object to the Settlement, Co-Lead Class Counsel will file a motion with the Court

requesting the payment of attorneys’ fees, reimbursement of litigation expenses and

costs on behalf of all Plaintiff’s counsel, and/or a service award to Plaintiff. The

10.2 Defendants’ Non-Opposition. Defendants will not contest such

motions so long as the motions do not seek payment that would require Defendants

to pay a total amount for attorneys’ fees, expenses and costs to Plaintiff’s counsel

and a service award to Plaintiff that cumulatively exceeds the amount set forth in

this Section 10.

10.3 Payment Schedule. Swapp Law will pay or cause to be paid

$1,050,000.00 into an account designated by Co-Lead Class Counsel and to be

delivered in the manner directed by Co-Lead Class Counsel on the following

schedule:

(a) Swapp Law shall make a payment of $350,000.00 into an

account as directed by Co-Lead Class Counsel Block & Leviton,

by no later than December 1, 2020 or a year following the

Effective Date, whichever is earlier.

(b) Swapp Law shall make a payment of $350,000.00 to into an

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by no later than December 1, 2021 or two years following the


(c) Swapp Law shall make a payment of $350,000.00 into an


by no later than June 1, 2022 or 30 months following the


10.4 First Year Cashout Option. Defendants will have the option

to make a payment of $900,000.00 to an account designated by Co-Lead Class

Counsel and to be delivered in the manner directed by Co-Lead Class Counsel, by

no later than December 1, 2020 or a year following the Effective Date, whichever

is earlier. If payment of the $900,000.00 is received from Defendants and paid by

December 1, 2020 into an account designated and directed by Co-Lead Class

Counsel Block & Leviton, then Defendants will have no further obligations under

Section 10.2 of this agreement.

10.5 Guarantee by Swapp After December 1, 2020: If Swapp Law

has not fully satisfied its obligations under Section 10.4 by December 1, 2020 (i.e.

by exercising the First Year Cashout Option and making the required payment by

December 1, 2020), James Craig Swapp shall and does personally guarantee the

obligations of Swapp Law under Section 10 of this agreement and will be jointly

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and severally liable to pay any outstanding amounts owed pursuant to Section 10.3.

10.6 Second Year Cashout Option. If Defendants make the

$350,000.00 payment pursuant to Section 10.3(a) by December 1, 2020, but do not

elect to pay the full $900,000.00 pursuant to Section 10.4, Defendants will have the

option to make a payment of $650,000.00 to an account designated by Co-Lead

Class Counsel and to be delivered in the manner directed by Co-Lead Class

Counsel, by no later than December 1, 2021 or two years after the Fairness

Hearing, whichever is earlier. If payment of the $650,000.00 is received from

Defendants and paid by December 1, 2021 into an account designated and directed

by Co-Lead Class Counsel Block & Leviton (and the $350,000.00 pursuant to

Section 10.2(a) was timely paid), then Defendants shall have no further obligations

under Section 10.2 of this agreement upon payment of the $650,000.00.

10.7 Acceleration in the Event of Breach. If either Defendant

breaches any obligation under Section 10 of this Agreement or Section 4 of this

Agreement:

(a) All outstanding obligations under Section 4 and Section 10 shall

be immediately due and payable, notwithstanding any date.

(b) As to any breach that occurs prior to December 1, 2020, Plaintiff

and/or Co-Lead Class Counsel will be entitled to enter judgment

against Swapp Law and Swapp Law will confess and will not

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contest judgment as to any outstanding amounts owed under the

Settlement Agreement and Plaintiff and/or Co-Lead Class

Counsel will be entitled to collect on the amount of the judgment

as against Swapp Law.

(c) To the extent that one or more Defendants remain in breach as of

December 1, 2020 and/or any pre-December 1, 2020 breaches

have not been cured or remedied, or as to any breach that occurs

on or arise out of an obligation on or after December 1, 2020,

Plaintiff and/or Class Counsel will be entitled to amend the

judgment as against both Swapp Law and James Craig Swapp,

authorize Plaintiff to confess judgment on behalf of the Class

against James Craig Swapp for the full amount of any

outstanding obligations under Section 10 of this agreement

without stay of execution or right of appeal, and expressly waive

relief from the immediate enforcement of a judgment.

(d) The remedies listed herein for any breach are in addition to any

other remedies that Plaintiff or Class Counsel may be entitled to

seeking, including interest on the past-due amounts and

attorneys’ fees and expenses incurred in connection with

collection of any overdue amounts or breaches of any obligations

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under this Agreement.

10.8 Surety. If Swapp Law is sold or dissolved, James Craig Swapp

ceases involvement in Swapp Law, James Craig Swapp suffers partial or total

disability, James Craig Swapp is diagnosed with an illness carrying with it a

substantial risk of temporary or permanent disability or death, or James Craig

Swapp is divorced, James Craig Swapp shall designate Co-Lead Class Counsel (for

the benefit of the Class) as the beneficiary of a life insurance policy in the amount

of the outstanding obligations under Section 10 as surety for those obligations.

10.9 Payment of Amounts for Attorneys’ Fees & Expenses in the

Event of an Appeal. In the event that there is an appeal of the Settlement or the

Final Order and Judgment, such appeal will not suspend Defendants obligations to

make payments under this Section by the dates specified in the Agreement; rather,

in the event of such an appeal, Defendants will continue to be obligated to and will

make the payments required in this Section and Co-Lead Class Counsel will not

disburse those amounts, but will arrange to hold any amounts in Escrow until the

appeal is resolved. In the event that any such appeal is limited only to the award of

attorneys’ fees, reimbursement of expenses or any service award, Co-Lead be

entitled to disburse from the Escrow Account of such amount of attorneys’ fees

and/or expenses/costs as to which there is no challenge on appeal.

10.10 Defendants’ Attorneys’ Fees & Expenses. Defendants and

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Defendants’ Counsel will bear their own attorneys’ fees, expenses and costs.

11. Notice Under Class Action Fairness Act

11.1 CAFA Notice. Pursuant to CAFA, Defendants, at their own

expense, will prepare and provide the CAFA Notice, including the notices to the

United States Department of Justice and to the Attorney Generals of all states in

which the Class Members reside, as specified by 28 U.S.C. § 1715, within ten (10)

days of the execution of this Settlement Agreement.

11.2 CAFA Notice Provided to Class Counsel. Defendants will

provide Co-Lead Class Counsel and Plaintiffs’ Counsel with a copy of the CAFA

Notice and materials that the Defendants sent to the Appropriate Officials within

three (3) business days after such notices have been sent. The CAFA Notice and

materials will be provided automatically and without further request by Class

Counsel.

12. Releases. Upon the Final Order and Judgment becoming Final and

provided that each Party has performed all of the respective obligations under this

Settlement Agreement to be performed on or prior to such date by each respective

Party:

12.1 Release of Defendants by the Class. Plaintiff and the Class

Members will release, acquit, and forever discharge Defendants from all claims

arising out of Defendants’ acquisition and use of PCTRs that Defendants have

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identified as involving Class Members (the “Released Claims”), and will dismiss

with prejudice their claims asserted in the Action.

12.2 Release of Plaintiffs and the Class by Defendants.

Defendants shall release, acquit, and forever discharge all claims against Plaintiffs,

each Class Member or Class Counsel that could have been asserted in this Action

related to the filing of this Action including any claims for attorneys’ fees, costs,

expenses or sanctions, that relate to the filing, commencement, prosecution or

settlement of this Action.

12.3 Non-released Claims. Notwithstanding the foregoing or any

other language in this agreement, the Parties are not releasing claims to enforce

this agreement or claims concerning the validity of this agreement (including any

conditions or representations upon which the Settlement and/or this Agreement

was based).

13. No Admission of Wrongdoing

13.1 This agreement reflects the parties’ compromise and Settlement

of the Released Claims. Its provisions, and all related drafts, communications, and

discussions, cannot be construed as or deemed to be evidence of an admission or

concession of any point of fact or law (including, but not limited to, matters

respecting class certification) by any person or entity and cannot be offered or

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received into evidence or requested in discovery in the Action or any other action

or proceeding as evidence of an admission or concession.

13.2 Neither this Settlement Agreement nor the Agreement in

Principle is, or may be deemed to be, or may be used as an admission of, or evidence

of any infirmity in the claims asserted by Plaintiff or Class Members.

13.3 This Settlement Agreement may be used in such proceedings as

may be necessary to consummate or enforce this Settlement Agreement or the

Final Order, and any Party may file this Settlement Agreement and/or the Final

Order in any action that may be brought against it or any of the Released Parties to

support a claim, a defense or counterclaim based on principles of res judicata,

collateral estoppel, release, good faith settlement, judgment bar, or reduction or

any other theory of claim preclusion or issue preclusion or similar defense or

counterclaim, or in any action that may be brought to enforce any claim assigned

pursuant to this Settlement Agreement.

14. Conditions of Settlement

14.1 Court Approval. Each of the following is an express condition

of Settlement: (a) this Action remains certified as a class action pursuant to Rule

23 of the Federal Rules of Civil Procedure on behalf of a Class substantially

similar to the Class defined in this Agreement; (b) the Court enters a Preliminary

Approval Order substantially in the form as required by this Agreement; and (c)

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the Court enters the Final Order, substantially in the form as required by this

Agreement. In the event that any of these conditions are not met, Co-Lead Class

Counsel and Defendants will each have the right to withdraw from this Settlement

so long as notice of the exercise of such right is provided within 14 days after

issuance of the order on which the right to withdraw is based.

