Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 1 of 15 UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

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1 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 1 of 15 Civil Action No. 13-cv REB-MJW UNITED STATES DISTRICT COURT DISTRICT OF COLORADO LELAND SMALL, individually and on behalf of a class of other similarly situated persons, v. BOKF, N.A. Plaintiff, Defendant. PLAINTIFF S MEMORANDUM IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT AND NOTICE TO CLASS I. Preliminary Statement Subject to Court approval, the Parties have reached an agreement to settle the claims in this case. In exchange for a mutual release of liability arising out of the Truth in Lending Act ( TILA ) claims alleged herein and the dismissal of this action upon final approval by the Court, BOKF agrees to create a Settlement Fund as defined in the Settlement Agreement in the amount of $1,800, a full 90% of the best-case damages the Class could have hoped to achieve at trial. The Parties have agreed that funds will be paid to Settlement Class Members pursuant to an equitable allocation formula described in the Agreement or another method approved by the Court. At the appropriate time, Plaintiff will apply separately to the Court for an award of his attorneys fees and expenses in an amount not to exceed $1,325, BOKF does not oppose an application up to $1,325, and BOKF would pay the attorney fees and expenses awarded by the Court up to that amount separate and apart from the Settlement Fund. Plaintiff will also apply separately at the appropriate time for a service

2 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 2 of 15 award for Class Representative Leland Curt Small in an amount not to exceed $25, BOKF does not oppose an application for service award up to $25, and BOKF would pay the service award determined by the Court up to that amount separate from the Settlement Fund. Moreover, BOKF has also agreed to pay for the costs of a mutually agreed Notice to Class and the administrative costs charged by Epiq Systems, a mutually agreed third-party administrator for settlement administration another benefit which accrues to the benefit of the Class. The Parties respectfully request that the Court: (1) grant preliminary approval of the Settlement Agreement attached hereto as Exhibit A; (2) approve the proposed Notices attached hereto as Exhibit B; (3) appoint Epiq Systems as the third-party administrator of the Settlement; and (4) order the parties to appear before this Court for a Final Approval and Fairness Hearing on a date approximately ninety-one (91) days from the date of the Preliminary Approval Order. II. Case Background and Procedural Posture This case originated with the filing of Plaintiff s Complaint in the District of Colorado on April 26, 2013, asserting claims on behalf of himself and a putative Rule 23 class. [Dkt. #1]. Plaintiff alleged that a product formerly offered by Defendant called FastLoan contained disclosures that were inadequate under the provisions of the Truth in Lending Act ( TILA ), 15 U.S.C f. He further claimed that FastLoans violated the Electronic Fund Transfer Act ( EFTA ), 15 U.S.C r, and that Defendant was liable for breach of contract under Colorado and Oklahoma law, as well as for violation of the Colorado and Oklahoma consumer protection laws. 2

3 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 3 of 15 Defendant moved for summary judgment as to all these claims. Plaintiff sought summary judgment as to the TILA and EFTA claims. On August 7, 2014, the Court entered summary judgment for Plaintiff on the TILA claim. [#134]. The Court determined that Defendant committed two separate TILA disclosure violations and that each violation provided for an award of statutory damages up to $1 million. [#134, 139]. The Court granted summary judgment for Defendant on Plaintiff s remaining claims. [#134]. Following entry of summary judgment, the Court granted Plaintiff s motion for class certification [#135], certifying a class of [a]ll BOKF customers residing in the United States who received FastLoan advances between April 26, 2012, and May 31, 2014, and whose FastLoan advances were fully repaid fewer than 30 days from origination. [#135 at 4]. The Court approved Plaintiff s Class Notice Plan. [#139]. The parties were scheduled to begin a bench trial on September 16, On September 11, 2015, the parties reached a written agreement in principle to resolve the claims of Plaintiff and the Class (the Term Sheet ), and filed a Notice of Settlement with the Court. On October 2, 2015 the parties finalized their formal Settlement Agreement, which effectuated the Term Sheet. III. Settlement Negotiations Settlement negotiations in this matter have been lengthy, principled, and were conducted at arm s length. Direct settlement discussions between the parties first began in The parties participated in a formal mediation on September 25, 2014 with the assistance of third-party mediator and former United States District Judge Edward Nottingham. The mediation produced no results, but following the Court s 3

4 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 4 of 15 Order [#134] granting in part and denying in part Plaintiff s Combined Motion for Summary Judgment and Brief in Support [#100] and Defendant BOKF s Renewed Combined Motion for Summary Judgment [#96], the parties resumed intermittent negotiations at the same time as they prepared for trial. A Pretrial Conference was held with the Court on August 28, 2015 and following additional trial preparations the Parties ultimately were able to reach agreement on a Term Sheet on September 11, After further negotiation, the Parties finalized a formal Settlement Agreement on October 2, The Parties negotiated attorneys fees after agreeing on a Class settlement amount of $1,800, a full 90% of the $2,000, maximum class award at trial. All attorneys fees, costs, service award, and costs of notice and administration are outside and in addition to the $1, settlement amount to the Class. IV. Summary of the Settlement Terms A copy of the parties proposed Settlement Agreement is attached hereto as Exhibit A and incorporated herein by reference. The following discussion highlights some of the Agreement s principal terms. A. Relief to Rule 23 Class Members Under the proposed Settlement Agreement, the parties have agreed that $1,800,000 shall be allocated to make payments to the Class. This amount is significantly more than the $250,000 per-tila violation award Defendant maintained was appropriate in the Final Pretrial Order [#169]. Indeed, the common fund of $1,800,000 is 90% of the maximum statutory damages the Class could have won at 4

5 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 5 of 15 trial and the Settlement guarantees that payment now, as opposed to months or years in the future as a result of appellate practice. Importantly, the amount to be distributed to the Class will not be reduced by the costs associated with notice or settlement administration. Defendant has agreed to separately pay the reasonable costs charged by the third-party administrator for notice and settlement administration (including establishing and maintaining a qualified settlement fund ( QSF )). (Ex. A, 36.) This amount to be distributed to the Class will also not be reduced by any award of attorneys fees or expenses. Consistent with TILA s fee-shifting provision, Defendant has agreed to separately pay Class Counsel their reasonable attorneys fees along with reimbursement of actual expenses of litigation, subject to approval by the Court, in an amount awarded by the Court but not to exceed $1,325, (Ex. A, 68.) B. Service Awards. This amount to be distributed to the Class will also not be reduced by any service award. Defendant has agreed not to oppose Class Counsel s request for a service award of up to $25,000 to the Class Representative (Leland Curt Small). (Ex. A, 71.) C. Allocation of Settlement Amount. The Settlement Agreement provides that the Settlement Fund of $1,800,000 shall be allocated to the Class based on an equitable allocation formula described therein. Class Counsel proposes to distribute the settlement amount in a pro rata fashion based on each individual s Eligible FastLoans Amount as defined in the Settlement Agreement at Section VIII. 5

