1583894 1 2016 05 02 Stipulation and Settlement Agreement...

Exhibit A

Case 1:13-cv-06802-WHP Document 569-1 Filed 05/03/16 of 67

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

THE DIAL CORPORATION, et al.,

Individually and on behalf of Similarly Situated Companies,

Plaintiffs,

v.

NEWS CORPORATION, et al.,

Defendants.

Civil Action No. 13-cv-06802-WHP

SETTLEMENT AGREEMENT

Subject to the approval of the Court and pursuant to Rule 23 of the Federal Rules of Civil

Procedure, this Settlement Agreement is made and entered into between and among (a) the Class

Plaintiffs (as defined below), both individually and on behalf of the Class Members (as defined

below), and (b) Defendants News Corporation, News America, Inc., News America Marketing

In-Store Services L.L.C., and News America Marketing FSI L.L.C. (collectively, “Defendants,”

as defined below), by and through their respective duly authorized counsel.

This Settlement Agreement is intended by Plaintiffs’ Counsel, on behalf of Class

Plaintiffs and the Class, and Defendants to fully and finally compromise, resolve, discharge,

release and settle the Plaintiffs’ Released Claims and the Defendants’ Released Claims, as

defined herein, and to dismiss the Action with prejudice, subject to the terms and conditions set

forth below and without any admission or concession as to the merit or lack of merit of any claim

or defense by the Settling Parties.


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WHEREAS:

A. All words or terms used herein that are capitalized shall have the meaning

ascribed to those words or terms as set forth herein in the section entitled “Definitions.”

B. On December 21, 2012, Plaintiff The Dial Corporation filed a complaint against

Defendants alleging violations of federal and state antitrust laws relating to the provision of

third-party in-store promotions and free-standing inserts. On December 27, 2012, H.J. Heinz

Company (now renamed Kraft Heinz Food Company) joined this lawsuit in an Amended

Complaint. On April 26, 2013, Plaintiffs moved for leave to file a Second Amended Complaint,

which Plaintiffs filed on May 2, 2013. The Second Amended Complaint added Foster Farms as

a plaintiff and brought class allegations on behalf Class Plaintiffs and a class of consumer

packaged goods company (“CPG,” as defined below) customers. On October 24, 2013,

Plaintiffs filed a Third Amended Complaint. On April 7, 2014, Plaintiffs filed a Fourth

Amended Complaint. Plaintiffs alleged that Defendants illegally monopolized and maintained

such monopoly in the markets for third-party in-store promotions and free-standing inserts.

C. The operative Fourth Amended Complaint was styled The Dial Corporation et al.

v. News Corporation et al. (the “Action”) and was filed in the United States District Court for the

Southern District of New York (the “Court”) on behalf of Class Plaintiffs as well as (i) a class of

persons residing in the United States who directly purchased in-store promotions from

Defendants at any time on or after April 5, 2008, and did not purchase such services from

Defendants under contracts with mandatory arbitration clauses; and (ii) a class of persons

residing in the United States who directly purchased free-standing inserts from Defendants at any

time on or after April 5, 2008 and did not purchase such services from Defendants under

contracts with mandatory forum selection clauses.


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D. On September 10, 2015, the Court entered a Stipulation and Order permitting

Plaintiffs to voluntarily dismiss their causes of action relating to Defendants’ alleged

monopolization of the market for free-standing inserts.

E. On August 11, 2014, after extensive discovery, Class Plaintiffs moved the Court

under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure for an order certifying the

Action as a class action.

F. On June 18, 2015, the Court granted Class Plaintiffs’ motion for class certification

and certified a class, as defined in the Court’s June 18, 2015 order.

G. On September 30, 2015, Defendants filed a motion for summary judgment and

motions in limine seeking to exclude testimony of Class Plaintiffs’ experts, Dr. Jeffrey MacKie-

Mason and Dr. Paul Farris. On January 15, 2016, the Court denied Defendants’ motion for

summary judgment and motions to exclude testimony of Drs. MacKie-Mason and Farris.

H. On February 9, 2016, the Court amended the start of the class period in this

Action to April 26, 2009.

I. On or about February 23, 2016, Defendants entered into settlement agreements

and releases concerning the claims at issue in this Action with five then-absent class members.

J. Trial in this Action was set to begin on February 29, 2016. On that day, after jury

selection, the Parties executed a binding Term Sheet resolving the matter. The Term Sheet was

docketed in this Action on March 1, 2016.

K. Defendants have denied and continue to deny any wrongdoing or that they

committed any act or omission giving rise to any liability or violation of the law. Defendants

have denied and continue to deny each and every one of the claims alleged by Class Plaintiffs in

the Action, including all claims asserted in Class Plaintiffs’ Fourth Amended Complaint.


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L. This Settlement Agreement shall in no event be construed as, or deemed to be

evidence of, an admission or concession on the part of the Defendants with respect to any fact or

matter alleged in the Action, or any claim of fault or liability or wrongdoing or damage

whatsoever.

M. Plaintiffs’ Counsel believe that the claims asserted in the Action have merit and

that the evidence developed to date supports the claims asserted. However, Plaintiffs’ Counsel

recognize and acknowledge the expense, uncertain outcome, and risk of any litigation, especially

in complex actions such as this Action, as well as the difficulties and delays inherent in such

litigation. Plaintiffs’ Counsel are also mindful of the inherent problems of proof and possible

defenses to the claims alleged in the Action. Based on their evaluation, Plaintiffs’ Counsel

believe that the settlement set forth in this Settlement Agreement confers substantial monetary

and other benefits upon the Class and is in the best interest of the Class.

N. Plaintiffs’ Counsel, on behalf of Class Plaintiffs and the Class, and Defendants

reach this Settlement in light of the fact that no final adjudication of fault or lack thereof was

made by the jury.

NOW THEREFORE, without any concession by Plaintiffs’ Counsel that the Action

lacks merit, and without any concession by Defendants of any liability or wrongdoing or lack of

merit in their defenses,

IT IS HEREBY STIPULATED AND AGREED, by and among the parties to this

Settlement Agreement (“Settling Parties”), through their respective attorneys, subject to approval

by the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in

consideration of the benefits flowing to the Settling Parties and the Class, all Plaintiffs’ Released

Claims as against all Defendants’ Released Parties and all Defendants’ Released Claims as


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against all Plaintiffs’ Released Parties shall be fully, finally, and forever compromised, settled,

released, discharged, and dismissed with prejudice, and without costs, as set forth below:

DEFINITIONS

1. As used in this Agreement, the following terms shall have the meaning set forth

below. In the event of any inconsistency between any definitions set forth below and any

definitions in any other document related to the Settlement Agreement, the definitions set forth

below shall control.

a) “Action” means the civil action captioned The Dial Corporation, et al. v.

News Corporation, et. al, Case No. 13-CV-6802 (WHP), pending in the United States District

Court for the Southern District of New York before the Hon. William H. Pauley III, United

States District Judge.

b) “Authorized Claimant” means a Class Member who timely submits a

valid, signed Proof of Claim and Release form to the Claims Administrator, which is accepted

for payment by the Court.

c) “Claims Administrator” means Kurtzman Carson Consultants L.L.C., the

firm to be retained by Plaintiffs’ Counsel, subject to Court approval, to provide all notices

approved by the Court to the Class, to process Proofs of Claim, and to administer the Settlement.

d) “Class” means all non-retailer consumer packaged goods firms residing in

the United States which have directly purchased in-store promotions from Defendants at any

time on or after April 26, 2009, and were not subject to mandatory arbitration clauses. Excluded

from the Class are any Persons who would otherwise be a Class Member but who opted out of

the class action by the opt out deadline of September 21, 2015, or who executed settlement and

release agreements with Defendants on or about February 23, 2016.


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e) “Class Member” means each member of the Class who did not request to

be excluded from the Class by (i) opting out on or before September 21, 2015 or (ii) executing

settlement agreements and releases with Defendants on or about February 23, 2016.

f) “Class Plaintiffs” means BEF Foods, Inc., The Dial Corporation, Foster

Farms, Henkel Consumer Goods Inc., HP Hood LLC, Kraft Heinz Food Company in its capacity

as successor to H.J. Heinz Company L.P., and Smithfield Foods, Inc.

g) “Complaint” means the Fourth Amended Complaint, filed in this Action

on or about April 8, 2014.

h) “Court” means the United States District Court for the Southern District of

New York.

i) “CPG” means consumer packaged goods company.

j) “Defendants” means News Corporation, News America, Inc., News

America Marketing In-Store Services L.L.C., and News America Marketing FSI L.L.C.

k) “Defendants’ Counsel” means the law firm of Paul, Weiss, Rifkind,

Wharton & Garrison L.L.P.

l) “Defendants’ Released Claims” means any and all manner of claims,

demands, actions, suits, and causes of action, whether individual, class, representative, or

otherwise in nature, for damages, interest, costs, expenses, attorneys’ fees, fines, civil or other

penalties, or other payment of money, or for injunctive, declaratory, or other equitable relief,

whenever incurred, whether directly, indirectly, derivatively, or otherwise, regardless of when

such claims accrue, whether known or unknown, suspected or unsuspected, in law or in equity

that any Defendant ever had, now has, or hereafter can, shall, or may in the future have, arising

out of or relating in any way to the claims asserted in the Action against Defendants and that are


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alleged or which could have been alleged from the beginning of time until the Effective Date in

the Action; provided, however, that Defendants’ Released Claims do not include any claims or

causes of action of any nature or description relating to any of Defendants’ contractual rights

against any Class Member or the contractual obligations of any Class Member other than those

claims that Defendants in fact asserted in the Action against Class Plaintiffs The Dial

Corporation, H.J. Heinz Company, H.J. Heinz Company LP, and Foster Poultry Farms as set

forth in Defendants’ Counterclaims dated April 21, 2014. This release also includes Unknown

Claims as defined herein. Defendants’ Released Claims also do not include any claim relating to

the enforcement of the Settlement.

m) “Defendants’ Released Parties” means Defendants and each of their

respective past or present parents, subsidiaries, affiliates, successors and predecessors; their

current and former respective officers, directors, employees, and agents; and individuals acting

on behalf of the foregoing.

n) “Distribution Order” means an order of the Court approving the Claims

Administrator’s determinations concerning the acceptance and rejection of the claims submitted

and approving any fees and expenses not previously paid, including the fees and expenses of the

Claims Administrator and, if the Effective Date has occurred, directing payment of the Net

Settlement Fund to the Authorized Claimants.

o) “Effective Date” means the date on which Final approval has been

obtained in this Action, as set forth in ¶ 44 below.

p) “Escrow Account” means the separate escrow account designated by

Plaintiffs’ Counsel at one or more national banking institutions, controlled pursuant to


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paragraphs 8 and 10, and into which the Settlement Amount will be deposited for the benefit of

the Class pursuant to this Settlement Agreement.

q) “Escrow Agent” means the national banking institutions or institutions

designated by Plaintiffs’ Counsel.

r) “Execution Date” means the date this Settlement Agreement shall be

deemed to have been made and entered into, namely, May 2, 2016.

s) “February 23 Settlements” mean the settlement agreements and releases

entered into on or about February 23, 2016 by any of the Defendants or a related party and five

then-absent class members.

t) “February 23 Escrow Account” means the separate escrow account

designated by Plaintiffs’ Counsel at one or more national banking institutions, controlled

pursuant to paragraphs 10 and 14, and into which the February 23 Settlements Fee will be

deposited for the benefit of Plaintiffs’ Counsel pursuant to this Settlement Agreement.

u) “February 23 Settlements Fee” refers to the $6 million in attorneys’ fees

and expenses that Defendants have agreed to pay in consideration of Plaintiffs’ Counsels’

contributions to the February 23 Settlements. Defendants will pay the February 23 Settlements

Fees into the February 23 Escrow Account in consideration of Plaintiffs’ Counsel’s contribution

to the February 23 Settlements, which Defendants agree would not have occurred without the

efforts of Plaintiffs’ Counsel in bringing and prosecuting the Action. Plaintiffs’ Counsel agree

they shall seek no further fee or expenses from Defendants or any other Person relating to the

February 23 Settlements.

v) “Final,” with respect to a court order (including the “Judgment,” as

defined below) means the later of: (i) if there is an appeal from a court order, the date of final


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affirmance on appeal and the expiration of the time for any further judicial review whether by

appeal, reconsideration, or a petition for a writ of certiorari and, if certiorari is granted, the date

of final affirmance of the order following review pursuant to the grant; or (ii) the date of final

dismissal of any appeal from the order or the final dismissal of any proceeding on certiorari to

review the order; or (iii) the expiration of the time for the filing or noticing of any appeal or

petition for certiorari from the order (or, if the date for taking an appeal or seeking review of the

order shall be extended beyond this time by order of the issuing court, by operation of law or

otherwise, or if such extension is requested, the date of expiration of any extension) if any appeal

or review is not sought. Neither the provisions of Rule 60 of the Federal Rules of Civil

Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into account in determining the

above-stated times. However, any appeal or proceeding seeking subsequent judicial review

pertaining solely to the Plan of Allocation of the Net Settlement Fund, or to the Court’s award of

attorneys’ fees or expenses, shall not in any way delay or affect the time set forth above for the

Judgment, or otherwise preclude the Judgment from becoming Final.

w) “Judgment” means the proposed judgment to be entered by the Court

approving the Settlement (in substantially the form of Exhibit 1 attached hereto).

x) “Net Settlement Fund” means the Settlement Fund less: (i) Court-awarded

attorneys’ fees and expenses; (ii) Notice and Administration Expenses; (iii) Taxes; and (iv) any

other fees or expenses approved by the Court.

y) “Notice and Administration Expenses” means all costs, fees, and expenses

incurred in connection with providing notice to the Class and the administration of the

Settlement, including but not limited to: (i) providing notice of the proposed Settlement by mail,

publication, and other means to the Class; (ii) receiving and reviewing claims; (iii) administering


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the Plan of Allocation; (iv) communicating with Class Members and other Persons regarding the

proposed Settlement and claims administration process; (v) distributing the proceeds of the

Settlement; and (vi) fees related to the Escrow Account and investment of the Settlement Fund.

z) “Notice” means the Notice of Class Settlement to be disseminated to the

Class (in substantially the form of Exhibit A to Exhibit 2 attached hereto).

aa) “Person” or “Persons” means any individual, corporation (including all

divisions and subsidiaries), general or limited partnership, association, joint stock company, joint

venture, limited liability company, professional corporation, estate, legal representative, trust,

unincorporated association, government or any political subdivision or agency thereof, and any

other business or legal entity.

bb) “Plaintiffs’ Counsel” means Susman Godfrey L.L.P., 1000 Louisiana St.,

Suite 5100, Houston, TX 77002; Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., 1615

M St. NW, #400, Washington, DC 20036; Kramer, Levin, Naftalis & Frankel, L.L.P, 1177

Avenue of the Americas, New York, NY 10036; McKool Smith, P.C., 300 Crescent Court,

#1500, Dallas, TX 75206; and Berry Law PLLC, 1717 Pennsylvania Ave. NW, Washington D.C.

20006.

cc) “Plaintiffs’ Released Claims” means any and all manner of claims,

demands, actions, suits, and causes of action, whether individual, class, representative, or

otherwise in nature, for damages, interest, costs, expenses, attorneys’ fees, fines, civil or other

penalties, or other payment of money, or for injunctive, declaratory, or other equitable relief,

whenever incurred, whether directly, indirectly, derivatively, or otherwise, regardless of when

such claims accrue, whether known or unknown, suspected or unsuspected, in law or in equity

that any Class Member ever had, now has, or hereafter can, shall, or may in the future have,


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arising out of or relating in any way to any conduct, acts, transactions, events, occurrences,

statements, omissions, or failures to act of any Defendants’ Released Parties that are alleged or

which could have been alleged from the beginning of time until the Effective Date in the

Complaint, including but not limited to any claims based on or relating to the future effect in the

United States of any such conduct, acts, transactions, events, occurrences, statements, omissions,

or failures to act. This release also includes Unknown Claims as defined herein. Plaintiffs’

Released Claims also do not include any claims relating to the enforcement of the Settlement.

dd) “Plaintiffs’ Released Parties” means Class Plaintiffs, each Class Member,

and each of their respective past or present parents, subsidiaries, affiliates, successors and

predecessors; their current and former respective officers, directors, employees, and agents; and

individuals acting on behalf of the foregoing.

ee) “Preliminary Approval Order” means the proposed Order Granting

Preliminary Approval of Class Action Settlement, Approving Form and Manner of Notice, and

Setting Date for Hearing on Final Approval of Settlement (in substantially the form of Exhibit 2

attached hereto).

ff) “Proof of Claim” means the Proof of Claim, Acknowledgment, Waiver,

and Release form for submitting a claim (in substantially the form of Exhibit B to Exhibit 2

attached hereto).

gg) “Released Parties” means the Defendants’ Released Parties and the

Plaintiffs’ Released Parties.

hh) “Settlement” means the resolution of the action in accordance with the

terms and provisions of this Settlement Agreement.

ii) “Settlement Agreement” means this Settlement Agreement.


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jj) “Settlement Amount” means the total principal amount of

$244,000,000.00 in cash.

kk) “Settlement Fund” means the Settlement Amount and any and all interest

earned thereon.

ll) “Settlement Hearing” means the hearing to be held by the Court to

determine whether the proposed Settlement is fair, reasonable, and adequate and should be

approved.

mm) “Settling Party” or “Settling Parties” means Defendants, Class Plaintiffs,

and Class Members.

nn) “Unknown Claims” means any and all Plaintiffs’ Released Claims that any

Class Plaintiff or other Class Member does not know or suspect to exist in his, her, or its favor at

the Effective Date, and all Defendants’ Released Claims that any Defendant does not know or

suspect to exist in his, her, or its favor at the Effective Date, which if known by him, her, or it

might have affected his, her, or its decision with respect to the Settlement, including the decision

of a Class Plaintiff or other Class Member to object to the terms of the Settlement. The Settling

Parties stipulate and agree that, upon the Effective Date, Class Plaintiffs and Defendants shall

have, and each other Class Member shall be deemed to have, and by operation of the Judgment

shall have, to the fullest extent permitted by law, expressly waived and relinquished any and all

provisions, rights and benefits conferred by any law of any state or territory of the United States,

or principle of common law, which is similar, comparable, or equivalent to Cal. Civ. Code §

1542, 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.


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Class Plaintiffs, other Class Members, or Defendants may hereafter discover facts, legal

theories, or authorities in addition to or different from those which any of them now knows or

believes to be true with respect to the subject matter of the Plaintiffs’ Released Claims or

Defendants’ Released Claims, but Class Plaintiffs and Defendants expressly, fully, finally, and

forever settle and release, and each Class Member shall be deemed to have settled and released,

and upon the Effective Date and by operation of the Judgment shall have settled and released,

fully, finally, and forever, any and all Plaintiffs’ Released Claims and Defendants’ Released

Claims as applicable, without regard to the subsequent discovery or existence of such different or

additional facts, legal theories, or authorities.

SCOPE AND EFFECT OF SETTLEMENT AND RELEASES

2. The obligations incurred pursuant to this Agreement are in full and final

disposition of the claims in the Action with respect to the Released Parties and any and all

Plaintiffs’ Released Claims and Defendants’ Released Claims, and are subject to the conditions

subsequent contained in ¶ 44 below.

3. By operation of the Judgment, Class Plaintiffs and each and every other Class

Member on behalf of themselves and each of their respective predecessors, successors, affiliates,

and assigns, shall be deemed to have fully, finally, and forever waived, released, discharged, and

dismissed each and every one of the Plaintiffs’ Released Claims against each and every one of

the Defendants’ Released Parties and shall forever be barred and enjoined from commencing,

instituting, prosecuting, or maintaining any and all of the Plaintiffs’ Released Claims against any

and all of the Defendants’ Released Parties, subject only to the occurrence of the Effective Date.

4. By operation of the Judgment, Defendants, on behalf of themselves and each of

their respective predecessors, successors, assigns, and affiliates shall be deemed to have fully,


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finally, and forever waived, released, discharged, and dismissed each and every one of the

Defendants’ Released Claims against each and every one of the Plaintiffs’ Released Parties and

shall forever be barred and enjoined from commencing, instituting, prosecuting, or maintaining

any and all of the Defendants’ Released Claims against any and all of the Plaintiffs’ Released

Parties, subject only to the occurrence of the Effective Date.

5. Class Plaintiffs and each and every other Class Member on behalf of themselves

and each of their respective predecessors, successors, affiliates, and assigns covenants and agrees

that it shall not, hereafter, seek to establish, or permit another to act for it in a representative

capacity to seek to establish, liability against any of Defendants’ Released Parties based, in

whole or in part, upon any conduct covered by any of the claims released in paragraph 3 above.

6. Defendants on behalf of themselves and each of their respective predecessors,

successors, affiliates, and assigns covenants and agrees that it shall not, hereafter, seek to

establish, or permit another to act for it in a representative capacity to seek to establish, liability

against any of Plaintiffs’ Released Parties based, in whole or in part, upon any conduct covered

by any of the claims released in paragraph 4 above.

SETTLEMENT CONSIDERATION

7. In consideration of the full release and discharge of all Plaintiffs’ Released

Claims, as specified herein, Defendants shall pay or cause to be deposited the Settlement

Amount of $244,000,000.00 into the Escrow Account.

8. Defendants shall cause the Settlement Amount to be paid and deposited into the

Escrow Account on or before the later of: (i) thirty (30) calendar days after the entry of the

Court’s Preliminary Approval Order; or (ii) July 5, 2016. As of the time that the Settlement

Amount is deposited into the Escrow Account, Defendants shall no longer have any right, title or


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interest in the sums held in the Escrow Account except for a contingent interest in the event that

the Effective Date does not occur.

9. The Settlement Amount, together with the February 23 Settlements Fee, is an all-

in settlement number, meaning that it includes all attorneys’ fees, Notice and Administration

Expenses, Taxes, and costs of any kind associated with the resolution of the Action, if any.

Other than the obligation of Defendants to pay or cause to be paid the Settlement Amount into

the Escrow Account pursuant to paragraph 8 or the obligation of Defendants to pay or cause to

be paid the February 23 Settlements Fee into the February 23 Escrow Account pursuant to

paragraph 14, Defendants shall have no obligation to make any payment into the Escrow

Account, into the February 23 Escrow Account, or to any Class Plaintiff, Class Member, or any

other person or entity pursuant to this Settlement Agreement.

10. As soon as practicable after the filing with the Court of the application for entry

of the Preliminary Approval Order, Plaintiffs’ Counsel and Defendants shall promptly establish

an interest-bearing Escrow Account. Plaintiffs’ Counsel and Defendants shall jointly control the

Escrow Account until the Settlement becomes Final, at which time Defendants shall relinquish

all rights to manage the Escrow Account.

11. The Settling Parties agree to the following structural relief:

a) For a period of five years from the Effective Date, Defendants shall not

enter into any exclusive contract with any retailer for in-store promotions (a “Retailer Contract”)

that has a term of longer than 30 months, other than to meet competition or where the retailer

makes a written bona fide request for a longer term.

b) For a period of five years from the Effective Date, Defendants shall not

(and shall not ask any retailer to) enter into a binding renewal of any Retailer Contract more than


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18 months prior to the expiration of the prior Retailer Contract unless the retailer makes a written

bona fide request for an earlier renewal.

c) For a period of five years from the Effective Date, none of Defendants’

retailer contracts shall preclude the retailer from disclosing the termination date of the Retailer

Contract to a bona fide actual or prospective competitor of Defendants who is seeking to

negotiate its own contract with the retailer (a “Bona Fide Competitor”) (on condition that the

Bona Fide Competitor maintains the information in confidence) but Defendants shall be free to

preclude any retailer from revealing any other term of its contract to any third party except as

required by law.

12. Class Plaintiffs and Class Members acknowledge, collectively herein and

individually in the Proofs of Claim to be submitted, that, if Defendants comply with subsections

(a) through (c) of ¶ 11 above, Defendants’ conduct will be reasonable based on all the facts and

circumstances and that no Class Plaintiff or Class Member shall contend in any forum that

Defendants’ conduct constitutes a violation of any antitrust, competition, or comparable law.

Class Plaintiffs and Class Members further agree that no Class Plaintiff or Class Member shall

bring any antitrust, competition, or comparable claim against Defendants based on, relating to, or

referring in any way to such conduct.

13. Class Plaintiffs and Class Members acknowledge, collectively herein and

individually in the Proofs of Claim to be submitted, that, in any subsequent dispute between any

Class Plaintiff or Class Member and any of Defendants concerning antitrust or competition, any

evidence of conduct by Defendants predating the Effective Date shall be inadmissible for any

purpose.


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14. Defendants shall pay the February 23 Settlements Fee to the February 23 Escrow

Account for the benefit of Plaintiffs’ Counsel and subject to the same terms and conditions as the

Escrow Account on or before the later of: (i) thirty (30) calendar days after the entry of the

Court’s Preliminary Approval Order (or such other order of the Court approving the payment of

the February 23 Settlements Fee); or (ii) July 5, 2016. Plaintiffs’ Counsel will request Court

approval of this payment in the motion for preliminary approval. Defendants will not contest

Plaintiffs’ Counsel’s request.

15. After the Settlement contemplated herein becomes Final, the Settling Parties

agree to submit any dispute in connection with the Settlement, or any antitrust, competition, or

comparable claim, accruing in the period of five years from the Effective Date, to alternative

dispute resolution, consisting of mandatory mediation in New York City followed by binding

arbitration, if necessary, except that any dispute between the Settling Parties relating to

compliance with the structural relief provided in ¶¶ 11(a) to 11(c) of this Settlement Agreement

and arising more than three years after the Effective Date shall not be required to be subject to

the alternative dispute resolution provisions in this paragraph.