14.2 Material Correctness of Defendants’ Class Information. It is

an express condition of Settlement that Defendants purchased no more than 9,000

PTCRs that contain the personal information of Class Members. In addition to

other remedies that Plaintiff, the Class or Class Counsel may have, if Defendants

purchased than 9,000 PTCRs which include Class Members’ personal information

during the Class Period, Class Counsel will have the unilateral right up to (7) days

prior to the Settlement becoming Final to withdraw from Settlement and resume

the litigation.

14.3 Material Correctness of Defendants’ Financial Information.

It is an express condition of Settlement that the information about Defendants

financial position provided by Defendants to Co-Lead Class Counsel is materially

correct. In addition to other remedies Plaintiff, the Class or Class Counsel may

have, if the information about Defendants’ financial position that Defendants

provided to Co-Class Counsel is not materially correct, Co-Lead Class Counsel

will have the unilateral right up to (7) days prior to the Settlement becoming Final

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to withdraw from Settlement and resume the litigation.

14.4 Non-conditional Matters. Court approval of the Fee Award,

Service Awards, Expense Award, or the Plan of Allocation are not conditions of

the Settlement. No action by the Court or any courts of appeal related to the Fee

Award, the Service Awards, the Expense Award, or the Plan of Allocation will

prevent the Final Order allowing the approval of the Settlement from becoming

Final.

15. Effect of Disapproval, Cancellation or Termination

15.1 Termination Notice. In the event that one of the conditions of

this Settlement set forth in Section 14 is not met and the Final Order and Judgment

has not become Final, the Party in Section 14 entitled to withdraw based on this

condition may void the Settlement within the time period specified in Section 14.

To exercise the right of withdrawal under this paragraph, counsel for the party

exercising this right must notify Defendants’ Counsel in writing via mail or at the

e-mail addresses listed under their names and signatures on this Agreement.

15.2 Effectiveness of Termination Notice. The Termination Notice

will become effective to void this Agreement only if and after Co-Lead Class

Counsel and Defendants have failed to reach a written agreement within thirty (30)

days of the event triggering the Termination Notice to modify this agreement to

resolve the issue.

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15.3 Effect of Withdrawal. In the event that the Court refuses to

grant Preliminary Approval or enter the Final Order and Judgment, or such

approval is reversed on appeal and one of the Parties exercises its right to withdraw

from this Agreement within the time specified above, or any other circumstance

which causes the Final Order and Judgment to not become Final and the Parties

have not entered into a written modification of this Agreement within thirty (30)

days of such occurrence: (a) the monies in the Escrow Account (including any

interest or earnings accrued while in Escrow, but less any amount paid or owing

for taxes or other expenses incurred by Co-Lead Class Counsel or the Settlement

Administrator while in Escrow in connection with administering the Settlement

Agreement, including any amounts necessary to prepare tax returns or monies paid

or owing to the Settlement Administrator) will be returned to each payor, pro rata

according to the amount of its/his respective payment(s) into the Settlement Fund

upon written request within ten (10) business days of such written request; (b) the

Parties will not be released from the claims asserted in this Litigation; (c) both this

Agreement and the Agreement in Principle will be void ab initio; and (d) the

Parties’ positions, rights and responsibilities will be deemed to have reverted to

their respective status in this Action as of May 22, 2019, and, except as may

otherwise be expressly provided herein, the Parties will proceed in all respects as if

this Agreement and the Agreement in Principle never existed.

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16. Miscellaneous Provisions

16.1 Destruction of Confidential Information. The Protective

Order will be modified so that the Final Disposition for purposes of destroying any

confidential materials will be the date on which Defendants make the last monetary

payment under this Settlement Agreement.

16.2 Continuing Jurisdiction. Plaintiff, on behalf of herself and the

Class, and Defendants agree to submit to the jurisdiction of the Court to resolve

any disputes about the terms of this Settlement, implementation and enforcement

of the Settlement as set forth in this Agreement. The Final Order and Judgment

will include a provision that the Court retains jurisdiction over the Parties

concerning the Settlement and to enforce the terms of this Agreement. However,

no additional Court approval will be necessary to effectuate the Settlement or

distribute the Settlement proceeds consistent with this Agreement and any orders

entered prior to or in the Final Order and Judgment.

16.3 Enforcement of this Agreement. In the event that any Party to

this Agreement believes that another Party to this Agreement has breached the

terms of this Agreement, that Party will notify the alleged breaching Party and

Counsel in writing setting forth the nature of the breach and the requested method

to cure the breach at least 14 days prior to filing any litigation to enforce the terms

of the Settlement Agreement (and if the allegedly breaching party is a Class

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Member regardless of whether that Class Member has separate counsel,

Defendants must also notify Co-Lead Class Counsel in writing). In the event that

the allegedly breaching Party fails to cure the alleged breached as set forth in the

written notification after 14 days, the other Party may then file an action to enforce

the Settlement Agreement. In addition to any other remedies that may be available

for a breach (including under a provision of this Agreement) a Party who

demonstrates that a breach occurred, which could have been reasonably cured

within 14 days (or another time set forth in the written notification) and was not

cured within that time, will be entitled to attorneys’ fees and expenses consistent

with the standards of the DPPA, 18 USC § 2724(b)(3).

16.4 Waiver. The waiver by one party of any breach of this

Settlement Agreement by any other party will not be deemed a waiver of any other

breach of this Settlement Agreement. The provisions of this Settlement Agreement

may not be waived except by a writing signed by the affected party, or counsel for

that party, and as to Plaintiff and the Class only by Co-Lead Class Counsel or

orally on the record in court proceedings by Co-Lead Class Counsel or

Defendants’ Counsel.

16.5 Change of Time Periods. The time periods and dates described

in this Agreement, except for the due dates on which the monetary payments must

be made or the dates on which the non-monetary relief must take effect, may be

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modified by the Court. These time periods and dates may be changed by the Court

or by the parties’ written agreement without notice to the Class and a change to any

of the dates and time periods, except the due dates on which the monetary

payments must be made or the dates on which the non-monetary relief must take

effect do not constitute material modifications of the Settlement.

16.6 Voluntary Agreement. The Parties executed this agreement

voluntarily and without duress or undue influence. All of the Parties warrant and

represent that they are agreeing to the terms of this agreement based upon the legal

advice of their respective attorneys, that they have been afforded the opportunity to

discuss the contents of this agreement with their attorneys and that the terms and

conditions of this document are fully understood and voluntarily accepted.

16.7 Binding Effect. This Agreement binds and benefits the Parties’

respective successors, assigns, legatees, heirs, and personal representatives,

provided, however that no assignment by any Party will operate to relieve that

Party of its obligations under this Agreement.

16.8 Parties Represented by Counsel. The Parties acknowledge

that: (a) they have been represented by counsel of their own choosing during the

negotiation of this Settlement and the preparation of this Agreement; (b) they have

read this agreement and are fully aware of its contents; and (c) their respective

counsel fully explained to them this agreement and its legal effect.

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16.9 Authorization. Each signatory to this Agreement that he or she

is authorized to enter into this Settlement Agreement on behalf of the respective

party that he or she represents.

16.10 Entire Agreement. This Agreement contains the entire

agreement between Plaintiff on behalf of the Class and Defendants and constitute

the complete, final, and exclusive embodiment of their agreement with respect to

the Action and supersedes the Agreement in Principle entered into on May 23,

2019. In the event of any conflict between this Settlement Agreement and the

Agreement in Principle, this Settlement Agreement will control. This Agreement is

executed without reliance on any promise, representation, or warranty by any party

or any party’s representative except those representations and conditions described

in this Agreement (including the Recitals).

16.11 Construction and Interpretation: No Party is the Drafter.

No Party nor any of the Parties’ respective attorneys will be deemed the drafter of

this agreement for purposes of interpreting any provision in this agreement in any

judicial or other proceeding that may arise between them. This Agreement has

been, and should be construed to have been, drafted by all the parties to it, as a

result of arm’s-length negotiations among the Parties and their Counsel so that any

rule that construes ambiguities against the drafter will have no force or affect.

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16.12 Modifications and Amendments. This Settlement Agreement

may be amended or modified only by written instrument signed by Co-Lead

Counsel on behalf of Plaintiffs and the Class and only by Defense Counsel on

behalf of Defendants or by Defendants or their respective successors in interest.

16.13 Extensions. The Parties reserve the right, subject to the Court’s

approval, to request any reasonable extensions of time that might be necessary to

carry out any of the provisions of this Settlement Agreement.

16.14 Headings. The headings in this Settlement Agreement are used

for purposes of convenience and ease of reference only and are not meant to have

any legal effect, nor are they intended to influence the construction of this

Settlement Agreement in any way.

16.15 Governing Law. All terms of this Settlement Agreement and

any disputes about this Agreement will be governed by the laws of the State of

Washington, without giving effect to its principles of conflicts of law.

16.16 Counterparts. This Settlement Agreement may be executed in

one or more original or photocopied counterparts. All executed counterparts will

be deemed an original and all counterparts together will constitute one instrument.

16.17 Evidentiary Effect. This Agreement (whether approved or not

approved, revoked, or made ineffective for any reason) and any proceedings or

discussions related to this agreement (a) will not be used as admission of or

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evidence of any liability or wrongdoing whatsoever in any Court or tribunal in any

state, territory, or jurisdiction, and (b) will not be used as admission or evidence of

any infirmity of the Complaint or claims asserted by the Class . However, this

Settlement Agreement may be used in such proceedings as may be necessary to

consummate or enforce this Settlement Agreement, the Settlement, or the Final

Order; and any Settling Party may file this Settlement Agreement and/or the Final

Order in any action to support a defense or counterclaim based on principles of res

judicata, collateral estoppel, release, good faith settlement, judgment bar, or

reduction or any other theory of claim preclusion or issue preclusion or similar

defense or counterclaim.

