UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Katherine Ponce, individually and on behalf of all others similarly situated, Civil No (JNE/JSM) Plaintiff, v. Lenovo (United States) Inc., Defendant. CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE This Class Action Settlement Agreement and Release is entered into by Plaintiff Katherine Ponce, on her own behalf and on behalf of the Settlement Class set forth herein, and Defendant Lenovo (United States) Inc. ( Lenovo ), subject to the approval of the Court. DEFINITIONS 1. As used in this Settlement Agreement, the following terms shall have the following meanings: a. Action means the above-captioned lawsuit. b. Agreement or Settlement Agreement or Settlement means this Settlement Agreement and Release. c. Amended Complaint means Plaintiff s Amended Class Action Complaint dated May 9, d. Claim Form means the claim form approved by the Court in its Preliminary Approval Order. The Parties proposed Claim Form is attached as Exhibit 1. 1

2 e. Claims Deadline means the date sixty (60) days after the Class Notice Date. f. Claims Administrator means the person or entity responsible for all functions associated with settlement administration and claims administration, including the functions described in Paragraphs 20 and of this Agreement. The Parties shall mutually select the Claims Administrator subject to Court approval. g. Class Counsel or Plaintiff s Counsel means Nichols Kaster, PLLP, the University of Minnesota Law School Consumer Law Clinic, and Michael Vanselow, Esq. h. Class Period means the period from December 1, 2014 through December 31, i. Class List means the list of Settlement Class Members that Lenovo will provide to the Claims Administrator after the Preliminary Approval Date as set forth in Paragraph 21 below. j. Class Notice means the notice of Settlement approved by the Court for distribution to the Settlement Class on the Class Notice Date. The Parties proposed Class Notice is attached hereto as Exhibit 2. k. Class Notice Date means the date by which the Class Notice is required to be transmitted, as provided in Paragraph 24 below. l. Court means the United States District Court for the District of Minnesota. m. Defendant s Counsel means K&L Gates LLP and Dykema Gossett PLLC. 2

3 n. Effective Date means either: (i) the date of the Final Approval Order of this Agreement by the Court if no objections are timely filed; (ii) the expiration date of the time for filing notice of any appeal from the Final Approval Order by the Court if any timely objections are filed but no appeal is filed; or (iii) if an appeal is filed, the latest of (A) the date of final affirmance of that Order, (B) the expiration of the time for a petition for writ of certiorari to review the Order if affirmed and, if the certiorari is granted, the date of final affirmance of the Order following review pursuant to that grant; or (C) the date of final dismissal of any appeal from the Order or the final dismissal of any proceeding on certiorari to review the Order that has the effect of confirming the Order. o. Eligible Claimant means a Settlement Class Member who submits a Valid Claim in accordance with paragraphs 13 or 16 below. p. Final Approval Hearing means the hearing to be requested by the Parties and conducted by the Court, following notice to the Settlement Class and an opportunity for Settlement Class Members to exclude themselves from the Settlement Class or object to the Settlement, at which time Plaintiff will request the Court to finally approve the fairness, reasonableness and adequacy of the Settlement and to enter the Final Approval Order. q. Final Approval Motion or Motion for Final Approval means Plaintiffs motion seeking final approval of this Agreement and judgment dismissing the Action. r. Final Approval Order means the order to be entered by the Court in this Action granting final approval of this Settlement Agreement. 3

4 s. Judgment means the Judgment of Dismissal with prejudice to be entered by the Court in this Action pursuant to this Settlement Agreement. t. Notice means any form of notice of the Settlement, as provided in Paragraphs below (i.e., Exhibits 2, 4, and 5). u. Opt-Out Deadline means the date sixty (60) days after the Class Notice Date. v. Opt-Out Request means a request to opt out of the Settlement Class as provided by Paragraph 32 of this Agreement. w. Parties means Plaintiff, on behalf of herself and the Settlement Class, and Defendant Lenovo (United States) Inc., on behalf of itself, its subsidiaries, affiliates, directors, officers, and their successor(s). x. Preliminary Approval Date means the date the Court enters the Preliminary Approval Order. y. Preliminary Approval Motion or Motion for Preliminary Approval means Plaintiff s motion seeking preliminary approval of this Settlement. z. Preliminary Approval Order means the Court s Order preliminarily approving this Agreement, setting a date for the Final Approval Hearing, and providing for notice of the Settlement to be sent to Settlement Class Members. aa. Released Claims means any and all claims, actions, demands, causes of action, suits, liens, debts, obligations, damages, rights, liabilities, judgments, losses, or offsets of any nature and description whatsoever, contingent or mature, known or unknown, sounding in law or equity, seeking damages or any other relief, that are now 4

