Preliminary Certification of the Settlement Class. 1. Solely for the purpose of implementing this Agreement and effectuating the Proposed Settlement, Defendant stipulates to entry of a Preliminary Approval Order (in the form of the proposed Order without material change), preliminarily certifying the Settlement Class, appointing the Plaintiff as representative of the Settlement Class, and appointing the following as Class Counsel for the Settlement Class: XXXXXXXXXXX XXXXXXX & LIBER LLP Xxxxxx X. Xxxxx (0064834) Xxxxx X. Xxxxxx (0093921) 0000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000 Cleveland, OH 44114 (000) 000-0000 (000) 000-0000 (FAX) xxxxxx@xxxxxxxx.xxx xxxxxxx@xxxxxxxx.xxx EDELSBERG LAW, P.A. Xxxxx Xxxxxxxxx, Esq. 00000 XX 00xx Xxxxxx, Xxxxx 000 Aventura, FL 33180 Telephone: (000) 000-0000 xxxxx@xxxxxxxxxxxx.xxx XXXXXX & XXXXXXX, P.A. Xxxxxx X. Xxxxxx, Esq. 00 XX 0xx Xxxxxx, Xxxxx 000 Miami, FL 33132 Telephone: (000) 000-0000 xxxxxxx@xxxxxxxxxxxxx.xxx 2. The Parties and their respective counsel agree that the settlement of this Action is not a concession by Founders that a litigation class could properly be certified in this Action, and Plaintiff and Class Counsel agree not to argue, in this or any other proceeding, that the fact of this settlement or Founders’ stipulation to the Certification of the Settlement Class constitutes such a concession or otherwise demonstrates the efficacy of class certification. 3. Plaintiff shall submit this fully executed Agreement to the Court and request entry of the Proposed Preliminary Approval Order, which as a condition of settlement must be entered by the Court without material change from Exhibit 1, and specifically that: (a) preliminarily approves this Agreement; (b) finds that the Court possesses personal jurisdiction over all Settlement Class Members and possesses subject matter jurisdiction to preliminarily approve this Agreement; (c) preliminarily certifies the Settlement Class, approves the Plaintiff as class representative of the Settlement Class, and appoints Class Counsel as counsel for the Settlement Class; (d) finds that the Proposed Settlement is sufficiently fair, reasonable, and adequate to warrant providing Notice to the Settlement Class; (e) approves the Notice Plan; (f) approves the Claim Forms to be distributed to and/or used by Settlement Class Members, and sets a Claims Submission Deadline by which the Claim Forms must be submitted in order to be deemed timely which shall be no later than fifteen (15) days after the Final Approval Hearing; (g) approves the settlement website as described herein, which may be amended during the course of the settlement as appropriate and agreed to by the Parties, and which shall be maintained for at least 90 days after the Claims Submission Deadline; (h) appoints Simpluris, Inc. as the Settlement Administrator; (i) determines that the Notice provided to potential Settlement Class Members (i) is the best practicable notice under the circumstances; (ii) is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to or exclude themselves from the Proposed Settlement; and (iii) constitutes due, adequate, and sufficient notice to all Persons entitled to receive notice; (j) schedules the Final Approval Hearing to consider the fairness, reasonableness, and adequacy of the Proposed Settlement and whether it should be finally approved by the Court on a date not sooner than 105 days after entry of the Preliminary Approval Order; (k) requires the Settlement Administrator to file proof of completion of Notice at least ten (10) days prior to the Final Approval Hearing, along with the Opt-Out List, which shall be a list of all Persons who timely and properly requested exclusion from the Settlement Class, and an affidavit attesting to the accuracy of the Opt-Out List; (l) requires each Settlement Class Member who wishes to exclude himself or herself from the Settlement Class to submit an appropriate, timely request for exclusion, postmarked no later than thirty (30) days prior to the Final Approval Hearing. (m) orders that any Settlement Class Member who does not submit a timely, written request for exclusion from the Settlement Class will be bound by all proceedings, orders, and judgments in the Action even if such Settlement Class Member never received actual notice of the Proposed Settlement; (n) provides that preliminary certification and all actions associated with preliminary certification are undertaken on the condition that the certification and designations shall be automatically vacated if this Agreement is terminated, or if the Agreement is changed in any material part, or if the Agreement is disapproved in whole or in part by the Court, any Ohio state court, the District Court of Appeals, or the Ohio Supreme Court, or if the agreement to settle is revoked, in which any such event this Agreement and the fact that it was entered