Motion 10 - product liability motion for class action settlement agreement

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Paul M. Weiss, Eric C. Brunick, Freed & Weiss LLC, 111 West Washington Street, Suite 1331, Chicago, Illinois 60602, (312) 220-0000, Class Counsel.

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, (618) 254-1127, Class Counsel.

Daniel C. Girard, Girard Gibbs LLP, 601 California Street, Suite 1400, San Francisco, CA 94108, (415) 981-4800, Additional Class Counsel.

Kenneth M. Kliebard, Todd L. McLawhorn, Howrey LLP, 321 North Clark Street, Suite 3400, Chicago,IL 60610, (312) 595-2255, 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, (618) 656-0184, Counsel for Defendant, Trilegiant Corporation.

  • I. RECITALS
  • II. DEFINITIONS
  • 1.Key Definitions
  • 1.1.“Action or Litigation”
  • 1.2.“Additional Class Counsel”
  • 1.3.“Affirmative Relief'
  • 1.4.“Class Counsel”
  • 1.5.“Class Period”
  • 1.6.“Class Plaintiffs”
  • 1.7.“Court”
  • 1.8.“Effective Date”
  • 1.9,“Express Consent”
  • 1.10.“Final Order” or “Final Settlement”.
  • 1.11.“Fulfillment Materials”
  • 1.12.“Long-Form Notice”
  • 1.13.“Marketing Partner”
  • 1.14.“Membership Charge”
  • 1.15.Product” or “Products
  • 1.16.“Publication Notice”
  • 1.17.“Related Actions”
  • 1.18.“Released Claims” .
  • 1.19.“Released Persons”
  • 1.20.“Settlement Class”
  • 1.21.“Settlement Class Counsel” or “Class Counsel”
  • 1.22.“Settling Parties”
  • 1.23.“Trial Offer” ... ,
  • III. TERMS AND CONDITIONS OF SETTLEMENT
  • 2.Benefit to Plaintiffs
  • 3.N o Admission of Liability
  • 4.Class Definition
  • 5.Defendant's Obligations
  • 5.1.Cash Payments to Settlement Class Members
  • 5.2.Programmatic or Affirmative Relief
  • 5.3.Costs of Administration
  • 5.4.Charitable Contribution
  • 5.5.Attorneys' Fees and Incentive Awards
  • 6.Cash Payments to Settlement Class Members.,
  • 6.1.Self-Certification Category
  • 6,2.Documentary Support Category
  • 6.3.Examples Payments to Documentary Support Payments
  • 6.4.Deductions for Prior Refunds Applicable to All Payments
  • 6.5.Request Form Requirement and Claim Processing Procedure
  • 6,6.Limitation on Total Cash Payments
  • 6.7.Undistributed Settlement Funds
  • 6.8.Distribution of and Terms Applicable to Cash Payments
  • 6.9.Distribution of Funds: Checks Not Cashed Within Six (6) Months
  • 7 .Charitable Contribution
  • 8.Programmatic or Affirmative Relief
  • 9.Cessation of Litigation Activity
  • 10.Class Certification
  • 11.Application for Attorneys' Fees and Expenses
  • 12.Incentive Awards
  • 13.Dismissal
  • 14.Release of Released Persons
  • 15.Form of Notice to Settlement Class Members
  • 15.1.Long-Form Notice.
  • 15,2,Publication Notice
  • 15.3...Internet Notice
  • 15.4.No Additional Notice Obligations
  • 16.Receipt of Mail
  • 17.Settlement Administration
  • 18.Court Submission
  • 19.Final Judgment
  • 20.Defendant's Right to Set Aside Settlement.
  • 21.Integration Clause
  • 22.Headings
  • 23.Governing Law
  • 24.Arbitration
  • 25.Mutual Interpretation
  • 26.Notice
  • 27.Counterpart Execution
  • 28.Binding Upon Successors
  • 29.. Severability
  • 30.Continuing Jurisdiction
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This Class Action Settlement Agreement (“Agreement” or “Settlement Agreement”) is entered into as of February 7, 2008, and is between and among Defendant, Trilegiant Corporation (“Trilegiant” or “Defendant”), on the one hand, and the Class Plaintiffs (as defined in Paragraph 1.6), Carlene N. Pederson, Thomas Stackhouse, Heather Nordberg, William Smith, Julie Abshire, Richard H. Schnickel, Virginia B. Schnickel and Stephen W. Power, on behalf of themselves and the Settlement Class (as defined below in Paragraphs 1.20 and 4), on the other hand. This Settlement Agreement memorializes the settlement between the parties (the “Settlement”).

