Case 2:19-cv-00463-RAJ-LRL Document 581-1 Filed 03/11/21 Page 1 of 25 PageID# 20989
`Case 2:19-cv-00463-RAJ-LRL Document 581-1 Filed 03/11/21 Page 1 of 25 Page|D# 20989
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`EXHIBIT A
`EXHIBIT A
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`

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`Case 2:19-cv-00463-RAJ-LRL Document 581-1 Filed 03/11/21 Page 2 of 25 PageID# 20990
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
`
`IN RE PEANUT FARMERS
`ANTITRUST LITIGATION
`
`No. 2:19-cv-00463-RAJ-LRL
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`CLASS ACTION SETTLEMENT AGREEMENT BETWEEN PLAINTIFFS
`AND DEFENDANT GOLDEN PEANUT COMPANY, LLC
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`This Settlement Agreement (“Settlement Agreement” or “Agreement”) is made and
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`entered into as of the Effective Date, by and between Golden Peanut Company, LLC (“Golden
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`Peanut” or “Settling Defendant”) and Plaintiffs D&M Farms, Mark Hasty, Dustin Land, Rocky
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`Creek Peanut Farms, LLC, Daniel Howell, and Lonnie Gilbert, on behalf of themselves and on
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`behalf of the Class (collectively “Plaintiffs”), by and through their respective counsel.
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`RECITALS
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`A.
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`There
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`is pending
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`in
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`the United States District Court
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`for
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`the
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`Eastern District of Virginia an action captioned In re Peanut Farmers Antitrust Litigation, No.
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`2:19-cv-00463 (hereinafter, the “Action”), in which Plaintiffs have alleged, among other things,
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`that Defendants, including Birdsong Corporation, Golden Peanut, and Olam Peanut Shelling
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`Company, Inc. entered into a contract, combination or conspiracy in restraint of trade, the purpose
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`and effect of which was to suppress competition and to pay depressed prices to Plaintiffs and the
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`Settlement Class for runner peanuts during the Class Period, in violation of Section 1 of the
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`Sherman Act, 15 U.S.C. § 1 (the “Claims”).
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`B.
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`Golden Peanut has denied and continues to deny all of Plaintiffs’ Claims alleged in
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`the Action, or that could have been alleged in the Action, and has asserted numerous defenses to
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`those Claims.
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`

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`C.
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`This Settlement Agreement shall not be deemed or construed to be an admission or
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`evidence of a violation of any statute, law, rule, or regulation or of any liability or wrongdoing by
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`Golden Peanut or of the truth of any of Plaintiffs’ Claims or allegations, nor shall it be deemed or
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`construed to be an admission or evidence of Golden Peanut’s defenses.
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`D.
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`Plaintiffs’ Co-Lead Counsel have conducted an investigation into the facts and law
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`regarding the Action and the possible legal and factual defenses thereto and have concluded that a
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`settlement with Golden Peanut according to the terms set forth below is fair, reasonable, adequate,
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`and in the best interests of Plaintiffs and the Class, given the uncertainties, risks, and costs of
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`continued litigation.
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`E.
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`Golden Peanut, despite its belief that it is not liable for, and has strong defenses to,
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`Plaintiffs’ Claims, has concluded that further litigation of the Action would be protracted and
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`expensive and that it is desirable that the Action be fully and finally settled in the manner and
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`according to the terms and conditions set forth in this Agreement to avoid further expense,
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`inconvenience, and disruption, and to dispose of the burden of protracted litigation, taking into
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`account, among other things, the uncertainty and risks inherent in any litigation, especially in a
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`complex case such as this.
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`F.
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`This Agreement is the result of vigorous and extensive arm’s-length negotiations
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`between Plaintiffs’ Co-Lead Counsel and Golden Peanut’s Counsel.
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`G.
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`The Parties to this Agreement desire to fully and finally settle all actual and
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`potential Claims arising from or relating to the Action, and to avoid the costs and risks of protracted
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`litigation and trial.
