united states district court district of new … agreement and... · case 2:06-cv-04359-ccc-mf...
TRANSCRIPT
39480782v.3
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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JEFFREY BOUDER, et al., on behalf of themselves,
the general public, and all others similarly situated,
Plaintiffs,
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PRUDENTIAL FINANCIAL, INC., THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA,1 et al.,
Defendants.
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Civil Action No. 2:06-cv-4359
(CCC) (MF)
SETTLEMENT AGREEMENT
AND RELEASE REGARDING
CLASS AND COLLECTIVE
ACTION AND INDIVIDUAL
CLAIMS
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JIM WANG, individually and on behalf of all others
similarly situated,
Plaintiffs,
- vs -
PRUDENTIAL FINANCIAL, INC., THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA,1 DOES,
Defendants.
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Class Action Settlement Agreement and Release
This Class and Collective Action Settlement Agreement and Release, including Exhibits
A through D hereto (the “Settlement Agreement” or “Agreement”), is made and entered into by,
between and among Jeffrey Bouder, Vincent Cammisa, Tracy Chosa, John Costa, Joseph
Gawron, Michael Todd Hinchliffe, Ryan Holmes, Sandra King, Edward Lennon, Timothy
Munson, Christine Musthaler, Michele Otten, Goran Oydanich, Robert Paventi, Alan Scott Rudo,
Steven Song, Julie Stalla, Julie Sullivan, Alex Tejada, David Uchansky, Jason Persinger, and Jim
Wang (collectively, the “Named Plaintiffs”) individually on behalf of themselves, and as to some
of them as class representatives of the Classes (as defined below), as to some as Non-Deduction
1 Incorrectly referred to as “Prudential Insurance Co. of America” in the case caption.
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Wage Claimants (as defined below),2 and Defendants Prudential Financial, Inc. and The
Prudential Insurance Company of America, and its and their affiliated entities (“Prudential”).
The Named Plaintiffs, Opt-In Plaintiffs (as defined below), and Prudential are collectively
referred to as the “Parties.”
The Parties enter into this Agreement to effect a full and final settlement and dismissal
with prejudice of all claims of Settling Plaintiffs (as defined below) brought against Prudential in
the above-captioned action (the “Action,” further defined below), which were pled in the
Operative Complaint (as defined below), and/or claims related thereto. This Agreement is
intended fully and finally to compromise, resolve, discharge and settle the Action, as reflected
herein, subject to the approval of Court.
I. RECITALS AND NATURE OF THE LITIGATION
1. WHEREAS, on September 15, 2006, Plaintiffs Bouder, Brian C. Kennedy and
Carol Kennedy filed a Class Action Complaint asserting overtime claims under the Fair Labor
Standards Act (“FLSA”) and state law claims under the laws of the Commonwealth of
Pennsylvania (“Bouder”);
2. WHEREAS, on March 20, 2008, Jim Wang filed a wage and hour class and
collective action in the Southern District of California asserting overtime claims under the FLSA
and California state law, and, further alleging under California law that Prudential failed to
provide meal breaks and reimbursement for necessary business expenses (“Wang”), and
thereafter, on August 18, 2008, the Wang case was transferred to the District of New Jersey
2 Though Edward Lennon is not named as a Plaintiff in the Operative Complaint (as defined in text below),
he had been a plaintiff in pleadings filed prior to the filing of the Operative Complaint and had participated in
substantial discovery in the Action (as defined in text below), and, for convenience, is deemed included in the term
“Named Plaintiffs” as used herein, unless otherwise stated. Edward Lennon is further deemed an Opt-In Plaintiff
and by signing this Agreement, shall be deemed to have submitted a Qualifying Claim Form.
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where Bouder was pending and on September 16, 2008, the Wang and Bouder matters were
consolidated for all purposes in the Action;
3. WHEREAS, on March 27, 2008, the Court granted the plaintiffs’ motion for
conditional collective action certification of their overtime claims arising under the FLSA;
4. WHEREAS, on July 5, 2008, the FLSA opt-in period closed and approximately
285 plaintiffs with FLSA claims, in addition to all but one of the Named Plaintiffs, timely opted
into the Action and have not opted-out;
5. WHEREAS, on January 15, 2009, the Named Plaintiffs Bouder, Costa, Musthaler,
Song, Uchansky, Rudo, Holmes, Munson, Gawron, King, Sullivan, Otten, Cammisa, Oydanich,
Paventi, Hinchliffe, Persinger, Chosa, Stalla and Wang, as well as Edward Lennon, together with
Peter Shaw, Kelly Gallant and Christopher Briggs, filed a First Consolidated Amended
Collective and Class Action Complaint asserting overtime claims under the FLSA and state law
wage claims under the laws of California, Hawaii, Illinois, Indiana, Massachusetts, Michigan,
Missouri, Montana, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania and
Washington;
6. WHEREAS, on March 16, 2009, the Named Plaintiffs Bouder, Costa, Musthaler,
Song, Uchansky, Rudo, Holmes, Munson, Gawron, King, Sullivan, Otten, Cammisa, Lennon,
Oydanich, Paventi, Tejada, Stalla, Hinchliffe, Persinger, Chosa and Wang, as well as Edward
Lennon, together with Shaw, Gallant, Briggs, and Gerard Rousseau, filed a Second Consolidated
Amended Collective and Class Action Complaint asserting overtime claims under the FLSA and
state law wage claims under the laws of California, Hawaii, Illinois, Indiana, Massachusetts,
Michigan, Missouri, Montana, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania and
Washington;
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7. WHEREAS, on January 20, 2010, the Named Plaintiffs Bouder, Costa, Musthaler,
Song, Uchansky, Rudo, Holmes, Munson, Gawron, King, Sullivan, Otten, Cammisa, Oydanich,
Paventi, Tejada, Stalla, Hinchliffe, Persinger, Chosa and Wang, filed a Third Consolidated
Amended Collective and Class Action Complaint (the “Operative Complaint”), asserting
overtime claims under the FLSA and state law wage claims under the laws of California, Hawaii,
Illinois, Michigan, Missouri, Montana, Nevada, New Jersey, New York, Ohio, Oregon,
Pennsylvania and Washington;
8. WHEREAS, on February 15, 2010, Prudential moved for summary judgment
against the FLSA claims of Named Plaintiffs Bouder, Cammisa, Chosa, Costa, Gawron,
Hinchliffe, Holmes, King, Munson, Musthaler, Otten, Oydanich, Paventi, Rudo, Song, Stalla,
Sullivan, Tejada, Uchansky and Wang;
9. WHEREAS, on February 15, 2010, Prudential filed a motion to decertify the
conditionally certified collective action and to dismiss the claims of Opt-In Plaintiffs without
prejudice;
10. WHEREAS, on July 15, 2010, the Named Plaintiffs in the Operative Complaint
moved, pursuant to Federal Rule of Civil Procedure 23, for class certification of various state law
overtime and deductions claims arising under the laws of California, Hawaii, Illinois, Michigan,
Montana, New Jersey, New York, Ohio, Oregon, Pennsylvania and Washington on behalf of
current and former Statutory Agents, Prudential Representatives and Financial Services
Associates and their predecessor and successor positions, but did not seek certification of class
claims asserted under the laws of other states;
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11. WHEREAS, on August 31, 2010, the Court granted Prudential’s motion for
summary judgment against the said Named Plaintiffs’ FLSA claims, but did not rule on
Prudential’s motion to decertify the conditionally certified collective action;
12. WHEREAS, on January 18, 2013, the Court denied the said Named Plaintiffs’
motion for class certification of state law claims arising under the laws of California, Hawaii,
Illinois, Michigan, Montana, New Jersey, New York, Ohio, Oregon, Pennsylvania and
Washington on behalf of current and former Statutory Agents, Prudential Representatives and
Financial Services Associates and their predecessor and successor positions;
13. WHEREAS, by Orders dated July 22, 2013 and August 7, 2016, the Court granted
the said Named Plaintiffs’ motion for reconsideration and leave to file, no later than September
13, 2013, a renewed motion for class certification excluding Statutory Agents, consistent with
the Court’s ruling and comments in the January 18, 2013 ruling;
14. WHEREAS, on September 13, 2013, Named Plaintiffs Bouder, Costa, Holmes,
Munson, Musthaler, Paventi, Song, Tejada, Uchansky and Wang filed a renewed motion for
class certification asserting State Law Deductions Claims (as defined below) under the laws of
California, New York and Pennsylvania and state law overtime claims under the laws of
California, Illinois, New York and Pennsylvania, on behalf current and former Prudential
Representatives and Financial Services Associates;
15. WHEREAS, on January 14, 2015, the New Jersey Supreme Court decided
Hargrove v. Sleepy’s, LLC, 106 A.3d 449 (N.J. 2015), adopting the “ABC” test under New
Jersey wage and hour law for determining independent contractor status;
16. WHEREAS, on February 26, 2015, the Court granted Named Plaintiffs’ Bouder,
Costa, Holmes, Munson, Musthaler, Paventi, Song, Tejada, Uchansky and Wang motion for
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class certification as to the State Law Deductions Claims asserted under the laws of California,
New York and Pennsylvania but denied class certification of the overtime and derivative state
law claims under California, Illinois, New York and Pennsylvania law;
17. WHEREAS, in or around November 2015, in connection with Court ordered
mediation proceedings, the Named Plaintiffs advised Prudential of their intention to seek class
certification of the State Law Deductions Claims of current and former Statutory Agents under
the laws of California, Michigan, New Jersey, New York, Oregon, Pennsylvania and Washington,
and further claimed that under a choice of law provision in the Statutory Agent Agreement, New
Jersey law governed the independent contractor analysis in each of these states and that the
Named Plaintiffs could establish employee status for Statutory Agents under the “ABC” test
articulated in Hargrove;
18. WHEREAS, this Agreement is the product of lengthy negotiations over the course
of approximately eleven (11) months. These negotiations included two formal mediation
sessions before Martin Scheinman, Esq. The Parties held their first mediation session on May 18,
2016, and their second mediation session on September 26, 2016. During the more than 10 years
of litigating this Action, including prior to and during the mediations, Prudential provided Class
Counsel (as defined below) with extensive documentation relating to deductions that were
charged against or otherwise assessed against, and work weeks generated by, the Named
Plaintiffs, Class Members (as defined below), Opt-In Plaintiffs and Non-Deduction Wage
Claimants, for the various states and time periods. The Parties have exchanged tens of thousands
of documents and detailed information concerning the claims, defenses, and alleged damages at
issue that were carefully reviewed by counsel for the parties, including the submission of expert
reports, and took or defended dozens of depositions throughout the United States, including
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expert testimony. The mediations resulted in a preliminary Memorandum of Understanding
(“MOU”) for a settlement in principle, subject to and contingent upon execution of a final
settlement agreement. At all times, the settlement negotiations have been intensely contested,
adversarial, non-collusive, and at arm’s length;
19. WHEREAS, in the Operative Complaint, the Named Plaintiffs generally alleged
that: (1) Prudential misclassified them and all similarly situated agents as exempt employees who
are not entitled to overtime wages under either the FLSA and/or various state laws; (2)
Prudential misclassified all current or former Statutory Agents as independent contractors rather
than employees; (3) Prudential violated various state laws by making purportedly improper
deductions from the wages or pay of the Named Plaintiffs and Class Members which allegations
form the basis of the State Law Deductions Claims (as defined below); (4) Prudential violated
the law of California by failing to reimburse (or otherwise charging) some of the Named
Plaintiffs and Class Members for necessary business expenses; (5) Prudential violated various
state laws by failing to make timely wage payments to some of the Named Plaintiffs, Class
Members and Non-Deduction Wage Claimants upon the termination of their association with
Prudential; and (6) Prudential violated California meal and rest break laws, all of which
foregoing allegations are more completely set forth in their entirety by the Named Plaintiffs in
the Operative Complaint;
20. WHEREAS, Named Plaintiffs firmly believe that in addition to the State Law
Deductions Claims that have already been certified by the Court under Federal Rule of Civil
Procedure 23, and based upon the more recent decision of the New Jersey Supreme Court in
Hargrove, described above, that Named Plaintiffs would be able to certify additional State Law
Deductions Claims, including State Law Deductions Claims on behalf of Statutory Agents,
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although Named Plaintiffs also acknowledge that there is a significant risk that further classes
might not be certified and that there is also a risk that the currently certified classes could be
decertified;
21. WHEREAS, Prudential disputes all of the Named Plaintiffs’ claims and denies the
allegations in the Operative Complaint; denies that it has engaged in any wrong doing; and
further: (1) denies that any Named Plaintiff, Opt-In Plaintiff, Class Member or Non-Deduction
Wage Claimant was misclassified as exempt from overtime under the FLSA or any applicable
state law and affirmatively avers all such individuals are not similarly situated to one another and
are or were correctly classified as outside salespersons under applicable law, consistent with
prior rulings of this Court; (2) denies that any Named Plaintiff, Opt-In Plaintiff, Class Member,
or Non-Deduction Wage Claimant, who holds or held the position of Statutory Agent, were ever
employees of Prudential during their tenure as a Statutory Agent or that they were misclassified
as independent contractors under all applicable state laws, and affirmatively avers all such
individuals are not similarly situated to one another and all such individuals were and are
correctly classified as independent contractors under applicable laws; (3) denies any liability for
State Law Deductions Claims or that it unlawfully made deductions from the wages of any
Named Plaintiff or Class Member; (4) denies that any Named Plaintiff or Class Member working
in California is owed payment for any necessary business expenses; (5) denies that any Named
Plaintiff, Class Member or Non-Deduction Wage Claimant has not received proper and timely
payments upon separation from Prudential; and (6) denies that the Named Plaintiffs and Class
Members have legitimate claim(s) for violation of California’s meal and rest break laws. Finally,
Prudential denies that New Jersey wage and hour law applies to the determination of whether
current or former Statutory Agents are independent contractors in states other than New Jersey;
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22. WHEREAS, Prudential denies that additional litigation classes could be certified
under Rule 23 of the Federal Rule of Civil Procedure with respect to any State Law Deductions
Claim or other wage claim, including without limitation, claims that Named Plaintiffs, Class
Members or Non-Deduction Wage Claimants were misclassified as independent contractors or as
exempt from overtime pay under any applicable state or local law, Prudential also acknowledges
that there is a risk that the presently certified classes would continue to be certified throughout
the litigation and that there is a risk that additional State Law Deductions Claims could be
certified in addition to the presently certified classes. Prudential also denies that this action
would be manageable if it were to proceed to trial on a class basis and affirmatively states that
the number of state laws at issue, and individual inquiries required, would preclude any finding
of manageability were the litigation continue.
