SETTLEMENT AGREEMENT

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1 SETTLEMENT AGREEMENT This Settlement Agreement ( Agreement ) is made by and between Martin Petersen, Susan Hurtado, Joseph Sarasua, and Charleen Swaney (collectively, Plaintiffs ), on behalf of themselves and the Class Members, as defined below, on the one hand, and Lowe s HIW, Inc. ( Defendant ), on the other hand. Plaintiffs and Defendant collectively are referred to in this Agreement as the Parties. This Agreement is subject to the approval of the United States District Court for the Northern District of California. I. DEFINITIONS In addition to other terms defined in this Agreement, the terms below have the following meaning in this Agreement: A. Action means the three Coordinated and related cases pending in the United States District Court for the Northern District of California: Case No. CV , Case No. CV , and Case No. CV B. Claim Deadline means forty-five (45) days from the date of posting of the tear away Claim Forms that Unknown Class Members must complete, sign, and return to the Settlement Administrator in order to receive a Gift Card. C. Class or Class Members means all individuals who used a credit card issued for consumer credit purposes to purchase goods or services from one of Defendant s retail stores (either in person or over the phone) in the State of California during the Class Period, and whose ZIP code was requested and recorded by Defendant for any reason other than a special order, installation, or delivery. D. Class Counsel means Gene J. Stonebarger of Stonebarger Law, APC; James R. Patterson of Patterson Law Group, APC; and Reed Marcy of Aiman-Smith & Marcy, APC. E. Class Counsel Fees and Litigation Expenses Payment means the amounts awarded to Class Counsel by the Court to compensate them for their fees and expenses in connection with the Action, including pre-filing investigation, filing of the Action, all related litigation activities including this Settlement and all post- Settlement compliance procedures. F. Class Members Data means for each Class Member: name and last known mailing address. G. Class Notice means the long form Notice to Class Members Re: Pendency of Class Action Settlement and Notice of Hearing on Proposed Settlement to be posted on the Claims Administrator s Website substantially in the form as evidenced by Exhibit A to this Agreement and incorporated herein by reference. 1

2 H. Class Period means the period of time between February 23, 2010 and the date of Preliminary Approval of this Agreement. I. Class Representative Payments means the incentive payments made to Plaintiffs in their respective capacities as Class Representatives to compensate them for initiating the Action and performing work in support of the Action. J. Court means the United States District Court for the Northern District of California. K. Effective Date means the date by which all of the following have occurred: 1. Defendant has not voided this Settlement pursuant to section III.F.6; 2. This Agreement is finally approved by the Court; and 3. The Judgment becomes Final. L. Final means the time after the court has entered the Final Approval Order and Judgment, respectively, substantially in the form of Exhibits B and C to this Agreement, and the time to challenge any aspect of this settlement by appeal has lapsed, provided that (a) no such appeal has been filed (regardless of whether any objections to the settlement were made) or, (b) if any such appeal is filed, then the day after a final resolution of all appeals that result in the upholding of the Parties settlement. M. Final Approval Hearing means the hearing to be conducted by the Court to determine whether to approve finally and implement the terms of this Agreement. N. Final Approval Order means the Court s order approving this Agreement and dismissing this Action substantially in the form evidenced by Exhibit B to this Agreement. O. Floor means the minimum payout of $2,580,000 to be paid by Defendant as provided by this Agreement. P. Gross Settlement Amount means the maximum gross amount of $2,900,000 to be paid by Defendant as provided by this Agreement, and on a partial claims basis as to the Unknown Class Members. Q. Defendant s Counsel means Hunton & Williams LLP. R. Judgment means the Judgment entered by the Court following the final approval of this Agreement substantially in the form evidenced by Exhibit C to this Agreement and incorporated herein by reference. 2