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`NOW, THEREFORE, IT IS HEREBY AGREED, by and among the undersigned on
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`behalf of the Settling Parties, that this Action and all Released Claims (as defined in I(21) below)
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`Case 2:19-cv-00463-RAJ-LRL Document 581-1 Filed 03/11/21 Page 4 of 25 PageID# 20992
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`are finally and fully settled and that this Action shall be dismissed in its entirety on the merits and
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`with prejudice as to the Released Parties (as defined in I(22) below), and without costs to Plaintiffs
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`or Golden Peanut, subject to approval of the Court pursuant to Rule 23 of the Federal Rules of
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`Civil Procedure, upon and subject to the following terms and conditions:
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`I.
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`DEFINITIONS
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`1.
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`“Class” shall have the same meaning as the class certified by the Court on
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`December 2, 2020 (ECF No. 496), which, for ease of reference, is defined herein as follows:
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`All persons or entities in the United States who sold raw, harvested
`runner peanuts to any of the Defendants, including their subsidiaries
`or joint-ventures, from January 1, 2014 through December 31, 2019
`(the “Class Period”). Specifically excluded from this Class are the
`Defendants; the officers, directors or employees of any Defendant;
`any entity in which any Defendant has a controlling interest; and any
`affiliate, legal representative, heir or assign of any Defendant.
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`2.
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`“Class Notice” means the notice to the Class that is approved by the Court,
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`in accordance with Section II(D)(2) below.
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`3.
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`“Co-Conspirator” means those entities named as co-conspirators in the
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`Operative Complaint.
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`4.
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`“Co-Lead Counsel” means collectively Brian D. Clark of Lockridge Grindal
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`Nauen PLLP and Kimberly A. Justice of Freed Kanner London & Millen LLC.
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`5.
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`“Complaint” or “Operative Complaint” means the Plaintiffs’ Second
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`Amended Class Action Complaint in the Action (ECF No. 148).
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`6.
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`“Court” or “District Court” means the United States District Court for the
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`Eastern District of Virginia and the Honorable Raymond A. Jackson or his successor, or any other
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`Court in which the Action is proceeding.
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`7.
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`“Date the Settlement Becomes Final” means the date on which all rights of
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`appeal have expired after the Court enters an order granting final approval to this Settlement
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`Agreement, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, as provided in Section
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`II(D)(5) below. If any appeal is taken from the Court’s final approval of this Settlement
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`Agreement, then the “Date the Settlement Becomes Final” means the date upon which any such
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`appeal is resolved in favor of the Settlement Agreement and no further appellate rights exist.
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`8.
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`“Date of Preliminary Approval” means the date on which the Court enters
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`an order granting preliminary approval to this Settlement Agreement, pursuant to Rule 23(e) of
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`the Federal Rules of Civil Procedure (“Preliminary Approval Order”), as provided in Section
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`II(D)(1) below.
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`9.
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`“Defendant” or “Defendants” means any or all Defendants named in the
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`Action, now or in the future.
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`10.
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`“Documents” means (a) all papers, electronically stored information
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`(“ESI”), statements, transcripts, or other materials within the scope of Rule 34(a)(1)(A) of the
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`Federal Rules of Civil Procedure; and (b) any copies or reproductions of the foregoing, including
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`microfilm copies or computer images.
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`11.
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`“Effective Date” means the latest date on which this Settlement Agreement
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`is executed by all Parties.
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`12.
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`“Escrow Account” means the account with the Escrow Agent that holds the
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`Settlement Fund.
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`13.
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`“Escrow Agent” means the bank into which the Settlement Fund shall be
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`deposited and maintained as set forth in Section II(C) of this Agreement.
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`14.
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`“Fairness Hearing” means a hearing held by the Court to determine whether
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`the proposed settlement, as set forth in this Settlement Agreement, is fair, reasonable, and
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`adequate, and whether it should be finally approved by the Court.
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`15.
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`“Named Plaintiffs” means the Plaintiffs named in the Action, now or in the
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`future.
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`16.
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`“Net Settlement Fund” means the Settlement Fund, plus accrued interest,
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`less any award of attorneys’ fees, service awards for Named Plaintiffs, or reimbursement of
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`expenses and less applicable taxes, tax preparation expenses, and costs of notice and
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`administration, that may be awarded or approved by the Court.
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`17.
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`“Opt-Out” or “Opt-Outs” means one or more Person(s), otherwise
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`qualifying as member(s) of the Class, that validly and timely excluded himself or herself (or itself
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`or themselves) from the Class certified by the Court on December 2, 2020.
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`18.