23. WHEREAS, the Parties are entering into this Agreement solely for the purpose of
settling the claims of Named Plaintiffs, Class Members, Opt-In Plaintiffs and Non-Deduction
Wage Claimants, and to eliminate the uncertainties, burden, expense and delay of further
protracted litigation with respect to such claims;
24. WHEREAS, the Named Plaintiffs, Opt-In Plaintiffs and Class Counsel are
sufficiently familiar with the facts of this case and the applicable federal and state laws to make
an informed judgment as to the fairness of this Agreement and the Named Plaintiffs, Opt-In
Plaintiffs and Class Counsel based on their own independent investigations and evaluations have
examined the benefits to be obtained under the terms of this Agreement, have considered the
claims of the Named Plaintiffs, Class Members, Non-Deduction Wage Claimants, and Opt-In
Plaintiffs, the risk associated with the continued prosecution of the Action and the likelihood of
success on the merits of the Action, and believe, after considering all the circumstances,
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including uncertainties surrounding the risk of further litigation, that this Agreement is fair,
reasonable, and adequate and in the best interests of the Named Plaintiffs, Class Members, Non-
Deduction Wage Claimants, and Opt-In Plaintiffs, and respectfully request that this Agreement
be approved by the Court;
25. WHEREAS, the Parties desire to settle fully and finally all differences between
them and any and all claims that were or could have been brought against Prudential in the
Operative Complaint, and to dismiss the Action with prejudice;
26. NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, and to avoid the risk, inconvenience
and expense of litigation and without any admission of fault or liability on the part of any party
hereto or the absence of merit in any claim being asserted by the Named Plaintiffs and Opt-In
Plaintiffs;
IT IS HEREBY AGREED by and between the Parties as follows:
II. THE CONDITIONAL NATURE OF THIS AGREEMENT
1. This Agreement, including all Exhibits hereto, is made for the sole purpose of
attempting to consummate Settlement of this Action. Because the Named Plaintiffs pled the
Action as a class action, and included claims under the FLSA, and because this Settlement, to the
extent set forth herein, is made on a class action basis and seeks to settle those FLSA claims, this
Agreement must receive preliminary and final approval by the Court. Accordingly, the Parties
enter into this Agreement on a conditional basis pending preliminary and final approval of the
Agreement by the Court.
2. Named Plaintiffs and the Opt-In Plaintiffs continue to assert the merit of all of
their claims relating to overtime and State Law Deductions Claims asserted in this Action and
that Prudential is subject to liability, damages, penalties, interest, fees, restitution and all other
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forms of relief as well as for all the class and collective allegations and the individual claims
asserted in the Operative Complaint. In contrast, Prudential denies the merit of all of the claims
asserted in this Action and denies all liability, damages, penalties, interest, fees, restitution and
all other forms of relief as well as all of the class and collective allegations and the individual
claims asserted in the Operative Complaint.
3. The Parties have agreed to resolve all claims against Prudential in this Action by
way of this Agreement; but to the extent this Agreement is deemed void or the Settlement
Effective Date (as defined below) does not occur, the Parties do not waive, but rather expressly
reserve, all rights to assert or challenge all claims and allegations in the Action upon all
procedural, legal and factual grounds, including without limitation on the grounds of timeliness,
statutes of limitation, and waiver, and further retain the ability to support or challenge class or
collective action treatment, or individual claims, on any grounds whatsoever and/or to assert any
and all claims or defenses and privileges to the same extent as if this Agreement had not been
reached. Further, to the extent this Agreement is deemed void or the Settlement Effective Date
does not occur, this Agreement shall be deemed null and void, shall be of no force or effect
whatsoever, shall not be referred to or used for any purpose whatsoever, and the negotiation,
terms and entry of this Agreement shall remain subject to the provisions of Federal Rule of
Evidence 408, any and all statutes of a similar nature, including the mediation privilege.
4. Should this Agreement be deemed void or the Settlement Effective Date not occur,
the Named Plaintiffs, the Opt-In Plaintiffs and Class Counsel agree that all Parties retain and
reserve the rights set forth in Section II, Paragraphs 2 to 3, above, and further agree not to take a
position to the contrary in this Action, or any other action, proceeding or litigation of any kind.
The Named Plaintiffs, the Opt-In Plaintiffs and Class Counsel agree not to argue, and hereby
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waive any argument, that Prudential could not contest class or collective action certification or
that Prudential must proceed collectively on any ground or claim if the Action were to proceed in
litigation and further agree that nothing contained in this Agreement constitutes evidence of or an
admission that class or collective action certification may be appropriate or evidence as to
liability on any substantive claim asserted in this Action, whether asserted as a class or collective
action or an individual claim.
5. Should this Agreement be deemed void or the Settlement Effective Date not occur,
Prudential agrees that all Parties retain and reserve the rights set forth in Section II, Paragraphs 2
to 3, above, and further agrees not to take a position to the contrary in this Action, or any other
action, proceeding or litigation of any kind. Prudential agrees not to argue, and hereby waives
any argument, that the Named Plaintiffs or Opt-In Plaintiffs are precluded from making
arguments in support of class or collective action certification or that the Named Plaintiffs and
the Opt-In Plaintiffs could not argue they are entitled to proceed collectively on any ground or
claim if the Action were to proceed in litigation, and further agrees that nothing in this
Agreement constitutes evidence of or an admission that class or collective action certification
may not be appropriate or otherwise as to liability on any substantive claim asserted in this
Action, whether asserted as a class or collective action or as an individual claim.
III. DEFINITIONS
1. In addition to the terms defined elsewhere in this Agreement, the following terms,
as used in all parts of this Agreement, shall have the meanings specified below:
1.1 “Action” means the consolidated action that is the subject of this
Settlement Agreement, to wit: Jeffrey Bouder, et al., on behalf of themselves, the
general public, and all others similarly situated, vs. Prudential Financial Inc., The
Prudential Insurance Company of America, et al., and Jim Wang, individually and on
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behalf of all others similarly situated, vs. Prudential Financial Inc., The Prudential
Insurance Company of America, et al., Case No. 06-cv-4359 (CCC) (MF), U.S.D.C.
(D. N.J.).
1.2 “Adjusted Work Week(s)” means the number of work weeks during
which a Participating Claimant (as defined below) held the position of Prudential
Representative, Financial Services Associate, Financial Professional Associate,
Statutory Agent or any predecessor, successor or related positions during the
applicable Settlement Class Periods (as defined below) (“work weeks”), multiplied by
such Participating Claimant’s settlement category, as provided below in Section V of
this Agreement, and, more particularly, in Paragraph 11, Subparagraphs 11.1 and 11.2,
thereof.
1.3 “Asserted Claim(s)” means all claims asserted in the Operative
Complaint and their associated allegations and prayer for relief, including, without
limitation, claims asserted on a class and collective basis.
1.4 “Certified Deductions Class(es)” means the classes certified by the
Court in this Action in the Settling States (as defined below) of California, New York
and Pennsylvania.
1.5 “Certified Deductions Class Member(s)” means any member of the
Certified Deductions Classes. Specifically, this includes any agent who holds or held
the position of Prudential Representative, Financial Services Associate, Financial
Professional Associate, or any predecessor, successor or related positions in the
Settling States of California and New York or who held the position of Prudential
Representative, or any predecessor, successor or related positions, in the Settling
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State of Pennsylvania during the applicable Settlement Class Periods, which are as
follows:
a. With respect to the Certified Deductions Class Members asserting
claims under California law, March 20, 2004, through the date the
Court enters its order granting Preliminary Approval of this
Agreement;
b. With respect to the Certified Deductions Class Members asserting
claims under New York law, December 15, 2002, through the date the
Court enters its order granting Preliminary Approval of this
Agreement;
c. With respect to the Certified Deductions Class Members asserting
claims under Pennsylvania law, September 15, 2003, through the date
the Court enters its order granting Preliminary Approval of this
Agreement.
1.6 “Certified Deductions Class Members’ Released Claim(s)” means any
and all past and present claims, actions, demands, causes of action, suits, debts,
obligations, damages, rights or liabilities of any nature and description whatsoever,
known or unknown, existing or potential, recognized now or hereafter, expected or
unexpected pursuant to any theory of recovery (including but not limited to those
based in or brought pursuant to contract or tort, common law or equity, federal, state,
or local law, statue, ordinance, or regulation and for claims for compensatory,
consequential, punitive or exemplary damages, statutory damages, penalties, interest,
attorneys’ fees, costs, or disbursements) against Releasees (as defined below), that are
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based on or are related to the claims asserted in the Operative Complaint, and
specifically including, without limitation, all rights to appeal earlier rulings by the
Court in this matter, unknown claims covered by California Civil Code Section 1542,
as quoted below, claims for fees or costs incurred by Class Counsel or any other
counsel representing the Named Plaintiffs or Certified Deductions Class Members,
other than those expressly awarded by the Court, and all State Law Deductions
Claims, state law overtime claims and all other wage claims, of any kind, including
those wage claims asserted under the state laws of California, New York and
Pennsylvania, including, without limitation, Cal. Labor Code §§ 201-204, 210, 218.5,
218.6, 221, 223, 224, 225.5, 226, 226.7, 406, 407, 510, 512, 515, 516, 558, 558.1,
1182.12, 1194, 1194.2, 1194.3, 1197, 1197.1, 1197.2, 1198, 2802; 8 CCR § 11040;
Cal. Bus. & Prof. Code §§ 17200, et seq.; NYCRR § 142-2.2 and New York Labor
Law Article 19 at 650, et seq., New York Labor Law § 193; the Pennsylvania Wage
Payment and Collection Law 43 P.S. 260.1 et seq., 260.3, 260.5, and 260.10;
Pennsylvania Minimum Wage Act, 43 P.S. 333.101, et seq., 43 P.S. 231.41; 42
Pa.C.S.A. § 5527; and all other state law wage related claims asserted in the
Operative Complaint. The Certified Deductions Class Members’ Released Claims
include, without limitation, claims meeting the above definition(s) under any and all
applicable state law statutes based on the facts or claims alleged in the Operative
Complaint, and are hereby released to the fullest extent permitted by law, regardless
of the forum.
1.7 “Claim/Exclusion/Objection Deadline” means the final date by which
any Class Member may (i) object to any aspect of the Settlement (pursuant to the
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Preliminary Approval Order) or (ii) request to be excluded from the Settlement
(pursuant to the Preliminary Approval Order), and (iii) the final date by which a Class
Member, Opt-In Plaintiff or Non-Deduction Wage Claimant may request to be
included in the Settlement (pursuant to the Preliminary Approval Order). The
Claim/Exclusion/Objection Deadline shall be sixty (60) days after the Notice Mailing
Deadline (as defined below), and shall be specifically identified and set forth in the
Preliminary Approval Order and Class Notice.