USE AND TAX TREATMENT OF SETTLEMENT FUND

16. The Settlement Fund shall be used: (a) to pay any Taxes; (b) to pay Notice and

Administration Expenses; (c) to pay any attorneys’ fees and expenses awarded by the Court;

(d) to pay any other fees and expenses awarded by the Court; and (e) to pay the claims of

Authorized Claimants.

17. The Net Settlement Fund shall be distributed to Authorized Claimants as provided

in ¶¶ 25-29 hereof. The Net Settlement Fund shall remain in the Escrow Account prior to the

Effective Date. All funds held in the Escrow Account and all earnings thereon, shall be deemed


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to be in custodia legis of the Court and shall remain subject to the jurisdiction of the Court until

such time as the funds shall have been disbursed or returned, pursuant to the terms of this

Settlement Agreement, or further order of the Court. The Escrow Agent shall invest funds in the

Escrow Account in instruments backed by the full faith and credit of the United States

Government (or a mutual fund invested solely in such instruments), or deposit some or all of the

funds in non-interest-bearing transaction accounts that are fully insured by the Federal Deposit

Insurance Corporation (“FDIC”) in amounts that are up to the limit of FDIC insurance.

Defendants’ Counsel shall have the right to approve the escrow agreement with the Escrow

Agent.

18. After the Settlement Amount has been paid into the Escrow Account, the parties

hereto agree that the Settlement Fund is intended to be a Qualified Settlement Fund within the

meaning of Treasury Regulation § 1.468B-1. Defendants shall have the option of whether the

Qualified Settlement Fund shall be deemed to have come into existence at the earliest possible

date and, at the election of Defendants, (i) the Settlement Fund shall be treated as a Qualified

Settlement Fund from the earliest date possible, and (ii) the parties shall agree to any relation-

back election required to treat the Escrow Accounts as a Qualified Settlement Fund from the

earliest date possible. Defendants’ Counsel agrees to timely provide to the Escrow Agents the

statement described in Treasury Regulation § 1.468B-3(e).

19. All Taxes resulting from the tax liabilities of the Settlement Fund arising after

transfer to the Escrow Account shall be paid solely out of the Settlement Fund. In all events,

Defendants and Defendants’ Counsel shall have no liability or responsibility whatsoever for such

Taxes or the filing of any tax return or other document with the Internal Revenue Service or any

other state or local taxing authority. Any Taxes or tax expenses owed on the Settlement Amount


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prior to its Transfer to the Escrow Account shall be the sole responsibility of the entities that

make the deposit. Neither the Settlement Fund nor the Defendants shall be responsible for any

taxes owed by Class Plaintiffs or any Class Members as a result of any distributions to them out

of the Settlement Fund.

20. Except as provided in paragraph 46, Defendants’ Released Parties shall have no

responsibility for, interest in, or liability whatsoever with respect to the maintenance, investment

or distribution of the Settlement Fund or the February 23 Settlements Fee, the establishment or

maintenance of the Escrow Accounts, the terms or administration of the Plan of Allocation or of

any plan of allocation, the determination, administration, or calculation of Class Member claims,

the payment or withholding of Taxes, the distribution or disbursement of the Net Settlement

Fund, the administration of the Settlement, or any other expenses or losses in connection with

such matters. Without limiting the foregoing, the Settlement Fund together with the February 23

Settlements Fee shall be the sole source of Taxes, Notice and Administration Expenses,

attorneys’ fees, and other expenses, and there shall be no recourse against Defendants’ Released

Parties for any such expenses.

ATTORNEYS’ FEES AND EXPENSES

21. Plaintiffs’ Counsel will apply to the Court for an award from the Settlement Fund

of attorneys’ fees and payment of litigation expenses incurred in prosecuting the Action, plus any

interest earned on such amounts at the same rate and for the same periods as earned by the

Settlement Fund. Defendants will not contest Plaintiffs’ Counsel’s request for a fee of up to 30%

from the Settlement Fund.

22. Class Counsel will also request approval for payment by Defendants of the

February 23 Fees, plus any interest earned thereon following the deposit of the February 23


20

Settlements Fee into the February 23 Escrow Account. Defendants will not contest Plaintiffs’

Counsel’s request.

23. The amount of attorneys’ fees and expenses awarded by the Court is within the

sole discretion of the Court. Subject to Court approval, any attorneys’ fees and expenses

awarded by the Court shall be paid to Plaintiffs’ Counsel immediately after entry of the Order

awarding such attorneys’ fees and expenses by the Court, notwithstanding the existence of any

timely filed objections thereto or to the Settlement, or potential for appeal therefrom, or collateral

attack on the Settlement or any part thereof.

24. Any payment of attorneys’ fees and litigation expenses pursuant to ¶ 23 above

shall be subject to Plaintiffs’ Counsel’s obligation to make refunds or repayments to the

Settlement Fund of any paid amounts, plus accrued earnings at the same net rate as if earned by

the Settlement Fund, if the Settlement is terminated pursuant to the terms of this Settlement

Agreement or fails to become effective for any reason or if, as a result of any appeal or further

proceedings on remand, or successful collateral attack, the award of attorneys’ fees or litigation

expenses is reduced or reversed by a Final non-appealable court order. Plaintiffs’ Counsel shall

make the appropriate refund or repayment in full no later than fifteen (15) calendar days after

receiving notice from a court of appropriate jurisdiction of the termination of the Settlement or

notice of any reduction or reversal of the award of attorneys’ fees or litigation expenses by a

Final non-appealable court order.

DISTRIBUTION TO AUTHORIZED CLAIMANTS

25. Plaintiffs’ Counsel will apply to the Court for a Distribution Order, on notice to

Defendants’ Counsel, approving the Claims Administrator’s determinations concerning the

acceptance and rejection of the claims submitted herein, and, if the Effective Date has occurred,


21

directing the payment of the Net Settlement Fund to Authorized Claimants.

26. The Claims Administrator shall administer the Settlement under Plaintiffs’

Counsel’s supervision in accordance with the terms of this Settlement Agreement and subject to

the jurisdiction of the Court. Defendants and Defendants’ Counsel shall have no responsibility

for, interest in, or liability whatsoever with respect to the administration of the Settlement or the

actions or decisions of the Claims Administrator, and shall have no liability to the Class in

connection with such administration.

27. The Claims Administrator shall determine each Authorized Claimant’s pro rata

share of the Net Settlement Fund, as defined in the Plan of Allocation of Net Settlement Fund

(the “Plan of Allocation”) included in the Notice, or in such other plan of allocation as the Court

may approve.

28. Defendants have no role in the development of, and will take no position with

respect to, the Plan of Allocation. The Plan of Allocation is a matter separate and apart from the

proposed Settlement, and any decision by the Court concerning the Plan of Allocation is not a

necessary term of this Settlement Agreement and it is not a condition of this Settlement

Agreement that any particular plan of allocation be approved by the Court. Plaintiffs’ Counsel

may not cancel or terminate this Settlement Agreement based on the Court’s or any appellate

court’s ruling with respect to the Plan of Allocation or any plan of allocation in the action.

Defendants shall have no responsibility or liability for reviewing or challenging claims, the

allocation of the Net Settlement Fund, or the distribution of the Net Settlement Fund.

29. If there is any balance remaining in the Net Settlement Fund after six (6) months

from the date of distribution of the Net Settlement Fund (whether by reason of tax refunds,

uncashed checks or otherwise), Plaintiffs’ Counsel shall, if feasible and economical, reallocate


22

such balance among Authorized Claimants who have cashed their checks in an equitable and

economic fashion (“Additional Distribution”). Any balance that still remains in the Net

Settlement Fund, after the distribution and Additional Distribution of the Net Settlement Fund,

shall be contributed to non-sectarian, not-for-profit charitable organizations serving the public

interest and reasonably related to the goals of the Action, as designated by Plaintiffs’ Counsel

and approved by the Court, or may, without further order of the Court, be escheated pursuant to

appropriate unclaimed property law.

ADMINISTRATION OF THE SETTLEMENT

30. Any Class Member who fails timely to submit a signed, valid Proof of Claim

acknowledging and accepting the terms of this Settlement will not be entitled to receive any of

the proceeds from the Net Settlement Fund, except as otherwise ordered by the Court, but will

otherwise be bound by all of the terms of this Settlement Agreement, including without

limitation the terms of the Judgment to be entered in the Action and all releases provided for

herein, and will be barred from bringing any action against the Defendants’ Released Parties

concerning Plaintiffs’ Released Claims.

31. Given the structural relief afforded to all Class Members by this Settlement as

well as the prior opt-out and settlement opportunities, Class Members shall not be permitted an

additional opportunity to opt out from this Settlement.

32. Plaintiffs’ Counsel shall be responsible for supervising the administration of the

Settlement and disbursement of the Net Settlement Fund by the Claims Administrator.

Plaintiffs’ Counsel shall have the right, but not the obligation, to advise the Claims Administrator

to waive what Plaintiffs’ Counsel deems to be de minimis or formal or technical defects in any

Proof of Claim submitted. Defendants and Defendants’ Counsel shall have no liability,


23

obligation or responsibility for the administration of the Settlement, the allocation of the Net

Settlement Fund, or the reviewing or challenging of claims of Class Members. Plaintiffs’

Counsel may not cancel or terminate this Settlement Agreement based on the Claims

Administrator’s, the Court’s, or any appellate court’s decision with respect to any Proof of Claim

or any other claim by any Class Members to any portion of the Settlement Fund.

33. For purposes of determining the extent, if any, to which a Class Member shall be

treated as an Authorized Claimant, the following conditions shall apply:

a) Each Class Member shall be required to submit a Proof of Claim,

supported by such documents as are designated therein, including proof of the claimant’s loss, or

such other documents or proof as the Claims Administrator or Plaintiffs’ Counsel, in their

discretion, may deem acceptable. Class Members will be provided with information Plaintiffs’

Counsel have compiled with respect to Class Member purchases to assist in completing and

returning Proofs of Claim forms.

b) All Proofs of Claim must be submitted by the date set by the Court in the

Preliminary Approval Order and specified in the Notice, unless such deadline is extended by

Plaintiffs’ Counsel in their discretion, or by order of the Court. Any Class Member who fails to

submit a Proof of Claim by such date shall be barred from receiving any distribution from the

Net Settlement Fund or payment pursuant to this Settlement Agreement (unless, by order of the

Court or the discretion of Plaintiffs’ Counsel, late-filed Proofs of Claim are accepted), but shall

in all other respects be bound by all of the terms of this Settlement Agreement, including without

limitation the terms of the Judgment and all releases provided for herein, and will be

permanently barred and enjoined from bringing any action, claim or other proceeding of any

kind asserting any of Plaintiffs’ Released Claims against any Defendants’ Released Parties.


24

Provided that it is received before the motion for the Distribution Order is filed, a Proof of Claim

shall be deemed to be submitted when mailed, if received with a postmark on the envelope and if

mailed by first-class or overnight U.S. Mail and addressed in accordance with the instructions

thereon. In all other cases, the Proof of Claim shall be deemed to have been submitted when

actually received by the Claims Administrator;

c) Each Proof of Claim shall be submitted to and reviewed by the Claims

Administrator, under the supervision of Plaintiffs’ Counsel, who shall determine in accordance

with this Settlement Agreement the extent, if any, to which each claim shall be allowed, subject

to review by the Court;

d) Proofs of Claim that do not meet the submission requirements may be

rejected. Prior to rejecting a Proof of Claim in whole or in part, the Claims Administrator shall

communicate with the claimant in writing to give the claimant the chance to remedy any curable

deficiencies in the Proof of Claim submitted. The Claims Administrator, under supervision of

Plaintiffs’ Counsel, shall notify, in a timely fashion and in writing, all claimants whose claims

the Claims Administrator proposes to reject in whole or in part for curable deficiencies, setting

forth the reasons therefor, and shall indicate in such notice that the claimant whose claim is to be

rejected has the right to a review by the Court if the claimant so desires and complies with the

requirements of subparagraph (e) below;

e) If any claimant whose claim has been rejected in whole or in part for a

curable deficiency desires to contest such rejection, the claimant must, within twenty (20)

calendar days after the date of mailing of the notice required in subparagraph (d) above, serve

upon the Claims Administrator a notice and statement of reasons indicating the claimant’s

grounds for contesting the rejection along with any supporting documentation, and requesting a


25

review thereof by the Court. If a dispute concerning a claim cannot be otherwise resolved,

Plaintiffs’ Counsel shall thereafter present the request for review to the Court; and

f) The determinations of the Claims Administrator accepting or rejecting

disputed claims shall be presented to the Court, on notice to Defendants’ Counsel, for approval

by the Court in the Distribution Order.

34. Each claimant who submits a Proof of Claim shall be deemed to have submitted

to the jurisdiction of the Court with respect to the claimant’s claim, and the claim will be subject

to investigation and discovery under the Federal Rules of Civil Procedure, provided that such

investigation and discovery shall be limited to the claimant’s status as a Class Member and the

validity and amount of the claimant’s claim. In connection with processing the Proofs of Claim,

no discovery shall be allowed on the merits of the Action or the Settlement.

