ROD M. FLIEGEL, Bar No. 168289 LITTLER MENDELSON, P.C ...

L I T T L ER ME N DE LS ON, P.C . 3 3 3 B u s h S t r e e t

3 4 t h F l o o r S a n F r a n c i s co CA 9 4 1 0 4

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Case No. 3:19-cv-03187-MMC (Consolidated)

CLASS ACTION SETTLEMENT AGREEMENT

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ROD M. FLIEGEL, Bar No. 168289 ALISON S. HIGHTOWER, Bar No. 112429 TIANA HARDING, Bar No. 299189 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490

Attorneys for Defendant SAFEWAY INC.

ADDITIONAL ATTORNEYS LISTED ON NEXT PAGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

KENDRA SULLIVAN, MARIANNA WILLIAMS, JOHANNA MATHEWS, and SHARMARRAY ROSS, individually and as representatives of the class,

Plaintiffs,

v.

SAFEWAY INC.,

Defendant.

Case No. 3:19-cv-03187-MMC (Consolidated)


Case 3:19-cv-03187-MMC Document 98-1 Filed 12/30/20 4 of 163



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1. Case No. 3:19-cv-03187-MMC (Consolidated)


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ADDITIONAL ATTORNEYS Steven M. Tindall (SBN 187862) [email protected] Jeffrey B. Kosbie (SBN 305424) [email protected] GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, California 94612 (510) 350-9700 (tel.) (510) 350-9701 (fax) Rosa Vigil-Gallenberg (SBN 251872) [email protected] GALLENBERG PC 800 S. Victory Blvd. Suite 203 Burbank, CA 91502 (818) 237-5267 (tel.) (818) 330-5266 (fax) Attorneys for Plaintiffs Johanna Mathews and Sharmarray Ross J. Nelson Thomas (admitted pro hac vice) [email protected] Michael J. Lingle (admitted pro hac vice) [email protected] Jessica L. Lukasiewicz (admitted pro hac vice) [email protected] Jonathan W. Ferris (admitted pro hac vice) [email protected] THOMAS & SOLOMON LLP 693 East Avenue Rochester, NY 14607 585-272-0540 (tel.) Attorneys for Plaintiffs Kendra Sullivan and Marianna Williams

Case 3:19-cv-03187-MMC Document 98-1 Filed 12/30/20 Page 15 of 163



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SHANNON R. BOYCE, Bar No. 229041 LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 ROD M. FLIEGEL, Bar No. 168289 ALISON S. HIGHTOWER, Bar No. 112429 TIANA HARDING, Bar No. 299189 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490

Attorneys for Defendants

ADDITIONAL ATTORNEYS LISTED ON NEXT PAGE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KYSHA DREW AND JEANNIE JONES, individually and as representatives of the class,

Plaintiffs,

v. THE VONS COMPANIES, INC., VONS SHERMAN OAKS, LLC, SAFEWAY SOUTHERN CALIFORNIA, INC., SAFEWAY LEASING, INC., AND SAFEWAY, INC.,

Defendants.

Case No. 8:20-CV-00347-DOC-JDE

STACI GILMAN, individually and as representatives of the class,

Plaintiff,

v.

THE VONS COMPANIES, INC., VONS SHERMAN OAKS, LLC,

Defendants.

Case No. 8:20-cv-00681-DOC-JDE




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ADDITIONAL ATTORNEYS

J. Nelson Thomas (admitted pro hac vice) Michael J. Lingle (admitted pro hac vice) Jessica L. Lukasiewicz (admitted pro hac vice) Jonathan W. Ferris (admitted pro hac vice) THOMAS & SOLOMON LLP 693 East Avenue Rochester, New York 14607 Telephone: (585) 272-0540 [email protected] [email protected] [email protected] [email protected] Adam B. Wolf (Bar No. 215914) PEIFFER WOLF CARR & KANE A PROFESSIONAL LAW CORPORATION 5042 Wilshire Blvd., No. 304 Los Angeles, CA 90036 Telephone: (415) 766-3545 [email protected] Attorneys for Plaintiffs KYSHA DREW and JEANNIE JONES

Steven Tindall (SBN 187862) Jeffrey Kosbie (SBN 305424) GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 [email protected] Rosa Vigil-Gallenberg (SBN 251872) GALLENBERG PC 800 S. Victory Blvd Suite 203 Burbank, CA 91502 Telephone: (818) 237-5267 Facsimile: (818) 330-5266 [email protected] Attorneys for Plaintiff STACI GILMAN




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This Class Action Settlement Agreement is entered into between Kendra Sullivan,

Marianna Williams, Johanna Mathews, Sharmarray Ross, Kysha Drew, Jeannie Jones, and Staci

Gilman (“Plaintiffs”), individually, and on behalf of all Settlement Class Members as defined herein,

and Defendants Safeway Inc., The Vons Companies, Inc., Vons Sherman Oaks, LLC, Safeway

Southern California Leasing, Inc., and Safeway Leasing, Inc. (“Defendants”), and is subject to the

terms and conditions hereof and the final approval of the United States District Court for the Northern

District of California.

DEFINITIONS

1. Action. (1) The “Action” means the Consolidated Amended Class Action Complaint

(Doc. No. 55) in the civil action styled Case No. 3:19-cv-03187-MMC (Consolidated), Kendra

Sullivan, Marianna Williams, Johanna Mathews, and Sharmarray Ross, individually and as

representatives of the Class v. Safeway Inc., which on November 26, 2019, was ordered consolidated

from the Complaint filed by Plaintiffs in Sullivan v. Safeway, Inc., Case No. 3:19-cv-03187-MMC ,

filed in the United States District Court for the Northern District of California, and the Plaintiffs in

Mathews v. Safeway, Inc., Case No. 3:19-cv-04261-MMC, filed in the Superior Court of the State of

California, County of Alameda and removed to the United States District Court for the Northern

District of California; (2) the “Drew Action” means the Class Action Complaint (Doc. No. 1) in the

civil action styled Case No. 8:20-cv-00347-DOE-JDE, Kysha Drew and Jeannie Jones, individually

and as representatives of the class v. The Vons Companies, Inc., et al. filed in the United States District

Court for the Central District of California; and (3) the “Gilman Action” means the Class Action

Complaint (Doc No. 1) in the civil action styled Case No. 8:20-cv-00681-DOE-JDE, Staci Gilman,

individually and as representative of the class v. The Vons Companies, Inc. and Vons Sherman Oaks,

LLC, filed in the United States District Court for the Central District of California. To facilitate an

economical settlement process, the Parties will stipulate to staying the Drew and Gilman Actions

pending settlement and filing a Consolidated Amended Complaint in the Action for settlement

purposes that adds the named Plaintiffs and Defendants to Sullivan/Mathews. If a settlement is finally

approved in Sullivan/Mathews, within five (5) days of the Final Effective Date of this Agreement,

Plaintiffs in the Drew Action and the Gilman Action will promptly request a dismissal with prejudice




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of these Actions so that the final judgment in the Action will resolve all of their individual and class

action claims.

2. Authorized Claimant. “Authorized Claimant” means any Settlement Class Member

who submits a timely and valid Claim Form by or before the Bar Date and who becomes entitled to

receive an “Individual Settlement Payment” (defined in Paragraph 16 below) under this Settlement

Agreement.

3. Bar Date. “Bar Date” is the date that is forty-five (45) calendar days after the date on

which the Claims Administrator e-mails or post-marks (whichever is later) the notice of the Settlement

to the Settlement Class Members.

4. Claims Administrator. “Claims Administrator” means American Legal Claim Services

LLC, or such other third-party administrator approved by the Court. The Claims Administrator will

perform all of the administrative duties assigned below in Paragraphs 45-50. The parties have jointly

agreed to use American Legal Claim Services as the Claims Administrator, subject to Court Approval.

Defendants will not approve any administrator that has not been vetted and approved by counsel for

Defendants, including, but not limited to, regarding the administrator’s information security practices

and any past data breaches.