[signature page follows]

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Additional Counsel for Plaintiff

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Exhibit B


NOTICE OF CLASS ACTION SETTLEMENT & HEARING in

Wilcox v. Swapp

Case No. 2:17-cv-275-RMP (E.D. Wash.) A federal court authorized this Notice. This is not a solicitation from a lawyer.

If you were involved in a motor vehicle collision between September 1, 2013

and June 23, 2017, in the State of Washington you may be a member of the

Class entitled to benefits under this Proposed Class Action Settlement if

Swapp Law purchased your Police Traffic Collision Report

• The lawsuit alleges that Swapp Law, PLLC, and James Craig Swapp purchased

thousands of Police Traffic Collision Reports (“PTCRs”) from the Washington State

Patrol for the purpose of marketing legal services, and that this practice violated the

Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq.

• The Court has determined that this lawsuit can proceed as a class action on behalf of all

drivers identified in PTCRs whose Personal Information in such PTCR was derived from

a Washington Department of Licensing record and the report was obtained or used by the

Swapp Law Firm or Mr. Swapp between September 1, 2013 and June 23, 2017 (the

“Class”).

• The parties in this lawsuit have agreed to settle the case. Under the proposed Settlement

with Swapp Law, PLLC, and James Craig Swapp the Defendants have agreed to pay $2

million of which at least $950,000 will be distributed to the Class, plus other prospective

and remedial relief.

• The Court has preliminarily approved the Settlement. The Settlement will not become

final unless and until the Court issues final approval after a hearing, which is currently

scheduled for [DATE]. Your legal rights may be affected.

PLEASE READ THIS NOTICE CAREFULLY. IF YOU ARE A MEMBER OF THE

CLASS, THIS SETTLEMENT WILL AFFECT YOUR RIGHTS.

THESE RIGHTS AND OPTIONS, INCLUDING THE DEADLINES BY WHICH TO

EXERCISE THEM, ARE EXPLAINED IN THIS NOTICE.

A SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS

Do Nothing

If you have already been identified by the parties as a Class Member

and you do nothing, you will receive the payment that you may be

entitled to receive under the Settlement.

Exclude Yourself

If you do not want to participate in the Settlement, you must send a

letter requesting exclusion postmarked no later than [DATE], or else

you will be bound by the settlement.

Object

If you wish to object to the settlement or the request for attorneys’

fees and reimbursement of expenses, you must follow the directions

in this notice and submit your objection by [DATE].


WHAT THIS NOTICE CONTAINS

BASIC INFORMATION ................................................................................................... 1 1. Why Did I Get This Notice? .................................................................................. 1

2. What Is This Lawsuit About? ................................................................................ 1 3. What Is a Class Action? ......................................................................................... 1 4. What has Happened in This Case? ......................................................................... 1 5. Who is in the Class in this Class Action and how do I know if I am a Class

Member? ................................................................................................................ 2

6. Why Is There a Settlement? ................................................................................... 3 7. How Do I Know If I Am Part of the Settlement? .................................................. 3 THE PROPOSED SETTLEMENT – ESSENTIAL TERMS ............................................ 3 8. What are the Terms of the Proposed Settlement? .................................................. 3

9. How Can I Receive Compensation Under the Settlement and How Much

Compensation Can I Receive? ............................................................................... 4

A. Payments from the $950,000 Settlement Fund .......................................... 4 B. Payment of Service Award. ....................................................................... 4

10. What Am I Giving up as a Result of This Settlement? .......................................... 5

THE LAWYERS REPRESENTING YOU AND THE CLASS ....................................... 5 11. Do I Have a Lawyer in this Case? ......................................................................... 5

12. How Will The Lawyers Be Paid? .......................................................................... 5 HOW TO PROCEED ........................................................................................................ 6 13. What Are My Options? .......................................................................................... 6

14. How Do I Remain in the Class? ............................................................................. 6 15. Who Should Opt Out of the Class? ........................................................................ 6

16. How Do I Opt Out of the Class? ............................................................................ 7 17. How Do I Tell the Court That I Don’t Like the Settlement? ................................. 7

18. What is the Difference Between Objecting and Opting Out? ................................ 7 THE COURT’S FAIRNESS HEARING ........................................................................... 8 19. When and Where Will the Court Decide Whether to Approve the

Settlement? ............................................................................................................. 8 20. Do I Have To Come To The Fairness Hearing? .................................................... 8 21. May I Speak at the Hearing? .................................................................................. 8

SETTLEMENT NOT YET FINAL ................................................................................... 8 22. Can the Settlement be Terminated? ....................................................................... 8 GETTING MORE INFORMATION ................................................................................. 8 23. Where Can I Get More Information? ..................................................................... 8


_____________________________________________________________________________________________

_________________________________________________________________________________________

Questions?

Contact

(XXX)XXX-XXXX

[-1-]

BASIC INFORMATION

1. Why Did I Get This Notice?

You received this Notice because the Court in charge of this class action lawsuit has ordered this

Notice be sent to persons who are members of the Class and you were identified by the Defendants

as a member of the Class. The Court in charge of this case is the United States District Court for

the Eastern District of Washington, and the case is called Wilcox v. Swapp, Case No. 2:17-cv-275-

RMP (E.D. Wash.).

The purpose of this Notice is to inform you about this lawsuit, the certification of a Class, the terms

of the proposed Settlement, and your rights in connection with the proposed Settlement and a

hearing to be held before the Court on [DATE] to consider the fairness, reasonableness, and

adequacy of the proposed Settlement and related matters.

2. What Is This Lawsuit About?

The Driver’s Privacy Protection Act (“DPPA”) prohibits obtaining, using, or disclosing personal

information from a motor vehicle record (such as a driver’s license or a vehicle registration) except

for certain authorized purposes.

Defendants in this case are a law firm, Swapp Law, PLLC, and an attorney, James Craig Swapp.

The lawsuit alleges that the Defendants purchased thousands of Police Traffic Collision Reports

(“PTCRs”) from the Washington State Patrol for the purpose of marketing legal services. These

PTCRs are prepared by police officers responding to a traffic collision and frequently contain

personal information taken from the driver’s licenses and vehicle registrations of persons involved

in collisions. This suit alleges that Defendants’ practice of acquiring this personal information and

using it to market legal services violated the DPPA. All of the claims in this lawsuit are brought

under the DPPA and are described in detail in the Amended Complaint in this lawsuit, which is

available at www.___________.com.

3. What Is a Class Action?

In a class action, one or more people called class representatives (in this case, Jade Wilcox) sue on

behalf of people who have similar claims. If the Court “certifies” the class (i.e., approves the case

for class treatment), the Court resolves the issues for all class members except for those who

“exclude” themselves from the Settlement Class (otherwise known as “opting out” of the class and

the class action settlement).

4. What has Happened in This Case?

Plaintiff filed this lawsuit on August 9, 2017. Defendants filed a motion to dismiss, which the

Court denied. Thereafter, Defendants filed answers to the Complaint, in which they denied that

they violated the DPPA and asserted numerous defenses. During the lawsuit, Plaintiff engaged in

substantial discovery (a process through which the documents exchange information). As part of


http://www.___________.com/

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(XXX)XXX-XXXX

[-2-]

the process, Class Counsel sought, obtained, and reviewed thousands of pages of documents

related to Plaintiff’s claims, the PTCRs provided by the Washington State Patrol and purchased

by Defendants, the methods by which PTCRs are prepared by police in Washington State, and

drivers whose personal information was purchased by Defendants. Class Counsel also took four

depositions. Defendants’ counsel took the deposition of Plaintiff.

Plaintiff filed an Amended Complaint on August 20, 2018. Defendants again filed a motion to

dismiss, which the Court again denied. The Court entered an order certifying the Class on January

25, 2019 over Defendants’ opposition.

After the Court certified the Class, Plaintiff, and Defendants agreed to explore settlement. As part

of that process, Defendants produced thousands of pages of additional documents related to

Defendants’ financial situation, which revealed Defendants would not be unlikely to satisfy a

judgment of the full amount of damages of the Class, and Class Counsel hired a financial expert

to assist in that analysis.

After receiving Defendants’ financial disclosures, Plaintiff, Class Counsel and Defendants

participated in an in-person mediation with the Hon. Lonny R. Suko on Mar. 6, 2019. Based in

part on those disclosures, the parties arrived at a settlement in principle that same day and

subsequently negotiated a final Settlement Agreement, which was executed on [DATE].

On [DATE], the Court preliminarily approved the Settlement with Defendants and has scheduled

a Final Approval Hearing to evaluate the fairness and adequacy of the Settlement.

5. Who is in the Class in this Class Action and how do I know if I am a Class Member?

On January 25, 2017, the court overseeing this lawsuit—the United States District Court for the

Eastern District of Washington—certified a Class in this case. The Class is defined as follows:

All drivers identified in Police Traffic Collision Reports whose Personal

Information, as defined by the DPPA, was derived from a Department of Licensing

record (e.g. license, registration or database) and the Report was obtained or used

by the Swapp Law Firm (d/b/a Craig Swapp & Associates) or Mr. Swapp from the

Washington State Patrol between September 1, 2013 and June 23, 2017.

