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Motion 10 - product liability motion for class action settlement agreement - Part 2
6.4 Deductions for Prior Refunds Applicable to All Payments. Payments to Settlement Class Members shall be reduced by any refunds relating to the Product (s) previously paid or provided by Defendant or at Defendant's direction, upon written proof which establishes to Class Counsel's reasonable satisfaction that a previous refund has been paid or provided to the Settlement Class Member.
6.5 Request Form Requirement and Claim Processing Procedure. Settlement Class Members' claims shall be made and processed as follows:
(a) To make a claim under the Settlement, a Settlement Class Member must complete and submit a Request Form, substantially in the form attached as Exhibit C hereto, indicating whether he or she seeks a Self-Certification or a Documentary Support payment, as described above and must comply with the instructions on the Form including providing all required information and/or documentation, as applicable.
(b) The Settlement Class Member must submit the Request Form to the Settlement Administrator by the deadline specified in the Long-Form Notice and Publication Notice unless such period is extended by order of the Court. Provided that the Request Form is received before the deadline specified for such forms, a Request Form submitted by United States Mail shall be deemed to have been submitted when posted, if received with a postmark indicated on the envelope and if mailed by first-class mail. In all other cases, the Request Form shall be deemed to have been submitted when actually received by the Settlement Administrator.
(c) After the deadline for Settlement Class Members to submit claims has passed, the Settlement Administrator shall provide Defendant with the names of all Settlement Class Members who have submitted claims for Documentary Support payments (“Documentary Support Claimants”) and, for each such person, the names of the Product or Products for which the Documentary Support Claimant is making the claim (“Claimed Products ”). For each Documentary Support Claimant Defendant shall provide the Settlement Administrator with the annual membership fee for the Claimed Product applicable to the Documentary Support Claimant, or, if that information is not available, then Defendant shall provide the Settlement Administrator with information concerning the charge customarily and typically charged for the Claimed Product during the period for which the Documentary Support Claimant paid for the Product , and, if available, the total amount of all payments the Documentary Support Claimant made in connection with that Product. Alternatively, Defendant shall have the option of approving payment of the amount sought in the Request Form
(d) Using the information provided by the Documentary Support Claimant and Trilegiant as set forth above, the Settlement Administrator hired by Trilegiant in accordance with Paragraph 17 shall review the Request Forms and applicable documentation and determine, in accordance with this Agreement, whether and in what amount each claim should be allowed, subject to review by the Court as set forth below.
(e) Request Forms that do not meet the above submission requirements may be rejected. Prior to rejection of a Request Form, the Settlement Administrator shall notify Class Counsel and Trilegiant's counsel of the deficiencies in the Request Form. Class .Counsel shall have the right, but not the obligation, to direct the Settlement Administrator to waive such deficiencies if Counsel reasonably deems them to be formal or technical defects in the Request Form, and in the interests of achieving substantial justice, after first conferring with Trilegiant's counsel. If the Parties are unable to agree on whether a waiver should be provided, either party may petition the Court for appropriate relief. If Class Counsel does not direct the Settlement Administrator to waive a deficiency, then the Settlement Administrator shall then communicate with the submitting Settlement Class Member in an effort to remedy the curable deficiencies in the Request Form. The Settlement Class Member shall have at least ten (10) days but no greater than sixty (60) days from the date the Settlement Administrator communicates with the Settlement Class Member to remedy the curable deficiencies in the Request Form in the manner specified by the Settlement Administrator.
(f) Trilegiant shall also be allowed to audit and challenge any claims made under this Agreement and to verify independently any and all information provided on the Request Form to ensure consistency with Trilegiant's records. Following such audit, Trilegiant may propose that the Settlement Administrator reject a Request Form on the grounds that the person or entity that submitted the Request Form never purchased or was charged for a Product , or the Request Form contains false or fraudulent information. In such event, Trilegiant will so advise Class Counsel and the Settlement Administrator. The Settlement Administrator shall notify, in a timely fashion and in writing, each Settlement Class Member whose Request Form Trilegiant proposes to reject in whole or in part setting forth the reasons why, and shall indicate in such notice that the Settlement Class Member whose claim is to be rejected has the right to a review by the Court if the Settlement Class Member so desires and complies with the requirements of subparagraph (i) below,
(g) Furthermore, if Trilegiant provides documentation that establishes to Class Counsel's reasonable satisfaction that a Documentary Support Claimant used or received a substantive membership benefit from membership in a Product for which the person is making a Documentary Support claim ( e.g., the Documentary Support Claimant received a free or low-cost towing service through an AutoVantage membership), then the Settlement Administrator shall reject the person's Documentary Support claim for that Product in its entirety.