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`“Order and Final Judgment” means the order and final judgment of the
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`Court approving the Settlement Agreement, as described in Section II(D)(5) below.
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`19.
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`“Parties” or “Settling Parties” means Settling Defendant and the Settlement
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`Class, as represented by Plaintiffs.
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`20.
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`21.
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`“Person(s)” includes an individual and an entity.
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`“Released Claims” means any and all existing or potential causes of action,
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`claims, suits, actions, contentions, allegations, assertions of wrongdoing, and demands, whether
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`class, individual, or otherwise in nature and whether known or unknown, and any damages,
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`liabilities, costs, losses, expenses, penalties, or fees of any kind and under any theory, whenever
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`incurred and whether known or unknown, that directly or indirectly arise out of, relate to, or refer
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`in any way to the conduct alleged in the Action, including, but not limited to, any and all claims
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`that the Named Plaintiffs and each Class Member (on behalf of themselves and any person or entity
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`claiming by or through them, including, without limitation, their respective predecessors,
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`successors, assigns, and any and all past, present, and future parents, owners, subsidiaries,
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`divisions, departments, and affiliates, and all of their past, present, and future parents, owners,
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`subsidiaries, divisions, departments, and affiliates, and all of their past, present, and future heirs,
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`executors, devisees, administrators, officers, executives, directors, stockholders, partners,
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`members, agents, attorneys, advisors, auditors, accountants, contractors, servants, employees,
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`representatives, insurers, and assignees) has, ever had, or may have against Golden Peanut or its
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`predecessors, successors, assigns, and any and all past, present, and future parents, owners,
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`subsidiaries, divisions, departments, and affiliates, and any and all of their past present, and future
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`heirs, executors, devisees, administrators, officers, executives, directors, stockholders, partners,
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`members, agents, attorneys, advisors, auditors, accountants, contractors, servants, employees,
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`representatives, insurers, or assignees that, whether directly or indirectly and whether known or
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`unknown, arise from , relate to, or refer in any way to any act or omission alleged or that could
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`have been alleged in the Action.
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`22.
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`“Released Parties” means
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`jointly and severally,
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`individually and
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`collectively, the Settling Defendant, its predecessors; successors; assigns; and any and all past,
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`present, and future parents, owners, subsidiaries, divisions, departments, and affiliates, and all of
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`their past, present, and future heirs, executors, devisees, administrators, officers, executives,
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`directors, stockholders, partners, members, agents, attorneys, advisors, auditors, accountants,
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`contractors, servants, employees, representatives, insurers, and assignees.
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`23.
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`“Releasing Parties” means
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`jointly and severally,
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`individually and
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`collectively, Plaintiffs, the Class, and each Class Member, on behalf of themselves and any person
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`or entity claiming by or through them, including without limitation, their respective predecessors;
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`successors; assigns; and any and all past, present, and future parents, owners, subsidiaries,
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`divisions, departments, and affiliates, and all of their past, present and future heirs, executors,
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`devisees, administrators, officers, executives, directors, stockholders, partners, members, agents,
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`attorneys, advisors, auditors, accountants, contractors, servants, employees, representatives,
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`insurers, and assignees.
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`24.
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`“Class Member” means each member of the Class that does not elect to be
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`excluded from the Class by March 13, 2021, in accordance with Fed. R. Civ. P. 23 and the Court’s
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`Order Approving Notice Program and Authorizing Dissemination of Notice to the Class (ECF No.
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`516).
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`LLP.
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`25.
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`26.
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`“Settling Defendant” means Golden Peanut.
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`“Settling Defendant’s Counsel” means the law firm of Kirkland & Ellis
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`27.
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`“Settlement Amount” means the cash payment of $45,000,000.00 described
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`in Section II(A)(1), below.
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`28.
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`“Settlement Fund” means the funds described in Section II(A)(1) of this
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`Settlement Agreement, plus earned interest pursuant to Section II(C)(5) of this Agreement, in the
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`separate Escrow Account for the settlement contemplated by this Settlement Agreement
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`established in accordance with Section II(C) below.
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`II.
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`SETTLEMENT
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`A.
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`Performance By Settling Defendant
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`1.