Excluded from the Class are (a) current and former clients of Defendants; (b)

individuals identified on the same PTCRs as Defendants’ clients; (c) individuals

who provided written consent to Defendants for the disclosure of their Personal

Information (as defined by the DPPA) prior to Defendants obtaining their personal

information; (d) employees (and attorneys) of Defendants and members of their

immediate families; and (e) the presiding judge and anyone working in the

presiding judge’s chambers and the members of their families.


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(XXX)XXX-XXXX

[-3-]

Based on data from the Washington State Patrol and Defendants, Class Counsel has identified

approximately 32,300 Class Members who meet the definition of the Class certified by the Court.

For purposes of settlement, the Class is limited to those identified in those records. If you received

this Notice in the mail (without requesting that the Notice be mailed to you), you are one of the

Class Members who has been identified. If you would like to confirm that you are a Class Member,

please contact at the Settlement Administrator at the contact information provided in Section 23.

6. Why Is There a Settlement?

The Court did not decide in favor of Plaintiffs or the Defendants. Instead, both sides agreed to the

proposed Settlement to avoid a trial and to provide compensation to the Class Members. In

deciding to settle the lawsuit, the Class Representatives and Class Counsel considered, among

other things, (a) the strength of the Class’s claims as determined from a review of the law and

an investigation of the facts; (b) the potential monetary recovery, including the financial ability of

Defendants to satisfy a judgment; (c) the expense and length of continued proceedings, including

possible trial and post-trial proceedings and appeals, necessary to prosecute the lawsuit; (d) the

risks arising from the existence of unresolved questions of law and fact; (e) the nature and strength

of defenses asserted by and available to Defendants; and (f) the risks and uncertainties of continued

class action litigation of this nature. The Class Representatives and Class Counsel believe that the

proposed Settlement is fair, reasonable, and adequate and in the best interests of the Class.

7. How Do I Know If I Am Part of the Settlement?

If you are a member of the Class described in Section 5, above, and were identified in the records

produced by the Washington State Patrol or Defendants, you are part of the proposed Settlement.

If you aren’t sure about your status as a Class Member, then you can contact the Settlement

Administrator at the address identified in Section 16.

THE PROPOSED SETTLEMENT – ESSENTIAL TERMS

8. What are the Terms of the Proposed Settlement?

The proposed Settlement requires Defendants to pay a total of $2 million plus other prospective

and remedial relief.

Defendants will pay $950,000 into a Settlement Fund that, other than amounts used to pay the

Settlement Administrator to administrate the settlement, will compensate Class Members for the

unlawful acquisition and use of their personal information from PTCRs purchased by Defendants

from the Washington State Police in violation of the DPPA. The payment that each eligible Class

Member will receive from the $950,000 settlement fund will be determined by a Plan of

Allocation that Class Counsel has recommended and must be approved by the Court. The

proposed Plan of Allocation is described in the Appendix to this Notice.

Defendants have also agreed to cease using any PTCRs obtained from the State of Washington

for the purposes of acquiring contact information for potential clients or to send marketing


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(XXX)XXX-XXXX

[-4-]

materials to persons who are identified on such PTCRs, to destroy any such PTCRs, to notify

third parties to whom they provided such PTCRs and personal information derived from such

PTCRs that Class Counsel views such information as protected by the DPPA, and to refrain from

purchasing PTCRs for marketing purposes in the future.

In addition to the $950,000 into the Settlement Fund, Defendants have agreed to pay between

$900,00 and $1,050,000 over the course of the next two and a half years. Out of this amount,

Class Counsel is entitled to apply to the Court for the payment of attorneys’ fees and out of

pocket costs and also a service award to the Plaintiff. If the amount that the Court approves for

attorneys’ fees, expenses and the service award does not equal the amount that Defendants have

agreed to pay then the excess will be distributed to the Class, if administratively feasible, or

distributed to a non-profit organization chosen by the Court.

COMPENSATION FOR CLASS MEMBERS

9. How Can I Receive Compensation Under the Settlement and How Much Compensation Can I Receive?

Class Members who have previously been identified from the records of the Washington State

Patrol or of Defendants do not need to do anything in order to receive compensation under the

proposed Settlement. (If you received this Notice, you have been identified as a Class Member. If

you are not certain, you can contact the Settlement Administrator to confirm that you were

previously identified as a Class Member).

Eligible Class Members will be compensated in the following manner.

A. Payments from the $950,000 Settlement Fund

Class Members will receive payments from the Settlement Fund. The Settlement Fund will be

distributed based on the Court-approved Plan of Allocation. The proposed Plan of Allocation can

be found on the Settlement Administrator’s web site at www._____________.com and is described

in the Appendix to this Notice.

B. Payment of Service Award.

Class Counsel will ask the Court to award a service award to Plaintiff Jade Wilcox in the amount

of $ ____. The proposed service award recognizes the service that Plaintiff provided in this case,

including appearing for a deposition, attending hearings and attending a mediation. Other than this

service award, Plaintiff will receive payments like other Class Members according to the Plan of

Allocation.

RELEASE


http://www._____________.com/

_____________________________________________________________________________________________

_________________________________________________________________________________________

Questions?

Contact

(XXX)XXX-XXXX

[-5-]

10. What Am I Giving up as a Result of This Settlement?

If the Court grants final approval of the Settlement and the Settlement becomes effective, then all

Class Members who do not opt out of the settlement on a timely basis will give up – in legal terms,

release – their right to sue Defendants acquiring and using PTCRs containing their personal

information (as defined by the DPPA) from September 1, 2013 to June 23, 2017. Unless you opt

out of the lawsuit, you will be covered by the Release. The full details of the Release are contained

in Section 12 of the Settlement Agreement, which can be found on the Settlement Administrator’s

web site at www.______.com.

THE LAWYERS REPRESENTING YOU AND THE CLASS

11. Do I Have a Lawyer in this Case?

Yes. The Court has appointed Block & Leviton LLP and the Law Offices of Thomas G. Jarrard

to represent the Class Members. Together, the lawyers are called Class Counsel. Unless you elect

to exclude yourself from the Settlement, you will be represented by Class Counsel in the

litigation including with the implementation of the Settlement throughout the duration of the

terms of the Settlement. Although it is not necessary, you have the right, if you wish to do so,

retain your own attorney at your own expense.

If you have questions about the terms of the proposed Settlement you may contact Class Counsel

at the addresses below:

R. Joseph Barton, Esq.

Block & Leviton LLP

1735 20th Street NW

Washington, DC, 20009

(202) 734-7046

[email protected]

Thomas G. Jarrard, Esq.

Law Office of Thomas Jarrard

1020 N. Washington Street

Spokane, WA 99201

(425) 239-7290

[email protected]

If you have questions about issues regarding Notice you should contact the Settlement

Administrator. Their contact information is below.

12. How Will The Lawyers Be Paid?

Class Counsel will ask the Court for an award of attorneys’ fees and costs, from an amount of

between $900,000 and $1,050,000 (separate from the $950,000, minus settlement administration

expenses, to be paid to the Class). This amount will be paid by Defendants in three equal payments

over the course of two and a half years. Class Counsel will also ask the Court to approve the

reimbursement of their out-of-pocket costs, which are approximately $___, ____. Class Counsel

will be paid from these payments in an amount approved by the Court and not from the Settlement

Fund on which compensation for Class Members will be drawn. The fees will pay Class Counsel

for investigating the facts, litigating the case, and negotiating and implementing the settlement.


http://www.______.com/



_____________________________________________________________________________________________

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(XXX)XXX-XXXX

[-6-]

Class Counsel do not intend to seek more than the actual lodestar (i.e. hours times the hourly rate)

that they have incurred in investigating and litigating this case. To date, Class Counsel has

collectively spent __ hours litigating the case which currently has a value of $ _____ (and Counsel

will continue to incur time and expenses to finalize the settlement). The Court may award less than

these requested amounts to Class Counsel. The Court will examine the request for fees and

reimbursement of expenses of Class Counsel at the Fairness Hearing, as well as any objections to

that request, and determine the amount of fees and expenses to award.

HOW TO PROCEED

13. What Are My Options?

After reviewing the terms of the proposed Settlement set forth in this Notice, you have two options.

You must decide at this stage whether you want to: (1) remain a Class Member and retain an

opportunity to participate in the Settlement; (2) opt-out and exclude yourself from participating in

the Settlement.

OPTION #1: REMAIN A CLASS MEMBER

14. How Do I Remain in the Class?

If you are a member of the Class and you do not request to be excluded, you will remain a part of

the Class and all Released claims will be barred by this Settlement.

If you have previously been identified as a Class Member by the parties and you do not request to

be excluded, you will receive the payment that you may be entitled to receive under the Settlement

based on the Plan of Allocation described in the Appendix to this Notice. If you have not been

previously identified as a Class Member, you will not receive a payment from the Settlement, and

you will not give up any right to pursue claims against the Defendants separately about the claims

covered by the Settlement.

If your contact information changes after you receive this Notice, you should contact Class

Counsel at the addresses in Section 11.

OPTION #2: OPTING OUT OF THE SETTLEMENT

15. Who Should Opt Out of the Class?

If (1) you want to keep the right to sue or continue to sue any of the Defendants regarding their

acquisition and use of PTCRs containing your personal information from September 1, 2013 to

June 23, 2017, or (2) you do not want to be bound by the Settlement of this lawsuit, then you

should take steps to exclude yourself from the Settlement. This is called “opting out” of the

Settlement. If you opt out, you will receive no benefits under this Settlement. You will be able to

assert your claim on your own, but Defendants will retain the right to assert any and all defenses

your claim, including the defense that your claim is untimely.