1.8 “Claim Form” means the form through which Opt-In Plaintiffs, Class
Members and Non-Deduction Wage Claimants may request to participate in the
Settlement. The proposed Claim Form is attached hereto as Exhibit A. The Claim
Form shall also advise Notice Recipients (as defined below) that claims may be filed
electronically at PFIclassactionsettlement.com, in a form substantially similar to the
Claim Form attached hereto as Exhibit A.
1.9 “Claims Administrator” means the third-party claims administration
firm, The Garden City Group, Inc.
1.10 “Class Counsel” means, collectively, all of the counsel so
appointed by the Court in the Action, to wit: Lead Class Counsel Lovell Stewart
Halebian Jacobson LLP, John Halebian, 420 Lexington Avenue, Suite 2400, New
York, New York 10170; Liaison Counsel Winne, Banta, Basralian & Kahn, P.C.,
Kenneth Kaufmann Lehn, Court Plaza South - East Wing, Suite 101, 21 Main Street,
P.O. Box 647, Hackensack, New Jersey 07602; the Executive Committee comprised
of Jerry K. Cimmet, Attorney at Law, 177 Bovet Road, Suite 600, San Mateo, CA
94402; Law Offices of John M. Kelson, John M. Kelson, 483 Ninth Street, Suite 200,
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Oakland CA 94607; and Kessler Topaz Meltzer & Check, LLP, Peter Muhic, 280
King of Prussia Road, Radnor, PA 19087.
1.11 “Class(es)” means the Certified Deductions Classes and
Deductions Classes (as defined below).
1.12 “Class Member(s)” means a member of the Classes.
1.13 “Class Notice” means the long-form Court-approved notice,
without material variation from Exhibit B.
1.14 “Court” means the United States District Court for the District of
New Jersey.
1.15 “Covered Agent” means Notice Recipients who work or worked
for Prudential in the position of Prudential Representative, Statutory Agent, Financial
Services Associate, Financial Professional Associate or any successor, predecessor or
related positions during the Settlement Class Periods.
1.16 “Cure Letter” means a letter that will be sent by the Claims
Administrator to (i) any Class Member who submits a defective Exclusion Request
(as defined below) identifying for such Class Member what corrections must be made
to cure the defective request and to make it a Qualifying Exclusion Request (as
defined below) or (ii) any Opt-In Plaintiff, Non-Deduction Wage Claimant or Class
Member who submits a defective Claim Form, which identifies for such Opt-In
Plaintiff, Non-Deduction Wage Claimant or Class Member what corrections must be
made to cure the defective form and to make it a Qualifying Claim Form (as defined
below).
1.17 “Day(s)” means calendar days unless otherwise indicated.
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1.18 “Deductions Class(es)” means the classes to be certified for
purposes of settlement by the Court in this Action in the Settling States (as defined
below) of California, Hawaii, Illinois, Michigan, New Jersey, New York, Oregon,
Pennsylvania and Washington.
1.19 “Deductions Class Member(s)” means any member of the
Deductions Classes. Specifically, this includes any agent asserting State Law
Deductions Claims in this Action, (i) who hold or held the position of Prudential
Representative, Financial Services Associate, Financial Professional Associate,
Statutory Agent or any predecessor, successor or related positions, in the Settling
States of Hawaii, Illinois, Michigan, New Jersey, Oregon and Washington during the
applicable Settlement Class Periods, or (ii) who hold or held the position of Financial
Services Associates, Statutory Agent or predecessor, successor or related positions in
the Settling State of Pennsylvania during the applicable Settlement Class Periods, or
(iii) who hold or held the position of Statutory Agent or predecessor, successor or
related positions in the Settling States of California and New York during the
applicable Settlement Class Periods, which are as follows:
a. With respect to the Deductions Class Members asserting claims under
California law, March 20, 2004, through the date the Court enters its
order granting Preliminary Approval of this Agreement;
b. With respect to the Deductions Class Members asserting claims under
Hawaii law, December 15, 2002, through the date the Court enters its
order granting Preliminary Approval of this Agreement;
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c. With respect to the Deductions Class Members asserting claims under
Illinois law, December 15, 2003, through the date the Court enters its
order granting Preliminary Approval of this Agreement;
d. With respect to the Deductions Class Members asserting claims under
Michigan law, December 15, 2002 through the date the Court enters its
order granting Preliminary Approval of this Agreement;
e. With respect to the Deductions Class Members asserting claims under
New Jersey law, December 15, 2002, through the date the Court enters
its order granting Preliminary Approval of this Agreement;
f. With respect to the Deductions Class Members asserting claims under
New York law, December 15, 2002, through the date the Court enters
its order granting Preliminary Approval of this Agreement;
g. With respect to the Deductions Class Members asserting claims under
Oregon law, December 15, 2002, through the date the Court enters its
order granting Preliminary Approval of this Agreement;
h. With respect to the Certified Deductions Class Members asserting
claims under Pennsylvania law, September 15, 2003, through the date
the Court enters its order granting Preliminary Approval of this
Agreement.
i. With respect to the Deductions Class Members asserting claims under
Washington law, December 15, 2005, through the date the Court
enters its order granting Preliminary Approval of this Agreement.
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1.20 “Deductions Class Members’ Released Claim(s)” means any
and all past and present claims, actions, demands, causes of action, suits, debts,
obligations, damages, rights or liabilities of any nature and description whatsoever,
known or unknown, existing or potential, recognized now or hereafter, expected or
unexpected pursuant to any theory of recovery (including but not limited to those
based in or brought pursuant to contract or tort, common law or equity, federal, state,
or local law, statue, ordinance, or regulation and for claims for compensatory,
consequential, punitive or exemplary damages, statutory damages, penalties, interest,
attorneys’ fees, costs, or disbursements) against Releasees, that are based on or are
related to the claims asserted in the Operative Complaint, and specifically including,
without limitation, all rights to appeal earlier rulings by the Court in this matter,
unknown claims covered by California Civil Code Section 1542, as quoted below,
claims for fees or costs incurred by Class Counsel or any other counsel representing
the Named Plaintiffs or Deductions Class Members, other than those expressly
awarded by the Court, and all State Law Deductions Claims, state law overtime
claims and all other wage claims, of any kind, including those wage claims asserted
under the state laws of California, Hawaii, Illinois, Michigan, New Jersey, New York,
Oregon, Pennsylvania and Washington, including, without limitation, Cal. Labor
Code §§ 201-204, 210, 218.5, 218.6, 221, 223, 224, 225.5, 226, 226.7, 406, 407, 510,
512, 515, 516, 558, 558.1, 1182.12, 1194, 1194.2, 1194.3, 1197, 1197.1, 1197.2, 1198,
2802; 8 CCR § 11040; Cal. Bus. & Prof. Code §§ 17200, et seq.; Hawaii Revised
Statutes §§ 388-6, 388-3, 388-10; Illinois Minimum Wage Act, 820 ILCS 105/4a,
105/12(a), 115/5,115/9, 120/2, 120/3; Michigan Compiled Laws at §§ 408.475,
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408.477(1), 408.478, 408.888; New Jersey State Wage and Hour Law, N.J.S.A. §§
34:11-56a through 34:11:56a30 and §34:11-4.4; New Jersey Admin. Code § 12:56-
6.1; NYCRR § 142-2.2 and New York Labor Law Article 19 at 650, et seq., New
York Labor Law § 193; Oregon Administrative Rule 839-020-0030; Oregon Revised
Statutes 652.140(1), 652.140(2), 652.150, 653.261(1), 652.610(3), and implementing
regulations; the Pennsylvania Wage Payment and Collection Law 43 P.S. 260.1 et
seq., 260.3, 260.5, and 260.10; Pennsylvania Minimum Wage Act, 43 P.S. 333.101, et
seq., 43 P.S. 231.41; 42 Pa.C.S.A. § 5527; the Washington Minimum Wage Act,
RCWA 49.46.130, 49.48.010, 49.52.050; and all other state law wage related claims
asserted in the Operative Complaint. The Deductions Class Members’ Released
Claims include, without limitation, claims meeting the above definition(s) under any
and all applicable state law statutes based on the facts or claims alleged in the
Operative Complaint, and are hereby released to the fullest extent permitted by law,
regardless of the forum.
1.21 “District Court Final Approval Order” means a Judgment
entered upon order of the District Court, substantially in the form of Exhibit C, which
is Final and approves the Settlement and this Settlement Agreement in all respects.
1.22 “Enhancement Payment(s)” means the amount approved by the
Court to be paid to each Named Plaintiff, in addition to their respective payments
under the Settlement Formula (as defined below), and in addition to their respective
Incentive Award payments (as defined below), if any, in recognition of their efforts in
coming forward as Named Plaintiffs and in insuring the continued prosecution of the
litigation. Enhancement Payments shall be considered non-wages for which an IRS
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Form 1099 will be issued to each of the Named Plaintiffs. The Claims Administrator
shall not disburse any Enhancement Payment to any Named Plaintiff unless and until
the particular Named Plaintiff has provided the Claims Administrator with the
appropriate IRS Form W-9 for such allocation.
1.23 “Escrow Agent” means Garden City Group, the entity mutually
agreed upon by Class Counsel and Prudential to maintain the Settlement Fund (as
defined below), in accordance with the terms of this Agreement.
1.24 “Exclusion Request” is the request through which Class Members
may request exclusion from the Settlement Class.
1.25 “Fairness Hearing” means the hearing at or after which the Court
will make a final decision pursuant to Federal Rule of Civil Procedure Rule 23 as to
whether this settlement is fair, reasonable, and adequate and therefore finally
approved by the Court, and enter Judgment.
1.26 “Fee and Expense Award” means the attorneys’ fees and costs as
awarded by the Court to Class Counsel and as further described below in Section V,
Subparagraph 3.1.
1.27 “Final” means, when referring to a judgment or order, that the
judgment or order is final and appealable and either (a) no appeal, motion, or petition
to review or intervene has been taken with respect to the judgment or order as of the
date on which all times to appeal, move, or petition to review or intervene therefrom
have expired, or (b) if an appeal, motion or petition to intervene or other review
proceeding of the judgment or order has been commenced, such appeal, motion or
petition to intervene or other review is finally concluded and no longer is subject to
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review by any court, whether by appeal, petitions for rehearing or re-argument,
petitions for rehearing en banc, petitions for writ of certiorari or otherwise, and such
appeal or other review has been finally resolved in such manner that affirms the
judgment or order in its entirety.
1.28 “Gross Settlement Amount” means the amount that Prudential
shall deposit into the Settlement Fund. Interest will accrue for the benefit of any
Participating Claimant after the Preliminary Approval Date (“Settlement Fund
Interest”) and, assuming the Settlement Effective Date occurs, shall be allocated to
the Net Settlement Amount (defined below). The potential settlement amounts for
each Participating Claimant shall be re-calculated accordingly to account for such
additional funds. In the event that the Settlement is not approved or otherwise does
not become Final, any interest accrued prior to the Court’s decision denying approval
of the Settlement or the date of any decision that precludes the Judgment from
becoming Final, shall belong to Prudential. The Gross Settlement Amount shall be
Twelve Million Five Hundred Thousand Dollars and Zero Cents ($12,500,000.00).
1.29 “Incentive Award(s)” means the amount approved by the Court to
be paid to each Named Plaintiff who has consented to participate in the collective
action in this Action as a party plaintiff by timely filing an Opt-In Consent Form or to
an Opt-In Plaintiff who becomes a Participating Claimant, not to exceed the amount
of $250.00, in addition to their respective payments under the Settlement Formula in
recognition of their efforts in having opted into the conditionally certified FLSA
collective action. Incentive Awards shall be considered non-wages for which IRS
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Form 1099 will be issued to each of the Named Plaintiffs and participating Opt-In
Plaintiffs.
1.30 “Judgment” means the judgment to be rendered by this Court
finally approving this Agreement and dismissing all Asserted Claims in the Operative
Complaint with prejudice, including without limitation, class and collective action
claims, except as to the individual FLSA claims of Opt-In Plaintiffs who do not
become Participating Claimants, which individual FLSA claims shall be dismissed
without prejudice, and dismissing any and all Counterclaims asserted by Prudential in
this Action with prejudice. A copy of the Judgment that the Parties will propose to
the Court is attached hereto as Exhibit C.
1.31 “Last Known Address(es)” means the most recently recorded
mailing address for any Notice Recipient as such information is contained in the
personnel records maintained by Prudential, and as such information shall be updated
by use of a Reasonable Address Verification Measure (as defined below).