6 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 6 of 15 D. Standard Release The Settlement Agreement utilizes standard release language, releasing all claims of the settlement class under the Truth in Lending Act related to Defendant s disclosure of a 120% APR for FastLoans and all other claims that were or could have been brought in the litigation. (Ex. A, XII.) E. Third-Party Administrator The Settlement Agreement provides that Plaintiff will retain Epiq Systems to act as the third-party administrator, to provide notice of settlement to the Class, distribute information forms, manage the QSF, and distribute settlement checks. Epiq Systems is an experienced settlement administrator. Defendant has agreed to separately pay the reasonable costs charged by the third-party administrator for notice and settlement administration (including establishing and maintaining the QSF). (Ex. A, 36.) F. Attorneys Fees and Costs Defendant has agreed to pay Class Counsel their reasonable attorneys fees along with reimbursement of actual expenses of litigation, subject to approval by the Court. The Court, however, need not rule on this request for attorneys fees and costs at this time. Pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2), Plaintiffs counsel will file a separate motion for approval of attorneys fees and reimbursement of expenses in conjunction with its motion for final approval of the Settlement Agreement. Defendant has agreed not to oppose the motion for approval of fees so long as the requested fee and expenses award does not exceed $1,325,000. (See Ex. A, 68.) G. Settlement Approval Process and Procedure 6

7 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 7 of 15 The proposed Settlement Agreement contemplates utilizing the well-defined process and procedure for approval of a class action settlement: (1) preliminary approval of the proposed settlement; (2) dissemination of notices of settlement to members of the class informing them of the settlement and their rights; and (3) a final settlement approval hearing at which time class members may be heard regarding the settlement, and at which time argument concerning the fairness, adequacy, and reasonableness of the settlement may be presented. See Fed. R. Civ. P. 23(e); see also Herbert B. Newberg & Alba Conte, Newberg on Class Actions ( Newberg ), 11.22, et seq. (4th ed. 2002). This well-established process safeguards class members procedural due process rights and enables the Court to fulfill its role as the guardian of class interests. With this motion, the Court is being asked to take the first step granting preliminary approval of the Settlement Agreement, appointing Epiq Systems as the Settlement Administrator, approving the proposed Notices to the class, and authorizing the ing, mailing, and posting of those notices pursuant to the terms of the Settlement Agreement. (See Ex. A, 44.) V. Legal Argument A. Legal Standards for Settlement Approval As this Court recently recognized in approving the settlement of a class action: Courts considering [class action] settlements do so in light of the strong presumption of favoring compromise of disputes generally, but which is especially strong in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation. The strong judicial policy in favor of class action settlement contemplates a circumscribed role for the district courts in settlement review and approval proceedings. This policy also ties into the strong policy favoring the finality of judgments and the termination of litigation. 7

8 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 8 of 15 Settlement agreements are to be encouraged because they promote the amicable resolution of disputes and lighten the increasing load of litigation faced by the federal courts. In addition to the conservation of judicial resources, the parties may also gain significantly from avoiding the costs and risks of a lengthy and complex trial. Tuten v. United Airlines, Inc., 41 F. Supp. 3d 1003, 1007 (D. Colo. 2014). Court approval is required to settle a Rule 23 class action. Fed. R. Civ. P. 23(e). Approval is appropriate if the settlement is fair, reasonable, and adequate. See, e.g., Fed. R. Civ. P. 23(3)(1)(c); see also In re Qwest Commc'ns Int'l, Inc. Sec. Litig., 625 F. Supp. 2d 1133, 1136 (D. Colo. 2009). The Court reviews a proposed class action settlement by considering four factors: (1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable. In re Quest, 625 F. Supp. 2d at 1136 (citing Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002)). The Parties address each factor below. C. The Rule 23 Settlement is Fair, Reasonable, and Adequate The Settlement in this case satisfies the prerequisites for approval of a class action settlement. 1. The Settlement Was Fairly and Honestly Negotiated (Factor 1) Settlement negotiations in this matter have been lengthy, principled, and were conducted at arm s length. The Parties participated in direct negotiations beginning in 2014, and participated in a formal mediation on September 25, 2014 with the assistance 8

9 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 9 of 15 of an experienced and capable mediator, Edward Nottingham, a former United States District Judge for the District of Colorado. The mediation did not result in a settlement. Following the Court s Order [#134] granting in part and denying in part Plaintiff s Combined Motion for Summary Judgment and approving Plaintiff s notice plan resolving whether the TILA class action cap applied per class action or per separate TILA violation [#139], conduct of the Pretrial Conference and entry of the Final Pretrial Order [#169], the parties resumed negotiations and ultimately were able to find common ground for settlement just a few days before trial was scheduled to begin. The Parties reached agreement on a Term Sheet on September 11, 2015, and then a formal Settlement Agreement on October 2, The Parties negotiated attorneys fees after agreeing on a Class settlement amount of $1,800, with $2,000, being the total class award possible. All attorneys fees, costs, service award, and costs of notice and administration are outside and in addition to the $1, settlement amount to the Class. The Parties negotiations were principled, with each side basing their offers and counteroffers on an analysis of BOKF data, the Parties respective assessments of the Court s rulings and the strengths and weaknesses of their positions, and interpretations of the law relative to those positions. Accordingly, the hard fought, arm s-length negotiations support preliminary approval of the Settlement. 2. Serious Questions of Law and Fact Exist, Placing the Ultimate Outcome of the Litigation in Doubt (Factor 2) Following the Parties unsuccessful mediation, the Court concluded that Plaintiff was entitled to judgment as a matter of law that two TILA violations had occurred, and that Defendant was entitled to judgment as a matter of law on certain other of Plaintiffs Claims. [#134]. 9