_____________________________________________________________________________________________

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Questions?

Contact

(XXX)XXX-XXXX

[-7-]

16. How Do I Opt Out of the Class?

To opt out of the Settlement, you must mail a written, signed statement that you are opting out of

the Settlement to the Settlement Administrator at the address below:

Settlement Administrator

_____________________

_____________________

To be effective, the opt-out statement must (1) contain your name, address, email(s), and telephone

number(s); (2) contain the title of the lawsuit, Wilcox v. Swapp, Case No. 2:17-cv-275-RMP (E.D.

Wash.), (3) include a written statement stating “I wish to be excluded from the Class”; and (4) be

signed and dated. To be effective, this opt-out statement must be mailed via First Class United

States Mail, postage prepaid, to the Settlement Administrator, and must be postmarked on or before

[DATE].

Please note that if you submit a timely and valid request for exclusion you will have no right to

object to the Settlement in Court and will no longer be represented by Class Counsel.

OBJECTING TO THE SETTLEMENT

17. How Do I Tell the Court That I Don’t Like the Settlement?

The Court must assess the overall fairness and reasonableness of the Settlement to the Class. If

you are a Class Member and you do not opt out, then you can object to the Settlement if you don’t

like any part of it, and the Court will consider your views. To object to the Settlement and have

your objection considered by the Court, you must submit a written objection to the Settlement

which must be postmarked on or before [DATE]. Your objection needs to contain (1) your name,

address, email(s), and telephone number(s) and an appearance on behalf of any counsel

representing you (if any); (2) the title of the lawsuit, Wilcox v. Swapp, Case No. 2:17-cv-275-RMP

(E.D. Wash.), (3) a written statement of the grounds for your objection, including any evidence

supporting your objection; (4) a statement of whether you intend to appear at the Final Approval

Hearing, and, if you will appear through counsel, the identity of your counsel, and (6) your

signature and the date.

Your objection needs to be addressed to the Settlement Administrator:

__________________

__________________

18. What is the Difference Between Objecting and Opting Out?

Objecting is simply telling the Court that you do not like or disagree with an aspect of the

Settlement. You can object to the Settlement only if you do not exclude yourself from the

Settlement. Excluding yourself from the Settlement is telling the Court that you do not want to


_____________________________________________________________________________________________

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Questions?

Contact

(XXX)XXX-XXXX

[-8-]

be part of the Settlement. If you exclude yourself from the Settlement, you cannot object to the

Settlement because you will not be bound by the Settlement.

THE COURT’S FAIRNESS HEARING

19. When and Where Will the Court Decide Whether to Approve the Settlement?

The Court will hold a Final Approval Hearing (called a Fairness Hearing) at _____ a.m./p.m. on

[DATE], in the courtroom of the Honorable Rosanna Malouf Peterson, at 920 W Riverside Ave.,

Rm. 840, Spokane, WA 99201.

At the Fairness Hearing, the Court will determine whether the proposed Settlement is fair,

reasonable, and adequate. If there are any objections, then the Court will consider them. The Court

will also consider whether the motion of Class Counsel for an award of attorneys’ fees and

reimbursement of expenses should be approved, whether Plaintiffs’ motion for service award for

the Class Representative should be approved, and whether, in accordance with the Settlement, a

final order and judgment should be entered bringing the litigation to a conclusion.

20. Do I Have To Come To The Fairness Hearing?

No. Class Counsel and the Defendants’ counsel will answer questions that the Judge may have. If

you send an objection, then you don’t have to come to Court to talk about it, but you are entitled

to if you want to. As long as you mailed your written objection on time, the Court will consider it.

21. May I Speak at the Hearing?

You may speak at the Fairness Hearing only if you have filed an objection. You may appear either

in person or through a lawyer hired at your own expense. You may withdraw your objections at

any time.

SETTLEMENT NOT YET FINAL

22. Can the Settlement be Terminated?

At the Fairness If there is no final Court approval of the proposed Settlement in this case, or if

Class Counsel or Defendants withdraw from the Settlement in accordance with the Settlement

Agreement, or if the Settlement is not consummated for any other reason, the Settlement

Agreement will become null and void, and the parties will resume their former positions in the

lawsuits.

GETTING MORE INFORMATION

23. Where Can I Get More Information?

This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement.

You can get a copy of the Settlement Agreement, the proposed Plan of Allocation, and other


_____________________________________________________________________________________________

_________________________________________________________________________________________

Questions?

Contact

(XXX)XXX-XXXX

[-9-]

relevant documents by visiting the case web site, www.___________________.com, or by

contacting the Settlement Administrator or Class Counsel. If you have further questions or are

still not sure whether you are included, you can get free help at

www.___________________.com, by calling the Settlement Administrator at (___) ___-____,

or by calling or writing to Class Counsel in this case at the contact numbers/address listed in

Section 11.

Again, the important deadlines are:

Last Day To “Opt-Out” Of The Class: [DATE]

Last Day To Object To The Settlement: [DATE]

Final Approval Hearing: [DATE]

PLEASE DO NOT CALL OR CONTACT THE COURT, THE OFFICE OF THE CLERK

OF COURT, OR DEFENDANT WITH QUESTIONS REGARDING THIS NOTICE.

Dated: [DATE]


http://www.___________________.com/

http://www.___________________.com/

APPENDIX – DESCRIPTION OF PLAN OF ALLOCATION

1. The Net Class Settlement Fund. The Net Class Settlement Fund shall consist of

(a) $950,000 paid by Defendants into the Escrow Account under Section 4.1 of the Settlement

Agreement, less any amounts used to pay Court approved settlement administration expenses,

and (b) any amount of the $900,000 (or additional amount of up to $1,050,00 if not paid in 2020)

paid by Defendants under Section 10.3 of the Settlement Agreement that is not approved by the

Court as attorneys’ fees, reimbursement of litigation expenses, other costs of settlement

administration or a service award to Plaintiff and which is then paid into the Settlement Fund

under Section 4.2 of the Settlement Agreement.

2. Authorized Claimants. An Authorized Claimant will be any individual who both

(a) appeared on PTCRs purchased by Defendants during the Class Period as reflected by the data

produced by Defendants to Class Counsel, and (b) falls within the Class definition (and is not

excluded from the Class definition), but (c) has not opted out of the Class.

3. Allocating the Net Class Settlement Fund. The Net Class Settlement Fund will

be initially allocated among Authorized Claimants on an equal basis as calculated by dividing the

total dollar value of the Net Class Settlement Fund by the number of Authorized Claimants.

4. Initial Distributions to Authorized Claimants. Unless otherwise modified by

the Court, an initial distribution of the Net Class Settlement Fund (the “Initial Distribution”) will

be issued to Authorized Claimants within 90 days of the later of either (a) the time that

Defendants have fully paid $950,000 into the Escrow Fund as provided by Section 4.1 of the

Settlement Agreement or (b) the date on which the Settlement is Final. The check for the Initial

Distribution will state that it is void 90 days from the date of issuance. On either the check or a

document accompanying the check will bear the following:

By endorsing this check, you declare under penalty of perjury that all of the

following information is true and correct: (1) You had a drivers license between

2013 and June 2017; (2) You were involved in an automobile accident in

Washington State sometime between 2013 and June 2017; (3) You are not a

current or former client of the Swapp Law firm or Craig Swapp; (4) You did not

provide consent to the Swapp Law Firm or Craig Swapp to obtain your personal

information; (5) You are not a current or former employee of the Swapp Law

Firm (or a relative of such employee).

If ALL of the following is not true, you should NOT endorse this check, but

should contact the Settlement Administrator at [INSERT PHONE & EMAIL]

5. Second Distributions to Authorized Claimants. A second distribution will be

made to those Authorized Claimants who endorsed their Initial Distribution checks within 90

days after issuance from the Initial Distribution only if after the Initial Distribution: the Net

Settlement Fund contains or subsequently has sufficient monies to pay the costs of administering

a second distribution to Authorized Claimants; a second distribution is economically feasible;

and the amount to be distributed to those Authorized Claimants (after expenses) would be $5 or

more. The check for the second distribution will state that it is void 90 days from the date of

issuance.

6. Residual Funds. After any second distribution to Authorized Claimants or if

there are not sufficient funds to make a second distribution to the Authorized Claimants pursuant

to Paragraph 5 of this Plan of Allocation, any residual funds in the Net Class Settlement Fund

will be distributed consistent with Section 5.4 of the Settlement Agreement.


Exhibit C

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SECOND SETTLEMENT CERTIFICATE: Page 1

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FOR THE EASTERN DISTRICT OF WASHINGTON

JADE WILCOX, on behalf of herself,


Plaintiff,

vs

SWAPP LAW, PLLC, DBA CRAIG

SWAPP AND ASSOCIATES; and

JAMES CRAIG SWAPP, individually,

Defendants.

Case No. CV 17-275-RMP

Related to Case No. CV 17-00122-

RMP

PLAN OF ALLOCATION

1. The Net Class Settlement Fund.1 The Net Class Settlement Fund

shall consist of (a) $950,000 paid by Defendants into the Escrow Account under

Section 4.1 of the Settlement Agreement, less any amounts used to pay Court

approved settlement administration expenses, and (b) any amount of the $900,000

(or additional amount of up to $1,050,00 if not paid in 2020) paid by Defendants

under Section 10.3 of the Settlement Agreement that is not approved by the Court

as attorneys’ fees, reimbursement of litigation expenses, other costs of settlement

administration or a service award to Plaintiff and which is then paid into the

Settlement Fund under Section 4.2 of the Settlement Agreement.