into shall not be offered, received, or construed as evidence or an admission by any Party of liability or of the certifiability of any class; (o) requires each Settlement Class Member who does not submit a timely request for exclusion from the Settlement Class and wishes to object to the fairness, reasonableness, or adequacy of this Agreement or to intervene in the Action, to follow the procedures set forth in Paragraphs 43-48 of this Agreement, including those requirements applicable to any attorney representing a Settlement Class Member; (p) directs the Settlement Administrator to rent a post office box to which requests for exclusion, objections, notices of intention to appear, and any other settlement-related communication may be sent, and provides that only the Settlement Administrator, the Court, the Clerk of the Court, and their designated agents shall have access to this post office box, except as otherwise expressly provided in this Agreement; (q) directs the Settlement Administrator to promptly provide copies of all objections, requests for exclusion, motions to intervene, notices of intention to appear, or other communications that come into its possession to Class Counsel and Defendant’s counsel; (r) stays all proceedings in the Action until further order of the Court, except that the Parties may conduct proceedings necessary to implement the Proposed Settlement or effectuate the terms of this Agreement; and (s) implements or orders any other provisions or directives or procedures not contemplated by the Parties, if necessary to comply with governing law and/or binding precedent and if such provisions do not materially alter or change the substantive terms of this Agreement. 4. Preliminary certification of the Settlement Class and appointment of the class representative and Class Counsel for purposes of this Proposed Settlement by the Court shall be binding only with respect to the Proposed Settlement. Upon the preliminary approval of this Agreement and the Proposed Settlement, all proceedings in the Action shall be stayed until further order of the Court; provided, however, that the Parties may conduct such limited proceedings as may be necessary to implement the Proposed Settlement or to effectuate the terms of this Agreement. 5. In the event that the Proposed Settlement is not consummated for any reason, (a) the Parties and their attorneys shall proceed as though the Agreement had never been entered and the Parties and their Counsel shall not cite nor reference this Agreement (except as necessary in filings or briefings in this Action only and limited solely to matters directly relating to the Proposed Settlement, and not to matters touching on the prosecution or defense of the Action); and (b) nothing in this Agreement may be used as an admission or offered into evidence in any proceeding.
Appears in 1 contract
Samples: Class Action Settlement Agreement
Preliminary Certification of the Settlement Class. 1. Solely for the purpose of implementing this Agreement and effectuating the Proposed Settlement, Defendant stipulates to entry of a Preliminary Approval Order (in the form of the proposed Order without material changeattached as Exhibit 1 or including the substance of the proposed Order attached as Exhibit 1), preliminarily certifying the Settlement Class, appointing the Plaintiff as representative of the Settlement Class, and appointing the following as Class Counsel for the Settlement Class: XXXXXXXXXXX XXXXXXX & LIBER LLP PLLC Xxxxxx X. Xxxxxxx. Xxxxx (0064834) Xxxxx X. Xxxxxx (0093921) Xxxxxxxx 0000 Xxxxxxxx Xxxxxx XxxxXxXxxxx Xxxxx, Xxxxx 0000 ClevelandSuite 175 Orlando, OH 44114 FL 32803 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 (FAX) xxxxxx@xxxxxxxx.xxx xxxxxxx@xxxxxxxx.xxx Xx@xxxxxxxxx.xxx Xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx EDELSBERG LAW, P.A. Xxxxx Xxxxxxxxx, Esq. 00000 XX 00xx Xxxxxx, Xxxxx 000 Aventura, FL 33180 Telephone: (000) 000-0000 xxxxx@xxxxxxxxxxxx.xxx XXXXXX & XXXXXXX, P.A. Xxxxxx X. Xxxxxx, Esq. 00 XX 0xx Xxxxxx, Xxxxx 000 0000 Miami, FL 33132 Telephone: (000) 000-0000 xxxxxxx@xxxxxxxxxxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx XXXXXX XXX, P.A. Xxxxxx Xxxxxx, Esq. 000 X. Xxxxxxxx Xxxx, #0000 Miami, FL 33131 Telephone: (000) 000-0000 xxxxxx@xxxxxx.xxx
2. The Parties and their respective counsel agree that stipulate that, based from the settlement of this Action is not a concession estimate already provided by Founders that a litigation class could properly be certified Angeion for its services in this Actionaction, and Plaintiff and Class Counsel agree not to argue, in this or any other proceeding, that Angeion shall be appointed by the fact of this settlement or Founders’ stipulation to the Certification of the Court as Settlement Class constitutes such a concession or otherwise demonstrates the efficacy of class certificationAdministrator.
