IN RE MAUI WILDFIRES CLASS SETTLEMENT AGREEMENT
EXECUTION VERSION
HEI Exhibit 10.1
IN RE MAUI WILDFIRES
This CLASS SETTLEMENT AGREEMENT, dated as of November 1, 2024 (the “Settlement Date”), is made and entered into by and among Class Counsel, Class Representatives, and Defendants, who are parties to the Consolidated Complaint arising out of the Maui windstorm and fires of August 2023, including the fires in Lahaina, Kula, and Olinda (“Maui Fires”). This Class Settlement Agreement, together with the Individual Settlement Agreement that Defendants are entering into simultaneously, is intended by the Parties to fully and finally compromise, settle, resolve, discharge, release, and dismiss with prejudice on a comprehensive, global basis all Released Claims against the Releasees, as set forth below, under the terms set forth herein, subject to review and approval by the Approving Court and satisfaction of all other Conditions set forth below.
Capitalized terms have the meaning provided in Article II unless this Class Settlement Agreement provides otherwise.
ARTICLE I: RECITALS
1.1 Multiple actions against Defendants are pending in state and federal courts arising out of the Maui Fires. Those include putative class actions, actions filed by Individual Action Plaintiffs, actions filed by Subrogation Plaintiffs, and actions filed by Defendants against one another, as well as cross-, counter-, and third-party claims in these Actions. All of the Actions allege injury—including property damage (real and personal), personal injury, wrongful death, non-economic damages such as emotional distress and inconvenience, and economic loss—incurred as a result of the Maui Fires. Plaintiffs and Subrogation Plaintiffs seek to hold Defendants liable under various theories of liability, including negligence, inverse condemnation, nuisance, trespass, and abnormally dangerous activity. Plaintiffs and Subrogation Plaintiffs seek compensatory, punitive, and exemplary damages; medical monitoring; and injunctive and other equitable relief.
1.2 On October 27, 2023, the Xxx. Xxxxx X. Xxxxxx created a Special Proceeding for all cases that had been or would be brought by Individual Action Plaintiffs relating to the Maui Fires in the Second Circuit Court, State of Hawai‘i (Case No. 2CSP-23-0000057).
1.3 On January 12, 2024, a group of Subrogation Plaintiffs filed a complaint against certain Defendants in the First Circuit Court, State of Hawai‘i, before the Xxx. Xxxx X. Xxxxxx (Case No. 1CCV-24-0000068), seeking to recover for payments made to Subrogation Plaintiffs’ insureds for allegedly covered claims, including for real and personal property loss or damage, business interruption, and alternate living expenses, arising from the Lahaina fire. Two other similar lawsuits were filed in the First Circuit Court by other Subrogation Plaintiffs, Case Nos. 1CCV-24-0000179 and 1CCV-24-0000437, and several lawsuits have been filed in the Second Circuit Court by other Subrogation Plaintiffs. On October 21, 2024, Judge Xxxxxx entered a written order transferring each of these three cases to the Second Circuit.
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1.4 On April 25, 2024, the Xxx. Xxxxx X. Kurren consolidated three class actions pending in the United States District Court for the District of Hawai‘i into a single putative class action, In re Lahaina Wildfire Litigation, which came to be identified with the Case No. 1:24-cv-00259-JAO-BMK. On June 4, 2024, Class Counsel filed a consolidated complaint. On October 29, 2024, the parties to In re Lahaina Wildfire Litigation stipulated to dismiss that case. On October 30, 2024, Class Counsel filed the Consolidated Complaint in the Second Circuit Court, State of Hawai‘i, Case No. 2CCV-24-0000964.
1.5 Defendants deny having any liability for any claims, causes of action, costs, expenses, attorneys’ fees, or damages of any kind arising out of the Maui Fires. Defendants have asserted or intend to assert legal and factual defenses against Plaintiffs’ claims in the Actions filed against them.
1.6 Plaintiffs, through their counsel, have engaged in substantial fact investigation to evaluate the merits of their claims and Defendants’ defenses, including reviewing thousands of pages of documents produced in discovery, deposing multiple witnesses (including from multiple Defendants), retaining expert consultants, and inspecting evidence and real and personal properties. Plaintiffs also have analyzed the legal issues raised by their claims and Defendants’ defenses as well as the insurance coverage, solvency, and financial resources of the Defendants to evaluate their ability to pay settlements and verdicts.
1.7 In spring 2024, Judge Xxxxxx appointed the Xxx. Xxxxx Xxxxxxxxx (xxx.), the Hon. Xxxxxx Xxxxxxx (xxx.), and Xxxxx Xxxxxx as settlement mediators (collectively, the “Mediators”) in the Special Proceeding. Representatives of the Parties then conducted multiple mediation sessions over nearly four months. The mediation sessions included attorneys representing Individual Action Plaintiffs and Class Plaintiffs (including Class Counsel) who had filed (or intended to file) tort and any other claims related to the Maui Fires, whether on an individual, representative, or class basis in state or federal court; attorneys representing Subrogation Plaintiffs; and attorneys representing Defendants. The Mediators ultimately made a Mediators’ proposal that reflected their informed view of the maximum amount that Defendants could fairly and practicably contribute based on the facts and circumstances of the case, including potential exposure, availability of insurance, and limitations on ability to pay. The Mediators proposed that Defendants contribute the Aggregate Settlement Amount, according to a payment schedule, to reach a global settlement of all Released Claims. The Mediators also proposed what each Defendant’s respective share of the Aggregate Settlement Amount would be.
1.8 On August 2, 2024, the Parties entered into a Term Sheet setting forth the material terms and conditions for a comprehensive global settlement to resolve, release, and forever discharge all Released Claims, expressly providing that the comprehensive global settlement fund in the amount of the Aggregate Settlement Amount must fully resolve all Released Claims, including those that had been brought or could have been brought by all Plaintiffs, including Individual Plaintiffs and Class Plaintiffs, Defendants, the Subrogation Plaintiffs, any other
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insurers or entities that have or may have subrogation claims, and any relevant federal agency or department.1
1.9 The Parties thereafter agreed to create two settlement funds to effectuate the global settlement contemplated by the Term Sheet: the Class Settlement Fund and the Individual Settlement Fund. Class Counsel and Liaison Counsel have agreed to decide the Individual Settlement Amount and the Class Settlement Amount through the procedure contemplated under Section 3.1.4.
1.10 The Parties negotiated two settlement agreements: this Class Settlement Agreement, to which Class Counsel, the Class Representatives, and Defendants are signatories, which will govern administration of the Class Settlement Fund and the release of all Maui Fires claims by Class Plaintiffs; and the Individual Settlement Agreement, to which Identified Plaintiffs’ Counsel and Defendants are signatories, which is attached hereto as Exhibit 1, and which will govern administration of the Individual Settlement Fund and the release of all Maui Fires claims by Individual Plaintiffs. Together, these two funds and two agreements are intended to achieve a global resolution of all Released Claims. All Parties to these agreements understand that it is a condition to either agreement becoming final and effective that the other is also final and effective.
1.11 Upon careful review and analysis, Class Counsel have concluded that it is in the best interests of the Class Plaintiffs to settle all Released Claims against the Releasees for consideration reflected in the terms and benefits of this Class Settlement Agreement. After arm’s length negotiations, including through the efforts of the Mediators, Class Counsel have considered, among other things: (1) the complexity, expense, and likely duration of the litigation, through trial and any appeals that might be taken; (2) the stage of the litigation and amount of fact gathering and expert development completed; (3) the potential for Defendants to prevail on the merits, in whole or in part, and as to any Defendant, on liability issues; (4) the Defendants’ defenses to damages and the challenges in proving damages as to each Class Plaintiff; (5) the range of possible recovery; (6) each Defendant’s ability to pay; (7) the availability of insurance; (8) the benefits of a settlement at this time to Class Plaintiffs; (9) the benefits and challenges of a global resolution and alternative resolution mechanisms, including potential bankruptcy proceedings for certain Defendants; and (10) the Mediators’ reasoned proposal, and they have determined that the Aggregate Settlement Amount and the process for determining the Class Settlement Amount are fair, reasonable, adequate, and in the best interests of Class Plaintiffs, as are the terms of this Class Settlement Agreement generally. Class Counsel further represent that they have no current intention to file claims arising out of the Maui Fires against any additional Persons that are not Defendants.
1.12 Upon careful review and analysis, each Defendant has similarly concluded that it is in its best interests to settle all Released Claims against all other Defendants. After arm’s length negotiations, including through the efforts of the Mediators, each Defendant has considered, among other things: (1) the complexity, expense, and likely duration of the litigation,
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1 The Term Sheet excluded from the definition of Released Claims certain derivative and securities claims asserted against the Hawaiian Electric parties, as reflected in Section 2.2 of this Class Settlement Agreement.
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through trial and any appeals that might be taken; (2) the stage of the litigation and amount of fact gathering and expert analysis completed; (3) the potential for both Plaintiffs and other Defendants to prevail on the merits, in whole or in part; (4) the other Defendants’ defenses to damages and the challenges in proving damages as to each other Defendant; (5) the range of possible recovery; (6) each Defendant’s ability to pay; (7) the availability of insurance; (8) the benefits of a global settlement with all Parties at this time; and (9) the Mediators’ proposal. Considering all of these factors, each Defendant has determined that the release provisions in this Class Settlement Agreement are reasonable, fair, adequate, and in its best interests, as are the terms of this Class Settlement Agreement generally.
1.13 The Class Parties agree to seek review and approval of the Class Settlement Agreement from the applicable Approving Court(s), and, upon Preliminary Approval, and after completion of all interim steps as described in this Class Settlement Agreement, the Class Parties will seek a Final Order and Judgment from the Approving Court(s), and will further seek orders and/or judgments dismissing all of the Actions with prejudice, as described more particularly below.
1.14 Neither the Class Settlement Agreement nor the Individual Settlement Agreement will be construed as evidence, or as an admission by Releasees of any liability or wrongdoing whatsoever, as an admission by the Plaintiffs of any lack of merit in their claims, or as evidence or an admission of the value of the Plaintiffs’ claims.
1.15 By entering this Class Settlement Agreement, neither the State of Hawai‘i nor the County of Maui, and their respective officers, employees, and departments, waives any immunity that any of them may have, except to the extent necessary for the interpretation or enforcement of this Class Settlement Agreement.
1.16 NOW, THEREFORE, in consideration of the agreements, promises, and covenants set forth in this Class Settlement Agreement, the Actions and all Released Claims by all Releasors shall be settled and compromised under the following terms and conditions:
ARTICLE II: DEFINITIONS
2.1 For the purposes of this Class Settlement Agreement, the following terms (designated by initial capitalization throughout this Class Settlement Agreement) will have the meanings set forth in this Article. Where a term is not capitalized, it shall have its ordinary meaning, in the context of the sentence, rather than the defined meaning.
2.2 “Actions” means all lawsuits against any Defendant(s) arising out of the Maui Fires, including all individual and putative class actions whether filed in state or federal court, and including complaints filed by Subrogation Plaintiffs, but not including derivative and securities claims asserted in the following cases: Bhangal v. XXX, et al., Case No. 3:23-cv-04332 (N.D. Cal.); Xxxx x. Xxxxxxx, et al., Case No. 1CCV-23-0001181 (Haw. Cir. Ct.); In re Hawaiian Electric Industries, Inc. and Hawaiian Electric Company, Inc. Derivative Litigation, Case No. 3:23-cv-06627 (N.D. Cal.); In re Hawaiian Electric Industries, Inc., Stockholder Derivative Litigation, Case No. 24-cv-00164 (D. Haw.). For avoidance of doubt, nothing in this Class
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Settlement Agreement should be construed to directly release, dismiss, or otherwise extinguish these derivative and securities claims.
2.3 “Affiliate” means, with respect to a Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that Person.
2.4 “Aggregate Settlement Amount” means the $4.037 billion total, aggregate payment to be made by Defendants to Plaintiffs by funding the Class Settlement Fund and Individual Settlement Fund, or such lesser amount as may be agreed pursuant to Section 3.3 of this Class Settlement Agreement, and Section 3.3 of the Individual Settlement Agreement. For avoidance of doubt, the Aggregate Settlement Amount includes the amount paid to the County under Section 4.1.2(k) of the Individual Settlement Agreement, which is paid from the Individual Settlement Fund.
2.5 “Approved Investments” shall have the meaning specified in Section 3.2.3.
2.6 “Approving Court” shall mean any court of competent jurisdiction to which a motion, petition, or request is made to approve or authorize the implementation of the Class Settlement Agreement or Class Settlement Plan, in whole or in part, or the Individual Settlement Agreement, or any Individual Settlement Agreement and Release, or the Individual Settlement Plan (as defined in the Individual Settlement Agreement), in whole or in part.
2.7 “Business Interruption – Within Fire Perimeters Claim” means any claim by any Person that allegedly owned or operated a business, excluding income-earning residential or commercial real property, within the Fire Perimeters for business income losses as a result of property damage caused by the Maui Fires, but is limited to businesses that have a business license and/or paid business taxes in 2022 or 2023. For the avoidance of doubt, a claim for loss of or damage to real property is not a Business Interruption – Within Fire Perimeters Claim, but may be either a Residential Property Loss – Within Fire Perimeters Claim or a Commercial Property Loss – Within Fire Perimeters Claim.
2.8 “Class Claimant” means any Person who files a claim for or receives a Monetary Award from the Class Settlement Fund.
2.9 “Class Counsel” means the class action counsel who are signatories to the Class Settlement Agreement.
2.10 “Class Parties” means the Class Plaintiffs and Defendants.
2.11 “Class Plaintiff Releasors” shall refer jointly and severally, individually and collectively to all Class Plaintiffs, and their respective past and present, direct and indirect, parents, guardians, conservators, fiduciaries, next friends, next of kin, subsidiaries, Affiliates, officers, directors, employees, agents, attorneys, servants, representatives, general partners, limited partners, members, managers, member managers, and joint venturers (and any of the foregoing listed individuals’ or entities’ past and present officers, directors, employees, agents, attorneys, servants, representatives, general partners, limited partners, members, managers, member managers, and joint venturers), insurers (including any Subrogation Insurers), any
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person who may be a claimant under Hawai‘i Revised Statute § 663-3, and the predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing.
2.12 “Class Plaintiffs” means all Persons included within the Settlement Class who do not timely and validly elect to opt-out of the Settlement Class pursuant to the procedures set forth in the Class Notice.
2.13 “Class Representatives” means the named plaintiffs in the Consolidated Complaint.
2.14 “Class Settlement Administration Expenses” means the costs incurred in administering this Class Settlement Agreement, including the costs of class notice and payments to the Class Settlement Administrator, which will be paid from the Class Settlement Fund.
2.15 “Class Settlement Administrator” has the meaning specified in Section 3.8.
2.16 “Class Settlement Agreement” means this settlement agreement and all accompanying exhibits, including any subsequent amendments thereto and any exhibits to such amendments.
2.17 “Class Settlement Amount” means the total payment to be made to the Class Settlement Fund by the Defendants out of the Aggregate Settlement Amount, or such lesser amount as may be agreed pursuant to Section 3.3, as determined by Section 3.1.4.
2.18 “Class Settlement Fund” has the meaning described in Article III.
2.19 “Class Settlement Percentage” means the Class Settlement Amount divided by the Aggregate Settlement Amount, or such lesser amount as may be agreed pursuant to Section 3.3.
2.20 “Class Settlement Plan” has the meaning described in Article IV.
2.21 “Commercial Property Loss – Within Fire Perimeters Claim” means any claim by the owner of real property within the Fire Perimeters that was partially or fully destroyed by the Maui Fires, for loss of or damage to that property and/or the contents thereof, that is not a Residential Property Loss – Within Fire Perimeters Claim. For avoidance of doubt, these properties include apartments, apartment buildings, condominium buildings (but not individual condominium units), but exclude home businesses that meet the definition of Residential Property Loss – Within Fire Perimeters Claims.
2.22 “Conditions” has the meaning provided for in Section 3.3.
2.23 “Consolidated Complaint” is the operative class action complaint in Burnes, et al. v. Hawaiian Electric Co., Inc., et al., Case No. 2CCV-24-0000964 (Haw. Cir. Ct.).
2.24 “Defendant Releasors” shall refer jointly and severally, individually and collectively to all Defendants, and their respective past and present, direct and indirect, parents, guardians, conservators, fiduciaries, next friends, subsidiaries, Affiliates, officers, directors, employees, agents, attorneys, servants, and representatives (and any of the foregoing listed
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Persons’ past and present officers, directors, employees, agents, attorneys, servants, and representatives), insurers (including any Subrogation Insurers), any person who may be a claimant under Hawai‘i Revised Statute § 663-3, and the predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing.