5. Claim Form. “Claim Form” means the Proof of Claim for use by Settlement Class

Members who choose to file a claim in the Action. A copy of the Claim Form is attached hereto as

Exhibit I.

6. Claim Submission Period. The “Claim Submission Period” means the period

beginning with the date the Summary Notice is sent to Settlement Class Members and ending on the

Bar Date.

7. Class Counsel. “Class Counsel” shall mean:

J. Nelson Thomas, Esq. Jessica L. Lukasiewicz Jonathan W. Ferris THOMAS & SOLOMON LLP 693 East Avenue Rochester, New York 94612 Telephone: (585) 272-0540




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Steven Tindall Jeffrey Kosbie GIBBS LAW GROUP LLP 505 14TH Street, Suite 1110 Oakland, California 94612

Telephone: (510) 350-9245

Rosa Vigil-Gallenberg GALLENBERG PC 800 South Victory Boulevard, Suite 203

Burbank, California 91502 Telephone: (818) 237-5267 [email protected]

8. Class Counsel’s Fees and Costs. Defendants understand Class Counsel intends to seek

court approval for attorneys’ fees and costs. Defendants do not intend to object to a reasonable request

for attorneys’ fees and costs. This is not, and shall not be construed as, a “clear sailing” provision.

Whatever amount is approved by the Court, if any, shall be paid from and is included in the Gross

Settlement Sum and shall not in any way increase the amount of the Gross Settlement Sum.

9. The Court. The “Court” refers to the United States District Court for the Northern

District of California.

10. Defendants. “Defendants” means Defendants Safeway Inc., The Vons Companies,

Inc., Vons Sherman Oaks, LLC, Safeway Southern California Leasing, Inc., and Safeway Leasing,

Inc.

11. Final Approval Order. “Final Approval Order” refers to the Order entered and filed by

the Court that finally approves the Settlement Agreement’s terms and conditions. Plaintiffs will file a

proposed Final Approval Order in substantially the form attached as Exhibit F.

12. Final Effective Date. “Final Effective Date” refers to the first date after all of the

following events and conditions have been met or have occurred: (i) the Court entered the Preliminary

Approval Order; (ii) the Bar Date passed; (iii) the deadline has passed without action for counsel for

the Parties to terminate the Settlement Agreement; (iv) the Court entered a Final Approval Order and

Final Judgment and (a) the time for appeal expires, if no appeal has been filed, or (b) the final

resolution of any appeal occurs, and the Final Approval Order has remained intact in all material

respects. In this regard, it is the Parties’ intention that the Settlement shall not become effective until




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the Court issues its Final Approval Order, and there is no further recourse by an appellant or objector

or any other party who seeks to contest the Settlement. For example, if conditions (i) through (iii) are

met and (iv)(a) applies, then the Final Effective Date will be the first business day after the time for

appeal expires; if (iv)(b) applies, the Final Effective Date will be the first business day after the

appellate process is exhausted. The Parties agree the Court shall retain jurisdiction to enforce the

terms of the Settlement Agreement unless specifically set forth otherwise herein. The Parties agree

the Court shall retain jurisdiction to enforce the terms of the Settlement Agreement unless specifically

set forth otherwise herein.

13. Final Fairness Hearing. “Final Fairness Hearing” means the hearing contemplated by

the Parties, at which the Court will approve, in final, the Settlement Agreement, enter the Final

Judgment, and make such other final rulings as are contemplated by this Settlement Agreement. The

date of the Final Fairness Hearing shall be set by the Court and notice of such hearing shall be provided

to the Settlement Class Members and in the Settlement Notice, although such hearing may be

continued by the Court without further notice to Settlement Class Members, other than those who are

Objectors. To allow for all the events set forth in this Settlement Agreement to occur, the Parties shall

request the Court schedule the Final Fairness Hearing no sooner than ninety (90) days and no later

than one hundred and twenty (120) days after entering the Preliminary Approval Order, provided all

contests to rejections and all deficiencies in claim forms have been resolved pursuant to Paragraphs

45(i)-(k) and 47, and Defendants have been provided their right to terminate the Agreement, if

applicable, pursuant to Paragraph 54. The Court may, in its discretion, schedule the Final Fairness

Hearing virtually due to the ongoing COVID-19 pandemic.

14. Final Judgment. “Final Judgment” means the judgment entered by the Court in

conjunction with the Final Approval Order dismissing the Action with prejudice. The Parties shall

submit a proposed order of Final Judgment setting forth the terms of this Settlement Agreement, by

incorporation or otherwise, for execution and entry by the Court at the time of the Final Fairness

Hearing or at such other time as the Court deems appropriate, in substantially the form attached as

Exhibit H.




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15. Gross Settlement Sum. “Gross Settlement Sum” is Two Million Three Hundred

Thousand Dollars and Zero Cents ($2,300,000.00), which represents the maximum total payment that

Defendants will pay for any reason under this Settlement Agreement, inclusive of Individua l

Settlement Payments, Class Counsel’s Fees and Costs, the Service Awards, and Settlement Expenses

(i.e., Settlement Notice costs, etc.), and irrespective of whether the total persons in the Settlement

Class is greater than the number estimated in Paragraph 33 below, with the sole exception that

Defendants will pay the additional cost, if any, of providing notice pursuant to the Class Action

Fairness Act (“CAFA”) as described in Paragraph 59 below.

The Gross Settlement Sum is composed of the following, if and as approved by the Court:

- Class Payout: Amounts payable from the Net Settlement Sums on a pro rata basis to the Settlement Class Members who submit valid, timely Claim Forms. If the claimed amount exceeds the Net Settlement Sum (defined below), the amounts paid out will be reduced pro rata so that the maximum payout to Authorized Claimants does not, and cannot, exceed the Net Settlement Sum;

- Notice and settlement administration costs: anticipated not to exceed $88,000 for all

tasks except for sending notice pursuant to the CAFA; if court-approved costs exceed this sum, any additional such amounts shall come exclusively from the Gross Settlement Sum, and shall result in a corresponding reduction to the Net Settlement Sum, but shall not reduce either the Service Awards or attorneys’ fees and costs as a result;

- Service Awards to Plaintiffs: up to Eleven Thousand Dollars and No Cents

($11,000.00) for each of the Class Representatives, subject to court approval; and

- Attorney’s fees and costs to class counsel: in a reasonable amount awarded by the Court.

16. Individual Settlement Payment. “Individual Settlement Payment” means the payment

to an Authorized Claimant under the terms of this Settlement Agreement.

17. Net Settlement Sum. “Net Settlement Sum” means the Gross Settlement Sum less the

amount of Class Counsel’s Fees and Costs, Settlement Expenses, and the Service Awards to Plaintiffs,

if and as approved by the Court.

18. Objection Period. “Objection Period” refers to the period beginning with the date the

Summary Notice is emailed or post-marked to Settlement Class Members and ending on the Bar Date.

19. Objector. “Objector” refers to a Settlement Class Member who has timely and properly

objected to the Settlement Agreement during the Objection Period.




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20. Parties. “Parties” refers to the Plaintiffs, Defendants, and, in the singular, refers to any

of them, as the context makes apparent.

21. Plaintiffs or Class Representatives. “Plaintiffs” or “Class Representatives” refer to

Kendra Sullivan, Marianna Williams, Johanna Mathews, Sharmarray Ross, Staci Gilman, Kysha

Drew, and/or Jeannie Jones.

22. Preliminary Approval Order. “Preliminary Approval Order” is the Order entered and

filed by the Court that preliminarily approves the Settlement Agreement’s terms and conditions ,

including the manner and content of providing notice to the Settlement Class. Plaintiffs will file a

proposed Preliminary Approval Order in substantially the form attached as Exhibit E.