1.32 “Legally Authorized Representative(s)” means an administrator
or administratrix, personal representative or executor or executrix of a deceased
Named Plaintiff’s or Notice Recipient’s estate; a guardian, conservator, or next friend
of an incapacitated Named Plaintiff or Notice Recipient or any other legally
appointed person responsible for handling the business affairs of a Named Plaintiff or
Notice Recipient.
1.33 “Named Plaintiffs’ Released Claims” means any and all past and
present claims, actions, demands, causes of action, suits, debts, obligations, damages,
rights or liabilities of any nature and description whatsoever, known or unknown,
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existing or potential, recognized now or hereafter, expected or unexpected pursuant to
any theory of recovery (including but not limited to those based in or brought
pursuant to contract or tort, common law or equity, federal, state, or local law, statute,
ordinance, or regulation and for claims for compensatory, consequential, punitive or
exemplary damages, statutory damages, penalties, interest, attorneys’ fees, costs, or
disbursements) against Releasees, that are based on or are related to the claims
asserted in the Operative Complaint, and specifically including, without limitation, all
rights to appeal earlier rulings by the Court in this matter, unknown claims covered
by California Civil Code Section 1542, as quoted below, claims for fees or costs
incurred by Class Counsel or any other counsel representing the Named Plaintiffs
other than those expressly awarded by the Court, and all State Law Deductions
Claims, state or federal overtime claims and all state law wage claims, of any kind,
including, but limited to, those wage claims asserted under the state laws of
California, Hawaii, Illinois, Michigan, Missouri, Montana, Nevada, Ohio, New Jersey,
New York, Oregon, Pennsylvania and Washington, including, without limitation any
claims arising under Missouri Revised Statutes §§ 290.505(1) and 290.527; Montana
Code § 39-3-405(1); Montana Code Annotated §§ 39-3-205(1), 39-3-206; Ohio
Revised Code § 4111.03(A), 4113.15(A), 4113.15(B); Nevada Revised Statutes §§
608.020, 608.030 and 608.040; Cal. Labor Code §§ 201-204, 210, 218.5, 218.6, 221,
223, 224, 225.5, 226, 226.7, 406, 407, 510, 512, 515, 516, 558, 558.1, 1182.12, 1194,
1194.2, 1194.3, 1197, 1197.1, 1197.2, 1198, 2802; 8 CCR § 11040; Cal. Bus. & Prof.
Code §§ 17200, et seq.; Hawaii Revised Statutes §§ 388-6, 388-3, 388-10; Illinois
Minimum Wage Act, 820 ILCS 105/4a, 105/12(a), 115/5,115/9, 120/2, 120/3;
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Michigan Compiled Laws at §§ 408.475, 408.477(1), 408.478, 408.888; New Jersey
State Wage and Hour Law, N.J.S.A. §§ 34:11-56a through 34:11:56a30 and §34:11-
4.4; New Jersey Admin. Code § 12:56-6.1; NYCRR § 142-2.2 and New York Labor
Law Article 19 at 650, et seq., New York Labor Law § 193; Oregon Administrative
Rule 839-020-0030; Oregon Revised Statutes 652.140(1), 652.140(2), 652.150,
653.261(1), 652.610(3), and implementing regulations; the Pennsylvania Wage
Payment and Collection Law 43 P.S. 260.1 et seq., 260.3, 260.5, and 260.10;
Pennsylvania Minimum Wage Act, 43 P.S. 333.101, et seq., 43 P.S. 231.41; 42
Pa.C.S.A. § 5527; the Washington Minimum Wage Act, RCWA 49.46.130,
49.48.010, 49.52.050; and all other state law wage related claims asserted in the
Operative Complaint. The Named Plaintiffs’ Released Claims include, without
limitation, claims meeting the above definition(s) under any and all applicable state
law statutes based on the facts or claims alleged in the Operative Complaint, and are
hereby released to the fullest extent permitted by law, regardless of the forum.
1.34 “Net Settlement Amount” is the Gross Settlement Amount minus
the Fee and Expense Award, Enhancement Payments, Incentive Awards, sums paid to
the Claims Administrator, including without limitation, administration related fees,
escrow fees, costs, taxes and expenses and any other sums provided for in Section V,
Paragraphs 1 to 3, of this Agreement that are to be paid from the Gross Settlement
Amount.
1.35 “Non-Deduction Wage Claimants” means any agent, who holds
or held the position of Prudential Representative, Financial Services Associate,
Financial Professional Associate, Statutory Agent, or any predecessor, successor or
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related positions in the Settling States of Missouri, Montana and Ohio during the
applicable Settlement Class Periods, which are as follows:
a. With respect to the Non-Deduction Wage Claimants asserting
claims under Missouri law, December 15, 2006, through the date the Court
enters its order granting Preliminary Approval of this Agreement;
b. With respect to the Non-Deduction Wage Claimants asserting
claims under Montana law, December 15, 2003, through the date the Court
enters its order granting Preliminary Approval of this Agreement;
c. With respect to the Non-Deduction Wage Claimants asserting
claims under Ohio law, December 15, 2006, through the date the Court
enters its order granting Preliminary Approval of this Agreement.
1.36 “Non-Deduction Wage Claimants’ Released Claim(s)” means
any and all past and present claims, actions, demands, causes of action, suits, debts,
obligations, damages, rights or liabilities of any nature and description whatsoever,
known or unknown, existing or potential, recognized now or hereafter, expected or
unexpected pursuant to any theory of recovery (including but not limited to those
based in or brought pursuant to contract or tort, common law or equity, federal, state,
or local law, statue, ordinance, or regulation and for claims for compensatory,
consequential, punitive or exemplary damages, statutory damages, penalties, interest,
attorneys’ fees, costs, or disbursements) against Releasees, that are based on or are
related to the claims asserted in the Operative Complaint, and specifically including,
without limitation, all rights to appeal earlier rulings by the Court in this matter,
claims for fees or costs incurred by Class Counsel or any other counsel representing
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the Named Plaintiffs or Non-Deduction Wage Claimants, other than those expressly
awarded by the Court, and all State Law Deductions Claims, state law overtime
claims and all other wage claims, of any kind, including those wage claims asserted
under the state laws of Missouri, Montana, and Ohio, including, without limitation,
Missouri Revised Statutes §§ 290.505(1) and 290.527; Montana Code § 39-3-405(1)
and Montana Code Annotated §§ 39-3-205(1), 39-3-206; Ohio Revised Code §
4111.03(A), 4113.15(A), 4113.15(B); and all state law or other wage related claims
asserted in the Operative Complaint. The Non-Deduction Wage Claimants’ Released
Claims include, without limitation, claims meeting the above definition(s) under any
and all applicable state law statutes based on the facts or claims alleged in the
Operative Complaint, and are hereby released to the fullest extent permitted by law,
regardless of the forum.
1.37 “Non-Settling Plaintiff(s)” means any Notice Recipient who does
not become a Settling Plaintiff.
1.38 “Notice Mailing Deadline” shall be the first business day that is
thirty (30) days after the Preliminary Approval Date.
1.39 “Notice Recipient(s)” means, except for the Named Plaintiffs, all
Class Members, Opt-In Plaintiffs and Non-Deduction Wage Claimants.
1.40 “Operative Complaint” is the Third Consolidated Amended
Collective and Class Action Complaint filed on January 20, 2010.
1.41 “Opt-In Plaintiff(s)” means, except for Named Plaintiffs, any
individual alleging FLSA claims who have consented to participate in the collective
action in this Action as a party plaintiff by timely filing an Opt-In Consent Form and
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who have not subsequently withdrawn such consent or opted out of the FLSA
collective action prior to Preliminary Approval of this Settlement Agreement.
1.42 “Opt-In Plaintiffs’ Released Claim(s)” means any and all past
and present claims, actions, demands, causes of action, suits, debts, obligations,
damages, rights or liabilities of any nature and description whatsoever, known or
unknown, existing or potential, recognized now or hereafter, expected or unexpected
pursuant to any and all federal or state wage-and-hour statutes, regulations, and
including without limitation, any wage-and-hour claims, rights, demands, liabilities
and causes of action of every nature and description, including claims for unpaid
overtime wages (including those within the scope of the pending Action), pursuant to
the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., the Portal
to Portal Act, 29 U.S.C. § 251 et seq., or any applicable state law, and any and all
claims deriving therefrom or contingent upon the foregoing.
1.43 “Participating Claimant(s)” shall mean (a) the Named Plaintiffs;
and (b) Class Members, Opt-In Plaintiffs and Non-Deduction Wage Claimants who
timely return a Qualifying Claim Form.
1.44 “Person(s)” means a natural person, corporation, partnership,
association, affiliate, estate, trust, unincorporated association, entity, government and
political subdivision thereof, and any other type of business or legal entity.
1.45 “Preliminary Approval” means the entry of a Preliminary
Approval Order (as defined below).
1.46 “Preliminary Approval Date” means the date that the Court
grants Preliminary Approval of this Agreement.
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1.47 “Preliminary Approval Order” means the written Order filed by
the Court that sets forth the Court’s Preliminary Approval of this Agreement,
including the Exhibits hereto, and (i) approves the notice to be sent to Notice
Recipients; (ii) provides an opportunity for Class Members, Opt-In Plaintiffs and
Non-Deduction Wage Claimants affirmatively to participate or for Class Members to
exclude themselves from the Settlement; (iii) provides an opportunity for Class
Members to submit timely objections to the Settlement; and (iv) sets a hearing on the
terms of this Settlement, including approval of the Fee and Expense Award,
Enhancement Payments and Incentive Awards and costs of administration. The
Preliminary Approval Order shall be approved substantially in the form of Exhibit D.
1.48 “Qualifying Claim Form” means a Claim Form that is fully
completed, properly executed, and timely returned to the Claims Administrator.
1.49 “Qualifying Exclusion Request” means an Exclusion Request
that is fully completed, properly executed, and timely returned to the Claims
Administrator. If a Participating Claimant submits both a Qualifying Claim Form and
an Exclusion Request, the Qualifying Claim form shall control and the Exclusion
Request shall not be a Qualifying Exclusion Request unless it is fully completed,
properly executed, and timely returned to the Claims Administrator and it states: “I
WISH TO WITHDRAW MY EARLIER FILED CLAIM FORM AND EXCLUDE
MYSELF FROM THE SETTLEMENT.”
1.50 “Reasonable Address Verification Measure(s)” shall mean the
utilization of the National Change of Address Database maintained by the United
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States Postal Service or any other database used by the Claims Administrator to
review the accuracy of and, if possible, update a mailing address.
1.51 “Released Claim(s)” means the Named Plaintiffs’ Released
Claims (as to Named Plaintiffs), Certified Deductions Class Members’ Released
Claims (as to Certified Deductions Class Members), Deductions Class Members’
Released Claims (as to Deductions Class Members), Opt-In Plaintiffs’ Released
Claims (as to Opt-In Plaintiffs) and Non-Deduction Wage Claimants’ Released
Claims (as to Non-Deduction Wage Claimants). Notwithstanding any other provision
of this Settlement Agreement, “Released Claims” do not include claims based on
retaliation for acting as a Named Plaintiff, or being a Class Member or other
Participating Claimant to the extent that any such claims are based on events that
occur or occurred after September 15, 2006 or, in the case of Named Plaintiffs, based
on events that occur or occurred after the Named Plaintiffs execute this Settlement
Agreement.
1.52 “Releasees” means Prudential Financial, Inc. and The Prudential
Insurance Company of America, and all of their present and former parent companies,
subsidiaries, affiliates and joint ventures, and all of their past and present shareholders,
officers, directors, employees, agents, servants, registered representatives, attorneys,
insurers, partners, profit sharing, savings, health and other employee benefit plans of
any nature, the successors of such plans and those plans’ respective trustees,
administrators, agents, employees, attorneys, fiduciaries, and other Persons acting on
their behalf, and each of them, and the predecessors and successors, assigns and legal
representatives of all such entities and individuals.
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1.53 “Settlement” means the settlement of this Action between and
among the Settling Plaintiffs and Prudential.
1.54 “Settlement Class Period(s)” means the time periods covered by
this Settlement as they relate to Class Members and Non-Deduction Wage Claimants
as set forth in this Section III, Subparagraphs 1.5, 1.19 and 1.35.
1.55 “Settlement Effective Date” means fourteen (14) days after which
both of the following events have occurred: (i) District Court Final Approval Order
has been entered and (ii) the District Court Final Approval Order and Judgment have
become Final.
1.56 “Settlement Formula” is defined in Section V, Paragraph 11.