35. Payment pursuant to the Distribution Order shall be deemed final and conclusive

against any and all Class Members. All Class Members whose claims are not approved by the

Court shall be barred from participating in distributions from the Net Settlement Fund, but

otherwise shall be bound by all of the terms of this Settlement Agreement, including without

limitation the terms of the Judgment to be entered in the Action and the releases provided for

herein and therein, and will be barred from bringing any action against the Defendants’ Released

Parties concerning Plaintiffs’ Released Claims.

36. All proceedings with respect to the administration, processing and determination

of Class Member claims relating to the Net Settlement Fund described by this Settlement

Agreement and the determination of all controversies relating thereto, including disputed

questions of law and fact with respect to the validity of claims, shall be subject to the jurisdiction

of the Court, but shall not in any event delay or affect the finality of the Judgment.


26

37. No Person shall have any claim of any kind against the Defendants’ Released

Parties or Defendants’ Counsel with respect to the matters set forth in this section or any of its

subsections, or otherwise related in any way to the administration of the Settlement, including

without limitation the processing of claims and distributions.

38. No Person shall have any claim against Class Plaintiffs, any other Class Member,

Plaintiffs’ Counsel, the Claims Administrator, or other agent designated by Plaintiffs’ Counsel,

based on the distributions made substantially in accordance with this Settlement Agreement and

the Settlement contained herein, the Plan of Allocation, or further orders of the Court.

ADMINISTRATION EXPENSES

39. Except as otherwise provided herein, the Settlement Fund shall be held in the

Escrow Account until the Effective Date.

40. Prior to the Effective Date, without further approval from Defendants or further

order of the Court, Plaintiffs’ Counsel may pay Notice and Administration Expenses actually

incurred in an amount not to exceed $100,000. Taxes and fees related to the Escrow Account

and investment of the Settlement Fund may be paid as incurred, without further approval of

Defendants or further order of the Court. After the Effective Date, Notice and Administration

Expenses may be paid as incurred without approval of the Defendants or further order of the

Court.

COURT APPROVAL OF THE SETTLEMENT

41. No later than May 2, 2016 or any other date directed by the Court, Plaintiffs’

Counsel shall move on notice to Defendants’ Counsel for entry of the Preliminary Approval

Order (in the form of Exhibit 2 attached hereto). The Preliminary Approval Order will, inter


27

alia, set the date for the Settlement Hearing, approve the form of notice, and prescribe the

method for giving notice of the Settlement to the Class.

42. No later than twenty-eight (28) calendar days prior to the Settlement Hearing or

on any other date directed by the Court, and unless the Settlement has otherwise been terminated

pursuant to this Settlement Agreement, Plaintiffs’ Counsel shall move on notice to Defendants’

Counsel for (a) final approval of the Settlement pursuant to Rule 23(e) of the Federal Rules of

Civil Procedure; (b) entry of a Judgment substantially in the form annexed as Exhibit 1; (c)

approval of the Plan of Allocation; and (d) an award of attorneys’ fees and/or expenses.

43. Plaintiffs’ Counsel shall provide a draft of all papers to be submitted on its

motions for preliminary and final approval to Defendants’ Counsel before such motions are filed.

Plaintiffs’ Counsel agrees to consider any comments or edits to such papers proposed by

Defendants’ Counsel in good faith, and incorporate such comments or edits as appropriate in the

discretion Plaintiffs’ Counsel.

EFFECTIVE DATE OF SETTLEMENT

44. The Effective Date of this Settlement shall be the first business day on which all

of the following shall have occurred or been expressly waived:

a) entry of the Preliminary Approval Order;

b) payment of the Settlement Amount into the Escrow Account;

c) approval by the Court of the Settlement, following notice to the Class and

the Settlement Hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and

d) a Judgment in substantially the form of Exhibit 1 attached hereto will have

been entered by the Court and will have become Final.


28

45. Within fifteen (15) business days of: (a) the Court’s entry of an order expressly

declining to enter the Preliminary Approval Order in any material respect; (b) the Court’s refusal

to approve this Settlement Agreement or any material part of it; (c) the Court’s declining to enter

the Judgment in any material respect; or (d) the date upon which the Judgment is modified or

reversed in any material respect and such modification or reversal becomes Final, Class Plaintiffs

and Defendants shall each have the right to terminate the Settlement and this Settlement

Agreement, by providing written notice to the other of an election to do so; provided, however,

that any decision, ruling, or order solely with respect to an application for attorneys’ fees,

expenses, or to any Plan of Allocation shall not be grounds for termination.

46. If Defendants or Class Plaintiffs exercise the right to terminate the Settlement

pursuant to paragraph 45:

a) this Settlement Agreement shall be canceled and terminated;

b) the Effective Date shall not occur;

c) Class Plaintiffs and Defendants shall be restored to their respective

positions as of February 28, 2016;

d) the terms and provisions of this Settlement Agreement, with the exception

of paragraphs 19, 24, 40, 46, and 47 herein, shall have no further force and effect with respect to

the Settling Parties and shall not be used in the Action or in any other proceeding by anyone for

any purpose, and any Judgment or order entered by the Court in accordance with the terms of

this Settlement Agreement shall be treated as vacated, nunc pro tunc; and

e) within ten (10) business days after any such termination, the Settlement

Fund and the February 23 Settlements Fee (including accrued interest), less any allowable Notice

and Administration Expenses that have either been disbursed, or are determined to be incurred

and chargeable as Notice and Administration Expenses, and less any Taxes paid or owing, shall


29

be refunded by the Escrow Agents to Defendants. At the request of Defendants, the Escrow

Agents shall apply for any tax refund owed to the Settlement Fund and pay the proceeds, after

deduction of any fees or expenses incurred in connection with such application(s) for refund, to

Defendants.

NO ADMISSION

47. Except as set forth in ¶ 48 below, this Settlement Agreement, whether or not

consummated, and whether or not approved by the Court, and any discussion, negotiation,

proceeding, or agreement relating to this Settlement Agreement, and any matter arising in

connection with settlement discussions or negotiations, proceedings, or agreements, shall not be

offered or received against or to the prejudice of the Settling Parties or their respective counsel,

for any purpose other than in an action to enforce the terms hereof, and in particular:

a) do not constitute, and shall not be offered or received against or to the

prejudice of Defendants as evidence of, or construed as, or deemed to be evidence of any

presumption, concession, or admission by the Defendants with respect to the truth of any

allegation by Class Plaintiffs and the Class, or the validity of any claim that has been or could

have been asserted in the Action or in any litigation, including, but not limited to, Plaintiffs’

Released Claims, or of any liability, damages, negligence, fault or wrongdoing of Defendants or

any person or entity whatsoever;

b) do not constitute, and shall not be offered or received against or to the

prejudice of Defendants as evidence of a presumption, concession, or admission of any fault,

misrepresentation, omission, or other wrongdoing or actionable conduct with respect to

Defendants, or against or to the prejudice of Plaintiffs or any other member of the Class as

evidence of any infirmity in the claims of Class Plaintiffs or any Class Members;


30

c) do not constitute, and shall not be offered or received against or to the

prejudice of the Defendants, Class Plaintiffs, any Class Members, or their respective counsel, as

evidence of a presumption, concession, or admission with respect to any liability, damages,

negligence, fault, infirmity, or wrongdoing, or in any way referred to for any other reason against

or to the prejudice of any of the Defendants, Class Plaintiffs, Class Members, or their respective

counsel, in any other civil, criminal, or administrative action or proceeding, other than such

proceedings as may be necessary to effectuate the provisions of this Settlement Agreement;

d) do not constitute, and shall not be construed against the Defendants, Class

Plaintiffs, or Class Members, as an admission or concession that the consideration to be given

hereunder represents the amount that could be or would have been recovered after trial;

e) do not constitute, and shall not be construed as or received in evidence as

an admission, concession, or presumption against Class Plaintiffs or Class Members that any of

their claims are without merit or infirm or that damages recoverable under the Fourth Amended

Complaint would not have exceeded the Settlement Amount; and

f) do not constitute, and shall not be construed as or received in evidence as

an admission, concession, or presumption against Defendants that any of their defenses are

without merit or infirm or the amount of damages, if any, that would have been recoverable in

the Action.

48. The Settling Parties, and their respective counsel, may file this Settlement

Agreement and the Judgment in any action that may be brought against them in order to support

a defense or counterclaim based on principles of res judicata, collateral estoppel, release, statute

of limitations, statute of repose, good-faith settlement, judgment bar or reduction, or any theory

of claim preclusion or issue preclusion or similar defense or counterclaim, or to effectuate any


31

liability protection granted them under any applicable insurance policy. The Settling Parties may

file this Settlement Agreement and the Judgment in any action that may be brought to enforce the

terms of this Settlement Agreement and the Judgment.

MISCELLANEOUS PROVISIONS

49. All of the exhibits to this Settlement Agreement, except the Plan of Allocation

described in the Notice (Exhibit A to Exhibit 2), are material and integral parts hereof and are

fully incorporated herein by reference.

50. The Settling Parties intend the Settlement to be the full, final, and complete

resolution of all claims asserted or that could have been asserted with respect to the Plaintiffs’

Released Claims and Defendants’ Released Claims. Accordingly, the Settling Parties agree not to

assert in any forum that the Action was brought, prosecuted, or defended in bad faith or without

a reasonable basis. The Settling Parties and their counsel agree that each has complied fully with

Rule 11 of the Federal Rules of Civil Procedure in connection with the maintenance, prosecution,

defense, and settlement of the Action and shall not make any application for sanctions, pursuant

to Rule 11 or other court rule or statute, with respect to any claim or defense in this Action. The

Settling Parties agree that the amount paid and the other terms of the Settlement were negotiated

at arm’s-length and in good faith by the Settling Parties and their respective counsel and reflect a

settlement that was reached voluntarily based upon adequate information and after consultation

with experienced legal counsel.

51. This Settlement Agreement may not be modified or amended, nor may any of its

provisions be waived, except by a writing signed by all Settling Parties hereto or their

successors.


32

52. The headings herein are used for the purpose of convenience only and are not

meant to have legal effect.

53. The administration and consummation of the Settlement as embodied in this

Settlement Agreement shall be under the authority of the Court for the purpose of entering orders

providing for awards of attorneys’ fees and any expenses and implementing and enforcing the

terms of this Settlement Agreement.

54. The waiver by one Settling Party of any breach of this Settlement Agreement by

any other Settling Party shall not be deemed a waiver of any other prior or subsequent breach of

this Settlement Agreement.

55. This Settlement Agreement and its exhibits constitute the entire agreement among

the Settling Parties concerning the Settlement, and no representation, warranty, or inducement

has been made by any Settling Party concerning this Settlement Agreement and its exhibits other

than those contained and memorialized in such documents.

56. Nothing in this Settlement Agreement, or the negotiations relating thereto, is

intended to or shall be deemed to constitute a waiver of any applicable privilege or immunity,

including, without limitation, attorney-client privilege, joint defense privilege, or work product

protection.

57. Without further order of the Court, the Settling Parties may agree to reasonable

extensions of time to carry out any of the provisions of this Settlement Agreement.

58. All designations and agreements made, or orders entered, during the course of the

Action relating to the confidentiality of documents or information shall survive this Settlement

Agreement.


33

59. This Settlement Agreement may be executed in one or more counterparts. All

executed counterparts and each of them shall be deemed to be one and the same instrument.

Signatures sent by facsimile or via e-mail in portable document format (PDF) shall be deemed

originals.

60. This Settlement Agreement shall be binding when signed, but the Settlement shall

only be effective upon the entry of the Judgment that becomes Final and the payment in full of

the Settlement Amount, subject only to the condition that the Effective Date will have occurred.

61. This Settlement Agreement shall be binding upon, and inure to the benefit of, the

successors and assigns of the Settling Parties.

62. The construction, interpretation, operation, effect, and validity of this Settlement

Agreement, and all documents necessary to effectuate it, shall be governed by the law of New

York without regard to conflicts of laws, except to the extent that federal law requires that

federal law govern.

63. This Settlement Agreement shall not be construed more strictly against one

Settling Party than another merely by virtue of the fact that it, or any part of it, may have been

prepared by counsel for one of the Settling Parties, it being recognized that it is the result of

arm’s-length negotiations among the Settling Parties, and all Settling Parties have contributed

substantially and materially to the preparation of this Settlement Agreement.

64. All counsel and any other person executing this Settlement Agreement and any of

the exhibits hereto, or any related Settlement document, warrant and represent that they have the

full authority to do so, and that they have the authority to take appropriate action required or

permitted to be taken pursuant to this Settlement Agreement to effectuate its terms.