23. Released Claims. “Released Claims” mean any and all claims asserted in an individua l

and/or class action, collective action or mass action, asserting any claims based on the facts alleged in

the complaint in the Action including but not limited to claims under the federal Fair Credit Reporting

Act (“FCRA”) or any state and local law equivalent, including the California Investigative Consumer

Reporting Agencies Act, during the period from and including June 6, 2017, through and including

the date of preliminary settlement approval for the Safeway Subclass (defined in Paragraph 25 below),

and during the period from and including February 20, 2018 through and including the date of

preliminary settlement approval for the Vons Subclass (defined in Paragraph 32 below). The Released

Claims include claims under the FCRA and equivalent or corresponding state laws, including but not

limited to all statutory, compensatory, actual and punitive damages, restitution, declaratory, injunctive

and equitable relief, and attorneys’ fees and expenses, arising from or related to background checks,

investigative consumer reports, and/or consumer reports ordered through the date of preliminary

settlement approval, including the right to seek relief for such Released Claims by means of a class

action, collective action or mass action or proceeding. The Settlement Notice to the Settlement Class

will inform the Settlement Class that they are releasing FCRA and equivalent and corresponding state

law claims, including claims under the California Investigative Consumer Reporting Agencies Act.

Claims of persons outside of the Settlement Class who were screened after November 25, 2019 are

not being released as part of this Settlement. It is expressly intended and understood by the Parties

that this Settlement Agreement is to be construed as a complete and full settlement, accord, and




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satisfaction of the Settlement Class Members’ Released Claims. No Settlement Class Member may

circumvent the spirit and intent of this provision by seeking to join in any way together with any other

Settlement Class Members in any action whatsoever, including any mass action under the CAFA or

otherwise, that asserts the Released Claims discussed in this Paragraph.

24. Released Parties. “Released Parties” refers to each of the Defendants, all affiliated

entities, and their past, present, and future parent companies, holding companies, limited liabilit y

companies, affiliates, subsidiaries, divisions, predecessors, successors, partners, owners, joint

ventures, affiliated organizations, shareholders, insurers, reinsurers and assigns, and each of its/their

past, present and future officers, directors, members, managers, trustees, subcontractors, customers,

agents, employees, attorneys, contractors, representatives, plan fiduciaries and/or administrators,

benefits plan sponsored or administered by Defendants or affiliated entities, or divisions, units,

branches, and any other persons or entities acting by through, under or in concert with them, including

Cerberus Capital Management, L.P.

25. Safeway Subclass. “Safeway Subclass” means the following subclass of the Settlement

Class: All employees and/or prospective employees of Defendant Safeway Inc. within the United

States who were the subject of a consumer report anytime between and including June 6, 2017, and

November 25, 2019, inclusive.

26. Service Awards. “Service Awards” mean the amounts approved by the Court for

payments to Plaintiffs in recognition of their efforts on behalf of the Settlement Class in the Action.

The allocation of the Service Awards has been determined based upon the amount of time expended

by Class Representatives and the risks assumed by Class Representatives in actively pursuing this

Action, the Drew Action and the Gilman Action, and the alleged inherent risks of being a named

plaintiff and being a plaintiff in a case in which an offer of judgment has been made. The Service

Award, if approved by the Court, shall include a total of up to Eleven Thousand Dollars and Zero

Cents ($11,000.00) to each of the Class Representatives, or such other amount approved by the Court.

These Service Awards reflect the work the Class Representatives have performed in assisting Class

Counsel with this litigation and pursuing this litigation, including numerous telephonic conferences

with Class Counsel; and assisting with drafting the Complaints. The Service Awards also reflect the




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work they shall perform through the approval process of this Settlement Agreement. The Service

Awards shall be in addition to, rather than in lieu of, any amount to which Plaintiffs may be entitled

to receive through a Claim Form submitted as to the Net Settlement Sum. To be eligible for any

Service Award, Class Representatives each shall execute a separate (non-confidential) General

Release of All Claims, which is Exhibit C hereto, and provide the Claims Administrator an executed

W-9 form.

27. Settlement. “Settlement” shall refer to the agreement of the Parties to settle the claims

as set forth and embodied in this Settlement Agreement.

28. Settlement Agreement. “Settlement Agreement” shall refer to this Class Action

Settlement Agreement.

29. Settlement Class and Settlement Class Members. For purposes of this Settlement

Agreement, the “Settlement Class” shall be defined as follows: “All employees and/or prospective

employees of Defendants within the United States who were the subject of a consumer report by

Defendants anytime between and including June 6, 2017, and November 25, 2019, inclusive, for the

Safeway Subclass, and February 20, 2018, and November 25, 2019, inclusive, for the Vons Subclass.”

“Settlement Class Members” shall mean those individuals who fall within either the “Safeway

Subclass” or the “Vons Subclass” (defined in Paragraphs 25 and 32, respectively), or both, and who

do not opt-out of the Settlement pursuant to Paragraph 48 below.

30. Settlement Expenses. “Settlement Expenses” means the reasonable fees, costs, and

expenses the Claims Administrator incurred or is anticipated to incur in performing the services

authorized in this Settlement Agreement for all court-approved tasks, including but not limited to: (a)

providing timely notice to state federal and state attorneys’ general pursuant to CAFA; (b) sending to

the putative class(es) by email and/or mail all notices; (c) establishing a website by which Settlement

Class Members can submit claims online, ask questions of the administrator, and elect to receive

payment electronically; (d) updating addresses for undeliverable mail and resending the notice; (e)

collecting and validating claim forms; (f) monitoring and collecting any opt-outs or requests for

exclusion; (g) reporting to the Parties regularly on the progress of the settlement; (h) sending a

reminder notice of the deadline(s) to submit claim forms and opt out of the settlement; (i) reporting to




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the Court, including preparation of required declarations; (j) establishing a qualified settlement fund;

(k) making payments to Settlement Class Members, the Plaintiff’s, and Class Counsel of court-

approved funds; (l) establishing an IVR call-center providing pre-recorded information regarding

relevant topics; and (m) issuing all required tax forms (e.g., 1099s) and providing all required tax

reporting. Except for the cost of providing timely notice to state federal and state attorneys’ general

pursuant to CAFA, which shall be paid separately by Defendants, all “Settlement Expenses” shall be

paid from the Gross Settlement Sum directly to the Claims Administrator, anticipated not to exceed

Eighty-Eight Thousand Dollars and Zero Cents ($88,000). Any overage of Settlement Expenses

beyond the anticipated amount of $88,000 shall require court approval, and be deducted from, or

credited against, the Gross Settlement Sum and shall cause a corresponding deduction to the Net

Settlement Sum.

31. Settlement Notice. “Settlement Notice” refers to a “Long Form Notice” substantially

in the form of Exhibit A and a “Summary Notice” substantially in the form of Exhibit B, to be directed

and/or sent to Settlement Class Members following the entry of the Preliminary Approval Order to

notify the Settlement Class of the Settlement and to explain the Settlement and Settlement Class

Members’ options, which is to be mutually agreed upon by the Parties and approved by the Court.

32. Vons Subclass. For purposes of this Settlement Agreement, the “Vons Subclass” shall

be defined as the following subclass of the Settlement Class: All employees and/or prospective

employees, if any, of The Vons Companies, Inc., including the banner or trade name Pavilions, Vons

Sherman Oaks, LLC, Safeway Southern California, Inc., and/or Safeway Leasing, Inc., within the

United States who were the subject of a consumer report anytime between and including February 20,

2018, and November 25, 2019, inclusive.

REPRESENTATIONS

33. Defendants hereby represent, based on Defendants’ diligence in investigating the

allegations in the Action, that the Settlement Class consists of approximately 151,152 individuals. If

the corroborated settlement classes combined number exceeds 151,152 by more than five percent

(5%), either Plaintiffs or Defendants may withdraw from the Settlement or further negotiate regarding

the terms of the Settlement Agreement to deal with the larger class.




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34. Defendants further represent that, on or about November 25, 2019, Defendants ceased

using the authorization and disclosure forms for employment purposes under the FCRA that certain

Plaintiffs challenge in the Action.

35. Defendants further represent that, prior to the date of this Settlement Agreement, it

provided Class Counsel with a copy of the revised authorization and disclosure form for employment

purposes under the FCRA that it presently uses and has used since November 25, 2019.