10 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 10 of 15 TILA penalizes disclosure violations by explicitly providing consumers with the right to recover actual damages, statutory damages, and reasonable attorneys fees. TILA limits the maximum recovery of statutory damages in any class action or series of class actions arising out of the same failure to comply by the same creditor to $1 million per failure to comply. 15 U.S.C. 1640(a)(2)(B). Once liability under TILA is established, the imposition of damages for violations is mandatory, whether or not actual damages can be calculated or proved. Baker v. G.C. Servs. Corp., 677 F.2d 775, 780 (9th Cir. 1982); In re Rodrigues, 278 B.R. 683, (Bankr. D.R.I. 2002). In short, if a violation is proved, statutory damages must be awarded. Addison v. Britt, 350 S.E. 2d 158, 160 (N.C. Ct. App. 1986). However, the applicable statutory damage amount was an issue vigorously contested by the parties. The Court ruled that under 15 U.S.C. 1640(a), the Class was entitled to a $1 million class action cap for each TILA violation. Defendant maintained it would appeal the Court s determination that BOKF s APR disclosure had resulted in two violations of the Truth in Lending Act. Defendant also maintained that under the statutory factors for a class award, an award of $250,000 per violation was appropriate; its conduct was not intentional ; and because no actual damages were awarded, the smaller statutory penalty should apply. Furthermore, Defendant claimed the Class was responsible for BOKF s attorneys fees relating to the Oklahoma breach of contract and Consumer Protection Act claims that were dismissed on summary judgment because it had made an earlier offer of judgment. Thus, there are serious questions of law and fact that place the ultimate outcome of the Class s recovery in doubt, supporting approval of the settlement. 10

11 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 11 of The Value of an Immediate Recovery Outweighs the Mere Possibility of Future Relief After Protracted and Expensive Litigation (Factor 3) While Plaintiff believes his legal position is strong, there is no risk-free, expensefree litigation. Sheick v. Auto. Component Carrier LLC, No. 2:09-CV-14429, 2010 WL , at *18 (E.D. Mich. Oct. 18, 2010); see also Rhodes v. Olson Assoc., P.C., F.R.D., 2015 WL , at *2 (D. Colo. June 12, 2015) (noting that the prospect of a trial necessarily involves a risk that the named Plaintiff and class members would obtain a lesser recovery and an appeal could reduce the net value of any recovery. ). This litigation was commenced over two years ago. To resolve this case through trial and appeal, it might be years before Plaintiff could potentially receive anything at all. The proposed Settlement will provide the Plaintiff and The Settlement Class with a recovery now without the time, expense and unpredictability of an actual trial and the appeal that would likely follow. Moreover, the Settlement Fund secured by Class Counsel comprises 90% of the total potential recovery possible on Plaintiff s claims. Therefore, the value of the immediate recovery under the terms of the proposed Settlement outweighs the mere possibility of future relief after protracted and expensive continued litigation. 4. The Judgment of the Parties that the Settlement Is Fair and Reasonable (Factor 4) In negotiating the settlement, Plaintiff had the benefit of attorneys who are highly experienced in complex litigation and familiar with the legal and factual issues of the case. Plaintiff s counsel have litigated, managed and settled class actions in this District and nationwide. In Plaintiff s counsel s view, the settlement provides substantial benefits to the Class, especially when one considers, among other things, the attendant 11

12 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 12 of 15 expense, risks, difficulties, delays, and uncertainties of litigation, trial, and post-trial proceedings. Counsels judgment as to the fairness of the agreement is entitled to considerable weight. Lucas v. Kmart Corp., 234 F.R.D. 688, 695 (D. Colo. 2006) (quoting Marcus v. Kan. Dep t of Revenue, 209 F. Supp. 2d 1179, 1183 (D. Kan. 2002)). In sum, all of the relevant factors favor preliminary approval of this settlement. D. The Notices are the Best Notice Practicable and Approval is Warranted. Before conducting a final fairness hearing, the district court must direct notice in a reasonable manner to all class members who would be bound by the settlement. Fed. R. Civ. P. 23(e)(1). The notice should be reasonably calculated, under all the circumstances, to apprise [the Class Members] of the pendency of the action and afford them an opportunity to present their objections. DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 944 (10th Cir. 2005) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Attached hereto as Exhibit B are the proposed Notices. The Notice Plan agreed upon by the Parties has three components: (1) notice for Class Members for whom BOKF has addresses; (2) mailed notices for each Class Member for whom BOKF has no address, or for whom the notice is returned or bounces back; and (3) a Long-form Notice with more detail than the notice or mailed notice, which will be available on the internet. (Ex. A at VI.) These notices follow the established format of a typical class action notice and include the requisite information needed to apprise class members of the Settlement and explain their rights and options with respect thereto. Accordingly, approval of the notices is warranted. 12

13 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 13 of 15 VI. Conclusion For the reasons set forth above, Plaintiffs respectfully request that the Court enter an order: 1. granting preliminary approval of the Settlement Agreement; 2. appointing Epiq Systems as the Third-Party Administrator; 3. approving the proposed notices to be issued to class members pursuant to the terms of the Settlement Agreement; 4. instructing the parties to appear before this Court for a Final Approval and Fairness Hearing on a date approximately ninety-one (91) days from the date of entry of this Preliminary Approval Order; 5. Entry of the proposed Order Granting Parties Joint Motion for Preliminary Approval of Settlement Agreement and Notice to Class attached as Exhibit A to Joint Motion for Preliminary Approval of Settlement Agreement and Notice to Class; and 6. granting such other and further relief as the Court may deem just and proper. 13

14 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 14 of 15 Respectfully submitted, Dated: October 5th, 2015 TYCKO & ZAVAREEI LLP /s/ Hassan Zavareei TYCKO & ZAVAREEI LLP Hassan Zavareei (Admitted in D. Colorado) Jeffrey D. Kaliel (Admitted in D. Colorado) 2000 L Street, N.W., Suite 808 Washington, D.C Steve Six (Admitted in D. Colorado) STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO (816) (816) (fax) COUNSEL FOR PLAINTIFFS / CLASS COUNSEL 14

15 Case 1:13-cv REB-MJW Document 178 Filed 10/05/15 USDC Colorado Page 15 of 15 CERTIFICATE OF SERVICE I hereby certify that on October 5th, 2015, I electronically filed the foregoing using the Court s CM/ECF system which will send notification of such filing to counsel of record. /s/ Hassan Zavareei Hassan Zavareei 15