5 recognized by law or that may be created or recognized in the future by statute, regulation, judicial decision or in any other manner, based upon any federal or state statutory or common law including but not limited to, claims sounding in tort, contract and the consumer protection laws of the United States or of any state or other jurisdiciton within the United States that were or could have been asserted by Plaintiff or any Settlement Class Members and that arose at any time up to and including the date this Settlement Agreement is executed based on any of the facts or any of the theories asserted in the Amended Complaint in this Action and any and all claims, however denominated, based upon the same factual predicates as those alleged in the Amended Complaint. bb. Released Parties means individually and collectively, as appropriate, Lenovo and each and all of its past, present, and future parents, subsidiaries, affiliated companies, and corporations, and each and all of their past, present, and future directors, officers, managers, employees, general partners, limited partners, principals, agents, shareholders, attorneys, advisors, representatives, predecessors, successors, and assigns. cc. Settlement Class means: All persons in the United States who purchased a Lenovo computer or tablet, other than a ThinkPad branded product, through Lenovo s website on or after December 1, 2014 through December 31, Excluded from the Settlement Class are the Judge and Magistrate Judge to whom this case is assigned, and any members of their immediate families. 5

6 dd. Settlement Class Members means persons who are members of the Settlement Class, and do not timely exercise their right to opt out of the Settlement Class. ee. Settlement Payment means the $50.00 payment due to all Settlement Class Members who submit Valid Claims and do not Opt Out, pursuant to Paragraph 13 of this Agreement. ff. Valid Claim means a Claim Form that is timely submitted pursuant to Paragraphs 13 or 16 below and contains all required information. RECITALS 2. On March 16, 2016, Plaintiff commenced this Action in the Fourth Judicial District, Hennepin County, Minnesota, by serving a Class Action Complaint on Lenovo. On April 15, 2016, Lenovo removed the Action to the United States District Court for the District of Minnesota by filing a Notice of Removal. On May 9, 2016, Plaintiff filed an Amended Class Action Complaint in this Action, and Lenovo Answered the Amended Complaint on May 23, No class has yet been certified. 3. Plaintiff s Amended Class Action Complaint asserts claims for violations of the Minnesota Unlawful Trade Practices Act ( MUTPA ), Minn. Stat. 325D.09 et seq.; the Minnesota Prevention of Consumer Fraud Act ( MPCFA ), Minn. Stat. 325F.68 et seq.; the Minnesota False Statements in Advertising Act ( MFSAA ), Minn. Stat. 325F.67; the California Consumer Legal Remedies Act ( CLRA ), Cal. Civil Code 1750 et seq.; the California False Advertising Law ( CFAL ), Cal. Bus. & Prof. Code et seq.; the California Unfair Competition Law ( CUCL ), Cal. Bus. & Prof. Code et seq.; and an alternative claim for violations of the New York 6