34

65. The Settling Parties and their counsel agree to cooperate fully with one another in

promptly applying for preliminary approval by the Court of the Settlement, and for the

scheduling of a hearing for consideration of final approval of the Settlement and Plaintiffs’

Counsel’s application for an award of attorneys’ fees and expenses, and to promptly execute all

such other documentation as reasonably may be required to obtain Final approval by the Court of

the Settlement.

66. Except as otherwise provided herein, each Settling Party shall bear its own

attorneys’ fees and costs.

IN WITNESS WHEREOF, the Settling Parties have caused this Settlement Agreement

to be executed, by their duly authorized attorneys, as of May 2, 2016.

Dated: May 2, 2016


SUSMAN GODFREY L.L.P.

1000 Louisiana, Suite 5100Houston, TX77002Tel: (713) 653-781tj s outhwick@ susmang o dfrey. com

KELLOGG, HUBER, HANSEN, TODD,EVANS & FIGEL, P.L.L.C.

By:Steven F. Benz1615 M St., N.W., Suite 400Washington, D.C. 20036Tel: (202) 326-7900sbenz@khhte,com

Co-Lead Class Counsel

KRAMER, LEVIN, NAFTALIS &FRANKEL L.L.PDaniel P. Goldmanll77 Avenue of the AmericasNew York, NY 10036(212) 7rs-9r00dgoldman@kramerlevin. com

MCKOOL SMITH, PCLewis T. LeClair300 Crescent Court, Suite 1500Dallas, Texas 75201Tel: (2r4) 978-4984lleclair@mckoolsmith. com

BERRY LAW PLLCR. Stephen Beny1717 Pennsylvania Ave, N'W, Ste. 450V/ashington, DC 20006Tel: (202) 296-3038sberry@berrylawpllc. com

PAUL, \ilEISS, RIFKIND, \ilHARTON& GARRISON LLP

By:Kenneth A. Gallo2001 K Street, NWWashington, DC 20006Tel: (202) 223-7300kgallo@paulweiss,com

Geoffrey ChepigaDaniel KramerWilliam B. MichaelAidan Synnott1285 Avenue of the AmericasNew York, NY 10019Tel: (212) 373-3000gchepi ga@p aul we i s s. c o mdkr amer @paulwei s s. comwmichael@paulweiss. comasynnott@paulwei ss. com

Att or ney s fo r D efe ndant s

Attorneys þr Class Plaintffi and the Class

35



By:James T. Southwick1000 Louisiana, Suite 5100Houston, TX77002Tel: (713) 653-7811j southwi [email protected]

KELLOGG, HUBER, HANSEN, TODD,EVAI\S & FIGEL, P.L.L.C.

PAUL, \ryEISS, RIFKIND, WHARTON& GARRISON LLP

Kenneth A. Gallo2001 K Street, NWWashington, DC 20006Tel: (202) [email protected]

Geoffrey ChepigaDanielKramerWilliam B. MichaelAidan Synnott1285 Avenue of the AmericasNew York, NY 10019Tel: (212) 373-3000gchepi ga@pau lwe i s s. comdkramer@paulwei ss. [email protected]@paulwei ss.com

At tor n ey s fo r Defe ndant s

By:Steven F. Benzl6l5 M St., N.W., Suite 400Washington, D.C. 20036Tel: (202) [email protected]

Co-Lead Class Coun,çel

KRAMER, LEVIN, NAFTALIS &FRANKEL L.L.PDanielP. Goldmanll77 Avenue of the AmericasNew York, NY 10036(212)7ls-9100dgo ldman@kramerlevin. com

MCKOOL SMITH, PCLewis T. LeClair300 Crescent Court, Suite 1500Dallas, Texas 75201Tel: (214)[email protected]

BERRY LAW PLLCR. Stephen BerryI 717 Pennsylvania Ave, NW, Ste. 450Washington, DC 20006Tel: (202) 296-3038sberry@berryl awp I lc. com

Attorneys for Class Plaintffi and the Class

35



By:

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

James T. Southwick 1000 Louisiana, Suite 5100 Houston, TX 77002 Tel: (713) 653-7811 j [email protected]

KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C.

By: Steven F. Benz 1615 M St., N.W., Suite 400 Washington, D.C. 20036 Tel: (202) 326-7900 [email protected]

Co-Lead Class Counsel

KRAMER, LEVIN, NAFTALIS & FRANKEL L.L.P Daniel P. Goldman 1177 Avenue of the Americas New York, NY 10036 (212)715-9100 [email protected]

MCKOOL SMITH, PC Lewis T. LeClair 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Tel: (214) 978-4984 [email protected]

BERRY LAW PLLC R. Stephen Berry 1717 Pennsylvania Ave, NW, Ste. 450 Washington, DC 20006 Tel: (202) 296-3038 [email protected]

Attorneys for Class Plaintiffs and the Class

Kenneth A. Gallo 2001 K Street, NW Washington, DC 20006 Tel: (202) 223-7300 [email protected]

Geoffrey Chepiga Daniel Kramer William B. Michael Aidan Synnott 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 373-3000 [email protected] [email protected] [email protected] [email protected]

Attorneys for Defendants

35


mailto:[email protected]










Exhibit 1


1




Plaintiffs,

v.


Defendants.


[PROPOSED] FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT

Hon. William H. Pauley III

WHEREAS, Plaintiffs’ Counsel, on behalf of the Class, on the one hand, and Defendants

New Corporation, News America, Inc. News America Marketing In-Store Services L.L.C., and

News America Marketing FSI L.L.C. (collectively, “Defendants”), on the other hand, entered

into a Settlement Agreement in the above-entitled litigation (the “Action”), filed in this Action

on May 2, 2016, that provides for a complete dismissal with prejudice of the claims asserted in

the Action against Defendants on the terms and conditions set forth in the Settlement Agreement,

subject to the approval of this Court; and

WHEREAS, pursuant to the Order Granting Preliminary Approval of Class Action

Settlement, Approving Form and Manner of Notice, and Setting Date for Hearing on Final

Approval of Settlement, entered on _______, 2016 (the “Preliminary Approval Order”), the

Court scheduled a hearing for __________, 2016, at _____ (the “Settlement Hearing”) to, among

other things: (i) determine whether the proposed Settlement of the Action on the terms and

conditions provided for in the Settlement Agreement is fair, reasonable, and adequate, and


2

should be approved by the Court; and (ii) determine whether a judgment dismissing the Action

with prejudice as provided for in the Settlement Agreement should be entered; and

WHEREAS, the Court ordered that the Notice of Class Settlement (the “Notice”) and

Proof of Claim (“Proof of Claim”), substantially in the forms attached to the Preliminary

Approval Order as Exhibits A and B, respectively, be mailed by first-class mail, postage prepaid,

on or before ten (10) business days after the date of entry of the Preliminary Approval Order

(“Notice Date”) to all potential Class Members who could be identified through reasonable

effort. The Notice advised potential Class Members of the date, time, place, and purpose of the

Settlement Hearing. The Notice further advised that any objection to the Settlement was

required to be filed with the Court and served on counsel for the Settling Parties such that it

would be received by ______________, 2016; and

WHEREAS, the provisions of the Preliminary Approval Order as to notice were fully

complied with and notice to the Class was given in the manner required by the Court; and

WHEREAS, the Settlement Hearing was duly held before this Court on

_______________, 2016, at which time all interested Persons were afforded the opportunity to

be heard; and

WHEREAS, this Court has duly considered Plaintiffs’ Counsel’s motion, all papers and

evidence submitted in connection therewith, the Settlement Agreement, [all timely objections to

the Settlement], and all of the submissions and arguments presented at the Settlement Hearing

with respect to the proposed Settlement; and

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as

follows:

1. This Final Order and Judgment (“Judgment”) incorporates by reference the


3

definitions in the Settlement Agreement, and all capitalized terms used in this Judgment that are

not otherwise defined herein shall have the same meanings as set forth in the Settlement

Agreement.

2. This Judgment incorporates and makes a part hereof: (a) the Settlement

Agreement filed with the Court on May 2, 2016; and (b) the Notice, which also was filed with

the Court on May 2, 2016.

3. This Court has jurisdiction over the subject matter of the Action and over all

Settling Parties and all members of the Class.

4. The notification provided for and given to the Class: (i) was provided and made

in full compliance with the Preliminary Approval Order; (ii) constituted the best notice

practicable under the circumstances; (iii) constituted notice that was reasonably calculated to

apprise the Class of the terms of Settlement, of the proposed Plan of Allocation, of Plaintiffs

Counsel’s application for an award of attorney’s fees, costs, and expenses incurred in

connection with the Action, of Class Members’ right to object to the Settlement, the Plan of

Allocation, or Plaintiffs’ Counsel’s application for an award of attorney’s fees, costs and

expenses, and of the right of Class Members to appear at the Settlement Hearing; (iv)

constituted due, adequate, and sufficient notice to all Persons entitled to receive notice of the

proposed Settlement; and (v) fully satisfied the notice requirements of Rule 23 of the Federal

Rules of Civil Procedure, the United States Constitution (including the Due Process Clause of

the Fifth Amendment to the Constitution), and all other applicable law and rules.

5. [In the event any objections to the Settlement are filed]. The Court has

considered any objections to the Settlement submitted pursuant to Rule 23(e)(5) of the Federal

Rules of Civil Procedure. The Court finds and concludes that each of the objections is without


4

merit, and they are hereby overruled.

6. Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil

Procedure, and in light of the substantial benefits provided to the Class by the Settlement, the

complexity, expense, and possible duration of further litigation of the Action, including any

possible appeals, the risks of establishing liability and damages, and the costs of continued

litigation, the Court hereby fully and finally approves the Settlement as set forth in the

Settlement Agreement in all respects, and finds that the Settlement is in all respects fair,

reasonable and adequate, and in the best interests of Class Plaintiffs, the Class, and the Class

Members. This Court further finds that the Settlement set forth in the Settlement Agreement is

the result of arm’s-length negotiations conducted by experienced counsel representing the

interests of their respective Settling Parties.

7. The Complaint is hereby dismissed in its entirety, with prejudice, and without

costs to any Settling Party, except as otherwise provided in the Settlement Agreement.

8. The releases as set forth in Paragraphs 3-4 of the Settlement Agreement (the

“Releases”), together with the definitions contained in Paragraph 1 of the Settlement Agreement

relating thereto, are expressly incorporated herein in all respects. The Releases are effective as

of the Effective Date unless otherwise indicated in the Settlement Agreement. Accordingly, this

Court orders that, as of the Effective Date, and without limiting the scope of the Releases as set

forth in the Settlement Agreement:

a. By operation of the Judgment, Class Plaintiffs and each and every other Class

Member on behalf of themselves and each of their respective past or present

predecessors, successors, assigns, parents, subsidiaries, and affiliates shall be

deemed to have fully, finally, and forever waived, released, discharged, and


5

dismissed each and every one of Plaintiffs’ Released Claims as against each and

every one of the Defendants’ Released Parties and shall forever be barred,

enjoined, and restrained from commencing, instituting, prosecuting or

maintaining any and all of Plaintiffs’ Released Claims against any and all of the

Defendants’ Released Parties.

b. By operation of the Judgment, Defendants, on behalf of themselves and each of

their respective predecessors, successors, assigns, and affiliates shall be deemed

to have fully, finally, and forever waived, released, discharged, and dismissed

each and every one of the Defendants’ Released Claims against each and every

one of the Plaintiffs’ Released Parties and shall forever be barred and enjoined

from commencing, instituting, prosecuting, or maintaining any and all of the

Defendants’ Released Claims against any and all of the Plaintiffs’ Released

Parties.

9. Each Class Member, whether or not such Class Member executes and delivers a

Proof of Claim, is bound by this Judgment, including, without limitation, the Releases set forth

above.

10. The terms of the Settlement Agreement and of this Judgment shall be forever

binding on the Settling Parties and the Class Members, as well as all of their successors and

assigns.

11. This Judgment and the Settlement Agreement, whether or not this Judgment

becomes Final, and any discussions, negotiations, proceedings, agreements or other papers

relating to the Settlement Agreement, the Settlement, and any matters arising in connection with

settlement discussions or negotiations, proceedings, or agreements, shall not be offered or


6

received against or to the prejudice of the Settling Parties, or their respective counsel, for any

purpose other than in an action to enforce the terms hereof, and in particular:

(a.) do not constitute, and shall not be offered or received against or to the

prejudice of Defendants as evidence of, or construed as, or deemed to be evidence of any

presumption, concession, or admission by Defendants with respect to the truth of any allegation

by Class Plaintiffs and the Class, or the validity of any claim that has been or could have been

asserted in the Action or in any litigation, including, but not limited to, Plaintiffs’ Released

Claims, or of any liability, damages, negligence, fault or wrongdoing of Defendants or any

Person whatsoever;

(b.) do not constitute, and shall not be offered or received against or to the

prejudice of Defendants as evidence of a presumption, concession, or admission of any fault,

misrepresentation, or omission with respect to any statement or written document approved or

made by the Defendants, or against or to the prejudice of Plaintiffs or any other members of the

Class as evidence of any infirmity in the claims of Plaintiffs or any Class Members;

(c.) do not constitute, and shall not be offered or received against or to the

prejudice of Defendants, Class Plaintiffs, any Class Members, or their respective counsel, as

evidence of a presumption, concession, or admission with respect to any liability, damages,

negligence, fault, infirmity, or wrongdoing, or in any way referred to for any other reason

against or to the prejudice of any of the Defendants, Class Plaintiffs, Class Members, or their

respective counsel, in any other civil, criminal or administrative action or proceeding, other than

such proceedings as may be necessary to effectuate the provisions of the Settlement;

(d.) do not constitute, and shall not be construed against Defendants, Class

Plaintiffs, or Class Members, as an admission or concession that the consideration to be given


7

hereunder represents the amount that could be or would have been recovered after trial;

(e.) do not constitute, and shall not be construed as or received in evidence as

an admission, concession, or presumption against Class Plaintiffs or Class Members that any of

their claims are without merit or infirm or that damages recoverable under the Complaint would

not have exceeded the Settlement Amount; and

(f.) do not constitute, and shall not be construed as or received in evidence as

an admission, concession, or presumption against Defendants that any of their defenses are

without merit or infirm or the amount of damages, if any, that would have been recoverable in

the Action.