16 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 1 of 27 EXHIBIT A

17 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 2 of 27 Civil Action No. 13-cv REB-MJW LELAND SMALL, individually and on behalf of a class of other similarly situated persons, UNITED STATES DISTRICT COURT DISTRICT OF COLORADO v. BOKF, N.A. Defendant. Plaintiff, SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ( Agreement ) is made and entered into this 2 nd day of October, 2015, by and among (1) Plaintiff, for himself and on behalf of the Settlement Class, and (2) BOKF, N.A. ( BOKF ), subject to Court approval as required by Rule 23 of the Federal Rules of Civil Procedure. As provided herein, BOKF, Class Counsel and Plaintiff hereby stipulate and agree that, in consideration of the promises and covenants set forth in this Agreement and upon entry by the Court of a Final Order and Judgment, all claims of the Settlement Class against BOKF in the actions titled Small v. BOKF, Case No. 13-cv-01125, shall be settled and compromised upon the terms and conditions contained herein. I. Recitals 1. On April 26, 2013, Plaintiff Leland Small filed a Class Action Complaint in the District of Colorado seeking monetary damages, restitution and declaratory relief from BOKF, arising from the APR disclosure with respect to the Bank s FastLoans. 1

18 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 3 of On August 7, 2014, the Court ruled that Plaintiff was entitled to summary judgment on his Truth in Lending Act claim, holding that the 120% APR representation was inaccurate and misleading. 3. In the same ruling, the Court granted summary judgment to Defendant on Plaintiff s other five claims, including his claims under the federal Electronic Funds Transfer Act and various provisions of state common law and statute. Docket No Shortly thereafter, the Court also granted certification to a Class comprised of: All BOKF customers residing in the United States who received FastLoan advances between April 26, 2012, and May 31, 2014, and whose FastLoan advances were fully repaid fewer than 30 days from origination. Docket No. 135, at 10 (attached as Exhibit 2). 5. The Parties were scheduled to commence a bench trial on September 16, 2015 to determine the amount of statutory damages to be awarded the Class considering relevant factors, including those enumerated in 15 U.S.C. 1640(a)(2)(B). 6. On September 11, 2015, the Parties entered into a written agreement in principle ( the Term Sheet ) for the settlement of the Action. This Settlement Agreement is intended to effectuate the Term Sheet, and it hereby supersedes and replaces the Term Sheet in all respects. 7. The parties and their counsel believe that the interests of all concerned are best served by compromise, settlement, and dismissal of the claims with prejudice and have concluded that the terms of the Agreement are fair, reasonable, adequate, and in the Parties mutual best interests. 8. Class Counsel, after consultation with the Class Representative, has independently determined that the settlement and dismissal of the claims asserted in this Action are proper under the circumstances of this litigation and the terms of this Agreement. 9. On September 11, 2015, the Parties filed a Notice of Settlement with the Court. 2

19 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 4 of 27

20 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 5 of Current Account Holder means a Settlement Class Member who had an Account during the Class Period, and who continues to have an Account as of the date that the Settlement Fund is distributed to the Settlement Class Members pursuant to this Agreement. 18. Effective Date means the fifth business day after which all of the following events have occurred: a. All Parties, BOKF s counsel, and Class Counsel have executed this Agreement; b. The Court has entered without material change the Final Approval Order; and c. The time for appeal or petition has expired, and no appeal or petition for rehearing or review has been timely filed; or the Settlement is affirmed on appeal or review without material change, no other appeal or petition for rehearing or review is pending, and the time period during which further petition for hearing, review, appeal, or certiorari could be taken has finally expired and relief from a failure to file same is not available. 19. Escrow Account means the interest bearing account to be established by the Settlement Administrator consistent with the terms and conditions described in Section III below. 20. Final Approval means the date that the Court enters an order and judgment granting final approval to the Settlement and determines the amount of fees, costs, and expenses awarded to Class Counsel and the amount of the Service Award to Plaintiff. The proposed Final Approval Order that will be attached to the motion for final approval of the Settlement shall be in a form agreed upon by Class Counsel and counsel for BOKF. 4

21 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 6 of Final Approval Order means the order and judgment that the Court enters upon finally approving the Settlement. 22. Notice means the notices of proposed class action settlement that the Parties will ask the Court to approve in connection with the motion for preliminary approval of the Settlement. Notice Program means the methods provided for in this Agreement. A complete description of the contemplated Notice Program is provided in Section VI, infra. 23. Parties means Plaintiff and BOKF. 24. Preliminary Approval means the date that the Court enters, without material change, an order preliminarily approving the Settlement in the form jointly agreed upon by the Parties. 25. Released Claims means all claims to be released as specified in Section XII of this Agreement. The Releases means all of the releases contained in Section XII of this Agreement. 26. Released Parties means those persons released by paragraphs 66 and 67, infra. 27. Releasing Parties means Plaintiff and all Settlement Class Members who have not timely and properly opted out of the Settlement, and each of their respective heirs, assigns, beneficiaries, and successors. 28. Settlement means the settlement into which the Parties have entered to resolve the Action. The terms of the Settlement are as set forth in this Agreement and the attached exhibits. 29. Settlement Administrator means Epiq Systems. 30. Settlement Class means all BOKF customers residing in the United States who received FastLoan advances between April 26, 2012, and May 31, 2014, and whose FastLoan 5

22 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 7 of 27 advances were fully repaid fewer than 30 days from origination and to whom the original Rule 23 notice of this Action was sent and who did not timely request to opt-out. 31. Settlement Class Member means any person included in the Settlement Class who did not previously opt out of the Settlement. Eighteen persons previously opted out of the Settlement: Jerimee Smith, Barry Bose, Benito Sanchez, Bernadine Holland, Christopher Ochoa, Duane Saavedra, Holly Rogers, James Brown, John Beaty, John Carlson, Kevin Fox, Michael Germany, Michael McGuire, Pete Serafin, Richard Kisha, Steven Durkee, Russell Cunningham, and Boyd Bullens. 32. Settlement Fund means the fund established under Section III of this Agreement. 33. Settlement Website means the website that the Settlement Administrator will establish as soon as practicable following Preliminary Approval, but prior to the commencement of the Notice Program, as a means for Settlement Class Members to obtain notice of and information about the Settlement. III. Establishing and Maintaining the Settlement Fund; Costs of Notice And Settlement Administration. 34. In exchange for the mutual promises and covenants in this Agreement, including, without limitation, the Releases as set forth in Section XII below and the dismissal of the Action upon Final Approval, within fourteen calendar days of Preliminary Approval, BOKF shall deposit the sum of $1,800, into the Escrow Account to create the Settlement Fund as set forth herein, and in addition, BOKF agrees to timely pay all costs of providing Notice to the Settlement Class and all costs of the administration of the Settlement, including the fees and expenses of the Settlement Administrator. 35. Upon the establishment of the Escrow Account, the Settlement Funds shall be transferred to the Escrow Account, and may be invested in interest-bearing short-term 6