1 All capitalized terms have the meaning provided by the Settlement Agreement if

not otherwise defined by this Plan of Allocation.

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2. Authorized Claimants. An Authorized Claimant will be any

individual who both (a) appeared on PTCRs purchased by Defendants during the

Class Period as reflected by the data produced by Defendants to Class Counsel,

and (b) falls within the Class definition (and is not excluded from the Class

definition), but (c) has not opted out of the Class.

3. Allocating the Net Class Settlement Fund. The Net Class Settlement

Fund will be initially allocated among Authorized Claimants on an equal basis as

calculated by dividing the total dollar value of the Net Class Settlement Fund by

the number of Authorized Claimants.

4. Initial Distributions to Authorized Claimants. Unless otherwise

modified by the Court, an initial distribution of the Net Class Settlement Fund (the

“Initial Distribution”) will be issued to Authorized Claimants within 90 days of the

later of either (a) the time that Defendants have fully paid $950,000 into the

Escrow Fund as provided by Section 4.1 of the Settlement Agreement or (b) the

date on which the Settlement is Final. The check for the Initial Distribution will

state that it is void 90 days from the date of issuance. On either the check or a

document accompanying the check will bear the following:

By endorsing this check, you declare under penalty of perjury

that all of the following information is true and correct: (1) You

had a drivers license between 2013 and June 2017; (2) You were

involved in an automobile accident in Washington State sometime

between 2013 and June 2017; (3) You are not a current or former

client of the Swapp Law firm or Craig Swapp; (4) You did not

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provide consent to the Swapp Law Firm or Craig Swapp to obtain

your personal information; (5) You are not a current or former

employee of the Swapp Law Firm (or a relative of such employee).

If ALL of the following is not true, you should NOT endorse this

check, but should contact the Settlement Administrator at

[INSERT PHONE & EMAIL]

5. Second Distributions to Authorized Claimants. A second

distribution will be made to those Authorized Claimants who endorsed their Initial

Distribution checks within 90 days after issuance from the Initial Distribution only

if after the Initial Distribution: the Net Settlement Fund contains or subsequently

has sufficient monies to pay the costs of administering a second distribution to

Authorized Claimants; a second distribution is economically feasible; and the

amount to be distributed to those Authorized Claimants (after expenses) would be

$5 or more. The check for the second distribution will state that it is void 90 days

from the date of issuance.

6. Residual Funds. After any second distribution to Authorized

Claimants or if there are not sufficient funds to make a second distribution to the

Authorized Claimants pursuant to Paragraph 5 of this Plan of Allocation, any

residual funds in the Net Class Settlement Fund will be distributed consistent with

Section 5.4 of the Settlement Agreement.

99


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Plaintiffs,

v.


CRAIG SWAPP AND



Defendants

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RMP

DECLARATION OF COLIN M.

DOWNES IN SUPPORT OF




SETTLEMENT


Decl. of Colin M. Downes in Support of Pls’ Unopposed Mo. for Preliminary


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I, Colin M. Downes, hereby declare under penalty of perjury of the laws of

the United States as follows:

1. I am an attorney and an associate with the law firm of Block &

Leviton, LLP. I am supervised by counsel for Plaintiff and Co-Lead Counsel for

the Class in this case, R. Joseph Barton. I am an active member of the bars of the

State of New York and the District of Columbia.

2. Block & Leviton solicited bids for class notice and settlement

administration services through a competitive process. On February 7, 2019,

following certification of the Class, Block & Leviton circulated a request for

proposals for class notice services to six prominent providers of class

administration services. Four of these service providers submitted bids: RG/2,

Angeion Group, Rust Consulting, Inc., and RSM US LLP.

3. Before Class Counsel was to move for appointment of a class notice

service provider and approval of class notice, this case was stayed to allow for

mediation. In advance of mediation, Block & Leviton invited the four service

providers that had responded to the initial request for proposals to provide class

notice services to update their proposals to include administration services.

4. Class Counsel and Plaintiff’s counsel conducted analysis of data

produced by Defendants in this case that set out information for each person listed

on a police traffic collision report (“PTCR”) purchased by Defendants during the




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class period. Class Counsel ran searches over this data to remove duplicative

entries that appeared because the same individual had appeared on multiple PTCRs

or because purchases of PTCRs by Defendants had resulted in the same PTCR

being downloaded multiple times.

5. Class Counsel also ran searches over this data to eliminate entries that

referred to government or business entities: entries containing the text strings

“City”, “State”, “Inc.”, “Corp.”, “County,” or “LLC” in the name field. Likewise,

Class Counsel ran searches over this data to eliminate entries that bore indicia of

having not been populated using information from a motor vehicle record: entries

containing the text strings “UNK”, “UNKNOWN”, “TRANSIENT”,

“HOMELESS”, or “STATE MOTOR POOL” in the “Street1” (address) field

rather than containing an address taken from a driver’s license or vehicle

registration.

6. Based on review and analysis of this data, Class Counsel adjusted its

assumption of the class size and sought updated proposals for settlement

administration services from the four bidders. Class Counsel then engaged in

extended discussions with each bidder and analysis of their proposals, in an effort

to ensure an apples-to-apples comparison of the proposals.

7. The two lowest priced bids were submitted by Angeion Group and

RG/2 Claims Administration. True and correct copies of their proposals are




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attached hereto as follows:

Exhibit A Proposal for Settlement Administration Services Submitted by

Angeion Group; and

Exhibit B Proposal for Settlement Administration Services Submitted by

RG/2 Claims Administration.

Executed this 25th day of October, 2019, in Washington, D.C.

Colin M. Downes


Exhibit A

104


Case/Project Name: Jade Wilcox v. Swapp Law, et al.

Type of Case: Consumer

Submission Date: August 28, 2019 -- REVISED 10.23.19

Firm(s) Submitted to: Block & Leviton LLP

Firm(s) Contact: Ming Siegel, R. Joseph Barton, Esq. & Colin Downes, Esq.

Angeion Representative:

TOTAL ($)

4,890.00

38,161.75

VOLUME RATE ($) TOTAL ($)

30,332.38

1,984.64

75,369

78,500

** NOT TO EXCEED is contingent upon a class size of 32,200

Other Relevant Costs

TOTAL ESTIMATED COSTS

Distribution and Post Distribution

NOT TO EXCEED TOTAL**

Case Management and ReportingIncludes case set-up costs, data management fees, reporting and other applicable fees

Notification Fees & Costs

Includes mailing to class members, processing undeliverable notices, processing notice requests,

processing opt-outs, website, telephone support and other correspondence.

Angeion Group Project Proposal Schedule of Fees and Charges

Christian Clapp, Esq., Steven Weisbrot, Esq. & Christopher Chimicles, MBA

PROPRIETARY AND CONFIDENTIAL (PAGE 1)105


Exhibit B

106


Presented by: Dominique Fite, Esquire

Vice President, Business Development and Client Relations

(619)[email protected]

www.rg2claims.com

Page 1 CONFIDENTIAL PROPOSAL-NOT FOR DISTRIBUTION 10/23/2019

Estimate of Costs for Notice and Administration Services related to: Jade Wilcox v. Swapp Law, et al.

Assumptions Used in Estimate Preparation

RG/2 Claims Administration LLC’s proposal relies upon the assumptions set forth herein. Any services not discussed but required by counsel, the Orders of the Court, or Settlement Agreement will be billed at addition rates.

Estimated Class Size: Notice Type:

32,300 Long-form notice - direct mail12-pagesNotice and Claim Packet Length:

Retruned Notice Mailings: Forwarded Notice Mailings: Publication Notice: Toll-Free Automated System: Live Operator or Call Back: Average Call Time: Case Specific Website: Online Claim Portal: Claims Rate: Distribution Type:

10% or 3,230 2,132 No Yes – assumes 1,615 calls (5%) Live Operator 3 minutes Yes No No claims process Check

Mailing & Damage Data This estimate assumes mailing list and damage data will be provided in useable electronic format. Data in useable electronic format includes mailing data, social security numbers, and finalized damage data required for settlement payment calculation. Where damage data requires analysis of multiple or duplicative records per settlement class member or requires the consolidation or accumulation of data, additional time beyond that contemplated by this estimate may be required and will be charged in addition to the estimate above by RG/2 staff at their preferred rates. RG/2 accepts data in all standard file formats including excel files (.xls), text files (.txt), comma separated value files (.csv), and access databases (.mdb). Requests to process data from proprietary databases or paper records, or other sources not identified above can be performed by RG/2 staff at their preferred rates.

Cost Estimate Summary Setup Cost $ 3,588 Notification Cost $ 37,222 Processing Costs $ 28 Telephone & Email Support $ 5,271 Fund Distribution & Tax Reporting $ 49,698 Project Management $ 8,870 Total Estimated Cost $ 104,676

Courtesy Discount $ 6,000

Total Revised Estimate $ 98,676

Offered Cap $ 100,000*

*Proposed cap contingent on assumptions provided herein.

107



http://www.rg2claims.com/


Vice President, Business Developm ent and Client Relations


www.rg2claims.com

Estimate of Costs for Notice & Administration Services related to: Jade Wilcox v. Swapp Law, et al.