3 S. Known Class Members means all Class Members for whom Defendant has a name and valid home address and whose Class Notice is not returned as undeliverable. There are an estimated 180,000 Known Class Members. T. Unknown Class Members means all Class Members for whom Defendant does not have a valid home address. There are more than 100,000 Unknown Class Members eligible to participate in this Agreement. U. Net Settlement Amount means the Gross Settlement Amount to be paid by Defendant pursuant to this Settlement, less (i) the Class Representative Payments approved by the Court; (ii) the Class Counsel Fees and Litigation Expenses Payment approved by the Court; (iii) the Settlement Administrator s fees and expenses approved by the Court; and (iv) any other fees or expenses (other than attorneys fees and expenses) incurred in implementing the terms and conditions of this Agreement and securing the Final Approval Order and Judgment to be entered by the Court. V. Non-Participating Class Member means a Class Member who submits a valid and timely Election Not to Participate in Settlement. W. Participating Class Member means a Class Member who does not submit a valid and timely Election Not to Participate in Settlement. X. Preliminary Approval of the Settlement means the Court s Order preliminarily approving the Settlement without material change in substantially the form evidenced by Exhibit D to this Agreement. Y. Settlement means the disposition of the Action and all related claims effectuated by this Agreement. Z. Settlement Administrator means Kurtzman Carson Consultants LLC, the administrator proposed by the Parties and appointed by the Court to administer the Settlement. AA. Settlement Share means each Participating Class Member s share of the Net Settlement Amount as provided by this Agreement. II. RECITALS A. This Action is comprised of three separate lawsuits filed by Plaintiffs, on behalf of themselves and the Class. B. Plaintiffs alleged that Defendant violated California Civil Code Section by requesting and recording credit card customers personal identification information, in the form of their ZIP codes, at the point of sale in Defendant s California retail stores. C. Defendant denies that it has violated Section

4 D. Since filing the Action, the Parties have engaged in substantial informal discovery, including informal written discovery, and Defendant has provided Class Counsel with extensive documents and data regarding the claims in the Action, which were thoroughly analyzed by Plaintiffs. E. On October 27, 2011, the Parties participated in a mediation presided over by Michael Dickstein of Dickstein Dispute Resolution. Following the mediation, the Parties, through their respective counsel, continued to negotiate through the mediator and ultimately came to terms for this Agreement. F. This Agreement represents a compromise and settlement of highly-disputed claims. Nothing in this Agreement is intended or will be construed as an admission by Defendant that Plaintiffs claims in the Action have merit or that it has any liability to Plaintiffs or the Class on those claims, or as an admission by Plaintiffs that Defendant s defenses in the Action have merit. Solely for purposes of this Agreement, the Parties stipulate and agree to class certification. In the event, this Agreement is not approved, it is understood and agreed that Defendant is not agreeing for any purpose that this Action is appropriate for class certification and Defendant will not be deemed to have waived any arguments it may have in opposition to class certification. Based on these Recitals, which are incorporated herein below, the Parties agree as follows: III. SETTLEMENT TERMS AND CONDITIONS A. Gross Settlement Amount. Subject to the terms and conditions of this Agreement, including the claims process and the Floor, the maximum Gross Settlement Amount that Defendant will pay under this Settlement is $2,900,000. The Gross Settlement Amount shall be the maximum amount paid by Defendant. Any and all fees and expenses related to the Settlement shall be paid from the Gross Settlement Amount including but not limited to (a) Class Representative Payments, as discussed below, approved by the Court; (b) Class Counsel Fees and Litigation Expense Payment, as discussed below, approved by the Court; (c) the Settlement Administrator s fees and expenses approved by the Court; and (e) any other fees and/or expenses incurred in implementing the terms and conditions of the Settlement and securing the Judgment, as discussed below. The Gross Settlement Amount less the aforementioned fees and expenses is referred to herein as the Net Settlement Amount available to be paid to Class Members. B. Net Settlement Amount. The Net Settlement Amount is the amount of money available to be distributed to Class Members on a partial claims basis as follows. All of the approximately 180,000 Known Class Members will be sent a gift card in the amount of $9, which can be used to make purchases from Defendant. All Unknown Class Members must return a valid claim form as provided below, in order to receive a gift card in an amount up to $9, subject to the number of claims 4