I. RECITALS

A. On July 10, 2001, Plaintiff Carlene Pederson filed a class complaint against Cendant Corporation (“Cendant”) and Fleet Boston Financial Corporation (“Fleet”), now captioned as Pederson v. Trilegiant Corporation, No. 01 L 1126 (the “Action” or the “Lawsuit”). The complaint, as later amended, substituted Trilegiant as the sole Defendant and alleged a single claim of statutory fraud by omission under the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS §§ 505/1 - 505/12. The Lawsuit is brought individually and on behalf of a putative class of persons and entities who were charged for Trilegiant products without their authorization or consent. On June 28, 2005, a fifth amended complaint was filed in the Action, adding Thomas Stackhouse as an additional named Plaintiff.

B. On August 10, 2004, the Court issued an order certifying the following nationwide class in the Action:

All persons and entities who had unsolicited charges for Trilegiant “ products ” posted to their credit card, phone, bank or mortgage accounts by defendant. The term “ products ” means those products including but not limited to Privacy Guard, Credit Alert, Auto Vantage, Travelers Advantage, Buyers Advantage, Complete Home, Digital Protection Plus, Great Fun, Great Optics, HealthSaver, Hot Line, Just for Me, National Card Registry, NetMarket.com, Shoppers Advantage, Travel ER, et al.

Excluded from the certified class were employees of Trilegiant and members of the Illinois state court judiciary and their immediate families.

C, On August 9, 2005, a putative class action was filed by plaintiffs Heather Nordberg, William Smith and Julie Abshire in the United States District Court for the Northern District of California, captioned Nordberg v. Trilegiant Corporation, No. C-05-3246-MHP (“Nordberg Case”). The Nordberg Case alleges that Trilegiant markets and sells its membership products in an unfair and deceptive manner and charges consumers for memberships regardless of whether they have authorized the charges, makes cancellation difficult, and fails to provide consumers with information needed regarding the memberships. The Nordberg Case asserts federal claims under the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., on behalf of a nationwide plaintiff class, and state law claims under California statutory and common law on behalf of a subclass of California residents. Plaintiffs in the Nordberg Case are represented by Additional Class Counsel (as defined below in Paragraph 1.2). Plaintiffs in the Nordberg Case have agreed to dismiss their lawsuit without prejudice pending approval of the Pederson Settlement and will dismiss the Nordberg Case with prejudice once this Settlement becomes a Final Settlement.

D. On July 20, 2006, a putative class action was filed by Richard H. and Virginia B. Schnickel in the New Jersey Superior Court for Middlesex County, captioned Schnickel v. Chase Manhattan Mortgage Corporation, Inc., No, MID-L-5931-06 (“Schnickel Case”). The Schnickel Case arises from a program through which consumers automatically become enrolled in Trilegiant's Auto Vantage membership program when they deposit $2.50 “rebate” or “refund” checks in their bank accounts. Plaintiffs in the Schnickel Case are represented by Class Counsel and other counsel (as defined below in Paragraph 1.4). On September 6, 2006, Chase Manhattan Mortgage Corporation removed theSchnickel Case to federal court, alleging federal diversity jurisdiction under the Class Action Fairness Act (“CAFA”) and 28 U.S.C. §§ 1441 and 1453. Plaintiffs in the Schnickel Case have agreed to dismiss their lawsuit without prejudice pending approval of the Pederson Settlement, and will dismiss the Schnickel Case with prejudice once this Settlement becomes a Final Settlement.