Quantity (hours/pieces) Rate Amount

Design & Development Start Up - Development of Case-Specific Notice and Administration Plan 6 $ 260.00 $ 1,560

Case Intake Review Notice, Design and Typeset Forms 3 $ 176.00 $ 528

Case Website Develop Static website with Case documents 6 $ 175.00 $ 1,050 Monthly Maintenance 6 $ 75.00 $ 450

Subtotal: Setup Cost $ 3,588

Claimant Identification & Notification $ 32,081 Print 12 page notice package 32,300 $ 0.540 $ 17,442 NCOA and Mail $ 750 Postage 32,300 $ 0.430 $ 13,889

Notice Follow Up (not required at this time) $ 5,141 Returned Notices - Process Mail & Update Database 3,230 $ 0.350 $ 1,131 Process Forwarding Requests 485 $ 0.550 $ 266 Skip Trace Returned Notices 2,746 $ 0.323 $ 888 Re-Mail Notices 2,132 $ 0.790 $ 1,684 Postage 2,132 $ 0.550 $ 1,172

Subtotal: Notification Cost $ 37,222

Opt-Out Processing Input Opt-Outs into Proprietary Database and Report 25 $ 1.10 $ 28

Subtotal: Processing Cost $ 28

108





Vice President, Business Developm ent and Client Relations


www.rg2claims.com

Estimate of Costs for Notice & Administration Services related to: Jade Wilcox v. Swapp Law, et al.


Quantity (hours/pieces) Rate Amount

Telephonic Database Support Telephone Calls 1,615 Min Per Call 3

Total Minutes 4,845 $ 0.12 $ 581 Telephone Calls Requiring Live Support* 3,392 $ 1.25 $ 4,239 Emails *min $100 per month

100 $ 4.50 $ 450

Subtotal: Telephone and Email Support $ 5,271

Distribution $ 47,848 Check Printing including w-2/1099 32,275 $ 0.85 $ 27,434 Postage 32,275 $ 0.43 $ 13,878 Reissue Checks 1,614 $ 3.50 $ 5,648 Postage 1,614 $ 0.55 $ 888

Tax Preparation $ 1,850 QSF Tax Return Prep & Filing (1 yr) $ 1,200 State tax filings (1 state) 1 $ 650.00 $ 650

Subtotal: Distribution $ 49,698

Case Management, Data Management, Data Warehousing, Fraud Detection and Prevention, Quality Assurance, Technical Support and Reporting to Counsel and the Court.

$ 8,870

Subtotal: Project Management $ 8,870

Postage $ 28,940 Other Fees/Costs $ 75,737

*RG/2 reserves the right to modify this estimate to reflect changes in assumption and/or terms. Please note, this estimate requires RG/2 to rely on certaininformation provided by Counsel as well as making a number of significant assumptions. Accordingly, these estimates are not intended to limit RG/2's actual fees and expenses, which due to the scope of actual services or changes to the underlying facts or assumptions, may be less or more thanestimated.

Estimated Notice and Administration Costs and Expenses * $ 104,676

109




CONFIDENTIAL PROPOSAL-NOT FOR DISTRIBUTION 10/23/2019

www.rg2claims.com

Jade Wilcox v. Swapp Law, et al.

Terms and Conditions All notice and claims administration services to be provided by RG/2 Claims Administration LLC (“RG/2 Claims”) to Client shall be subject to the following terms and conditions:

1. Subject to the terms hereof, RG/2 Claims agrees to provide the Client with the notice and/or claims administration services (“Notice/Claims Services") as specified in the Proposal provided to Client to which these Terms and Conditions are attached. Anyservices not described herein but required by counsel, the Orders of the Court, or Settlement Agreement will be billed in addition to this proposal.

2. Charges to the Client for Notice/Claims Services shall be on a time and materials basis at our preferred regular rates, which are updated on a regular basis. Any fee estimates set forth in the proposal are estimates only, based on information provided by Client to RG/2 Claims and subject to the assumptions set forth above. Actual fees charged by RG/2 Claims to Client may be greater orless than such estimate, and Client shall be responsible for the timely payment of all such charges andexpenses.

3. RG/2 Claims does not convey nor does the Client obtain any right in the programs, system data, or materials utilized or provided by RG/2 Claims in the ordinary course of business in the performance of this Agreement.

4. To the extent performance by RG/2 Claims of any of its obligations hereunder is substantially prevented by reason of ForceMajeure, any act of God, or by reason of any other matter beyond RG/2 Claims’ reasonable control, then such performance shall beexcused and this Agreement, at RG/2 Claims’ option, be deemed suspended during the continuation of such condition and for areasonable time thereafter.

5. The terms of this agreement will remain in effect until completion of the Notice/Claims Services, unless earlier terminated inaccordance with Section 7 hereof.

6. Unless directed otherwise in writing by Client, RG/2 Claims will retain and destroy all records including documents, reports,electronics record, and other materials in accordance with its Record Retention and Destruction Policy.

7. The Notice/Claims Services to be provided under this Agreement may be terminated, at will by the Client upon at least 30calendar days prior written notice to RG/2 Claims . The Client's obligation to pay for services or projects in progress at the time of notice of withdrawal shall continue throughout that 30 day period. RG/2 Claims may terminate this Agreement (i) with 10calendar days prior written notice, if the Client is not current in payment of charges or (ii) in any event, upon at least 3 months prior written notice to the Client. In the event Client terminates this agreement, RG/2 Claims shall have no obligation to release orprovide any data, report, or other information relating to the applicable case until Clients’ payment obligation for RG/2 Claims services has been satisfied in full.

8. Any notice required or permitted hereunder shall be in writing and shall be delivered personally, by, or sent by registered mail,postage prepaid, or overnight courier service to the responsible officer or principal of RG/2 Claims or the Client, as applicable, and shall be deemed given when so delivered personally, or, if mailed, five days after the date of deposit in United States mail, or, if sent by courier, one business day after delivery to such courierservice.

9. No failure or delay on the part of a party in exercising any right hereunder will operate as a waiver of, or impair, any such right.No single or partial exercise of any such right will preclude any other or further exercise thereof or the exercise of any other right.No waiver of any such right will be effective unless given in a signedwriting.

10. All accrued payment obligations hereunder, any remedies for breach of this Agreement, this Section and Section 3 regarding rights in data will survive any expiration or termination of this Agreement.

11. The retention or appointment of RG/2 Claims to perform Notice/Claims Services constitutes the Client’s agreement to be bound by these Terms and Conditions for the applicable matter.

12. These Terms and Conditions and Proposal provided to Client to which these Terms and Conditions are attached shall constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations,representations, and agreements related thereto, either written or oral, except to the extent they are expressly incorporated herein.No addition to, waiver, or modification of any provision of these Terms and Conditions shall be binding unless in writing andsigned by a duly authorized representative of RG/2 Claims and Client.

13. RG/2 may be eligible for rebates or volume-based credits from vendors and/or financial institutions. These rebates are the property of RG/2 and will not be passed through to individual matters.

14. This estimate is valid for ninety (90) days from the date of issuance.

Page 4

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Jade Wilcox, on behalf of herself and

all others similarly situated,

Plaintiffs,

v.

Swapp Law, PLLC, d/b/a Craig

Swapp and Associates, and James

Craig Swapp, individually,

Defendants

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RMP

[PROPOSED] ORDER

GRANTING PRELIMINARY


SETTLEMENT


[Proposed] Order Granting Preliminary Approval of Class Action Settlement - 1

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The above-captioned matter came before the Court on Plaintiff’s Motion for

Preliminary Approval of Class Action Settlement, ECF No. __. Based upon the

Court’s review of the Memorandum of Law in Support of Plaintiff’s Motion for

Preliminary Approval and the Declaration of Joseph R. Barton (“Barton Decl.”)

and the exhibits attached thereto, the Court grants preliminary approval of the

settlement memorialized in the Settlement Agreement attached to the Barton

Declaration as Exhibit 1 and finds as follows:

Preliminary Approval of the Settlement

1. Preliminary approval is the first step in the class settlement process.

The request for preliminary approval only requires an “initial evaluation” of the

fairness of the proposed settlement. Manual for Complex Litigation § 21.632 (4th

ed. 2004). The purpose of preliminary approval is to determine “whether to direct

notice of the proposed settlement to the class, invite the class’s reaction, and

schedule a fairness hearing.” William B. Rubenstein et al., Newberg on Class

Actions § 13:10 (5th ed. 2013).

2. In granting preliminary approval, the Court considers “whether the

Settlement Agreement appears to be the product of serious, informed, non-

collusive negotiations; has no obvious deficiencies; does not grant preferential

treatment to class representatives, and falls within the range of possible approval.”

Hall v. L-3 Commc'ns Corp., No. 15 CV 231, 2019 WL 3845462, at *3 (E.D.



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Wash. Jan. 25, 2019); Scott v. United Servs. Auto. Ass'n, No. 11 CV 1422, 2013

WL 12251170, at *1 (W.D. Wash. Jan. 7, 2013) (same); Gabriel v. Nationwide

Life Ins. Co., No. 09 CV 508, 2010 WL 11684279, at *6 (W.D. Wash. May 17,

2010) (same).

3. The Court finds that the Settlement Agreement is the result of serious,

informed, and non-collusive negotiations. The Settlement Agreement is the result

of arm’s length negotiations by counsel well-versed in the prosecution of class

actions. The assistance of a professional mediator reinforces that the Settlement

Agreement is non-collusive. Zamora Jordan v. Nationstar Mortg., LLC, No. 14 CV

175, 2019 WL 1966112, at *3 (E.D. Wash. May 2, 2019) (finding no collusion

where “the Settlement Agreement was achieved under the supervision of a trusted

third-party mediator following extensive settlement negotiations”).

