Common use of The Fairness Hearing Clause in Contracts

The Fairness Hearing. Upon entry of the Preliminary Approval Order, the Parties contemplate that the Court will schedule and then conduct a hearing at which it will consider whether the Settlement is fair, reasonable, and adequate (“Fairness Hearing”) pursuant to Rule 23 of the Federal Rules of Civil Procedure. Specifically, Plaintiff will request that the Court determine, on or after the Fairness Hearing: (i) whether to enter judgment finally approving the Settlement (which judgment is referred to herein as the “Final Order”); (ii) whether the distribution of the Settlement Proceeds as provided in the Plan of Allocation should be approved or modified; (iii) whether Plaintiff’s Counsel are entitled to an award of attorneys’ fees, costs, and expenses, and the amount of those fees, costs, and expenses, as contemplated by Article 10 below; and (iv) whether Plaintiff shall be awarded a Case Contribution Award. Class Counsel shall submit their papers in support of final approval of the Settlement, the proposed Plan of Allocation, and Plaintiff’s Counsel’s applications for attorneys’ fees, costs, expenses, and a Case Contribution Award at least forty-five (45) calendar days prior to the date of the Fairness Hearing. The Parties agree to support entry of a Final Order, including through any Review Proceeding, as contemplated by clause (i) of this Section 2.1.5 and as attached hereto as Exhibit 2. Defendants will not take any position with respect to the matters described in clauses (ii), (iii), or (iv) of this Section 2.1.5, so long as disposition of those matters is in accordance with the provisions of Articles 8 and 10 of this Settlement Agreement. The Parties covenant and agree that they will reasonably cooperate with one another in obtaining the Final Order as contemplated herein at the Fairness Hearing and will not do anything inconsistent with this Settlement Agreement in seeking to obtain the Final Order.

The Fairness Hearing. Upon entry of On the date set by the Court in its Preliminary Approval Order, the Parties contemplate that shall have participated in the Court will schedule and then conduct a hearing at which it will consider whether (the Settlement is fair, reasonable, and adequate (“Fairness Hearing”) pursuant to Rule 23 of the Federal Rules of Civil Procedure. Specifically), Plaintiff will request that during or after which the Court determine, on or after will issue the Fairness Hearing: (i) whether to enter judgment finally approving the Settlement (which judgment is referred to herein as the “Final Approval Order”); (ii) whether the distribution of the Settlement Proceeds as provided in the Plan of Allocation should be approved or modified; (iii) whether Plaintiff’s Counsel are entitled to an award of attorneys’ fees, costs, and expenses, and the amount of those fees, costs, and expenses, as contemplated by Article 10 below; and (iv) whether Plaintiff shall be awarded a Case Contribution Award. Class Counsel shall submit their papers in support of final approval of the Settlement, the proposed Plan of Allocation, and Plaintiff’s Counsel’s applications for attorneys’ fees, costs, expenses, and a Case Contribution Award at least forty-five (45) calendar days prior to the date of the Fairness Hearing. The Parties agree to support entry of a Final Order, including through any Review Proceeding, as contemplated by clause (i) of this Section 2.1.5 and as attached hereto as Exhibit 2. Defendants will not take any position with respect to the matters described in clauses (ii), (iii), or (iv) of this Section 2.1.5, so long as disposition of those matters is in accordance with the provisions of Articles 8 and 10 of this Settlement Agreement. The Parties covenant and further agree that they will reasonably cooperate with one another in obtaining the an acceptable Final Approval Order as contemplated herein at the Fairness Hearing and Hearing. The Parties will not do anything inconsistent with obtaining such a Final Approval Order in substantially the same form as attached hereto as Exhibit 2, which is an Order by the Court that: (a) the proposed Settlement between the Parties on the terms and conditions provided for in this Settlement Agreement is fair, reasonable, and adequate and should be approved by the Court; (b) final judgment should be entered; (c) the Settlement Class should be certified as a non-opt-out class meeting the applicable requirements for a settlement class imposed by Federal Rule of Civil Procedure 23; (d) the Class Notice distributed to members of the Settlement Class constituted the best notice practicable under the circumstances and sufficient notice of the Fairness Hearing and all rights of members of the Settlement Class was provided consistent with Federal Rule of Civil Procedure 23 and the requirements of due process; (e) the requirements of CAFA have been satisfied; (f) the proposed Plan of Allocation, to be filed with the Court and described below in seeking Section 9.3, has been approved; (g) Settlement Administration Expenses shall be paid from the Qualified Settlement Fund; (h) Named Plaintiffs shall be awarded Case Contribution Award(s) in the amount(s) approved by the Court, but not to obtain exceed $7,500 for each Named Plaintiff; (i) Class Counsel shall receive attorneys’ fees and reimbursement of expenses as approved by the Court, but not to exceed one-third of the Settlement Amount; (j) the Settlement Administrator shall have final authority to determine the amount of the Final Individual Dollar Recovery, if any, to be allocated to each Current Participant and Former Participant pursuant to the Plan of Allocation approved by the Court; (k) the Settlement Administrator shall distribute the Net Settlement Fund in accordance with the Plan of Allocation that is approved by the Court; (l) the payments made from the Net Settlement Fund to effect the Plan of Allocation constitute restorative payments in accordance with Revenue Ruling 2002-45; (m) all Settlement Class members and the Plan are barred and enjoined from asserting any of Plaintiffs’ Released Claims against any of the Defendant Releasees, and Defendants are barred and enjoined from asserting any of Defendants’ Released Claims against the Named Plaintiffs; (n) the Parties shall take the necessary steps to effectuate the terms of the Settlement Agreement; (o) the Action is dismissed with prejudice and without costs, except as contemplated by this Settlement Agreement; and (p) the Court shall retain jurisdiction to enforce and interpret the Settlement Agreement in accordance with its terms for the mutual benefit of the Parties, but without affecting the finality of the Final Approval Order.