7 Deceptive Practices Act ( NYDPA ), N.Y. Gen. Bus. Law 349 et seq. Finally, Plaintiff asserts a claim for unjust enrichment/restitution. Plaintiff alleges that Lenovo engaged in a deceptive false reference pricing scheme related to computers and tablets sold on its website. Lenovo denies Plaintiff s allegations. 4. The parties engaged in extensive mediation overseen by retired Magistrate Judge Edward Infante, including a full-day, in-person mediation on July 20, 2016 in San Francisco, California, and multiple subsequent telephone sessions overseen by Judge Infante. Prior to the mediation, Lenovo provided documentation and information regarding (among other things) pricing strategies, advertised sale prices and reference prices, and alleged discounts related to computers and tablets sold on its website. 5. Ultimately, as a result of the mediation process, analysis of the data provided by Lenovo, and subsequent negotiations between the Parties overseen by Judge Infante, the Parties have agreed to settle this Action according to the terms of this Agreement. 6. At all times, the Parties have negotiated vigorously with each other and at arm s length. The Parties have investigated the facts relating to the claims alleged in the Amended Complaint and original Complaint, and have made a thorough study of the legal principles applicable to the claims of Plaintiff and the Settlement Class. Based upon Plaintiffs Counsel s investigation, legal evaluation, and taking into account the contested legal and factual issues involved, including the Parties assessment of the uncertainties of litigation and the relative benefits conferred upon the Settlement Class Members pursuant to this Agreement, Plaintiff and Plaintiff s Counsel have concluded that the Settlement 7

8 with Lenovo on the terms set forth in this Agreement is fair, reasonable, adequate, and in the best interests of the Settlement Class. 7. Lenovo has asserted and would assert numerous defenses to the claims alleged by Plaintiff and expressly denies each of the claims and allegations asserted against Lenovo and any and all liability arising out of the conduct alleged in the Amended Complaint. Lenovo asserts that its pricing practices are lawful and proper and were so at all times during the Class Period, and denies that either Plaintiff or the Settlement Class Members suffered any cognizable injury as a result of anything that Lenovo did or failed to do. By entering into this Agreement, Lenovo does not admit any wrongdoing and this Agreement is not and shall not constitute an admission of liability by Lenovo. This Agreement constitutes a compromise pursuant to Fed. R. Civ. P. 408(a). It shall not be offered or be admissible, either in whole or in part, as evidence against Lenovo, except in any action or proceeding to enforce its terms. 8. For settlement purposes only, subject to the Court s preliminary and final approval of this Settlement Agreement as set forth herein, the Parties stipulate to certification of the Settlement Class under Federal Rule of Civil Procedure 23 and to the appointment of Plaintiff s Counsel as Class Counsel. 9. The Parties recognize that notice to the Settlement Class Members of the material terms of this Agreement, as well as Court approval of the Agreement, are required to effectuate the Agreement, and that the Agreement will not become operative until the Effective Date. 8

9 10. NOW THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN the Parties, that this Action shall be settled, compromised and dismissed, on the merits and with prejudice, and the Released Claims shall be finally and fully compromised, settled and dismissed as to the Released Parties, subject to the approval of the Court, and pursuant to the following terms and conditions: PROSPECTIVE RELIEF 11. As part of this Settlement, Lenovo agrees that no price shall be advertised on its website as a former price (however it may be characterized) of a non-thinkpad laptop or tablet, unless the alleged former price was the prevailing market price within three months next immediately preceding the publication of the advertisement or unless the date when the alleged former price did prevail is clearly, exactly, accurately, and conspicuously stated in the advertisement. This provision shall be subject to a five-year time limit, which shall run from the Effective Date. CLAIMS PROCESS AND MONETARY RELIEF 12. All Settlement Class Members shall have the opportunity to submit a claim for monetary relief by submitting a Claim Form. 13. Settlement Class Members who submit a valid Claim Form on or before the Claims Deadline (or who timely cure any defective Claim Form within 30 days of the Claims Deadline as provided in Paragraph 16 below) shall be entitled to receive a Settlement Payment in the amount of $ The Settlement Website operated by the Claims Administrator shall allow the electronic submission of Claim Forms by Settlement Class Members. Settlement 9