(h) After all Settlement Class Members have been given an opportunity to remedy any curable deficiencies in their Request Forms, the Settlement Administrator shall notify, in a timely fashion and in writing, each Settlement Class Member whose Request Form the Settlement Administrator proposes to reject in whole or in part, setting forth the reasons why, and shall indicate in such notice that the Settlement Class Member whose claim is to be rejected has the right to accept a Self-Certification payment or obtain a review by the Court if the Settlement Class Member so desires and complies with the requirements of subparagraph (i) below.
(i) If any Settlement Class Member whose claim has been rejected in whole or in part desires to contest such rejection, the Settlement Class Member must, within twenty (20) days after the date of mailing of the notice required in subparagraph (h) above, serve on the Settlement Administrator a notice and statement of reasons indicating the Settlement Class Member's grounds for contesting the rejection along with any supporting documentation, and requesting a review thereof by the Court. If the dispute concerning the claim cannot be otherwise resolved, Class Counsel shall thereafter present the Settlement Class Member's notice and statement of contest to the Court for review and decision. As a convenience to the Parties and the Court, Class Counsel may combine Settlement Class Members' notices and statements of contest into a single submission, or series of submissions, for the Court's review and decision.
6.6 Limitation on Total Cash Payments. Notwithstanding anything to the contrary herein, Trilegiant will, under no circumstances, be required to make aggregate cash payments to Settlement Class Members pursuant to Paragraphs 6.1 and 6.2 (or otherwise under this Agreement) in excess of twenty-five million dollars ($25,000,000). In the event that claims of Settlement Class Members made pursuant to Paragraphs 6.1 and 6.2 would otherwise require Trilegiant to make aggregate cash payments in excess of twenty-five million dollars ($25,000,000), then Trilegiant will make a cash payment of twenty-five million dollars ($25,000,000), and the Settlement Administrator will reduce . proportionately the cash payments to each of the Settlement Class Members so that the aggregate of such cash payments does not exceed twenty-five million dollars ($25,000,000).
6.7 Undistributed Settlement Funds. Any undistributed settlement funds remaining after aggregate cash payments to Settlement Class Members pursuant to Paragraphs 6.1 and 6.2 have been made will be retained by Trilegiant as partial reimbursement for the costs of Notice, Attorneys' Fees and related settlement and administrative expenses.
6.8 Distribution of and Terms Applicable to Cash Payments. Not later than ninety (90) days after the Effective Date, Trilegiant shall begin providing the above-referenced benefits. Each Settlement Class Member is responsible for notifying Trilegiant, or the Settlement Administrator, as applicable, of a change in address, telephone number, or name. Trilegiant may hire one or more vendors to help administer the Settlement.
6.9 Distribution of Funds: Checks Not Cashed Within Six (6) Months. If a Settlement Class Member receives a Cash Payment and the check is not cashed within six (6) months, it shall be null and void and there shall be no further obligation to make payment to such Settlement Class Member. Such funds shall revert to Trilegiant. Trilegiant will attempt to re-mail any checks that are returned to it by the U.S. Postal Service. All checks sent to Settlement Class Members by Trilegiant that remain undeliverable shall also revert to Trilegiant.
7. Charitable Contribution. As a further benefit to the Settlement Class, Trilegiant has agreed to make a charitable contribution not to exceed one hundred thousand dollars ($100,000) to one or more charitable organizations qualified under Internal Revenue Code Section 501(c)(3). The charity or charities selected by the Parties to receive such contribution(s) shall be approved by the Court. The donation shall be made within one-hundred twenty (120) days of the Effective Date.
