Total Loss Class Action - Lancey Settlement Agreement
EXHIBIT
10.1
Total
Loss Class Action -
Xxxxxx
Settlement Agreement
Please
see attached.
IN
THE CIRCUIT COURT
FOR
THE THIRD JUDICIAL CIRCUIT
MADISON
COUNTY, ILLINOIS
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IN
RE
TOTAL
LOSS CLASS ACTION LITIGATION:
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)
) Consolidated
for Purposes of
) Settlement
Before
) The
Xxxxxxxxx Xxxxx Xxxxxxxxxx
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XXXXXXXX
XXXXXXX,
individually and on behalf of all others similarly situated,
Plaintiff,
v.
CGU
INSURANCE COMPANY OF ILLINOIS, now known as HOMELAND CENTRAL INSURANCE
COMPANY, as transferee of WESTERN STATES INSURANCE COMPANY, a company
affiliated under the trade name of ONEBEACON INSURANCE,
and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
01 L 157
)
)
)
)
)
)
)
)
)
)
)
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XXXX
XXXXXXXXXXX, individually
and on behalf of all others similarly situated,
Plaintiff,
v.
PRUDENTIAL
PROPERTY AND CASUALTY INSURANCE COMPANY, now known as LM PROPERTY
AND
CASUALTY COMPANY,
and CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
01 L 99
)
)
)
)
)
)
)
)
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2
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XXXXXX
X. XXXXXX,
individually and on behalf of all others similarly situated,
Plaintiff,
v.
COUNTRY
MUTUAL INSURANCE COMPANY and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
01 L 113
)
)
)
)
)
)
)
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XXXXX
XXXXXXXXXX,
individually and on behalf of all others similarly situated,
Plaintiff,
v.
PROGRESSIVE
PREMIER INSURANCE COMPANY OF ILLINOIS and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
01 L 149
)
)
)
)
)
)
)
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XXXXX
XXXXXXXXXX, individually
and on behalf of all others similarly situated,
Plaintiff,
v.
ECONOMY
PREFERRED INSURANCE COMPANY, formerly a subsidiary of ST. XXXX
FIRE AND
MARINE INSURANCE COMPANY; METROPOLITAN
PROPERTY AND CASUALTY INSURANCE COMPANY;
and CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
01 L 153
)
)
)
)
)
)
)
)
)
)
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3
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XXXXX
XXXX and
XXXXXX
XXXXXXX,
individually and on behalf of all others similarly situated,
Plaintiffs,
v.
HARTFORD
INSURANCE COMPANY OF ILLINOIS,
HARTFORD
INSURANCE COMPANY OF THE MIDWEST, and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
)
) No.
01 L 158
)
)
)
)
)
)
)
)
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XXXX
X. XXXXXXX,
individually and on behalf of all others similarly situated,
Plaintiff,
v.
NATIONAL
GENERAL INSURANCE COMPANY and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
02 L 628
)
)
)
)
)
)
)
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XXXX
X. XXXXXXXXX,
individually and on behalf of all others similarly situated,
Plaintiff,
v.
TRAVELERS
PROPERTY CASUALTY INSURANCE COMPANY OF ILLINOIS, TRAVELERS PROPERTY
CASUALTY COMPANY,
and CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
02 L 1135
)
)
)
)
)
)
)
)
)
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4
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XXXXX
X. XXXXXXX,
individually and on behalf of all others similarly situated,
Plaintiff,
v.
ATLANTA
CASUALTY COMPANY, INFINITY PROPERTY & CASUALTY
CORPORATION, and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
03 L 1266
)
)
)
)
)
)
)
)
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RUA
XXXXXX, individually
and on behalf of all others similarly situated,
Plaintiff,
v.
COLONIAL
PENN INSURANCE COMPANY and
CCC
INFORMATION SERVICES INC.,
Defendants.
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)
)
)
)
)
) No.
03 L 1267
)
)
)
)
)
)
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STIPULATION
OF CLASS ACTION SETTLEMENT
5
EXHIBITS
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1.
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List
of Named Carrier Defendants and Current or Former Affiliates
That May Have
Used CCC in the Adjustment of Total Loss Claims
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2.
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Preliminary
Approval Order
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3.
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Mailed
Notice
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4.
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Published
Notice
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5.
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Proof
of Claim Form
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6.
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Publications
for Published Notice (One-Time Ad)
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7.
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Size/Scale
of Published Notice
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8
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Website
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9.
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Protective
Order
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10.
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Method
for Imputing Guidebook Xxxxxx
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00.
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Examples
of Calculated Recoveries
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12.
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Documented
Enhancements
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13.
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Monitor
Confidentiality Agreement
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14.
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Ratios
for Reallocation of Attorneys’ Fee Award Pursuant to Paragraph 36 of
Settlement Agreement
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15.
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Final
Approval Order
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6
STIPULATION
OF CLASS ACTION SETTLEMENT
This
Class Action Settlement Agreement (“Agreement”) is entered into by, between, and
among (1) Xxxxxxxx Xxxxxxx, Xxxx Xxxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxxxx, Xxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxx X. Xxxxxxx,
Xxxx
X. Xxxxxxxxx, Xxxxx X. Xxxxxxx, and Rua Xxxxxx, (the “Named Plaintiffs”), on
behalf of themselves and as putative representatives of the Settlement Class
defined in Paragraph 1 below (collectively, “Plaintiffs”); (2) CCC Information
Services Inc. (“CCC”); and (3) CGU Insurance Company of Illinois, now known as
Homeland Central Insurance Company, as transferee of Western States Insurance
Company, a company affiliated under the trade name of OneBeacon Insurance;
Prudential Property and Casualty Insurance Company, now known as LM Property
and
Casualty Insurance Company; Country Mutual Insurance Company; Progressive
Premier Insurance Company of Illinois; Economy Preferred Insurance Company,
formerly a subsidiary of St. Xxxx Fire and Marine Insurance Company;
Metropolitan Property and Casualty Insurance Company; Hartford Insurance
Company
of Illinois; Hartford Insurance Company of the Midwest; National General
Insurance Company; Travelers Personal Insurance Company f/k/a Travelers Property
Casualty Insurance Company of Illinois; Atlanta Casualty Company, Infinity
Property & Casualty Corporation; Colonial Penn Insurance Company, now known
as AIG Centennial Insurance Company; the entities listed in Exhibit 1 hereto;
and their respective parents, subsidiaries, and affiliates (the “Carriers”). CCC
and the Carriers are collectively referred to as “Defendants.” Plaintiffs and
Defendants are collectively referred to as “the Parties.”
This
Agreement is entered into to effect a full and final settlement and dismissal
with prejudice of all claims against Defendants in the above-captioned lawsuits
(the “Lawsuits”) on the terms set forth below and to the full extent reflected
in Paragraphs 39-41 below, subject to the approval of the
Court.
7
RECITALS
WHEREAS,
the Named Plaintiffs have brought the above-captioned Lawsuits on behalf
of
themselves and putative classes of insureds of the Carriers who made first-party
property damage claims with respect to private passenger automobiles under
auto
insurance policies for physical damage to insured automobiles, trucks, and
vans
with a gross vehicle weight of 10,000 pounds or less that were declared by
the
Carriers to be total losses; and
WHEREAS,
the Lawsuits allege generally that the Carriers failed to pay to their insureds
the amounts required under their respective policies of automobile insurance;
and
WHEREAS,
the Lawsuits allege generally, among other things, that the Carriers based
their
total loss valuations of their insureds’ vehicles, in whole or in part, on
valuation reports prepared by CCC, which valuation reports, the Lawsuits
allege,
were “below market”; and
WHEREAS,
Defendants deny the Lawsuits’ allegations; deny that they have engaged in any
wrongdoing; deny that CCC’s valuation reports systemically or otherwise
undervalued automobiles; and maintain that they consistently have acted in
accordance with their insurance policies and all governing laws and regulations;
and
WHEREAS,
the Parties conducted a thorough examination and investigation of the facts
and
law relating to the matters set forth in the Lawsuits, conducted extensive
settlement negotiations, and reached this Agreement at arms’ length, after
consultation with their independent advisors and attorneys, in order
conclusively to resolve these disputes without the uncertainty, expense,
and
delay of further litigation pursuant to the terms set forth herein;
and
WHEREAS,
the Named Plaintiffs and Plaintiffs’ Counsel have examined the benefits to be
obtained under the terms of this Agreement; have considered the risks associated
with the continued prosecution of the Lawsuits and the likelihood of success
on
the merits of the Lawsuits; and believe that, after considering all the
circumstances, the proposed settlement set forth in this Agreement is fair,
reasonable, adequate, and in the best interests of the Named Plaintiffs and
the
Settlement Class.