4. The proposed Settlement provides substantial relief to the Class. The

monetary component of the Settlement Agreement provides for payment of at least

$950,000 to a settlement fund for the benefit of the Class. This result is in line with

class settlements approved by other courts in DPPA cases. E.g. Wiles v. Sw. Bill

Tel. Co., No. 09 CV 4236, 2011 WL 2416291, at *1 (W.D. Mo. June 9, 2011)

(finding a $900,000 settlement reasonable for a class of all drivers licensed in

Missouri). This result is particularly appropriate given that Class Counsel has

determined through analysis of financial records produced by the Defendants that



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the Defendants do not have the capacity to pay anything more than a fraction of the

judgment that Plaintiff might realize on behalf of the Class at trial. Barton Decl. ¶

__. This factor weighs in favor of preliminary approval. Rinky Dink, Inc. v. World

Bus. Lenders, LLC, No. 14 CV 268, 2016 WL 4052588, *4 (W.D. Wash. Feb. 3,

2016).

5. The Settlement Agreement also provides that the Defendants will

make changes to their business practices, including refraining from acquiring

Police Traffic Collision Reports for the purpose of soliciting clients and destroying

the protected information of Class members in their possession. These non-

monetary forms of relief accomplish the privacy purposes of the DPPA. See

Roberts v. Source for Pub. Data, LP, No. 08 CV 4167, 2010 WL 2195523, at *3

(W.D. Mo. May 28, 2010).

6. The Settlement Agreement does not suffer from any obvious

deficiencies, such as preferential treatment of the Class representative. The Ninth

Circuit has advised courts to be concerned (a) “when counsel receive a

disproportionate distribution of the settlement, or when the class receives no

monetary distribution but class counsel are amply rewarded”; (b) “when the parties

negotiate a ‘clear sailing’ arrangement providing for the payment of attorneys' fees

separate and apart from class funds, which carries ‘the potential of enabling a

defendant to pay class counsel excessive fees and costs in exchange for counsel



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accepting an unfair settlement on behalf of the class’”; and (c) “when the parties

arrange for fees not awarded to revert to defendants rather than be added to the

class fund.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th

Cir. 2011). Such signs do not necessarily mean that a settlement is improper, but

only that it is supported by an explanation of why the fee is justified and does not

betray the class's interests. Id. at 949.

7. Here, the Class will receive a monetary distribution and counsel’s

distribution will not be disproportionate. While the Settlement Agreement includes

a “clear sailing” provision, under which attorneys’ fees will be paid from a

separate fund, these monies will come from payments to be made by Defendants

over time, and only after an initial monetary distribution has been made to the

Class. The Settlement Agreement provides that any amounts not awarded from this

separate fund will revert to the Class, and the amounts that will be paid are those

that Plaintiff or Class Counsel would be entitled to under the statutory fee

provision under the DPPA. Barton Decl. ¶ __; see Dennings v. Clearwire Corp.,

No. 10 CV 1859, 2013 WL 1858797, at *9 (W.D. Wash. May 3, 2013) (holding

clear sailing provision non-collusive where amounts not awarded will revert to the

Class).

8. No class member or group of Class members will receive unduly

favorable treatment under the terms of the Settlement Agreement. The Plan of



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Allocation proposes that the Settlement Fund will be equally divided among all

Class Members and without the need for a claim form or claims process. This Plan

of Allocation is reasonable given that Class Members would each be entitled to

seek liquidated damages in the amount of $2,500 if they succeeded on the merits of

their respective claims. See 18 U.S.C. § 2724(b)(1).

9. The Court finds that there are no grounds to doubt the fairness of the

Settlement Agreement and concludes that the proposed Settlement Agreement is

within the range of possible settlement approval, such that notice to the class is

appropriate.

Class Notice

10. The Court approves the Proposed Notice of Class Action Settlement

(“Class Notice”) which is attached as Exhibit 2 to the Barton Declaration and

directs its distribution to the Class.

11. The content of the Class Notice fully complies with due process and

Federal Rule of Civil Procedure 23.

12. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), a notice must

provide:

the best notice practicable under the circumstances, including

individual notice to all members who can be identified through

reasonable effort. The notice must concisely and clearly state in plain,

easily understood language: the nature of the action; the definition of

the class certified; the class claims, issues, or defenses; that a class

member may enter an appearance through counsel if the member so



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desires; that the court will exclude from the class any member who

requests exclusion, stating when and how members may elect to be

excluded; and the binding effect of a class judgment on class members

under Rule 23(c)(3).

Fed. R. Civ. P. 23(c)(2)(B). Notice sent by first class mail is sufficient when the

names and addresses of the class members are known. Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 173-77 (1974); Peters v. Nat'l R.R. Passenger Corp., 966

F.2d 1483, 1486 (D.C. Cir. 1992); De La O v. Arnold-Williams, No. 04 CV 192,

2008 WL 11426817, at *5 (E.D. Wash. Aug. 12, 2008). Here, the names and

addresses of the Class members are known, and thus notice to the Class by first

class mail is appropriate.

13. Rule 23(c)(3) requires that the notice inform class members of the

following: “(i) the nature of the action; (ii) the definition of the class certified; (iii)

the class claims, issues, or defenses; (iv) that a class member may enter an

appearance through an attorney if the member so desires; (v) that the court will

exclude from the class any member who requests exclusion; (vi) the time and

manner for requesting exclusion; and (vii) the binding effect of a class judgment on

members under Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B). The proposed notice to

the Class meets these requirements.

14. A proper notice should (1) describe the facts underlying the action and

the class, (2) describe the terms of the settlement, (3) disclose any benefits

provided to class representatives, (4) provide information regarding attorney’s fees,



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(5) state the time and place of the final hearing, (6) provide counsel’s contact

information and instructions on how to object and/or make inquiries, and (7)

explain the procedure for allocation. Manual for Complex Litigation, supra, §

21.312; Burnett v. W. Customer Mgmt. Grp., LLC, No. 10 CV 56, 2011 WL

13290339, at *4 (E.D. Wash. Feb. 22, 2011) (approving notice that provided such

information). Here, the proposed notice to the Class provides information on these

subjects and informs class members about their rights under the Settlement as well

as their right to be heard at the final fairness hearing.

15. The Court appoints _____________________ as the Settlement

Administrator for providing Class Notice and otherwise assisting in administration

of the Settlement. The Settlement Administrator shall provide notice to the Class

no later than ______________________. The Settlement Administrator will file a

declaration with the Court confirming that the Class Notice was sent in accordance

with this Order by __________________.

Class Action Settlement Procedures

16. Any Class Member who wishes to object to this Settlement or

otherwise to be heard concerning this Settlement shall timely inform the District

Court in writing of his or her intent to object to this Settlement and/or to appear at

the Fairness Hearing by following the procedures set forth in the Class Notice

(“Objection”). To be considered timely, the Objection must bear a postmark that is



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no later than __________2020. The Objection must set forth at least the following:

(a) the full name, address and contact information for the Objector and the name

and address of counsel (if represented by counsel); (b) a written statement of any

and all objections to this Settlement and include any supporting papers and

arguments; (c) the signature of the Objector (or his attorney).

17. Any Class Member who wishes to be excluded from this Settlement

shall timely inform the District Court in writing of his or her intent to be excluded

from this Settlement following the procedures set forth in the Class Notice

(“Exclusion”). To be considered timely, the Exclusion must bear a postmark that is

no later than no later than _______________, 2020. The Exclusion must set forth

at least the following: (a) the full name, address and contact information for the

person seeking exclusion; and (b) the signature of the person seeking exclusion (or

their attorney).

18. Any Class Member or other person who fails to make his, her or its

Objection or Exclusion in the manner provided shall be deemed to have waived

such objection or Exclusion and shall forever be foreclosed from making any

objection to the fairness or adequacy of the proposed settlement as incorporated in

the Settlement Agreement, to the Judgment, to the Plan of Allocation, to the award

of attorneys' fees and reimbursement of expenses to Plaintiffs' Counsel, unless

otherwise ordered by the Court. To the extent that any objections or comments are



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transmitted to Settlement Administrator, or the Parties' counsel, but are not filed

with the Court, those persons are hereby directed to file such objections with the

Court.

19. The Settlement Fund will be deemed and considered to be in custodia

legis of the Court and will remain subject to the jurisdiction of the Court until such

time as such funds will be distributed pursuant to the Settlement Agreement and/or

the order of the Court.

20. Class Counsel will file any Motion for Attorneys’ Fees, Costs, and

any motion for Class Representative Service Award by _______________, 2020.

21. Neither Defendants nor Defendants’ counsel will have any

responsibility for the Plan of Allocation or will make any application for or take

any position on attorneys’ fees or reimbursement of expenses submitted by Co-

Lead Class Counsel.

22. Class Counsel shall file a Motion for Final Approval of the Settlement

by __________________, 2020.

23. The Court will hold a final fairness hearing on __________, 2020 at

____am/pm at the United States District Court for the Eastern District of

Washington, 920 West Riverside Ave., Rm. 901, Spokane, Washington. The

Court may continue the date of the final fairness hearing if necessary without

further notice to the Class, but any such continuance will be publicized on the



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settlement website.

It is so ORDERED this _________ day of __________, 2019.

Hon. Rosanna Malouf Peterson

United States District Judge


Documents

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