10 Class Members shall be able to electronically fill out and submit a Claim Form by clicking a button or link clearly and conspicuously displayed on the landing page of the Settlement Website. Alternatively, Settlement Class Members may submit a Claim Form to the Claims Administrator via U.S. Mail or fax, in which case their Claim Form will be deemed submitted on the postmark date or facsimile transmission date (as applicable). 15. To submit a Claim Form, Settlement Class Members shall be required to do only the following: (a) provide or confirm their name, address, and mailing address (to the greatest extent possible, this information shall be pre-populated by the Claims Administrator such that class members need only confirm, or if necessary, update the relevant information); and (b) affirm that they purchased a Lenovo non-think laptop or tablet through Lenovo s website at a discount on or after December 1, 2014 through December 31, Settlement Class Members shall not be required to specify the specific model purchased, provide receipts, or notarize the information provided on the Claim Form. 16. If any timely submitted Claim Forms are deemed invalid for any reason, the Claims Administrator shall promptly follow-up with the Settlement Class Member who submitted such Claim Form in order to provide such Settlement Class Member the opportunity to cure the deficiency. Any deficient Claim Form may be cured and shall be accepted by the Claims Administrator as valid so long as the defect is resolved no later than 30 days after the Claims Deadline. 17. Within thirty (30) days of the Effective Date, Lenovo shall deliver to the Claims Administrator a sum equal to the total amount of Settlement Payments due to all 10

11 Eligible Claimants. Within thirty (30) days of receipt from Defendants of the total amount of Settlement Payments due to all Eligible Claimants, the Claims Administrator shall mail via first class mail to all such Eligible Claimants a check in the amount of $ Any Settlement Payment that is returned as non-deliverable with a forwarding address shall be r ed by the Claims Administrator to such forwarding address within seven (7) days. To the extent that any Settlement Payments are returned as nondeliverable without a forwarding address, the Claims Administrator shall, within the same period of time, conduct an automated skip trace to locate valid address information for the intended recipients of such Settlement Payments, and shall promptly r the Settlement Payment, as applicable, to any Eligible Claimants for whom new address information is identified. 18. Eligible Claimants who are sent a Settlement Payment shall have one hundred eighty (180) days from the date the Settlement Payment was mailed to cash or deposit their check. Settlement Class Members may request that new checks be issued by the Claims Administrator during this time period, if they lose or misplace their original check. However, the time period for cashing or depositing the check will be the same as the original time period set forth above. If a Settlement Payment check is not deposited or cashed within this one hundred eighty (180) day period, the check will be cancelled and void. 11

12 PRELIMINARY APPROVAL 19. Promptly after the Parties execute this Agreement, Plaintiffs Counsel shall submit this Agreement, together with its exhibits, to the Court, and shall move the Court for a Preliminary Approval Order substantially in the form of Exhibit 3 hereto, which a. preliminarily approves the Settlement; b. approves the form and manner of distributing notice of the Settlement to the Settlement Class, as provided herein; and c. appoints Plaintiff as Class Representative and Plaintiff s Counsel as Class Counsel for the Settlement Class, for purposes of this Settlement. NOTICE OF SETTLEMENT 20. The Claims Administrator shall be responsible for preparing and transmitting notice of the Settlement to Settlement Class Members. 21. As soon as reasonably practicable, and no later than fourteen (14) days after the Preliminary Approval Date, Lenovo shall provide the Claims Administrator with a Class List in the form of an Excel spreadsheet identifying the members of the Settlement Class and consisting of the following information for each individual member to the extent available: a. Name b. Billing Address c. Shipping Address d. Address e. Telephone # 12

13 f. Date of Purchase g. a Class ID Number for each Settlement Class Member consisting of a unique identifying number for each such Class Member. 22. The Claims Administrator shall keep this Class List confidential and use the information for the sole purpose of administering the Settlement. Class Counsel shall be entitled to inspect the Class List for verification purposes, subject to the Protective Order entered by the Court in connection with the Action. 23. The Claims Administrator shall take reasonable measures to verify and update the Class List by running the Class List through the U.S. Postal Service s National Change of Address ( NCOA ) database and will update the Class List based on information it receives therefrom. 24. As soon as reasonably practicable, and no later than twenty-one (21) days after receiving the Class List, the Claims Administrator shall transmit to Settlement Class Members via the Class Notice and a link to the Claim Form. The Class Notice shall be sent in a manner such that the Claims Administrator may track whether the Class Notice was successfully delivered and whether the Class Notice was read. 25. For any Settlement Class Member to whom the Class Notice was not delivered via , the Claims Administrator shall send a Substitute Class Notice via U.S. Mail. The Parties proposed Substitute Class Notice is attached as Exhibit 4 to this Agreement. 26. For any Settlement Class Member to whom the Class Notice was delivered via but that Class Member either (i) did not read the containing the Class 13