E. On July 26, 2006, a putative class action was filed by Stephen W. Power in the Circuit Court of Cook County, Illinois, Chancery Division, captioned Power v. GMAC Mortgage Corporation, No. 06 CH 14917 (“Power Case”). ThePower Case asserts claims against GMAC Mortgage Corporation and Home Depot U.S.A. based on the sale and marketing of certain membership services to GMAC mortgage customers by Trilegiant. Plaintiff in the Power Case is represented by Class Counsel. On September 14, 2006, GMAC Mortgage Corporation removed the Power Case to federal court, alleging federal diversity jurisdiction under CAFA and 28 U.S.C. §§ 1441 and 1453. The Power lawsuit was previously dismissed without prejudice pending approval' of the Pederson Settlement, and will be dismissed with prejudice once this Settlement becomes a Final Settlement.

F. For purposes of this Agreement and Settlement, and as set forth in Paragraph 1.17 of this Agreement, theNordberg Case, the Schnickel Case and the Power Case shall be referred to collectively as the “Related Actions.”

G. For purposes of this Agreement and Settlement, and as set forth in Paragraph 1.6 of this Agreement, Plaintiffs Carlene N. Pederson, Thomas Stackhouse, Heather Nordberg, William Smith, Julie Abshire, Richard H. Schnickel, Virginia B. Schnickel and Stephen W. Power shall be. referred to collectively as “Class Plaintiffs.”

H. The Class Plaintiffs have contended and continue to contend that all allegations and claims asserted in the Action and Related Actions are meritorious. Class Counsel and Additional Class Counsel have collectively conducted several years of factual investigation and discovery into the matters alleged in this Action and the Related Actions. Among other things, Class Counsel and Additional Class Counsel have obtained tens of thousands of pages of documents in discovery from Trilegiant and third parties. One of the named plaintiffs in the Action was deposed by Trilegiant, as was her husband; she was required to expend significant time attending to discovery and evidentiary matters in the Action. In addition, Additional Class Counsel has taken depositions in the Nordberg Case, and one of the named plaintiffs in the Nordberg Case has been deposed by Trilegiant. Additionally, Class Counsel and Additional Class Counsel have researched and thoroughly analyzed the legal issues raised by the Action and Related Actions.

I, Trilegiant believes that the Class Plaintiffs' factual and legal allegations are incorrect and specifically denies all liability to the Class Plaintiffs and the Settlement Class. Trilegiant has raised a number of defenses to the claims asserted and will vigorously defend this Litigation in the event the Settlement is not approved by the Court.

J. After extensive litigation and discovery, Trilegiant and the Class Plaintiffs, on their own behalf and on behalf of the Settlement Class as defined herein, have agreed to settle the Action to avoid the risk and uncertainty inherent in any litigation. To that end, the parties have agreed on a provisional Settlement Class. Accordingly, as soon as practicable after the execution of this Agreement, Class Plaintiffs will move the Court to certify a Settlement Class consisting of all persons throughout the United States who had unsolicited or unauthorized charges for a Trilegiant membership and did not previously receive a full refund of those payments, as determined by Trilegiant's records. Class Plaintiffs will also seek to have Carlene N. Pederson, Thomas Stackhouse, Heather Nordberg, William Smith, Julie Abshire, Richard H. Schnickel, Virginia B. Schnickel, and Stephen W. Power appointed as the representatives of the Settlement Class, and Paul M. Weiss and Eric C. Brunick of FREED & WEISS LLC, 111 West Washington Street, Suite 1331, Chicago, Illinois 60602, and Bradley M. Lakin and Robert W. Schmieder II of THE LAKIN LAW FIRM, P.C., 300 Evans Avenue, P.O. Box 229, Wood River, IL 62095-0029, appointed as class counsel (“Class Counsel”), and Daniel Girard of GIRARD GIBBS LLP, 601 California Street, Suite 1400, San Francisco, CA 94108, appointed as co-class counsel (“Additional Class Counsel”).