2.25 “Defendants” means all of the following Persons:
2.25.1 The State of Hawai‘i and all of its subdivisions, agencies, and departments (the “State”);
2.25.2 The County of Maui and all of its subdivisions, agencies, and departments (the “County”);
2.25.3 Hawaiian Electric Company, Inc. and Hawaiian Electric Industries, Inc. (together, “Hawaiian Electric”). (For the avoidance of doubt, Maui Electric Company, Limited, and Hawaii Electric Light Company, Inc. are not Defendants, although they are named as defendants in pending Actions. They are intended beneficiaries of this Class Settlement Agreement, and are Releasees);
2.25.4 The Trustees of the Estate of Xxxxxxx Xxxxxx Xxxxxx: Xxxxxx Kawaiho‘xxxxx Xxxxx, Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxx Xxxxxxxx-Ka‘ōpua, Xxxxxxxx Xx‘xxxxx, and Xxxxxx X.X.X. Xxxxxxx, in their fiduciary capacities as said Trustees, and not in their individual capacities (collectively, “KS”);
2.25.5 Spectrum Oceanic, LLC (“Spectrum”) and Charter Communications, Inc.;
2.25.6 Cincinnati Bell Inc. and Hawaiian Telcom, Inc. (collectively, “Hawaiian Telcom”); and
2.25.7 The West Maui Land Company, Inc. and certain Affiliates, including Launiupoko Irrigation Company, Inc., Hope Builders Holding LLC, Kauaula Land Company LLC, Makila Land Co., LLC, Hope Builders LLC nka Hope Builders, Inc., Launiupoko Water Company, Inc., Kauaula Land Company LLC, Kipa Centennial LLC, Wainee Land & Homes, LLC, Xxxxx Xxxxx Xxxxxx, individually and as trustee of the Xxxxx Xxxxx Xxxxxx Revocable Trust, JV Enterprises, LLC, Xxxxx Xxxx Xxxxxxx, individually and as personal representative of the Estate of Xxxxxxx Xxxxxxx, Xxxxxx Xxxxx, as trustee of the Xxxxxx Xxxxx Trust and Successor Trustee of the Xxxxx Xxxxx trust, Makila Ranches Homeowners Association, Inc., Makila Ranches, Inc., and Olowalu Elua Associates LLC (collectively, “West Maui Land”).
2.26 “Eligible Relatives” means any surviving spouse of, reciprocal beneficiary of, child of, father of, mother of, and any person wholly or partly dependent upon a person who died or suffered physical injury due to the Maui Fires, or any other Person who asserts a claim based on the death or physical injury of another due to the Maui Fires.
2.27 “Evacuation Claim” means any claim for damages arising from or relating to evacuation from the Maui Fires by any claimant who was present within the Fire Perimeters during the times outlined below and does not have a Serious Evacuation Claim.
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2.27.1 Lahaina Fire: 6:30 a.m. on August 8, 2023 to 9:00 a.m. on August 9, 2023.
2.27.2 Kula Fire: 11:20 a.m. on August 8, 2023 to 9:00 a.m. on August 9, 2023.
2.27.3 Olinda Fire: 10:45 p.m. on August 7, 2023 to 9:00 a.m. on August 9, 2023.
2.28 “Excluded Person” means any Person who, as of the deadline to submit an Opt Out Form, has executed and delivered to the Class Settlement Administrator an Individual Settlement Agreement and Release.
2.29 “Final Approval” means the Approving Court issuing an order granting the motion described in Section 9.4.
2.30 “Final Order and Judgment” means the final judgment and order entered by the Approving Court finally approving the Class Settlement Agreement and Class Settlement Plan as set forth in Section 9.4.
2.31 “Final and Unappealable” means, with respect to a judgment, order, or opinion, that such judgment, order, or opinion has achieved any one of the following criteria: (1) all Persons with a right to appeal the judgment, order, or opinion have waived or forfeited their right to do so; (2) the time to appeal has expired with no appeal filed; (3) the judgment, order, or opinion has been affirmed by an appellate court with no further possibility of appeal; or (4) all appeals from the judgment, order, or opinion have been dismissed.
2.32 “Fire Perimeters” means the boundaries of the geographic areas burned by the August 2023 fires in Lahaina, Kula, and Olinda, respectively, as determined by the Wildland Fire Interagency Geospatial Services (“WFIGS”) Group and as reflected in the WFIGS Interagency Fire Perimeters maps maintained by the National Interagency Fire Center, and attached hereto as Exhibit 3. Lahaina Fire Perimeter, Kula Fire Perimeter, or Olinda Fire Perimeter refer to the specific fire perimeter for the August 8, 2023, fire in that respective area.
2.33 “Government Entities” means any government agency, department, division, subdivision, unit, component, bureau, commission, office, board, or instrumentality of any kind, including federal, state, and municipal entities, that could assert any Released Claim against any Releasee.
2.34 “Hawaiian Electric” has the meaning specified in Section 2.25.3.
2.35 “Holdback Claim” has the meaning specified in Section 8.3.3.
2.36 “Holdback Credit” has the meaning specified in Section 8.3.4.
2.37 “Holdback Fund” has the meaning specified in Section 8.3.
2.38 “Holdback Remainder Amount” has the meaning specified in Section 8.3.5(c).
2.39 “Identified Plaintiffs’ Counsel” mean the attorneys representing Individual Action Plaintiffs who are signatories to the Individual Settlement Agreement.
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2.40 “Immediate Family Member” means, as to a Person, a spouse, reciprocal beneficiary, child, sibling, parent, grandparent, grandchild, stepparent, stepchild, stepsibling, and equivalent adoptive relationships.
2.41 “Individual Action Plaintiffs” means individual plaintiffs who have pending Actions as of the Settlement Date.
2.42 “Individual Defendant Aggregate Contribution” means the sum of each Defendant’s Individual Defendant Class Contribution and Individual Defendant IP Contribution.
2.43 “Individual Defendant Class Contribution” means the amount each Defendant has agreed to contribute to the Class Settlement Fund, as further described in Sections 3.1 and 3.3.
2.44 “Individual Defendant IP Contribution” means the amount each Defendant has agreed to contribute to the Individual Settlement Fund, as described in the Individual Settlement Agreement.
2.45 “Individual Plaintiffs” means all Persons who timely and validly execute a signed Individual Settlement Agreement and Release in the form attached to the Individual Settlement Agreement as Exhibit 4.
2.46 “Individual Settlement Administrator” means the settlement administrator for the Individual Settlement Fund, as described in Section 3.8 of the Individual Settlement Agreement.
2.47 “Individual Settlement Agreement” means the settlement agreement signed by Identified Plaintiffs’ Counsel and Defendants to provide for the release of all Released Claims by Individual Plaintiffs, attached hereto as Exhibit 1.
2.48 “Individual Settlement Agreement and Release” means the document that each Individual Plaintiff must sign to become an Individual Plaintiff.
2.49 “Individual Settlement Amount” means the total payment to be made to the Individual Settlement Fund by the Defendants out of the Aggregate Settlement Amount, or such lesser amount as may be agreed pursuant to Section 3.3, as determined by Section 3.1.4.
2.50 “Individual Settlement Fund” means the fund created to provide Monetary Awards to Individual Plaintiffs, as described in the Individual Settlement Agreement.
2.51 “Initial Defendant Payment” means the total amount due to be paid by each individual Defendant on the Initial Payment Due Date to the Class Settlement Fund and the Individual Settlement Fund (cumulatively) but does not include any subsequent payments pursuant to a payment schedule.
2.52 “Initial Payment Due Date” means the initial deadline for each Defendant to make its Initial Defendant Payment as described in Section 3.3.
2.53 “Liaison Counsel” means the court-appointed Liaison Counsel pursuant to Case Management Order No. 1 entered in the Special Proceeding who are signatories to the Individual
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Settlement Agreement, namely Xxxxxxx X. Xxxx, Xxxxx Xxx Xxxxx, Xxxxx Xxxxxxxxx, and Xxx X. Apo.
2.54 “Litigation Trustee” means an individual appointed by Plaintiffs’ Counsel and approved by the Court to manage any litigation arising from non-payment of any part of an Individual Aggregate Defendant Contribution. For the avoidance of doubt, the “Litigation Trustee” is the same individual designated “Litigation Trustee” in the Individual Settlement Agreement.
2.55 “Maui Fires” has the meaning as specified in the opening paragraph of this Class Settlement Agreement.
2.56 “Mediators” has the meaning as specified in Section 1.7.
2.57 “Monetary Award” means the payment of money from the Class Settlement Fund to a Class Claimant as set forth in Section 4.1.
2.58 “Necessary Approvals” means those Conditions identified in Section 3.3.1(a), (b), (c), and (d).
2.59 “Necessary Holdback Amount” has the meaning specified in Section 8.3.5(b).
2.60 “Non-Participant” means any Person who is a member of the Settlement Class who opts out and, as of the day after the Return Date, is not an Individual Plaintiff.
2.61 “Non-State Defendants” means all Defendants except for the State.
2.62 “One Ohana Fund” means the Maui Wildfires Compensation Program entered into on March 1, 2024.
2.63 “Opt Out Form” means the form, under Section 4.3, that must be timely and properly submitted by a member of the Settlement Class for that Person to not become a Class Plaintiff.
2.64 “Parties” means, collectively, Defendants and Plaintiffs.
2.65 “Person” means an individual, corporation, company, partnership, limited liability company, joint venture, association, trust, or other entity, including a government agency, division, or department.
2.66 “Plaintiffs” means, collectively, all Individual Plaintiffs and Class Plaintiffs.
2.67 “Plaintiffs’ Counsel” means, collectively, Class Counsel and Liaison Counsel.
2.68 “Preliminary Approval” means an Approving Court issuing an order granting the motion described in Section 9.1.
2.69 “Released Claims” means all claims, counterclaims, cross-claims, actions, rights, disputes, and causes of action of any kind or nature whatsoever, including claims for relief,
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damages, liabilities, suits, arbitrations, costs, expenses, compensations, fees, attorneys’ fees, experts’ and consultants’ fees, demands, injuries, and/or losses, including, but not limited to, economic losses, medical expenses, emotional distress, property damage, diminution in property value, business interruption damages, lost profits, personal injury, medical monitoring, wrongful death, contribution, and indemnity, whether based on federal, state, local, common, or foreign law, in contract, statute, rule, ordinance, administrative provision or regulation, tort, equity, or otherwise, whether foreign or domestic, whether asserted or unasserted, known or unknown, suspected or unsuspected, liquidated or unliquidated, matured or unmatured, discoverable or undiscoverable, foreseen or unforeseen, fixed or contingent, accrued or unaccrued, direct or indirect, including those that are concealed or hidden, whether class or individual in nature, past, present, or future, in contract, statute, tort, equity, or otherwise, arising from, resulting from, due to, or relating in any way to the Maui Fires.
2.70 “Releasees” shall refer jointly and severally, individually and collectively to Defendants and all of their past, present, and future, direct or indirect, respective departments, holding companies, Affiliates, related companies, parent entities, subsidiaries, predecessors, and successors; all of their respective past, present, and future, direct or indirect, employees, stockholders, shareholders, officers, directors, boards of directors, agents, advisors, accountants, attorneys, representatives, employees, adjusters, insurers, reinsurers, assigns, general partners, limited partners, members, managers, member managers, funds, investors, co-investors, investment managers, investment vehicles, investment accounts, portfolio companies, principals, joint venturers, transferees, heirs, beneficiaries, executors, estate administrators, trustees, associates, or personal representatives, contractors, subcontractors, and vendors. The Releasees shall include, without limitation, the Persons listed on Exhibit 5 hereto. Releasees that are not Defendants are intended third-party beneficiaries under the Class Settlement Agreement that have relied upon and may enforce the Class Settlement Agreement.
2.71 “Releasors” shall refer collectively to Class Plaintiff Releasors and Defendant Releasors.
2.72 “Renter – Within Fire Perimeters Claim” means any claim for loss of, or damage to, personal property as a result of the Maui Fires by a Person who resided in and/or rented, but did not own, residential property within the Fire Perimeters.
2.73 “Residential Property Loss – Within Fire Perimeters Claim” means any claim by the owner of real property within the Fire Perimeters that was used for residential purposes and was partially or fully destroyed by the Maui Fires for loss of or damage to that real property and the contents thereof. For the avoidance of doubt, these properties include single family residences and units in condominiums, duplexes, and similar structures, whether or not rented or occupied, and whether or not a primary residence, but exclude apartments.
2.74 “Return Date” means the deadline for Individual Plaintiffs to provide the Administrator with signed Individual Settlement Agreement and Releases, which shall be 60 days after the deadline to opt out of the Settlement Class.
2.75 “Serious Evacuation Claim” means any claim for damages arising from or relating to evacuation from the Maui Fires by any claimant who was present within the Fire
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Perimeters at the times specified in Section 2.27.1, 2.27.2, or 2.27.3, and was in danger of immediate bodily harm.
2.76 “Serious Physical Injury Claim” means any claim for alleged physical injury as a result of the Maui Fires that meets one or more of the following conditions:
2.76.1 injuries requiring overnight hospitalization for one or more nights;
2.76.2 second- or third-degree xxxxx;
2.76.3 cardiac arrest, stroke, and/or acute heart failure that occurred or was diagnosed between August 8, 2023 and August 15, 2023;
2.76.4 inhalational lung injuries requiring hospitalization and/or resulting in chronic functional lung impairment;
2.76.5 brain injuries that occurred or were diagnosed between August 8, 2023 and August 15, 2023;
2.76.6 spinal injuries that occurred or were diagnosed between August 8, 2023 and August 15, 2023;
2.76.7 any injury that resulted in at least $30,000 in medical costs (whether or not paid out of pocket by the claimant).
2.77 “Settlement Class” means all Persons who (1) owned, rented, or resided on real property, or owned personal property, within the Fire Perimeters or within 0.5 miles of the Fire Perimeters on August 8, 2023, (2) owned, operated, or otherwise worked for or in connection with a business within the Fire Perimeters or within 0.5 miles of the Fire Perimeters at any time between August 8, 2023 and October 8, 2023, (3) were present within the Fire Perimeters or within 5 miles of the Fire Perimeters at any time between August 8, 2023 and 9:00 a.m. on August 9, 2023, (4) suffered physical injury due to the Maui Fires, or are Eligible Relatives of such persons, (5) are personal representatives or Eligible Relatives of a person who died due to the Maui Fires, (6) are Immediate Family Members of Persons who were present within the Fire Perimeters on August 8, 2023; (7) purchased a ticket prior to August 8, 2023 for travel by plane or ship to Maui between August 8, 2023 and October 8, 2023, and suffered economic loss that was not fully refunded due to trip cancellation or delay; or (8) had damage to their property on Maui between August 8, 2023 and October 8, 2023 from the Maui Fires; or (9) owned or operated a business on Maui that suffered damages resulting from a decline in tourism between August 8, 2023 and October 8, 2023. Excluded from the Settlement Class are: (a) Defendants and their counsel; (b) the judicial officers to whom any Actions are assigned; (c) insurers and insurance syndicates that claim or could claim damage or harm regarding the Maui Fires arising out of a right of subrogation or reimbursement; and (d) any Excluded Person. For the avoidance of doubt, exclusion (c) does not preclude an insurer from submitting a claim on behalf of its policyholder as set forth in Section 4.1.2(k).
2.78 “Settlement Date” has the meaning specified in the opening paragraph of this Class Settlement Agreement.
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2.79 “Special Proceeding” means that special proceeding opened in the Second Circuit Court, State of Hawai‘i, by Judge Xxxxxx on October 27, 2023, captioned In the Matter of the Petition for the Coordination of Individual Plaintiffs Maui Fires Cases, Case No. 2CSP-23-0000057.
2.80 “Subrogation Plaintiffs” means all plaintiffs in the following actions originally filed as: Amguard Insurance, et al. x. XXXX, et al., Case No. 1CCV-24-0000068 (Haw. Cir. Ct.); Certain Underwriters at Lloyd’s London Subscribing to Policy Number TRIB223061 x. XXXX, et al., Case No. 1CCV-24-0000179 (Haw. Cir. Ct.); Hyundai Marine & Fire Insurance Company, Ltd. x. XXXX, et al., Case No. 1CCV-24-0000437 (Haw. Cir. Ct.); The Dentist Insurance Co. x. XXXX, et al., Case Nos. 2CCV-24-0000668, 2CCV-24-0000800, 2CCV-24-0000801, 2CCV-24-0000802 (Haw. Cir. Ct.). Subrogation Plaintiffs also include any other insurance carriers with subrogation claims arising out of the Maui Fires that are represented by any law firm in those actions, and, for the avoidance of doubt, other Persons to whom any insurance carrier has assigned the rights, title, interest, or proceeds of a subrogation claim arising out of the Maui Fires.
2.81 “Subrogation Insurers” means any insurer or insurance syndicate that paid, or reserved for future payment, any property damage claims (including business loss or interruption) arising out of the Maui Fires, including but not limited to the Subrogation Plaintiffs, and, for the avoidance of doubt, other Persons to whom any such insurer or insurance syndicate has assigned the rights, title, interest, or proceeds for claims arising out of such payments or reservations.
2.82 “Term Sheet” means that certain settlement term sheet dated August 2, 2024.
2.83 “Termination Event” has the meaning specified in Section 8.1.3.
2.84 “Wrongful Death Claim” means any claim (a) for alleged wrongful death by any Person, such as a personal representative, authorized by law to bring a claim on behalf of any individual identified on Exhibit 6 or any other individual who, to a reasonable degree of medical certainty, died as a result of the Maui Fires; and (b) by an Eligible Relative for recovery of damages allegedly caused by the death of any such individual.