36. Inasmuch as Defendants’ intent in entering into this Settlement Agreement is to avoid

further litigation, on the date the motion for preliminary approval of the Settlement is filed with the

Court, Class Counsel and all other counsel of record for Plaintiffs in the Action, including PEIFFER

WOLF CARR & KANE, shall confirm in writing to Defendants’ Counsel that they do not currently

represent any other current or former employees of any of the Defendants for claims involving FCRA

or background check-related claims.

37. The Parties recognize that these representations set forth above in Paragraphs 33-36

are material terms of this Settlement Agreement.

TERMS AND CONDITIONS

38. NOW THEREFORE, in consideration of the promises and warranties set forth below,

and intending to be legally bound and acknowledging the sufficiency of the consideration and

undertakings set herein, Plaintiffs, individually and on behalf of the Settlement Class, on the one hand,

and Defendants, on the other hand, agree that the Action shall be, and is finally and fully compromised

and settled, on the following terms and conditions:

39. Non-Admission of Liability. The Parties enter into this Settlement Agreement to

resolve the dispute that has arisen between them and to avoid the burden, expense, and risk of

continued litigation. Plaintiffs, through Class Counsel, investigated the claims as alleged in the

Complaints in the Action, the Drew Action and the Gilman Action, and determined this settlement is

in the best interests of the classes as defined in those pleadings. In entering into this Settlement

Agreement, Defendants do not admit, and specifically deny, any wrongdoing; that they have violated

any federal, state or local law; violated any regulations or guidelines promulgated pursuant to any

statute or any other applicable laws, regulations or legal requirements; breached any contract; violated




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or breached any duty; engaged in any misrepresentation or deception; engaged in any other unlawful

conduct with respect to its applicants or employees; or the propriety of certifying a litigation class in

the Action, or any other proceeding. Neither this Settlement Agreement, nor any of its terms or

provisions, nor any of the negotiations connected with it, shall be construed as an admission or

concession by Defendants of any such violation(s) or failure(s) to comply with any applicable law.

Except as necessary in a proceeding to enforce the terms of this Settlement Agreement, this Settlement

Agreement and its terms and provisions shall not be used for any purpose whatsoever in any legal

proceeding, other than a proceeding to enforce the terms of the Settlement Agreement. In addition,

the Parties intend this Settlement to be contingent upon the preliminary and final approval of this

Settlement Agreement; and the Parties do not waive, and instead expressly reserve, their respective

rights to prosecute and defend this Action as if this Settlement Agreement never existed in the event

that the Settlement is not fully and finally approved on the terms precisely as set forth herein.

40. Release of Claims.

(a) As of the Final Effective Date, and except as to such rights or claims this

Settlement Agreement creates, Plaintiffs and all Settlement Class Members who have not timely and

properly opted-out of the Settlement shall be deemed to have forever and fully released all Released

Claims (defined above in Paragraph 23).

(b) The Parties agree for settlement purposes only that, because the Settlement

Class is so numerous, it is impossible or impracticable to have each Settlement Class Member execute

this Settlement Agreement. Accordingly, the Long Form Notice will advise all Settlement Class

Members of the binding nature of the release and such notice shall have the same force and effect as if

each Settlement Class Member executed the Settlement Agreement.

(c) Plaintiffs and Class Counsel represent, covenant, and warrant they have not

directly or indirectly assigned, transferred, encumbered or purported to assign, transfer, or encumber to

any person or entity any portion of any liability, claim, demand, action, cause of action, or rights herein

released and discharged, except as set forth herein.

(d) Full General Release of All Claims By Class Representatives. Class

Representatives have entered into a separate (non-confidential) General Release of All Claims with




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Defendants, and that separate agreement, which is Exhibit C hereto, is incorporated by reference. Class

Representatives expressly waive and relinquish the provisions, rights and benefits of section 1542 of

the California Civil Code and any comparable or analogous provision of any other state or local law,

statute or rule. Section 1542 states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

41. Individual Settlement Payments, Class Counsel’s Fees and Costs, Service Awards and

Settlement Expenses. Subject to final court approval and the conditions specified in this Settlement

Agreement, and in consideration of the mutual covenants and promises set forth herein and as set forth

in the General Release of All Claims (Exhibit C hereto), Defendants agree to make a total payment

under this Settlement Agreement not to exceed Two Million Three Hundred Thousand Dollars and

Zero Cents ($2,300,000.00) for the Settlement Class (i.e., the Gross Settlement Sum). The Gross

Settlement Sum includes payments to be made to Authorized Claimants, Class Counsel’s Fees and

Costs, the Service Awards to Plaintiffs, and Settlement Expenses (not including the cost of notice

pursuant to CAFA). Except as to the cost of notice pursuant to CAFA, Defendants shall not be required

to pay any amounts above the Gross Settlement Sum under this Settlement Agreement. The Parties

agree, subject to court approval, that the Gross Settlement Sum shall be apportioned as follows:

(a) At the Final Fairness Hearing, Class Counsel will seek approval from the Court

for an award of attorneys’ fees and costs in a reasonable amount. These attorneys’ fees and costs shall

come from and be deducted from the Gross Settlement Sum. Defendants do not intend to object to a

reasonable request for attorneys’ fees and costs and will defer entirely to the Court in assessing the

application for such fees and costs. Nevertheless, this Settlement is not conditioned upon Court

approval of attorneys’ fees and costs in any amount, and this Settlement Agreement shall remain in

full force and effect even if the Court declines to award attorneys’ fees in the amount requested by

Class Counsel, and/or awards a lesser amount than the amount requested by Class Counsel.




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(b) At the Final Fairness Hearing, Class Counsel will also apply to the Court for

Service Awards in the sum of Eleven Thousand Dollars and Zero Cents ($11,000.00) each to be paid

to each class representative. Defendants defer entirely to the Court in assessing the application for the

Service Awards. The Service Awards are included in, and shall come from, the Gross Settlement

Sum.

42. Calculation of Individual Settlement Payments. The payment to each Settlement Class

Member shall be a pro rata distribution from the Net Settlement Sum based on the total number of

Settlement Class Members who submit non-fraudulent, timely, and valid Claim Forms. The Claim

Form is intended to (1) give Class Members the option to elect between electronic payment or paper

checks; (2) confirm each Class Member’s standing to seek and obtain relief in federal court pursuant

to Article III of the United States Constitution (and thus require the Class Member to attest to being

confused by the disclosure forms and/or having been unaware that they were authorizing the

procurement of a consumer report); and (3) reduce the overall settlement administration costs and

thereby make more funds available to Class Members.

43. Tax Treatment of Service Award and Individual Settlement Payments. The Settlement

Administrator will issue an IRS Form 1099 for the amount of each Class Representative’s Service

Awards and to all Settlement Class Members for their Individual Settlement Payments to the extent

required by law.

(a) All Parties represent that they have not received, and shall not rely on, advice

or representations from other parties or their agents regarding the tax treatment of payments under

federal, state, or local law. In this regard, Defendants, Plaintiffs, and Class Counsel make no

representations regarding the taxability of the Individual Settlement Payments.

(b) Except as provided in Paragraph 41(a), each Party shall bear his, her, or its own

attorneys’ fees, costs, and expenses incurred in the prosecution, defense, or settlement of the Action.

44. Consent Order. Plaintiffs will not oppose a motion made by Defendants seeking a

consent order similar to the one in In Re Uber FCRA Litigation – Case No. 14-cv-5200 (N.D. Cal.),

and Defendants may, but are not required to, withdraw from the Settlement or further negotiate the

terms if the motion for a consent order is denied. The Motion for a Consent Order (“Motion”), if filed,




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shall be heard at the Final Fairness Hearing. Defendants agree to provide Class Counsel with a

reasonable opportunity to review, and provide comments on, the Motion at least five (5) calendar days

before the Motion is filed with the Court.