3. Plaintiff shall submit this fully executed Agreement to the Court Court, and request entry of the Proposed Preliminary Approval Order, which as a condition of settlement must be entered by the Court without material change alteration from Exhibit 1, or an Order that includes the substance of the Proposed Preliminary Approval Order, and specifically that:
(a) preliminarily approves this Agreement;
(b) finds that the Court possesses personal jurisdiction over all Settlement Class Members and possesses subject matter jurisdiction to preliminarily approve this Agreement;
(c) preliminarily certifies the Settlement Class, approves the Plaintiff as class representative of the Settlement Class, and appoints Class Counsel as counsel for the Settlement Class;
(d) finds that the Proposed Settlement is sufficiently fair, reasonable, and adequate to warrant providing Notice to the Settlement Class;
(e) approves the Notice Plan;
(f) approves the Claim Forms Form and Electronic Claim Form to be distributed to and/or used by Settlement Class Members, and sets a Claims Submission Deadline by which the Claim Forms and Electronic Claim Forms must be submitted in order to be deemed timely which shall be no later than fifteen (15on the thirtieth (30th) days after day following the Final Approval Fairness Hearing);
(g) approves the settlement website as described herein, which may be amended during the course of the settlement as appropriate and agreed to by the Parties, and which shall be maintained for at least 90 180 days after the Claims Submission Deadline;
(h) appoints Simpluris, Inc. Angeion as the Settlement Administrator;
(i) directs the Settlement Administrator to maintain a toll-free IVR telephone system containing recorded answers to frequently asked questions, along with an option permitting potential Settlement Class Members to leave messages in a voicemail box;
(j) determines that the Notice provided to potential Settlement Class Members (i) is the best practicable notice under the circumstances; (ii) is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to or exclude themselves from the Proposed Settlement; and (iii) constitutes due, adequate, and sufficient notice to all Persons entitled to receive notice;
(jk) schedules the Final Approval Fairness Hearing to consider the fairness, reasonableness, and adequacy of the Proposed Settlement and whether it should be finally approved by the Court on a date not sooner than 105 days after entry of the Preliminary Approval Order;
(kl) requires the Settlement Administrator to file proof of completion of Notice at least ten (10) days prior to the Final Approval Fairness Hearing, along with the Opt-Out List, which shall be a list of all Persons who timely and properly requested exclusion from the Settlement Class, and an affidavit attesting to the accuracy of the Opt-Out List;
(lm) requires each Settlement Class Member who wishes to exclude himself or herself from the Settlement Class to submit an appropriate, timely request for exclusion, postmarked no later than thirty forty-five (3045) days prior to after the Final Approval HearingNotice Date.