2.85 Unless the context requires otherwise, (i) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (ii) the word “or” shall be construed in its inclusive sense to have the same meaning and effect as the words “and/or”; (iii) the word “extent” in the phrase “to the extent” will mean the degree to which a subject or other thing extends, and such phrase will not simply mean “if”; (iv) references to “day” or “days” in the lower case are to calendar days, but if the last day is a Saturday, Sunday, or legal holiday (as defined in Haw. Rev. Stat. § 8-1), the period will continue to run until the end of the next day that is not a Saturday, Sunday, or legal holiday; (v) references to this Settlement Agreement will include all exhibits, schedules, and annexes hereto; (vi) references to any law will include all rules and regulations promulgated thereunder; (vii) the terms “include,” “includes,” and “including” will be deemed to be followed by “without limitation,” whether or not they are in fact followed by such words or words of similar import; (viii) when a capitalized singular form of a plural defined term is used, it refers to any one of the defined term; (ix) when a capitalized
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plural form of a singular defined term is used, it refers to one or more of the defined term; (x) references to dollars or “$” are to United States dollars; and (xi) all day and time references are based on Hawai‘i Standard Time.
ARTICLE III: SETTLEMENT FUND
3.1 Defendant Aggregate Contributions. In consideration of the releases set forth in Article VII of this Class Settlement Agreement and Article VII of the Individual Settlement Agreement, the dismissal with prejudice of the Actions, and the terms and conditions of both the Class Settlement Agreement and the Individual Settlement Agreement, each Defendant will, in addition to performing its other obligations set forth in this Class Settlement Agreement, pay or cause to be paid its Individual Defendant Aggregate Settlement Contribution at the times and in the amounts set forth in Section 3.3 of this Class Settlement Agreement and Section 3.3 of the Individual Settlement Agreement, with each Defendant’s Individual Defendant Aggregate Contribution being the amount that has been agreed upon by that Defendant with the Mediators.
3.1.1 A Defendant’s payment of its Individual Defendant Aggregate Contribution into the Class and Individual Settlement Funds shall satisfy all monetary obligations of that Defendant under both this Class Settlement Agreement and the Individual Settlement Agreement. In no event shall any Defendant be required to pay more than its Individual Defendant Aggregate Contribution.
3.1.2 Defendants are not jointly liable for the whole amount to be paid into the Class Settlement Fund and Individual Settlement Fund, or either of them. Any failure by any Defendant to timely pay all or part of its Individual Defendant Aggregate Contribution—including either its Individual Defendant Class Contribution or its Individual Defendant IP Contribution—shall not affect the effectiveness of any release of any Released Claim, including as to any other Defendant (and its associated Releasees), nor provide Plaintiffs a cause of action against any Defendant (or its associated Releasees) other than the non-paying Defendant for that payment.
3.1.3 Each Defendant’s contribution to the One Ohana Fund shall be a credit that will be applied dollar-for-dollar as a partial payment of its Individual Defendant Aggregate Contribution, and the Aggregate Settlement Amount includes such contributions.
3.1.4 Class Settlement Amount. The Class Settlement Amount and the Individual Settlement Amount will be determined in accordance with the terms and conditions set forth in Exhibit 10. The procedures set forth in Exhibit 10 to determine the Class Settlement Amount and the Individual Settlement Amount may not modify or add to any provision of this Class Settlement Agreement or the Individual Settlement Agreement, including, but not limited to, the definition of the Settlement Class, the Releases under Section VII, the Aggregate Settlement Amount, and the terms of Section 4.1.2(k) of the Individual Settlement Agreement. For avoidance of doubt, no requirement in this Class Settlement Agreement may be altered without the written consent of all signatories to this Class Settlement Agreement.
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3.2 Creation of Class Settlement Fund.
3.2.1 Upon payment of any portion of any Individual Defendant Class Contribution into the Class Settlement Fund, the Class Settlement Fund shall become a “qualified settlement fund,” as defined in 26 C.F.R. § 1.468B-1. Class Counsel or the Class Settlement Administrator shall establish accounts that together will be designated as a “qualified settlement fund,” as defined in 26 C.F.R. § 1.468B-1, pursuant to the Internal Revenue Code.
3.2.2 Neither the Class Parties nor the Class Settlement Administrator shall take any position in any filing or before any tax authority that is inconsistent with treating the Class Settlement Fund as a “qualified settlement fund,” as defined in 26 C.F.R. § 1.468B-1. Each Defendant shall be a “transferor,” and the Class Settlement Administrator shall be the “administrator” of the Class Settlement Fund within the meaning of 26 C.F.R. §§ 1.468B-1(d)(1) and 1.468B-2(k)(3), respectively. As a result, the Class Settlement Administrator will be responsible for all tax paying, filing, withholding, and reporting obligations of the “qualified settlement fund,” including, without limitation, those arising from any payments made from the Class Settlement Fund, including any reporting required on IRS Form 1099 for distributions made from the Class Settlement Fund. The Class Parties agree to take all necessary and reasonable actions to qualify the Class Settlement Fund pursuant to the United States Treasury Regulations.
3.2.3 The Class Settlement Administrator shall hold the cash in the Class Settlement Fund in one or more account(s) that are either (i) FDIC-insured and/or (ii) invested in securities backed by the full faith and protection of the U.S. Government (either in the form of U.S. Treasury bonds or in the form of a Treasury securities money market account) (“Approved Investments”). The Class Settlement Administrator shall make such investments in Approved Investments on the same day it receives Class Settlement Fund payments. During any settlement period and/or when cash is in the Class Settlement Administrator’s account prior to the payment to Class Claimants, the Class Settlement Administrator shall hold such cash in FDIC-insured accounts, providing FDIC insurance for all such funds. The Class Settlement Administrator shall take all precautions necessary to ensure that the funds are used solely for the purposes authorized by this Class Settlement Agreement.
3.2.4 Defendants shall have no responsibility or liability relating to the administration, investment, or distribution of the Class Settlement Fund, including any risk of bank failures, seizures, freezes, or fraudulent or incorrect payments, which shall be the sole responsibility of Class Counsel and the Class Settlement Administrator. Class Claimants and Class Counsel bear all risk and liability in the event that the bank is placed into receivership or conservatorship, and Class Claimants cannot access or receive some or all of the funds from the Class Settlement Amount. Any such bank receivership or conservatorship shall not limit or otherwise affect the releases of the Releasees, as defined pursuant to the Class Settlement Agreement.
3.2.5 Class Counsel and the Class Settlement Administrator will segregate KS’s Individual Defendant Class Contribution from the contributions of the other Defendants in a separate account that is part of the Class Settlement Fund. The distributions from this account shall be used to pay claims related to the Lahaina fire only.
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3.3 Timing of Payments to Class Settlement Fund.
3.3.1 No payment by any Defendant will be due until the Initial Payment Due Date. The Initial Payment Due Date shall be 30 days after each of the following Conditions has been satisfied, except for the Condition specified in subsection (f), which, per Section 5.2, must occur on or before the Initial Payment Due Date.
(a) As to the State, the enactment of legislation appropriating funds for the State’s Individual Defendant Aggregate Contribution;
(b) As to KS, approvals of KS’s Individual Defendant Aggregate Contribution through: (1) written fiduciary affirmation letters from the State Attorney General (as parens patriae); (2) fiduciary approvals from the State Probate Court (in KS’ open-probate case), in a Final and Unappealable order; and (3) tax approvals from the Internal Revenue Service (as a tax-exempt organization), in a Private Letter Ruling. For these approvals, KS must complete and submit to regulators its fiduciary reviews of expected liabilities, financial capacities, the Class Settlement Plan, and the Individual Settlement Plan (as defined in the Individual Settlement Agreement), to determine if its Individual Defendant Aggregate Contribution is, among other things, prudent, fiduciarily justified, and without impermissible private benefit;
(c) Final Approval of the Class Settlement Agreement and Class Settlement Plan;
(d) Any other approvals necessary to render any release provided by any Plaintiff, including any Class or Individual Plaintiff, enforceable;
(e) Satisfaction of the requirements set forth in Section 5.1.1 or Section 5.1.2;
(f) Satisfaction of the requirement set forth in Section 5.2;
(g) The Final Order and Judgment has become Final and Unappealable;
(h) The deadlines for exercising all termination rights set forth in Article VIII have passed with no Party validly exercising such termination rights; and
(i) The Approving Court has made a Final and Unappealable good-faith determination approving the Class Settlement Agreement and Individual Settlement Agreement in accordance with Section 9.3.
3.3.2 Each Defendant will pay its Individual Defendant Class Contribution according to the following schedule:
3.3.3 For Hawaiian Electric, the Class Settlement Percentage multiplied by $478,750,000 on the Initial Payment Due Date, and three additional payments of the Class Settlement Percentage multiplied by $478,750,000 that are, in each case, made one year and one
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day after the previous one, plus the amount refunded by the One Ohana Fund of the principal amount Hawaiian Electric contributed to the One Ohana Fund (not including interest) multiplied by the Class Settlement Percentage within 30 days of Hawaiian Electric’s receipt of such funds, provided that, at Hawaiian Electric’s option, Hawaiian Electric may accelerate all or any portion of amounts due after the Initial Payment Due Date, in which case, subject to Section 3.4, such accelerated payments shall be discounted at the rate of 5.5%, with a corresponding reduction in its Individual Defendant Class Contribution and Individual Defendant Aggregate Contribution, as well as the Aggregate Settlement Amount and the Class Settlement Amount.
(a) Hawaiian Electric further agrees to the conditions under Appendix B.
3.3.4 For the State of Hawai‘i, $201,875,000 multiplied by the Class Settlement Percentage on the Initial Payment Due Date, and $201,875,000 multiplied by the Class Settlement Percentage on each of the three successive anniversaries of the Initial Payment Due Date, plus the amount refunded by the One Ohana Fund of the principal amount the State of Hawai‘i contributed to the One Ohana Fund (not including interest) multiplied by the Class Settlement Percentage within 30 days of the State of Hawai‘i’s receipt of such funds.
3.3.5 For KS, the Class Settlement Percentage multiplied by $213,750,000 on the Initial Payment Due Date, and the Class Settlement Percentage multiplied by $213,750,000 on each of the three successive anniversaries of the Initial Payment Due Date, provided that, at KS’s option, KS may accelerate all or any portion of amounts due after the Initial Payment Due Date, plus the amount refunded by the One Ohana Fund of the principal amount KS contributed to the One Ohana Fund (not including interest) multiplied by the Class Settlement Percentage within 30 days of KS’s receipt of such funds.
3.3.6 For Hawaiian Telcom, $97,500,000 multiplied by the Class Settlement Percentage on the Initial Payment Due Date, plus the amount refunded by the One Ohana Fund of the principal amount Hawaiian Telcom contributed to the One Ohana Fund (not including interest) multiplied by the Class Settlement Percentage within 30 days of Hawaiian Telcom’s receipt of such funds.
3.3.7 For Spectrum, $177,500,000 multiplied by the Class Settlement Percentage on the Initial Payment Due Date, plus the amount refunded by the One Ohana Fund of the principal amount Spectrum contributed to the One Ohana Fund (not including interest) multiplied by the Class Settlement Percentage within 30 days of Spectrum’s receipt of such funds.
3.3.8 For West Maui Land, $9,500,000 multiplied by the Class Settlement Percentage on the Initial Payment Due Date, plus the amount refunded by the One Ohana Fund of the principal amount West Maui Land contributed to the One Ohana Fund (not including interest) multiplied by the Class Settlement Percentage within 30 days of West Maui Land’s receipt of such funds.
3.3.9 If a Defendant elects to make an accelerated payment, such Defendant will provide written notice to Plaintiffs’ Counsel thirty (30) days prior to the date of such payment.
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Such notice shall set forth the amount of the accelerated payment, how the amount was calculated (including which payment(s) is/are accelerated), and the schedule of remaining payments. Any dispute about the calculations shall be subject to the dispute resolution provision in Section 10.2.
3.4 Holdback. In accordance with Section 8.3, the Class Settlement Administrator and the Individual Settlement Administrator shall hold back certain funds from each payment by any Defendant to the Class Settlement Fund or Individual Settlement Fund.
3.5 Uses of Settlement Fund. All Monetary Awards to Class Claimants, Class Settlement Administration Expenses, awards of attorneys’ fees or costs or other amounts to Class Counsel, amounts paid to Class Representatives as service awards, payments to Subrogating Insurers or for medical or other liens for Class Plaintiffs, if any, as to Released Claims, and payments or amounts due on Holdback Claims per Section 8.3, shall be paid exclusively from the Class Settlement Fund. The Class Settlement Fund and Individual Settlement Fund are, collectively, the sole sources of recovery for Plaintiffs, Non-Participants, Government Entities, and Subrogation Insurers for any Released Claims.
3.6 Taxes. Class Claimants shall be solely responsible for, and are legally bound to make payment of, any taxes determined to be due and owing (including penalties and interest related thereto) by them to any national, federal, state, local, regional, or any other governmental taxing authority as a result of any payment made in connection with this Class Settlement Agreement. Class Claimants and Class Counsel understand that Defendants have not made, and they do not rely upon, any representations regarding the tax treatment of the payments made in connection with this Class Settlement Agreement. Moreover, Class Claimants agree to indemnify and hold Defendants and Releasees harmless if any governmental taxing authority asserts against any Defendant or other Releasee any claim for unpaid taxes, failure to withhold taxes, penalties, or interest based upon any payment made in connection with this Class Settlement Agreement.
3.7 Attorneys’ Fees and Costs.
3.7.1 Class Counsel and Defendants did not discuss attorneys’ fees or reimbursement of costs prior to agreement on the material terms of the Class Settlement Agreement. Class Counsel may petition the Approving Court for an award of fees and costs for work performed in connection with the Actions filed by Class Counsel and the Class Settlement Agreement that is not inconsistent with applicable law. Any award of attorneys’ fees or costs to Class Counsel shall be paid from the Class Settlement Fund.
3.7.2 For the avoidance of doubt, Defendants shall have no responsibility for any payments beyond their Individual Defendant Aggregate Contributions, and no responsibility to pay any fees or costs other than insofar as those fees and costs are paid from, in the aggregate, the Class Settlement Fund and Individual Settlement Fund. Plaintiffs shall have no responsibility to pay any fees or costs of any Defendant except where specified in this Class Settlement Agreement.
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3.7.3 Defendants shall bear each of their own attorneys’ fees and costs incurred in the Actions and this Class Settlement Agreement.
3.8 Class Settlement Administrator. The motion seeking Preliminary Approval of this Class Settlement Agreement will request that the Approving Court appoint a Class Settlement Administrator. Except as expressly stated herein, Defendants shall not have any responsibility, authority, or liability for the selection of the Settlement Administrator, the administration of the Settlement, the Class Settlement Plan, receiving and responding to any inquiries from Class Claimants, or disbursement of funds to Class Claimants. For avoidance of doubt, the Class Settlement Administrator may be the same Person as the Individual Settlement Administrator. The Class Settlement Administrator’s rights, obligations, responsibilities, and authority shall include the following:
3.8.1 The Class Settlement Administrator shall administer the Settlement according to the terms of this Settlement Agreement, the Class Settlement Plan, and orders of the Court. The Class Settlement Administrator shall have the authority to perform all actions, to the extent not expressly prohibited by, or otherwise inconsistent with, this Class Settlement Agreement or the Class Settlement Plan, deemed by the Class Settlement Administrator and any consultants retained by the Class Settlement Administrator to be reasonably necessary for the efficient and timely administration of this Class Settlement Agreement and the Class Settlement Plan.
3.8.2 The Class Settlement Administrator shall determine eligibility of Class Claimants for Monetary Awards according to the terms of this Settlement Agreement, the Class Settlement Plan, and orders of the Court, and shall create administrative procedures and administrative processes supplementary to those specified in this Class Settlement Agreement and the Class Settlement Plan that provide further specific details about how the Class Settlement Fund is administered, and/or other aspects of this Class Settlement Agreement and the Class Settlement Plan; provided, however, that such procedures comply with and are in no way inconsistent with the terms of this Class Settlement Agreement and the Class Settlement Plan.
3.8.3 The Class Settlement Administrator shall be compensated for its reasonable and necessary charges incurred in the performance of the position at a reasonable rate for the services to be performed, as approved by the Approving Court, and such approved compensation shall be part of the Settlement Administration Expenses.
3.8.4 Beginning the first January after appointment, the Class Settlement Administrator will provide annual financial reports to the Court, Defendants, and Class Counsel, based on information from the preceding year, regarding: (a) the number of Class Claimants who received Monetary Awards, and the number of Class Claimants who sought but were found by the Class Settlement Administrator not to qualify for Monetary Awards; (b) the monetary amounts paid through Monetary Awards; (c) the number of Class Claimants for whom appeals are pending regarding Monetary Awards; (d) the identification/breakdown of any law firms representing Class Claimants on an individual basis, if known; (e) administrative costs, including a summary accounting of the administrative expenses incurred by the Class Settlement Administrator; (f) the projected expenses/administrative costs over the next calendar year; (g) the
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monies remaining in the Class Settlement Fund; and (h) any other information requested by the Court.
3.8.5 The Defendants may elect, at their own expense, to cause an audit to be performed by a certified public accountant of the financial records of the Class Settlement Administrator, and the Class Settlement Administrator shall cooperate in good faith with the audit. Audits may be conducted at any time. Complete copies of the audit findings report will be provided to the Court and to any Defendant or Class Counsel that pays their pro-rata share of the cost of the audit.
3.8.6 If the Class Settlement Administrator resigns or otherwise cannot perform its duties and responsibilities under the Class Settlement Agreement, a replacement will be selected by Class Counsel, after consultation with Defendants. Any disputes about the replacement of the Class Settlement Administrator shall be decided pursuant to Section 10.2.
3.9 Website. Upon entry of the order granting Preliminary Approval, Class Counsel in conjunction with the Class Settlement Administrator will establish and maintain a public website containing information about the Settlement Agreement, including the Settlement class notice, the individual notice, and “Frequently Asked Questions.”