1.57 “Settlement Fund” means the Qualified Settlement Fund (as
defined under treasury regulation 26 C.F.R. § 1.468B-1) out of which the Settlement
payments to Participating Claimants will be paid. The Settlement Fund will be
maintained by the Escrow Agent pursuant to agreement among the Parties and the
Escrow Agent (“Escrow Agreement”). The Escrow Agent will hold the Settlement
Fund in trust pursuant to the terms of this Settlement Agreement. Following the
Settlement Effective Date, the Settlement Fund will be used for payment of the
Settlement as provided in this Agreement and the Escrow Agreement. If for any
reason the Settlement Effective Date does not occur, the Settlement Fund will be
returned to Prudential.
1.58 “Settling Plaintiff(s)” shall mean (a) the Named Plaintiffs; (b)
Opt-In Plaintiffs and Non-Deduction Wage Claimants who timely return a Qualifying
Claim Form; and (c) Class Members who do not submit a Qualifying Exclusion
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Request. Settling Plaintiffs shall be bound by the terms of this Agreement, including
its release provisions.
1.59 “Settling State(s)” means the states in which Prudential
Representatives, Financial Services Associates, Financial Services Professionals or
Statutory Agents and predecessor, successor or related positions covered by this
Agreement work or worked and on whose behalf Named Plaintiffs have claimed
violations of the labor laws of those states. They are: California, Hawaii, Illinois,
Michigan, Missouri, Montana, New Jersey, New York, Ohio, Oregon, Pennsylvania
and Washington. With respect to Notice Recipients who worked in more than one
Settling State, the Settlement Class Period applicable to each such state will
determine the extent to which the work was performed in that state is covered by this
Agreement.
1.60 “State Law Deductions Claim(s)” means (i) as to former
Prudential Representatives and predecessor, successor or related positions, state law
claims asserted with respect to alleged improper deductions from wages, all claims
related thereto or contingent thereon, and claims under California law for failure to
reimburse for business expenses, and (ii) as to current and former Financial Services
Associates, Financial Services Professionals or Statutory Agents and predecessor,
successor or related positions, state law claims asserted with respect to alleged
improper deductions from wages, alleged claims relating to recapture of commissions,
all claims related thereto or contingent thereon, and claims under California law for
failure to reimburse for business expenses.
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1.61 “Total Adjusted Work Week(s)” means the total number of
Adjusted Work Weeks of all Participating Claimants.
1.62 “Updated Address(es)” means a mailing address that was updated
via a Reasonable Address Verification Measure or via an updated mailing address
provided by the United States Postal Service or a Class Member.
IV. SUBMISSION OF THE AGREEMENT TO COURT FOR PRELIMINARY AND
FINAL APPROVAL
1. For purposes of settlement only, the Parties stipulate to the certification of
Deductions Classes during the applicable Settlement Class Periods. Class Members who timely
return a Qualifying Exclusion Request shall become Non-Settling Plaintiffs and shall not be
bound by the Court’s Judgment, this Settlement or the provisions in Section IX, Paragraphs 1
through 10, herein (Releases). All other Class Members will become Settling Plaintiffs and will
be bound by the Court’s Judgment, the Settlement of this Action and the provisions in Section IX,
Paragraphs 1 through 10, herein. Only those Opt-In Plaintiffs and Non-Deduction Wage
Claimants who timely return a Qualifying Claim Form shall be bound by the Court’s Judgment,
the Settlement of this Action, and the provisions in Section IX, Paragraphs 1 through 10, herein.
2. After the execution of this Settlement Agreement by all of the Named Plaintiffs
and Prudential, and no later than seven (7) days after submitting a draft of the moving papers to
counsel for Prudential for comment prior to its filing, the Named Plaintiffs shall file for
Preliminary Approval of the proposed Settlement Agreement requesting a Preliminary Approval
Order that contains the following provisions:
2.1 Preliminarily approving this Settlement Agreement and its terms;
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2.2 Approving the form of the Class Notice, finding that the proposed method
of disseminating the aforementioned notice meets the requirements of due process
and is the best notice practicable under the circumstances;
2.3 Establishing a date by which Named Plaintiffs and Class Counsel are to
submit papers/briefing in support of final approval of this Agreement, including the
Enhancement Payments and Incentive Awards, the Fee and Expense Award for Class
Counsel and the compensation for administration, consistent with the Agreement;
2.4 Establishing the procedures and the deadline by which Class Members
may object to the Settlement;
2.5 Establishing a deadline for any of the Parties to submit papers/briefing in
response to any objections to final approval of this Agreement;
2.6 Establishing procedures and the deadline by which Notice Recipients may
become Participating Claimants, Settling Plaintiffs or Non-Settling Plaintiffs;
2.7 Appointing the Settlement Administrator;
2.8 In addition to having been appointed as Class Counsel of the Certified
Deductions Classes by Order of the Court dated February 26, 2015, further appointing
Class Counsel as class counsel, and Named Plaintiffs as class representatives, of the
Deductions Classes, as appropriate;
2.9 Setting a date for the Fairness Hearing and any determination on the
request for Fee and Expense Award, Enhancement Payments and Incentive Awards
that is no earlier than 30 days after the Claim/Exclusion/Objection Deadline; and
2.10 Entering an order prohibiting the Named Plaintiffs, Class Members,
Opt-In Plaintiffs and any other Participating Claimants from filing any new actions
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asserting claims against Prudential similar to those presented in the Action and which
would otherwise constitute Released Claims under the Agreement or from attempting
to effect an opt-out of a group, class or subclass of individuals until the Court’s
Judgment becomes Final.
3. Failure of the Court to grant preliminary approval of this Agreement without
material changes will be grounds for Prudential or the Named Plaintiffs to terminate the
Settlement and this Agreement. Changes to the amount of Fee and Expense Award and/or
Enhancement Payments and/or Incentive Payments and/or administration costs shall not be
deemed material changes and shall not constitute valid grounds for the Parties to terminate the
Settlement and/or this Agreement.
4. If the Court grants preliminary approval of this Agreement and authorizes mailing
of the Class Notice, then at the Fairness Hearing, the Named Plaintiffs and Prudential, through
their counsel, shall address any written objections or any concerns from any Class Members who
attend the hearing as well as any concerns of the Court, if any, and shall and hereby do, unless
provided otherwise in this Agreement, stipulate to final approval of this Agreement and entry of
Judgment by the Court substantially in the form of Exhibit C.
5. Prudential, itself or through the Claims Administrator, shall comply with all
notice obligations under the Class Action Fairness Act (“CAFA”) with respect to this Settlement.
Class Counsel will cooperate with Prudential in its efforts to fulfill its CAFA notice obligations,
and Class Counsel will provide assistance to the Claims Administrator and Prudential if such
assistance becomes necessary for Prudential to fulfill such notice obligations. Prudential,
however, shall have sole discretion to determine the substance of the CAFA notices.
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V. SETTLEMENT PAYMENTS
1. No later than ten (10) days following the Preliminary Approval Date, Prudential
shall deposit the Gross Settlement Amount into the Settlement Fund. The Gross Settlement
Amount is an “all in” number that includes, without limitation, all monetary benefits and
payments (with the exception of Settlement Fund Interest, if any) to the Participating Claimants,
and all Enhancement Payments, Incentive Payments, the Fee and Expense Award, escrow fees,
other costs, taxes and expenses relating to the Settlement (including, but not limited to,
administration costs and expenses, notice costs and expenses, and settlement costs and expenses,
including any related taxes). Except as set forth in Section V, Paragraph 9, below, under no
circumstances shall Prudential be required to pay anything more than the Gross Settlement
Amount.
2. In no event shall Prudential be liable for making payments under this Agreement,
or for providing any relief, before the deadlines set forth in this Agreement.
3. The Gross Settlement Amount will be allocated as follows:
3.1 Up to one-third (33%) of the Gross Settlement Amount may be paid in
attorneys’ fees to Class Counsel, subject to Court approval. In addition, Class
Counsel may apply to the Court for reimbursement of reasonable litigation costs and
expenses. Any such reimbursement shall be in addition to the attorneys’ fees
approved by the Court and shall be paid from the Gross Settlement Amount
(collectively, fees and costs, the “Fee and Expense Award”);
3.2 Enhancement Payments of up to $15,000.00 may be paid to each Named
Plaintiff, other than Edward Lennon, whose Enhancement Payment shall be no more
than $7,500, all subject to Court approval and, as approved, shall be paid from the
Gross Settlement Amount;
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3.3 Incentive Awards of up to $250.00 may be paid to each Opt-In Plaintiff,
who is a Participating Claimant, and to each Named Plaintiff who timely opted into
the FLSA collective action and who did not subsequently opt-out, subject to Court
approval, and shall be paid from the Gross Settlement Amount.
3.4 A reasonable amount, estimated to be approximately $150,000.00 shall be
paid to the Claims Administrator to administer this Agreement that shall be paid from
the Gross Settlement Amount;
3.5 Fees incurred by the Claims Administrator in facilitating notice and
related administration costs, as discussed further in Section X, Paragraph 1;
3.6 The remaining sum shall be referred to as the Net Settlement Amount.
Specifically, the Net Settlement Amount shall be the Gross Settlement Amount plus
Settlement Fund Interest, if any, minus the sum of the amounts set forth above in
Section V, Subparagraphs 3.1 to 3.5, above. The Net Settlement Amount will be
made available for payment to Participating Claimants pursuant to the Settlement
Formula and the terms of this Agreement.
4. Prudential will not oppose Class Counsel’s application to the Court for attorneys’
fees and costs as described above in Section V, Subparagraph 3.1. No later than 14 days
following the Settlement Effective Date, and only if the Settlement Effective Date occurs, the
Claims Administrator shall pay to Class Counsel, jointly, from the Gross Settlement Amount the
Fee and Expense Award. All attorneys’ fees and costs will be paid from the Gross Settlement
Amount and no attorneys’ fees or costs beyond the amounts provided for in this Agreement and
approved by the Court will be paid to any attorney representing any Person in this Action. The
Claims Administrator will issue to the Class Counsel IRS Form 1099 with respect to their
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awarded attorneys’ fees and costs. The Claims Administrator shall not disburse any attorneys’
fees or costs unless and until Class Counsel have provided the Claims Administrator with
appropriate IRS Form W-9 for such allocation. If the Court awards Class Counsel less than one-
third (33%) of the Gross Settlement Amount in attorneys’ fees, the remainder shall remain part
of the Gross Settlement Amount and, in turn, the Net Settlement Amount available for payment
to Participating Claimants. The Parties agree that in the event any appeal or other challenge is
filed to any award of fees by the Court, such appeal or other challenge to the award shall not
delay distribution of the undisputed portions of the Net Settlement Amount to Participating
Claimants. The Parties further agree that any dispute among Class Counsel, Named Plaintiffs
and Notice Recipients regarding the allocation of the attorneys’ fees and costs shall not involve
Prudential, shall not invalidate this Agreement, and shall not delay or preclude the Judgment
from becoming Final.
5. Prudential will not oppose Named Plaintiffs’ request to the Court for
Enhancement Payments as described above in Section V, Subparagraph 3.2, in addition to any
payment Named Plaintiffs each may otherwise receive as Participating Claimants. The Claims
Administrator will issue to the Named Plaintiffs IRS Form 1099 with respect to their awarded
Enhancement Payments. The Claims Administrator shall not disburse any Enhancement
Payments unless and until the Named Plaintiffs have provided the Claims Administrator with
appropriate IRS Form W-9 for such allocation. If the Court awards the Named Plaintiffs less
than $15,000.00 each, or, with respect to Edward Lennon, less than $7,500.00, the remainder
shall be remain part of the Gross Settlement Amount and, in turn, the Net Settlement Amount
available for payment to Participating Claimants.
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6. Prudential will not oppose Named Plaintiff and Opt-In Plaintiffs’ request to the
Court for Incentive Awards as described above in Section V, Subparagraph 3.3, in addition to
any payment a Named Plaintiff or Opt-In Plaintiff may otherwise receive as a Participating
Claimant. If the Court awards the Named Plaintiffs who timely opted into the conditionally
certified FLSA collective action and who did not subsequently opt-out, or Opt-In Plaintiffs who
become Participating Claimants, less than $250.00 each, the remainder shall be and remain part
of the Gross Settlement Amount and, in turn, the Net Settlement Amount available for payment
to Participating Claimants.
7. Provided the Settlement becomes Final and there is a Settlement Effective Date,
no amount of the Gross Settlement Award or the Net Settlement Amount shall revert to
Prudential. One hundred percent (100%) of the Net Settlement Amount, shall be paid to
Participating Claimants as set forth in the Settlement Formula, including all amounts that are
determined to be due to Participating Claimants pursuant to any redistributions, and including
any cy pres payments that may be required.