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`Settlement Payment. Settling Defendant shall pay $45 million
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`($45,000,000.00) in United States dollars, all in cash, as the settlement amount in settlement of the
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`Action, inclusive of Class recovery amounts, fees (including attorneys’ fees, service awards for
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`Named Plaintiffs, and any other fees), and costs. This Settlement Amount shall be paid by Settling
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`Defendant into the Escrow Account described herein within thirty (30) days of entry of the
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`Preliminary Approval Order. Settling Defendant’s obligation to make the payment in this Section
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`II(A)(1) is conditioned upon the Court’s entry of a Preliminary Approval Order. If the Court
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`refuses to preliminarily approve the Settlement Agreement, the Parties agree to confer in good
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`faith to resolve the issue to the Parties’ mutual agreement, and after such mutual agreement and
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`the Court’s preliminary approval of the Settlement Agreement as modified, implement the terms
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`of this Settlement Agreement.
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`a.
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`Settling Defendant’s payment to the Escrow Agent described herein
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`shall be by wire transfer pursuant to instructions from the Escrow Agent or Co-Lead Counsel. The
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`Escrow Agent or Co-Lead Counsel shall provide wiring instructions within one business day of
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`entry of the Preliminary Approval Order.
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`Settlement Amount.
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`b.
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`c.
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`The payment described in Section II(A)(1) shall constitute the total
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`The Releasing Parties shall look solely to the Settlement Amount for
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`settlement and satisfaction, as provided herein, of all Released Claims for which the Released
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`Parties are released by the Releasing Parties pursuant to this Agreement.
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`B.
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`Release of Claims.
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`1.
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`Release. Upon the occurrence of the Date the Settlement Becomes Final,
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`and in consideration of the valuable consideration set forth in this Agreement, the Releasing Parties
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`shall be deemed to, and by operation of the Order and Final Judgment shall have, hereby fully,
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`finally, and forever released, relinquished, and discharged the Released Parties of all Released
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`Claims.
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`2.
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`Covenant Not to Sue. The Releasing Parties covenant not to sue or
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`otherwise seek to establish liability against the Released Parties for any transaction, event,
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`circumstance, action, failure to act, or occurrence of any sort or type arising out of or relating to
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`the Released Claims, including, without limitation, seeking to recover damages relating to any of
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`the Released Claims. This Paragraph shall not apply to any action to enforce this Settlement
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`Agreement.
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`3.
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`Full Release. The Parties to this Agreement expressly agree and confirm
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`that the Released Claims as set forth in Section I(21) and the provisions of Section II(B) constitute
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`a full and final release of the Released Parties by the Releasing Parties of the Released Claims.
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`4.
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`Waiver. Upon the Date the Settlement Becomes Final, the Releasing Parties
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`shall be deemed to have, and by operation of the Order and Final Judgment shall have, with respect
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`to the subject matter of the Released Claims, waived the provisions, rights, and benefits of Section
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`1542 of the California Civil Code and which provides:
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`A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
`THAT THE CREDITOR OR RELEASING PARTY DOES NOT
`KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
`THE TIME OF EXECUTING THE RELEASE AND THAT, IF
`KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
`AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
`OR RELEASED PARTY.
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`The Releasing Parties shall further be deemed to have, and by operation of the Order and Final
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`Judgment shall have, expressly waived all similar provisions, statutes, regulations, rules, or
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`principles of law or equity of any other state or applicable jurisdiction, or principle of common law.
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`In connection with the waiver and relinquishment set forth in this Paragraph II.B, the Releasing
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`Parties release fully, finally, and forever all Released Claims against the Released Parties, and,
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`upon the Date the Settlement Becomes Final, shall be deemed to have, and by operation of the
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`Order and Final Judgment, shall have, fully, finally, and forever settled and released any and all
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`Released Claims against the Released Parties, known or unknown, suspected or unsuspected,
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`contingent or non-contingent, whether or not concealed or hidden, which now exist, or heretofore
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`have existed, upon any theory of law or equity now existing or coming into existence in the future,
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`notwithstanding the discovery or existence of any additional or different facts. The Releasing
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`Parties, by operation of the Order and Final Judgment, acknowledge that the foregoing waiver was
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`separately bargained for and a key element of this Settlement Agreement.
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`C.
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`Settlement Fund Administration. The Settlement Fund shall be administered
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`pursuant to the provisions of this Settlement Agreement and subject to the Court’s continuing
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`supervision and control, until the funds in the Settlement Fund are fully distributed, as follows:
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`1.