45. Notice Procedure.

(a) The Claims Administrator shall distribute the Settlement Notices and the

Individual Settlement Payments.

(b) The Settlement Notice procedure shall consist of (1) emailing the Summary

Notice to each Settlement Class member for whom an email address is available in the Defendants’

records; and (2) sending a postcard containing the Summary Notice to each Settlement Class Member

for whom the initial email was determined to be undeliverable or for whom Defendants do not have

an email address. The postcard containing the Summary Notice will instruct Settlement Class

Members to view the settlement website, which will contain the Long Form Notice, this Settlement

Agreement, the order granting preliminary approval of the settlement, and the Claim Form. The

Claim Form will allow Settlement Class Members to choose whether they would like to receive

payment by check, PayPal, or Apple Pay. The postcard containing the Summary Notice will also

inform Settlement Class Members of the IVR toll-free telephone number that the Claims Administrator

has set up to answer any questions.

(c) Prior to the dissemination of the Settlement Notices, the Claims Administrator

shall establish an Internet website that will inform Settlement Class Members of the terms of this

Settlement Agreement, their rights, dates and deadlines, and related information. The website shall

include, in .pdf format the following: (i) the Long Form Notice; (ii) the Claim Form; (iii) the

Preliminary Approval Order; (iv) this Settlement Agreement (including all of its Exhibits); (v) the

most recent Consolidated Class Action Complaint filed in the Action; and (vi) any other materials

agreed upon by the Parties and/or required by the Court. The Internet website shall provide Settlement

Class Members with the ability to submit a Claim Form electronically.

(d) Within seven (7) calendar days of the Court entering the Preliminary Approval

Order, Defendants shall provide to the Claims Administrator, and only the Claims Administrator, a

list of Settlement Class Members that identifies for each Settlement Class Member his/her name, email




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address, and address at the time a background report was requested. The list will also identify for each

Settlement Class Member whether the member is within the Safeway or Vons Subclass. Defendants’

Counsel agrees to consult with the Claims Administrator as required to provide the list in a format

reasonably acceptable. The Claims Administrator will not divulge this class list or information on this

list to Class Counsel or any other attorney representing Plaintiffs in this Action, other than the number

of Settlement Class Members in the class. The Claims Administrator will keep the list strictly

confidential, use it only for the purposes described herein, and take adequate safeguards to protect

confidential or private information. Should the Claims Administrator receive questions or inquiries

from Settlement Class Members regarding the Settlement, the Claims Administrator shall, in the first

instance, refer the Settlement Class Members to the Long Form Notice. If there are subsequent

questions or inquiries from the same Settlement Class Members, seeking information that is outside

the scope of the Long Form Notice, the Claims Administrator shall refer such Settlement Class

Members to Class Counsel.

(e) Within fifteen (15) calendar days of the Court entering the Preliminary

Approval Order, the Claims Administrator shall email the Summary Notice to each Settlement Class

Member. Defendants’ Counsel, Class Counsel, and the Claims Administrator collectively may correct

immaterial errors on the Summary Notice, Claim Form, or other emailed and mailed materials without

approval from the Court, provided the changes do not alter the preliminary approval by the Court.

(f) The Claims Administrator shall within three (3) business days mail a postcard

containing the Summary Notice with information on the Settlement and the settlement website

containing the Claim Form to each Settlement Class Member for whom the initial email was returned

with an undeliverable message, to the available mailing address for that Settlement Class Member. It

shall be conclusively presumed that those Settlement Class Members whose emailed Summary Notice

is not returned to the Claims Administrator as undeliverable within ten (10) calendar days after

emailing, actually received the Summary Notice.

(g) Settlement Class Members will have forty-five (45) calendar days from the

initial emailing of Summary Notice by the Claims Administrator to submit their claims or opt-out,

with proof of submission date being the date either form or notice was electronically submitted or




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postmarked. Settlement Class Members will also have forty-five (45) calendar days from the initial

emailing of the Summary Notice by the Claims Administrator to object to the Settlement in the manner

prescribed by Paragraph 49. Settlement Class Members must opt-out of the Settlement individua lly.

So-called “mass” or “class” opt outs, whether filed by third parties on behalf of a “mass” or “class” of

Settlement Class Members or multiple Settlement Class Members where no personal statement has

been signed by each and every individual Settlement Class Member, are not allowed and will have no

force or effect in this Action.

(h) For each mailed postcard containing the Summary Notice that is returned as

undeliverable, the Claims Administrator will use the National Change of Address database to attempt

to update the mailing address for the intended Settlement Class Member, and will send a postcard

containing the Summary Notice by U.S. first-class mail, postage prepaid, to each such Settlement

Class Member for whom it can obtain a valid mailing address from this database. That Settlement

Class Member will then have until the Bar Date or ten (10) calendar days after the Summary Notice

are re-mailed to submit their Claim Form, opt-out or object to the Settlement, whichever is later.

(i) Claim Forms that do not meet the requirements set forth in the Claim Form

instructions shall be rejected, though the Claims Administrator will give notice to the Class Member

of the deficiency and two weeks’ time to respond to any such deficiency if incomplete, not signed or

illegible in whole or in part. Where a good faith basis exists, the Claims Administrator may reject a

Settlement Class Member’s Claim Form for, among other reasons (including those set forth in the

Settlement Administration Protocol, attached hereto as Exhibit D), the following:

i. Failure to fully complete and/or sign the Claim Form;

ii. Illegible Claim Form;

iii. The person submitting the Claim Form is not a Settlement Class

Member;

iv. The Claim Form is fraudulent;

v. The Claim Form is duplicative of another Claim Form;

vi. The person submitting the Claim Form requests that payment be made

to a person or entity other than the Settlement Class Member for whom the Claim Form is submitted;




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vii. Failure to submit a Claim Form by the Bar Date; and/or

viii. The Claim Form otherwise does not meet the requirements of this

Settlement Agreement.

(j) The Claims Administrator shall determine whether a Claim Form meets the

requirements set forth in this Settlement Agreement. Each Claim Form shall be submitted to and

reviewed by the Claims Administrator, who shall determine (in accordance with this Settlement

Agreement and the Settlement Administration Protocol, attached hereto as Exhibit D) the extent, if

any, to which the claim shall be allowed. The Claims Administrator will give notice to the Class

Member of the deficiency and two weeks’ time to respond to any such deficiency.

(k) Claim Forms that do not meet the terms and conditions of this Settlement

Agreement, after the Class Member has been notified of the deficiency and given two weeks to correct

it, shall be promptly rejected by the Claims Administrator. The Claims Administrator shall have seven

(7) days from the Bar Date to exercise the right of rejection. The Claims Administrator shall notify

the Settlement Class Member using the contact information provided in the Claim Form of the

rejection. Class Counsel and Defendants’ Counsel shall be provided with copies of all such

notifications to Settlement Class Members. If any Settlement Class Member whose Claim Form has

been rejected, in whole or in part, desires to contest such rejection, the Settlement Class Member must,

within ten (10) calendar days from receipt of the rejection, transmit to the Claims Administrator by e-

mail or U.S. mail a notice and statement of reasons indicating the grounds for contesting the rejection,

along with any supporting documentation, and requesting further review by the Claims Administrator,

in consultation with Class Counsel and Defendants’ Counsel, of the denial of the Claim Form. If Class

Counsel and Defendants’ Counsel cannot agree on a resolution of the Settlement Class Member’s

notice contesting the rejection, the disputed Claim Form shall be presented to the Court or a referee

appointed by the Court for summary and non-appealable resolution.

(l) Ten (10) days before the Bar Date, the Claims Administrator will email a

reminder, or send a postcard if the email notice was not successful, in substantially the same form as

Exhibit G to any Settlement Class Member who has not submitted an opt-out or a Claim Form.




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(m) The Claims Administrator shall provide to the Court, no later than 60 days after

the initial notice emailing/mailing or forty (40) days before the Final Fairness Hearing, whichever

occurs later, a declaration confirming that the Settlement Notice and related forms were emailed and

mailed to all Class Members as required by this Settlement Agreement, the number of valid claims

submitted and the number of opt-outs and objections, as well as any additional information Class

Counsel deems appropriate to provide to the Court.