ARTICLE IV: PARTICIPATION IN THE CLASS SETTLEMENT
4.1 Settlement Plan. Pursuant to Section 4.1.1, Class Counsel will develop a Class Settlement Plan for the administration of the Class Settlement Fund, the final version of which shall be filed publicly with the Approving Court pursuant to Section 9.1.1.
4.1.1 Class Counsel will present a proposed Class Settlement Plan to Defendants within 24 days after the filing of the Preliminary Approval Motion. Within 21 days of receipt of the Class Settlement Plan, Defendants shall advise of any objections or requested modifications. Defendants may file objections to the Class Settlement Plan with the Approving Court, including on the grounds that the Class Settlement Plan is inconsistent with this Class Settlement Agreement. In the event that the Approving Court requires changes to the Class Settlement Plan, the Class Parties remain bound to the Class Settlement Agreement, except that requirements that are expressly stated in this Class Settlement Agreement (except where expressly noted) may not be altered without the written consent of all signatories to this Class Settlement Agreement.
4.1.2 The following provisions must be included in the Class Settlement Plan.
(a) The Class Settlement Plan shall include a provision for a reallocation of any residual amount from the Class Settlement Fund, with such residual amount defined as the difference between the Class Settlement Amount and the Monetary Awards actually made to all Class Claimants pursuant to the plan of allocation.
(b) The Class Settlement Plan shall include a plan for determining the Monetary Award for each Class Claimant, if any, which may address the valuation of specific
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categories of claims and the proof or evidentiary showing, if any, necessary for a Class Claimant to establish entitlement to a Monetary Award.
(c) The Class Settlement Plan shall include a plan for claims administration, including the distribution and timing of Monetary Awards, and including any relevant deadlines for the submission of claim forms or accompanying information, and the submission of any required forms of information for receipt of a Monetary Award. In any such plan, a failure of a Class Plaintiff, or their agent, to comply with the requirements of the Class Settlement Plan to receive a Monetary Award, or the fact that a Class Plaintiff ultimately does not receive any particular Monetary Award that was allocated to them, will not affect the validity or enforceability of the releases set forth in Section 7.1.
(d) The Class Settlement Plan shall require that any Class Claimant who is eligible for payment from the One Ohana Fund must register for and seek payment from the One Ohana Fund as a condition precedent to receiving any money from the Class Settlement Fund. The Class Settlement Plan shall ensure that any Class Claimant’s Monetary Award takes into consideration the amount of any payment that the Class Claimant previously received from the One Ohana Fund. For the avoidance of doubt, Class Claimants may receive additional money from the Class Settlement Fund beyond any amounts previously received from the One Ohana Fund.
(i) The State of Hawai’i will work with the contributors to the One Ohana Fund to reopen it for the submission of claims for a time period of at least six months after the issuance of the order of Preliminary Approval to effectuate this requirement under Section 4.1.2(d).
(e) The Class Settlement Plan shall ensure that any Class Claimant’s Monetary Award does not impact the eligibility of a Class Claimant to receive assistance from the Federal Emergency Management Agency (“FEMA”). The Class Settlement Plan shall implement measures that take into consideration the amount of any payment that the Class Claimant previously received from FEMA, where known, when determining that Class Claimant’s Monetary Award. For the avoidance of doubt, Class Claimants may receive additional money from the Class Settlement Fund beyond any amounts previously received from FEMA.
(f) The Class Settlement Plan shall include a plan for class notice that satisfies any applicable legal requirements, including Hawai‘i law and due process.
(g) The Class Settlement Plan shall include a plan for approval of the Class Settlement Agreement by the Approving Court(s), including as to the Settlement Class. The plan shall provide, consistent with this Class Settlement Agreement, a plan to address and satisfy any applicable requirements of Hawai‘i law for achieving Preliminary Approval, Final Approval, and preliminary and final certification of the Settlement Class for settlement purposes. The Class Settlement Plan may include sub-classes; involve appointment of additional class or sub-class representatives; or otherwise include provisions not inconsistent with this Class Settlement Agreement for the purpose of satisfying applicable legal requirements.
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(h) The Class Settlement Plan shall propose deadlines for submitting Opt Out Forms, written objections to the Class Settlement Agreement, briefing related to Preliminary Approval, and briefing related to Final Approval.
(i) The Class Settlement Plan shall include a plan for the establishment and implementation of procedures to detect and prevent fraudulent or invalid submissions and the payment of such claims from the Class Settlement Fund. Defendants and Class Counsel each will have the absolute right and discretion, at any time, but at their sole expense, in good faith to conduct, or have conducted by an independent auditor, audits to verify Monetary Awards to Class Claimants.
(j) The Class Settlement Plan shall set forth a process for the identification of liens on a Class Claimant’s recovery, including, but not limited to, any potential health care liens or recovery claims related to this Class Settlement Agreement, as well as any liens related to property insurance or business loss claims. The plan shall require any Class Claimant to, as part of the claims process or otherwise to be eligible for a Monetary Award, provide the names of any insurers, including for medical coverage, property loss or damage, and business loss or interruption, to which the Class Claimant has made a claim for payment of any sums arising out of or related to the Maui Fires and the amount of such payments sought and received. The plan shall set forth the process by which all liens shall be satisfied, and shall provide for the completion of any applicable reporting obligations. The plan shall provide that Class Claimants are solely responsible to pay, satisfy, compromise, or settle any costs, expenses, liens, claims, and demands. The plan shall state that no Monetary Award shall be made to a Class Claimant until all lien and other fees and cost obligations of the Class Claimant have been resolved and paid or have been withheld subject to an applicable lien holdback. The plan shall further address the role that the Approving Court will have in resolving any disputes related to identification and satisfaction of liens, including the amount of such liens. Notwithstanding the foregoing, nothing in this Class Settlement Agreement shall limit the ability of the Class Plaintiffs and the Subrogation Insurers to agree to an alternative process for resolution of liens.
(i) The Class Settlement Plan shall require, as a condition for receipt of any Monetary Award, that Class Claimants provide the Class Settlement Administrator with all information necessary to resolve all liens or rights of subrogation or reimbursement from any doctors, hospitals, other healthcare providers and servicers, and any other individuals, insurers, companies, agencies, workers’ compensation insurers or agencies, governmental agencies, political subdivisions, attorneys, or other third parties, including, but not limited to, Medicare, Med-QUEST, the Veterans Administration, Tricare, the Department of Health Care Services, Medicaid, the Centers for Medicare & Medicaid Services, or any other federal or state programs or Persons (collectively, “Medical Liens”). The Class Settlement Plan shall further require Class Claimants to obtain waivers or other documentation from all Persons holding such Medical Liens, establishing that all Medical Liens for all Class Claimants have been paid, satisfied, or waived.
(ii) The Class Parties agree that, to the extent their Medicare, Medicaid, and SCHIP Extension Act (“MMSEA”) reporting obligations change during the executory period of this Class Settlement Agreement, Class Claimants must provide any additional information needed to comply with such requirements.
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(k) The Class Settlement Plan shall include provisions that address the resolution of claims of Subrogation Insurers for payments made to policyholders who are Class Plaintiffs but are not Class Claimants, which shall include a process for such insurers to submit claims on behalf of their insureds when such insureds do not submit a claim.
(l) The Class Settlement Plan shall not modify or adjust the amount allocated to a Class Claimant based on whether such Class Claimant received, or is entitled to receive, payments from a Subrogation Insurer under a policy of insurance.
(m) The Class Settlement Plan shall include a plan for disposition of funds that remain after the claims process, to the degree not addressed in Section 4.1.2(a).
(n) The Class Settlement Plan shall include a plan for potential distribution of Holdback Funds to Class Claimants, subject to Section 8.3.
4.2 Liability for Allocation of Consideration. Class Counsel bear full and sole responsibility and liability for allocating the Class Settlement Amount among the Class Claimants and determining how much of the Class Settlement Amount each shall receive. Class Counsel assume all risk of liability and agree to indemnify and hold Releasees harmless for all damages, losses, and any other relief, including attorneys’ fees and costs, for any claim asserted against Releasees related to payment of Class Claimants, including related to allocation of the Class Settlement Amount or Aggregate Settlement Amount. The total amount paid to Class Claimants (inclusive of all attorneys’ fees, expert fees, Administrator’s fees, and all costs and other amounts) cannot exceed the Class Settlement Amount.
4.3 Opt-Out. A member of the Settlement Class may opt out of the Settlement Class by submitting a compliant Opt Out Form to the Class Settlement Administrator in the manner and by the date set in the class notice.
4.3.1 The Opt Out Form shall comply with all requirements in this Class Settlement Agreement, including those under this Section 4.3.
4.3.2 An Opt Out Form is compliant if, in addition to any other requirements set by the Approving Court or the Class Settlement Plan, it includes the following information:
(a) The nature of the Released Claim(s) the person submitting the Opt Out Form claims to possess. The Opt Out Form will include check boxes for the following categories of claims, as well as definitions for these claims: Wrongful Death, Serious Physical Injury, Residential Property Loss – Within Fire Perimeters, Commercial Property Loss – Within Fire Perimeters, Business Interruption – Within Fire Perimeters, Renter – Within Fire Perimeters, Serious Evacuation, Evacuation, and other. The “other” category will include a blank space for additional information. The Opt Out Form will also allow a Person to indicate, in lieu of checking one of these boxes, that they do not believe they have any basis to assert a Released Claim.
(b) The name (if applicable) and address for any property or business the Person submitting the Opt Out Form alleges was damaged by the Maui Fires.
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4.3.3 “Mass” or “class” Opt Out Forms are not compliant. There is a limit of one Person per Opt Out Form. No member of the Settlement Class may submit an Opt Out Form on behalf of another member of the Settlement Class. Opt Out Forms that do not conform to this paragraph are not compliant.
4.3.4 Any member of the Settlement Class who does not submit a timely and compliant Opt Out Form is a Class Plaintiff, and will be bound by the release described in Section 7.1, among other provisions.
4.3.5 The information contained in any timely and compliant Opt Out Form must be shared with Defendants no later than seven (7) days following the deadline for submitting Opt Out Forms.
4.3.6 If a member of the Settlement Class opts out, that Person may not file an objection to the Class Settlement Agreement. Likewise, Individual Plaintiffs may not file an objection to the Class Settlement Agreement.
ARTICLE V: SUBROGATION CLAIMS AND INDEMNIFICATION
5.1 It is a Condition to this Class Settlement Agreement that, by May 19, 2025, one of the following two requirements is met:
5.1.1 Each and every Subrogation Plaintiff executes and delivers to the Parties a written agreement approved by the Parties in which each Subrogation Plaintiff agrees to release all Released Claims against Releasees; or
5.1.2 A decision of a trial court becomes Final and Unappealable holding that, if the Class and Individual Settlement Agreements become effective, (a) the Subrogation Plaintiffs’ exclusive remedy for any claims arising out of the Maui Fires would be asserting liens, if any, against their policyholders for their respective shares of the Aggregate Settlement Amount, and (b) the Subrogation Plaintiffs shall be barred from bringing or maintaining any claims arising out of the Maui Fires against the Defendants.
5.2 It is a Condition to this Class Settlement Agreement that, on or prior to the Initial Payment Due Date, all claims brought by any Subrogation Insurer against any Releasee for subrogation arising out of the Maui Fires must be dismissed with prejudice in a Final and Unappealable order.
5.3 The Defendants agree to join in any lawful and reasonable motions for expediting appellate review of the trial court’s judgments, orders, or opinions under Sections 5.1.2 and 5.2.
5.4 For the avoidance of doubt, the order entered by Judge Xxxxx Xxxxxx on August 19, 2024, in the Special Proceeding, constitutes a decision of a trial court that, if rendered Final and Unappealable, would satisfy Section 5.1.2.
5.5 Plaintiffs’ Counsel will promptly notify the Defendants if, in their judgment, the conditions of Section 5.1 have been satisfied. The Defendants shall thereafter promptly notify
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Plaintiffs’ Counsel whether, in the Defendants’ judgment, the conditions in Section 5.1 have been satisfied. If the Defendants contend that the conditions have not been satisfied, and Plaintiffs’ Counsel dispute that determination, the issue shall be discussed further with the assistance of the Mediators.
5.6 In the event that the Condition in Section 5.1 is satisfied by an agreement under Section 5.1.1, the signatories to this Class Settlement Agreement and the Individual Settlement Agreement will negotiate in good faith to modify both agreements consistent with the intention to establish a global resolution, including by addition of provisions for the release and/or indemnification of the Releasees with respect to all Released Claims by all Subrogation Insurers. Such modifications may include broadening the definition of Parties in this Class Settlement Agreement and/or the Individual Settlement Agreement to include Subrogation Insurers. Any modifications to this Class Settlement Agreement require the written consent of all signatories to this Class Settlement Agreement.
5.7 Subrogation Indemnification. Each Class Claimant who receives a Monetary Award is required to indemnify the Releasees with respect to any individual liens asserted by any Subrogation Insurer against that Class Claimant arising out of or relating to the Maui Fires.
5.7.1 Each Class Claimant who receives a Monetary Award agrees to indemnify, forever hold harmless, and defend Releasees against loss, liability, cost, or expense from any and all claims, lawsuits, appeals, liens, demands, actions, cross claims, and third-party claims arising out of the Maui Fires that have been made or brought, or that may be made or brought later, by such Person or by anyone acting on their behalf, or by anyone holding by or through them, including Persons asserting rights of subrogation in connection with such Class Claimant’s claims.
5.7.2 Each Class Claimant who receives a Monetary Award specifically understands and agrees that the defense and indemnification obligation in Section 5.7.1 includes the defense, payment, and satisfaction of claims or liens by all Persons who have claimed or in the future may claim that they have money due and owing to them from this Class Settlement Agreement or any matter covered by or related to this Class Settlement Agreement, including, but not limited to, claims or liens by Persons who have provided or paid, or who will provide or pay, to or on behalf of Class Claimant, pursuant to contract, law, insurance claims or government benefits of any kind arising from the Maui Fires.
5.8 Each Class Claimant who receives a Monetary Award specifically represents that if any lien or reimbursement right is asserted under any legal theory against the proceeds herein or against Releasees, then, in consideration of the Class Claimant’s Monetary Award, Class Claimant covenants to pay and satisfy such asserted lien or reimbursement right, or to satisfy the same on a compromise basis or through final determination by a court of competent jurisdiction, and to obtain a release of Releasees, and to indemnify and hold harmless Releasees from any costs, expenses, attorneys’ fees, claims, actions, judgments, or settlements resulting from the assertion or enforcement of such lien or reimbursement rights by any Person having or claiming to have such lien or reimbursement right.
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ARTICLE VI: NO ADMISSION OF LIABILITY
6.1 No Admission of Liability. This Class Settlement Agreement (whether or not consummated), including the exhibits hereto and the Class Settlement Plan (or any other plan of allocation that may be approved by the Approving Court), the negotiations leading to the execution of this Class Settlement Agreement, and any proceedings in connection with this Class Settlement Agreement and/or approval of the Class Settlement Agreement (including any arguments proffered in connection therewith) shall not constitute, be construed as, be deemed to be, or be offered against any Releasee as evidence of any presumption, concession, or admission by Defendants or other Releasees with respect to the truth of any fact alleged by Plaintiffs, the validity of any claim that was or could have been asserted, the deficiency of any defense that has been or could have been asserted in the Actions or in any other litigation, the amount of any alleged damages incurred by any or all Plaintiffs or attributable to any Defendant, or any liability, negligence, fault, or other wrongdoing of any kind by Defendants or any other Releasees, or be referred to for any other reason as against Defendants or any other Releasees, in any civil, criminal, or administrative action or proceeding, other than such proceedings as may be necessary to effectuate or enforce the provisions of this Class Settlement Agreement.
ARTICLE VII: RELEASES
7.1 Class Plaintiff Releasors. In consideration of the terms of this Class Settlement Agreement, each and every Class Plaintiff, on behalf of all Class Plaintiff Releasors, hereby expressly, intentionally, voluntarily, fully, finally, irrevocably, and forever releases, discharges, and holds harmless the Releasees from any and all Released Claims and waives, compromises, relinquishes, and settles the Released Claims against Releasees. For the avoidance of doubt, nothing in this Release shall prevent the Litigation Trustee from pursuing an action contemplated by Section 7.7.
7.1.1 Subrogation. For the avoidance of doubt, the releases in Section 7.1 are binding on all insurers who paid Class Plaintiffs under insurance policies for claims in any way related to the Maui Fires.
7.2 Agreements with Government Entities.
7.2.1 Defendants have received letters from FEMA. Receipt of these letters is a material part of the consideration received by Defendants for this Class Settlement Agreement.
7.2.2 In addition, Defendants agree that they will work diligently and use their best efforts to obtain written releases and/or commitments from relevant Government Entities not to pursue any claims arising out of the Maui Fires against Releasees, as provided under Sections 6 and 7 of the Term Sheet, prior to the Initial Payment Due Date.