14 Notice or (ii) read the containing the Class Notice but did not submit a claim, the Claims Administrator shall transmit a Reminder Notice via 30 days after the initial Class Notice was transmitted. The Parties proposed Reminder Notice is attached as Exhibit 5 to this Agreement. 27. In the event that any mailed Notice is returned to the Claims Administrator as non-deliverable before the Claims Filing Deadline, and a forwarding address is provided with the returned Notice, the Claims Administrator shall, within seven (7) days of receiving the returned Notice, resend the Notice to the provided forwarding address. To the extent that a forwarding address is not provided with the returned Notice, the Claims Administrator shall, within the same period of time, conduct an automated skip trace to locate valid address information for the intended recipient of such Notice, and shall promptly r the Notice to any Settlement Class Members for whom new address information is identified. 28. All forms of Notice shall (a) contain all information required by Federal Rule of Civil Procedure 23; (b) prominently, plainly, and concisely state that as a result of Settlement in this action, the Settlement Class Member to whom Notice was sent will be entitled to a cash payment of $50 upon submitting a Valid Claim; (c) include a statement that Lenovo denies liability; (d) include the website address for the Settlement Website (and a hyperlink to the Settlement Website if the Notice transmitted is via ); and (e) explain that Settlement Class Members may submit claims electronically through the Settlement Website, or alternatively, obtain a hard copy of the Claim Form 14

15 (by printing it from the Settlement Website or contacting the Claims Administrator) and submit their claims via fax or U.S. Mail. 29. Effective on the Class Notice Date, the Claims Administrator shall arrange for a toll-free telephone call center facility to be active until such time as all distributions of Settlement Payments are completed to eligible Settlement Class Members and the period for cashing settlement checks expires, in order to address questions from Settlement Class Members. The toll-free telephone call facility will employ an interactive voice response system ( IVR system ) to answer calls. For the first 60 days after the Class Notice is transmitted, and again for the first 60 days after Settlement Payments are mailed to Eligible Class Members, the IVR system will provide callers the option of speaking with a live operator. At all other times during which the toll-free telephone call center facility is maintained, callers will not have the option of speaking with a live operator, but will have the option of leaving a message with a return phone number. The Claims Administrator will forward those messages to Class Counsel for response. 30. Effective on the Class Notice Date, the Claims Administrator also shall make active a Settlement Website. On this Settlement Website, Settlement Class Members shall be able to (1) electronically fill out and a submit Claim Form; (2) obtain copies of the Claim Form, Class Notice, and Settlement Agreement, and (3) obtain other documents relating to the Action, including the Complaints, Plaintiff s Preliminary Approval Motion(and documents in support), the Court s Preliminary Approval Order, Class Counsel s Motion for Attorneys Fees and Expenses (and documents in support), Plaintiff s Final Approval Motion (and documents in support), and the Court s Final 15

16 Approval Order. The website shall remain active until such time as distributions of Settlement Payments are completed and the period for cashing settlement checks expires. 31. In addition to the foregoing forms of notice, Class Counsel may, at their sole expense, disseminate additional notice to Settlement Class Members through press releases, website postings, or other means. Prior to disseminating any additional notice, Class Counsel shall seek approval of the content of the additional notice from Lenovo, which approval shall not be unreasonably withheld. OPT-OUTS AND OBJECTIONS 32. The Class Notice shall provide that Settlement Class Members who wish to exclude themselves from the Settlement Agreement must submit an Opt-Out Request. To be effective, each Opt-Out Request must contain the name and address of the Settlement Class Member requesting exclusion from the Settlement and be personally signed by the Settlement Class Member who is requesting exclusion from the Settlement. Any Settlement Class Member who submits a timely Opt-Out Request will not be entitled to submit any claim for payment from Lenovo and will not be bound by the Settlement Agreement or have any right to object, appeal or comment thereon. No Opt-Out Request may be made on behalf of a group of Settlement Class Members. To be valid, all Opt-Out Requests must be sent by mail to the Claims Administrator at the address provided in the Class Notice and must be timely postmarked no later than the Opt-Out Deadline. The postmark date of the mailing envelope shall be the exclusive means used to determine whether an Opt-Out Request has been timely submitted. The Claims Administrator shall provide the Parties with copies of all Opt-Out Requests on a weekly basis. 16