46. Claims-Made Nature of The Settlement. The Settlement will be on a claims-made basis,

meaning that the Parties agree, covenant, and represent that the Individual Settlement Payments shall

be distributed only to Authorized Claimants. Therefore, individual Settlement Class Members will be

entitled to receive an Individual Settlement Payment only if they do all of the following: (i) complete

the Claim Form in its entirety; (ii) electronically sign the Claim Form certifying that its contents are

true and correct; (iii) electronically submit through the settlement website or otherwise return the

Claim Form to the Claims Administrator with an electronic or postmarked submission date that is on

or before the Bar Date; and (iv) do not opt-out of the Settlement. Settlement Class Members who do

not submit a timely, complete, and valid Claim Form will not be entitled to any portion of the Net

Settlement Sum, but otherwise will be bound by the terms of this Settlement.

47. Claims Procedure.

(a) Upon receipt of any Claim Form within the Claim Submission Period, the

Claims Administrator shall review the Claim Form to verify the information contained therein, to

identify any concerns about a fraudulent claim form or deficiencies, and to determine the eligibility of

the person submitting the Claim Form to receive an Individual Settlement Payment. In the event that

a Claim Form is defective or incomplete, the Claims Administrator shall follow the process specified

above in Paragraph 45(k).

(b) In the event the Claims Administrator is unclear whether a deficiency exists

with a Claim Form, the Claims Administrator shall send (via email) to Class Counsel and Defendants’

Counsel a copy of the Claim Form to be reviewed. The Parties agree to work in good faith to determine

whether the Claim Form should be deemed valid or deficient.




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(c) Class Counsel shall not review or consider any Claim Form electronically

submitted or postmarked after the end of the Claim Submission Period, but Defendants shall be vested

with the discretion to permit distribution to Class Members for any Claim Form received after the end

of the Claim Submission Period. It shall be conclusively presumed that, if a Claim Form is not

electronically submitted or postmarked on or before the Bar Date, the Settlement Class Member did

not return the Claim Form in a timely manner. The only exception to this rule is if the postcard

containing information regarding the Settlement was mailed under the conditions set forth in

Paragraphs 45(f) and 45(h).

(d) Within four (4) calendar days after resolution of all deficient Claim Forms, the

Claims Administrator shall provide Class Counsel and Defendants’ Counsel with the number of

Settlement Class Members that filed claims, opt-out notices, and/or objections and the total amount of

all Individual Settlement Payments to be made to Authorized Claimants. After receiving the Claims

Administrator’s report, Class Counsel and Defendants’ Counsel shall jointly review the same to

determine if the calculation of payments to Claimants is consistent with this Settlement Agreement.

(e) Within ten (10) calendar days after resolution of all deficient Claim Forms, the

Claims Administrator shall provide Class Counsel and Defendants’ Counsel information for seeking

final approval of the Settlement Agreement, which shall include, inter alia: the date the Summary

Notices were emailed; the number of undeliverable emailed Summary Notices; the number of mailed

postcard Summary Notices; the number of Summary Notices that could not be mailed; and the number

of valid Claim Forms, opt-out requests, and objections.

48. Opt-Out Procedure and Binding Nature of This Settlement Agreement. The

Settlement Notice will inform Settlement Class Members that they have the right to opt-out of the

Settlement. The Settlement Notice shall provide the deadlines and procedures for exercising this right.

Settlement Class Members may elect to opt-out of the Settlement, relinquishing their rights to benefits

hereunder. Settlement Class Members who opt-out of the Settlement will not release their claims

pursuant to this Settlement Agreement. Settlement Class Members wishing to opt-out of the

Settlement must comply with one of the following: either (i) send a signed letter (by U.S. Mail –

address to be provided in the Settlement Notice) to the Claims Administrator including (a) their full




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name; (b) an email address and/or telephone number; (c) a clear statement communicating that they

elect to be excluded from the Settlement Class, do not wish to be a Settlement Class Member, and

elect to be excluded from any judgment entered pursuant to the Settlement; and (d) the case name and

case number; or (ii) complete and electronically submit the opt-out form available on the settlement

website. Any request for exclusion or opt-out must be postmarked or submitted on or before the Bar

Date. If transmitted by U.S. Mail, the date of the postmark on the return mailing envelope shall be the

exclusive means used to determine whether a request for exclusion has been timely submitted.

Settlement Class Members who fail to submit a valid and timely request for exclusion on or before the

Bar Date shall be bound by all terms of this Settlement Agreement and the Final Order and Final

Judgment, regardless of whether they have requested exclusion from the Settlement.

(a) The Claims Administrator shall promptly provide copies of all requests for

exclusion, objections, and/or related correspondence from Settlement Class Members to Class Counsel

and Defendants’ Counsel. Not later than five (5) business days after the deadline for submission of

requests for exclusion or opt-out, the Claims Administrator shall provide to Class Counsel and

Defendants’ Counsel a complete opt-out list together with copies of the opt-out requests. The Claims

Administrator shall have authority to resolve, in good faith, any disputes regarding the validity or

timeliness of an opt-out to the Settlement.

(b) No person shall have any claim against Defendants, Defendants’ Counsel

Plaintiffs, Class Counsel, the Settlement Class, and/or the Claims Administrator based on any

eligibility determinations, distributions, or awards made in accordance with this Settlement

Agreement. This provision does not affect or limit in any way the right of review by the Court or

referee of any disputed Claim Forms as provided in this Settlement Agreement.

49. Objections to Settlement. Any written objection to the Settlement must (i) clearly

identify the case name and number; (ii) be submitted to the Court by filing the written objection

through the Court’s Case Management/Electronic Case Files (“CM/ECF”) system, by mailing the

written objection to the Claims Administrator, the Class Action Clerk for United States District Court

for the Northern District of California, or by filing the written objection in person at any location of

the United States District Court for the Northern District of California; and (iii) be filed or postmarked




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before the end of the Objection Period. Only Settlement Class Members who do not opt-out may file

objections. To the extent a timely objection is withdrawn before final approval, such an objection

shall be treated as though no objection has been made.

50. Distribution of Settlement.

(a) Within two (2) business days after the Final Effective Date, the Claims

Administrator shall promptly provide written notice to Defendants’ Counsel and Class Counsel of the

number of Authorized Claimants, the total amount to be distributed to the Authorized Claimants, and

the pro rata amount each Authorized Claimant will receive.

(b) Within three (3) business days of receipt of the written notice described in

Paragraph 50(a) and wire instructions, Defendants shall remit to the Claims Administrator the Gross

Settlement Sum of $2,300,000.

(c) If approved by the Court, the Service Awards and Class Counsel’s Fees and

Costs shall be distributed by the Claims Administrator within twenty-one (21) calendar days after

remittance of the Gross Settlement Sum.

(d) Within twenty-one (21) calendar days after remittance of the Gross Settlement

Sum, the Claims Administrator will distribute one check or electronic payment to each Authorized

Claimant—each equal to a pro rata share of the Net Settlement Sum.

(e) The checks to Authorized Claimants shall be valid for one hundred and twenty

(120) calendar days. If an Authorized Claimant requests a check to be reissued within the 120-day

period, the Claims Administrator will, upon confirming that the Authorized Claimant’s check was

not cashed, reissue that Authorized Claimant’s check. Reissued checks will be valid until the later of

(1) the end of the 120th calendar day period that the initial check was issued or (2) forty-five (45)

calendar days after the date of the reissued check, whichever is later. To the extent any check is not

deposited or cashed within one hundred and twenty (120) calendar days or forty-five (45) calendar

days after the date of the reissued check, whichever is later, that amount shall be distributed either

(a) to the Authorized Claimants who have cashed checks on a pro rata basis in a secondary

distribution, or, if it is administratively infeasible to provide such a secondary distribution, (b) on a




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cy pres basis to a proposed cy pres recipient to be agreed to by the Parties at a later date and

approved by the Court.