7.3 Defendants’ Releases. In consideration of the terms of this Class Settlement Agreement and the Individual Settlement Agreement, each and every Defendant, on behalf of its respective Defendant Releasors, shall release the Releasees from any Released Claim, including cross-claims for indemnity or contribution for any Released Claim, provided, however, that,
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subject to Section 8.3.6, this release shall not include cross-claims between Defendants (or their respective Defendant Releasors) for indemnity, contribution, or otherwise, for any Released Claim brought against any Releasee by any Person who is not a Plaintiff. Any Released Claim brought against any Releasee by any Person who is not a Plaintiff shall be paid and defended from the Holdback Fund, as more particularly discussed in this Class Settlement Agreement and the Individual Settlement Agreement. If a Defendant Releasor enters into a settlement of a Released Claim with any Person who is not a Plaintiff, the Defendant Releasor shall make reasonable efforts to ensure that the settlement requires the settling Person to unconditionally release all Released Claims against all Releasees, including as described in Section 8.3.3.
7.4 [Reserved]
7.5 No Claims Based on Newly Learned Facts. Class Plaintiffs, on behalf of their respective Class Plaintiff Releasors, acknowledge that they may learn additional facts relating to the Releasees’ actions or omissions regarding the Released Claims. Class Plaintiffs, on behalf of their respective Class Plaintiff Releasors, agree that this Class Settlement Agreement shall be and remain effective in all respects, notwithstanding such different or additional facts and the subsequent discovery thereof. Each of the Releasors shall be deemed to have, fully, finally, and forever settled and released, resolved, relinquished, waived, and discharged any and all Released Claims, including known claims or unknown claims, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or have existed upon any theory of law or equity now existing or coming into existence in the future, without regard to the subsequent discovery or existence of such different or additional facts. Class Plaintiffs, on behalf of their respective Class Plaintiff Releasors, agree to waive any and all rights they may have under any statute, code, regulation, ordinance, or the common law, which may limit or restrict the effect of a general release as to claims, including claims that Releasors do not know or suspect to exist in their favor at the time of giving the release set forth in the Class Settlement Agreement. Without limiting the generality of the foregoing, and without the Parties intending in any way to limit the scope of Section 10.11, or to suggest that Hawai’i substantive law does not govern any Released Claim, (1) Releasors certify that they are aware of and have read and reviewed the following provision of California Civil Code Section 1542, which states: 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; and (2) Class Plaintiffs, on behalf of their respective Releasors, hereby expressly waive and relinquish any and all rights and benefits existing under (i) Section 1542 or any equivalent, similar, or comparable present or future law or principle of law of any jurisdiction (including Section 28-1-1602 of the Montana Code, Section 9-13-02 of the North Dakota Century Code, and Section 20-7-11 of the South Dakota Codified Laws) and (ii) any law or principle of law of any jurisdiction that would limit or restrict the effect or scope of the provisions of the Release set forth above. The Class Parties acknowledge that the foregoing waiver was separately bargained for and is a key element of the Class Settlement Agreement.
7.6 Timing of Release. The releases described under this Article VII shall become effective on the Initial Payment Due Date. A failure by any Defendant to make any payment
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required by the Class Settlement Agreement or Individual Settlement Agreement, including any part of its Initial Defendant Payment, shall not affect the validity or enforceability of the Releases as to any Defendant or Releasee, including the defaulting Defendant. However, as noted herein, the Litigation Trustee shall have the right to pursue the remedies described in Section 7.7 against the defaulting Defendant.
7.7 Action for Non-Payment.
7.7.1 Plaintiffs’ Counsel shall appoint the Litigation Trustee to manage any arbitration or litigation under this Section. The Litigation Trustee shall adopt rules for the appointment and payment of counsel. The Litigation Trustee shall be required to abide by the obligations, terms, and conditions in this Class Settlement Agreement that apply to the Litigation Trustee.
7.7.2 In the event of any non-payment by a Defendant of any part of its Individual Defendant Aggregate Contribution, the Litigation Trustee shall have as its sole and exclusive remedy claims for recovery on behalf of the Class Settlement Fund and Individual Settlement Fund solely against the Defendant failing to make such required payment (and for the avoidance of doubt, not against any other Defendant). Plaintiffs may not individually sue any Defendant for non-payment.
7.7.3 The Litigation Trustee, on behalf of the Class Settlement Fund and Individual Settlement Fund, may recover, in any successful action against a Defendant for non-payment of any part of its respective Individual Defendant Aggregate Contribution, reasonable attorneys’ fees, pre-judgment interest under the prevailing Hawai’i rate, and liquidated damages of 15% per year, accruing daily as of the date of non-payment. The Parties agree, for purposes of this settlement only and for no other purpose, that this liquidated damages figure is a reasonable approximation of the daily consequential damages suffered by Class Plaintiffs as a result of nonpayment. Such consequential damages include the additional alternative-living-expenses and out-of-pocket costs associated with the delays in payment of construction for the rebuild of their homes.
7.7.4 Each Non-State Defendant consents to arbitration under Section 10.2, as modified by this Section 7.7.4, to resolve any claim by the Litigation Trustee for non-payment of its respective Individual Defendant Aggregate Contribution under this Section 7.7. For the avoidance of doubt, the procedures provided in this Section 7.7.4 do not apply to the State. In the event that the Litigation Trustee asserts that any Non-State Defendant has failed to timely make any part of its Individual Defendant Aggregate Contribution, the Litigation Trustee shall promptly provide written notice to the respective Non-State Defendant, and submit that claim to arbitration pursuant to Section 10.2. The notice shall set forth the amount the Litigation Trustee asserts was due from such Non-State Defendant, including amounts under Section 7.7.3. Within two days of receipt of such notice, such Non-State Defendant shall provide a written response, which shall set forth whether the Non-State Defendant contests that it is obligated to pay the amount set forth in the notice provided by the Litigation Trustee. The arbitrator will consolidate all claims for non-payment against a Non-State Defendant, whether for non-payment to the Class Settlement Fund or Individual Settlement Fund. In any arbitration over a failure to pay any part of a Non-State Defendant’s Initial Defendant Payment, the arbitrator shall issue a final award (i)
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within three days, if the Non-State Defendant fails to timely respond to the Litigation Trustee’s notice under this section, or provides a response that fails to contest its obligation to make payment in the amount claimed by the Litigation Trustee or (ii) if the Non-State Defendant provides a timely response to the Litigation Trustee’s notice under this section contesting its obligation to make payment in the amount claimed by the Litigation Trustee, (a) within 30 days of the Litigation Trustee initiating arbitration, with respect to an alleged failure by a Non-State Defendant to make any part of its Initial Defendant Payment and (b) within 15 days of the Litigation Trustee initiating arbitration with respect to an alleged failure by a Non-State Defendant to make any part of its Individual Defendant Aggregate Contribution other than its Initial Defendant Payment. Following issuance of the final arbitral award, the Litigation Trustee may enforce such award in the Second Circuit Court of Hawai‘i, pursuant to H.R.S. § 658A-22. In any such action, the Non-State Defendant against whom the award is made will agree to any reasonable request to expedite proceedings and secure a judgment against that Non-State Defendant under H.R.S. § 658A-25.
7.8 Dismissal of All Claims. All claims asserted in any court by any Class Plaintiff Releasor against any Releasee arising out of the Maui Fires must be dismissed with prejudice within ten (10) days after the Initial Payment Due Date. Executed stipulations for dismissal with prejudice for all such claims must be provided to the Administrator within 60 days after the Return Date, to be held in escrow and provided to Defendants for filing the day after the Initial Payment Due Date.
7.9 Order Governing Non-Participants. The Parties will submit to the Second Circuit Court and request approval of a proposed order, attached as Exhibit 7, governing all Released Claims pending or subsequently brought in the Special Proceeding that are not dismissed within ten (10) days of the Initial Payment Due Date, or are thereafter filed. The Parties will request that the Special Proceeding remain open for at least three years after the Initial Payment Due Date to enforce this order.
7.10 Exclusive Remedy. Upon the effectiveness of the releases described under this Article VII, the Class Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all Released Claims against Releasees arising out of the Maui Fires shall be pursuant to the terms of this Class Settlement Agreement or, as applicable, the Individual Settlement Agreement (including as limited by Section 7.7). No Class Plaintiff shall recover, or be entitled to seek to recover, directly or indirectly, any sums from any Releasee other than the consideration received under the terms of this Class Settlement Agreement.
7.11 Covenant Not to Sue. Without limiting any of the releases described under this Article VII, the Class Parties agree and covenant that, if the releases described in this Article VII become effective, they will not take any action against any Releasee to initiate, pursue, maintain, or otherwise attempt to execute upon, collect, or enforce, any Released Claims; institute any new legal, equitable, or other action against any of the Releasees or any other Persons relating to any Released Claims; attempt to execute, collect on, or otherwise enforce, any judgment that may be entered against any of the Releasees on any Released Claims; or maintain any pending legal action that the Releasor may have filed in any court against any of the Releasees asserting any Released Claims. The Class Parties further covenant and agree that they will not sue or bring
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any action or cause of action under any state, local, or federal law challenging the releases described under this Article VII.
ARTICLE VIII: CONTINGENCIES
8.1 Termination Provisions.
8.1.1 Within 30 days after the Return Date, Defendants and Class Counsel will cooperate to identify every Non-Participant, and to determine whether the thresholds for non-participation set forth in Appendix A are met. The Class Parties will rely on the information provided on the Opt Out Forms, except that Class Counsel, or any Defendant, may, within 15 days after the Return Date, present evidence that either (i) a Non-Participant is a member of one of the categories set forth in Appendix A even if that Person did not represent as such in an Opt Out Form or (ii) a Non-Participant is not a member of one of the categories set forth in Appendix A even if that Person did represent as such in an Opt Out Form. If Class Counsel and all Defendants fail to unanimously agree on whether the evidence presented merits adjusting the participation numbers for the categories in Appendix A, they will resolve their dispute through dispute resolution pursuant to Section 10.2.
8.1.2 If any participation threshold in Appendix A is, subject to resolution of any disputes under Section 8.1.1, met, then Defendants shall have sixty (60) days from the Return Date to exercise the right to rescind, terminate, or cancel this Class Settlement Agreement as follows: (i) any Defendant whose Individual Defendant Aggregate Contribution equals or exceeds 20% of the Aggregate Settlement Amount has the individual, unilateral right to terminate this Class Settlement Agreement upon written notice to all Defendants and Plaintiffs’ Counsel or (ii) if at least three Defendants choose to terminate the Class Settlement Agreement then, upon written notice to all Defendants and Plaintiffs’ Counsel, it is terminated. For purposes of this termination right, each set of Persons under Sections 2.25.1, 2.25.2, 2.25.3, 2.25.4, 2.25.5, 2.25.6, and 2.25.7 will count as a single Defendant (that is, for example, all Persons listed under 2.25.6 collectively count as a single Defendant).
8.1.3 If (i) the time limit for satisfaction of the Conditions under Section 5.1 has passed without satisfaction of that Condition; or (ii) one or more other Conditions has not been satisfied within two years of the date on which the motion for Preliminary Approval is filed, that will be known as a “Termination Event.” On or after the date of a Termination Event, any signatory to this Class Settlement Agreement or the Individual Settlement Agreement may provide notice to the other signatories of a proposed termination of the agreement or agreements to which the signatory is a party. To be valid, the notice must state that the party providing notice believes that the satisfaction of the Conditions under Section 5.1 and/or of the other Conditions is not reasonably likely to occur within a reasonable period of time. Within 10 days of receipt of such notice, any other signatory to this Class Settlement Agreement or the Individual Settlement Agreement may contest the proposed termination. If any of the signatories to this Class Settlement Agreement or the Individual Settlement Agreement disagrees as to whether a Termination Event has occurred, or as to whether the satisfaction of the Conditions under Section 5.1 and/or of the other Conditions is reasonably likely to occur within a reasonable period of time, all signatories to both agreements shall meet and confer. If these signatories are
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unable to agree as to whether the agreements may be terminated, then the signatories will resolve their dispute through dispute resolution pursuant to Section 10.2.
8.1.4 In the event that the Approving Court either denies Preliminary Approval or Final Approval or conditions Preliminary Approval or Final Approval on changes to the Class Settlement Agreement, Defendants and Class Counsel shall negotiate in good faith to modify this Class Settlement Agreement in a manner that resolves the issues identified by the Approving Court. If Defendants and Class Counsel are unable to agree on such modifications, any Defendant or Class Counsel may request the assistance of the Mediators. If the Mediators notify Defendants and Class Counsel of an impasse, then, within 10 days of receipt of such notice, any Defendant or Class Counsel may provide a notice of termination of this Class Settlement, which notice shall be effective immediately. For the avoidance of doubt, any change to the Class Settlement Plan that does not involve a change to the Settlement Agreement is not a basis for termination under this paragraph.
8.1.5 In the event of any termination under this Article VIII of either the Class Settlement Agreement or the Individual Settlement Agreement, the Class Settlement Agreement, the Individual Settlement Agreement, and all Individual Settlement Agreement and Releases shall terminate in their entirety, except as follows: with respect to the Class Settlement Agreement, as to Sections 1.14, 1.15, 8.1, Article II (to the extent such definitions are used in other surviving provisions), Article VI, and Article X; with respect to the Individual Settlement Agreement, Sections 1.14, 1.15, 8.1, Article II (to the extent such definitions are used in other surviving provisions), Article VI, and Article X; and the Parties shall have thirty (30) days to submit proposals to all relevant courts for recommencing litigation.
8.2 Class Action. Within ten (10) days after execution of this Class Settlement Agreement, Class Counsel and Defendants shall stipulate to amend the Consolidated Complaint, with the class definition corresponding to the Settlement Class provided in this Class Settlement Agreement.
8.3 Holdback Fund. Upon payment of any Defendant’s Initial Defendant Payment, the Class Settlement Administrator and Individual Settlement Administrator shall begin to hold back certain funds from the Class Settlement Fund and Individual Settlement Fund, respectively, as described more fully below, and ensure they are not used to pay Monetary Awards or any other costs or expenses of settlement except as specified herein. The money held back in the Class Settlement Fund and Individual Settlement Fund, in the aggregate, is known as the “Holdback Fund.” The total amount in the Holdback Fund shall be $500 million. Although the Holdback Fund shall comprise amounts held back from the Class Settlement Fund and Individual Settlement Fund, the Class and Individual Settlement Administrators shall ensure that the Holdback Fund operates as a single fund to satisfy the requirements of Section 8.3.
8.3.1 Respective Fund Holdback Amounts. Subject to the schedule under Section 8.3.2, the Class Settlement Administrator shall hold back from the Class Settlement Fund the total amount of the Holdback Fund multiplied by the Class Settlement Percentage, and the Individual Settlement Administrator shall hold back from the Individual Settlement Fund the total amount of the Holdback Fund multiplied by the Individual Settlement Percentage. Whenever funds are drawn from the Holdback Fund, the Class Settlement Administrator and
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Individual Settlement Administrator shall pay those funds on a pro-rata basis from the Class Settlement Fund and Individual Settlement Fund, respectively, corresponding to these percentages.
8.3.2 Holdback Schedule. Each time any Defendant makes any payment to satisfy all or part of its Individual Defendant Aggregate Contribution, the Class Settlement Administrator and Individual Settlement Administrator shall, in the aggregate, hold back from that payment for inclusion in the Holdback Fund an amount equal to the total amount of that payment times $500 million divided by the Aggregate Settlement Amount.
8.3.3 Holdback Payments. Any Defendant that is not prohibited from doing so under Section 8.3.7 may draw funds from the Holdback Fund to pay (a) judgments and (b) settlements, in each case for any Released Claim brought by any Person that is not a Plaintiff. Such a claim is known as a “Holdback Claim.” Defendants will develop a process for approving these payments, which will be subject to review and consent of the Class Settlement Administrator, which consent may not be unreasonably withheld. Any dispute about the reasonableness of payments from the Holdback Fund shall be subject to dispute resolution pursuant to Section 10.2. A Releasee may obtain a payment from the Holdback Fund to settle a Holdback Claim only if the settlement requires the Person asserting the Holdback Claim to execute an unconditional release of all Released Claims against all Releasees, in form and substance reasonably satisfactory to the Defendants, unless all Defendants consent otherwise.
8.3.4 Holdback Credit. In the event that a Defendant makes a payment that would be drawn from the Holdback Fund under Section 8.3.3, but, as a result of the payment schedule under Section 8.3.2, the Holdback Fund does not yet have sufficient funds to cover that payment, the Defendant is entitled to a credit against the Holdback Fund for the amount that would have been properly drawn from the Holdback Fund under Section 8.3.3. The Holdback Fund will make payment of that credit when, under Section 8.3.2, it next receives funding.
8.3.5 Adjustment to Holdback Fund.
(a) On the later of (1) two years and 60 days after the Return Date or (2) two years and 15 days after the Initial Payment Due Date, the Parties shall assess whether money in the Holdback Fund should be distributed to the Individual Settlement Fund and Class Settlement Fund to be used in accordance with the Class Settlement Plan and Individual Settlement Plan. To the degree any disputes arise as to the quantity of any of the following amounts, or as to any calculation or determination necessary to calculate them, those disputes will be resolved pursuant to Section 10.2.
(b) The Parties shall calculate the Necessary Holdback Amount, which is the sum of the following four quantities:
(1) All Holdback Credits under Section 8.3.4 that have yet to be reimbursed by the Holdback Fund;
(2) The reasonable aggregate value of all pending Holdback Claims. The reasonable aggregate value of such claims shall be the reasonable estimate
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of the Defendants’ potential exposure at trial on these claims, which may be higher than the settlement value of the claims;
(3) If any Defendant has a reasonable basis to conclude that a Released Claim may yet be asserted, the reasonable value of such claim (with reasonable value defined in the same manner as under part 2). A Defendant need not identify a specific Person who will bring the Released Claim to have a reasonable basis that a Holdback Claim may be brought under this paragraph; and
(4) If any payment is owed by a Defendant as a result of a Holdback Claim, but has not yet been made, the amount not yet paid.