The Fairness Hearing. Upon entry of On the date set by the Court in its Preliminary Approval Order, the Parties contemplate that shall have participated in the Court will schedule and then conduct a hearing at which it will consider whether (the Settlement is fair, reasonable, and adequate (“Fairness Hearing”) pursuant to Rule 23 of the Federal Rules of Civil Procedure. Specifically), Plaintiff will request that during or after which the Court determine, on or after will issue the Fairness Hearing: (i) whether to enter judgment finally approving the Settlement (which judgment is referred to herein as the “Final Approval Order”); (ii) whether the distribution of the Settlement Proceeds as provided in the Plan of Allocation should be approved or modified; (iii) whether Plaintiff’s Counsel are entitled to an award of attorneys’ fees, costs, and expenses, and the amount of those fees, costs, and expenses, as contemplated by Article 10 below; and (iv) whether Plaintiff shall be awarded a Case Contribution Award. Class Counsel shall submit their papers in support of final approval of the Settlement, the proposed Plan of Allocation, and Plaintiff’s Counsel’s applications for attorneys’ fees, costs, expenses, and a Case Contribution Award at least forty-five (45) calendar days prior to the date of the Fairness Hearing. The Parties agree to support entry of a Final Order, including through any Review Proceeding, as contemplated by clause (i) of this Section 2.1.5 and as attached hereto as Exhibit 2. Defendants will not take any position with respect to the matters described in clauses (ii), (iii), or (iv) of this Section 2.1.5, so long as disposition of those matters is in accordance with the provisions of Articles 8 and 10 of this Settlement Agreement. The Parties covenant and further agree that they will reasonably cooperate with one another in obtaining the an acceptable Final Approval Order as contemplated herein at the Fairness Hearing and Hearing. The Parties will not do anything inconsistent with obtaining such a Final Approval Order in substantially the same form as attached hereto as Exhibit 2, which is an Order by the Court that: (a) the proposed Settlement between the Parties on the terms and conditions provided for in this Settlement Agreement is fair, reasonable, and adequate and should be approved by the Court; (b) final judgment should be entered; (c) the Settlement Class should be certified as a non-opt-out class meeting the applicable requirements for a settlement class imposed by Federal Rule of Civil Procedure 23; (d) the Class Notice distributed to members of the Settlement Class constituted the best notice practicable under the circumstances and sufficient notice of the Fairness Hearing and all rights of members of the Settlement Class was provided consistent with Federal Rule of Civil Procedure 23 and the requirements of due process; (e) the requirements of CAFA have been satisfied; (f) the proposed Plan of Allocation, to be filed with the Court and referenced in seeking Section 9.3, has been approved; (g) Settlement Administration Expenses shall be paid from the Qualified Settlement Fund; (h) Named Plaintiffs shall be awarded Case Contribution Award(s) in the amount(s) approved by the Court, but not to obtain exceed $5,000 for each Named Plaintiff; (i) Class Counsel shall receive attorneys’ fees and reimbursement of expenses as approved by the Court, but not to exceed 33% of the Settlement Amount; (j) the Settlement Administrator shall have final authority to determine the amount of the Final Individual Dollar Recovery to be allocated to each Current Participant and Former Participant pursuant to the Plan of Allocation approved by the Court; (k) the Settlement Administrator shall distribute the Net Settlement Fund in accordance with the Plan of Allocation that is approved by the Court; (l) the payments made from the Net Settlement Fund to effectuate the Plan of Allocation constitute restorative payments in accordance with Revenue Ruling 2002-45; (m) all Settlement Class members and the Plan are barred and enjoined from asserting any of Plaintiffs’ Released Claims against any of the Defendant Releasees, and Defendants are barred and enjoined from asserting any of Defendants’ Released Claims against the Named Plaintiffs; (n) the Parties shall take the necessary steps to effectuate the terms of the Settlement Agreement; (o) the Action is dismissed with prejudice and without costs, except as contemplated by this Settlement Agreement; and (p) the Court shall retain jurisdiction to enforce and interpret the Settlement Agreement in accordance with its terms for the mutual benefit of the Parties, but without affecting the finality of the Final Approval Order.