5 received by Unknown Class Members and the Gross Settlement Amount. The actual payout by Defendant is subject to the Floor, which requires a minimum total payout of $2,580,000. If the sum of the payments to Known Class Members, the Class Representative Payments, the Class Counsel Fees and Litigation Expenses Payment, and the Settlement Administrator s Fees and Expenses (collectively Guaranteed Payments ) exceeds the Floor, then the difference between the Guaranteed Payments and the Floor shall be paid from the Gross Settlement Amount. The $320,000 difference between the Gross Settlement Amount ($2,900,000) and the Floor ($2,580,000) is available to pay claims asserted by Unknown Class Members. If the Floor exceeds the Guaranteed Payments, then the difference between the Floor and the Guaranteed Payments shall first be applied to any claims from Unknown Class Members. If the difference between the Floor and the Guaranteed Payments exceeds the value of the claims from Unknown Class Members, then that difference shall be paid to the Consumer Federation of California and the Privacy Rights Clearinghouse (to be split equally between them), subject to approval by the Court. C. Settlement Share. Subject to the terms and conditions of this Agreement, the Settlement Administrator will pay a Settlement Share from the Net Settlement Amount to each Participating Known Class Member for whom Defendant has a valid address, and each Unknown Class Member who submits a timely Claim Form, calculated as follows: 1. Each Participating Known Class Member shall be directly mailed a Lowe s gift card in the amount of $9. 2. Each Unknown Class Member who submits a timely and valid Claim Form shall receive a gift card in the amount of $9, subject to the number of claims received and the Gross Settlement Amount. If the payment of $9 gift cards to all Unknown Class Members who submit claims would cause the total settlement payment to exceed the Gross Settlement Amount, then the amount of the gift cards to Unknown Class Members shall be reduced in a pro rata amount (rounded down to the nearest dollar) sufficient for the total settlement payment to not exceed the Gross Settlement Amount. D. Payments to Plaintiffs, Class Counsel, and Settlement Administrator. Subject to the terms and conditions of this Agreement, the Settlement Administrator will make the following payments out of the Gross Settlement Amount as follows: 1. To Plaintiffs: In addition to their Settlement Shares, Plaintiffs will apply to the Court for incentive awards of not more than $5,000 to each of them as their Class Representative Payments. Defendant will not oppose Class Representative Payments of $5,000 to each Plaintiff. The Settlement Administrator will pay the Class Representative Payments approved by the Court out of the Gross Settlement Amount. If the Court approves Class Representative Payments of less than $5,000 to each Plaintiff, the 5