(c) The Parties shall calculate the Holdback Remainder Amount. This is the amount that, as of the calculation date, is included in the Holdback Fund and not yet distributed under Section 8.3.3. For avoidance of doubt, this does not include amounts, if any, set to be added to the Holdback Fund under Section 8.3.2 from any remaining payments Defendants are scheduled to make to the Class Settlement Fund or Individual Settlement Fund.
(d) If the Holdback Remainder Amount is greater than the Necessary Holdback Amount, then the Class Settlement Administrator shall transfer the Class Settlement Percentage multiplied by the difference between the Holdback Remainder Amount and the Necessary Remainder Amount to the Class Settlement Fund, and the Individual Settlement Administrator shall transfer the Individual Settlement Percentage multiplied by the difference between the Holdback Remainder Amount and the Necessary Remainder Amount to the Individual Settlement Fund.
(e) If the Holdback Remainder Amount is equal to or less than the Necessary Remainder Amount, then the Parties will not transfer any funds in the Holdback Fund to the Class Settlement Fund and Individual Settlement Fund.
(f) Further Distribution of Holdback Funds. One year after the date specified in Section 8.3.5(a), the Parties shall, in the same manner, newly calculate the Necessary Holdback Amount and the Holdback Remainder Amount, and follow the same formula and steps under Section 8.3.5. The Parties will repeat this process each year thereafter, until the Holdback Remainder Amount is zero and there are no further amounts to be added to the Holdback Fund from later payments by Defendants. Upon written consent of all Defendants, this calculation and further distribution may be done more frequently than every year.
8.3.6 Cross-claims. No Defendant or Releasee may assert a cross-claim for indemnity, contribution, or otherwise for any Released Claim brought against any Releasee unless and until the Holdback Fund is fully exhausted. For any cross-claim for indemnity, contribution, or otherwise brought by any Releasee against another Releasee that is not released under Section 7.3, the time to file such cross-claim(s) is tolled until the Holdback Fund is fully exhausted.
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8.3.7 Effect of Default.
(a) If any Defendant is in default on any part of its Individual Defendant Aggregate Contribution as determined under Sections 7.7.3 or 7.7.4, or is in the process of litigating or arbitrating an allegation of default under those Sections, it may not access any funds in the Holdback Fund or assert or maintain any cross-claim for indemnity or contribution against any non-defaulting Defendant or Releasee for any Released Claim until such default is cured. A Defendant is no longer in default if (i) the factfinder or arbitrator finds that the Defendant is not in default; (ii) the Defendant cures that default by satisfying the judgment described in Sections 7.7.3 or 7.7.4; or (iii) the Litigation Trustee agrees in writing that the Defendant is not in default.
(b) A Defendant that is found not to be in default in litigation under Section 7.7.3 or in an arbitration decision issued under Section 7.7.4 is entitled to reimbursement of any amounts paid during the period of ineligibility under Section 8.3.7(a), including for judgments and settlements, that would otherwise have been payable from the Holdback Fund under Section 8.3.3.
ARTICLE IX: APPROVAL
9.1 The Defendants and their counsel, the Class Representatives, and Class Counsel agree to take all commercially reasonable actions necessary to obtain Preliminary Approval and Final Approval of the Settlement and entry of a Final Order and Judgment, as well as orders and judgments dismissing with prejudice all Released Claims against all Releasees. Defendants and their counsel, the Class Representatives, and Class Counsel agree to offer mutual support to the proposed Class Settlement Agreement in all court proceedings and public communications.
9.1.1 The following deadlines apply to the class approval process, and will be supplemented by additional deadlines contained in the order granting Preliminary Approval.
(a) Within seven (7) days after the date on which Judge Xxxxxx issues an order determining the Class Settlement Amount and Individual Settlement Amount pursuant to Section 3.4.1, Class Counsel will provide to Defendants a draft motion for Preliminary Approval to be filed in the Approving Court.
(b) Within seven (7) days of receipt of the draft motion, Defendants shall advise of any objections or requested modifications.
(c) Within twenty-one (21) days after the date on which Judge Xxxxxx issues an order determining the Class Settlement Amount and Individual Settlement Amount, Class Counsel will file a motion for Preliminary Approval in the Approving Court seeking Preliminary Approval of the Class Settlement Agreement.
(d) Within forty-five (45) days after filing the motion for Preliminary Approval, Class Counsel will file a Class Settlement Plan.
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9.1.2 In the motion for Preliminary Approval, Class Counsel shall request that the Court (1) preliminarily approve the terms and conditions of the Class Settlement Agreement; (2) approve the notice to the Settlement Class and the claim forms and authorize the notice program distributing them; (3) preliminarily certify the Settlement Class for settlement purposes only and appoint the Class Counsel as counsel to the Settlement Class for purposes of this Settlement; and (4) schedule a Final Approval Hearing, not earlier than one-hundred (100) days after Preliminary Approval. The motion for Preliminary Approval of the settlement shall be accompanied by a Proposed Order Granting Preliminary Approval of Settlement in a form to be agreed upon by Class Counsel and Defendants. Solely for purposes of effectuating the Class Settlement Agreement, Defendants will not oppose the motion for Preliminary Approval. For the avoidance of doubt, Defendants’ non-opposition to the motion for Preliminary Approval shall not be construed as an admission by any Defendant as to the appropriateness of class certification for non-settlement purposes.
9.2 Objections.
9.2.1 Any Class Plaintiff may present written objections to Final Approval of the Class Settlement Agreement. No later than such date as is ordered by the Approving Court, a Class Plaintiff who wishes to object to any aspect of the Class Settlement Agreement or Class Settlement Plan must file with the Approving Court, or as the Approving Court otherwise may direct, a written statement of the objection(s). The written statement of objection(s) must include a detailed statement of the Class Plaintiff’s objection(s), as well as the specific reasons for each such objection, including any evidence and legal authority the Class Plaintiff wishes to bring to the Approving Court’s attention. That written statement also must contain the Class Plaintiff’s printed name, address, telephone number, and date of birth, written evidence establishing that the objector is a Class Plaintiff, and any other supporting papers, materials, or briefs the Class Plaintiff wishes the Approving Court to consider when reviewing the objection. A written objection may not be signed using any form of electronic signature but must contain the dated signature of the Class Plaintiff (not just counsel) making the objection.
9.2.2 Attorneys asserting objections on behalf of a Class Plaintiff must: (i) file a notice of appearance with the Approving Court by the date set forth in the order granting Preliminary Approval, or as the Approving Court otherwise may direct; (ii) file a sworn declaration attesting to representation of the Class Plaintiff on whose behalf the objection is being filed or a copy of the contract (to be filed in camera) between that attorney and that Class Plaintiff; and (iii) comply with the procedures described in this Article.
9.2.3 A Class Plaintiff who has submitted a written statement of objection(s) (or counsel individually representing him or her, if any) may seek to appear at the Final Approval hearing by filing with the Approving Court, by the date set forth in the order granting Preliminary Approval, or as the Approving Court otherwise may direct, a written notice of intention to appear at the hearing, in accordance with the requirements set forth in the order granting Preliminary Approval.
9.2.4 Any Class Plaintiff who fails to comply with the provisions of this Article will waive and forfeit any and all rights to object to the Class Settlement Agreement.
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9.2.5 Mass or class objections are invalid. No Class Plaintiff may submit an objection on behalf of another Class Plaintiff.
9.3 Good Faith Settlement Approval. Within twenty-one (21) days after Preliminary Approval, the Parties shall file a joint motion with the Approving Court for a determination that the Class Settlement Agreement and Individual Settlement Agreement, including the Aggregate Settlement Amount, were made in good faith under the provisions of Section 663-15.5, Hawaiʻi Revised Statutes. The Parties agree to make any necessary, commercially reasonable judicial filings, provide appropriate notices, and undertake reasonable efforts to obtain a good-faith settlement determination pursuant to Section 663-15.5, Hawaiʻi Revised Statutes, that will bind all joint tortfeasors and co-obligors, known and unknown.
9.4 Final Approval. Class Counsel will provide to Defendants a draft motion for Final Approval to be filed in the Approving Court at least fourteen (14) days before it is filed. Within seven (7) days of receipt of the draft motion, Defendants shall advise of any objections or requested modifications. The motion shall request that the Court (1) finally approve the terms and conditions of the Class Settlement Agreement and Class Settlement Plan; (2) find the notice to the Settlement Class adequate under applicable law; (3) finally certify the Settlement Class for settlement purposes only; (4) direct that the Class Settlement Agreement and Class Settlement Plan be implemented according to their terms; (5) enjoin Releasors from asserting or litigating Released Claims against Releasees; (6) enter the Final Order and Judgment; and (7) reserve exclusive and continuing jurisdiction over implementation and enforcement of the Class Settlement Agreement and Class Settlement Plan. Solely for purposes of effectuating the Class Settlement Agreement, Defendants will not oppose the motion for Final Approval. For the avoidance of doubt, Defendants’ non-opposition to the motion for Final Approval shall not be construed as an admission by any Defendant as to the appropriateness of class certification for non-settlement purposes.
9.5 KS shall use reasonable best efforts to obtain within nine months of the Settlement Date (1) written fiduciary affirmation letters from the State Attorney General (as parens patriae); (2) fiduciary approvals from the State Probate Court (in KS’ open-probate case), in a Final and Unappealable order; and (3) tax approvals from the Internal Revenue Service (as a tax-exempt organization), in a Private Letter Ruling.
ARTICLE X: MISCELLANEOUS PROVISIONS
10.1 Complete Agreement. Other than as stated herein, the Class Parties warrant that no representation, promise, or inducement has been offered or made to induce any Class Party to enter into this Class Settlement Agreement and that they are competent to execute this Class Settlement Agreement and accept full responsibility therefor. This Class Settlement Agreement and its exhibits contain and constitute the entire understanding and agreement among the Class Parties and supersede all previous oral and written negotiations, agreements, commitments, and writings in connection therewith. This Class Settlement Agreement may not be amended or modified except by a writing signed by authorized representatives of all Class Parties.
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10.2 Arbitration. The Class Parties agree to meet and confer in good faith to resolve any disagreements over the implementation of the terms of this Class Settlement Agreement or any other documents necessary to effectuate the Class Settlement Agreement. If the meet and confer is not successful, the Class Plaintiffs and Non-State Defendants agree to binding, non-appealable arbitration to resolve any disagreements over the implementation of the terms of this Class Settlement Agreement or any other documents necessary to effectuate the Class Settlement Agreement. In any such arbitration, there will be one arbitrator, who can be any of the three Mediators, and the Mediators will promptly determine among themselves who the arbitrator will be. If all of the three Mediators are unavailable to conduct the arbitration, then the Class Plaintiffs and Non-State Defendants will meet and confer in good faith to appoint a different arbitrator. If the Class Plaintiffs and Non-State Defendants are unable to agree upon an arbitrator, then the arbitration will occur before a panel of three arbitrators. The Non-State Defendants will select one of the three arbitrators; Class Counsel will select one of the three arbitrators; and the arbitrators selected by Non-State Defendants and Class Counsel will select the third arbitrator. In the event that an arbitration under this provision involves a dispute among Plaintiffs’ Counsel (rather than solely Class Counsel) and Non-State Defendants, then Plaintiffs’ Counsel shall collectively exercise all rights in this paragraph otherwise solely allocated to Class Counsel. For the avoidance of doubt, the arbitration procedures provided in this Section 10.2 do not apply to the State.
10.3 Knowing and Voluntary Agreement. Each Class Party agrees that he, she, or it is entering into this Class Settlement Agreement knowingly, voluntarily, and with full knowledge of its significance. Each Class Party further affirms that he, she, or it has not been coerced, threatened, or intimidated into signing this Class Settlement Agreement; that he, she, or it has been advised to consult with an attorney; and that he, she, or it in fact has consulted with an attorney before signing this Class Settlement Agreement or had an opportunity to do so. Class Counsel represent that they have conducted a thorough investigation into the facts of the Actions and have diligently pursued an investigation of the claims asserted arising from or relating to the Maui Fires. Based on their own independent investigation and the extensive litigation and mediation, which led to this Settlement, Class Counsel state that they are of the opinion that the Class Settlement Agreement with Defendants is fair, reasonable, and adequate, and is in the best interest of the Class Plaintiffs, in light of all known facts and circumstances, including the risks of significant delay and defenses asserted by Defendants.
10.4 Notices. Notices pursuant to this Class Settlement Agreement shall be provided to those listed and as set out in Exhibit 8.
10.5 Severability. If any part of this Class Settlement Agreement is found to be illegal, invalid, inoperative, or unenforceable in law or equity, such finding shall not affect the validity of any other provisions of this Class Settlement Agreement, which shall be construed, reformed, and enforced to effect the purposes thereof to the fullest extent permitted by law. If one or more of the provisions contained in the Class Settlement Agreement shall for any reason be held to be excessively broad in scope, subject matter or otherwise, so as to be unenforceable at law, the Class Parties agree that such provision(s) shall be construed to be limited or reduced so as to be enforceable to the maximum extent under the applicable law. However, the Settlement Class definition, the releases under Article VII, the Individual Defendant Aggregate Contributions, the Conditions under Sections 5.1 and 5.2, and the Aggregate Settlement Amount
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are critical terms upon which the Class Settlement Agreement rests and may not be severed or altered.
10.6 Binding on Successors and Assigns. This Class Settlement Agreement shall be binding upon and inure to the benefit of the Class Parties and their respective heirs, trustees, issue, next-of-kin, executors, administrators, successors, and assigns.
10.7 Counterparts. This Class Settlement Agreement may be executed in counterparts, including by electronic means, and when each Class Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and when taken together with other signed counterparts, shall constitute one Class Settlement Agreement, which shall be binding upon and effective as to the Parties.
10.8 Headings. The headings used in this Class Settlement Agreement are for convenient reference only, and do not alter or limit the terms of each section.
10.9 Amendment or Modification. This Class Settlement Agreement may be amended or modified only by a written instrument signed by all Class Parties and their counsel and, after Final Approval, with consent of the Approving Court.
10.10 Authorization to Enter into Settlement.
10.10.1 Class Counsel represent and warrant that they are authorized by the Class Representatives whom they represent to enter into this Class Settlement Agreement and to take all appropriate action required or permitted to be taken by such parties to effectuate its terms, and to execute any other documents required to carry out the terms of this Class Settlement Agreement.
10.10.2 Each Defendant represents and warrants:
(a) Except as to KS, and any natural persons, it is a duly organized, validly existing entity and is in good standing under the laws of the jurisdiction of its formation and is duly qualified to do business (if a business) and in good standing as a foreign entity in the jurisdiction of its principal place of business (if not formed in that jurisdiction);
(b) That it has the full legal right, power, and authority to enter into this Class Settlement Agreement and perform its obligations under this Class Settlement Agreement;
(c) That it has taken all appropriate and necessary action to authorize its execution, delivery, and performance of this Class Settlement Agreement and the transactions contemplated hereunder, except for the Necessary Approvals; and
(d) That it has obtained all consents, approvals, permits and other authorizations in connection with the execution, delivery and performance of this Class Settlement Agreement required to be obtained by it, except for the Necessary Approvals.
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10.11 Governing Law. All terms of this Class Settlement Agreement and the exhibits hereto shall be governed by and interpreted according to the laws of the State of Hawai‘i without regard to its principles of conflict of laws.
10.12 Jurisdiction of the Court. Except as otherwise provided in this Class Settlement Agreement, any dispute regarding the interpretation or validity of, or otherwise arising out of, this Class Settlement Agreement, including any disputes regarding fees, costs and/or expenses amongst counsel, shall be subject to the exclusive jurisdiction of the Approving Court and shall be decided pursuant to the laws of the State of Hawai‘i. The Approving Court shall retain jurisdiction with respect to the interpretation, implementation, and enforcement of the terms of this Class Settlement Agreement and all orders and judgments entered in connection therewith, and the Parties and their respective counsel submit to the jurisdiction of the Approving Court for purposes of interpreting, implementing, and enforcing the settlement embodied in this Class Settlement Agreement and all orders and judgments entered in connection therewith. Furthermore, the Class Parties agree that, subject to Approving Court approval, the Approving Court will have jurisdiction over any claims by a Non-Participant, and that any such litigation will be deemed related to the Actions.
10.13 Waiver of Right to Object. By signing this Class Settlement Agreement, Class Representatives, Class Counsel, and Defendants and their counsel agree not to object to any of the terms of this Class Settlement Agreement or the Individual Settlement Agreement. Any such objection shall therefore be void and of no force or effect.
10.14 Public Communications. Class Counsel (including their firms and any representative on their behalf) agree that they will not make any statements that disparage the Class Settlement Agreement or Individual Settlement Agreement, Releasees, or Releasees’ conduct, character, or business reputation.
10.15 Non-Use of Work Product. Unless inconsistent with their ethical obligations or order of the Court, or as otherwise agreed to in writing by Class Counsel and Defense Counsel, Class Counsel agree that they will not use, nor will they allow to be used, any work product derived from any discovery in these Actions, whether or not any such work product includes information designated protected under the protective order in this case, in the prosecution or litigation of any other case, claim, or action.
10.16 Cooperation. The Class Parties agree to cooperate fully and execute any and all supplementary documents, and take all additional actions, which may be necessary or appropriate to give full force and effect to the terms and intent of this Class Settlement Agreement.