8. Programmatic or Affirmative Relief. All of the Affirmative Relief contemplated by this Settlement is expressly contingent upon the proposed Settlement receiving the Court's final approval, and the Court entering a Final Order as defined in Paragraph 1.10 of this Agreement. Defendant shall implement the following changes for a term of at least three (3) years from the Effective Date:
8.1 Trilegiant agrees that all Fulfillment Materials will be sent by U.S. Mail or another reliable means within four (4) to five (5) weeks of the recorded date on which the consumer provides his or her Express Consent to purchase or enroll in a Product. The Fulfillment Materials will reasonably inform the consumer in clear and conspicuous language in the welcome letter accompanying the Fulfillment Materials that the consumer has enrolled in the Product (which shall be identified by name), that a Membership Charge will automatically be charged to the consumer (and if it is subject to automatic renewal, that the membership will automatically renew unless the consumer cancels the membership), and will also provide an explanation of the cancellation procedures and a toll-free telephone number that the consumer can call to cancel the membership.
8.2 Trilegiant agrees that it will maintain a record of each consumer's Express Consent to purchase or enroll in a Product for a period of no less than twenty-four (24) months from the time of the consumer's Express Consent to purchase or enroll in a Product.
8.3 The Parties recognize that compliance with the terms of this Agreement, and with the Affirmative Relief in particular, may require the modification of computer systems, customer materials, and business methods, and that it could take several months from the Effective Date for Trilegiant to be in full or substantial compliance with the Affirmative Relief provisions of this Agreement. In that regard, the Parties have agreed that Trilegiant shall implement the Affirmative Relief described above as soon as is reasonably practicable, and no later than within six (6) months of the Effective Date. Notwithstanding the foregoing, all of the references to time periods with respect to completing the Affirmative Relief shall be suspended in their entirety upon any force majeure, namely, any causes beyond Trilegiant's control, including, without limitation, acts of God, fires, earthquakes, acts of terror, acts of war (whether declared or undeclared), or intervention of any governmental authority. Specifically, upon any force majeure, such time periods shall be extended by the longer of either thirty (30) days or a reasonable time following consultation between Class Counsel and counsel for Trilegiant.
8.4 The Court shall retain jurisdiction of the Action for the purpose of interpretation of, compliance with and enforcement of this Agreement, including enforcement of the Affirmative Relief herein.
8.5 Nothing in this Settlement or Settlement Agreement shall prevent Defendant from complying with the law as it may exist now or in the future, or from making future changes to their computers and computer systems and business practices consistent with applicable statutes, statutory amendments, exemptions, regulations or case law precedent. Furthermore, nothing in this Settlement Agreement shall prevent Defendant from complying with its obligations under state and federal law.
9. Cessation of Litigation Activity. Immediately upon execution of this Agreement, Class Plaintiffs, Class Counsel, Additional Class Counsel, and Trilegiant agree to cease all litigation activity in the Action (other than any activity to implement and/or enforce this Settlement Agreement) and in the Related Actions (other than to dismiss the Related Actions), and to request the Court (and the Courts in the Related Actions) to stay all motions or other pre-trial matters and to continue any hearing or trial settings until each of the conditions precedent to the Settling Parties' obligations to proceed to consummate the Settlement provided for herein has been satisfied or waived, The Related Actions shall be dismissed without prejudice pending approval of the Settlement.
10. Class Certification. The Court's certification of the Settlement Class shall not be deemed to be the adjudication of any fact or issue for any purpose other than the accomplishment of the settlement provisions set forth herein and shall not be considered as law of the case, res judicata, or collateral estoppel in this or any other proceeding unless the Settlement receives final approval and the Final Order approving the terms of this Settlement Agreement are entered. In the event the Settlement provided for herein is not accomplished according to all the terms of this Agreement, the Court's certification order shall be null and void and shall be vacated, and thereafter no class will remain certified other than the Class certified by the Court on August 10, 2004; provided that, thereafter Class Plaintiffs, Class Counsel, and Additional Class Counsel may seek certification of a new class in the Action or Related Actions, and Trilegiant may oppose such certification on any grounds, as described below, or seek to decertify the Class that was certified by the Court in the Action on August 10, 2004, on any grounds. The Action and Related Actions for all purposes will revert to their status as of February 7, 2008.