(mn) orders that any Settlement Class Member who does not submit a timely, written request for exclusion from the Settlement Class will be bound by all proceedings, orders, and judgments in the Action even if such Settlement Class Member never received actual notice of the Proposed Settlement;
(n) provides that preliminary certification and all actions associated with preliminary certification are undertaken on the condition that the certification and designations shall be automatically vacated if this Agreement is terminated, or if the Agreement is changed in any material part, or if the Agreement is disapproved in whole or in part by the Court, any Ohio state court, the District Court of Appeals, or the Ohio Supreme Court, or if the agreement to settle is revoked, in which any such event this Agreement and the fact that it was entered into shall not be offered, received, or construed as evidence or an admission by any Party of liability or of the certifiability of any classAction;
(o) requires each Settlement Class Member who does not submit a timely request for exclusion from the Settlement Class and wishes to object to the fairness, reasonableness, or adequacy of this Agreement or to intervene in the Action, to follow the procedures set forth in Paragraphs 4336-48 45 of this Agreement, including those requirements applicable to any attorney representing a the Settlement Class Member;
(p) directs the Settlement Administrator to rent a post office box to which requests for exclusion, objections, notices of intention to appear, and any other settlement-related communication may be sent, and provides that only the Settlement Administrator, the Court, the Clerk of the Court, and their designated agents shall have access to this post office box, except as otherwise expressly provided in this Agreement;
(q) directs the Settlement Administrator to promptly provide copies of all objections, requests for exclusion, motions to intervene, notices of intention to appear, or other communications that come into its possession to Class Counsel and Defendant’s counsel;
(r) stays all proceedings in the Action until further order of the Court, except that the Parties may conduct proceedings necessary to implement the Proposed Settlement or effectuate the terms of this Agreement; and
(s) implements or orders any other provisions or directives or procedures not contemplated by the Parties, if necessary to comply with governing law and/or binding precedent and if such provisions do not materially alter or change the substantive terms of this Agreement.
4. Preliminary certification of the Settlement Class and appointment of the class representative and Class Counsel for purposes of this Proposed Settlement by the Court shall be binding only with respect to the Proposed Settlement. Upon the preliminary approval of this Agreement and the Proposed Settlement, all proceedings in the Action shall be stayed until further order of the Court; provided, however, that the Parties may conduct such limited proceedings as may be necessary to implement the Proposed Settlement or to effectuate the terms of this Agreement.
5. In the event that the Proposed Settlement is not consummated for any reason,
, (a) the Parties and their attorneys shall proceed as though the Agreement had never been entered and the Parties and their Counsel shall not cite nor reference this Agreement (except as necessary in filings or briefings in this Action only and limited solely to matters directly relating to the Proposed Settlement, and not to matters touching on the prosecution or defense of the Action); and (b) nothing in this Agreement may be used as an admission or offered into evidence in any proceeding.had
Appears in 1 contract
Samples: Class Action Settlement Agreement
Preliminary Certification of the Settlement Class.
1. Solely for the purpose of implementing this Agreement and effectuating the Proposed Settlement, the Defendant stipulates to entry of a Preliminary Approval Order preliminary approval order (in the form of the proposed Proposed Preliminary Approval Order without material changeattached as Exhibit 1 or including the substance of the Proposed Preliminary Approval Order attached as Exhibit 1), preliminarily certifying the Settlement Class, appointing the Plaintiff Plaintiffs as representative of the Settlement Class, and appointing the following as Class Counsel for the Settlement Class: XXXXXXXXXXX XXXXXXX & LIBER LLP PLLC Xxxxxx X. Xxxxxxx Xxxxx (0064834) Xxxxx X. Xxxxxx (0093921) Xxxxxxxx 0000 Xxxxxxxx