8
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, the Parties hereto agree as follows, subject to preliminary and final
approval of the Court:
PRELIMINARY
CERTIFICATION OF SETTLEMENT CLASS
1.
The
Parties stipulate to certification, for settlement purposes only, of the
Settlement Class defined as follows:
All
persons who, from January 28, 1989 through the date of preliminary approval
of
this proposed settlement, (a) insured a private passenger automobile under
an
auto insurance policy issued by one or more of the insurance Carriers listed
in
Exhibit 1; (b) made a first-party property damage claim to one or more of
the
Carriers for physical damage to an insured automobile, truck, or van with
a
gross vehicle weight of 10,000 pounds or less; (c) were informed by the Carrier
that the vehicle had been declared a total loss; and where (d) the Carrier
had
requested a valuation from CCC Information Services Inc. (“CCC”); and (e) the
insured was tendered a payment from the Carrier for the totaled
vehicle.
Excluded
from this Settlement Class are the following persons:
(1) Officers,
directors, and employees of the Carriers, CCC, and Class Counsel;
(2) Members
of the Illinois state court judiciary and their immediate families;
and
(3) All
persons who have timely elected to opt out of or exclude themselves from
the
Settlement Class in accordance with the Court’s Orders.
2.
Solely
for the purpose of implementing this Agreement and effectuating the settlement,
Defendants stipulate that the Court may enter an Order preliminarily certifying
the Settlement Class, appointing the Named Plaintiffs as representatives
of the
Settlement Class, and appointing the following as Class Counsel (hereinafter
“Class Counsel”) for the Settlement Class:
9
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Xxxx
X. Xxxxx
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Xxxxx
& Xxxxx LLC
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000
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxx,
Xxxxxxxx 00000
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Telephone:
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000-000-0000
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Facsimile:
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312-220-7777
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Email:
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xxxx@xxxxxxxxxx.xxx
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L.
Xxxxxx Xxxxx
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Xxxxxxx
X. Xxxxx
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Xxxxxxx
X. Xxxxx
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The
Xxxxx Law Firm, P.C.
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000
Xxxxx Xxxxxx
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Xxx
000
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Xxxx
Xxxxx, Xxxxxxxx 00000-0000
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Telephone:
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000-000-0000
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Facsimile:
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000-000-0000
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Email:
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xxxx@xxxxxxxx.xxx
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3.
Solely
for the purpose of implementing this Agreement and effectuating the settlement,
the Parties stipulate that the following shall be appointed as Settlement
Administrator:
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The
Garden City Group, Inc.
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000
Xxxxxx Xxxx
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Xxxxxxxx,
Xxx Xxxx 00000
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Telephone:
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000-000-0000
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Toll
Free:
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000-000-0000
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Facsimile:
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000-000-0000
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E-mail:
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xxxx@xxxxxxxxxxxxxxx.xxx
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4.
Solely
for the purpose of implementing this Agreement and effectuating the settlement,
Defendants stipulate that the Named Plaintiffs are adequate representatives
of
the Settlement Class.
10
5.
After
execution of this Agreement, the Parties shall promptly move the Court to
enter
an order (the “Preliminary Approval Order”) that is without material alteration
from Exhibit 2 hereto, which
(a) preliminarily
approves this Agreement;
(b) certifies
the Settlement Class (the Court expressly reserving the right to determine,
should the occasion arise, whether the Lawsuits may be certified as class
actions for purposes other than settlement, and Defendants hereby retaining
all
rights to assert that the Lawsuits may not be certified as class actions
except
for settlement purposes);
(c) schedules
a fairness hearing on final approval of this Agreement (the “Final Approval
Hearing”) to consider the fairness, reasonableness, and adequacy of the proposed
settlement and whether it should be finally approved by the Court;
(d) finds
that the proposed settlement is sufficient to warrant providing notice to
the
Settlement Class;
(e) appoints
The Garden City Group, Inc. as Settlement Administrator, in accordance with
the
provisions of Paragraphs 7-8;
(f)
approves
the notice (the “Mailed Notice”), the content of which is without material
alteration from Exhibit 3 hereto, to be sent to the persons described in
Paragraph 6 below and directs its mailing by first class mail to the last
known
address for each such person, and, for notices returned, directs the Settlement
Administrator to follow the procedures set forth in Paragraph 10;
(g) approves
the notice (the “Published Notice”), the content of which is without material
alteration from Exhibit 4 hereto, and directs that it be published in accordance
with the provisions of Paragraph 11 hereof;
(h) approves
a claim form (the “Claim Form”), the content of which is without material
alteration from Exhibit 5 hereto, for distribution to members of the Settlement
Class, and sets a date after which Claim Forms shall be deemed untimely (as
further provided in Paragraph 17 below);
11
(i)
determines
that the Mailed Notice together with the Published Notice (i) is the best
practicable notice, (ii) is reasonably calculated, under the circumstances,
to
apprise members of the Settlement Class of the pendency of the Lawsuits and
of
their right to object or to exclude themselves from the proposed settlement,
(iii) is reasonable and constitutes due, adequate, and sufficient notice
to all
persons entitled to receive notice, and (iv) meets all applicable requirements
of Due Process and Illinois law;
(j)
requires
the Settlement Administrator to file proof of mailing of the Mailed Notice
and
publication of the Published Notice, at or before the Final Approval
Hearing;
(k) requires
each member of the Settlement Class who wishes to exclude himself or herself
from the Settlement Class to submit an appropriate, timely request for
exclusion, postmarked no later than sixty (60) days after the Mailed Notice
Date
to the Settlement Administrator at the address in the Mailed Notice;
(l)
preliminarily
enjoins all members of the Settlement Class unless and until they have timely
excluded themselves from the Settlement Class (i) from filing, commencing,
prosecuting, intervening in, or participating as plaintiff, claimant, or
class
member in any other lawsuit or administrative, regulatory, arbitration, or
other
proceeding in any jurisdiction based on, relating to, or arising out of the
claims and causes of action, or the facts and circumstances relating thereto,
in
the Lawsuits and/or the Released Claims (as defined in Paragraphs 39-40);
(ii)
from filing, commencing, or prosecuting a lawsuit or administrative, regulatory,
arbitration, or other proceeding as a class action on behalf of any members
of
the Settlement Class who have not timely excluded themselves (including by
seeking to amend a pending complaint to include class allegations or seeking
class certification in a pending action), based on, relating to, or arising
out
of the claims and causes of action, or the facts and circumstances relating
thereto, in the Lawsuits and/or the Released Claims; and (iii) from attempting
to effect an opt-out of a class of individuals in any lawsuit or administrative,
regulatory, arbitration, or other proceeding based on, relating to, or arising
out of the claims and causes of action, or the facts and circumstances relating
thereto, in the Lawsuits and/or the Released Claims.
12
(m) rules
that any member of the Settlement Class who does not submit a timely, written
request for exclusion from the Settlement Class will be bound by all
proceedings, orders, and judgments in the Lawsuits, even if such member of
the
Settlement Class has previously initiated or subsequently initiates individual
litigation or other proceedings encompassed by the Release (as set forth
in
Paragraphs 39-40);
(n) requires
each member of the Settlement Class who has not submitted a timely request
for
exclusion from the Settlement Class and who wishes to object to the fairness,
reasonableness, or adequacy of this Agreement or the proposed
settlement, or
to the
Attorneys’ Fee Award (as provided in Paragraphs 34-37), to provide to the
Settlement Administrator (who shall forward it to Class Counsel and Counsel
for
all Defendants) and to file with the Court no later than sixty (60) days
after
the Mailed Notice Date, a statement of the objection, as well as the specific
legal and factual reasons, if any, for each objection, including any support
the
member of the Settlement Class wishes to bring to the Court’s attention and all
evidence the member of the Settlement Class wishes to introduce in support
of
his or her objection, or be forever barred from objection;
(o) requires
any attorney hired by a member of the Settlement Class at the Settlement
Class
member’s expense for the purpose of objecting to this Agreement or to the
proposed settlement, or to the Attorneys’ Fee Award, to provide to the
Settlement Administrator (who shall forward it to Class Counsel and Counsel
for
all Defendants) and to file with the Clerk of the Court a notice of appearance
no later than sixty (60) days after the Mailed Notice Date, or as the Court
may
otherwise direct;
13
(p) requires
any member of the Settlement Class who files and serves a written objection
and
who intends to make an appearance at the Final Approval Hearing, either in
person or through personal counsel hired at the Settlement Class member’s
expense, to provide to the Settlement Administrator (who shall forward it
to
Class Counsel and Counsel for All Defendants) and to file with the Court
no
later than sixty (60) days after the Mailed Notice Date, or as the Court
otherwise may direct, a notice of intention to appear;
(q) directs
Defendants to rent a post office box in the name of the Settlement Administrator
to be used for receiving requests for exclusion, objections, notices of
intention to appear, and any other communications, and providing that only
the
Settlement Administrator, Class Counsel, Defendants, the Court, the Clerk
of the
Court, and their designated agents shall have access to this post office
box,
except as otherwise expressly provided in this Agreement;
(r) directs
the Settlement Administrator promptly to furnish Class Counsel, Counsel for
Defendants, and any counsel for Plaintiffs or members of the Settlement Class
with copies of any and all objections, written requests for exclusion, notices
of intention to appear, or other communications that come into its possession
(except as expressly provided in this Agreement); and
(s) contains
any additional provisions agreeable to the Parties that might be necessary
to
implement the terms of this Agreement and the proposed settlement.