11. Application for Attorneys' Fees and Expenses. Class Counsel and Additional Class Counsel will apply to the Court for an aggregate award of attorneys' fees and actual expenses (including their court costs) in a total amount not to exceed eight million dollars ($8,000,000). Defendant will not oppose Class Counsel and Additional Class Counsel's application for an award of up to $8 million. Class Counsel and Additional Class Counsel agree not to seek or accept an amount of fees and expenses in excess of $8 million. Subject to Court approval, Trilegiant will pay or cause to be paid to Class Counsel and Additional Class Counsel such fees and expenses as may be awarded by the Court, up to a maximum of $8 million. Any fees and expenses awarded to Class Counsel and Additional Class Counsel shall be paid separately from any monetary relief provided to Settlement Class Members pursuant to Paragraph 6, charitable contributions payable under Paragraph 7, costs of administration as provided in Paragraph 5.3, and any Incentive Awards awarded by the Court pursuant to Paragraph 12. Any fees and expenses awarded to Class Counsel and Additional Counsel shall be paid within thirty (30) days after the Effective Date, or in the event the Court has not yet awarded attorneys' fees as of the Effective Date, within thirty (30) days of such award.
The fees and expenses represent all of the fees, expenses, and court costs Trilegiant agrees to pay, if awarded by the Court, in connection with the Settlement to any Settlement Class Member or their counsel irrespective of the counsel making the application. Trilegiant shall not be liable for any further fees and expenses or any claim by any counsel or Settlement Class Member for additional fees or expenses relating to the allegations forming the basis of the Action.
In the event the Settlement is not finally approved, Trilegiant is under no obligation to pay any of Class Counsel or Additional Class Counsel's fees and expenses.
In the event of an appeal, Trilegiant retains the right to proceed with the Settlement, or, at its option, escrow the monies to be paid to the Settlement Class and to the attorneys in separate accounts, in a manner to be approved by the Court, with interest accruing for the benefit of the Settlement Class, Class Counsel and Additional Class Counsel.
Notwithstanding any provision of this Agreement to the contrary, all payments of fees and expenses to Class Counsel and Additional Class Counsel contemplated by this Agreement and/or ordered by the Court shall, at Trilegiant's election and in Trilegiant's sole discretion, be paid pursuant to the Escrow Agreement between (among others) Trilegiant, Class Counsel, and Additional Class Counsel, dated December 11, 2007.
12, Incentive Awards. Class Counsel and Additional Class Counsel will also apply to the Court for a class representative incentive award to each Class Plaintiff in the Action and Related Actions (“Incentive Award Application”). The Incentive Award Application will seek an incentive award of not more than $10,000 to Carlene Pederson, $6,000 each to Heather Nordberg, William Smith, and Julie Abshire, and $3,000 each to Thomas Stackhouse, Richard H. Schnickel, Virginia B. Schnickel, and Stephen W. Power. Defendant agrees not to oppose, directly or indirectly, any Incentive Award Application seeking no more than those amounts. Any Incentive Awards awarded to Class Plaintiffs shall be paid by Trilegiant separately from any monetary relief provided to Settlement Class members pursuant to Paragraph 6, charitable contributions payable under Paragraph 7, costs of administration as provided in Paragraph 5.3, and any attorneys' fees and expenses awarded by the Court pursuant to Paragraph 11. Any Incentive Awards awarded to Class Plaintiffs shall be paid by Trilegiant within thirty (30) days after the Effective Date.
13. Dismissal. Within twenty (20) days following the Court's entry of an order granting preliminary approval of the settlement, Class Plaintiffs, Class Counsel and Additional Class Counsel shall move for conditional dismissal of any pending Related Actions and said conditional dismissal shall become final upon the Effective Date. Upon the Effective Date, the Class Plaintiffs, Class Counsel and Additional Class Counsel shall move to dismiss the Action and any Related Actions still pending with prejudice.