K. Settlement negotiations, including a full-day mediation before an independent mediator (retired United States District Court Judge Nicholas H. Politan), took place between Class Counsel and Trilegiant's counsel. In addition, Class Counsel, Additional Class Counsel, and Trilegiant's Counsel have had in-person settlement meetings and numerous settlement-related telephone calls and conferences. This Settlement Agreement, subject to the approval of the Court, contains all the terms of the Settlement agreed to between Trilegiant and the Class Plaintiffs individually and on behalf of the Settlement Class.

L. Class Counsel and Additional Class Counsel believe that, based on their investigation and analysis, they are in a position to fashion appropriate class relief by settlement with Trilegiant.

M. The parties wish to memorialize the complete and full terms of the Settlement. The parties propose to settle the claims in accordance with the terms, provisions and conditions of this ‘Settlement Agreement as set forth below, which Class Counsel and Additional Class Counsel believe are fair, reasonable and adequate, and beneficial to and in the best interests of Class Plaintiffs and the Settlement Class.

NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Settling Parties hereby agree as follows:

II. DEFINITIONS

1. Key Definitions. The following definitions apply to this Agreement:

1.1 The “Action” or “Litigation” means the civil action captioned Pederson v. Trilegiant Corporation, No. 01 L 1126, as amended, which was filed on July 10, 2001, in the Circuit Court for the Third Circuit, Madison County, Illinois.

1.2 “Additional Class Counsel” means Daniel C. Girard of the law firm GIRARD GIBBS LLP.

1.3 “Affirmative Relief' means the injunctive or quasi-injunctive relief concerning its business and marketing practices that Trilegiant has agreed to as part of this Settlement and as further specified in this Agreement.

1.4 “Class Counsel” means Paul M. Weiss and Eric C. Brunick of FREED & WEISS LLC and Bradley M. Lakin and Robert W. Schmieder II of THE LAKIN LAW FIRM, P.C.

1.5 “Class Period” means the time period from July 10, 1998, until the time this Settlement Agreement receives preliminary approval from the Court.

1.6 “Class Plaintiffs” means the named Plaintiffs in the Action and the Related Actions.

1.7 “Court” means the Circuit Court for the Third Judicial Circuit, Madison County, Illinois.

1.8 The “Effective Date” means the date on which a Final Order (as defined below) is entered by the Court approving this Settlement without modification unless expressly agreed to by Trilegiant and Class Plaintiffs.

1.9 “Express Consent” means a consumer's affirmative act to evidence acceptance of a Membership Charge to the consumer's credit card, debit card, phone, bank, mortgage or other billing account by Trilegiant or a Marketing Partner, either immediately or upon expiration of a Trial Offer of a Product , unless the consumer affirmatively cancels his or her membership.

1.10 “Final Order” or “Final Settlement” means the termination of the Action after the occurrence of each of the following events:

(a) This Settlement Agreement is approved in all respects by the Court; and

(b) An Order and Final Judgment of dismissal with prejudice is entered against Class Plaintiffs and all Settlement Class Members who do not opt out and the time for the filing of any appeals has expired or, if there are appeals, approval of the Settlement and judgment has been affirmed in all respects by the appellate court of last resort to which such appeals have been taken and such affirmances are no longer subject to further appeal or review.

1.11 “Fulfillment Materials” means materials such as brochures, pamphlets, and the like that include the terms and conditions of membership in a Product , sent by Defendant to a consumer after the consumer has given Express Consent to purchase a Product.