CLASS
NOTICE AND OPT-OUT PROCEDURES
6.
The
persons entitled to receive the Mailed Notice referred to in Paragraph 5(f)
are
all persons whose names and last known addresses are reasonably and reliably
ascertainable from the Carriers’ or CCC’S computer or electronic databases as
persons who fall within the definition of the Settlement Class set forth
in
Paragraph 1. Within forty-five (45) days of the Court’s preliminary approval of
this settlement, the Carriers shall deliver to Class Counsel affidavits
providing what each Carrier believes in good faith to be a complete listing
of
the names and last known addresses of all insureds of that Carrier who the
Carrier believes, after a reasonable and good-faith search, are eligible
to
receive the Mailed Notice.
14
7.
The
Parties agree to the appointment of The Garden City Group, Inc. as Settlement
Administrator to perform the services described herein. Prior to execution
of
this Agreement, the Parties shall enter into an agreement with The Garden
City
Group, Inc. regarding settlement administration. The terms of that settlement
administration agreement shall not be inconsistent with those set forth
herein.
8.
The
Settlement Administrator shall assist with various administrative tasks,
including, without limitation, (i) mailing or arranging for the mailing of
Mailed Notice set forth in Paragraphs 5(f) and 9; (ii) arranging for the
publication of Published Notice set forth in Paragraphs 5(g), 9, and 11;
(iii)
handling returned mail not delivered and making any additional mailings required
under the terms of the Agreement; (iv) responding, as necessary, to inquiries
from Settlement Class Members and potential Settlement Class Members; (v)
providing to Class Counsel and counsel for all Defendants within five (5)
business days of receipt copies of all objections, notices of intention to
appear, and requests for exclusion from the Settlement Class; (vi) preparing
a
list of all persons who timely requested exclusion from the Settlement Class
and
submitting an affidavit attesting to the accuracy of that list (the “Opt-Out
List”); (vii) preparing a list of all persons who submitted objections to the
settlement and submitting an affidavit testifying to the accuracy of that
list;
and (viii) providing to Class Counsel within five (5) business days of receipt
copies of all Claim Forms returned by Settlement Class Members, and providing
to
each Carrier copies of all Claim Forms returned by Settlement Class Members
who
are insureds of that Carrier. Defendants will supply the Settlement
Administrator with all information and data reasonably available and necessary
to implement its responsibilities under this Agreement.
15
9.
Within
thirty (30) days of receiving the listing of persons entitled to receive
the
Mailed Notice, the Settlement Administrator shall mail to each person on
the
list by first class mail a copy of the Mailed Notice and the Claim Form.
The
date that said mailing is initially completed is the “Mailed Notice Date” as
that term is used herein. In addition, the Settlement Administrator will
provide
Published Notice as set forth in Paragraphs 5(g) and 11.
10. The
Settlement Administrator shall promptly remail any notices returned by the
Postal Service with forwarding addresses that are received by the Settlement
Administrator.
11. Within
fourteen (14) days of the Mailed Notice Date, the Settlement Administrator
shall
cause to be published in the publications listed in Exhibit 6 hereto the
Published Notice, the content of which is without material alteration from
Exhibit 4, and of the approximate sizes of Exhibit 7 hereto.
12. All
potential members of the Settlement Class shall have sixty (60) days from
the
Mailed Notice Date to submit requests for exclusion from the Settlement Class
prepared and directed in the manner set forth in the proposed Mailed Notice
and
Published Notice.
13. The
Named
Plaintiffs agree that they shall not elect or seek to opt out or exclude
themselves from the Settlement Class.
14. The
Garden City Group shall maintain a website for this settlement that is initially
without material alteration from Exhibit 8 hereto, but that may be amended
during the course of the settlement as appropriate and agreed to by the Parties.
The Garden City Group shall maintain the website for at least 90 days after
the
expiration of the period for the submission of Claim Forms, as set forth
in
Paragraph 17.
16
15. The
Named
Plaintiffs, Class Counsel, and all other counsel of record for the Named
Plaintiffs hereby agree not to engage in any communications with the media
or
press, on the Internet, or in any public forum, orally or in writing, that
relate to this settlement or the Lawsuits, other than statements that are
fully
consistent with the Mailed Notice and the Published Notice and are preapproved
by Defendants, which preapproval shall not be unreasonably
withheld.
CLAIM
FORMS AND SETTLEMENT ADMINISTRATION PROCEDURES
16. The
Claim
Form shall be without material alteration from Exhibit 5.
17. To
be
eligible for any monetary relief set forth in Paragraphs 27-31, a Settlement
Class Member must (a) truthfully, accurately, and completely fill out the
mandatory portion of the Claim Form (Part I); (b) sign the Claim Form under
penalty of perjury; and (c) mail the Claim Form, with first class postage
prepaid, to the Settlement Administrator postmarked on or before seventy-five
(75) days after the Final Approval Hearing.
18. To
be
eligible for any monetary relief set forth in Paragraphs 27-31, the Settlement
Class member’s identification in the Claim Form of the model of his or her
vehicle must match the model of the vehicle identified in CCC’s electronic
database. There shall be no monetary payments for vehicles that are not
identified as total losses in CCC’s electronic database.
19. To
be
eligible for a Documented Enhancement Payment as set forth in Paragraph 30,
a
Settlement Class Member must also satisfy the requirements set forth in
Paragraph 30.
20. Within
three weeks after entry of the Preliminary Approval Order, CCC shall provide
to
the Settlement Administrator an electronic database containing all the
information required to calculate the monetary relief for Settlement Class
members as set forth in Paragraphs 27-31, and to answer questions from putative
class members, in a manner agreed to by counsel for the Parties. The electronic
database will be in a form agreed to by counsel for the
Parties.
17
21. The
data
in CCC’s electronic database (or, at the option of any Carrier, the data in that
Carrier’s electronic or other files) relating to the total loss claim of a
Settlement Class Member shall be used to calculate the monetary relief set
forth
in Paragraphs 27-31. Except as expressly provided in Paragraph 30 (regarding
Documented Enhancements), if the information provided by a Settlement Class
member conflicts with or is different from that found in CCC’s electronic
database (or, at the Carrier’s option, the Carrier’s files), the information in
CCC’s electronic database (or, at the Carrier’s option, the Carrier’s files)
shall control.
22. Claim
Forms may be submitted by a legally authorized guardian or representative
of an
incapacitated, deceased, or minor member of the Settlement Class.
23. CCC
shall
pay for all costs of settlement administration, including the Mailed Notice,
the
Published Notice, and all costs of the Settlement Administrator. The Settlement
Administrator shall not have recourse to the Carriers for payment of settlement
administration costs if CCC fails to pay those costs. The Settlement
Administrator shall invoice CCC directly for its costs and fees, and provide
copies of such invoices to counsel for the Carriers. CCC’s additional
obligations to the Carriers are set forth in a separate memorandum of
understanding between CCC and the Carriers.
CONFIRMATORY
DISCOVERY
24. Class
Counsel may conduct confirmatory discovery of CCC and the Carriers. CCC and
the
Carriers may assert all appropriate objections to any such discovery, which
objections will be resolved by the Court. Any such discovery obtained by
Class
Counsel from CCC and/or the Carriers shall be subject to the agreed protective
order (Exhibit 9 hereto), which shall provide, among other things, that the
documents and information provided to Class Counsel are for use in this
litigation only.