12. The Court further finds that during the course of the Action, the Settling Parties

and their respective counsel at all times complied with the requirements of Rule 11 of the

Federal Rules of Civil Procedure.

13. Any dispute amongst the Settling Parties in connection with the Settlement, or

any antitrust, competition, or comparable claim shall be submitted to alternative dispute

resolution in accordance with the procedures set forth in the Settlement Agreement.

14. If the Effective Date does not occur or the Settlement is terminated in accordance

with the terms of the Settlement Agreement, then this Judgment (and any orders of the Court

relating to the Settlement) shall be vacated, rendered null and void, and be of no further force or

effect, except as otherwise provided by the Settlement Agreement.

15. Without affecting the finality of this Judgment in any way, this Court hereby

retains continuing jurisdiction over (i) any applications for attorneys’ fees, costs, interest, and

payment of expenses in the Action; (ii) the Class Members for purposes of adjudicating any

dispute relating to a Claim; and (iii) any motion to approve the Plan of Allocation and the


8

Distribution Order.

16. Without further order of the Court, the Settling Parties may agree to reasonable

extensions of time to carry out any of the provisions of the Settlement Agreement.

17. The Settling Parties are hereby directed to consummate the Settlement

Agreement and to perform its terms.

18. A separate order shall be entered regarding Plaintiffs’ Counsel’s application for

attorneys’ fees and payment of expenses as allowed by the Court. A separate order shall be

entered regarding the proposed Plan of Allocation for the Net Settlement Fund. Such orders

shall in no way disturb or affect this Judgment and shall be considered separate and apart from

the Settlement Agreement and this Judgment.

19. There is no just reason for delay in the entry of this Judgment and immediate

entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules

of Civil Procedure.

IT IS SO ORDERED.

____________________________William H. Pauley IIIUNITED STATES DISTRICT JUDGE


Exhibit 2


1




Plaintiffs,

v.


Defendants.


[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, APPROVING FORM AND MANNER OF NOTICE, AND SETTING DATE FOR HEARING ON FINAL APPROVAL OF SETTLEMENT

Hon. William H. Pauley III

WHEREAS, the Class Plaintiffs, on behalf of themselves and the Class, and Defendants

News Corporation, News America, Inc., News America Marketing In-Store Services L.L.C., and

News America Marketing FSI L.L.C. (collectively, “Defendants”), by and through their

respective duly authorized counsel, entered into a Settlement Agreement in the above-entitled

litigation (the “Action”), which is subject to approval by the Court under Rule 23 of the Federal

Rules of Civil Procedure and which, together with the exhibits thereto, sets forth the terms and

conditions of the proposed settlement of the claims in the Action, on the merits and with

prejudice (the “Settlement”); and

WHEREAS, the Court has reviewed and considered the Settlement Agreement and the

accompanying exhibits; and

WHEREAS, all capitalized terms used in this order that are not otherwise defined herein

have the meanings defined in the Settlement Agreement;

WHEREAS, the Settling Parties have consented to the entry of this Preliminary Approval

Order; and good cause appearing therefor,


2

IT IS HEREBY ORDERED as follows:

1. The Court has reviewed the Settlement Agreement and preliminarily finds the

Settlement set forth therein to be fair, reasonable, and adequate, subject to further consideration

at the Settlement Hearing described below.

2. A hearing (the “Settlement Hearing”) pursuant to Rule 23(e) of the Federal Rules

of Civil Procedure is hereby scheduled to be held before the Court on _________ for the

following purposes:

(a.) to determine whether the proposed Settlement is fair, reasonable and

adequate and should be approved by the Court;

(b.) to determine whether the proposed Judgment as provided under the

Settlement Agreement should be entered, and to determine whether the releases, as set forth in

the Settlement Agreement, should be provided;

(c.) to determine whether the proposed Plan of Allocation for the proceeds of

the Settlement is fair and reasonable and should be approved by the Court;

(d.) to consider Plaintiffs’ Counsel’s application for an award of attorneys’

fees, costs, and expenses; and

(e.) to rule upon such other matters as the Court may deem appropriate.

3. The Court reserves the right to approve the Settlement with or without

modification and with or without further notice to the Class of any kind. The Court further

reserves the right to enter the Judgment regardless of whether it has approved the Plan of

Allocation or awarded attorneys’ fees, costs and expenses. The Court may also adjourn the

Settlement Hearing or modify any of the dates herein without further notice to members of the

Class.


3

4. The Court approves the form, substance, and requirements of the Notice and the

Proof of Claim, in the forms attached hereto as Exhibits A and B, respectively.

5. The Court approves the retention of Kurtzman Carson Consultants as the Claims

Administrator. The Claims Administrator shall cause the Notice and the Proofs of Claim, in the

forms attached hereto, to be mailed, by first-class mail, postage prepaid, on or before ten (10)

business days after entry of this Preliminary Approval Order (“Notice Date”), to all prospective

Class members who can be identified with reasonable effort.

6. Plaintiffs’ Counsel shall, at or before the Settlement Hearing, file with the Court

proof of mailing of the Notice and Proof of Claim.

7. The form and content of the notice program described herein, and the methods set

forth herein of notifying the Class of the Settlement and its terms and conditions, meet the

requirements of Rule 23 of the Federal Rules of Civil Procedure and constitutional due process,

constitute the best notice practicable under the circumstances, and shall constitute due and

sufficient notice to all Persons entitled thereto.

8. Solely for purposes of the Settlement Hearing or an objection pursuant to

paragraph 10 below, any Class Member may enter an appearance in this Action, at his, her, or its

own expense, individually or through counsel of his, her, or its own choice. If any Class

Member does not enter an appearance, he, she, or it will be represented by Plaintiffs’ Counsel.

9. Class Members shall be bound by all orders, determinations, and judgments in

this Action concerning the Settlement, whether favorable or unfavorable.

10. The Court will consider any Class Member’s objection to the Settlement, the Plan

of Allocation, or the application for an award of attorneys’ fees, costs, and expenses only if such

Class Member has served by hand, by mail, or by email his, her, or its written objection and


4

supporting papers such that they are received on or before fourteen (14) calendar days before the

Settlement Hearing, upon Steven F. Benz of Kellogg, Huber, Hansen, Todd, Evans & Figel,

P.L.L.C., James T. Southwick of Susman Godfrey L.L.P., and Kenneth A. Gallo of Paul, Weiss,

Rifkind, Wharton & Garrison LLP and has properly and timely filed said objections and

supporting papers with the Clerk of the United States District Court for the Southern District of

New York. Any Class Member who does not make his, her, or its objection in the manner

provided for in the Notice shall be deemed to have waived such objection and shall forever be

foreclosed from making any objection to any aspect of the Settlement, to the Plan of Allocation,

or to the application for attorneys’ fees, costs and expenses, unless otherwise ordered by the

Court, but shall otherwise be bound by the Judgment to be entered in the Action and the releases

to be given pursuant to the Settlement. Attendance at the Settlement Hearing is required for any

Class Member who files an objection to the Settlement, Plan of Allocation, or application for

attorneys’ fees and expenses. Class Members who object to the Settlement, the Plan of

Allocation, or the application for an award of attorneys’ fees, costs and expenses and desire to

present evidence at the Settlement Hearing must include in their written objections the identity of

any witnesses they may call to testify and exhibits they intend to introduce into evidence at the

Settlement Hearing. Class Members do not need to appear at the Settlement Hearing or take any

other action to indicate their approval. Class Plaintiffs and/or Defendants shall file any reply or

response to any objection no later than seven (7) calendar days before the Settlement Hearing.

11. Pending final determination as to whether the Settlement should be finally

approved by the Court, Class Plaintiffs, all Class Members, and each of them, and anyone who

acts or purports to act on their behalf, shall not institute, commence or prosecute any action or

proceeding that asserts Plaintiffs’ Released Claims against the Defendants’ Released Parties.


5

12. As provided in the Settlement Agreement, prior to the Effective Date, Plaintiffs’

Counsel may pay Notice and Administration Expenses actually incurred, not to exceed $100,000,

without further approval from Defendants and without further order of the Court. All such

expenditures shall not be reimbursable to Defendants or their insurers should the settlement fail

to become effective.

13. All papers in support of Plaintiffs’ Counsel’s application for an award of

attorneys’ fees, costs and expenses shall be filed with the Court and served on or before thirty

(30) business days after the entry of this Order, but in no event later than twenty-eight (28)

calendar days before the Settlement Hearing. If reply papers are necessary, they are to be filed

with the Court and served no later than seven (7) calendar days prior to the Settlement Hearing.

14. All papers in support of Plaintiffs’ Counsel’s Application for Final Approval of

Settlement shall be filed with the Court and served on or before twenty-eight (28) calendar days

before the Settlement Hearing. If Defendants elect to file with the Court papers in further

support of Plaintiffs’ Counsel’s Application for Final Approval of Settlement, such papers shall

be filed with the Court and served on or before twenty-eight (28) calendar days before the

Settlement Hearing.

15. All funds held in escrow shall be deemed and considered to be in custodia legis of

the Court, and shall remain subject to the jurisdiction of the Court until such time as such funds

shall be disbursed pursuant to the Settlement Agreement or further order of the Court.

16. Neither Defendants nor their counsel shall have any responsibility for the Plan of

Allocation or any award for attorney’s fees, costs, or expenses requested by Plaintiffs’ Counsel,

and such matters shall be considered separately from the fairness, reasonableness, and adequacy

of the Settlement.


6

17. If the Effective Date does not occur or the Settlement is terminated pursuant to the

terms of the Settlement Agreement, then, in any such event, the Settlement Agreement, including

any amendments thereof, except as expressly provided in the Settlement Agreement, and this

Preliminary Approval Order shall be null and void, of no further force or effect, and without

prejudice to any Settling Party.

18. This Preliminary Approval Order shall not be construed or used as an admission,

concession, or declaration by or against Defendants of any fault, wrongdoing, breach or liability

and Defendants specifically denies any such fault, breach, liability or wrongdoing. This

Preliminary Approval Order shall not be construed or used as an admission, concession, or

declaration by or against Class Plaintiffs or the Class that their claims lack merit or that the relief

requested in the Action is inappropriate, improper or unavailable. This Preliminary Approval

Order shall not be construed or used as an admission, concession, declaration or waiver by any

party of any arguments, defenses, or claims he, she or it may have in the event that the

Settlement is terminated. Moreover, the Settlement and any proceedings taken pursuant to the

Settlement are for settlement purposes only. Neither the fact of, nor any provision contained in

the Settlement Agreement or its exhibits, nor any actions taken thereunder shall be construed as,

offered into evidence as, received in evidence as, and/or deemed to be evidence of a

presumption, concession, or admission of any kind as to the truth of any fact alleged or validity

of any defense that has been, could have been, or in the future might be asserted.

IT IS SO ORDERED.

____________________________William H. Pauley IIIUNITED STATES DISTRICT JUDGE


Exhibit A


NALNTW1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NOTICE OF CLASS SETTLEMENT

If You Bought In-Store Promotion Products From News America MarketingAfter April 26, 2009, You Could Get A Payment From A Class Action

Settlement.A federal court authorized this Notice.

It is not a solicitation from a lawyer. You are not being sued.

! A settlement fund will pay claims of non-retailer consumer packaged goods firms residing in the United States which have directly purchased in-store promotions from News America Marketing at any time on or after April 26, 2009, and were not subject to mandatory arbitration clauses (“the Class”). The total amount of the settlement fund is $244 million, less certain fees and expenses that the Court may order.

! The settlement resolves a certified class action lawsuit, pending in the United States District Court for the SouthernDistrict of New York (“the Court”), against News Corporation, News America Inc., News America Marketing In-Store Services, LLC, and News America Marketing FSI, LLC (“Defendants”). The lawsuit alleges that Defendantsviolated United States federal antitrust laws by monopolizing an alleged market for third party in-store promotionproducts. Defendants deny any wrongdoing. The two sides also disagree on how much money, if any, the Class could have won if the case had gone to trial.