6 remainder will be retained in the Net Settlement Amount. A Form 1099 will be issued to Plaintiffs with respect to their Class Representative Payments. 2. To Class Counsel: Class Counsel will apply to the Court for a total award of $750,000 as their Class Counsel Fees and Litigation Expense Payment. Defendant will not oppose this request. The Settlement Administrator will pay the amounts approved by the Court out of the Gross Settlement Amount. If the Court approves Class Counsel Fees and Litigation Expense Payment of less than $750,000, the remainder will be retained in the Net Settlement Amount. One or more Forms 1099 will be issued to Class Counsel with respect to those payments. 3. To the Settlement Administrator. The Settlement Administrator will pay out of the Gross Settlement Amount to itself its reasonable fees and expenses, not to exceed $300,000 (though the parties do not anticipate such expenses to exceed $200,000), only after such payment has been approved by the Court. E. Appointment of Settlement Administrator. The Parties will ask the Court to appoint Kurtzman Carson Consultants LLC as the Settlement Administrator, which, as a condition of appointment, will agree to be bound by this Agreement with respect to the performance of its duties and compensation. The Settlement Administrator s duties will include preparing, printing, and mailing the Class Notice to all Known Class Members; conducting a National Change of Address search on any Class Notice returned by the U.S. Postal Service as non-deliverable, and r ing the Class Notice to the Class Member s new address; setting up a toll-free telephone number to receive calls from Class Members; setting up a website that will contain all pertinent information relating to the Settlement, including a long form Class Notice and a Claim Form for Unknown Class Members; receiving completed Elections Not to Participate in Settlement; receiving and tracking the timely submission of Claim Forms submitted by Unknown Class Members; providing Class Counsel and Defendant s Counsel with weekly status reports about the delivery of Class Notice, receipt of completed Elections Not to Participate in Settlement, and receipt of timely Claim Forms; mailing the gift cards to effectuate the payments due under the Agreement; and otherwise administering the Settlement pursuant to this Agreement. The Settlement Administrator will mail activated gift cards to Known Class Members and Unknown Class Members who submitted valid Claim Forms after the Settlement becomes Final. The Settlement Administrator s reasonable fees and expenses, including the cost of printing and mailing the Class Notice, will be paid out of the Gross Settlement Amount. 6

7 F. Procedure for Approving Settlement. 1. Unopposed Motion for Conditional Certification of Class and Preliminary Approval of the Settlement by the Court. a. Plaintiffs will file an unopposed motion for an order conditionally certifying the Class, giving Preliminary Approval of the Settlement, setting a date for the Final Approval Hearing, and approving the Class Notice, and Claim Form (the Unopposed Motion for Preliminary Approval ). b. Within ten (10) days after the filing of the Unopposed Motion for Preliminary Approval, Defendant is to serve the appropriate Federal and State officials with the required notice pursuant to 28 U.S.C. 1715(b). c. At the hearing on the Unopposed Motion for Preliminary Approval, the Parties will jointly appear, support the granting of the Motion, and submit an order granting conditional certification of the Class and preliminary approval of the Settlement; appointing Class Representatives, Class Counsel, and Settlement Administrator; approving the forms of notice to the Class of the Settlement, Claim Form, and setting the Final Approval Hearing in substantially the form evidenced by Exhibit D to this Agreement and incorporated herein by reference. d. Should the Court decline to conditionally certify the Settlement Class or decline to preliminarily approve all material aspects of the Settlement, the Settlement will be null and void, and the Parties will have no further obligations under it, and the Parties will revert to their prior positions in the Action as if the Settlement had not occurred. 2. Notice to Class Members. After the Court enters its order granting Preliminary Approval of the Settlement, Class Notice informing Class Members of their rights under the Settlement, and of their ability to elect not to participate, will be provided to all Class Members as follows: a. Direct Mail Notice: Within fourteen (14) days after the Court enters its order granting Preliminary Approval of the Settlement, Defendant will provide the Settlement Administrator an electronic database containing each Known Class Members Data. The Settlement Administrator shall keep the Known Class Members Data confidential and shall not provide Known Class Members Data to any other person except as provided below. b. Within fourteen (14) days after receiving the Known Class Members Data, the Settlement Administrator will mail the 7