18
CONFIDENTIALITY
OF INFORMATION
25. The
Parties agree that the names, addresses, and other data concerning members
of
the Settlement Class used by Defendants in effecting this settlement and
the
electronic data processing and other recordkeeping procedures and other
materials to be utilized by Defendants in effecting their obligations hereunder
(“Information”) constitute trade secrets and/or highly confidential and
proprietary business information. Therefore:
(a) It
is
agreed that no person, other than individuals directly employed by Defendants
or
to whom Defendants have expressly permitted access, shall be allowed to access
any Information except
(i)
the
Settlement Administrator and the employees of such Administrator;
(ii)
the
Parties’ respective counsel, the employees of such counsel, and their expert
consultants;
(iii) such
other persons as the Court may order after hearing on notice to all counsel
of
record.
(b) The
confidentiality of this Information shall be protected by entry by the Court
of
an agreed protective order (Exhibit 9 hereto), which shall incorporate all
of
the provisions of this Paragraph 25. Violation of this protective order may
be
remedied by an action for damages and/or appropriate injunctive
relief.
(c) Class
Counsel agree to return all Information and materials obtained from Defendants
in connection with the settlement, including any copies made thereof, within
thirty (30) days after the date on which all claims made under the settlement
have been resolved, and to retain no copies thereof.
19
(d) Class
Counsel agree to return any and all documents produced by Defendants during
the
course of discovery within thirty (30) days after the date on which all claims
made under the settlement have been resolved, and to retain no copies
thereof.
COMMUNICATIONS
WITH THE SETTLEMENT CLASS
26. The
Mailed Notice and Published Notice described in Paragraphs 5(f), 5(g), 9,
and 11
shall list the addresses, e-mail addresses, websites, and other contact
information of Class Counsel and the Settlement Administrator, as set out
in
Exhibits 3 and 4. Other than provided in this Agreement, communications relating
to the Lawsuits or this settlement with potential Settlement Class members
shall
be handled through Class Counsel and the Settlement Administrator; provided,
however, that nothing in this Agreement shall be construed to prevent the
Carriers or CCC from communicating orally, electronically, or in writing
with
potential Settlement Class members in the ordinary course of
business.
MONETARY
RELIEF TO QUALIFYING SETTLEMENT CLASS MEMBERS
27. To
be
eligible for any monetary relief, a member of the Settlement Class must timely
submit a Claim Form that satisfies the requirements of Paragraphs 16-19,
22, and
30. Each Carrier shall be responsible for the payment of any monetary relief
only with respect to the claims of its own insureds. The other Carriers shall
not be jointly or severally liable for the payment of any monetary relief
to the
insureds of other Carriers. CCC shall not be responsible for the payment
of any
monetary relief to any insureds.
28. Defined
Terms:
(a) ACV
ACV
is the
amount of the CCC valuation for a vehicle as reflected in the CCC database
(or,
if the Carrier elects, the amount the Carrier paid to the Settlement Class
member on the total loss claim, not including any sales tax or license and
transfer fees, plus the deductible).
20
(b) CCC2
CCC2
is
the
ACV
adjusted
to reflect the CCC value at Condition 2, as reflected in the CCC database.
(c) RR
RR
is the
“Recovery Rate,” calculated as follows:
3%
for
vehicles with ACV
less
than
or equal to $5,000, and
2%
for
vehicles
with ACV
greater
than $5,000.
(d) GV
GV
is
the
“Guidebook Variance,” which is 8% less than the guidebook value imbedded in
the
CCC
database
or
the
imputed guidebook value. If there is no imbedded guidebook value for a vehicle,
then a guidebook value will be imputed through the method set forth in Exhibit
10 hereto.
29. Calculated
Recovery Rules
|
(a)
|
If
ACV
or
CCC2,
whichever is higher, is greater than or equal to the guidebook
value, then
the Settlement Class member is entitled to
$5.
|
|
(b)
|
If
ACV
or
CCC2,
whichever is higher, is less than the guidebook value but greater
than or
equal to GV,
then the Settlement Class member is entitled to
$10.
|
|
(c)
|
If
ACV
and CCC2
are less than GV,
then the Settlement Class member is entitled to the lowest of the
following three calculations, but not less than
$10:
|
|
(i)
|
the
midpoint between CCC2
and ACV,
multiplied by the RR,
[i.e.,
(CCC2
+
ACV)
*
½ * RR].
|
|
(ii)
|
GV
minus ACV.
|
|
(iii)
|
$110.
|
Examples
of Calculated Recoveries are set forth in Exhibit 11 hereto.
30. Documented
Enhancement Payments
(a) If
ACV
and
CCC2 are less
than
GV,
then
the Settlement Class member may be eligible for an increased payment amount
to
account for documented enhancements to the vehicle identified in Exhibit
12
hereto, which are different from or additional to the enhancements identified
on
the CCC valuation (“Documented Enhancement Payments”). Documented Enhancement
Payments on any claim will not exceed an amount equal to 20% of the Calculated
Recovery as set forth in Paragraph 29(c).
21
(b) To
be
eligible for a Documented Enhancement Payment, a Settlement Class member
must
submit documentation (including but not limited to receipts and photographs)
to
establish that one or more of the Documented Enhancements described in this
Paragraph 30 were installed on his or her vehicle at the time the Settlement
Class member made the physical damage claim described in the Settlement Class
definition in Paragraph 1.
31. No
monetary payment under this settlement on any claim shall exceed
$110, excluding
the Documented
Enhancement Payments.
OTHER
RELIEF TO SETTLEMENT CLASS MEMBERS
32. Court-Approved
Monitoring
(a) The
services of a Court-appointed monitor (“Monitor”) shall be retained for a period
of five (5) years. The fees and costs of the Monitor shall be borne solely
by
CCC. The role and function of the Monitor shall be as described
below.
(b) Subject
to Court approval, Class Counsel, the Carriers, and CCC have mutually agreed
to
the appointment of Xxxxxx Xxxxxx of LECG as the Monitor.
(c) The
responsibilities of the Monitor are as follows: (1) providing CCC, Class
Counsel, the Carriers, and the Court annually with a report that sets forth
the
status and the Monitor’s assessment of the Court-approved validation studies
described below; (2) ensuring that CCC complies with its obligations under
this
Agreement; and (3) ensuring that CCC continues to provide fair and accurate
valuations to insurers and consumers.
(d) The
reports prepared by the Monitor shall be filed with the Court and provided
to
Class Counsel and the Carriers. To the extent any portion of any Monitor’s
report contains information that CCC and/or one or more of the Carriers
considers confidential, such portions will be designated as such and filed
with
the Court under seal, subject to the provisions of the Protective Order (Exhibit
9). Class Counsel further agree that the reports themselves and the information
and assessments contained therein shall be used by them solely for the purpose
of assessing CCC’s compliance with its obligations under this Agreement. Without
limiting the foregoing, Class Counsel agree that the reports and the information
and assessments contained therein will not be used in any other litigation.
CCC
and the Carriers, however, shall be free to use the Monitor’s reports in any way
they deem appropriate.
22
(e) CCC
will
provide the Monitor with access to all relevant documents and
information.
Because
many of these documents and information are proprietary and/or confidential,
the
Monitor will execute a confidentiality agreement that is without material
alternation from Exhibit 13 hereto, and that places necessary restrictions
on
the use and disclosure of such documents and information by the Monitor.
(f)
In
the
event that the Monitor is unable or unwilling to complete his/her term (as
specified in Paragraph 32(a)), a replacement shall be chosen by mutual agreement
of Class Counsel, CCC, and the Carriers, subject to approval by the
Court.
(g) The
compensation of the Monitor shall be governed by an agreement between the
Monitor and CCC, subject to approval by the Court.
33. Validation
Studies
(a) CCC
shall
perform the following validation studies to further validate the processes
and
methodology used in its valuation product and services:
|
(1)
|
Condition
Usage/Wear Standards Study
|
The
primary objective of this study is to further validate and update at the
component level the set of defining vehicle condition characteristics. This
study will include nationwide field research in urban and rural areas to
ascertain the condition characteristics present on vehicles located in dealer
lots and on the street. This research will provide coverage across six vehicle
types and all vehicle model age groups. The determination of the composition
of
the model age groups will also be addressed by this study.