Xxxxxx XxxxXxXxxxx Xxxxx, Xxxxx 0000 ClevelandSuite 175 Orlando, OH 44114 FL 32803 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Xx@xxxxxxxxx.xxx Xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx XXXXXX XXX, P.A. Xxxxxx Xxxxxx, Esq. 00000 XX 00xx Xxxxxx, Xxxxx 000 Aventura, FL 33180 Telephone: (FAX000) xxxxxx@xxxxxxxx.xxx xxxxxxx@xxxxxxxx.xxx EDELSBERG 000-0000 xxxxxx@xxxxxx.xxx XXXXXXXXX LAW, P.A. Xxxxx Xxxxxxxxx, Esq. 00000 XX 00xx Xxxxxx, Xxxxx 000 Aventura, FL 33180 Telephone: (000) 000-0000 xxxxx@xxxxxxxxxxxx.xxx XXXXXX & XXXXXXX, P.A. Xxxxxx X. Xxxxxx, Esq. 00 XX 0xx Xxxxxx, Xxxxx 000 0000 Miami, FL 33132 Telephone: (000) 000-0000 xxxxxxx@xxxxxxxxxxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx XXXXXXXXXXX X. XXXXX, P.A. Xxxxxxxxxxx X. Xxxxx, Esq. 0000 Xxx Xxxx, Xxxxx 000 Xxxxx Xxxxxx, XX 00000 T: 312.967.3653
2. The Parties and their respective counsel agree Defendant will select a third-party settlement administrator that shall be mutually agreed to by the settlement of this Action is not a concession by Founders that a litigation class could properly be certified in this Action, and Plaintiff and Class Counsel agree not to argue, in this or any other proceeding, that the fact of this settlement or Founders’ stipulation to the Certification of the Settlement Class constitutes such a concession or otherwise demonstrates the efficacy of class certificationParties.
3. Plaintiff Plaintiffs shall submit this fully executed Agreement to the Court Court, and request entry of the Proposed Preliminary Approval Order, which as a condition of settlement must be entered by the Court without material change alteration from Exhibit 1, or an Order that includes the substance of the Proposed Preliminary Approval Order, and specifically that:
(a) preliminarily approves this Agreement;
(b) finds that the Court possesses personal jurisdiction over all Settlement Class Members and possesses subject matter jurisdiction to preliminarily approve this Agreement;
(c) preliminarily certifies the Settlement Class, approves the Plaintiff Plaintiffs as class representative representatives of the Settlement Class, and appoints Class Counsel as counsel for the Settlement Class;
(d) finds that the Proposed Settlement is sufficiently fair, reasonable, and adequate to warrant providing Notice notice to the Settlement Class;
(e) approves the Notice Plannotice plan;
(f) approves the Claim Forms Form to be distributed to and/or used by Settlement Class Members, and sets a Claims Submission Deadline by which the Claim Forms must be submitted in order to be deemed timely which shall be no later than fifteen (15i.e., on the thirtieth (30th) days day after the Final Approval HearingNotice Date);
(g) approves the settlement website as described herein, which may be amended during the course of the settlement as appropriate and agreed to by the Parties, and which shall be maintained for at least 90 180 days after the Claims Submission Deadline;
(h) appoints Simpluris, Inc. a mutually-agreed third party as the Settlement Administrator;
(i) directs the Settlement Administrator to maintain a toll-free telephone number containing recorded answers to frequently asked questions or a live operator, during normal business hours, utilizing a script to which the Parties will agree;
(j) determines that the Notice notice provided to potential Settlement Class Members (i) is the best practicable notice under the circumstances; , (ii) is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to or exclude themselves from the Proposed Settlement; . and (iii) constitutes due, adequate, and sufficient notice to all Persons entitled to receive notice;
(jk) schedules the Final Approval Fairness Hearing to consider the fairness, reasonableness, and adequacy of the Proposed Settlement and whether it should be finally approved by the Court on a date not sooner than 105 days after entry of the Preliminary Approval Orderpreliminary approval order;
(kl) requires the Settlement Administrator to file proof of completion of Notice notice at least ten (10) days prior to the Final Approval Fairness Hearing, along with the Opt-Out List, which shall be a list of all Persons who timely and properly requested exclusion from the Settlement Class, and an affidavit attesting to the accuracy of the Opt-Out List;
(lm) requires each Settlement Class Member who wishes to exclude himself or herself from the Settlement Class to submit an appropriate, timely request for exclusion, postmarked no later than thirty twenty (3020) days prior to after the Final Approval Hearing.Notice Date;