17 33. The Class Notice shall provide that any Settlement Class Member who wishes to object to the Settlement must mail a written statement of objection to the Claims Administrator. The objection must (a) state the basis for the objection, (b) provide the name and address of the Settlement Class Member making the objection, and (3) be personally signed by the Settlement Class Member. The objection must be sent by mail to the Claims Administrator at the address provided in the Class Notice and must be timely postmarked no later than the Opt-Out Deadline. The postmark date of the mailing envelope shall be the exclusive means used to determine whether an objection has been timely submitted. The Claims Administrator shall provide the Parties with copies of all objections on a weekly basis. Settlement Class Members who fail to make objections in the manner and within the time limits set forth above shall be deemed to have waived any objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement Agreement. COSTS OF CLAIMS ADMINISTRATION 34. Lenovo shall pay all costs of the Claims Administrator, including but not limited to the cost of: (1) preparing and disseminating the notice of the Settlement to Settlement Class Members; (2) establishing and maintaining the Settlement Website and toll-free call facility; (3) reviewing submitted Claim Forms; and (4) mailing checks to Settlement Class Members. 17

18 ATTORNEYS FEES AND EXPENSES TO CLASS COUNSEL 35. Subject to approval by the Court, Lenovo shall payattorneys fees to Class Counsel in the amount of $750,000, and reimburse Class Counsel for all costs and expenses incurred by Class Counsel in this Action. 36. At least thirty (30) days prior to the deadline for Settlement Class Members to opt-out or object to the Settlement, Class Counsel shall file a motion for attorneys fees and expenses. Lenovo shall not oppose Class Counsel s motion, provided that Class Counsel do not seek more than $750,000 in attorneys fees, plus their costs and expenses in this Action. 37. Any attorneys fees and expenses that are awarded by the Court shall be paid separately by Lenovo, and shall not reduce the Settlement Payments to Settlement Class Members who submit Valid Claims. 38. Lenovo shall pay the amount of attorneys fees and expenses awarded by the Court within fourteen (14) days of the award by the Court. 39. Except as otherwise provided herein, each Party shall bear its own costs and attorneys fees. SERVICE AWARD TO CLASS REPRESENTATIVE 40. Plaintiff shall petition the Court for a service award of up to $5,000 to be paid by Lenovo separate from any payment described above. Lenovo shall not oppose Plaintiff s petition for such an award. 18

19 FINAL APPROVAL ORDER AND JUDGMENT 41. At least fourteen (14) days before the Final Approval Hearing, Plaintiffs shall file a motion requesting that the Court grant final approval of the Settlement Agreement and enter a Judgment of dismissal with prejudice, with Plaintiff s Counsel filing a memorandum of law in support of the motion, and addressing any timely submitted objections to the Settlement. 42. At the Final Approval Hearing, the Court will consider and determine whether the provisions of this Agreement should be approved, whether the Settlement should be finally approved as fair, reasonable, and adequate, whether any objections to the Settlement should be overruled, the amount of attorneys fees and expenses to be awarded to Plaintiffs Counsel under this Agreement, and whether a Judgment dismissing this Action with prejudice should be entered. 43. This Agreement is subject to and conditioned upon the issuance by the Court of a Final Approval Order, which grants final approval of this Agreement and: a. Finds that the Class Notice satisfies the requirements of due process and Federal Rule of Civil Procedure 23; b. Finds that the Agreement is fair, reasonable and adequate to the Settlement Class, and that each Settlement Class Member (except those who submit a timely and valid request to Opt-Out) shall be bound by this Agreement; c. Certifies the Settlement Class for settlement purposes; d. Approves the adequacy of Plaintiffs as class representatives and Plaintiff s Counsel as Class Counsel for the Settlement Class 19