8. Except for Participating Claimants who held or hold the position of Statutory
Agent within any of the Settlement Class Periods, any Participating Claimant who receives a
payment of any kind by way of this Agreement, other than Enhancement Payments or Incentive
Awards, expressly acknowledges that 100% of such payments shall be considered wages for
which an IRS Form W-2 will issue. Participating Claimants who held or hold the position of
Statutory Agent within any of the Settlement Class Periods and who receive a payment of any
kind by way of this Agreement, except for Enhancement Payments or Incentive Awards,
expressly acknowledge that 100% of such payments shall be considered income for which an
IRS Form W-2 for Statutory Employees shall issue. Finally, each Participating Claimant’s pro
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rata share of the post-Judgment interest accrued on the Gross Settlement Amount shall be
considered non-wages for which an IRS Form 1099 shall issue; and Enhancement Payments and
Incentive Awards shall also be considered non-wage income for which an IRS Form 1099 shall
issue.
9. As to the wage payments, Prudential shall pay the employer’s share of payroll
taxes, which payment shall be a payment in addition to the Gross Settlement Amount. Any
amount paid to Participating Claimants shall not create any credit or otherwise affect the
calculation of any deferred compensation, benefit, or other compensation plan provided by
Prudential.
10. Other than the withholding and reporting requirements set forth above,
Participating Claimants and Class Counsel shall be solely responsible for the reporting and
payment of any federal, state, and/or local income or other tax or any other withholdings, if any,
on any of the payments received by them pursuant to this Agreement. It is understood and
agreed that Prudential has made no representations as to the taxability of any portions of the
settlement payments to any Participating Claimants, the Fee and Expense Award, or any
Enhancement Payments or Incentive Awards. The Named Plaintiffs and Class Counsel agree
that Notice Recipients will have an adequate opportunity to seek tax advice prior to responding
to the Class Notice.
11. The Claims Administrator shall determine each Participating Claimant’s share of
the Net Settlement Amount by using the following Settlement Formula:
11.1 Claims of Class Members will be settled, according to the formula
set forth here, on a claims made basis, provided Class Members submit a Qualifying
Claim Form and do not timely return a Qualifying Exclusion Request. Claims of
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Opt-In Plaintiffs and Non-Deduction Wage Claimants will be settled, according to the
formula set forth here, provided Opt-In Plaintiffs and Non-Deduction Wage
Claimants submit a Qualifying Claim Form. Each Participating Claimant will be paid
a portion of the Net Settlement Amount in accordance with the following formula:
a. Non-Deduction Wage Claimants and Opt-In Plaintiffs will receive a pro rata
share of the Net Settlement Amount that represents one times their work
weeks.
b. Members of the Deductions Classes will receive a pro rata share of the Net
Settlement Amount that represents three times their work weeks.
c. Members of the Certified Deductions Classes will receive a pro rata share of
the Net Settlement Amount that represents four times their work weeks.
d. For the avoidance of doubt, for purposes of this Settlement Formula, Named
Plaintiffs shall be considered to be Non-Deduction Wage Claimants,
Deductions Class Members or Certified Deductions Class Members,
consistent with the positions they hold or held, the Settling States in which
they work or worked and the applicable Settlement Class Periods.
11.2 Except as is set forth in Section VI, Paragraph 6, the dollar amount
payable to each Participating Claimant will be calculated by taking the Net Settlement
Sum divided by the Total Adjusted Work Weeks, and then multiplying by the total
number of Adjusted Work Weeks applicable to each Participating Claimant.
12. Any Person who does not receive a Class Notice because he or she had not been
determined to be a Notice Recipient, but who claims otherwise, must present evidence and
information to the Claims Administrator demonstrating that he or she should be included in the
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Settlement. The Claims Administrator will, after consulting with Class Counsel and Counsel for
Prudential, determine whether the documentation provided by the individual sufficiently
confirms the individual’s standing to participate in the Settlement.
13. The Claims Administrator, and according to the terms, conditions and procedures
set forth in this Agreement, shall pay each Participating Claimant his or her share of the Net
Settlement Amount, following the adjustment of the Net Settlement Amount for Settlement Fund
Interest, pursuant to the above Settlement Formula. To the extent administratively convenient,
these payments shall be made via one check to each Participating Claimant. The Claims
Administrator is responsible for tax withholdings, remitting funds to the appropriate taxing
authorities, and satisfying all associated tax reporting, returns, and filing requirements.
14. In the event that a Participating Claimant’s payment check is not negotiated
within ninety (90) calendar days from the date initially mailed by the Claims Administrator, such
check will expire. In such event, the affected Participating Claimant will be deemed to have
irrevocably waived any right to a settlement check pursuant to this Agreement, but the
Settlement and the affected Participating Claimant’s release of claims will remain binding upon
such Participating Claimant.
14.1 The sum value of all remaining expired checks and any other undisbursed
funds will be tallied by the Claims Administrator and shall be reported to Class Counsel
and Counsel for Prudential. Class Counsel and Counsel for Prudential will confer to
determine whether the remaining funds are of a sufficient amount that it would be
practicable to make a further distribution or whether it would be more practicable to
distribute the remaining funds to an appropriate charitable or non-profit organization
under the cy pres doctrine to be determined by the Court.
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14.2 If the Parties determine that the remaining funds should be
distributed to an appropriate charitable or non-profit organization, they shall compile
a list of four suitable organizations, the names of two charitable or non-profit
organizations to be submitted by each Party, from which the Court will choose one or
more such organizations to receive the funds. Notwithstanding the foregoing, if the
remaining funds exceed $50,000.00, net after the expected costs of distribution of
such remaining funds, they will be distributed on a pro rata basis to all Participating
Claimants.
14.3 If the Parties determine it would be practicable to make a further
distribution to Participating Claimants, in the event a Participating Claimant’s second
distribution check is not negotiated within ninety (90) calendar days from the date
initially mailed by the Claims Administrator such check will expire. The affected
Participating Claimant will be deemed to have irrevocably waived any right to that
settlement check pursuant to this Agreement. The remaining provisions of Section V,
Subparagraphs 14.1 and 14.2, will control further payment to Participating Claimants
or cy pres distributions, if such further distribution is necessary.
VI. NOTICE TO NOTICE RECIPIENTS
1. If, by entering an order preliminarily approving this Agreement and the Class
Notice, the Court provides authorization to send the Class Notice, the Claims Administrator will
mail the Class Notice to all Notice Recipients at their Last Known Addresses. Prior to mailing
the Class Notice to Notice Recipients, the Claims Administrator shall perform a Reasonable
Address Verification Procedure to facilitate the mailing of the Class Notice to the correct
addresses of Notice Recipients. The Claims Administrator shall mail the Class Notice via first
class mail through the United States Postal Service, postage pre-paid.
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2. The Class Notice will be in the form as annexed hereto as Exhibit B.
3. The Settlement Administrator shall use the Gross Settlement Amount to pay the
costs of identifying and notifying Notice Recipients, facilitating the claims process and otherwise
administering the Settlement. Any notice and administration costs, as well as taxes that are
appropriate pursuant to this Agreement, and escrow fees, shall be paid out of the Gross
Settlement Amount. Notice and administration costs shall include, among other things,
identifying an Updated Address, if necessary, mailing and printing notice as directed by the
Court and the cost of processing settlement, distributing the Net Settlement Amount to any
Participating Claimant and the costs of any cy pres distribution.
4. The Claims Administrator shall mark the Class Notice and its envelope(s) or
covering to denote the return address of the Claims Administrator. The envelope or covering
containing the Class Notice shall also bear the following note: “Important Legal Notice
Enclosed.” The Claims Administrator shall include only the Class Notice and Claim Form in
this mailing, in a form that does not materially differ from Exhibits A and B.
5. Prudential shall prepare the name, Last Known Address, and number of Work
Weeks for each jurisdiction for each Notice Recipient for the Claims Administrator so that the
Claims Administrator can engage in the processing and mailing of Class Notice. Prudential will
provide this information to the Claims Administrator within 10 days after the Court grants
preliminary approval of this Agreement.
6. Prior to mailing the Class Notice to each Notice Recipient, and to the extent
possible within the requisite deadlines, the Claims Administrator shall include in the space
provided on each Claim Form the number of Adjusted Work Weeks in each jurisdiction for each
Notice Recipient. If a Participating Claimant has Adjusted Work Weeks that would result in a
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distribution of less than $10, he or she shall not be entitled to share in the Net Settlement Fund
under the Settlement Formula, but instead shall receive one payment of $10.00.00. However, to
the extent that he or she is an Opt-In Plaintiff, he or she will be entitled to an Incentive Award, as
approved by the Court, of up to a payment of $250.00, or if such Participating Claimant is a
Named Plaintiff, he or she will be entitled to receive an Enhancement Award, as approved by the
Court, of up to a payment of $15,000.00, and in the case of Edward Lennon, of up to a payment
of $7,500.00. Instructions in the Claim Form will provide that if a Notice Recipient disagrees
with the number of Adjusted Work Weeks pre-printed on his or her notice, he or she must set
forth information that he or she believes is correct, explain the basis for such belief and submit
written documentation to support his or her claim. Failure to submit written documentation to
support such dispute will mean that the information contained in the notice will be controlling.
If a Notice Recipient disagrees with the number of Adjusted Work Weeks on his or her Class
Notice and provides documentation to support his or her claim for a different total number of
Adjusted Work Weeks, the Claims Administrator, with the assistance of Class Counsel, will
meet and confer informally to resolve the issue. If the Notice Recipient and the Claims
Administrator, with the assistance of Class Counsel, cannot agree on the Notice Recipient’s
number of Adjusted Work Weeks, the issue will be submitted to the Court, and each Notice
Recipient shall have the burden of proving that the number of Adjusted Work Weeks provided to
him or her is wrong, and the Court shall have the final authority to decide the number of
Adjusted Work Weeks worked by the Notice Recipient.
7. The Class Notice will instruct that those Class Members who wish to object to the
Settlement must serve on the Settlement Administrator, by the Claim/Objection/Exclusion
Deadline, a written statement objecting to the Settlement, which must include: (1) the name and
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case number of this lawsuit; (2) his or her full name and address; (3) the dates of employment or
association with Prudential as a Class Member; (4) the last four digits of his or her social security
number and his or her contract number; (5) the basis for the objection; (6) whether he or she
intends to appear at the Fairness Hearing; (7) the specific reason(s) for the objection; and (8) any
and all evidence and supporting papers (including, without limitation, all briefs, written evidence,
and declarations) that the Class Member would like the Court to consider. A Class Member who
does not submit an objection in the manner and by the deadline specified in Section III,
paragraph 1.7, above will be deemed to have waived all objections and will be foreclosed from
making any objection to the Settlement, whether by appeal or otherwise, absent a contrary order
of the Court.
8. The Settlement Administrator shall promptly send all objections that are received
in response to the Class Notice to counsel for Prudential and Class Counsel.
9. Unless the Parties agree otherwise in writing or the Court so orders, the Claims
Administrator shall mail the Class Notice to the Last Known Addresses of the Notice Recipients
no later than the Notice Mailing Deadline.
10. Unless the Claims Administrator receives a Class Notice returned from the United
States Postal Service for reasons discussed below, that notice shall be deemed mailed and
received by the Notice Recipient to whom it was sent. In the event that subsequent to the first
mailing of a Class Notice, and prior to the Claim/Objection/Exclusion Deadline, the U.S. Postal
Service returns a Class Notice to the Claims Administrator with a forwarding address for the
recipient, the Claims Administrator shall re-mail the notice to that address; the Class Notice will
be deemed mailed at that point and the forwarding address shall be deemed the Updated Address
for that Notice Recipient. In the event that subsequent to the first mailing of a Class Notice, and
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at least 10 business days prior to the Claim/Objection/Exclusion Deadline, the U.S. Postal
Service returns a Class Notice to the Claims Administrator because the address of the recipient is
no longer valid, the Claims Administrator shall perform a second Reasonable Address
Verification Measure utilizing a different database and if such an address is ascertained, the
Claims Administrator will promptly re-send the Class Notice to such Updated Address. Nothing
in this Paragraph shall be construed to extend the Claim/Objection/Exclusion Deadline.
11. If there is no Settlement Effective Date or the Settlement is reversed or modified
on appeal, on a motion to intervene or as a result of further proceedings on remand of any appeal
or motion to intervene with respect to the Settlement, the balance of the Gross Settlement
Amount which has not been expended pursuant to this Agreement, shall be returned to Prudential
within five (5) days or as soon thereafter as is practicable, as set forth in this Agreement and the
Escrow Agreement.