1.12 “Long-Form Notice” means the notice of Settlement substantially in the form attached as Exhibit A and approved by the Court that provides the Class (as defined in Paragraph 4) with such notice as required by 735

1.13 “Marketing Partner” means any entity (or any predecessors, successors in interest of any such entity and any parent company, subsidiary, or affiliate of such entity) with which Trilegiant has (or previously had) a contractual relationship whereby the entity: (i) markets Products to customers of that entity; (ii) posts a link to any of Trilegiant's Internet websites on the Marketing Partner's website and receives a commission (or other compensation) for driving traffic to Trilegiant's website; (iii) advertises, promotes, markets, provides, sells, or participates in the sale of any Product (including but not limited to providing, directly or indirectly, gift cards or incentives for use in promoting Products ); (iv) offers a private label or co-branded version of any Product ; (v) provides Trilegiant with customer lists or other information concerning prospective purchasers of Products ; or (vi) bills or charges individuals or entities for a Membership Charge. “Marketing Partner” includes but is not limited to Chase Manhattan Mortgage Corporation, Inc. (as well as its parent company, JPMorgan Chase & Co., and all of their present or former subsidiaries, divisions, parent companies, affiliates, officers, directors, employees, trustees, principals, attorneys, agents, representatives, sales associates, distributors, vendors, shareholders, insurers, partners, joint venturers, and business units), GMAC Mortgage Corporation (as well as its parent company, GMAC LLC, and all of their present or former subsidiaries, divisions, parent companies, affiliates, officers, directors, employees, trustees, principals, attorneys, agents, representatives, sales associates, distributors, vendors, shareholders, insurers, partners, joint venturers, and business units), and The Home Depot U.S.A. (as well as its parent company, Home Depot International, Inc., and all of their present or former subsidiaries, divisions, parent companies, affiliates, officers, directors, employees, trustees, principals, attorneys, agents, representatives, sales associates, distributors, vendors, shareholders, insurers, partners, joint venturers, and business units).

1.14 “Membership Charge” means any amount charged to a person or entity for the purchase of a Product.

1.15 “ Product ” or “ Products ” means any membership program offered by Trilegiant and/or a Marketing Partner during the Class Period to consumers offering products , benefits, goods, or services to members of the program, and for which Trilegiant and/or a Marketing Partner charges a fee or requires that the consumer provide Trilegiant and/or a Marketing Partner with some other form of consideration. “ Products ” includes the following membership goods or services marketed by Trilegiant and/or its Marketing Partners: AOL AutoVantage Gold, AOL Credit Alert, AOL Direct Warehouse, AOL Netmarket, AOL Travelers Advantage, Auto Discount Service, AutoVantage, AutoVantage Enhanced, AutoVantage Gold, AutoVantage Silver, Business Advantage, Buyers Advantage, Chase Traveler, Cheap Tickets Gold, Clever Clubhouse, Compass Identity Safe, CompleteHome, Comp-u-store Online, Credentials, Credit Alert, Credit Card Advantages, Credit Card Guardian, Credit Card Protection, Creditline, CreditUpdate, Deals & Destinations, Digital Protection Plan, Dinner on Us Club, Discount Dining Club, Discount Shopping Club, Discount Travel Club, Drivers Club, Drivers Advantage, Elite Excursions, Enhanced Hotline, Event Privileges, Everyday Privileges Gold, Everyday Values, Everyday Values Gold, Everything 4 Less, Family Fun Saver, Family Fun Saver Club, Fee Card, First Card AutoVantage, First Card Dining, Great Experiences, Great Fun, Great Fun Cool Extras, Great Options, Healthsaver, Home Shopping Travel Club, Hotline, ID Secure, Identity Secure, Identity Theft Protection, Identity Theft Protection Powered by PrivacyGuard, Interval International Preferred Shopper, Just For Me, Leisure Value Club, MortgageCredits Plus, National Card Registry, National Home Protection Alliance, National Media Purchase, Netmarket, PC SafetyPlus, Pet Privileges, Premier Dining, PrivacyGuard, PrivacySource, PrivacyWatch, ProfitPower, ProPlus, Quality Health Service, SecureAll, Select Identity Theft Protection, Shell Advantages, Shoppers Advantage, Shoppers Advantage Gold, SIMM, Small Business Central, Smart Shopper, Texaco Roadside Assistance, Today's Homeowner Values, Travelers Advantage, Value America Shopper, Versatel Advantage Shopper, Vineyard Direct, VIP Pet Locator, Wallet Security, Wallet Security Plus, and other membership products or services marketed or created with Trilegiant that have the same or substantially the same characteristics of these memberships, however denominated in the marketplace.