23
|
(2)
|
Vehicle
Condition Market Value Impact Study
|
The
primary objective of this study, which will be performed through the use
of the
findings of the study identified in Item No. 1, is to further validate the
impact of a vehicle’s condition on its market value. This study will test for
dependencies vis-à-vis
condition across multiple variables (i.e.,
vehicle
type, age group, price range, and market).
|
(3)
|
Refurbished,
Rebuilt, and Restored Components Value Impact
Study
|
The
primary objective of this study is to further validate the market value impact
of refurbished, rebuilt, and restored components on a vehicle. This study
will
assess the positive and/or negative impact (if any) the presence of refurbished,
rebuilt, and/or restored components has on a vehicle. This study will entail,
inter alia,
the
comparison of comparable vehicles with and without refurbished, rebuilt,
and/or
restored components (e.g.,
a 1995
Taurus LX with and without a refurbished engine). This study will also address
the difference in impact (if any) as between refurbished, rebuilt, and restored
components.
|
(4)
|
Vehicle
Mileage Value Impact Validation
Study
|
The
primary objective of this study is to further validate the market value impact
mileage has on a vehicle as mileage varies from the norm for a particular
make,
model, and year in a particular market. This study will research and assess
mileage impact on vehicles over time (i.e.,
across
model years) as well as the impact of mileage on market value as a function
of
the sales channel used (i.e.,
dealer
versus private-party sales).
|
(5)
|
Vehicle
OEM Equipment Configuration Value Impact Validation
Study
|
The
primary objective of this study is to further validate the market value impact
the presence or absence of specific OEM equipment has on a vehicle. This
study
will test for equipment market value dependencies (i.e.,
does
the presence of an optional equipment package contribute less than the sum
of
individual options). It will also assess the impact of equipment configuration
as a whole and its impact over time (i.e.,
across
model years).
24
|
(6)
|
Vehicle
After-Factory Equipment Configuration Market Value Impact
Study
|
The
primary objective of this study is to further validate the market value impact
of the presence or absence of specific after-factory equipment on a vehicle.
This study will also assess the referenced market value impact over time
(i.e.,
across
model years) and will identify if certain after-factory equipment has a value
impact limited to specific vehicle types or families.
|
(7)
|
Vehicle
Depreciation Study
|
The
primary objective of this study is to further validate vehicle price
depreciation trends. Specifically, this study will identify regional vehicle
age
and model clusters whose prices depreciate consistently.
|
(8)
|
Vehicle
Anomalous Price Identification
Study
|
The
primary objective of this study is to further validate the vehicle price
anomaly
quality filters. Specifically, this study will identify the boundaries of
normal
price distribution for vehicle groups.
|
(9)
|
Comparable
Vehicle Relative Contribution Criteria
Study
|
The
primary objective of this study is to further validate the factors that
contribute to vehicle values and their relative contribution to the whole.
This
information is used to determine the contribution of comparable vehicles
to the
loss vehicle’s calculated market value. Factors that will be considered are,
inter alia,
distance and vehicle similarity.
|
(10)
|
Vehicle
Family Comparability Determination
|
The
primary objective of this study is to further validate the factors that
determine vehicle homogeneity. Specifically, this study will identify the
rules
and characteristics that determine vehicle comparability. Identification
of how
year, make, and model attributes can be modified and comparability still
be
maintained is the objective of this study. Vehicle comparability over time,
across model years, and vehicle types will be covered.
|
(11)
|
Vehicle
Local Market Determination
|
The
primary objective of this study is to further validate factors that define
a
vehicle’s local market. This study will identify the geographic market
boundaries for both urban and rural areas. This study will also identify
contributing factors that set these boundaries (e.g.,
road
access, dealer population and advertisement channels).
25
(b) The
foregoing studies shall be performed on a schedule agreed upon through
consultation between the Monitor and CCC, subject to Court approval. CCC
shall
use its best efforts to complete these studies within the Monitor’s tenure, as
specified in Paragraph 32(a). In the event, however, that CCC does not complete
the studies within the time period, the Court shall extend the tenure of
the
Monitor until the studies are completed, solely for the purpose of having
the
Monitor oversee the completion of the studies.
(c) The
foregoing studies shall be provided to the Monitor within sixty (60) days
of the
completion of each study.
(d) The
studies themselves shall remain the property of CCC, and in its discretion,
CCC
shall use said studies for any purposes it deems appropriate.
ATTORNEYS’
FEE AWARD
34. Class
Counsel agree not to seek from the Court an award of attorneys’ fees, costs, and
expenses in excess of $9,500,000 (“Attorneys’ Fee Award”), and Defendants agree
not to contest such award. The Attorneys’ Fee Award will be paid to Class
Counsel by the Carriers. The Carriers’ respective shares of the Attorneys’ Fee
Award will be in the amounts previously agreed to by the Carriers.
35. The
Parties expressly agree that the terms of this Agreement are not conditioned
upon any minimum or maximum attorneys’ fees award, or upon the payment of any
incentive award to any Named Plaintiff.
36. If
any
Carrier withdraws from this settlement pursuant to Paragraphs 42-48, there
will
be a reduction and reallocation of the Attorneys’ Fee Award, in accordance with
the ratios set out in Exhibit 14 hereto.
26
37. Any
Attorneys’ Fee Award to Class Counsel shall be paid by the Carriers within
thirty (30) days of the Effective Date of this settlement, as defined in
Paragraphs 49-51 below.
FINAL
APPROVAL, DISMISSAL OF CLAIMS, AND RELEASES
38. If
this
Agreement (including any modification thereto made with the consent of the
Parties as provided for herein) is approved by the Court following the Final
Approval Hearing scheduled by the Court in its Preliminary Approval Order,
the
Parties shall request the Court to enter the Final Order and Judgment, without
material alteration from that attached hereto as Exhibit 15 hereto, that,
among
other things,
(a) finds
that the Court has personal jurisdiction over all members of the Settlement
Class and that the Court has subject matter jurisdiction to approve this
Agreement and all exhibits thereto;
(b) gives
final approval to this Agreement as being fair, reasonable, and adequate
as to
each of the Parties, and consistent and in compliance with all requirements
of
Due Process and Illinois law, as to, and in the best interests of, each of
the
Parties and the members of the Settlement Class, and directs the Parties
and
their counsel to implement and consummate this Agreement in accordance with
its
terms and provisions;
(c) declares
this Agreement and the Final Order and Judgment to be binding on, and have
res
judicata and preclusive effect in, all pending and future lawsuits or other
proceedings encompassed by the Release (as set forth in Paragraphs 39-40)
maintained by or on behalf of Plaintiffs and all other members of the Settlement
Class, as well as their heirs, executors and administrators, successors,
and
assigns;
27
(d) finds
that the Mailed Notice, Published Notice, and the notice methodology implemented
pursuant to this Agreement (i) constitute the best practicable notice; (ii)
constitute notice that is reasonably calculated, under the circumstances,
to
apprise members of the Settlement Class of the pendency of the Lawsuits,
their
right to object or exclude themselves from the proposed settlement and to
appear
at the Final Approval Hearing, and their right to seek monetary and other
relief; (iii) are reasonable and constitute due, adequate, and sufficient
notice
to all persons entitled to receive notice; and (iv) meet all applicable
requirements of Due Process and Illinois law;
(e) finds
that Class Counsel and the named Plaintiffs adequately represented the
Settlement Class for the purpose of entering into and implementing the
Agreement;
(f)
dismisses
the Lawsuits (including all individual and class claims presented thereby)
on
the merits as to all Defendants and with prejudice and without fees or costs
except as provided herein;
(g) adjudges
that Plaintiffs and the Settlement Class have conclusively compromised, settled,
discharged, dismissed, and released any and all Released Claims against all
Defendants;
(h) approves
the payment of the Attorneys’ Fee Award to Class Counsel as set forth in
Paragraphs 34-37;
(i)
without
affecting the finality of the Final Order and Judgment for purposes of appeal,
reserves jurisdiction over Defendants, the Named Plaintiffs, and the Settlement
Class as to all matters relating to the administration, consummation,
enforcement, and interpretation of the terms of the settlement and the Final
Order and Judgment, and for any other necessary purposes;
(j)
provides
that, upon the Effective Date, the Named Plaintiffs and all members of the
Settlement Class who have not been excluded from the Settlement Class, whether
or not they return a Claim Form within the time and in the manner provided
for,
shall be barred from asserting any Released Claims against Defendants, and
any
such members of the Settlement Class shall have released any and all Released
Claims as against Defendants;
28
(k) determines
that the Agreement and the settlement provided for herein, and any proceedings
taken pursuant thereto, are not, and should not in any event be offered or
received as evidence of, a presumption, concession, or an admission of liability
or of any misrepresentation or omission in any statement or written document
approved or made by Defendants; provided, however, that reference may be
made to
this Agreement and the settlement provided for herein in such proceedings
as may
be necessary to effectuate the provisions of this Agreement;
(l)
bars
and
enjoins all members of the Settlement Class who have not been excluded from
the
Settlement Class from (i) filing, commencing, prosecuting, intervening in,
or
participating (as class members or otherwise) in any other lawsuit or
administrative, regulatory, arbitration, or other proceeding in any jurisdiction
based on, relating to, or arising out of the claims and causes of action,
or the
facts and circumstances relating thereto, in these Lawsuits and/or the Released
Claims and (ii) organizing members of the Settlement Class who have not been
excluded from the class into a separate class for purposes of pursuing as
a
purported class action any lawsuit or administrative, regulatory, arbitration,
or other proceeding (including by seeking to amend a pending complaint to
include class allegations, or seeking class certification in a pending action)
based on, relating to, or arising out of the claims and causes of action,
or the
facts and circumstances relating thereto, in the Lawsuits and/or the Released
Claims;
(m) approves
the Opt-Out List and determines that the Opt-Out List is a complete list
of all
Settlement Class members who have timely requested exclusion from the Settlement
Class and accordingly, shall neither share in nor be bound by the Final Order
and Judgment; and
29
(n) authorizes
the Parties, without further approval from the Court, to agree to and adopt
such
amendments, modifications, and expansions of this Agreement and all exhibits
hereto as (i) shall be consistent in all material respects with the Final
Order
and Judgment and (ii) do not limit the rights of members of the Settlement
Class.