14. Release of Released Persons. Upon the Effective Date, for and in consideration of the terms and undertakings herein, the sufficiency and fairness of which are acknowledged, all members of the Settlement Class who have not excluded themselves from the Settlement Class will release the Released Persons (as defined in Paragraph 1.19) from all claims relating to the marketing, sale and/or purchase of a Product or the provision of a Product by the Released Persons, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated that, as of the date that the final judgment is entered: (i) arise out of or are related in any way to any or all of the acts, omissions, facts, matters, transactions, or occurrences that were directly or indirectly alleged, asserted, described, set forth, or referred to in the Action (including but not limited to claims for alleged violations of the ICFA and the consumer fraud statutes of the fifty states) or the Related Actions; (ii) arising from or based on the allegations, transactions, facts, matters, occurrences, representations, or omissions alleged, involved, set forth, or referred to in the complaints filed in the Action or Related Actions with respect to the marketing, promotion, sale, or purchase of the Products and/or the enrollment of consumers in memberships in the Products ; (iii) that are, were, or could have arisen out of or been related in any way to Defendant's (or any Released Person's) sale, marketing, provision of services, and billing for a Product ; or (iv) any claim that was or could have been asserted against Defendant or any Released Person by the Class Plaintiffs or any member of the Settlement Class in the Action or the Related Actions relating to a Product.
The failure of any Settlement Class Member to claim or obtain any relief made available shall not affect the releases herein. As to any Settlement Class Member who otherwise would be entitled to receive benefits under this Settlement Agreement and who for any reason fails to submit a Request Form by the deadline established by the Court, all rights of such Settlement Class Member to receive benefits in this Action shall lapse and be forfeited. Defendant shall not be required to remit any additional consideration to claiming Settlement Class Members on account of forfeiture by any Settlement Class Member.
Class Plaintiffs and all Settlement Members expressly waive and/or are deemed to waive all rights under California Civil Code Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASES, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
15. Form of Notice to Settlement Class Members.
15.1 Long-Form Notice. The Class Plaintiffs and Trilegiant agree that, if the Court authorizes the Long-Form Notice to be disseminated to the Settlement Class Members as provided for in this Agreement, Trilegiant or the Settlement Administrator, as applicable, will mail the Long-Form Notice substantially in the form of Exhibit A attached hereto, via first class mail to each Settlement Class Member as defined in Paragraph 4 who: (a) according to Trilegiant's computerized membership records system, maintained by Trilegiant in the ordinary course of business, previously contacted Trilegiant and complained that he or she did not consent to or authorize a charge for a Product and, as a result of that contact, terminated their membership in the Product ; or (b) contacted Class Counsel or Additional Class counsel, complained that he or she did not consent to or authorize a charge for a Product , and provided Class Counsel or Additional Class Counsel with a valid mailing address. Trilegiant shall have no obligation to obtain or review any information other than the information in its own computerized membership records system and the information concerning complaining individuals provided by Class Counsel or Additional Class Counsel in making its determination of the Settlement Class Members to whom the Long-Form Notice will be mailed. Prior to the mailing, Trilegiant or the Settlement Administrator, as applicable, will create a list of all' such Settlement Class Members (and provide a copy to Class Counsel) that includes their latest addresses reflected in Trilegiant's or Class Counsel's or Additional Class Counsel's records. Trilegiant will utilize an address refreshing service to obtain the most current available address for each such Settlement Class Member to the extent the address in Trilegiant's or Class Counsel's or Additional Class Counsel's records can be updated. It is agreed, subject to approval of the Court, that there shall be a single mailing to each such Settlement Class Member as set forth herein. Trilegiant shall pay all costs of providing and mailing of the Long-Form Notice, as provided herein.
15.2 Publication Notice. Trilegiant shall be responsible for publishing the Publication Notice substantially in the form attached hereto as Exhibit B between approximately twenty-eight (28) and fifty-five (55) days after the Long-Form Notice has been mailed in accordance with Paragraph 15.1 in the following publications: Parade, USA Weekend, USA Today (two daily editions), TV Guide, People, American Profile, and PR Newswire, in a format and layout appropriate to those publications. Trilegiant shall pay all costs of providing and publishing the Publication Notice, as provided herein.
15.3 Internet Notice. The Settlement Administrator or Trilegiant shall maintain an Internet website that shall include, at a minimum, downloadable copies of the Long-Form Notice, the Published Notice, the Settlement Agreement, and the Request Form.
15.4 No Additional Notice Obligations. It is stipulated and agreed that the foregoing terms with respect to mailing and notice are material conditions precedent to Trilegiant's obligations under this Agreement. If the extent of mailing of notices and manner of publication provided for in this Agreement are not approved by the Court in all material respects, it is understood that Trilegiant will not be obligated to proceed with the Settlement provided for herein.