1.16 “Publication Notice” means the summary notice of Settlement substantially in the form attached as Exhibit B and approved by the Court that will be published in one or more newspapers and/or magazines to provide the Class (as defined in Paragraph 4) with such notice as required by 735 ILCS 5/2-803,

1.17 “Related Actions” for purposes of this Settlement means the following actions when referred to collectively: (1) Nordberg v. Trilegiant Corporation, filed in the United States District Court for the Northern District of California, Case No. C-05-3246-MHP, on August 9, 2005; (2) Schnickel v. Chase Manhattan Mortgage Corporation, Inc., now pending in United States District Court for the District of New Jersey, Case No. 06-4211; and (3) Power v. GMAC Mortgage Corporation, which was pending in the United States District Court for the Northern District of Illinois, Eastern Division, Case No. 06-CV-04983.

1.18 “Released Claims” means those claims released in Paragraph 14 of this Agreement by the Settlement Class.

1.19 “Released Persons” means Defendant, Trilegiant Corporation, its predecessors and successors in interest, and any of Trilegiant's present or former subsidiaries, divisions, parent companies (including but not limited to its former parent company, Cendant Corporation (now known as Avis Budget Group, Inc.), Affinion Group, Inc., Affinion Group Holdings, LLC, and Affinion Group Holdings, Inc.), affiliates, officers, directors, employees, trustees, principals, attorneys, agents, representatives, sales associates, distributors, vendors, shareholders, insurers and partners, Marketing Partners (as defined herein) (collectively, “Affiliated Parties”), as well as any person acting or purporting to act on its behalf or on behalf of those in privity with Defendant. For avoidance of doubt, “Released Persons” also includes Wyndham Worldwide Corporation, Realogy Corporation, and Travelport, Inc. and their respective Affiliated Parties.

1.20 “Settlement Class” means the class defined in Paragraph 4 of this Agreement but does not include any members of the Class who opt out of the Class in accordance with the procedures specified herein. “Settlement Class Member” means a member of the Class who does not opt out of the Class in accordance with the procedures set forth herein.

1.21 “Settlement Class Counsel” or “Class Counsel” means Paul M. Weiss and Eric C. Brunick of FREED & WEISS LLC and Bradley M. Lakin and Robert W. Schmieder II of THE LAKIN LAW FIRM, P.C.

1.22 “Settling Parties” means the Class Plaintiffs, all Settlement Class Members who do not exclude themselves from the Settlement, and Trilegiant.

1.23 “Trial Offer” means an offer to a consumer of a membership for a Product for a trial or risk-free period, during which time the consumer generally has the benefits of membership and, before the end of the trial or risk-free period, the consumer can cancel the membership without incurring the customary Membership Charge for the Product.

III. TERMS AND CONDITIONS OF SETTLEMENT

2. Benefit to Plaintiffs. Class Plaintiffs, Class Counsel, and Additional Class Counsel have concluded, under the circumstances and considering the pertinent facts and applicable law, that it is in Class Plaintiffs' best interests and in the best interests of the Settlement Class to enter into this Settlement Agreement to avoid the uncertainties of litigation and to ensure a benefit to Class Plaintiffs and all members of the Settlement Class. Class Plaintiffs, Class Counsel, and Additional Class Counsel consider this Settlement Agreement to be fair, reasonable, and adequate and in the best interests of the members of the Settlement Class.