39. As
of the
Effective Date of this Agreement (as defined in Paragraphs 49-51), the Named
Plaintiffs, and other members of the Settlement Class who have not excluded
themselves from the Settlement Class, hereby expressly agree that they shall
release and discharge all Defendants and all of their present, former, and
future officers, directors, employees, agents, insurance agents and brokers,
independent contractors, successors, assigns, parents, subsidiaries, affiliates,
shareholders, members, insurers, attorneys, and legal representatives
(“Releasees”) of and from all Released Claims (as defined in Paragraphs 39-40)
and shall not now or hereafter initiate, maintain, or assert against the
Releasees any and all causes of action, claims, rights, demands, actions,
claims
for damages, equitable, legal, and/or administrative relief, interest, demands,
or rights, including without limitation, claims for all damages of any kind,
including those in excess of actual damages, and claims for bodily injury,
mental anguish, whether based on federal, state, or local law, statute,
ordinance, regulation, contract, common law, or any other sources, that have
been, could have been, may be, or could be alleged or asserted now or in
the
future by the Named Plaintiffs or any member of the Settlement Class against
the
Releasees or any of them in the Lawsuits or in any other court action or
before
any administrative body (including any state department of insurance or other
regulatory entity or organization), tribunal, arbitration panel, or other
adjudicating body on the basis of, connected with, arising out of, or related
to
the Released Claims.
(a) Without
in any way limiting the scope of the Release, this Release covers, without
limitation, any and all claims for attorneys’ fees, costs, or disbursements
incurred by Class Counsel or any other counsel representing the Named Plaintiffs
or members of the Settlement Class, or by the Named Plaintiffs or members
of the
Settlement Class, or any of them, in connection with or related in any manner
to
the Lawsuits, the settlement of the Lawsuits, the administration of such
settlement, and/or the Released Claims except to the extent otherwise specified
in the Agreement.
30
(b) The
Named
Plaintiffs and the Settlement Class expressly acknowledge that they are familiar
with principles of law such as Section 1542 of the Civil Code of the State
of
California, which provides:
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
To
the
extent that, notwithstanding the choice of law provisions in the Agreement,
California or other law may be applicable, the Named Plaintiffs and the
Settlement Class hereby expressly agree that the provisions, rights, and
benefits of Section 1542 and all similar federal or state laws, rights, rules,
or legal principles of any other jurisdiction which may be applicable herein,
are hereby knowingly and voluntarily waived and relinquished by the Named
Plaintiffs and the Settlement Class to the fullest extent permitted by law
solely in connection with unknown claims constituting Released Claims, and
the
Named Plaintiffs and the Settlement Class hereby agree and acknowledge that
this
is an essential term of this Release. In connection with this Release, the
Named
Plaintiffs and the Settlement Class acknowledge that they are aware that
they
may hereafter discover claims presently unknown or unsuspected, or facts
in
addition to or different from those which they now know or believe to be
true
with respect to the matters released herein. Nevertheless, it is the intention
of the Named Plaintiffs and the Settlement Class in executing this Release
fully, finally, and forever to settle and release all matters, and all claims
relating thereto, which exist, hereafter may exist, or might have existed
(whether or not previously or currently asserted in any action) constituting
Released Claims.
31
(c) Nothing
in this Release shall preclude any action to enforce the terms of the Agreement,
including participation in any of the processes detailed therein.
Subject
to Court approval, all members of the Settlement Class who do not exclude
themselves from the Settlement Class shall be bound by this Agreement and
all of
their claims shall be dismissed with prejudice and released, even if they
never
received actual notice of the Lawsuits or their settlement.
40. For
purposes of this Agreement, “Released Claims” means any and all claims, actions,
causes of action, rights, demands, suits, debts, liens, contracts, agreements,
offsets, or liabilities, including but not limited to claims for breach of
contract, breach of the duty of good faith and fair dealing, negligence,
bad
faith, breach of statutory duties, actual or constructive fraud,
misrepresentations, fraudulent inducement, statutory and consumer fraud,
breach
of fiduciary duty, unfair business or trade or insurance acts or practices,
insurance premium overcharges or a refund or rebate of premiums, restitution,
rescission, compensatory and punitive damages, bodily injury, mental or
emotional distress, injunctive or declaratory relief, attorneys’ fees,
interests, costs, penalties, and any other claims, whether known or unknown,
alleged or not alleged in the Lawsuits, suspected or unsuspected, contingent
or
matured, under federal, state, or local law, which the Named Plaintiffs or
any
member of the Settlement Class had, now has, or may in the future have with
respect to any conduct, act, omissions, facts, matters, transactions, or
oral or
written statements or occurrences prior to the Effective Date of this Agreement
involving, based on, relating to, arising out of, or in any way connected
with,
directly or indirectly, CCC’s valuations and/or the Carriers’ review, handling,
payment, adjustment, or denial of claims for physical damage to automobiles
that
were declared by the Carriers to be total losses, and any claims that were,
could have been, or should have been brought in the Lawsuits by the Named
Plaintiffs and/or the Settlement Class.
32
41. Each
of
the Carriers and CCC mutually release and discharge one another and their
respective agents, attorneys, affiliates, and insurers from liability for
all
claims based on, relating to, or arising out of the Released Claims described
in
Paragraphs 39-40. To the extent that any member of the Settlement Class
(including but not limited to one who has excluded himself or herself from
the
settlement) brings a Released Claim against a Carrier or CCC, then that Carrier
and CCC agree to preserve any claims and defenses against each other existing
as
of the date of settlement in connection with such Released Claims; provided,
however, that the Carriers shall release and discharge CCC from liability
for
Released Claims brought by any putative Settlement Class member who already
filed suit against the Carrier and/or CCC for a Released Claim, and which
suit
was terminated prior to the execution of this settlement due to a judgment
or an
agreement. It is not intended that the mutual release in this Paragraph 41
be a
benefit to any Named Plaintiff or Settlement Class member. The mutual release
in
this Paragraph does not apply to the obligations of CCC and the Carriers
under
their memorandum of understanding noted in Paragraph 23.
WITHDRAWAL
FROM SETTLEMENT
42. Within
fifteen (15) days of the occurrence of any of the following events, and upon
written notice to counsel for all Parties, any Party shall have the right
to
withdraw from the settlement
(a) if
the
Court fails to approve the Agreement or if on appeal the Court’s approval is
reversed or modified; or
(b) if
the
Court materially alters any of the terms of the Agreement; or
33
(c) if
the
Preliminary Approval Order, as described in Paragraph 5, or the Final Approval
Order, as described in Paragraph 38, is not entered by the Court, or is reversed
or modified on appeal, or otherwise fails for any reason.
In
the
event of a withdrawal pursuant to Paragraphs 42-48, any certification of
a
Settlement Class will be vacated as to that withdrawing Party, without prejudice
to any Party’s position on the issue of class certification, and the withdrawing
Party shall be restored to its litigation position existing immediately before
the execution of this Agreement.