16. Receipt of Mail. Trilegiant shall be responsible for obtaining a United States Post Office Box for the purpose of receiving Request Forms, requests for exclusion, and objections. Trilegiant shall also be responsible for giving notice of the receipt of any such requests for exclusion or objections by providing complete copies to Class Counsel promptly.
17. Settlement Administration. Trilegiant, upon consultation with Class Counsel, shall select and hire a third-party administrator to perform services to effectuate the terms of this Settlement Agreement (the “Settlement Administrator”). Within thirty (30) days after the Effective Date, and on a monthly basis thereafter until the conclusion of the settlement claims period, Trilegiant and the Settlement Administrator, as applicable, shall provide Class Counsel with a report setting forth the steps undertaken by Trilegiant to discharge its obligations under this Agreement, and the activities performed by the Settlement Administrator relating to the administration of the terms of this Settlement Agreement. Class Counsel, upon request, may inspect the books and records relating to the administration of the terms of this Settlement Agreement.
18. Court Submission. Class Counsel, Additional Class Counsel, and Trilegiant's counsel will submit this Settlement Agreement and the exhibits hereto, along with such other supporting papers as may be appropriate, to the Court for preliminary approval of this Settlement Agreement. If the Court declines to grant preliminary approval of this Settlement Agreement and to order notice of hearing with respect to the proposed Settlement Class, or if the Court declines to grant final approval to the foregoing after such notice and hearing, this Settlement Agreement will terminate as soon as the Court enters an order unconditionally and finally adjudicating that this Settlement Agreement will not be approved, In the event the Court grants preliminary approval of this Settlement Agreement, the parties will request that the Court enter a scheduling order setting the dates by which Class Members must opt out of the Settlement, submit Request Forms, and file any objections, as well as schedule the final fairness hearing in this matter.
19. Final Judgment. The Settling Parties agree that the Settlement is expressly conditioned upon dismissal with prejudice of the Action and entry of a Final Order as defined in Paragraph 1.10 of this Agreement. The Settling Parties will jointly submit a proposed Final Order prior to the fairness hearing.
20. Defendant's Right to Set Aside Settlement. Trilegiant shall have the right to set aside or rescind this Agreement in the good faith exercise of its discretion, if any of the following events occur:
(a) Opt-Outs. The total number of Settlement Class Members who opt out of the Settlement exceeds an amount equal to two-tenths of a percent (2/10%) of the number of Settlement Class Members to whom the Long-Form Notice was mailed by U.S. Mail pursuant to Paragraph 15,1 of this Agreement,
(b) Objection(s) to Settlement Sustained. If any objections to the Settlement are sustained;
(c) Modification(s) by the Court. If there are any modifications to this Agreement by the Court, by any other court, or by any tribunal, agency, entity, or person.
In the event Trilegiant exercises its discretion to set aside the Settlement, this Agreement and all negotiations, proceedings, documents prepared, and statements made in connection herewith shall be without prejudice to the Settling Parties, shall not be deemed or construed to be an admission or confession by the Settling Parties and the Released Persons of any fact, matter, or proposition of law, and shall not be used or admissible in any manner for any purpose, and all parties to the Action and the Released Actions shall stand in the same position as existed on February 7, 2008, and as if this Agreement had not been negotiated, made, or filed with the Court. In such event, the parties to the Action shall move the Court to vacate any and all orders entered by the Court pursuant to the provisions of this Agreement, including any order certifying the Class for settlement purposes.
21. Integration Clause. This Settlement Agreement contains a full, complete, and integrated statement of each and every term and provision agreed to by and among the Settling Parties and supersedes any prior writings or agreements (written or oral) between or among the Settling Parties, which prior agreements may no longer be relied upon for any purpose. This Settlement Agreement shall not be orally modified in any respect and can be modified only by the written agreement of the Settling Parties. In the event a dispute arises between the Settling Parties over the meaning or intent of this Agreement, the Settling Parties agree that prior drafts, notes, memoranda, discussions or any other oral communications or documents regarding the negotiations, meaning or intent of this Agreement shall not be offered or admitted into evidence. Class Plaintiffs, Class Counsel, and Additional Class Counsel acknowledge that, in entering into this Settlement Agreement, they have not relied upon any representations, statements, actions, or inaction by Defendant or its counsel that are not expressly set forth herein.