(mn) orders that any Settlement Class Member who does not submit a timely, written request for exclusion from the Settlement Class will be bound by all proceedings, orders, and judgments in the Action even if such Settlement Class Member never received actual notice of the Proposed Settlement;
(n) provides that preliminary certification and all actions associated with preliminary certification are undertaken on the condition that the certification and designations shall be automatically vacated if this Agreement is terminated, or if the Agreement is changed in any material part, or if the Agreement is disapproved in whole or in part by the Court, any Ohio state court, the District Court of Appeals, or the Ohio Supreme Court, or if the agreement to settle is revoked, in which any such event this Agreement and the fact that it was entered into shall not be offered, received, or construed as evidence or an admission by any Party of liability or of the certifiability of any classAction;
(o) requires each Settlement Class Member who does not submit a timely request for exclusion from the Settlement Class and wishes to object to the fairness, reasonableness, or adequacy of this Agreement or to intervene in the Action, to follow the procedures set forth in Paragraphs 43-48 of this Agreement, including those requirements applicable to any attorney representing a the Settlement Class Member;
(p) directs the Settlement Administrator to rent a post office box to which requests for exclusion, objections, notices of intention to appear, and any other settlement-related communication may be sent, and provides that only the Settlement Administrator, the Court, the Clerk of the Court, and their designated agents shall have access to this post office box, except as otherwise expressly provided in this Agreement;
(q) directs the Settlement Administrator to promptly provide copies of all objections, requests for exclusion, motions to intervene, notices of intention to appear, or other communications that come into its possession to Class Counsel and Defendant’s counsel;
(r) stays all proceedings in the Action until further order of the Court, except that the Parties may conduct proceedings necessary to implement the Proposed Settlement or effectuate the terms of this Agreement; and
(sq) implements or orders any other provisions or directives or procedures not contemplated by the Parties, if necessary to comply with governing law and/or binding precedent and if such provisions do not materially alter or change the substantive terms of this Agreement.
4. Preliminary certification Plaintiffs will draft the Motion requesting entry of the Settlement Class Proposed Preliminary Approval Order, which the Defendant will review and appointment confirm lack of the class representative and Class Counsel for purposes of this Proposed Settlement by the Court shall be binding only with respect opposition upon agreement to the Proposed Settlement. Upon the preliminary approval form of this Agreement and the Proposed Settlement, all proceedings in the Action shall be stayed until further order of the Court; provided, however, that the Parties may conduct such limited proceedings as may be necessary to implement the Proposed Settlement or to effectuate the terms of this Agreementa mutually-acceptable Motion.
5. In the event that the Proposed This Settlement is contingent upon approval by the Court. If the Settlement does not consummated for receive final and non-appealable Court approval, Ocean Harbor shall not be obligated to make any reason,
(a) payments or provide any other monetary or non- monetary relief to Plaintiffs or the Settlement Class Members, any attorneys’ fees or expenses to Class Counsel, or any Service Award to the Plaintiffs. If the Settlement does not receive final and non-appealable Court approval, the Parties and their attorneys shall proceed as though the Agreement had never been entered and the Parties and their Counsel shall not cite nor reference this Agreement (except as necessary in filings or briefings in this Action only and limited solely to matters directly relating be restored to the Proposed Settlement, and not to matters touching on the prosecution or defense of status quo ante in the Action); and (b) nothing in this Agreement may be used as an admission or offered into evidence in any proceeding.
Appears in 1 contract
Samples: Class Action Settlement Agreement
Preliminary Certification of the Settlement Class.