23 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 8 of 27 instruments to be agreed upon by Class Counsel and BOKF that are backed by the full faith and credit of the United States Government or that are fully insured by the United States Government or an agency thereof (the Instruments ). The interest proceeds and the principal may thereafter be reinvested as they mature in similar Instruments, bearing in mind the liquidity requirements of the Escrow Account to ensure that it contains sufficient cash available to pay all invoices, taxes, fees, costs, and expenses, and other required disbursements, in a timely manner. Except as otherwise specified herein, the Instruments at all times will remain in the Escrow Account. 36. The Settlement Fund at all times shall be deemed a qualified settlement fund within the meaning of United States Treasury Reg B-1. All taxes (including any estimated taxes, and any interest or penalties relating to them) arising with respect to the income earned by the Settlement Fund or otherwise, including any taxes or tax detriments that may be imposed upon BOKF or its counsel with respect to income earned by the Settlement Fund for any period during which the Settlement Fund does not qualify as a qualified settlement fund for the purpose of federal or state income taxes or otherwise (collectively Taxes ), shall be paid out of the Settlement Fund. BOKF and its counsel, and Plaintiff and Class Counsel, shall have no liability or responsibility for any of the Taxes. The Settlement Fund shall indemnify and hold BOKF and its counsel, and Plaintiff and Class Counsel, harmless for all Taxes (including, without limitation, Taxes payable by reason of any such indemnification). 37. The Settlement Fund shall be used exclusively to pay distributions to the Settlement Class Members. 38. In addition to the payment of the funds to establish the Settlement Fund, BOKF shall pay the following: 7

24 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 9 of 27 a. The costs of Notice to the Settlement Class and for the services of the Settlement Administrator in connection with the provision of Notice, within thirty days of Class Counsel s and counsel for BOKF s receipt and approval of invoices received, as provided in Section VI hereof. b. The Settlement Administrator s costs and fees for services provided pursuant to Section V hereof, within thirty days of Class Counsel s and counsel for BOKF s receipt and approval of invoices received from the Settlement Administrator. c. All Taxes pursuant to paragraph 50 hereof, including, without limitation, taxes owed as a result of accrued interest on the Escrow Account, in a timely manner consistent with the recommendation of the Tax Administrator, subject to approval by Class Counsel and counsel for BOKF. d. Additional fees, costs and expenses not specifically enumerated in subparagraphs (a) through (c) above, subject to approval of Class Counsel and counsel for BOKF. e. A Service Award to Plaintiff Small, pursuant to Paragraph 68. f. Class Counsel attorneys fees and expenses, pursuant to Paragraph 65. IV. Settlement Approval A. Preliminary Approval 39. Upon execution of this Agreement by all Parties, Class Counsel will promptly move the Court for an Order granting preliminary approval of this Settlement ( Preliminary Approval Order ). The proposed Preliminary Approval Order that will be attached to the motion shall be in a form agreed upon by Class Counsel and counsel for BOKF. The Motion for Preliminary Approval will request that the Court: (i) approve the terms of the Settlement as within the range of fair, adequate and reasonable; (ii) approve the Notice program set forth 8

25 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 10 of 27 herein and approve the form and content of the Notices of the Settlement; (iii) stay the Action pending Final Approval of the Settlement; and (iv) schedule a Final Approval hearing for a time and date mutually convenient for the Court, Class Counsel and counsel for BOKF, at which the Court will conduct an inquiry into the fairness of the Settlement, determine whether it was made in good faith, and determine whether to approve the Settlement and Class Counsel s application for attorneys fees, costs and expenses and for Service Award to Plaintiff ( Final Approval Hearing ). 40. Within 10 days of the filing of this Agreement with the Court, BOKF, at its own expense, shall serve or cause to be served a notice of the proposed Settlement, in conformance with the Class Action Fairness Act, 28 U.S.C. 1715(b). 41. If the Court denies the Preliminary Approval Motion, unless the parties jointly agree to seek reconsideration of the ruling or to seek Court approval of a renegotiated settlement, the litigation will resume as if no settlement had been attempted, with each side assuming the rights they had as of September 11, V. Settlement Administrator 42. Class Counsel and BOKF have retained Epiq Systems to serve as the Settlement Administrator. The Settlement Administrator shall administer various aspects of the Settlement as described in paragraph 45 below and perform such other functions as are specified for the Settlement Administrator elsewhere in this Agreement, including, but not limited to, providing notice to Settlement Class Members; distributing the Settlement Fund as provided herein; and paying the remainder of the Settlement Fund to BOKF in the event of a termination of the Settlement pursuant to Section XIV hereof. Class Counsel and counsel for BOKF will jointly oversee the Settlement Administrator. 9

26 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 11 of As specified below, all Settlement Administrator fees, charges and expenses shall be paid by BOKF within 30 days of Class Counsel s and counsel for BOKF s receipt and approval of an invoice. 44. The duties of the Settlement Administrator, in addition to other responsibilities that are described in this Agreement, are as follows: a. Obtain from BOKF and Class Counsel Settlement Class Member name and address or address information; b. Process and transmit distributions to Settlement Class Members from the Settlement Fund; and c. Administer the Escrow Account as described in this Agreement, and any other Settlement-administration-related function at the instruction of Class Counsel and counsel for BOKF. VI. Providing Settlement Notice to Settlement Class Members 45. Upon Preliminary Approval of the Settlement, at the direction of Class Counsel, the Settlement Administrator will implement the Notice Program provided herein, using the forms of Notice approved by the Court in the Preliminary Approval Order. The Notice will include, among other information: a description of the material terms of the Settlement; a date by which Settlement Class Members may object to the Settlement; the date upon which the Final Approval Hearing will occur; and the address of the Settlement Website at which Settlement Class Members may access this Agreement and other related documents and information. 46. The Notice also will include a procedure for Settlement Class Members to object to the Settlement and/or to Class Counsel s application for attorneys fees, costs and expenses and for Service Awards to Plaintiff. Objections to the Settlement or to the application for fees, costs, expenses, and Service Awards must be mailed to the Clerk of the Court, Class Counsel, 10