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`The Settlement Fund shall be established within an Escrow Account and
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`administered by an Escrow Agent at a bank designated by Co-Lead Counsel and administered by
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`an Escrow Agent designated by Co-Lead Counsel. Co-Lead Counsel, Settling Defendant, and
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`Settling Defendant’s Counsel agree to cooperate in good faith to prepare an appropriate escrow
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`agreement in conformance with this Agreement.
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`2.
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`Upon the Court’s Preliminary Approval Order, Co-Lead Counsel may,
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`without prior order of the Court, withdraw from the Settlement Fund up to $250,000 to pay for
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`expenses associated with providing notice of the settlement to the Class, expenses for maintaining
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`and administering the Settlement Fund, and taxes and expenses incurred in connection with
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`taxation matters. For purposes of clarification, such costs, fees and expenses related to providing
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`notice to the Class shall be paid exclusively from the Settlement Fund. Any expenses associated
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`with providing notice of the settlement to the Class, expenses for maintaining and administering
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`the Settlement Fund, and taxes and expenses incurred in connection with taxation matters paid or
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`incurred shall be nonrefundable if, for any reason, the Settlement Agreement is not finally
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`approved, is terminated, or otherwise fails to become effective.
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`3.
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`Under no circumstances will Settling Defendant be required to pay more or
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`less than the Settlement Amount pursuant to this Agreement and the settlement set forth herein.
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`4.
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`No other funds shall be paid, or disbursements made, from the Settlement
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`Fund without an order of the Court.
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`5.
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`All payments into the Escrow Account shall, at the direction of Co-Lead
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`Counsel, be invested in instruments or accounts backed by the full faith and credit of the United
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`States Government or fully insured by the United States Government or an agency thereof,
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`including U.S. Treasury Bills, U.S. Treasury Money Market Funds or a bank account insured by
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`the Federal Deposit Insurance Corporation (“FDIC”) up to the guaranteed FDIC limit. Any interest
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`earned on any of the foregoing shall become part of the Settlement Fund. Golden Peanut shall have
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`no responsibility for, or liability in connection with, the Settlement Fund or Escrow Account,
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`including, without limitation, the investment, administration, maintenance, or distribution thereof.
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`6.
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`The Parties agree that the Settlement Fund and the Net Settlement Fund are
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`each intended to be a “Qualified Settlement Fund” within the meaning of Treasury Regulation
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`§ 1.468B-1, and that the Escrow Agent, as administrator of the Qualified Settlement Fund within
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`the meaning of Treasury Regulation § 1.468B-2(k)(3), shall be solely responsible for filing tax
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`returns for the Escrow Account and paying from the Escrow Account any Taxes, as defined below,
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`owed with respect to the Escrow Account. Neither the Settling Defendant nor the Settling
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`Defendant’s Counsel shall have any liability or responsibility of any sort for filing any tax returns
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`or paying any Taxes (as defined below) with respect to the Escrow Account.
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`7.
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`All: (i) taxes on the income of the Settlement Fund (“Taxes”), and
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`(ii) expenses and costs incurred in connection with the taxation of the Settlement Fund (including,
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`without limitation, expenses of tax attorneys and accountants) shall timely be paid by the Escrow
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`Agent out of the Settlement Fund. Class Members shall be responsible for paying any and all
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`federal, state, and local income taxes due on any distribution made to them pursuant to the
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`Settlement Agreement provided herein.
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`8.
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`After the Date the Settlement Becomes Final, the Net Settlement Fund shall
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`be disbursed in accordance with a plan of distribution to be approved by the Court. Class Members
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`shall look solely to the Net Settlement Fund for settlement and satisfaction of any and all Released
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`Claims from the Released Parties. The timing of a motion to approve a plan of distribution of the
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`Net Settlement Fund created by this Settlement Agreement shall be in the discretion of Co-Lead
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`Counsel and may be combined with a plan to distribute proceeds from other settlements in this
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`Action.
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`D.
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`Approval of Settlement Agreement and Dismissal of Claims.
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`1.
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`Preliminary Approval. Within ten (10) days of the Effective Date,
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`Plaintiffs shall submit to the District Court a motion requesting entry of an order preliminarily
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`approving the Settlement Agreement (“Preliminary Approval Order”). Settling Defendant shall
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`take no position with respect to such motion. The proposed Preliminary Approval Order shall
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`provide that, inter alia:
`
`a.