3. No Admission of Liability. By entering into this Agreement, the Settling Parties agree that Trilegiant and the Released Persons are not admitting any liability to the Class Plaintiffs, the Settlement Class, or any other person or entity, and Trilegiant and the Released Persons expressly deny all such liability. Trilegiant's sole motivation for entering into this Settlement Agreement is to dispose expeditiously of the claims that have been asserted against it and its Marketing Partners in the Action and the Related Actions by settlement and compromise rather than incur the expense and uncertainty of protracted litigation. No portion of this Agreement may be admitted into evidence in any action, except as required to enforce this Agreement and/or to cease or enjoin other litigation.

4. Class Definition. Class Plaintiffs shall propose, and Defendant shall join or not oppose, for settlement purposes only, that the Court certify a Settlement Class under 735 ILCS 5/2-801 and 5/2-802 of the Illinois Code of Civil Procedure, defined as:

All persons and entities who had unsolicited or unauthorized charges for Trilegiant products posted to their credit card, debit card, phone, bank, mortgage or other billing accounts by Trilegiant or a Marketing Partner and who were charged for those products at any time from July 10, 1998 through the date of the Preliminary Approval Order. The term “ Products ” means the membership programs marketed, offered or sold by Trilegiant (or any predecessor in interest) or by any Marketing Partner to consumers offering products , benefits, goods or services to members of the program, and for which Trilegiant and/or a Marketing Partner charges a fee or requires that the consumer provide some other form of consideration. “ Products ” as defined in Paragraph 1.15 includes but is not limited to Privacy Guard, Credit Alert, Auto Vantage, Travelers Advantage, Buyers Advantage, Complete Home, Digital Protection Plus, Great Fun, Great Options, HealthSaver, Hot-Line, Just for Me, National Card Registry, NetMarket.com, Shoppers Advantage, Travel ER, and other membership products or services marketed or created with Trilegiant that have the same or substantially the same characteristics of these memberships, however denominated in the marketplace. Excluded from the Class are persons and entities who previously received a full refund from Trilegiant for all Trilegiant Product charges paid; employees of Trilegiant; members of the Illinois state court judiciary and their immediate families; any individuals who currently have a pending lawsuit against Trilegiant (other than the named plaintiffs in the “Related Actions” as defined herein, who are members of the Settlement Class); and persons or entities who made no payment or whose payment for a product consisted only of a Trial Offer fee.

5, Defendant's Obligations. Trilegiant shall provide the following benefits to the Settlement Class:

5.1 Cash Payments to Settlement Class Members. As described in Paragraph 6 below, each Settlement Class Member will have the opportunity to receive a cash payment ranging from $20.00 to up to three (3) times the annual cost of the Product.

5.2 Programmatic or Affirmative Relief. As described in Paragraph 8 below, each Settlement Class Member will benefit from Trilegiant's agreement that Trilegiant will agree to take certain affirmative measures (the “Affirmative Relief') relating to Trilegiant' s business practices.

5.3 Costs of Administration. In addition to the monetary relief and Affirmative Relief provided herein, Trilegiant shall pay all costs of any Long-Form Notice and Publication Notice relating to this Settlement and the necessary and reasonable costs of administering the processing of claims, disbursement of consideration and other administrative expenses, including, but not limited to, postage charges for mailing the notice, printing costs, telephone charges, and such other charges as may be approved by the parties subject to further approval by the Court. In the event this Agreement receives preliminary but not final approval, and expenses are incurred by Trilegiant, payment of those expenses shall remain the sole obligation of Trilegiant.

5.4 Charitable Contribution. In addition to the monetary and Affirmative Relief provided herein, Trilegiant has agreed to make a charitable contribution, as set forth in Paragraph 7.