(f) Provided Defendants have received both the signed General Release of All

Claims (Exhibit C hereto) and an executed IRS W-9 form from Plaintiffs, the Settlement

Administrator shall distribute the court-approved Service Awards to each Plaintiff within twenty -one

(21) calendar days after receipt of the Gross Settlement Sum.

(g) Provided Defendants have first received an IRS Form W-9 from Class Counsel,

and subject to court approval, payment of Class Counsel’s Fees and Costs shall be made by wire

transfer by the Claims Administrator to an account Class Counsel designates within twenty-one (21)

calendar days after receipt of the Gross Settlement Sum, provided Class Counsel first provides the

Claims Administrator the requisite wire transfer instructions. Upon payment of Class Counsel’s Fees

and Costs, Defendants shall have no other payment obligations owed to Class Counsel relating to this

case for any amount, individually or collectively, directly or indirectly, unless ordered by the Court,

including, by way of example and not by limitation, a motion to enforce the terms of this Settlement

Agreement. Defendants reserve the right to oppose any fee request made in connection with any

efforts to enforce the terms of this Settlement Agreement, including, but not limited to, any motion to

enforce the terms of this Agreement.

(h) Aside from the Settlement Expenses defined in Paragraph 30 above, and the

reasonable cost of notice pursuant to the CAFA, Defendants shall not be obligated to make any

payments contemplated by this Settlement Agreement unless and until the Court enters the Final Order

and Final Judgment, and after the Final Effective Date of the Settlement Agreement, and no amounts

will be owed or payable until any appeals or other collateral attacks have lapsed or have been favorably

resolved in favor of the Settlement and no further challenge to the Settlement is possible. The

Settlement Expenses will be paid in accordance with the terms of the agreement between Defendants

and the Claims Administrator.




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51. Preliminary Approval of Settlement.

(a) Plaintiffs shall file a motion in the Action requesting that the Court enter the

Preliminary Approval Order (as described in Paragraph 22). Plaintiffs shall propose the Preliminary

Approval Order in substantially the form attached as Exhibit E.

(b) Class Counsel shall provide Defendants’ Counsel with a reasonable opportunity

to review, and provide comments on, the motion for preliminary approval of the Settlement at least

seven (7) calendar days before the motion and supporting papers are filed with the Court.

(c) The Parties will cooperate in requesting a reasonable further stay of all related

actions, including Sullivan/Matthews, Drew and Gilman, as needed to prepare the Settlement

Agreement and Motion for Preliminary Approval of the Settlement Agreement, and to complete the

approval process necessary to obtain a Final Judgment. As a condition of Settlement, the Court must

stay each action while the Parties prepare the Settlement Agreement and Motion for Preliminary

Approval. The Parties shall not serve discovery, nor be required to respond to any written discovery

or deposition notices pursuant to Federal Rule of Civil Procedure 30(b)(6), and all objections are

reserved without prejudice.

52. Non-interference With Claims Procedure. The Parties and their counsel agree that they

shall not seek to solicit or otherwise encourage Settlement Class Members to submit requests for

exclusion or objections to the Settlement or to appeal from, attack or challenge the Final Order and

Final Judgment.

53. Final Approval of the Settlement. Plaintiffs will request, and Defendants will concur

in the request, that the Court enter, after the Final Fairness Hearing, the Final Approval Order and

Final Judgment in substantially the form attached as Exhibits F and H. Class Counsel shall draft the

proposed Final Approval Order in the form that is consistent with this Settlement Agreement, the

Court’s Order(s) and subject to Defendants’ Counsel’s prior review. Class Counsel shall provide

Defendants’ Counsel with a reasonable opportunity to review, and provide comments on, the Final

Approval Order of the Settlement at least five (5) calendar days before the motion and supporting

papers are filed with the Court. Plaintiffs shall timely file in advance of the Final Fairness Hearing a




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motion in the Action requesting that the Court enter the Final Approval Order (as described in

Paragraph 11).

54. Defendants’ Right to Terminate Settlement Agreement.

(a) If a total of two percent (2%) or more of the Settlement Class Members timely

opt-out of the Settlement, Defendants may, but are not required to, elect to void this Settlement

Agreement within fifteen (15) calendar days after notification by the Claims Administrator of the

number and identity of the total number of opt-out requests. Defendants shall provide written notice

of such withdrawal to Class Counsel. In the event that Defendants elect to so withdraw, the withdrawal

shall have the same effect as a termination of this Settlement Agreement for failure to satisfy a

condition of Settlement, and the Settlement Agreement shall become null and void ab initio and have

no further force or effect. In such event, Defendants will remain obligated to fund the Gross Settlement

Sum sufficiently to cover the reasonable and approved costs of the Settlement Notice and

administration up through the date of withdrawal. If Defendants terminate the Settlement Agreement,

or the Court denies final approval of the Settlement, the Parties agree to file a joint stipulation to amend

the complaint in Sullivan to revert back to the Consolidated Amended Class Action Complaint in

Sullivan (that is, prior to the amendment adding the Drew and Gilman plaintiffs and defendants) and

to resume litigation of the Drew and Gilman cases in their original venue.

55. This Settlement is expressly contingent upon resolution of the corresponding Class

Action Complaint in the matter styled No. 19-cv-00412-BLW, Jaci Hutto and Jennifer Melnyk,

individually and as representatives of the class v. Albertsons Companies, Inc., et al., originally filed

in the United States District Court for the District of Idaho, on the same terms. Defendants may elect

to void this Settlement Agreement if a final judgment approving the settlement of the Hutto action is

not entered by the United States District Court for the District of Idaho, this Court, or a similar court.

In such event, Defendants will remain obligated to fund the Gross Settlement Sum sufficiently to cover

the reasonable and approved costs of the Settlement Notice and administration up through the date of

withdrawal. The parties and counsel in Hutto will seek to have a Final Approval Hearing in Hutto at

or around the same time as the Final Approval Hearing in this Action.




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56. Representation of Opt-Outs. Class Counsel shall not solicit opt-outs and, if contacted,

shall inform Settlement Class Members that they are not able to represent them individually with

regard to the claims that are the subject of this litigation.

57. Public Statements. The Parties and their counsel agree not to make any statements,

directly or indirectly, to any media source or publicize or disclose this settlement, including on their

websites or on social media, prior to filing their Motion for Preliminary Approval of the Settlement

Agreement.

58. Waiver of Appeal. Subject to preliminary and final approval of this Settlement, on the

specific terms as agreed to by the Parties, and only as to those specific terms and no others, each Party

expressly waives its right to appeal.

59. CAFA Notices.

(a) No later than ten (10) calendar days after the filing of the motion for preliminary

approval of this Settlement (referenced in Paragraph 51 above), the Claims Administrator or another

entity chosen by Defendants, shall mail the notices required under the CAFA, 28 U.S.C. § 1715(a), to

the federal and all applicable state Attorneys General. This expense shall be borne entirely by

Defendants in addition to the Gross Settlement Sum.

(b) The Claims Administrator or another entity chosen by Defendants shall file with

the Court a certification of the date upon which the CAFA notices were served.

(c) Defendants agree to pay the additional reasonable cost, if any, of sending out

the CAFA notice, but the cost, if any, needs to be agreed upon by Defendants for approval before it is

incurred.