`
`b.
`
`c.
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`the Settlement Agreement has been negotiated at arm’s length and
`is preliminarily determined to be fair, reasonable, adequate, and in
`the best interests of the Class;
`
`the proposed Class Notice meets the requirements of Rule 23 of the
`Federal Rules of Civil Procedure and due process, and constitutes
`the best notice practicable under the circumstances for settlement
`purposes;
`
`after Class Notice has been carried out, a Fairness Hearing on the
`settlement proposed in this Settlement Agreement shall be held by
`the Court to determine whether the proposed settlement is fair,
`reasonable, and adequate, and whether it should be finally approved
`by the Court;
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`d.
`
`e.
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`Class Members who wish to object to this Settlement Agreement
`must submit a valid and timely written statement of the grounds for
`objection; and
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`Class Members who wish to appear in person to object to this
`Settlement Agreement may do so at the Fairness Hearing pursuant
`to directions by the Court.
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`2.
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`Class Notice. The Class Notice shall provide for a right to object to the
`
`proposed Settlement Agreement. Individual notice of the Settlement Agreement to all Class
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`Members who can be identified through reasonable effort shall be mailed or emailed to Class
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`Members in conformance with a notice plan to be approved by the Court. Plaintiffs shall move to
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`approve notice to the Class as soon as practicable, in the discretion of Co-Lead Counsel.
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`3.
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`Cost of Class Notice. The costs of providing Class Notice to Class
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`Members shall be paid by the Escrow Agent from the Settlement Fund pursuant to Sections
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`II(C)(2) and (3).
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`4.
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`CAFA Notice. In compliance with the Class Action Fairness Act of 2005,
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`28 U.S.C. § 1715(b) (“CAFA”), Settling Defendant will provide notice to the appropriate state and
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`federal officials. Settling Defendant shall cause to be filed with the Court proof of service of the
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`required CAFA notices.
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`5.
`
`Final Approval. If this Settlement Agreement is preliminarily approved by
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`the Court, Plaintiffs shall seek entry of an Order and Final Judgment as soon as practicable in the
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`discretion of Co-Lead Counsel. Settling Defendant shall take no position with respect to such
`
`motion. Plaintiffs shall seek entry of an Order and Final Judgment that, inter alia:
`
`a.
`
`this Settlement Agreement as being fair,
`finally approves
`reasonable, and adequate as to and in the best interests of the Class
`within the meaning of Rule 23 of the Federal Rules of Civil
`Procedure, and directing its consummation according to its terms
`and conditions;
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`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`the
`the Class Notice constituted, under
`that
`determines
`circumstances, the most effective and practicable notice of this
`Settlement Agreement and the Fairness Hearing, and constituted due
`and sufficient notice for all other purposes to all Class Members;
`
`orders that all claims made against the Settling Defendant in the
`Action be dismissed with prejudice and, except as provided for in
`this Settlement Agreement, without further costs or fees;
`
`incorporates the release set forth in this Settlement Agreement such
`that the Releasing Parties release the Released Parties of the
`Released Claims as of the date of the Order and Final Judgment;
`
`reserves to the Court exclusive jurisdiction over this Settlement
`Agreement, including the administration and consummation of this
`Agreement;
`
`determines under Federal Rule of Civil Procedure 54(b) that there is
`no just reason for delay and directs that the judgment of dismissal
`as to the Released Parties shall be final and entered forthwith; and
`
`orders that settlement funds may be disbursed as provided in the
`Final Approval Order or other order of the Court.
`
`6.
`
`Class Counsel Fees and Expenses; No Other Costs.
`
`a.
`
`Except as otherwise provided in this Settlement Agreement, Settling
`
`Defendant shall have no responsibility for any other costs, including Plaintiffs’ attorneys’ fees,
`
`costs, and expenses or the fees, costs, or expenses of any Plaintiff’s, Class Member’s, or Class
`
`Member’s respective attorneys, experts, advisors, or representatives; provided, however, that with
`
`respect to the Action, including this Settlement Agreement, Settling Defendant shall bear its own
`
`costs and attorneys’ fees.
`
`b.