10.17 No Third-Party Beneficiaries. Except for Class Plaintiffs, Defendants, the Releasees, and their respective successors and assigns, no provision of this Class Settlement Agreement is intended to create any third-party beneficiary to this Class Settlement Agreement.
10.18 No Construction Against Any Party. This Class Settlement Agreement is the product of negotiations between the Class Parties hereto represented by counsel and any rules of
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construction relating to interpretation against the drafter of an agreement shall not apply to this Class Settlement Agreement and are expressly waived.
10.19 Reasonable Extension of Deadlines. The signatories to this Class Settlement Agreement are authorized to consent to any reasonable extension of any deadline set forth in this Class Settlement Agreement to the degree such extension does not require approval from the Approving Court(s), provided that any such extension must be agreed to by all signatories and in writing.
10.20 No Waiver. No waiver of any breach of any provision of this Class Settlement Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions of this Class Settlement Agreement. No waiver shall be effective unless made in writing and signed by the waiving party.
Signature Pages to Follow
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IN WITNESS WHEREOF, the State hereby sets its hands to this Class Settlement
Agreement to be effective as of the Settlement Date:
| DATED: | Nov 1, 2024 | By: | /s/ Xxxx X. Xxxxx | |||||||||||
| Xxxx X. Xxxxx | ||||||||||||||
| Attorney General of Hawaii | ||||||||||||||
| STATE OF HAWAII | ||||||||||||||
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IN WITNESS WHEREOF, the County hereby sets its hands to this Class Settlement
Agreement to be effective as of the Settlement Date:
| DATED: | /s/ Xxxxxxx X. Xxxxxx Xx. | |||||||||||||
| Xxxxxxx X. Xxxxxx, Xx. | ||||||||||||||
| Mayor | ||||||||||||||
| COUNTY OF MAUI | ||||||||||||||
| APPROVED AS TO FORM | ||||||||||||||
| DATED: | /s/ Xxxxxxxx X. Xxxxxxxx-Xxxxxxxx | |||||||||||||
| Xxxxxxxx X. Xxxxxxxx-Xxxxxxxx | ||||||||||||||
| Corporation Counsel | ||||||||||||||
| COUNTY OF MAUI | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, Hawaiian Electric hereby sets its hands to this Class
Settlement Agreement to be effective as of the Settlement Date:.
| DATED: | 11/4/2024 | /s/ Xxxxx Xxx | ||||||||||||
| Xxxxx Xxx | ||||||||||||||
| President and CEO | ||||||||||||||
| HAWAIIAN ELECTRIC INDUSTRIES, | ||||||||||||||
| INC. | ||||||||||||||
| DATED: | 11/4/2024 | /s/ Xxxxxx Xxxxxx | ||||||||||||
| Xxxxxx Xxxxxx | ||||||||||||||
| President and CEO | ||||||||||||||
| HAWAIIAN ELECTRIC COMPANY, INC. | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, KS1 hereby sets its hands to this Class Settlement Agreement
to be effective as of the Settlement Date:
| DATED: | /s/ Xxxxxxxxxx “Xxxx” Xxxx | |||||||||||||
| Xxxxxxxxxx “Jack” Xxxx | ||||||||||||||
| CEO | ||||||||||||||
| KAMEHAMEHA SCHOOLS | ||||||||||||||
___________________
1 Trustees Not Personally Liable. This instrument has been executed on behalf of the Trustees of the Estate of Xxxxxxx Xxxxxx Xxxxxx in their fiduciary capacities as said Trustees, and not in their individual capacities. No personal liability or obligation under this instrument shall be imposed or assessed against said Trustees in their individual capacities.
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EXECUTION VERSION
IN WITNESS WHEREOF, Spectrum Oceanic, LLC and Charter Communications, Inc.
hereby sets its hands to this Class Settlement Agreement to be effective as of the Settlement
Date:
| DATED: | November 1, 2024 | /s/ Xxxxx Xxxxxxxx | ||||||||||||
| Xxxxx Xxxxxxxx | ||||||||||||||
| SVP Field Operations – Hawaii | ||||||||||||||
| SPECTRUM OCEANIC, LLC | ||||||||||||||
| By: Charter Communications, Inc., its | ||||||||||||||
| Manager | ||||||||||||||
| DATED: | November 1, 2024 | /s/ Xxxxx Xxxxxxxx | ||||||||||||
| Xxxxx Xxxxxxxx | ||||||||||||||
| SVP Field Operations – Hawaii | ||||||||||||||
| CHARTER COMMUNICATIONS, INC. | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, Hawaiian Telcom hereby sets its hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | Nov. 3, 2024 | /s/ Xxx Xxxxx | ||||||||||||
| Xxx Xxxxx | ||||||||||||||
| General Counsel | ||||||||||||||
| HAWAIIAN TELCOM, INC. | ||||||||||||||
| DATED: | Nov. 3, 2024 | /s/ Xxxx Xxxxxxx | ||||||||||||
| Xxxx Xxxxxxx | ||||||||||||||
| Chief Legal Officer | ||||||||||||||
| CINCINNATI BELL INC. | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, West Maui Land hereby sets its hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | /s/ Xxxxx X. Xxxxxxx | |||||||||||||
| Xxxxx X. Xxxxxxx | ||||||||||||||
| Secretary/Treasurer | ||||||||||||||
| WEST MAUI LAND COMPANY, INC. | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxxx | |||||||||||||
| Xxxxx X. Xxxxxxx | ||||||||||||||
| Secretary/Treasurer | ||||||||||||||
| LAUNIUPOKO IRRIGATION COMPANY | ||||||||||||||
| INC. | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| Manager | ||||||||||||||
| HOPE BUILDERS HOLDING LLC | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| Manager | ||||||||||||||
| KAUAULA LAND COMPANY LLC | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| Manager | ||||||||||||||
| MAKILA LAND CO., LLC | ||||||||||||||
| DATED: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||||||||
| Xxxxxxx X. Xxxxxxxx | ||||||||||||||
| Assistant Secretary | ||||||||||||||
| HOPE BUILDERS LLC nka HOPE | ||||||||||||||
| BUILDERS, INC. | ||||||||||||||
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| DATED: | /s/ Xxxxx X. Xxxxxxx | |||||||||||||
| Xxxxx X. Xxxxxxx | ||||||||||||||
| Secretary/Treasurer | ||||||||||||||
| LAUNIUPOKO WATER COMPANY, INC. | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| Manager | ||||||||||||||
| KIPA CENTENNIAL, LLC | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| Manager | ||||||||||||||
| WAINEE LAND & HOMES, LLC | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxxx | |||||||||||||
| Xxxxx X. Xxxxxxx | ||||||||||||||
| Member | ||||||||||||||
| LAUNIUPOKO WATER DEVELOPMENT | ||||||||||||||
| LLC | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx Xxxxx Xxxxxx | ||||||||||||||
| Individually and as Trustee of the Xxxxx Xxxxx | ||||||||||||||
| Xxxxxx Revocable Trust | ||||||||||||||
| DATED: | 11/04/24 | /s/ Xxxxxx Xxxxxx | ||||||||||||
| Xxxxxx Xxxxxx | ||||||||||||||
| Member | ||||||||||||||
| JV ENTERPRISES, LLC | ||||||||||||||
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| DATED: | /s/ Xxxxx Xxxx Xxxxxxx | |||||||||||||
| Xxxxx Xxxx Xxxxxxx | ||||||||||||||
| Individually and as Personal Representative | ||||||||||||||
| of the Estate of Xxxxxxx Xxxxxxx | ||||||||||||||
| DATED: | Nov 1, 2024 | /s/ Xxxxxx Xxxxx | ||||||||||||
| Xxxxxx Xxxxx | ||||||||||||||
| Trustee of the Xxxxxx Xxxxx Trust and | ||||||||||||||
| Successor Trustee of the Xxxxx Xxxxx Trust | ||||||||||||||
| DATED: | Nov 1, 2024 | /s/ Xxxxxx Xxxxx | ||||||||||||
| Xxxxxx Xxxxx | ||||||||||||||
| Secretary | ||||||||||||||
| MAKILA RANCHES HOMEOWNERS | ||||||||||||||
| ASSOCIATION, INC. | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| President | ||||||||||||||
| MAKILA RANCHES, INC. | ||||||||||||||
| DATED: | /s/ Xxxxx X. Xxxxxx | |||||||||||||
| Xxxxx X. Xxxxxx | ||||||||||||||
| Manager | ||||||||||||||
| OLOWALU ELUA ASSOCIATES LLC | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | 11/04/24 | /s/ Xxxxxxxx Xxxx XxXxxxx | ||||||||||||
| Xxxxxxxx Xxxx XxXxxxx | ||||||||||||||
| Class Representative | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | 11/04/24 | /s/ Xxxxxxx Xxxxxxxx, Xx. | ||||||||||||
| Xxxxxxx Xxxxxxxx, Xx. | ||||||||||||||
| Class Representative | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | 11/04/24 | /s/ Xxxxx Xxxxxx | ||||||||||||
| Xxxxx Xxxxxx | ||||||||||||||
| Class Representative | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | Nov 04, 2024 | /s/ Rede X. Xxxx | ||||||||||||
| Rede X. Xxxx | ||||||||||||||
| Class Representative | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | Nov 04, 2024 | /s/ Xxxxxx X. Xxxx | ||||||||||||
| Xxxxxx X. Xxxx | ||||||||||||||
| Class Representative | ||||||||||||||
Maui Fires Cases
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | 11/04/24 | /s/ Xxxx Xxxxxx | ||||||||||||
| Xxxx Xxxxxx, individually and as Trustee | ||||||||||||||
| of the Aotaki Family Irrevocable Trust | ||||||||||||||
| Class Representative | ||||||||||||||
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EXECUTION VERSION
IN WITNESS WHEREOF, the below Class Representative has set their hands to this Class Settlement Agreement to be effective as of the Settlement Date:
| DATED: | 11/1/2024 | /s/ Xxxx X. Xxxxx | ||||||||||||
| XXXX X. XXXXX | ||||||||||||||
| XXXXX CABRASER XXXXXXX & | ||||||||||||||
| XXXXXXXXX, LLP | ||||||||||||||
| Attorneys for Plaintiffs | ||||||||||||||
| NOVA XXXXXX; MAUI CONCIERGE | ||||||||||||||
| AESTHETICS, LLC; XXXX XXXXXX, | ||||||||||||||
| individually and as Trustee of the | ||||||||||||||
| AOTAKI FAMILY IRREVOCABLE | ||||||||||||||
| TRUST; XXXXXXX XXXXXXX; | ||||||||||||||
| XXXXXXX XXXXXX | ||||||||||||||
| DATED: | /s/ Xxxxxxxx X. Xxxxxx | |||||||||||||
| XXXXXXXX X. XXXXXX | ||||||||||||||
| XXXX X.X. XXXXX | ||||||||||||||
| XXXXXXX X. XXXXXX | ||||||||||||||
| XXXXXXX XXXX XXXXX | ||||||||||||||
| Attorneys for Plaintiffs | ||||||||||||||
| NOVA XXXXXX; MAUI CONCIERGE | ||||||||||||||
| AESTHETICS, LLC; XXXX XXXXXX, | ||||||||||||||
| individually and as Trustee of the AOTAKI | ||||||||||||||
| FAMILY IRREVOCABLE TRUST; | ||||||||||||||
| XXXXXXX XXXXXXX; XXXXXXX | ||||||||||||||
| XXXXXX | ||||||||||||||
| DATED: | 11/1/2024 | /s/ Xxxxxx X. Xxxxxx | ||||||||||||
| XXXXXX X. XXXXXX | ||||||||||||||
| XXXXX XXXXX XXXXX & XXXXXX, LLP | ||||||||||||||
| Attorneys for Plaintiffs | ||||||||||||||
| XXXXXX X. XXXX; REDE X. XXXX; | ||||||||||||||
| XXXXXXX XXXXX; XXXXX XXXXX; | ||||||||||||||
| XXXXX XXXXXX; XXXXXXXX XXXX | ||||||||||||||
| XXXXXXX; XXXXXX XXXXXXXX, XX | ||||||||||||||
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| DATED: | 11/1/2024 | /s/ Xxxxxxxxx Xxxxxxxxx, XX | ||||||||||||
| XXXXXXXXX XXXXXXXXX, XX | ||||||||||||||
| XXXXXXXXX & ASSOCIATES, LLP | ||||||||||||||
| Attorneys for Plaintiffs | ||||||||||||||
| XXXXXX X. XXXX; REDE X. XXXX; | ||||||||||||||
| XXXXXXX XXXXX; XXXXX XXXXX; | ||||||||||||||
| XXXXX XXXXXX; XXXXXXXX XXXX | ||||||||||||||
| XXXXXXX; XXXXXXX XXXXXXXX, XX | ||||||||||||||
| DATED: | 11/1/2024 | /s/ Xxxxxx X. Xxxxxxxxx | ||||||||||||
| XXXXXX X. XXXXXXXXX | ||||||||||||||
| XXXXXXXX XXXXXXXXX | ||||||||||||||
| XXXXXX X. XXXXXXXX | ||||||||||||||
| XXXXXX XXXX XXXXXXX | ||||||||||||||
| LIPPSMITH LLP | ||||||||||||||
| Attorneys for Plaintiffs | ||||||||||||||
| XXXXXX X. XXXX; REDE X. XXXX; | ||||||||||||||
| XXXXXXX XXXXX; XXXXX XXXXX; | ||||||||||||||
| XXXXX XXXXXX; XXXXXXXX XXXX | ||||||||||||||
| XXXXXXX; XXXXXXX XXXXXXXX, XX | ||||||||||||||
| DATED: | 11/4/2024 | /s/ Xxxxxxx X. Xxxxxx | ||||||||||||
| XXXXXXX X. XXXXXX | ||||||||||||||
| XXXXXXXXXXX X. XXXXXX | ||||||||||||||
| D. XXXXX XXXXXXXX | ||||||||||||||
| XXXXXX XXX XXXXXX | ||||||||||||||
| Attorneys for Plaintiff | ||||||||||||||
| XXXXXXXX XXXX | ||||||||||||||
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Class Settlement Agreement
EXECUTION VERSION
Index of Appendices and Exhibits
Appendices
Letter | Title | Class GSA | Individual GSA | ||||||||
A | Non-Participant Thresholds | Included | Not Included | ||||||||
B | Hawaiian Electric Provisions Regarding Payment (with Schedule B1) | Included | Included | ||||||||
Exhibits
No. | Title | Class GSA | Individual GSA | ||||||||
1 | Individual Settlement Agreement | Included | Not Included | ||||||||
2 | Class Settlement Agreement | Not Included | Included | ||||||||
3 | WFIGS Interagency Fire Perimeters Maps Maintained by the National Interagency Fire Center | Included | Not Included | ||||||||
4 | Individual Settlement Agreement and Release | Not Included | Included | ||||||||
5 | Lists of Persons Who Are Included Among the Releasees | Included | Included | ||||||||
6 | List of Decedents | Included | Not Included | ||||||||
7 | [Proposed] Case Management Order No. 8 | Included | Included | ||||||||
8 | List of Notice Recipients | Included | Included | ||||||||
9 | State and County FEMA Letters | Included | Included | ||||||||
10 | Stipulation Between Liaison Counsel and Class Counsel re Procedure to Determine Class Settlement Amount and Individual Settlement Amount | Included | Included | ||||||||
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Appendix A: Non-Participant Thresholds
For purposes of section 8.1, Defendants will have the unilateral right to terminate this Class Settlement Agreement if any of the following thresholds for non-participation are met:
(a)There are more than 0 Non-Participants who have asserted or could assert Wrongful Death Claims;
(b)There are more than 0 Non-Participants who have asserted or could assert Serious Physical Injury Claims;
(c)There are more than 90 residential properties for which Non- Participants have asserted or could assert Residential Property Loss – Within Fire Perimeters Claims;
(d)There are more than 25 commercial properties for which Non- Participants have asserted or could assert Commercial Property Loss – Within Fire Perimeters Claims;
(e)There are more than 65 residential properties for which Non- Participants have asserted or could assert Renter – Within Fire Perimeters Claims.
(f)There are more than 30 businesses for which Non-Participants have asserted or could assert Business Interruption – Within Fire Perimeters Claims;
(g)There are more than 10 Non-Participants who have asserted or could assert Serious Evacuation Claims.
(h)There are more than 30 Non-Participants who have asserted or could assert Evacuation Claims.
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EXECUTION VERSION
Appendix B: Hawaiian Electric Provisions Regarding Payment
Hawaiian Electric will not, and will not permit any Hawaiian Electric Significant Subsidiary to, incur, create, assume or permit to exist any Lien on the capital stock or similar Equity Interests of or other ownership interests in any Hawaiian Significant Subsidiary, now or hereafter owned, for the purpose of securing the obligations under the Hawaiian Electric Existing Funded Indebtedness without effectively providing concurrently therewith a Lien to equally and ratably secure the obligations of Hawaiian Electric to make its Individual Defendant Aggregate Contribution pursuant to documentation in form and substance substantially identical to the documentation pursuant to which the applicable Hawaiian Electric Existing Funded Indebtedness is secured.
Additionally, within seven (7) days of the Settlement Date, HEI shall capitalize New HEI Subsidiary with the HEI Initial Payment Cash. From the Settlement Date through and including the Initial Payment Due Date, absent the consent of Plaintiffs’ Counsel, New HEI Subsidiary shall not (a) incur any indebtedness for borrowed money or (b) transfer the HEI Initial Payment Cash to any person or entity other than in connection with funding Hawaiian Electric’s Initial Payment in accordance with the terms hereof.