1. Solely for the purpose of implementing this Agreement and effectuating the Proposed Settlement, Defendant stipulates to entry of a Preliminary Approval Order (in the form of the proposed Order without material changeattached as Exhibit 1 or including the substance of the proposed Order attached as Exhibit 1), preliminarily certifying the Settlement Class, appointing the Plaintiff as representative of the Settlement Class, and appointing the following as Class Counsel for the Settlement Class: XXXXXXXXXXX XXXXXXX & LIBER LLP Xxxxxx X. Xxxxx (0064834) Xxxxx X. Xxxxxx (0093921) 0000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000 Cleveland, OH 44114 (000) 000-0000 (000) 000-0000 (FAX) xxxxxx@xxxxxxxx.xxx xxxxxxx@xxxxxxxx.xxx EDELSBERG LAW, P.A. Xxxxx Xxxxxxxxx, Esq. 00000 XX 00xx Xxxxxx, Xxxxx 000 Aventura, FL 33180 Telephone: (000) 000-0000 xxxxx@xxxxxxxxxxxx.xxx XXXXXX & XXXXXXX, P.A. Xxxxxx X. Xxxxxx, Esq. 00 XX 0xx Xxxxxx, Xxxxx 000 Miami, FL 33132 Telephone: (000) 000-0000 xxxxxxx@xxxxxxxxxxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx XXXXXX XXX, P.A. Xxxxxx Xxxxxx, Esq. 00000 XX 00xx Xxxxxx, Xxxxx 000 Aventura, FL 33180 Telephone: (000) 000-0000 xxxxxx@xxxxxx.xxx XXXXXXX PLLC Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx 0000 XxXxxxx Xxxxx, Suite 175 Orlando, FL 32803 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Xx@xxxxxxxxx.xxx Xxxxx.xxxxxxxx@xxxxxxxxxxx.xxx
2. The Parties and their respective counsel agree that the settlement of this Action is not a concession by Founders Ohio Mutual that a litigation class could properly be certified in this Action, and Plaintiff and Class Counsel agree not to argue, in this or any other proceeding, that the fact of this settlement or Founders’ Ohio Mutual’s stipulation to the Certification of the Settlement Class constitutes such a concession or otherwise demonstrates the efficacy of class certificationconcession.
3. Plaintiff shall submit this fully executed Agreement to the Court Court, and request entry of the Proposed Preliminary Approval Order, which as a condition of settlement must be entered by the Court without material change alteration from Exhibit 1, or an Order that includes the substance of the Proposed Preliminary Approval Order, and specifically that:
(a) preliminarily approves this Agreement;
(b) finds that the Court possesses personal jurisdiction over all Settlement Class Members and possesses subject matter jurisdiction to preliminarily approve this Agreement;
(c) preliminarily certifies the Settlement Class, approves the Plaintiff as class representative of the Settlement Class, and appoints Class Counsel as counsel for the Settlement Class;
(d) finds that the Proposed Settlement is sufficiently fair, reasonable, and adequate to warrant providing Notice to the Settlement Class;
(e) approves the Notice Plan;
(f) approves the Claim Forms Form and Electronic Claim Form to be distributed to and/or used by Settlement Class Members, and sets a Claims Submission Deadline by which the Claim Forms and Electronic Claim Forms must be submitted in order to be deemed timely which shall be no later than fifteen twenty (1520) days after before the Final Approval Fairness Hearing;
(g) approves the settlement website as described herein, which may be amended during the course of the settlement as appropriate and agreed to by the Parties, and which shall be maintained for at least 90 180 days after the Claims Submission Deadline;
(h) appoints Simpluris, Inc. KCC as the mutually agreed up administrator as the Settlement Administrator;
(i) determines that the Notice provided to potential Settlement Class Members (i) is the best practicable notice under the circumstances; (ii) is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action and their right to object to or exclude themselves from the Proposed Settlement; and (iii) constitutes due, adequate, and sufficient notice to all Persons entitled to receive notice;
(j) schedules the Final Approval Fairness Hearing to consider the fairness, reasonableness, and adequacy of the Proposed Settlement and whether it should be finally approved by the Court on a date not sooner than 105 days after entry of the Preliminary Approval Order;
(k) requires the Settlement Administrator to file proof of completion of Notice at least ten (10) days prior to the Final Approval Fairness Hearing, along with the Opt-Out List, which shall be a list of all Persons who timely and properly requested exclusion from the Settlement Class, and an affidavit attesting to the accuracy of the Opt-Out List;
(l) requires each Settlement Class Member who wishes to exclude himself or herself from the Settlement Class to submit an appropriate, timely request for exclusion, postmarked no later than thirty (30) days prior to the Final Approval Fairness Hearing.