8 Summary Postcard Class Notice (substantially in the form attached as Exhibit E) to all Known Class Members via first-class regular U.S. Mail using the mailing address information provided by Defendant, unless modified by any updated address information that the Settlement Administrator obtains in the course of administration of the Settlement. c. If a Class Notice is returned because of an incorrect address, the Settlement Administrator will promptly search for a more current address for the Known Class Member and r the Class Notice to the Known Class Member. The Settlement Administrator will use the Known Class Members Data to find a more current address. The Settlement Administrator will be responsible for taking reasonable steps, consistent with its agreed-upon job parameters, court orders, and fee, and according to the following deadlines, to trace the mailing address of any Known Class Member for whom a Class Notice is returned by the U.S. Postal Service as undeliverable. These reasonable steps shall include, at a minimum, the tracking of all undelivered mail; performing address searches for all mail returned without a forwarding address; and promptly r ing to Known Class Members for whom new addresses are found. If the Class Notice Packet is r ed, the Settlement Administrator will note for its own records and notify Class Counsel and Defendant s Counsel of the date of each such r ing as part of a weekly status report provided to the Parties. Class Members for whom notice is returned as undeliverable, and for whom no new address can be found, or the r ed notice is returned as undeliverable, will be removed from the group of Known Class Members and will not be directly mailed a Settlement Share. d. In-Store Notice: Within twenty-one (21) days after the Court enters its order granting Preliminary Approval of the Settlement, Defendant will post at the majority of the points of sale in each of its California stores, a clear and conspicuous tear-away copy of the Summary In-Store Notice (substantially in the form attached as Exhibit F) containing instructions for Unknown Class Members to submit a claim, elect not to participate or object. These tear-away notices shall remain posted in Defendant s stores for at least thirty (30) days. e. As part of its weekly status report, the Settlement Administrator will inform Class Counsel and Defendant s Counsel of the timely Elections Not to Participate in Settlement it receives. The Settlement Administrator will provide to Defendant the names of the Non-Participating Class Members and to Class Counsel only the number of Non-Participating Class Members. 8

9 f. Not later than fourteen (14) days prior to the Final Approval Hearing, the Settlement Administrator will serve on the Parties and file with the Court a declaration of due diligence setting forth its compliance with its obligations under this Agreement. Prior to the Final Approval Hearing, the Settlement Administrator will supplement its declaration of due diligence if any material changes occur from the date of the filing of its prior declaration. 3. Claim Process: a. Completing Claim Forms: Unknown Class Members shall have forty-five (45) days from the date of posting of the tear-away Summary In-Store Notices ( Claim Deadline ) to complete in full, sign and return to the Settlement Administrator a timely Claim Form substantially in the form of Exhibit G to this Agreement to be eligible to receive a Settlement Share. The date of the postmark on the return envelope shall be the exclusive means used to determine whether a Class Member has timely returned the Claim Form on or before the Claim Deadline. For purposes of this Settlement, a Claim Form shall be deemed valid only if: the Class Member has (a) provided all the requested information, including the last four digits of the credit card number previously used to purchase a product from Defendant, and (b) signed under the penalty of perjury and dated the Claim Form. If a Claim Form is timely returned to the Settlement Administrator but defective as to any of the above, the Class Member shall be given one opportunity to cure the defect(s). The Settlement Administrator shall mail a notice of deficiency with a copy of the defective Claim Form. The Class Member shall be given fourteen (14) days from the date the notice of deficiency was mailed to cure the defect(s) and return the corrected Claim Form to the Settlement Administrator. If the corrected Claim Form is not completely corrected and postmarked within the fourteen (14) day period, it shall be deemed untimely and rejected. An Unknown Class Member who does not file a timely Claim Form and does not file a timely Election Not to Participate in Settlement as set forth below in Section 4, shall not be eligible to receive a Settlement Share but shall be a Participating Class Member who is bound by all terms and conditions of the Settlement, if the Settlement is approved by the Court and by the Judgment. 4. Objections to Settlement; Elections Not to Participate in Settlement. Participating Class Members may submit objections to the Settlement and Class Members who decide to opt-out of the Settlement shall submit an 9