VII. RESPONSES TO THE NOTICE AND MOTION FOR FINAL APPROVAL
1. Notice Recipients have the option to participate in this Action at their own
expense by obtaining their own attorney(s). Notice Recipients who choose this option will be
responsible for any attorneys’ fees or costs incurred as a result of this election. The Class Notice
will advise Notice Recipients of this option.
2. Class Members, other than Named Plaintiffs, may elect to “opt out” of the
Settlement and thus exclude themselves from the Action and the Settlement. Class Members
who wish to exercise this option must fully complete, execute, and mail a Qualifying Exclusion
Request to the Claims Administrator, per the instructions set forth in the Class Notice, attached
hereto as Exhibit B. If the Claims Administrator does not receive a Qualifying Exclusion
Request from such Class Member, postmarked on or before the Claim/Objection/Exclusion
Deadline, then that Class Member will be deemed to have forever waived his or her right to
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exclude him or herself from the Classes and will be bound by the terms of the Certified
Deductions Class Members’ Released Claims or the Deductions Class Members’ Released
Claims as applicable. The date of the postmark shall be the exclusive means used to determine
whether an Exclusion Request has been timely submitted. Class Members who properly and
timely submit Qualifying Exclusion Requests shall have no further role in the Action, and for all
purposes shall be regarded as if they never were a party to or in this Action.
3. To the extent that a Class Member has submitted an Exclusion Request that does
not constitute a Qualifying Exclusion Request, the Claims Administrator shall send a Cure Letter
to such individual informing him or her that the Exclusion Request is defective and must be
cured to become valid. The Claims Administrator must postmark the Cure Letter as promptly as
feasible upon receipt of any timely but defective Exclusion Request. The Cure Letter shall
remind the Class Member of the Claim/Objection/Exclusion Deadline, which will remain
unchanged, except that the Claim/Objection/Exclusion Deadline for the Class Member sent such
a Cure Letter shall be the date that is 14 days after the postmark of such Cure Letter or the
original Claim/Objection/Exclusion Deadline, whichever date is later, which shall be
communicated to the Class Member sent such Cure Letter. If a Class Member responds to a
Cure Letter by filing a late or defective Exclusion Request, then the Claims Administrator shall
have no further obligation to give notice of a need to cure and such late Exclusion Request shall
not be deemed timely.
4. The Class Notice shall advise Class Members that should they exclude themselves
from this Settlement, such Class Member shall be prohibited from initiating as a Named Plaintiff
any other collective, class or aggregate action against the Releasees that concerns the Asserted
Claims in this Action within the relevant Settlement Class Periods. Nothing contained herein is
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intended to prevent any Class Member to the extent he/she otherwise meets the class definition
and the requirements of Rule 23 from being included solely as a Rule 23 class member in any
other class action that has been or that may be filed against Prudential in the future so long as
he/she does not institute any such class action or become a named plaintiff in any such class
action against Prudential.
5. Opt-In Plaintiffs and Non-Deduction Wage Claimants, other than Named
Plaintiffs, shall not be bound by this Settlement nor receive any Settlement payment, including
Opt-In Plaintiff Incentive Payments, unless such Opt-In Plaintiff or Non-Deduction Wage
Claimant timely files a Qualifying Claim Form. Opt-In Plaintiffs or Non-Deduction Wage
Claimants who wish to exercise this option must fully complete, execute, and mail, per the
instructions therein, the form entitled “Claim Form” attached to the Class Notice as Attachment
A. If the Claims Administrator does not receive a Qualifying Claim Form from such Opt-In
Plaintiff or Non-Deduction Wage Claimant, postmarked on or before the
Claim/Objection/Exclusion Deadline, then that Opt-In Plaintiff’s or Non-Deduction Wage
Claimant’s claims will be dismissed without prejudice and such Opt-In Plaintiff and Non-
Deduction Wage Claimant shall not be bound by this Settlement. The date of the postmark shall
be the exclusive means used to determine whether a Claim Form has been timely submitted.
Opt-In Plaintiffs or Non-Deduction Wage Claimants who fail to properly and timely submit a
Qualifying Claim Form shall have no further role in the Action, and for all purposes shall be
regarded as if they never were a party to or in this Action.
6. To the extent that an Opt-In Plaintiff or Non-Deduction Wage Claimant has
submitted a Claim Form that does not constitute a Qualifying Claim Form, the Claims
Administrator shall send a Cure Letter to such individual informing him or her that the Claim
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Form is defective and must be cured to become valid. The Claims Administrator must postmark
the Cure Letter as promptly as feasible upon receipt of any timely but defective Claim Form.
The Cure Letter shall remind the Opt-In Plaintiff or Non-Deduction Wage Claimant of the
Claim/Objection/Exclusion Deadline, which will remain unchanged, except that the
Claim/Objection/Exclusion Deadline for the Opt-In Plaintiff or Non-Deduction Wage Claimant
sent such a Cure Letter shall be the date that is 14 days after the postmark of such Cure Letter or
the original Claim/Objection/Exclusion Deadline, whichever date is later, which shall be
communicated to the Opt-In Plaintiff or Non-Deduction Wage Claimant sent such Cure Letter.
If an Opt-In Plaintiff or Non-Deduction Wage Claimant responds to a Cure Letter by filing a late
or defective Claim Form, then the Claims Administrator shall have no further obligation to give
notice of a need to cure and such late Claim Form shall not be deemed timely.
7. The Class Notice shall advise Opt-In Plaintiffs that upon entry of Final Judgment
in this Action, the Court shall dismiss the conditionally certified collective action, and dismiss
the claims of any Opt-In Plaintiff who has not become a Participating Claimant without prejudice.
The Class Notice shall further advise Opt-In Plaintiffs and Non-Deduction Wage Claimants that
should any Opt-In Plaintiff or Non-Deduction Wage Claimant not become a Participating
Claimant, such Opt-In Plaintiff or Non-Deduction Wage Claimant shall be prohibited from
initiating as a Named Plaintiff any other collective, class or aggregate action against the
Releasees that concerns the Asserted Claims in this Action within the relevant Settlement Class
Periods. Nothing contained herein is intended to prevent any Opt-In Plaintiff or Non-Deduction
Wage Claimant to the extent he/she otherwise meets the class definition and the requirements of
Rule 23 from being included solely as a Rule 23 class member in any class action that has been
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or that may be filed against Prudential in the future so long as he/she does not institute any such
class or collective action or become a named plaintiff in any such class action against Prudential.
8. If a Notice Recipient wishes to, for future reference and any mailings from the
Court or Claims Administrator, change the name or address listed on the envelope in which the
Class Notice was first mailed to them, such Notice Recipient must send a “Change of Name or
Address Request” to the Claims Administrator. Instructions relating to such request will be set
forth in the Class Notice.
9. The Claims Administrator shall promptly log each Qualifying Exclusion Request
that it receives and provide copies of the log and all such requests for exclusion to Class Counsel
and to counsel for Prudential, as requested. As soon as practicable, but not later than ten (10)
business days after the Claim/Exclusion/Objection Deadline,, the Claims Administrator shall
provide to Class Counsel and to counsel for Prudential a complete list of all individuals who filed
Qualifying Exclusion Requests and Qualifying Claim Forms together with copies of all such
documents.
10. Prior to the Fairness Hearing and consistent with the rules imposed by the Court,
the Named Plaintiffs and Prudential, to the extent it deems appropriate, shall move the Court for
entry of Judgment by filing a fairness brief or briefs. The Named Plaintiffs and Class Counsel
shall be responsible for justifying the Fee and Expense Award, Enhancement Payments and
Incentive Awards, as set forth in Section V, Subparagraphs 3.1 to 3.3. The Parties shall make all
reasonable efforts to secure the Judgment.
VIII. TIMING OF PAYMENT TO PARTICIPATING CLAIMANTS AND NOTICE OF
FINAL APPROVAL TO SETTLEMENT CLASS MEMBERS
1. The Claims Administrator shall issue to each Participating Claimant one check (or
more if necessary for administrative convenience) for the gross amount of the Participating
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Claimant’s share, less relevant withholdings, if any. The Claims Administrator shall mail this
payment to each Participating Claimant at his or her Last Known Address, on or before the first
business day that falls 10 days after the Settlement Effective Date.
2. Following the mailing of the payments to Participating Claimants, the Claims
Administrator shall provide Class Counsel and Prudential’s counsel with a written confirmation
of this mailing and a list of the names of all Participating Claimants.
IX. RELEASES
1. The Released Claims against each and all of the Releasees shall be released and
dismissed with prejudice and on the merits (without an award of fees or costs to any party other
than as otherwise provided in this Agreement) upon entry of the District Court Final Approval
Order.
2. Each Settling Plaintiff individually on behalf of himself or herself and on behalf
of each of his or her heirs, representatives, successors, assigns, estates trustees, executors,
administrators, beneficiaries, agents, attorneys, successors and assigns, and anyone claiming
through them or acting or purporting to act on their behalf, agrees to and hereby does forever
release, discharge, hold harmless and covenant not to sue the Releasees from each and all of the
Released Claims and by operation of the Judgment shall have fully and finally released,
relinquished and discharged all such claims against each and all of the Releasees; and they
further agree that they shall not now or hereafter initiate, maintain or assert any of such claims,
as set forth in their respective releases against the Releasees in any other court action or before
any administrative body, tribunal, arbitration, panel or other adjudicating body. Without in any
way limiting the scope of the releases described elsewhere in this Agreement or in the remainder
of this Paragraph, this release covers, without limitation, any and all claims for attorneys’ fees,
costs, or disbursements incurred by Class Counsel or any other counsel representing the Notice
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Recipients, or any of them, in connection with or related in any manner, to the Action, the
administration of such Settlement or the Released Claims, except to the extent otherwise
specified in this Agreement.
3. Nothing in the above Paragraph or Released Claims shall serve as a waiver of any
Settling Plaintiff or Notice Recipient’s claims that arise after the Settlement Effective Date,
except to the extent provided by Court order in Section IV, Subparagraph 2.10, above or as is
otherwise set out in this Agreement. The Released Claims do not include claims relating to the
enforcement of this Settlement Agreement and/or relating to any Court order and judgment
pertaining to same.
4. As of the Settlement Effective Date, the Settling Plaintiffs shall be permanently
barred and enjoined from initiating, asserting or prosecuting against the Releasees, in any federal
or state court or tribunal or agency, any and all of the Released Claims.
5. All Settling Plaintiffs shall be bound by the terms and conditions of this
Agreement, including all orders issued pursuant thereto, and shall be deemed to have waived all
unstated objections and opposition to the fairness, reasonableness, and adequacy of this
Agreement, and any of its terms, and will have been deemed to have waived any right to recover
proceeds from any individual settlement agreement regarding the Released Claims, whose terms
will be void and unenforceable.
6. The Settling Plaintiffs expressly acknowledge that they are familiar with
principles of law such as Section 1542 of the California Civil Code, which provides:
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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.
7. With respect to the Released Claims, each Settling Plaintiff shall be deemed to
have expressly, knowingly, and voluntarily waived and relinquished to the fullest extent
permitted by law, the provisions, rights and benefits he or she may otherwise have had pursuant
to Section 1542 of the California Civil Code and all similar federal or state laws, rights, rules or
legal principles or any other jurisdiction that may be applicable herein. In connection with the
Released Claims, Settling Plaintiffs acknowledge that they are aware that they may hereafter
discover claims presently unknown and unsuspected or facts in addition to or different from
those which they now know or believe to be true with respect to matters released herein.
Nevertheless, Settling Plaintiffs acknowledge that a portion of the consideration received herein
is for a release with respect to unknown damages and complaints, whether resulting from known
injuries and known consequences or from unknown injuries or unknown consequences and state
it is the intention of the Settling Plaintiffs in agreeing to this release fully, finally and forever to
settle and release all matters and claims that exist or that might have existed (whether or not
previously or currently asserted in any action) up through and including the Settlement Effective
Date.
8. Each Named Plaintiff further acknowledges, agrees and understands that (i) he or
she has read and understands the terms of this Agreement and (ii) he or she has had an
opportunity to obtain and consider legal or other counsel or advisor as he or she deems necessary,
including Class Counsel.
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9. Subject to Court approval, each Settling Plaintiff shall be bound by this
Agreement and all of the Released Claims shall be dismissed with prejudice and released, even if
they never receive actual notice of the Action or of this Settlement.
10. Prudential hereby releases Class Counsel and the Named Plaintiffs from any and
all claims, rights, demands and actions of any and every kind whether known or unknown to
Prudential that could have been brought as counterclaims in this Action, including, but not
limited to claims of malicious prosecution.