43. If
more
than 1,000 members of the Settlement Class who are insureds of any one Carrier
properly and timely submit requests for exclusion from the Settlement Class
as
set forth in Paragraph 12, then, at that Carrier’s option, the Carrier may
withdraw from this Agreement. In that event, all of the withdrawing Carrier’s
obligations under this Agreement shall cease to be of any force and effect
as to
that Carrier; the certification of the Settlement Class as to that withdrawing
Carrier shall be vacated without prejudice to that Carrier’s position on the
issue of class certification; CCC’s obligations shall be modified and reduced in
the manner contemplated by the memorandum of understanding between CCC and
the
Carriers noted in Paragraph 23; and that withdrawing Carrier shall be restored
to its litigation position existing immediately before the execution of this
Agreement. In order to elect to withdraw from this Agreement on the basis
set
forth in this Paragraph 43, the withdrawing Carrier must notify Class Counsel
and Counsel for all Defendants in writing of its election to do so within
ten
(10) days after the Opt-Out List has been served on the Parties.
44. If
a
certified class of persons who are also members of the Settlement Class purports
to opt out of this settlement, then any Carrier may withdraw from this
Agreement. In that event, all of the withdrawing Carrier’s obligations under
this Agreement shall cease to be of any force and effect as to that Carrier;
the
certification of the Settlement Class as to that withdrawing Carrier shall
be
vacated without prejudice to that Carrier’s position on the issue of class
certification; CCC’s obligations shall be modified and reduced in the manner
contemplated by the memorandum of understanding between CCC and the Carriers
noted in Paragraph 23; and that withdrawing Carrier shall be restored to
its
litigation position existing immediately before the execution of this Agreement.
In order to elect to withdraw from this Agreement on the basis set forth
in this
Paragraph 44, the withdrawing Carrier must notify Class Counsel and Counsel
for
all Defendants in writing of its election to do so within ten (10) days after
the Opt-Out List has been served on the Parties.
34
45. If
any
Carrier determines in good faith that the settlement of the Lawsuits, as
contemplated by this Agreement and any Orders of the Court, would not be
effective to resolve finally all of the claims against it that are intended
to
be finally resolved by this Agreement, then that Carrier may, at its option,
withdraw from this Agreement. In that event, all of the withdrawing Carrier’s
obligations under this Agreement shall cease to be of any force and effect
as to
that Carrier; the certification of the Settlement Class as to that withdrawing
Carrier shall be vacated without prejudice to that Carrier’s position on the
issue of class certification; CCC’s obligations shall be modified and reduced in
the manner contemplated by the memorandum of understanding between CCC and
the
Carriers noted in Paragraph 23; and that withdrawing Carrier shall be restored
to its litigation position existing immediately before the execution of this
Agreement. In order to elect to withdraw from this Agreement on the basis
set
forth in this Paragraph 45, the withdrawing Carrier must notify Class Counsel
and Counsel for all Defendants in writing of its election to do so within
ten
(10) days after the Opt-Out List has been served on the Parties.
46. If
one or
more statewide, multistate, or nationwide classes that comprehend some or
all of
the claims asserted in the Lawsuits are certified at any time before the
Effective Date of this Agreement, any Carrier against whom the class was
certified may, at its option, withdraw from this Agreement. In that event,
all
of the withdrawing Carrier’s obligations under this Agreement shall cease to be
of any force and effect as to that Carrier; the certification of the Settlement
Class as to that withdrawing Carrier shall be vacated without prejudice to
that
Carrier’s position on the issue of class certification; CCC’s obligations shall
be modified and reduced in the manner contemplated by the memorandum of
understanding between CCC and the Carriers noted in Paragraph 23; and that
withdrawing Carrier shall be restored to its litigation position existing
immediately before the execution of this Agreement. In order to elect to
withdraw from this Agreement on the basis set forth in this Paragraph 46,
the
withdrawing Carrier must (i) provide notice to Class Counsel of the Motion
for
Class Certification and Notice of Hearing within ten (10) days of service
of
such papers; (ii) assert the injunction referred to in Paragraph 5(l); (iii)
not
consent to the certification but contest the certification in good faith
at a
hearing; and (iv) notify Class Counsel and Counsel for all Defendants in
writing
of its election to do so within 20 days after certification of the classes
noted
in this Paragraph 46, but in any event no later than 10 days after the Effective
Date of this Agreement.
35
47. If
all of
the Carriers withdraw from this Agreement pursuant to Paragraphs 42, 43,
44, 45,
or 46, this Agreement shall also cease to be of any force and effect as to
CCC,
the certification of the Settlement Class as to CCC shall be vacated without
prejudice to CCC’s position on the issue of class certification, and CCC shall
be restored to its litigation position existing immediately before the execution
of this Agreement; provided, however, that CCC will continue to remain
responsible for any expenses incurred by the Settlement Administrator up
to ten
(10) days after this Agreement ceases to be of any force and effect under
this
Paragraph 47, and any other obligations of CCC to the Carriers shall continue
to
be governed by the terms of the memorandum of understanding noted in Paragraph
23.
48. In
the
event a Carrier withdraws from the Agreement as set forth in Paragraphs 42-48,
Plaintiffs stipulate that the withdrawing Carrier may assert any and all
defenses and claims in the Lawsuit(s) and that Plaintiffs shall not argue
that
the Carrier is barred from asserting those defenses or claims due to waiver,
estoppel, or similar arguments as a result of the passage of time due to
settlement negotiations.
36
EFFECTIVE
DATE
49. The
“Effective Date” of this Agreement shall be the date when each and all of the
following conditions have occurred:
(a) This
Agreement has been fully executed by all the Parties and their
counsel;
(b) Orders
have
been entered by the Court certifying a Settlement Class, granting preliminary
approval of this Agreement, and approving a form of notice and claim form,
all
as provided above;
(c) The
Court-approved Mailed Notice has been duly promulgated as ordered by the
Court;
(d) The
Court
has entered a Final Order and Judgment finally approving this Agreement,
as
provided above; and
(e) The
judgment has become Final as defined in Paragraph 50.
50. “Final,”
when referring to a judgment order means that (a) the judgment is a final,
appealable judgment; and (b) either (i) no appeal has been taken from the
judgment as of the date on which all times to appeal therefrom have expired,
or
(ii) an appeal or other review proceeding of the judgment having been commenced,
such appeal or other review is finally concluded and no longer is subject
to
review by any court, whether by appeal, petitions for rehearing or reargument,
petitions for rehearing en banc, petitions for writ of certiorari, or otherwise,
and such appeal or other review has been finally resolved in such manner
that
affirms the Final Order and Judgment in all material respects.
37
51. If,
for
any reason, this Agreement fails to become effective pursuant to the foregoing
paragraph, the orders, judgment, and dismissal to be entered pursuant to
this
Agreement shall be vacated, and the Parties will be returned to the status
quo
ante with respect to the Lawsuits as if this Agreement had never been entered
into.
ADDITIONAL
PROVISIONS
52. The
headings and captions contained in this Agreement are for reference purposes
only and in no way define, extend, limit, describe, or affect the scope,
intent,
meaning, or interpretation of this Agreement..
53. This
Agreement shall be construed, enforced, and administered in accordance with
the
laws of the State of Illinois.
54. This
Agreement is not, and shall not be offered in evidence as, an admission of
liability, Defendants having denied any such liability.
55. The
Court
shall retain jurisdiction with respect to implementation and enforcement
of the
terms of this Agreement, and the Parties hereto submit to the jurisdiction
of
the Court for purposes of implementing and enforcing the settlement embodied
in
this Agreement.
56. In
the
event that there are any developments in the effectuation and administration
of
this Agreement that are not dealt with by the terms of this Agreement, then
such
matters shall be dealt with as agreed upon by the Parties, and, failing
agreement, as shall be ordered by this Court.
57. Except
as
otherwise stated herein, this Agreement constitutes the entire agreement
between
and among the Parties with respect to the settlement of the Lawsuits. This
Agreement shall not be construed more strictly against one Party than another
merely because of the fact that it may have been prepared by counsel for
one of
the Parties, it being recognized that, because of the arms’-length negotiations
resulting in the Agreement, all Parties hereto have contributed substantially
and materially to the preparation of the Agreement. This Agreement supersedes
all prior negotiations and agreements (except as otherwise stated herein)
and
may not be modified or amended except by a writing signed by the Parties
and
their respective counsel. This Paragraph 57 does not apply to the memorandum
of
understanding between the Carriers and CCC (noted in Paragraph 23); to the
agreement between the Settlement Administrator and the Parties (noted in
Paragraph 7); or to the Carriers’ agreement regarding allocation of the
Attorneys’ Fee Award (noted in Paragraph 36 and Exhibit 14).