5.5 Attorneys' Fees and Incentive Awards. In addition to the monetary and Affirmative Relief provided herein, Trilegiant will pay Class Counsel's and Additional Class Counsel's attorneys' fees and expenses, as set forth in Paragraph 11, and Incentive Awards to Class Plaintiffs, as set forth in Paragraph 12.

6. Cash Payments to Settlement Class Members. Settlement Class Members may make a claim under the Settlement for either a Self-Certification payment or a Documentary Support payment, as described below.

6.1 Self-Certification Category. To make a claim for a Self-Certification payment, a Settlement Class Member must: (1) so indicate on the Request Form that will be made available to Settlement Class Members (the “Request Form”); and (2) sign a statement on the Request Form certifying under penalty of perjury he or she was charged for one or more of the Products without authorization or consent. A Self-Certification payment consists of $20, regardless of how many Products the person was charged for, and regardless of how much the person was charged for the Product (s). Self-Certification Claimants will be informed, on the Request Form, that they may cancel any unwanted Product (s) by calling the applicable phone number in their billing statements or initial membership fulfillment materials. Trilegiant will honor all such cancellation requests in a timely manner.

6.2 Documentary Support Category. To make a claim for a Documentary Support payment, a Settlement Class Member must: (1) so indicate on the Request Form; (2) identify the Product (s) for which he or she is making a claim and for which the Settlement Class Member asserts he or she was charged without authorization or consent; and (3) submit documentation of the amounts that he or she paid or was charged for each Product and for which he or she is making a claim, such as a credit card or debit card statement, telephone bill, mortgage account statement reflecting such a charge, or a cancelled check reflecting payment of such a charge; and (4) sign a statement on the Request Form certifying under penalty of perjury that he or she was charged for such Product (s) without the Settlement Class Member's authorization or consent. Assuming the claim is otherwise valid and timely, for each Product for which the Settlement Class Member provides the required documentation, the Settlement Class Member will be allocated the lesser of: (i) the actual documented amount paid to Defendant for the Product ; or (ii) three times the annual cost of the Product. The aggregate Documentary Support payment assigned to the Settlement Class Member shall consist of the total of all such allocations, If the annual cost of the Product varied during the period the Settlement Class Member held a membership in the Product , the “three times the annual cost of the Product ” amount referred to above will be considered the total membership cost of the Product for the three most recent years established from the documentation submitted by the Settlement Class Member for the Product. Further, to the extent a Documentary Support Claimant's membership has not previously been terminated for the Product (s) for which the Documentary Support Claimant is seeking a Documentary Support payment, the Documentary Support Claimant's membership in said Product will be cancelled no later than two (2) months after Trilegiant's receipt of the Documentary Support Claimant's Request Form and supporting documentation, Trilegiant will use reasonable efforts to honor all cancellation requests in a timely manner consistent with its policies and the applicable membership terms and conditions.

6,3 Examples of Documentary Support Payments. For instance, if the Settlement Class Member submits a valid Documentary Support claim for a single Product with an annual cost of $120 dollars for which the person made ten monthly payments of $10 each, the resulting Documentary Support payment is the actual amount paid, or $100 (as the actual amount paid ($100) is less than three times the $120 annual cost of the Product ($360)). Conversely, if the person submits a valid Documentary Support claim for a single Product for which he or she made five annual payments of $120, the resulting Documentary Support payment is three times the $120 annual cost of the Product , or $360. By way of further illustration, if a Class Member submits a valid Documentary Support claim with annual payments of $40 in year 1, $50 in year 2, $60 in year 3, and $70 in year 4, and the person submits documentation showing he or she made payments totaling $220 for those four years, the resulting Documentary Support payment would be $180 (the total membership cost for the last three years the person was charged).

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Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.
★★★★★
Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own. Ethan Armstrong, Google User
★★★★★
This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you. Daniel Kaim, Avvo User
★★★★★
Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan! Giulia, Avvo User
★★★★★
Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa, Avvo User
★★★★★
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