! The settlement establishes the settlement fund to pay money to class members, provides that Defendants will adhere to certain contracting practices in their dealings with retailers for five years, avoids the costs and risks from continuing the lawsuit, releases Defendants from liability, provides that class members will not contend that Defendants’ conduct violates any antitrust or comparable laws if Defendants adhere to certain contracting practices, and creates a dispute resolution procedure.

! Court-appointed lawyers for the Class will ask the Court for an award of expenses and fees as compensation for investigating the facts, litigating the case, and negotiating the settlement.

! Your legal rights are affected whether you act or don’t act. Read this notice carefully.

YOUR RIGHTS AND OPTIONS IN THIS LAWSUIT

Submit A Claim Form This is the only way to get a payment.

Object And Go To A Hearing Write to the Court about why you don’t like the settlement and attend the final settlement hearing. You must still submit a claim form to get a payment.

Do Nothing. Get no payment. Give up rights.

! These rights and options—and the deadlines to exercise them—are explained in this notice. You must submit a claim form to receive payment no later than [90 days after Notice Date]. To object to the settlement, you must submit your objection by [14 days before the Settlement Hearing].

! The Court in charge of this case still has to decide whether to approve the settlement. Payments will be made if the Court approves the settlement and after appeals, if any, are resolved. Please be patient.


For more information, go to www.instorepromotionslitigation.com.- 2 -

BASIC INFORMATION ABOUT THE LAWSUIT

1. Why did I get this Notice?

Records indicate that you may have purchased in-store promotion products directly from Defendants since April 26, 2009.

This Notice explains that the Court has preliminarily approved a settlement resolving a class action lawsuit that may affect you. You have legal rights and options that you may exercise. Judge William H. Pauley III of the United States District Court for the Southern District of New York is overseeing this class action. The case is known as The Dial Corporation, et al. v. News Corporation, et al., Civ. Action No. 1:13-cv-06802-WHP (the “Action”).

2. What is the lawsuit about?

This lawsuit is about whether Defendants violated federal and state antitrust laws by monopolizing an allegedmarket for third-party in-store promotion products in the United States. Specifically, Plaintiffs allege thatDefendants engaged in various anticompetitive acts, including entering into long-term, exclusive agreements with retailers, to obtain and maintain an illegal monopoly and extract higher prices from customers. Defendants deny any wrongdoing.

3. What is a class action and who is involved?

In a class action lawsuit, one or more people called “Class Representatives” (in this case The Dial Corporation (“Dial”), Henkel Consumer Goods Inc. (“Henkel”), H. J. Heinz Company and H. J. Heinz Company, L.P. (collectively, “Heinz”), Foster Poultry Farms, a California corporation (“Foster Farms”), Smithfield Foods, Inc. (“Smithfield”), HP Hood LLC (“HP Hood”), and BEF Foods, Inc. (“Bob Evans”)) sue on behalf of themselves and other people who have similar claims. These people and entities together are called a “Class” or “Class Members.” Dial, Henkel, Heinz, Foster Farms, Smithfield, HP Hood, and Bob Evans—and all the Class Members like them—are called Plaintiffs. The companies the Plaintiffs sued—News Corporation, News America Inc., News America Marketing In-Store Services, LLC, and News America Marketing FSI LLC—are called the Defendants. One court resolves the issues for all Class Members—except for those who chose to exclude themselves by September 21, 2015.

4. What has happened in the lawsuit?

On October 24, 2013, Class Representatives Dial, Henkel, Heinz, Foster Farms, Smithfield, HP Hood, and Bob Evans, on behalf of a putative class, filed a complaint against Defendants alleging that Defendants had violated the Sherman Act, 15 U.S.C. §§ 1, 2; the Clayton Act 15 U.S.C. § 14.; the Michigan Antitrust Reform Act, Mich. Comp. Laws Ann. §§ 445.772 and 445.773; and N.Y. GEN. BUS. LAW§ 340(1) (“Complaint”). The Class Representatives amended their Complaint on April 4, 2014. The Complaint alleges that Defendants obtained and maintained a monopoly in the market for third-party in-store promotions through various exclusionary and anticompetitive conduct.

On June 18, 2015, the Court certified a class of consumer packaged goods company purchasers of in-store promotions. On November 10, 2015, the United States Court of Appeals for the Second Circuit denied Defendants request to appeal the Court’s class certification order.

On January 15, 2016, the Court denied Defendants motion for summary judgment on all the Class’s claims.

On February 29, 2016, the first day of the jury trial, the two sides reached a settlement. On [preliminary approval order date], the Court preliminarily approved the settlement and authorized the Class Representatives to notify the Class Members about the settlement.



5. Why is there a settlement?

The Court did not decide the Action in favor of the Plaintiffs or the Defendants. Instead, both sides agreed to a settlement. That way, they avoid the cost of trial, and the customers affected are certain to get compensation if the Court approves the settlement and the settlement becomes final (unlike in a trial where there is a possibility that the Class Members would get no compensation). The Class Representatives and Class Counsel think this settlement is best for all Class Members.

DETERMINING IF YOU ARE PART OF THE SETTLEMENT

6. How do I know if I am part of the settlement?

You are a member of the Class if you are a non-retailer consumer packaged goods firm residing in the United Stateswhich has directly purchased in-store promotions from Defendants at any time on or after April 26, 2009, and were not subject to mandatory arbitration clauses. The in-store promotion products included in this lawsuit are:SmartSource Coupon Machine; SmartSource Shelfvision video; SmartSource Shelftake one; SmartSource Shelftalk; SmartSource Shelftalk Banner; SmartSource Floortalk; SmartSource Showcase; SmartSource PricePop; SmartSource with NFC; Smartsampling Box; Smartsampling Display; and Tear Pad.

7. Are there exceptions to being included in the settlement?

Yes, you are NOT a Class Member if: (a) you have an agreement with Defendants that contains a mandatory arbitration clause; (b) you are a retailer of consumer packaged goods to ultimate consumers (these entities include store owners and operators, wholesalers (such as Associated Wholesale Grocers), associations of stores operating under a single banner, some centrally-owned, some independent, with centrally-supplied wholesale and advertising, (such as SuperValu)), or a wholesaler of in-store advertising services, such as AdMax; (c) all of your purchases were made before April 26, 2009; (d) you reside outside of the United States; (e) you are a Defendant in the Action, or its parent, subsidiary, and affiliate, or a governmental entity; (f) you are the judicial officer presiding over the Action or a member of her immediate family or judicial staff; or (g) you have previously excluded yourself from the Class.

8. Are you still not sure if you’re included?

If you are still not sure whether you are included in the Class, you can get free help at www.instorepromotionslitigation.com, or by calling or writing to the lawyers in this case at the phone numbers or addresses listed in response to question 18.

THE SETTLEMENT BENEFITS – WHAT YOU GET

9. What does the settlement provide?

The settlement creates a fund of $244 million to compensate Class Members and pay certain fees and expenses that may be awarded by the Court. This fund will be reduced by payments to Class Counsel, reimbursement of expenses, and payments to the Claims Administrator.

Defendants also agree that for a period of five years after the settlement becomes final, they will not:

1) enter into any exclusive contract with a retailer for in-store promotions that has a term longer than 30 months, other than to meet competition or where the retailer makes a written bona fide request for a longer term;

2) enter into a binding renewal of a contract with a retailer more than 18 months prior to the expiration of the prior contract unless the retailer makes a written bona fide request for an earlier renewal; and

3) enter into a contract that precludes a retailer from disclosing the termination date of the contract to a bona fideactual or prospective competitor which is seeking to negotiate its own contract with the retailer.



10. How much will my payment be?

Your share of the fund will depend on the number of Class Members that submit valid claim forms and how much you purchased from Defendants after April 26, 2009.

The total settlement amount is $244 million. Part of the settlement money will be used to compensate the Class Counsel and to pay the Claims Administrator. After those deductions, the entire balance of the settlement fund will be distributed to Class Members who file valid claim forms on a pro rata basis, based on Class Members’ purchases of Defendants’ in-store promotions after April 26, 2009. Purchases that are subject to any release agreement with the Defendants or that are subject to a mandatory arbitration clause will not be counted. None of the settlement fund will revert to Defendants, unless the settlement is terminated or otherwise does not become final.

11. Can I exclude myself from the settlement?

No. The Court previously permitted Class Members an opportunity to exclude themselves from the Class. All Class Members who did not exclude themselves from the Class at that time will be bound by the settlement and cannot exclude themselves from the Class now.

12. What am I giving up in exchange for the settlement?

In exchange for the settlement fund and additional commitments made by Defendants, Class Members agree:

1) that, if Defendants’ comply with the above commitments, Defendants’ conduct will be reasonable based on all the facts and circumstances, that Class Members will not contend in any forum that Defendants’ conduct violates any antitrust, competition, or comparable law, and that no Class Member will bring any antitrust,competition, or comparable claim against Defendants based on, relating to, or referring in any way to such conduct;

2) that in any subsequent dispute between a Class Member and Defendants concerning antitrust, competition, or comparable claims, any evidence of Defendants’ conduct predating the date the settlement becomes final shall be inadmissible for any purpose;

3) that any dispute in connection with the settlement or any antitrust, competition, or comparable claim accruing within five years from the date the settlement becomes final is subject to mandatory mediation followed by binding arbitration, except that any dispute concerning Defendants’ compliance with items 1-3 in Question 9 accruing more than three years after the settlement becomes final need not be submitted to mediation and binding arbitration; and

4) that any claims Class Members have against Defendants that arise out of or relate in any way to the claims in the Action, including unknown claims, are released.

13. What are the released claims?

Class Members will release any and all manner of claims, demands, actions, suits, and causes of action, whether individual, class, representative, or otherwise in nature, for damages, interest, costs, expenses, attorneys’ fees, fines, civil or other penalties, or other payment of money, or for injunctive, declaratory, or other equitable relief, whenever incurred, whether directly, indirectly, derivatively, or otherwise, regardless of when such claims accrue, whether known or unknown, suspected or unsuspected, in law or in equity that any Class Member ever had, now has, or hereafter can, shall, or may in the future have, arising out of or relating in any way to any conduct, acts, transactions, events, occurrences, statements, omissions, or failures to act of any Defendant (or parents, subsidiaries, affiliates, successors and predecessors, assigns, or other related or affiliated companies, including the officers, directors, employees or other related individuals or entities) that are alleged or which could have been alleged from the beginning of time until the Effective Date in the Complaint, including but not limited to any claims based on or relating to the future effect in the United States of any such conduct, acts, transactions, events, occurrences, statements, omissions, or failures to act. This release does not include any claims relating to the enforcement of the settlement. This release does include claims Class Members do or did not know or suspect to exist when the settlement becomes final, which if known might have affected their decisions with respect to the settlement.

The Defendants will release any and all manner of claims, demands, actions, suits, and causes of action, whether individual, class, representative, or otherwise in nature, for damages, interest, costs, expenses, attorneys’ fees, fines,



civil or other penalties, or other payment of money, or for injunctive, declaratory, or other equitable relief, whenever incurred, whether directly, indirectly, derivatively, or otherwise, regardless of when such claims accrue, whether known or unknown, suspected or unsuspected, in law or in equity that any Defendant ever had, now has, or hereafter can, shall, or may in the future have, arising out of or relating in any way to the claims asserted in the Action against Defendants and that are alleged or which could have been alleged from the beginning of time until the Effective Date in the Action; provided, however, that Defendants’ Released Claims do not include any claims or causes of action of any nature or description relating to any of Defendants’ contractual rights against any Class Member or the contractual obligations of any Class Member other than those claims that Defendants in fact asserted in the Action against Class Plaintiffs The Dial Corporation, H.J. Heinz Company, H.J. Heinz Company LP, and Foster Poultry Farms as set forth in Defendants’ Counterclaims dated April 21, 2014. This release does not include any claims relating to the enforcement of the settlement. This release does include claims the Defendants do or didnot know or suspect to exist when the settlement becomes final, which if known might have affected their decisions with respect to the settlement.

HOW YOU GET A PAYMENT – SUBMITTING A CLAIM FORM

14. How can I get a payment?

To qualify for a payment, you must submit a claim form. You may submit the Proof of Claim form included with this Notice. Alternatively claims forms are available online at www.instorepromotionslitigation.com. Your unique identifying number is printed on the Proof of Claim included with this Notice.

The claim form you will fill out will include the amount of your purchases Class Counsel has identified in Defendants’ records by calendar year. Purchases that are subject to any release agreement with the Defendants or that are subject to a mandatory arbitration clause will not be counted. You will have the option of accepting those amounts or, if you believe the amount calculated is incorrect, submitting additional evidence about your claims with supporting documentation, such as invoices, accounts payable data, or receipts. Please read the instructions carefully, fill out the form, and attach any documents the form asks for.

All claim forms must be submitted electronically or postmarked by [90 days after Notice Date].