38
58. This
Agreement may be executed in counterparts each of which shall be deemed to
be an
original, but all of which together shall constitute one and the same
instrument.
59. The
Exhibits to this Agreement are an integral part of the settlement and are
hereby
incorporated and made part of this Agreement.
60. The
Parties hereto shall execute all documents and perform all acts necessary
and
proper to effectuate the terms of this Agreement. The executing of documents
must take place prior to the date scheduled for the Final Approval
Hearing.
61. Each
Party to this Agreement warrants that he, she, or it is acting upon his,
her, or
its independent judgment and upon the advice of his, her, or its counsel
and not
in reliance upon any warranty or representation, express or implied, of any
nature or kind by any other party, other than the warranties and representations
expressly made in this Agreement.
39
EXECUTED
as of this ___________ day of _________ 2005.
SIGNED
AND AGREED:
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XXXXXXXX
XXXXXXX
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XXXX
XXXXXXXXXXX
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Dated:
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Dated:
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XXXXXX
X. XXXXXX
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XXXXX
XXXXXXXXXX
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|||
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Dated:
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Dated:
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XXXXX
XXXXXXXXXX
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XXXXX
XXXX
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|||
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Dated:
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Dated:
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XXXXXX
XXXXXXX
|
XXXX
X. XXXXXXX
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Dated:
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Dated:
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XXXX
X. XXXXXXXXX
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XXXXX
X. XXXXXXX
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Dated:
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Dated:
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RUA
XXXXXX
|
||||
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Dated:
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FREED
& XXXXX LLC
|
THE
XXXXX LAW FIRM, P.C.
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|||
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000
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
|
000
Xxxxx Xxxxxx
|
|||
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Xxxxxxx,
Xxxxxxxx 00000
|
X.X.
Xxx 000
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|||
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Xxxx
Xxxxx, Xxxxxxxx 00000
|
||||
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By:
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By:
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Xxxx
X. Xxxxx
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Xxxxxxx
X. Xxxxx
|
|||
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One
of the Attorneys for Plaintiffs
|
One
of the Attorneys for Plaintiffs
|
|||
|
Dated:
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Dated:
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40
|
CCC
INFORMATION SERVICES INC.
|
CGU
INSURANCE COMPANY OF ILLINOIS, now known as Homeland Central
Insurance
Company, as transferee of WESTERN STATES INSURANCE COMPANY, a
company
affiliated under the trade name of OneBeacon Insurance
|
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By:
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By
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[Printed
Name and Title]
|
[Printed
Name and Title]
|
|||
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Dated:
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Dated:
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By:
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By:
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Xxxx
X. Xxxxxx
|
Xxxx
X. Xxxxxxx
|
|||
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Xxxxxx
& Xxxxxxx XX
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx
|
|||
|
Sears
Tower, Suite 5800
|
8000
Sears Tower
|
|||
|
000
Xxxxx Xxxxxx Xxxxx
|
Xxxxxxx,
Xxxxxxxx 00000
|
|||
|
Xxxxxxx,
Xxxxxxxx 00000
|
One
of Its Attorneys
|
|||
|
One
of Its Attorneys
|
||||
|
Dated:
|
|
Dated:
|
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PRUDENTIAL
PROPERTY AND CASUALTY COMPANY, now known as LM PROPERTY AND CASUALTY
INSURANCE COMPANY
|
COUNTRY
MUTUAL INSURANCE COMPANY
|
|||
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By:
|
|
By:
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|||
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[Printed
Name and Title]
|
[Printed
Name and Title]
|
|||
|
Dated:
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Dated:
|
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By:
|
|
By:
|
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Xxxx
X. Xxxxxxx
|
Xxxxx
X. Xxxxxxxx
|
|||
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx
|
|||
|
8000
Sears Tower
|
0000
Xxxxx Xxxxx
|
|||
|
Xxxxxxx,
Xxxxxxxx 00000
|
Xxxxxxx,
Xxxxxxxx 00000
|
|||
|
One
of Its Attorneys
|
One
of Its Attorneys
|
|||
|
Dated:
|
|
Dated:
|
|
|
41
|
PROGRESSIVE
PREMIER INSURANCE COMPANY OF ILLINOIS
|
ECONOMY
PREFERRED INSURANCE COMPANY, formerly a subsidiary of ST. XXXX
FIRE AND
MARINE INSURANCE COMPANY
|
|||
|
By:
|
|
By
|
|
|
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|
|
|
||
|
[Printed
Name and Title]
|
[Printed
Name and Title]
|
|||
|
Dated:
|
|
Dated:
|
|
|
|
By:
|
|
By:
|
|
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|
Xxxxx
X. Xxxxxxxxxx
|
Xxxx
X. Xxxxxxx
|
|||
|
Xxxxxx
Xxxxxx LLP
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx
|
|||
|
6600
Sears Tower
|
0000
Xxxxx Xxxxx
|
|||
|
Xxxxxxx,
Xxxxxxxx 00000
|
Xxxxxxx,
Xxxxxxxx 00000
|
|||
|
One
of Its Attorneys
|
One
of Its Attorneys
|
|||
|
Dated:
|
|
Dated:
|
|
|
|
METROPOLITAN
PROPERTY AND CASUALTY
INSURANCE COMPANY
|
HARTFORD
INSURANCE COMPANY OF ILLINOIS
and HARTFORD INSURANCE COMPANY
OF THE MIDWEST
|
|||
|
By:
|
|
By:
|
|
|
|
|
|
|||
|
[Printed
Name and Title]
|
[Printed
Name and Title]
|
|||
|
Dated:
|
|
Dated:
|
|
|
|
By:
|
|
By:
|
|
|
|
Xxxx
X. Xxxxxxx
|
Xxxxx
X. Xxxxxxxxxx
|
|||
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx
|
Xxxxxx
Xxxxxx LLP
|
|||
|
8000
Sears Tower
|
0000
Xxxxx Xxxxx
|
|||
|
Xxxxxxx,
Xxxxxxxx 00000
|
Xxxxxxx,
Xxxxxxxx 00000
|
|||
|
One
of Its Attorneys
|
One
of Its Attorneys
|
|||
|
Dated:
|
|
Dated:
|
|
|
42
|
NATIONAL
GENERAL INSURANCE COMPANY
|
TRAVELERS
PERSONAL INSURANCE COMPANY f/k/a TRAVELERS PROPERTY CASUALTY
INSURANCE
COMPANY OF ILLINOIS
|
|||
|
By:
|
|
By
|
|
|
|
|
|
|
||
|
[Printed
Name and Title]
|
[Printed
Name and Title]
|
|||
|
Dated:
|
|
Dated:
|
|
|
|
By:
|
|
By:
|
|
|
|
Xxxxx
X. Xxxxxxxxxx
|
Xxxxx
X. Xxxxxxxx
|
|||
|
Xxxxxx
Xxxxxx LLP
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx
|
|||
|
6600
Sears Tower
|
0000
Xxxxx Xxxxx
|
|||
|
Xxxxxxx,
Xxxxxxxx 00000
|
Xxxxxxx,
Xxxxxxxx 00000
|
|||
|
One
of Its Attorneys
|
One
of Its Attorneys
|
|||
|
Dated:
|
|
Dated:
|
|
|
|
ATLANTA
CASUALTY COMPANY and INFINITY PROPERTY & CASUALTY
CORPORATION
|
COLONIAL
PENN INSURANCE COMPANY, now known as AIG CENTENNIAL INSURANCE
COMPANY
|
|||
|
By:
|
|
By:
|
|
|
|
|
|
|||
|
[Printed
Name and Title]
|
[Printed
Name and Title]
|
|||
|
Dated:
|
|
Dated:
|
|
|
|
By:
|
|
By:
|
|
|
|
Xxxxxxx
X. Xxxxxxxxxx
|
Xxxxxx
X. Xxxxxx
|
|||
|
Wildman,
Harrold, Xxxxx
|
Xxxxxx
& Block, LLP
|
|||
|
&
Xxxxx, LLP
|
One
IBM Plaza, Suite 4400
|
|||
|
000
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
|
Xxxxxxx,
Xxxxxxxx 00000
|
|||
|
Xxxxxxx,
Xxxxxxxx 00000
|
One
of Its Attorneys
|
|||
|
One
of Their Attorneys
|
||||
|
Dated:
|
|
Dated:
|
|
|
43