(m) orders that any Settlement Class Member who does not submit a timely, written request for exclusion from the Settlement Class will be bound by all proceedings, orders, and judgments in the Action even if such Settlement Class Member never received actual notice of the Action or this Proposed Settlement;
(n) provides that preliminary certification and all actions associated with preliminary certification are undertaken on the condition that the certification and designations shall be automatically vacated if this Agreement is terminated, terminated or if the Agreement is changed in any material part, or if the Agreement is disapproved in whole or in part party by the Court, any Ohio state court, the District Court of Appeals, or the Ohio Supreme Court, or if the agreement to settle is revoked, in which any such event this Agreement and the fact that it was entered into shall not be offered, received, or construed as evidence or an admission by any Party of liability or of the certifiability of any class;
(o) requires each Settlement Class Member who does not submit a timely request for exclusion from the Settlement Class and wishes to object to the fairness, reasonableness, or adequacy of this Agreement or to intervene in the Action, to follow the procedures set forth in Paragraphs 4346-48 56 of this Agreement, including those requirements applicable to any attorney representing a the Settlement Class Member;
(p) requires any attorney hired by a Settlement Class Member for the purpose of objecting to any term or aspect of this Agreement or the Proposed Settlement or intervening in this Action to provide to the Settlement Administrator (who shall forward to Class Counsel and Counsel for Ohio Mutual) and to file with Clerk of Court, a notice of appearance, no later than thirty (30) days after the Notice Date.
(q) directs the Settlement Administrator to rent a post office box to which requests for exclusion, objections, notices of intention to appear, and any other settlement-related communication may be sent, and provides that only the Settlement Administrator, the Court, the Clerk of the Court, and their designated agents shall have access to this post office box, except as otherwise expressly provided in this Agreement;
(qr) directs the Settlement Administrator to promptly provide copies of all objections, requests for exclusion, motions to intervene, notices of intention to appear, or other communications that come into its possession to Class Counsel and Defendant’s counsel;
(rs) stays all proceedings in the Action until further order of the Court, except that the Parties may conduct proceedings necessary to implement the Proposed Settlement or effectuate the terms of this Agreement; and;
(st) implements or orders any other provisions or directives or procedures not contemplated by the Parties, if necessary to comply with governing law and/or binding precedent and if such provisions do not materially alter or change the substantive terms of this Agreement; and
(u) implements appropriate termination provisions to close claims administration, including a requirement that each class member to whom a check is mailed must negotiate the check within one hundred eighty (180) days from the date of issuance, after which time the check shall become null and void, the “Negotiation Date”; and
(v) implements a date, one hundred eighty (180) days after the Claims Administrator mails the last settlement payment, to terminate the claims administration process. (The “Termination Date.”)
4. Preliminary certification of the Settlement Class and appointment of the class representative and Class Counsel for purposes of this Proposed Settlement by the Court shall be binding only with respect to the Proposed Settlement. Upon the preliminary approval of this Agreement and the Proposed Settlement, all proceedings in the Action shall be stayed until further order of the Court; provided, however, that the Parties may conduct such limited proceedings as may be necessary to implement the Proposed Settlement or to effectuate the terms of this Agreement.
5. In the event that the Proposed Settlement is not consummated for any reason,
(a) the Parties and their attorneys shall proceed as though the Agreement had never been entered and the Parties and their Counsel shall not cite nor reference this Agreement (except as necessary in filings or briefings in this Action only and limited solely to matters directly relating to the Proposed Settlement, and not to matters touching on the prosecution or defense of the Actiononly); and (b) nothing in this Agreement may be used as an admission or offered into evidence in any proceeding.
Appears in 1 contract
Samples: Class Action Settlement Agreement