27 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 12 of 27 and BOKF s counsel. For an objection to be considered by the Court, the objection must be received by the Court, Class Counsel and BOKF s counsel no later than the last day of the date specified in the Notice. For an objection to be considered by the Court, the objection must also set forth: a. the name of the Action; b. the objector s full name, address and telephone number; c. an explanation of the basis upon which the objector claims to be a Settlement Class Member; d. all grounds for the objection, accompanied by any legal support for the objection known to the objector or his counsel; e. the number of times in which the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector has made such objection, and a copy of any orders related to or ruling upon the objector s prior such objections that were issued by the trial and appellate courts in each listed case; f. the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection to the Settlement or fee application; g. the number of times in which the objector s counsel and/or counsel s law firm have objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the counsel or the firm has made such objection, and a copy of any orders related to or ruling upon counsel s or the firm s prior such objections that were issued by the trial and appellate courts in each listed case; 11

28 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 13 of 27 h. any and all agreements that relate to the objection or the process of objecting whether written or verbal between objector or objector s counsel and any other person or entity; i. the identity of all counsel representing the objector who will appear at the Final Approval Hearing; j. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection; k. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing; and l. the objector s signature (an attorney s signature is not sufficient). 47. The Notice Plan has three components: (1) Notice for Class members for whom BOKF has addresses; (2) Mailed Notice for each BOKF customer where the Notice is returned or bounces back as undeliverable, and for each BOKF customer for whom BOKF does not have an address; and (3) a Long-form Notice with more detail than the Notice of Mailed Notice, and which will be available on the internet. 48. The Settlement Administrator will the Notice to each Class member for whom BOKF has an address at the address identified in BOKF s records. 49. Should the Settlement Administrator learn (through an bounce-back or otherwise) that the address in BOKF s records is invalid, the Administrator will instead mail a Mailed Notice to that Class member. 50. For each Class member for whom an attempted ed Notice is returned or bounces back as undeliverable, and for each Class member for whom BOKF does not have an address, the Administrator will mail, via first-class mail postcard, a Mailed Notice to each 12

29 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 14 of 27 Class member at the address identified in Defendants records. The Administrator will request that BOKF provide all necessary contact information necessary to facilitate the Mailed Notice, including most recent mailing addresses on file. Before mailing postcards, the Administrator will verify and update the mailing addresses received through the United States Postal Service s National Change of Address database to maximize address accuracy. 51. Next, the Administrator will perform reasonable address traces for all postcards that are returned as undeliverable and will promptly r Mailed Notice postcards to those Class members whose original mailed postcards were returned as undeliverable and whose new addresses were identified as of that time through address traces. 52. A detailed, Long-form Notice will be available on the Settlement Website. The Long-form Notice will provide more detailed information about the settlement and the process for objecting than the ed Notice and Mailed Notice. VII. Final Approval Order and Judgment 53. The Plaintiff Motion for Preliminary Approval of the Settlement will include a request to the Court for a scheduled date on which the Final Approval Hearing will occur. Plaintiff will file his Motion for Final Approval of the Settlement, and his application for attorneys fees, costs and expenses and for Service Awards for Plaintiff no later than 45 days prior to the Final Approval Hearing. At the Final Approval Hearing the Court will hear argument on Plaintiff s motion for final approval of the Settlement, and on Class Counsel s application for attorneys fees, costs, and expenses and for Service Award for Plaintiff. In the Court s discretion, the Court also will hear argument at the Final Approval Hearing from any Settlement Class Members (or their counsel), provided the objectors filed timely objections that meet all of the requirements listed in paragraph 43 above. 13

30 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 15 of The Court at the Final Approval Hearing will determine whether to enter the Final Approval Order granting final approval of the Settlement, and whether to approve Class Counsel s request for attorneys fees, costs, expenses and Service Award. The proposed Final Approval Order that will be attached to the motion shall be in a form agreed upon by Class Counsel and counsel for BOKF. Such Final Approval Order shall, among other things: a. Determine that the Settlement is fair, adequate and reasonable; b. Determine that the Notice provided satisfies Due Process requirements; c. Dismiss the action with prejudice and without costs; d. Bar and enjoin Plaintiff and all Settlement Class Members from asserting any of the Released Claims, as set forth in Section XII, including during any appeal from the Final Approval Order; e. Release BOKF and the Released Parties from the Released Claims, as set forth in Section XII; and f. Reserve the Court s continuing and exclusive jurisdiction over the Parties to this Agreement, including BOKF, all Settlement Class Members, and all objectors, to administer, supervise, construe and enforce this Agreement in accordance with its terms. VIII. Allocation of Settlement Fund Among Settlement Class Members 55. To the extent it has not already done so during the pendency of the litigation, BOKF shall make available to the Settlement Administrator data sufficient to determine and implement the allocation of Settlement Funds as provided in this Section VIII of this Agreement. 56. The amount of the distribution from the Settlement Fund to which each Settlement Class Member is entitled shall be determined using the following methodology: a. All FastLoans during the Class Period will be identified which were repaid in fewer than 30 days ( Eligible FastLoans ); 14

31 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 16 of 27 b. Each Class Member account associated with such FastLoans will be identified; c. The dollar amount of the total amount of Eligible FastLoans for each Settlement Class Member will be identified ( Eligible FastLoan Amount ); d. The Settlement Fund will be allocated, on a pro rata basis, based on Eligible FastLoan Amount per Settlement Class Member, or any allocation formula approved by the Court. IX. Distribution of Settlement Fund to Settlement Class Members 57. Within 30 days of the Effective Date, the Settlement Administrator shall distribute the Settlement Fund to the Settlement Class Members by check, via US Mail. 58. BOKF shall pay all costs associated with the process of printing and mailing the checks. 59. Checks shall be valid for 180 days. The Settlement Administrator will make reasonable efforts to locate the proper address for any Settlement Class Member whose check is returned by the Postal Service as undeliverable, and will r it once to the updated address. 60. The amount of the Settlement Fund attributable to uncashed checks and checks returned to the Settlement Administrator shall remain in the Settlement Fund for one year from the date that the first distribution check is mailed by the Settlement Administrator, during which time the Settlement Administrator shall make a reasonable effort to locate Settlement Class Members whose checks were returned and to effectuate delivery of such checks to the Settlement Class Members entitled to them. The Settlement Administrator shall make only one attempt to r or re-issue a distribution check. 15