60. Option to Void Settlement Agreement If Settlement Not Finalized. If for any reason

the Settlement set forth in this Settlement Agreement is not approved by the Court, in whole or in part,

or if preliminary or final approval is not given in whole or in part, or a Final Judgment is not entered,

Plaintiffs or Defendants, or the Parties collectively, have the right to elect to nullify and void the

Settlement. In particular, Defendants may nullify and void the Settlement Agreement if any order of

the Court requires Defendants to pay more than the Gross Settlement Sum (not including the CAFA

notice expense provided in the preceding Paragraph). Should an election to nullify and void this




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Settlement be made, the orders, judgment, and dismissal to be entered under this Settlement

Agreement shall be vacated; the Parties will be returned to the status quo prior to entering into this

Settlement Agreement with respect to the Action, as if the Parties had never entered into this

Settlement Agreement. The Plaintiffs in the Drew and Gilman Actions shall dissolve the stay of those

actions filed in the Central District of California for settlement purposes. The Consolidated Amended

Complaint in the Action filed for settlement purposes shall be withdrawn, the Consolidated Complaint

filed on or about December 10, 2019 shall become the operative Complaint, the Motion for consent

decree withdrawn or the Order on the Motion for consent decree rendered void ab initio. In addition,

in such event, the Settlement Agreement and all negotiations, court orders, and proceedings relating

thereto shall be without prejudice to the rights of any and all Parties hereto, and evidence relating to

the Settlement Agreement and all negotiations shall not be admissible or discoverable in the Action or

otherwise. If the Settlement Agreement is voided, the Party voiding the Agreement remains obligated

to pay settlement and claim administration costs incurred up to that date. If the Parties collectively

void the Agreement, they will be obligated to share that expense equally (fifty percent (50%) borne

by Plaintiffs, and fifty (50%) borne by Defendants).

61. Invalidation of Settlement Agreement for Failure To Satisfy Conditions. The terms

and provisions of Paragraphs 1 through 74 of this Settlement Agreement are not recitals, but are

deemed to constitute contractual terms. In the event that any of the terms or conditions set forth in

Paragraphs 1 through 74 of this Settlement Agreement are not fully and completely approved by the

Court and satisfied, this Settlement Agreement shall terminate at the option of either Party, or both,

and all terms of the Settlement Agreement, including any payments by Defendants, shall be null and

void. Without limiting the generality of the foregoing, if this Settlement Agreement is terminated for

failure to satisfy any of the terms or conditions of Paragraphs 1 through 74 of this Settlement

Agreement:

(a) Defendants shall not be obligated to create or maintain any type of settlement

fund, and shall not be obligated to make any Individual Settlement Payment to any Settlement Class

Member, to any Authorized Claimant, to Class Counsel, or to Plaintiffs.




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(b) This Settlement Agreement and all negotiations, court orders, and proceedings

relating thereto shall be without prejudice to the rights of the Plaintiffs, Settlement Class Members

and Defendants, each of whom shall be restored to their respective positions existing prior to the

execution of this Settlement Agreement, and evidence relating to the Settlement Agreement and all

negotiations shall not be discoverable or admissible in the Action or any other litigation for any reason

of any kind whatsoever.

(c) Defendants will not have waived, and instead expressly reserve, their right to

challenge the continuing propriety of class certification for any purpose, and to raise any other defense

in the Action, and in the Drew and Gilman Actions, without exception of any kind whatsoever.

(d) This Settlement Agreement, the Preliminary Approval Order, nor any other

document in any way relating to any of the foregoing, shall be relied upon, referred to or used in any

way for any purpose in connection with any further proceedings in this Action or in any related action,

including class certification proceedings. The Parties agree and understand, however, that none of

these limitations apply to (a) any discovery conducted by either Party, and (b) any subsequent

information obtained by either Party in the normal course of discovery in this Action.

(e) The Party terminating the Agreement will be obligated to pay settlement and

claim administration costs incurred up to the date of termination. If the Parties collectively void the

Agreement, they will be obligated to share the settlement and claim administration expense equally

(fifty percent (50%) borne by Plaintiffs, and fifty (50%) borne by Defendants).

62. Notices. All notices, requests, demands and other communications required or

permitted to be given under this Settlement Agreement shall be in writing, and shall be delivered to

the attorneys listed in the caption above and to the Claims Administrator, by First Class Mail and e-

mail, unless otherwise specified or agreed to.

63. Modification in Writing. This Settlement Agreement may be altered, amended,

modified or waived, in whole or in part, only in a writing signed by all signatories to this Settlement

Agreement. This Settlement Agreement may not be amended, altered, modified or waived, in whole

or in part, orally.




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64. Ongoing Cooperation. Plaintiffs and Defendants and each of their respective counsel

shall execute all documents and perform all acts necessary and proper to effectuate the terms of this

Settlement Agreement. The executing of documents must take place prior to the Final Settlement

Hearing.

65. Binding on Successors. This Settlement Agreement shall be binding and shall inure to

the benefit of the Parties and their respective successors, assigns, executors, administrators, heirs, and

legal representatives.

66. Entire Agreement. This Settlement Agreement constitutes the full, complete, and entire

understanding, agreement, and arrangement between Plaintiffs and the Settlement Class Members on

the one hand and Defendants on the other hand with respect to the settlement of the Action and the

Released Claims against the Released Parties. This Settlement Agreement supersedes any and all prior

oral or written understandings, agreements, and arrangements between the Parties with respect to the

settlement of the Action and the Released Claims against the Released Parties. Except those set forth

expressly in this Settlement Agreement, there are no other agreements, covenants, promises,

representations or arrangements between the Parties with respect to the settlement of the Action and

the Released Claims against the Released Parties.

67. Execution in Counterparts. This Settlement Agreement may be signed in one or more

counterparts. Electronic signatures of this Agreement will not be accepted. All executed copies of

this Settlement Agreement, and photocopies thereof (including facsimile and/or electronic copies of

the signature pages), shall have the same force and effect and shall be as legally binding and

enforceable as the original.

68. Captions. The captions and paragraph numbers in this Settlement Agreement are

inserted for the reader’s convenience, and in no way define, limit, construe, or describe the scope or

intent of the provisions of this Settlement Agreement.

69. Governing Law. This Settlement Agreement shall be interpreted, construed, enforced,

and administered in accordance with the laws of the State of California, without regard to conflict of

law rules.




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70. Reservation of Jurisdiction. Notwithstanding the dismissal of this Action and entry and

filing of Final Judgment, the Court shall retain jurisdiction for purposes of interpreting and enforcing

the terms of this Settlement Agreement. Should any court in which this Action is pending lose

jurisdiction over the Action before this Settlement is fully and finally effectuated, the Parties agree

that it is their intent for the terms of this Agreement to be enforced, and agree that Plaintiffs will re-

file this Action, for settlement purposes only, in a mutually acceptable court of competent jurisdict ion,

if it has not already been remanded to such a court.

71. Mutual Preparation. The Parties have had a full opportunity to negotiate the terms and

conditions of this Settlement Agreement. Accordingly, this Settlement Agreement shall not be

construed more strictly against one Party than another merely by virtue of the fact that it may have

been prepared by counsel for one of the Parties, it being recognized that, because of the arm’s-length

negotiations between the Parties, all Parties have contributed to the preparation of this Settlement

Agreement.

72. Warranties and Representations. With respect to themselves, each of the Parties to this

Settlement Agreement and/or their agents or counsel represent, covenant, and warrant that (a) they

have full power and authority to enter into and consummate all transactions contemplated by this

Settlement Agreement and have duly authorized the execution, delivery, and performance of this

Settlement Agreement, and (b) the person executing this Settlement Agreement has the full right,

power, and authority to enter into this Agreement on behalf of the Party for whom he/she has executed

this Agreement, and the full right, power, and authority to execute any and all necessary instruments

in connection herewith, and to fully bind such Party to the terms and obligations of this Agreement.

73. Representation by Counsel. The Parties acknowledge that they each have been

represented by counsel throughout all negotiations that preceded the execution of this Agreement, and

that this Agreement has been executed with the consent and advice of counsel. Further, Plaintiffs and

Class Counsel warrant and represent that there are no liens on the Agreement, and that after entry by

the Court of the Final Judgment, Defendants may distribute funds to Authorized Claimants, Class

Counsel, and Plaintiffs as provided by this Agreement.


ROD M. FLIEGEL, Bar No. 168289 LITTLER MENDELSON, P.C ...

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Transcript of ROD M. FLIEGEL, Bar No. 168289 LITTLER MENDELSON, P.C ...