10 Election Not to Participate in Settlement form pursuant to the following procedures: a. Objections to Settlement. The Class Notice will provide that Participating Class Members who wish to object to the Settlement must file with the Court and serve on counsel for the Parties, not later than forty-five (45) days after the Class Notice was mailed and posted, a written objection to (i) the Settlement, and/or (ii) Plaintiffs and Class Counsel s request for the Class Representative Payments, or the Class Counsel Fees and Litigation Expense Payment. No Participating Class Member shall be entitled to be heard at the Final Approval Hearing or to object to the Settlement orally or in writing, unless timely written notice was filed and served as set forth above. Participating Class Members who fail to file and serve timely written objections as 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. Non-Participating Class Members will not have any right to object to, comment on, or appeal the Settlement and/or Judgment. b. Election Not to Participate in Settlement. The Class Notice also will provide that Class Members who wish to exclude themselves from the Settlement must mail to the Settlement Administrator, not later than forty-five (45) days after the Settlement Administrator mails the Class Notice and in-store notice is posted, a signed and notarized Election Not to Participate in Settlement. A Class Member who submits a valid Election Not to Participate in Settlement form shall be considered a Non-Participating Class Member. A Non-Participating Class Member will not participate in or be bound by the Settlement and Judgment nor have any right to object to, comment on, or appeal the Settlement and/or Judgment. A Class Member who does not complete and mail a timely Election Not to Participate in Settlement in the manner and by the deadline specified above will automatically become a Participating Class Member and be bound by all terms and conditions of the Settlement, if the Settlement is approved by the Court, and by the Judgment, regardless of whether he or she has objected to the Settlement. c. Reporting. Not later than fourteen (14) days after the deadline for submission of Elections Not to Participate in Settlement, the Settlement Administrator will provide the Parties with a complete and accurate list of all Non-Participating Class Members. The 10

11 Settlement Administrator will provide to Class Counsel and Defendant the names of the Non-Participating Class Members. 5. No Solicitation of Comment, Objection, or Election Not to Participate. Neither the Parties nor their respective counsel will solicit or otherwise encourage directly or indirectly any Class Member to elect not to participate in the Settlement, comment on or object to the Settlement, or appeal from the Judgment. 6. Right of Defendant to Void Settlement. Defendant will have the right, but not the obligation, to void the Settlement if any of the following occurs: (a) (b) (c) If 14,000 or more Class Members timely opt-out of the Settlement, Defendant will have the right, but not the obligation, to void the Settlement and Defendant will have no further obligations under the Settlement, including any obligation to pay the Gross Settlement Amount, or any amounts that otherwise would have been owed under the Settlement, except that Defendant will pay the Settlement Administrator s reasonable fees and expenses incurred as of the date that Defendant exercises its right to void the Settlement; If the Court does not grant final approval of the Settlement or grants final approval conditioned on any material change to the terms of the Settlement with respect to the payments to be made to Participating Class Members, or the scope of the release of claims, then Defendant will have the right, but not the obligation, to void the Settlement. If that occurs, Defendant will have no further obligations under the Settlement, including any obligation to pay the Gross Settlement Amount or any amounts that otherwise would have been owed under the Settlement, except that Defendant will pay the Settlement Administrator s reasonable fees and expenses incurred as of the date that Defendant exercises its right to void the Settlement. An award by the Court of a lesser amount than that sought by Plaintiffs and Class Counsel for the Class Representative Payments, the Class Counsel Fees Payment, or the Class Counsel Litigation Expenses Payment will not constitute a material change to the Settlement; or If, after a notice of appeal, a petition for review, or a petition for certiorari, or any other motion, petition, or application, the reviewing court vacates, reverses, or modifies the Judgment such that there is a material modification to the Settlement, and that court s decision is not completely reversed and the Judgment is not fully affirmed on review by a higher court, then Defendant will have the right to void the Settlement. If that occurs, Defendant 11