`
`At their discretion and after proper notice to the Class and
`
`opportunity to object, Co-Lead Counsel may seek a court order granting attorneys’ fees and
`
`expenses from the Settlement Fund, separately or in conjunction with other settlements.
`
`c.
`
`At their discretion and after proper notice to the Class and
`
`opportunity to object, Co-Lead Counsel may seek from the Settlement Fund, separately or in
`
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`conjunction with other settlements, a court order granting reimbursement of costs or service
`
`awards for the work Named Plaintiffs performed on behalf of the Class, and to compensate for the
`
`time and expense they have incurred in bringing this Action.
`
`d.
`
`The procedure for the approval by the Court of any applications by
`
`Co-Lead Counsel for attorneys’ fees and expenses or the expenses of or service awards to Named
`
`Plaintiffs to be paid out of the Settlement Fund are not part of or a condition to the settlement set
`
`forth herein, and are to be considered by the Court separately from the Court’s consideration of
`
`the fairness, reasonableness, and adequacy of this Settlement Agreement, and any order or
`
`proceeding relating to any application for attorneys’ fees or expenses shall not operate to terminate
`
`or cancel this Agreement or the releases set forth herein, or affect or delay the finality of the
`
`judgment approving this Settlement Agreement.
`
`e.
`
`Within 15 calendar days after any order by the Court awarding
`
`attorneys’ fees, expenses, Named Plaintiffs’ service awards or expenses, the Escrow Agent shall
`
`pay the approved attorneys’ fees, costs, and service awards via wire transfer from the Settlement
`
`Fund as directed by Co-Lead Counsel. In the event the Court’s approval of this Settlement
`
`Agreement is reversed on appeal, or the amount of any distributions pursuant to Court orders
`
`(including but not limited to orders with respect to attorneys’ fees, costs, or service awards) is
`
`reduced on appeal, Co-Lead Counsel shall, within 30 days of such appellate order, cause the
`
`difference in the amount paid and the amount awarded on appeal to be returned to the Settlement
`
`Fund.
`
`7.
`
`When Settlement Becomes Final. This Settlement Agreement shall
`
`become final on the later of the dates that: (a) the Court has entered the Order and Final Judgment
`
`approving this Settlement Agreement, in accordance with Section II(D)(5), above, under Rule
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`23(e) of the Federal Rules of Civil Procedure, and dismissed the Action as against the Settling
`
`Defendant with prejudice as to all Class Members and without costs; and (b) the time for appeal
`
`or to seek permission to appeal from the Court’s approval of this Settlement Agreement and entry
`
`of the order of Final Judgment, as described in Section II(D)(5) above, has expired with no appeal
`
`having been filed or, if appealed, approval of this Settlement Agreement and the Order and Final
`
`Judgment has been affirmed in its entirety by the court of last resort to which such appeal has been
`
`taken and such affirmance is no longer subject to further appeal or review..
`
`8.
`
`Termination.
`
`a.
`
`Rejection or Alteration of Settlement Terms. If the Court declines
`
`to grant either preliminary or final approval to this Settlement Agreement or any material part
`
`hereof (as set forth in Sections II(D)(1) or (D)(5) above, respectively), or if the Court approves
`
`this Settlement Agreement in a materially modified form, or if after the Court’s approval, such
`
`approval is materially modified or set aside on appeal, or if the Court does not enter the Final Order
`
`and Judgment, or if the Court enters the Final Order and Judgment and appellate review is sought
`
`and on such review such Final Order and Judgment is not affirmed (each, individually, a
`
`“Triggering Event”), then Settling Defendant and Plaintiffs shall each, in their respective sole
`
`discretion, have the option to terminate this Settlement Agreement by providing written notice of
`
`their election to do so (“Termination Notice”) to each other within thirty (30) calendar days of any
`
`such Triggering Event. For purposes of this Section II(D)(8)(a), a material modification includes,
`
`but is not limited to, any modification to the settlement payment or to the scope of the release
`
`pursuant to Sections I(21), I(22), I(23), and II(B).
`
`b.
`
`Termination of Settlement. In the event this Settlement Agreement
`
`is terminated pursuant to this Section II(D)(8), then: (i) within fifteen (15) business days of such
`
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`Case 2:19-cv-00463-RAJ-LRL Document 581-1 Filed 03/1