15. When would I get my payment?

The Court will hold a hearing on [Settlement Hearing date] to decide whether to approve the settlement. If the Court approves the settlement, there may be appeals. It’s always uncertain whether there will be any appeals, and the appeal process can take time, perhaps more than a year. The settlement website will contain the most up-to-date information about the progress of the litigation. Please be patient.

Once the deadline to submit claims expires and all appeals, if any, are resolved, the Claims Administrator will distribute all the settlement money to the Class Members who have submitted valid claim forms based on the proportion of the Class Member’s purchases to the total purchases made by all Class Members who have submitted valid claims forms.

16. What am I giving up to get a payment?

You give up nothing by submitting a claim form and receiving a payment. All Class Members, except those who have previously excluded themselves from the Class, will be bound by the terms of the settlement and judgment. Submitting the claim form entitles you to payment from the settlement fund. If you do not submit a claim form, you are still bound by the terms of the settlement and judgment, but you will not receive a payment.

17. What happens if I do nothing at all?

If you do not do anything, you will still be bound by the settlement and judgment, but you will not get a payment.



THE LAWYERS REPRESENTING YOU

18. As a Class Member, do I have a lawyer representing my interests in this Class Action?

Yes. The Court has appointed lawyers to represent you and other Class Members. These lawyers are called Class Counsel. The following lawyers are representing the Class:

Steven F. Benz, Esq.Kellogg, Huber, Hansen, Todd, Evans &

Figel, P.L.L.C.1615 M Street, N.W.

Suite 400Washington, D.C. 20036

(202) 326-7983www.khhte.com

James T. Southwick, Esq.Susman Godfrey L.L.P.

1000 Louisiana StreetHouston, TX 77002

(713) 651-9366www.susmangodfrey.com

19. How will the lawyers be compensated, and will the named plaintiffs receive compensation?

Class Counsel will ask the Court to approve payment of attorneys’ fees and expenses incurred in litigating this case, and Defendants will not contest Class Counsel’s request for a fee up to 30% of the Settlement Amount. The fees would pay Class Counsel for investigating the facts, litigating the case, preparing for trial, and negotiating the settlement. The Court may award more or less than these amounts. Defendants will not separately pay the attorneys’ fees or expenses of Class Counsel; instead, these amounts will reduce the $244 million available for Class Members. The settlement fund will also be reduced by the amount paid to administer the settlement. Class Counsel will file a fee and expenses application no later than [30 days after preliminary approval order]. Once filed, the fee and expenses application will be made available on the class website, www.instorepromotionslitigation.com. Class Counsel may also request that the Court, in its discretion, make incentive awards to the Class Representatives from the settlement fund.

Before the Class reached a settlement with Defendants, five individual class members reached separate settlements and release agreements with Defendants. Defendants have agreed to pay $6 million to Class Counsel in consideration for the common benefit Class Counsel’s efforts created, subject to court approval and the settlement becoming final.

OBJECTING TO THE SETTLEMENT

20. How can I object to this settlement?

If you are a Class Member, you can object to the settlement if you don’t like any part of it. You can give reasons why you think the Court should not approve it as a whole or parts of it. You may specifically object to Class Counsel’s application for fees. The Court will consider your views. If you object to the settlement, you must send a letter saying that you object to the settlement in the matter Dial Corp., et al. v. News Corp., et al., No. 13-cv-06802 (WHP) (S.D.N.Y.) and attend the final settlement hearing. Be sure to include your name, address, telephone number, the name of your attorney, if applicable, your signature, the reasons why you object to the settlement, and any evidence supporting your objection. If you intend to present witnesses at the final settlement hearing, you must also include a list of those witnesses. You must mail your objection to the following four places, postmarked no later than [14 days before Settlement Hearing].

The Court:Clerk of CourtDaniel Patrick Moynihan United States Courthouse500 Pearl StreetNew York, NY 10007

Class Counsel:Steven F. Benz, Esq. James T. Southwick, Esq.



Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. Susman Godfrey L.L.P.1615 M Street, N.W., Suite 400 1000 Louisiana StreetWashington, D.C. 20036 Houston, TX 77002

Counsel for Defendants:Kenneth A. GalloPaul, Weiss, Rifkind, Wharton & Garrison LLP2001 K Street, NWWashington, DC 20006-1047

THE COURT’S FINAL SETTLEMENT HEARING

21. When and where will the Court decide whether to approve the settlement?

The Court will hold a hearing at [Settlement Hearing time and date] at the United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, Courtroom 20B, 500 Pearl Street, New York, New York 10007. At this hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court will also listen to people who have asked to speak at the hearing. The Court may also decide how much to pay to Class Counsel. After the hearing, the Court will decide whether to approve the settlement and enter judgment. We do not know how long these decisions will take.

22. Do I have to come to the hearing?

Only if you sent a letter objecting to the settlement. If you sent a letter objecting to the settlement and do not attend the hearing, your objection will not be considered. Otherwise, Class Counsel will answer questions the Court may have. You are welcome to come at your own expense. You may also pay your own lawyer to attend, but it’s not necessary.

23. May I speak at the hearing?

Yes. You or your attorney may speak at the final settlement hearing. To do so, you must either send a letter objecting to the settlement or, if you do not object but want to speak anyway, send a letter stating that it is your “Notice of Intention to Appear in Dial Corp., et al. v. News Corp., et al., No. 13-cv-06802 (WHP) (S.D.N.Y.).” Be sure to include your name, address, telephone number, the name of your attorney, if applicable, and your signature. Your Notice of Intention to Appear must be postmarked no later than [14 days before the Settlement Hearing] and be sent to the Clerk of Court, Class Counsel, and Counsel for Defendants, at the four addresses listed in Question 18. You cannot speak at the hearing if you previously excluded yourself (“opted out”) of the Class.

ADDITIONAL INFORMATION

24. Are more details available?

This Notice contains a summary of relevant court papers and does not describe all of the claims, defenses, and contentions of the parties to the lawsuit. Certain key documents, including the Proof of Claim, settlement agreement and certain relevant pleadings and court decisions are available on the class website: www.instorepromotionslitigation.com. If you have further questions about this Notice or would like more information about the lawsuit, you may contact Dial Corp., et al. v. News Corp., et al. Claims Administrator, P.O. Box 40007, College Station, Texas 77842-4007, 1-844-239-8904.

Please do not contact the Court or Judge Pauley. They cannot answer any questions or discuss the Action.

DATED: ____________ BY ORDER OF THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK


Exhibit B


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Dial Corp., et al. v. News Corp., et al.United States District Court for the Southern District of New York

Hon. William H. Pauley, IIICase no. 13-cv-06802

PROOF OF CLAIM

[CLASS MEMBER ADDRESS] [CLAIMS PIN]

THIS FORM CONTAINS PREOPULATED FIELDS BASED ON THE DEFENDANTS’ PURCHASING RECORDS.

FOR A BLANK FORM, GO TOWWW.INSTOREPROMOTIONSLITIGATION.COM.

How do I file a claim? Complete this claim form. You must complete all sections of this claim form as it instructs. Completed claims must be sent to the following address, postmarked no later than [90 days after the Notice Date]:

Dial Corp., et al. v. News Corp., et al. Claims AdministratorP.O. Box 40007College Station, Texas 77842-4007

The information you provide will be kept confidential and will be used only for administering this settlement. If you have any questions, please call the Claims Administrator at 1-844-239-8904. For updated information about any decisions by the Court affecting the Class or the Settlement, please refer to the Settlement Website, www.instorepromotionslitigation.com. A Class Member or an authorized agent may complete this Proof of Claim. If both a Class Member and its authorized agent submit a Proof of Claim, the Claims Administrator will only consider the Class Member’s Proof of Claim. The Claims Administrator may request supporting documentation at the Administrator’s discretion. The claim may be rejected if any requested documentation is not provided.

DO NOT CONTACT THE COURT WITH QUESTIONS. IF YOU HAVE ANY QUESTIONS, ASK THE CLAIMS ADMINISTRATOR.


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SECTION A – CLAIMANT IDENTIFICATION

Full Company Name:____________________________________________________________Primary Address (1):_____________________________________________________________Primary Address (2):_____________________________________________________________City:____________________________________ State:____ Zip Code:___________________Contact Email Address:__________________________________________________________Contact Telephone Number:_____________________________________

Please indicate whether you are claiming on your own behalf as a Class Member or as the authorized agent of one or more Class Members by checking the box below. If you wish to make a claim as a Class Member and also as the authorized agent of other class members, please complete separate forms for each Class Member for whom you are authorized to submit a claim:

I am the Class Member.

I am filing as the Authorized Agent of a Class Member.

If you checked “Authorized Agent,” please explain your relationship with the Class Member and attach certification of your authority to act on its behalf:__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

SECTION B – CLAIM AMOUNT

1. The settlement fund has been established to pay benefits to non-retailer consumer packaged goods firms residing in the United States which directly purchased in-store promotions from the Defendants at any time on or after April 26, 2009, and were not subject to mandatory arbitration clauses. The in-store promotion products included in this lawsuit are SmartSource Coupon Machine; SmartSource Shelfvision video; SmartSource Shelftake one; SmartSource Shelftalk; SmartSource Shelftalk Banner; SmartSource Floortalk; SmartSource Showcase; SmartSource PricePop; SmartSource with NFC; Smartsampling Box; Smartsampling Display; and Tear Pad.

2. The settlement fund will be distributed to class members pro rata based on the proportion of the Class Member’s purchases of in-store promotions services at any time on or after April 26, 2009 that have not been released and that are not subject to a mandatory arbitration clause to the total purchases made by all Class Members who have submitted valid Proofs of Claim.


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3. The Defendants’ data shows that [NAME OF CLASS MEMBER] spent the following on in-store promotions for each year. Please indicate if you accept that amount as your purchases of in-store promotions from the Defendants.

Year Amount Do you accept the amount? (circle one)

2009 (Apr. 26-Dec. 31) [2009 Purchases] Yes or No

2010 [2010 Purchases] Yes or No






SECTION C – CLAIM DOCUMENTATION INSTRUCTIONS

If you do not accept any of the annual purchase amounts calculated for you by Class Counsel and the Claims Administrator, you must indicate the amount of purchases of in-store promotions products you claim for that year below and provide supporting documentation. All purchases should be listed in USD and rounded to the nearest whole dollar. Do not include shipping charges or taxes.

Year Amount

2009 (Apr. 26-Dec. 31)

2010

2011

2012

2013

2014

2015

Your supporting documentation may consist of financial records that clearly indicate the order date, order number, amount paid, and products purchased, or copies of receipts, purchase orders, or invoices. The Claims Administrator will review the documentation you submit and will make a decision. You may be required to submit additional documentation at a later date, so please retain all documentation relating to your claimed purchases.


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SECTION D – CONFIRMATION OF SETTLEMENT TERMS

You will be bound by the terms of the Settlement Agreement irrespective of whether you submit this claim form. By signing below, you further confirm that 1) you have the authority to submit this claim form; 2) that any information contained in or included with this form is true and accurate based on records maintained by or otherwise available to you; 3) that you submit to the jurisdiction of the United States District Court for the Southern District of New York for all purposes associated with this Proof of Claim, any disputes relating to the Proof of Claim, or for all purposes associated with the settlement; and 4) you will abide by all applicable terms of the Settlement Agreement between the Class and Defendants, including:

1. If Defendants comply with the structural relief provided in the Settlement Agreement, paragraphs 11(a) through 11(c), Defendants’ conduct will be reasonable based on all the facts and circumstances and no Class Plaintiff or Class Member shall contend in any forum that Defendants’ conduct constitutes a violation of any antitrust, competition, or comparable law. No Class Plaintiff or Class Member shall bring any antitrust, competition, or comparable claim against Defendants based on, relating to, or referringin any way to such conduct.

2. In any subsequent dispute between any Class Plaintiff or Class Member and Defendants concerning antitrust, competition, or comparable claim, any evidence of conduct by Defendants predating the Effective Date of the Settlement Agreement shall be inadmissible for any purpose.

3. After the Settlement Agreement becomes Final, any dispute in connection with the Settlement, or any antitrust, competition, or comparable claim, accruing in the period of five years from the Effective Date of the Settlement Agreement, shall be submitted to alternative dispute resolution, consisting of mandatory mediation in New York City followed by binding arbitration, if necessary.

4. Each and every one of Plaintiffs’ Released Claims shall be deemed fully, finally, and forever waived, released, discharged, and dismissed as against each and every one of the Defendants’ Released Parties, and Class Members shall forever be barred and enjoined from commencing, instituting, prosecuting, or maintaining any and all of the Plaintiffs’ Released Claims against any and all of the Defendants’ Released Parties.

Under 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Signature:___________________________________ Date:_____________________________Printed Name:__________________________________________________________________Employer:____________________________________Title:_____________________________


1583894 1 2016 05 02 Stipulation and Settlement Agreement...

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Transcript of 1583894 1 2016 05 02 Stipulation and Settlement Agreement...