X. CLAIMS ADMINISTRATOR
1. The Claims Administrator shall receive payment from the Gross Settlement
Amount for those administrative fees reasonably incurred as a result of procedures and processes
expressly required by this Agreement. Based on current estimates, the Parties anticipate that the
total sum paid to the Claims Administrator out of the Settlement Fund will not exceed
$150,000.00 but the Parties understand and agree that this figure represents just an estimate, that
the sum charged by the Claims Administrator may be different, and that the entire amount
charged will be offset against the Gross Settlement Amount.
2. The terms of this Agreement shall govern the actions of the Claims Administrator.
Class Counsel and Prudential may provide relevant information needed by the Claims
Administrator per this Agreement and engage in related communications with the Claims
Administrator with notice and copies to one another, but without notice or copies to any Notice
Recipient or the Court.
3. Counsel for each of the Parties shall have equal access to the Claims
Administrator.
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XI. TERMINATION OF AGREEMENT
1. Prudential has the right, in the exercise of its sole discretion, to nullify the
Settlement Agreement within twenty (20) calendar days after expiration of the
Claim/Objection/Exclusion Deadline, if 10% or more of the Notice Recipients in the aggregate,
or if 10% of any of the Certified Deductions Class Members or 10% of the Deductions Class
Members file Qualifying Exclusion Requests and become Non-Settling Plaintiffs. If Prudential
elects to nullify the Settlement Agreement pursuant to this provision, Prudential shall be solely
responsible for paying all costs to the Settlement Administrator for work performed up to the
date the Settlement is nullified. The Parties agree they will not encourage any Class Member to
forego executing a release of claims or to object to the Settlement or to otherwise submit a
Qualifying Exclusion Request, and will not encourage any Opt-In Plaintiff or Non-Deduction
Wage Claimant to fail to submit a Qualifying Claim Form.
2. In the event that the Court does not approve the Settlement set forth in this
Agreement, one of the conditions upon which this Agreement is based is not satisfied, or the
Settlement Effective Date does not occur, Prudential shall make no payments to anyone in
accordance with the terms of this Agreement, the Parties will bear their own costs and fees with
regard to the efforts to obtain Court approval, and this Agreement shall be deemed null and void
with no effect on the Action whatsoever. Court changes to the dates of hearings provided for in
this Agreement and/or reductions in the amount of the Fee and Expense Award, litigation costs,
Enhancement Payments and/or Incentive Awards shall not by themselves permit termination of
this Agreement.
3. Prudential’s acceptance of the Settlement is conditioned upon the execution of
this Agreement, including, without limitation, the release provisions, on or before the
Claim/Objection/Exclusion Deadline, by all Named Plaintiffs absent which Prudential has the
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right, in the exercise of its sole discretion, to terminate the Agreement within twenty (20) days
after the Claim/Objection/Exclusion Deadline.
XII. MISCELLANEOUS
1. The Parties understand and agree that this Agreement is the result of a good faith
compromise settlement of disputed claims, and no part of this Agreement or any conduct or
written or oral statements made in connection with this Settlement and this Agreement, whether
or not the Settlement is finally approved and/or consummated, or the Settlement Effective Date
occurs, may be offered as or construed to be an admission or concession of any kind by
Prudential or any of the Releasees.
2. Neither the Named Plaintiffs nor Class Counsel, prior to the filing of the motion
for Preliminary Approval, shall publicize, or cause to be publicized, directly or indirectly, the
discussions resulting in or the existence of this Settlement or its terms, in any type of mass media,
including, but not limited to, speeches, press conferences, press releases, interviews, television or
radio broadcasts, newspapers, messages on the Internet, Facebook, Twitter or any other social
media, Class Counsel’s, or any other, website. Without limiting Prudential’s rights and remedies
for a breach of this provision, such breach shall entitle Prudential, in the exercise of its sole
discretion, to nullify the Settlement Agreement at any time before Preliminary Approval by the
Court. Should any Named Plaintiff at any time breach this provision, the Named Plaintiff shall
forfeit to Prudential the full amount of his or her Enhancement Payment and Incentive Award, if
any. Without limitation by the foregoing, Prudential also may enforce this provision through an
action for injunctive relief. Named Plaintiffs and Class Counsel waive any obligation by
Prudential to file a bond in connection with any such action. Class Counsel may include the
name of this lawsuit on a declaration of representative cases for filing with the court in other
proceedings. If counsel for any Party receives an inquiry about the Settlement or this Agreement
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or the Action from the media, counsel for any Party may respond only after the motion for
Preliminary Approval has been filed and only by confirming the accurate terms of the Settlement
Agreement. Nothing in this provision shall prevent Prudential or Class Counsel or Named
Plaintiffs from making any disclosure required by law.
3. Without further order of the Court, the Parties hereto may agree in writing to
reasonable extensions of time to carry out any of the provisions of the Settlement Agreement.
4. This Agreement was entered into after substantial good faith, arms-length
negotiations between the Parties and their counsel. This Agreement has been entered into
without any coercion and under no duress. The Parties acknowledge and agree that all Parties
had an equal hand in drafting this Settlement Agreement so that it shall not be deemed to have
been prepared or drafted by one party to this Agreement or the other.
5. This Agreement (including all Exhibits hereto) sets forth the entire agreement of
the Parties with respect to its subject matter and supersedes any and all other prior agreements
and all negotiations leading up to the execution of this Agreement, whether oral or written,
regarding the subjects covered herein. The Parties’ MOU is deemed to be merged with and
superseded by this Agreement, and this Agreement shall govern exclusively. The Parties
acknowledge that no representations, inducements, warranties, promises, or statements relating
to the subjects covered herein, oral or otherwise, have been made by any of the Parties that are
not embodied or incorporated by reference herein.
6. This Agreement may not be modified or amended except in a writing signed by
all signatories hereto or their successors in interest.
7. This Settlement Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, executors, administrators, successors and assigns, and
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upon any corporation, partnership or other entity into or with which any Party hereto may merge,
combine or consolidate.
8. This Agreement may be executed in counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same instrument, and facsimile
signatures and/or “pdf” signed copies may be accepted as originals for any and all purposes of
executing this Agreement.
9. The waiver by any Party of any breach of this Agreement shall not be deemed or
construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of
this Agreement.
10. The terms of this Settlement Agreement shall be governed, construed, enforced,
and administered in accordance with the internal laws of the State of New Jersey, without regard
to conflict of law principles.
11. The headings contained in this Settlement Agreement are for convenience and
reference purposes only, and shall not be given weight in its construction.
12. Any issues arising out of or relating to this Settlement Agreement that cannot be
resolved by the Parties and/or Class Counsel and/or the Claims Administrator shall be submitted
to the Court, the Hon. Claire C. Judge Cecchi, U.S. District Judge, Presiding, which shall retain
jurisdiction over this Action for the limited purposes of: (i) resolving any issues relating to
enforcement or interpretation of this Agreement including any and all issues relating to payment
of administration costs, litigation costs, attorneys’ fees and/or distributions to Participating
Claimants and (ii) to select a charity or non-profit organization pursuant to Section V, Paragraph
14, of this Agreement, if necessary. The Court shall not retain jurisdiction of this Action for any
other reason or purpose. Under no circumstances shall the Court have authority to increase
payments owed by Prudential or to increase the Gross Settlement Amount.
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13. Any notices, requests, demands, or other communications required or permitted to
be given pursuant to this Settlement Agreement, other than notice to Notice Recipients, shall be
in writing and mailed as follows: (1) to Class Counsel: John Halebian, Lovell Stewart Halebian
Jacobson LLP, 420 Lexington Avenue, Suite 2440, New York, New York 10170, telephone
212-500-5010, email [email protected], and (2) to Prudential and counsel for Prudential, to
the attention of David B. Ross and Lorie E. Almon, Seyfarth Shaw LLP, 620 8th Avenue, 32nd
Floor, New York, NY 10018, (212) 218-5517, email at [email protected] and
14. No Person shall have any claim against Class Counsel, the Claims Administrator,
or counsel for Prudential based on the payments made or other actions taken substantially in
accordance with this Agreement or further orders of the Court.
15. Prudential agrees not to take any adverse action against any Named Plaintiff in
retaliation for acting as a class representative or against any Participating Claimant.
16. The Parties (i) acknowledge that it is their intent to consummate this Agreement;
and (ii) agree to cooperate to the extent reasonably necessary to effect and implement all terms
and conditions of this Agreement and to exercise their best efforts to accomplish the foregoing
terms and conditions of this Agreement.
17. All Confidential Material or Confidential Litigation Material within the meaning
of the Discovery Confidentiality Order (“Protective Order”) filed in the Action on April 26, 2007
shall be returned to the party producing such material (“Producing Party”) by the party to which
said material was delivered (“Receiving Party”) within forty-five (45) days after the Settlement
Effective Date, or, if the Receiving Party chooses to maintain such information, it shall notify the
Producing Party; and no later than at the end of three years and six months following the
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62 39480782v.3
Settlement Effective Date, the Receiving Party shall return to the Producing Party, or destroy, at
the Receiving Party’s election, all documents containing Confidential Material or Confidential
Litigation Material (as defined in the Protective Order), including all copies of such documents
which may have been made, but not including any notes or other attorney work product that may
have been placed thereon by a Qualified Person, as that term is defined in the Protective Order;
however, as to such Confidential Material or Confidential Litigation Material claimed to contain
attorney work product, upon the Producing Party’s request, all such documents shall be
destroyed by the Receiving Party. Each Party shall pay for all costs associated with its return or
destruction of documents. In the event of destruction of documents, the Receiving Party shall
provide the Producing Party with a certification of destruction within ten (10) days of destruction.
18. Each Person executing this Agreement or any of its exhibits on behalf of any
Settling Party hereby warrants that he or she has the full authority to do so.
Dated: June __, 2017 LOVELL STEWART HALEBIAN
JACOBSON LLP
By: _____________________________
As Class Counsel
Dated: June __, 2017 WINNE, BANTA, BASRALIAN & KAHN,
P.C.
By: _____________________________
As Class Counsel
Dated: June __, 2017 LAW OFFICES OF JOHN M. KELSON
By: _____________________________
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Settlement Effective Date, the Receiving Party shall return to the Producing Party, or destroy, at
the Receiving Party's election, all documents containing Confidential Material or Confidential
Litigation Material (as defined in the Protective Order), including all copies of such documents
which may have been made, but not including any notes or other attorney work product that may
have been placed thereon by a Qualified Person, as that term is defined in the Protective Order;
however, as to such Confidential Material or Confidential Litigation Material claimed to contain
attorney work product, upon the Producing Party's request, all such documents shall be
destroyed by the Receiving Party. Each Party shall pay for all costs associated with its return or
destruction of documents. In the event of destruction of documents, the Receiving Party shall
provide the Producing Party with a certification of destruction within ten (10) days of destruction.
18. Each Person executing this Agreement or any of its exhibits on behalf of any
Settling Party hereby warrants that he or she has the full authority to do so.
Dated: June (A 2017&
Dated: June^,2017
Dated: June•2§2017
LOVELL STEWART HALEBIANJACOBSON LLP
WINNE, BANTA, BASRALIAN & KAHN,P.C.
By: AfpAwtfK Kx tftTjAs Class Counsel AX\.
LAW/OFFICES OF JOHN Mc KELSON
By: £ b ^
39480782v362
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As Class Counsel
Dated: JuneiX.2017
Dated: June^d,20172T2
JERRY K. CIMMET
-=/y /?. ~ /:By A—L'€i£t'
As'Qa^s Counsel
KESSLER TOPAZ MELTZER & CHECK,LI
Dated: June ,2017 THE PRUDENTIAL INSURANCECOMPANY OF AMERICA andPRUDENTIAL FINANCIAL, INC.
By:Caroline FeeneySenior Vice PresidentThe Prudential Insurance Companyof America
39480782V.363
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As Class Counsel
Dated: June_, 2017 JERRY K. CIMMET
By:
__________________
As Class Counsel
Dated: June —, 2017 KESSLER TOPAZ MELTZER & CHECK,
LLP
By:
________________________
As Class Counsel
Dated: June 2017 THE PRUDENTIAL INSURANCE
COMPANY OF ERICA and /PRUDENTIAY’ANCIN/
By: / fL J]At/irneFeeneYj
The Prudential Insurance Companyof America
63394$0782v.3
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Dated: June 1520 17
39480782v.2
-r ~"5/- ///7,<1)t/.- dIJI 5"57 ~tf 6i).__
68
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71 39480782v.2
Dated: June __, 2017 _____________________________ SANDRA KING
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Dated: June.25 20 17
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