* * * * * * * * * * * * * * *
For purposes of this Appendix B, the following definitions, in additions to those specified in Article II of this Individual Settlement Agreement, shall apply:
“Consolidated Total Assets” means, at any date of determination, with respect to HEI and its Subsidiaries on a consolidated basis, the total assets of HEI and its Subsidiaries, determined in accordance with GAAP.
“Equity Interests” shall mean (a) shares of capital stock and any other equity security that confers on a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing company and (b) all warrants, options or other rights to acquire any Equity Interest described in clause (a) of this definition.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America; provided, however, that if the SEC shall require at such future time the replacement of GAAP with another system of accounting principles, GAAP as used herein shall be deemed to refer to such SEC required or approved accounting principles (however named).
“Hawaiian Electric Existing Funded Indebtedness” means the funded indebtedness of the Hawaiian Electric Parties set forth on Schedule B1.
“Hawaiian Electric Significant Subsidiary” means each of HECO, HELCO, MECO, and any other Subsidiary having 15% or more of the total assets, or 15% or more of the total operating income, of HEI and its Subsidiaries on a consolidated basis, in either case as the Consolidated Total Assets and consolidated total operating income of HEI and its Subsidiaries are reflected in
Maui Fires Cases
Class Settlement Agreement
Appendix B
EXECUTION VERSION
the most recent annual or quarterly consolidated financial statements of the Hawaiian Electric Parties.
“HECO” means and Hawaiian Electric Company, Inc. “HEI” means Hawaiian Electric Industries, Inc.
“HEI Initial Payment Cash” means cash in an amount equal to Hawaiian Electric’s Initial Defendant Payment.
“HELCO” means Hawaii Electric Light Company, Inc.
“Lien” shall mean, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or capital lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).
“MECO” means Maui Electric Company, Limited.
“New HEI Subsidiary” means a newly formed subsidiary of HEI, which shall (a) be formed on or before the Settlement Date, and (b) not constitute a “Significant Subsidiary” under the terms of Hawaiian Electric’s existing funded indebtedness.
“Subsidiary” shall mean, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries).
Maui Fires Cases
Class Settlement Agreement
Appendix B
EXECUTION VERSION
Schedule B1
Hawaiian Electric Existing Funded Indebtedness
HEI | HECO | HELCO | MECO | ||||||||
Credit Facilities | |||||||||||
| $175MM revolving credit facility | $200MM revolving credit facility | N/A | N/A | ||||||||
SPRBs | |||||||||||
| N/A | 3.25% Refunding SPRB, Series 2015 | 3.25% Refunding SPRB, Series 2015 | 3.25% Refunding SPRB, Series 2015 | ||||||||
| 3.10% Refunding SPRB, Series 2017A | 3.10% Refunding SPRB, Series 2017A | 3.10% Refunding SPRB, Series 2017A | |||||||||
| 4.00% Refunding SPRB, Series 2017B | 4.00% Refunding SPRB, Series 2017B | 4.00% Refunding SPRB, Series 2017B | |||||||||
3.20% Refunding SPRB, Series 2019 | 3.20% Refunding SPRB, Series 2019 | 3.50% SPRB, Series 2019 | |||||||||
3.50% SPRB, Series 2019 | 3.50% SPRB, Series 2019 | ||||||||||
Notes | |||||||||||
| 4.58% Senior Notes, Series 2018A | 4.72% Senior Notes, Series 2012D | 4.84% Senior Notes, Series 2013C | 4.84% Senior Notes, Series 2013A | ||||||||
| 4.72% Senior Notes, Series 2018B | 5.39% Senior Notes, Series 2012E | 5.23% Senior Notes, Series 2015A | 5.65% Senior Notes, Series 2013B | ||||||||
| 2.98% Senior Notes, Series 2020A | 4.53% Senior Notes, Series 2012F | 4.38% Senior Notes, Series 2018A | 5.23% Senior Notes, Series 2015A | ||||||||
| 3.15% Senior Notes, Series 2020B | 4.84% Senior Notes, Series 2013B | 4.53% Senior Notes, Series 2018B | 4.31% Senior Notes, Series 2017A | ||||||||
| 2.82% Senior Notes, Series 2020C | 5.65% Senior Notes, Series 2013C | 4.72% Senior Notes, Series 2018C | 4.38% Senior Notes, Series 2018A | ||||||||
| 2.48% Senior Notes, Series 2021A | 5.23% Senior Notes, Series 2015A | 4.21% Senior Notes, Series 2019A | 4.53% Senior Notes, Series 2018B | ||||||||
| 2.78% Senior Notes, Series 2021B | 4.54% Senior Notes, Series 2016A | 3.96% Senior Notes, Series 2020A | 4.72% Senior Notes, Series 2018C | ||||||||
| 3.74% Senior Notes, Series 2021C | 4.31% Senior Notes, Series 2017A | 3.28% Senior Notes, Series 2020B | 4.21% Senior Notes, Series 2019A | ||||||||
| 2.98% Senior Notes, Series 2022A | 4.38% Senior Notes, Series 2018A | 3.51% Senior Notes, Series 2020C | 3.31% Senior Notes, Series 2020A | ||||||||
| 3.94% Senior Notes, Series 2022B | 4.53% Senior Notes, Series 2018B | 3.70% Senior Notes, Series 2022A | 3.96% Senior Notes, Series 2020B | ||||||||
| 5.43% Senior Notes, Series 2022C | 4.72% Senior Notes, Series 2018C | 6.25% Senior Notes, Series 2023A | 3.51% Senior Notes, Series 2020C | ||||||||
| 5.43% Senior Notes, Green Series 2022D | 4.21% Senior Notes, Series 2019A | 3.70% Senior Notes, Series 2022A | |||||||||
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Appendix B1
EXECUTION VERSION
HEI | HECO | HELCO | MECO | ||||||||
6.04% Senior Notes, Series 2023A | 3.31% Senior Notes, Series 2020A | 6.25% Senior Notes, Series 2023A | |||||||||
6.10% Senior Notes, Series 2023B | 3.31% Senior Notes, Series 2020B | ||||||||||
3.96% Senior Notes, Series 2020C | |||||||||||
3.28% Senior Notes, Series 2020D | |||||||||||
3.51% Senior Notes, Series 2020E | |||||||||||
3.70% Senior Notes, Series 2022A | |||||||||||
6.11% Senior Notes, Series 2023A | |||||||||||
6.25% Senior Notes, Series 2023B | |||||||||||
6.70% Senior Notes, Series 2023C | |||||||||||
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EXECUTION VERSION
Appendix B1
EXECUTION VERSION
EXECUTION VERSION
EXHIBIT 7
EXECUTION VERSION
[PROPOSED] CASE MANAGEMENT ORDER NO. 8
PROCEDURES GOVERNING INDIVIDUAL PLAINTIFF
OPT OUT CASES PENDING AS OF [DATE]1
WHEREAS, the COURT hereby considers the Parties’ joint request for a Case Management Order governing any and all Individual Plaintiffs Maui Fires opt out cases pending before this Court as of [DATE] (“CMO 8 Effective Date”) or filed on or after that date, and GOOD CAUSE appearing, finds that:
1. This Court has authority under Xxxxx'x Rule of Civil Procedure 42(a) and Circuit Court Rule 12(c)(4) to issue any case management order the Court believes to be conducive to the just, efficient, and economic determination of the coordinated cases and may make such orders that tend to avoid unnecessary costs or delay.
2. This Case Management Order No. 8 shall apply to any Individual Plaintiffs Maui Fire tort cases pending before this Court as of the CMO 8 Effective Date, or to any new tort cases arising out of the Maui windstorm and fires of August 2023, including the fires in Lahaina, Kula, and Xxxxxx, filed after the CMO 8 Effective Date.
NOW THEREFORE, the Court orders as follows:
A. Serving of Initial Plaintiff Discovery. Each Plaintiff shall provide all information requested in (a) the Plaintiff Fact Sheet (Exhibit A to Case Management Order No. 7 (“CMO No. 7”), Dkt. 1645), and the Trial Damages Questionnaire (attached as Exhibit B to CMO No. 7), pursuant to the procedures and deadlines set forth in CMO No. 7, except that the deadline to submit the Trial Damages Questionnaire shall be amended to be within either (i) thirty (30) days of the online form being made available by BrownGreer or (ii) within thirty (30) days of the
_____________
_______________
1 [NTD: This date will be inserted as 10 days after the Initial Payment Due Date (Class Settlement / Individual Settlement Section 7.9).]
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EXECUTION VERSION
filing of a Short Form Complaint and Notice of Adoption (“Complaint”) by a new Plaintiff, whichever is later. The deadline for completion of the Plaintiff Fact Sheet and Trial Case Damages Questionnaire may be modified as set out in CMO 7. Should the mediation process as set out in Section B not lead to a settlement, then any Defendant may serve additional non-duplicative discovery on the Plaintiff using any form of discovery available under the Hawaii Rules of Civil Procedure.
B. Mediation Process Required.
1. Each Plaintiff shall, within 120 days of the date serving a compliant Plaintiff Fact Sheet and Trial Damages Questionnaire described in Section A, engage in mediation with all Defendants named in the Plaintiff’s Complaint with a mediator or mediators agreed upon by all parties. The costs of mediation will be borne 50% by the Plaintiff(s) involved in the particular mediation and 50% by the Defendant(s) named in the particular Plaintiff’s complaint.
2. In addition to the Plaintiff Fact Sheet and Trial Damages Questionnaire described in Section A, each Plaintiff shall, prior to engaging in mediation, serve each Defendant with all documents and information required to submit a claim for a Monetary Award, as defined by the Class Settlement Agreement.
3. Plaintiff may not proceed to litigate their claims in Court until the completion of the mediation process described in this Section. All litigation deadlines, including without limitation deadlines for discovery or to file and serve a response to Plaintiff’s new or existing Complaint, shall be held in abeyance until the completion of the mediation process described in this Section.
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EXECUTION VERSION
4. Should any Defendant contend that a particular Plaintiff is not entitled to continue his or her case because the Plaintiff did not submit a valid opt-out form or otherwise released their claims, then any Defendant may seek dismissal of that Plaintiff’s claims from the Court prior to commencing mediation. The deadline to mediate in this section is tolled while any motion seeking dismissal on the grounds set out in this paragraph is pending.
C. Stay in Effect Until Answer. All Maui Fires cases are currently stayed and remain stayed (except as expressly set out herein) through the mediation process outlined in Section B. The stay for each individual case will be lifted only as follows. If a case does not resolve in the mediation process outlined in Section B, then each defendant’s deadline to answer or otherwise respond to the complaint is 30 days after the completion of that process. If any defendant files a dispositive motion within that timeframe, then no answer is due from any defendant. The stay remains in effect until a defendant files an answer (either upon the conclusion of the initial 30-day period or after resolution of the dispositive motion). Plaintiffs may not serve any discovery during the stay.
D. Trial Date. No trial date shall be set until the completion of the mediation process described in Section B and the resolution of any dispositive motion filed under Section C. After all defendants answer the complaint, the parties shall notify the Court and request that the Court set a trial date that is no sooner than 12 months after the date that the request for a trial date is made.
E. Dismissal of Plaintiffs Who Fail to Comply With This Order.
1. Notice of Non-Compliance and Opportunity to Cure. If any Plaintiff fails to comply with any provision of this Order, Defendants shall provide Plaintiff written notice of such non-compliance (“Notice of Non-Compliance”) specifying the non-compliance and shall
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EXECUTION VERSION
file the Notice of Non-Compliance with the Court. Upon receipt of a Notice of Non-Compliance, Plaintiff shall have thirty (30) days to cure her, his, or its non-compliance specified in the Notice of Non-Compliance. During the period wherein non-compliance has not yet been cured, all deadlines applicable to Defendants shall be held in abeyance.
2. Failure to Cure. If, after the passage of thirty (30) days of service of a Notice of Non-Compliance, a Plaintiff fails to cure her, his, or its non-compliance, upon application by the Defendants, the Plaintiff’s claims, as well as any derivative claim(s), will be dismissed with prejudice pursuant to HRCP 41(b) as against any Defendants.
3. Extensions of Time. The Court, on motion and for good cause shown, may order an extension of the time to comply with this Order.
F. Sanctions. Any Plaintiff or counsel for that Plaintiff who submits false or misleading information, or otherwise attempts to satisfy the documentation requirements of this Order through any form of deception, dishonesty or fraud, may be subject to appropriate sanctions (including monetary sanctions and costs) and dismissal with prejudice pursuant to HRCP 37.
G. No Admission of Liability. This Case Management Order will not be construed as evidence, nor as an admission by Defendants of any liability or wrongdoing whatsoever or as an admission by the Plaintiffs of any lack of merit in their claims.
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EXECUTION VERSION
EXHIBIT 10
EXECUTION VERSION
Exhibit 10
APPENDIX REGARDING ALLOCATION OF GLOBAL SETTLEMENT AMOUNT
Class Plaintiffs1 and the IP Plaintiffs (collectively, “Parties”) agree to the following binding, final procedure to determine the proper allocation of the Aggregate Settlement Amount between the Class Settlement Amount and the Individual Settlement Amount:
1.The terms set forth in this Appendix apply only to the procedure to determine a proper allocation of the Aggregate Settlement Amount between the Class Settlement Amount and the Individual Settlement Amount are not applicable to any other matters. These terms shall not extend to or be applicable in any other contexts or matters
2.The allocation between the Class Settlement Amount and the Individual Settlement Amount of the limited settlement proceeds provided in the Aggregate Settlement Amount will be determined by an evidentiary hearing in a new Special Proceeding to be initiated by the Class Plaintiffs and the IP Plaintiffs before the Xxxxxxxxx Xxxxx X. Xxxxxx, Second Circuit Court of the State of Hawaii (“Court”). The Parties stipulate the case is a Maui Fires case and will label the complaint as a Maui Fires case.
3.Subject to the availability of the Court’s calendar and coordinating schedules among counsel, the Parties will request that the trial be held within approx. 75 days of the Settlement Date or as soon thereafter as the Court may order.
4.The Court will begin by allocating $25,000,000 to the Individual Settlement Fund to make the payment to the County contemplated under Section 4.1.2(k) of the Individual Settlement Agreement.
5.The Court will then determine a fair and equitable allocation of the Aggregate Settlement Amount, minus the $25,000,000 under Section 4 of this Appendix, based on (1) the number of represented individuals as of December 1, 2024 (“IP Plaintiffs”) and the potential value of their claims compared to the number of unrepresented individuals as of the same date, who are within the settlement class definition (“Class Plaintiffs”) and the potential value or lack thereof of their claims; (2) the terms of the Class Settlement Agreement and the Individual Settlement Agreement; and (3) other equitable and/or legal factors the Court may choose to consider, provided the Court shall not enter a ruling on whether certain claims within the Settlement Class definition are precluded under the economic loss rule, nor shall the allocation void or change the Settlement Class definition.
6.If the number of Individual Plaintiffs or eligible Class Plaintiffs in each damages category deviates significantly from the number presented at the evidentiary hearing, the Parties will seek to agree on an appropriate adjustment based on the data or submit to the Court
____________________
1 All capitalized terms used in this Exhibit 10 have the same meaning as in the Class Settlement
Agreement and Individual Settlement Agreement, unless otherwise defined in this Exhibit 10.
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Exhibit 10
EXECUTION VERSION
for resolution should agreement not be reached.
7.The Court’s allocation decision may be expressed in terms of percentages for the Class Settlement Amount and the Individual Settlement Amount, respectively. Any percentages will be translated to dollar figures for the subsequent Preliminary Approval motion and for purposes of determining the Class Settlement Amount and the Individual Settlement Amount.
8.IP Plaintiffs agree they shall provide registration data for all IP Plaintiffs as soon as feasible, which the Court and Class Plaintiffs shall rely upon for the purpose of the allocation. Registration data shall include, at minimum: (a) legal name; (b) address on August 8, 2023; (c) description by BrownGreer/IP damage category; and (d) name of attorney.
9.The following rules shall apply to the trial, subject to the Court’s discretion to otherwise alter these rules:
a.Hawaii Rules of Evidence and Civil Procedure unless otherwise agreed herein.
b.The burden of proof shall be in the nature of interpleader wherein Class and IP Plaintiffs may present evidence, argument, and testimony in support of their respective claims against the limited Aggregate Settlement Amount.
c.Deadlines for expert reports and expert depositions will be set following conference with the Court.
d.Any depositions shall be by mutual agreement by parties or court order.
e.Trial briefs setting forth the parties’ case, witness list, exhibit list, stipulations and any evidentiary issues will be due 7 days before trial begins.
f.Trial will consist of opening, witness examinations, and closing arguments.
g.After the Court issues findings of fact and conclusions of law and order, a final order will be entered that will be referenced within the Class Settlement Agreement and Individual Settlement Agreement.
h.The Parties will submit a joint request to the Court requiring insurers to provide all relevant data.
i.Both sides waive service, responsive pleadings, and answers.
10.The Parties irrevocably agree to waive appeals from the allocation award, any interlocutory or collateral orders entered in the Special Proceeding, or judgment entered in the Special Proceeding, and expressly agree that the Court’s determinations of the Class Settlement Amount and the Individual Settlement Amount is binding.
11.The Parties can settle at any time before judgment is entered.
Maui Fires Cases
Exhibit 10