22. Headings. Headings contained in this Agreement are for convenience of reference only and are not intended to alter or vary the construction and meaning of this Agreement.
23. Governing Law. The contractual terms of this Agreement shall be interpreted and enforced in accordance with the substantive law of the State of Illinois.
24.' Arbitration. By participating in this Settlement, some members of the Settlement Class are waiving their existing rights to pursue individual arbitrations against the Released Persons for the Released Claims as defined in Paragraph 1.18. By participating in the Settlement, neither the Released Persons nor members of the Settlement Class are waiving their rights under the various membership agreements to pursue arbitrations involving claims other than the Released Claims or from seeking to compel arbitration of similar claims that may arise in the future.
25. Mutual Interpretation. The Settling Parties agree and stipulate that this Agreement was negotiated on an “arms'-length” basis between parties of equal bargaining power. This Agreement has been drafted jointly by Class Counsel, Additional Class Counsel, and counsel for Defendant. Accordingly, this Agreement shall be neutral, and no ambiguity shall be construed in favor of or against any of the Settling Parties.
26. Notice. Except as otherwise specifically provided herein, whenever any written notice is required by the terms of this Agreement, it shall be deemed effective on the date received, addressed as follows:
If to the Class Plaintiffs or Settlement Class, to:
Paul M. Weiss
Eric C. Brunick
FREED & WEISS LLC
111 West Washington Street, Suite 1331
Chicago, Illinois 60602
Bradley M. Lakin
Robert W. Schmieder II
THE LAKIN LAW FIRM, P.C.
300 Evans Avenue
P.O. Box 229
Wood River, IL 62095-0229
Daniel C. Girard
Girard Gibbs LLP
601 California Street, Suite 1400
San Francisco, CA 94108
If to Defendant to:
Kenneth M. Kliebard, Esq.
Todd L. McLawhorn, Esq.
321 North Clark Street, Suite 3400
Chicago, Illinois 60610
Todd Siegel, Esq.
Executive Vice President & General Counsel
100 Connecticut Avenue
Norwalk, CT 06850
27. Counterpart Execution. This Agreement may be executed in any number of counterparts and will be binding when it has been executed and delivered by the last signatory hereto to execute a counterpart. A facsimile signature shall be deemed to constitute an original signature for purposes of this Agreement. After execution of counterparts by each designated signatory, Defendant agrees to furnish each party with a composite conformed copy of this Agreement reflecting all counterpart signatures.
28. Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the Settling Parties hereof and their representatives, heirs, successors, and assigns.
29. Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions if the Settling Parties and their counsel mutually elect by written stipulation to be filed with the Court within twenty (20) days to proceed as if such invalid, illegal, or unenforceable provisions had never been included in this Agreement.
30. Continuing Jurisdiction. Without affecting the finality of the Final Order, the Court shall retain continuing jurisdiction over the Action and the Settling Parties, including all members of the Settlement Class, the administration arid enforcement of the Settlement, and the benefits to the Settlement Class hereunder, including for such purposes as supervising the implementation, enforcement, construction, and interpretation of this Settlement Agreement, the order preliminarily approving the Settlement, and the Final Judgment, and hearing and determining an application by Class Counsel and Additional Class Counsel for an award of attorneys' fees and reimbursement of costs and expenses. Any dispute or controversies arising with respect to the interpretation, enforcement, or implementation of this Settlement Agreement shall be presented by motion to the Court.
The. undersigned parties have executed this Agreement as of the date first above written,
Paul M. Weiss
Eric C. Brunick
FREED & WEISS LLC
111 West Washington Street
Chicago, IL 60602
Bradley M. Lakin
Robert W. Schmieder II
THE LAKIN LAW FIRM, P.C.
300 Evans Avenue
P.O. Box 229
Wood River, IL 62095-0029
Daniel C. Girard
Girard Gibbs LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Additional Class Counsel
Kenneth M. Kliebard
Todd L. McLawhorn
321 North Clark Street, Suite 3400
Larry E. Hepler
Wayne D. Skigen
BURROUGHS, HEPLER, BROOM, MACDONALD, HEBRANK & TRUE
Two Mark Twain Plaza
103 West Vandalia Street, Suite 300
Edwardsville, IL 62025
Counsel for Defendant, Trilegiant Corporation