20 e. Dismisses the Action with prejudice; f. Reserves jurisdiction, without affecting the finality of the Judgment, over: (i) the interpretation, implementation and enforcement of the Settlement and any payments under the Settlement; (ii) disposition of the proceeds of the settlement; and (iii) the enforcement and administration of this Settlement Agreement. TERMINATION OF AGREEMENT 44. Plaintiff, on behalf of the Settlement Class Members, by Plaintiff s Counsel, and Lenovo, by its counsel, shall each have the right to unilaterally terminate this Agreement by providing written notice of their election to do so to all other Parties hereto within fourteen (14) days of: (a) the Court s refusal to grant Preliminary Approval of this Agreement; (b) the Court s refusal to grant final approval of this Agreement; or (c) the date upon which the Final Approval Order and Judgment are modified or reversed in any material respect by the Eighth Circuit Court of Appeals or the U.S. Supreme Court. The above notwithstanding, the Parties agree that should the Court modify the Agreement in any respect, the Parties will, within the above-indicated period, meet and confer in a good faith attempt to reach agreement and preserve the Agreement. RELEASES 45. Class Release. Subject to the approval by the Court of this Settlement Agreement and the entry of a Final Approval Order and Judgment, upon the Effective Date, each Settlement Class Member who does not submit a timely request to Opt-Out, and his or her assigns, heirs, successors and personal representatives, shall release, resolve, relinquish, and discharge each and all of the Released Parties from each of the 20

21 Released Claims that exist or may exist in their favor through the date of the execution of this Settlement Agreement. Each Settlement Class Member, on behalf of himself or herself and his or her respective successors and assigns agree that they will not institute any action or cause of action (in law, in equity, or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent, which they may have or claim to have, asserting any of the Released Claims against the Released Parties or any of them. 46. Upon the Effective Date, each and every Settlement Class Member shall be deemed to have, on behalf of the Settlement Class Member and the Settlement Class Members' respective successors and assigns, covenanted and agreed to: (i) forever refrain from instituting, maintaining or proceeding in any action against the Released Parties with respect to any Released Claims; (ii) release and forever discharge the Released Parties from each and every such Released Claim; and (iii) this Agreement being pleaded as a full and complete defense to, and being used as the basis for a temporary restraining order or preliminary or permanent injunction against, any action, suit or other proceeding which has been or may be instituted, prosecuted, continued to be prosecuted, or attempted, asserting any Released Claim. 47. Subject to confirmatory discovery, Plaintiff, on behalf of herself and the Settlement Class Members, fully understands that if any fact relating to any matter covered by this Agreement is later found to be other than, or different from, the facts now believed by Plaintiff to be true, Plaintiff, on behalf of herself and the Settlement Class Members, expressly accepts and assumes the risk of such possible differences in fact and acknowledges that this Agreement shall nevertheless remain fully binding and effective. 21

22 MISCELLANEOUS 48. Acknowledgment. Each of the Parties acknowledges and represents that such Party: (a) has fully and carefully read this Agreement prior to execution; (b) has been fully apprised by counsel of the legal effect and meaning of the terms of this Agreement; (c) has had the opportunity to undertake whatever investigation or inquiry is necessary or appropriate in connection with this Agreement; (d) has been afforded the opportunity to negotiate any and all terms of this Agreement; and (e) is executing this Agreement voluntarily and free from any undue influence, coercion, or duress of any kind. 49. Agreement to Cooperate. The Parties and their respective counsel will cooperate with each other and use their best efforts to effect the implementation of the Agreement. 50. Authority. Each person executing this Settlement Agreement on behalf of any of the Parties represents that such person has the authority to execute this Agreement. 51. Binding Upon Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the successors or assigns of the Parties, the Released Parties, and the Settlement Class. 52. Construction. The Parties believe that the terms of this Agreement are a fair, adequate and reasonable settlement of this Action, and have arrived at this Settlement Agreement in arms-length negotiations and with the assistance of an experienced mediator, taking into account all relevant factors, present and potential. This 22