32 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 17 of 27 X. Disposition of Residual Funds After Distribution to the Settlement Class Of Settlement Class Member Payment Amounts. 61. Within one year plus thirty days after the date the Settlement Administrator mails the first Settlement Class Member Payment, any funds remaining in the Settlement Fund shall be distributed as follows: a. The funds will be distributed through a residual cy pres program. The residual cy pres recipient(s) shall be selected by Settlement Class Counsel, agreed upon by BOKF, and approved by the Court. Any residual cy pres distribution shall be paid as soon as reasonably possible following the completion of distribution of funds to the Settlement Class Members. b. BOKF shall pay all costs associated with the disposition of residual funds. XI. Effect of a Termination 62. The grounds upon which this Agreement may be terminated are set forth herein. In the event of a termination as provided therein, this Agreement shall be considered null and void; all of BOKF s obligations under the Settlement shall cease to be of any force and effect; the amounts in the Settlement Fund shall be returned to BOKF; and the Parties shall return to the status quo ante in the Action as if the Parties had not entered into this Agreement. In addition, in the event of such a termination, all of the Parties respective pre-settlement claims and defenses will be preserved. 63. In the event of a termination, the Settlement Fund shall be returned to BOKF within seven business days of termination. 64. This Settlement shall become effective on the Effective Date unless earlier terminated in accordance with the provisions of paragraph

33 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 18 of In the event the Settlement is terminated, any discussions, offers, or negotiations associated with this Settlement shall not be discoverable or offered into evidence or used in the Action or any other action or proceeding for any purpose. In such event, all Parties to the Action shall stand in the same position as if this Agreement had not been negotiated, made or filed with the Court. XII. Releases 66. As of the Effective Date, Plaintiff and each Settlement Class Member, each on behalf of himself or herself and on behalf of his or her respective heirs, assigns, beneficiaries, and successors, shall automatically be deemed to have fully and irrevocably released and forever discharged BOKF and each of its present and former parents, subsidiaries, divisions, affiliates, predecessors, successors and assigns, and the present and former directors, officers, employees, agents, insurers, shareholders, attorneys, advisors, consultants, representatives, partners, joint venturers, independent contractors, wholesalers, resellers, distributors, retailers, predecessors, successors, and assigns of each of them, of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys fees, losses, and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out of, are based upon, or relate to claims for conduct, omissions, duties or matters during the Class Period that were or could have been alleged in the Action and that arise from or related to any act, omission, fact or event alleged in the Class Action Complaint, including, without limitation, any claims, actions, causes of action, demands, damages, losses, or remedies relating to, based upon, resulting from, or arising out of the disclosure of a 120% APR for FastLoans, either before or after such loans were made. 17

34 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 19 of Plaintiff or any Settlement Class Member may hereafter discover facts other than or different from those that he/she knows or believes to be true with respect to the subject matter of the claims released pursuant to the terms of paragraph 66, or the law applicable to such claims may change. Nonetheless, each of those individuals expressly agrees that, as of the Effective Date, he/she shall have automatically and irrevocably waived and fully, finally, and forever settled and released any known or unknown, suspected or unsuspected, asserted or unasserted, liquidated or unliquidated, contingent or non-contingent claims with respect to all of the matters described in or subsumed by this paragraph and paragraph 66. Further, each of those individuals agrees and acknowledges that he/she shall be bound by this Agreement, including by the releases contained in this paragraph and in paragraph 66, and that all of their claims in the Action shall be dismissed with prejudice and released, whether or not such claims are concealed or hidden; without regard to subsequent discovery of different or additional facts and subsequent changes in the law; and even if he/she never receives actual notice of the Settlement or never receives a distribution of funds or credits from the Settlement. XIII. Payment of Attorneys Fees, Costs, and Incentive Awards A. Class Counsel Fees and Costs 68. Plaintiff will apply to the Court for an award of attorney fees and expenses in an amount not to exceed $1.325 million. BOKF agrees not to oppose Class Counsel s request for attorneys fees and costs of up to $1.325 million. Any award of attorneys fees, costs, and expenses to Class Counsel shall be payable by BOKF separate and apart from the Settlement Fund. BOKF agrees not to appeal any award of attorneys fees and costs approved by the Court that does not exceed $1.325 million. 69. The Parties negotiated and reached this agreement regarding the terms of paragraph 68 only after reaching agreement on all other material terms of this Settlement. 18

35 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 20 of 27 B. Payment of Attorneys Fees and Costs 70. Within 10 business days of the Final Approval Order, all Court-approved attorneys fees, costs, and expenses of Class Counsel shall be paid by BOKF into the account designated by Class Counsel. After the fees, costs and expenses have been deposited into this account, BOKF shall have no further obligation with respect to payment of the attorney fees and expenses of Class Counsel, and Class Counsel shall be solely responsible for distributing each Class Counsel firm s allocated share of such fees, costs and expenses to that firm. C. Class Representative Service Award 71. Class Counsel will ask the Court to approve a service award of not more than $25,000 for the Plaintiff ( Service Award ). The Service Award is to be paid by BOKF separate and apart from the Settlement Fund. BOKF will not oppose Class Counsel s request for payment of the Service Award. 72. The Parties negotiated and reached this agreement regarding the Service Award only after reaching agreement on the Class settlement payment. XIV. Termination of Settlement 73. This Settlement may be terminated by either BOKF or Class Counsel by serving on counsel for the opposing Party and filing with the Court a written notice of termination within fourteen days after any of the following occurrences: a. the Court rejects, materially modifies, materially amends or changes, or declines to preliminarily or finally approve the Settlement; b. an appellate court reverses the Final Approval Order, and the Settlement is not reinstated without material change by the Court on remand; c. any court incorporates into, or deletes or strikes from, or modifies, amends, or changes, the Preliminary Approval Order, Final Approval Order, or the Settlement in 19

36 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 21 of 27 a way that BOKF or Class Counsel seeking to terminate the Settlement reasonably considers material; d. the Effective Date does not occur; or e. any other ground for termination provided for elsewhere in this Agreement. 74. In the event of a termination of the Settlement, and after payment of any invoices or other fees or expenses mentioned in this Agreement that have been incurred and are due to be paid from the Escrow Account, the balance of the Settlement Fund shall be refunded and remitted to BOKF. 75. In the event of a termination of the Settlement pursuant to this Section XIV, the parties retain all of their pre-settlement litigation rights and defenses. 76. XV. No Admission of Liability 77. BOKF does not by this Agreement or otherwise admit any liability or wrongdoing of any kinds. BOKF has agreed to enter into this Agreement to avoid the further expense, inconvenience, and distraction of burdensome and protracted litigation, and to be completely free of any further claims that were asserted or could have been asserted in this action. 78. The Parties understand and acknowledge that this Agreement constitutes a compromise and settlement of disputed claims. No action taken by the Parties either previously or in connection with the negotiations or proceedings connected with this Agreement shall be deemed or construed to be an admission of the truth or falsity of any claims or defense heretofore made, or an acknowledgment or admission by any party of any fault, liability or wrongdoing of any kind whatsoever. 20

37 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 22 of Neither the Settlement, nor any act performed or document executed pursuant to or in furtherance of the Settlement: (a) is or may be deemed to be, or may be used as, an admission of, or evidence of, the validity of any claim made by the Plaintiffs or settlement Class Members, or of any wrongdoing or liability of the Released Parties; or (b) is or may be deemed to be, or may be used as, an admission of, or evidence of, any fault or omission of any of the Released Parties, in the Action or in any proceeding in any court, administrative agency or other tribunal. 80. In addition to any other defenses BOKF may have at law, in equity, or otherwise, to the extent permitted by law, this Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding that may be instituted, prosecuted or attempted in breach of this Agreement or the Releases contained herein. XVI. Miscellaneous Provisions 81. Gender and Plurals. As used in this Agreement, the masculine, feminine or neuter gender, and the singular or plural number, shall each be deemed to include the others whenever the context so indicates. 82. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Releasing Parties and the Released Parties. 83. Cooperation of Parties. The Parties to this Agreement agree to cooperate in good faith to prepare and execute all documents, to seek Court approval, defend Court approval, and to do all things reasonably necessary to complete and effectuate the Settlement described in this Agreement. 21

38 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 23 of Obligation To Meet And Confer. Before filing any motion in the Court raising a dispute arising out of or related to this Agreement, the Parties shall consult with each other and certify to the Court that they have consulted. 85. Integration. This Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any Party hereto, except as provided for herein. 86. No Conflict Intended. Any inconsistency between the headings used in this Agreement and the text of the paragraphs of this Agreement shall be resolved in favor of the text. 87. Governing Law. The Agreement shall be construed in accordance with, and be governed by, the laws of the State of Colorado, without regard to the principles thereof regarding choice of law. 88. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, even though all Parties do not sign the same counterparts. Original signatures are not required. Any signature submitted by facsimile or through of an Adobe PDF shall be deemed an original. 89. Jurisdiction. The Court shall retain jurisdiction over the implementation, enforcement, and performance of this Agreement, and shall have exclusive jurisdiction over any suit, action, proceeding or dispute arising out of or relating to this Agreement that cannot be resolved by negotiation and agreement by counsel for the Parties. The Court shall retain jurisdiction with respect to the administration, consummation and enforcement of the Agreement and shall retain jurisdiction for the purpose of enforcing all terms of the Agreement. The Court 22

39 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 24 of 27 shall also retain jurisdiction over all questions and/or disputes related to the Notice program, the Settlement Administrator, and the Tax Administrator. As part of their respective agreements to render services in connection with this Settlement, the Settlement Administrator, and the Tax Administrator shall consent to the jurisdiction of the Court for this purpose. 90. Notices. All notices to Class Counsel provided for herein, shall be sent by and facsimile with a hard copy sent by overnight mail to: As to Plaintiff: Hassan A. Zavareei hzavareei@tzlegal.com TYCKO & ZAVAREEI, LLP 2000 L Street, N.W., Suite 808 Washington, D.C Telephone: (202) Facsimile: (202) Steve Six six@stuevesiegel.com Stueve Siegel Hanson LLP 460 Nichols Road, Suite 200 Kansas City, MO Telephone: (816) Facsimile: (816) As to BOKF: Frederic Dorwart Sarah Poston FREDERIC DORWART, LAWYERS Old City Hall Building 124 East Fourth Street Tulsa, Oklahoma Tel: (918) Fax: (918) The notice recipients and addresses designated above may be changed by written notice. Upon the request of any of the Parties, the Parties agree to promptly provide each other with copies of 23

40 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 25 of 27 objections, requests for exclusion, or other filings received as a result of the Notice program. 91. Modification and Amendment. This Agreement may be amended or modified only by a written instrument signed by the Parties and their respective counsel and approved by the Court. 92. No Waiver. The waiver by any party of any breach of this Agreement by another Party shall not be deemed or construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of this Agreement. 93. Authority. The Plaintiff and BOKF represent and warrant that the persons signing this Agreement on their behalf have full power and authority to bind every person, partnership, corporation or entity included within the definitions of Plaintiff and BOKF to all terms of this Agreement. Any person executing this Agreement in a representative capacity represents and warrants that he or she is fully authorized to do so and to bind the Party on whose behalf he or she signs this Agreement to all of the terms and provisions of this Agreement. 94. Agreement Mutually Prepared. Neither BOKF nor Plaintiff, nor any of them, shall be considered to be the drafter of this Agreement or any of its provisions for the purpose of any statute, case law or rule of interpretation or construction that would or might cause any provision to be construed against the drafter of this Agreement. 95. Independent Investigation and Decision to Settle. The Parties understand and acknowledge that they: (a) have performed an independent investigation of the allegations of fact and law made in connection with these Actions; and (b) that even if they may hereafter discover facts in addition to, or different from, those that they now know or believe to be true with respect to the subject matter of the Actions as reflected in this Agreement, that will not affect or in any respect limit the binding nature of this Agreement. BOKF has provided and is providing 24

41 Case 1:13-cv REB-MJW Document Filed 10/05/15 USDC Colorado Page 26 of 27 information that Plaintiff reasonably request to identify Settlement Class Members and the alleged damages they incurred. It is the Parties intention to resolve their disputes in connection with these Actions pursuant to the terms of this Agreement now and thus, in furtherance of their intentions, the Agreement shall remain in full force and effect notwithstanding the discovery of any additional facts or law, or changes in law, and this Agreement shall not be subject to rescission or modification by reason of any changes or differences in facts or law, subsequently occurring or otherwise. 96. Receipt of Advice of Counsel. Each Party acknowledges, agrees, and specifically warrants that he, she or it has fully read this Agreement and the Releases contained in Section XII above, received independent legal advice with respect to the advisability of entering into this Agreement and the Releases, and the legal effects of this Agreement and the Releases, and fully understands the effect of this Agreement and the Releases. ON BEHALF OF PLAINTIFF: Hassan Zavareei TYCKO & ZAVAREEI LLP Counsel for Plaintiff and the Class Dated: Steve Six STUEVE SIEGEL HANSON Dated: Counsel For Plaintiff and the Class 25