23 Agreement has been drafted jointly by counsel for the Parties and no Party is, or shall be considered or deemed, the drafter of the Agreement for any reason or purpose. 53. Counterparts. This Agreement may be executed in one or more counterparts. All executed copies of this Agreement and photocopies thereof (including facsimile and/or ed copies of the signature pages), shall have the same force and effect and shall be as legally binding and enforceable as the original. 54. Defense Fees and Costs. All of Defendant s own attorneys fees and legal costs and expenses incurred in the Action shall be borne by Defendant. 55. Governing Law. This Agreement shall be governed by the laws of the State of Minnesota. 56. Headings and Captions. The headings and captions in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement, or any term of this Agreement. Each term of this Agreement is contractual and is not merely a recital. 57. Notices. Unless otherwise agreed in writing, all notices to the Parties or counsel required by the Agreement, not including the Class Notice or Claim Form, shall be made in writing and communicated by first class mail and to the following: If to Plaintiff, Settlement Class Members, or Plaintiff s Counsel: NICHOLS KASTER, PLLP Kai H. Richter 4600 IDS Center 80 South Eighth Street Minneapolis, MN Tel: (612) krichter@nka.com 23

24 If to Defendant or Defendant s Counsel: K&L GATES LLP Daniel J. Stephenson 4350 Lassiter at North Hills Ave. Suite 300 Raleigh, NC Ph dan.stephenson@klgates.com 58. Integration Clause. This Agreement, including all exhibits hereto, contains a full, complete, and integrated statement of each and every term and provision agreed to between and among the Parties and supersedes any prior representations, writings or agreements (written or oral) between or among the Parties, which prior agreements may no longer be relied upon for any purpose. This Agreement may not be orally modified in any respect and may be modified only by the written agreement of the Parties. In the event a dispute arises between the Parties over the meaning or intent of any provision of this Agreement, the Parties agree that prior drafts, notes, memoranda, discussions or any other oral communications or documents regarding the negotiations, meaning or intent of this Agreement shall not be offered or admitted into evidence. 59. Retention of Jurisdiction. The Court shall retain jurisdiction to interpret, implement, and enforce this Agreement. The Parties consent to jurisdiction for this purpose. 24

25 I /:'//.. I / - : Date: I // q /20/7 i Approved as to Form and Content: For Plaintiff Kai Iiichter (# krichte.r@nka.com Anna P. Prakash (# ) aprakash@nka.com Brock J. Specht (# ) bspecht@nka.com 4600 IDS Center, 80 South 8th Street Minneapolis, MN Telephone: (612) Facsimile: (612) UNIVERSITY OF MINNESOTA LAW SCHOOL CONSUMER LAW CLINIC Prentiss Cox (# ) Coxxx21l@umn.edu th Ave. S. Minneapolis,~ Telephone: (612) By: ah:,j~q_. 1 O!dtZh r- Date: A.(t y) 2.ol{ ( For Defendant K&L GATES LLP ~=-- 'el J. enson (adm. pro hac vtce) Title: &er,j.u \J.uc Jot.. LJv t\~~= dan.stephenson@klgates.com- Brian C. Fork (adm. pro hac vice) brian.fork@klgates.com 4350 Lassiter at North Hills Ave. Suite 300 Raleigh, NC Ph DYKEMA GOSSETT PLLC Brian Melendez 4000 Wells Fargo Center 90 South Seventh Street Minneapolis, MN Ph Attorneys for Lenovo (United States), Inc. MICHAELVANSELOW,ESQ. Michael Vanselow (# ) michael.vanselowl222@gmail.com 6933 Black Duck Drive Lino Lakes, MN Telephone: (612) Counsel for Plaintiff and the Settlement Class 25