12 will have no further obligations under the Settlement, including any obligation to pay the Gross Settlement Amount or any amounts that otherwise would have been owed under the Settlement, except that Defendant will pay the Settlement Administrator s reasonable fees and expenses incurred as of the date that Defendant exercises its right to void the Settlement. A vacation, reversal, or modification of the Court s award of the Class Representative Payments, the Class Counsel Fees Payment, or the Class Counsel Litigation Expenses Payment will not constitute a vacation, reversal, or material modification of the Judgment, so long as the result would not require a higher than agreed payment to Class Counsel and/or Plaintiffs. 7. Additional Briefing and Final Approval. a. Not later than twenty (20) court days before the Final Approval Hearing, Plaintiffs will file with the Court and serve on Defendant a supporting memorandum of points and authorities, and any necessary supporting declarations for final approval of the Settlement, including payment of the Settlement Administrator s reasonable fees and expenses. b. Not later than fourteen (14) days before the Objection deadline, Plaintiffs will file with the Court and serve on Defendant a supporting memorandum of points and authorities, and any necessary supporting declarations for final approval for the awards of the Class Representative Payments, and the Class Counsel Fees and Litigation Expense Payment pursuant to this Settlement. c. Upon final approval of the Settlement by the Court at or after the Final Approval Hearing, the Parties will present the Final Approval Order and Judgment, respectively, to the Court for approval and entry substantially in the form evidenced by Exhibits B and C to this Agreement and incorporated herein by reference. After entry of the Judgment, the Court will have continuing jurisdiction over the Action and the Settlement solely for purposes of (i) enforcing this Agreement, (ii) addressing settlement administration matters, and (iii) addressing such post-judgment matters as may be appropriate under court rules or applicable law. 8. Waiver of Right to Appeal. Provided that the Judgment is consistent with the terms and conditions of this Agreement, Plaintiffs, Participating Class Members who did not timely submit an objection to the Settlement, Defendant, and their respective counsel hereby waive any and all rights to appeal from the Judgment, including all rights to any post-judgment proceeding and appellate proceeding, such as a motion to vacate or set aside judgment, a motion for new trial, and any extraordinary writ, and the 12

13 Judgment therefore will become nonappealable at the time it is entered. The waiver of appeal does not include any waiver of the right to oppose any appeal, appellate proceedings or post-judgment proceedings. This paragraph does not preclude Plaintiffs or Class Counsel from appealing from a refusal by the Court to award the requested Class Representative Payments, or the Class Counsel Fees and Litigation Expense Payment sought by them. 9. Timing of Provision of Settlement Shares and Payments. Within thirty (30) days after the Judgment becomes Final, Defendant shall deliver to the Settlement Administrator the gift cards to be sent to the Class Members, the court approved Class Representative Payments to Plaintiffs, the court approved Class Counsel Fees and Litigation Expenses Payment to Class Counsel. Within forty-five (45) days after the Judgment becomes Final, the Settlement Administrator will make all payments required under this Settlement. 10. Final Report by Settlement Administrator. Within ten (10) days after final disbursement of all funds, the Settlement Administrator will serve on the Parties and file with the Court a declaration confirming the disbursements of all funds required under the Settlement. G. Release of Claims. As of the Effective Date of this Agreement, Plaintiffs and all Participating Class Members shall be deemed to hereby fully and irrevocably release, waive, and discharge Defendant and each of its respective past, present and future owners, stockholders, parent corporations, related or affiliated companies, subsidiaries, officers, directors, shareholders, employees, agents, principals, heirs, representatives, accountants, attorneys, auditors, consultants, insurers and reinsurers, and their respective successors and predecessors in interest, from any and all past, present, and future liabilities, claims, causes of action (whether in contract, tort, or otherwise, including statutory, common law, property, and equitable claims), damages, costs, attorneys fees, losses, or demands, whether known or unknown, existing or potential, or suspected or unsuspected, which were asserted in the Action or could have been asserted under the claims or facts alleged in the Action (the Released Claims ). H. California Civil Code Section 1542 Waiver. Upon the Effective Date, with regard to the Released Claims, the Class Members shall be deemed to have, and by operation of the Final Judgment shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of Section 1542 of the California Civil Code, or any other similar provision under federal or state law that purports to limit the scope of the general release. Section 1542 provides: 13

14 I. Miscellaneous Terms. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 1. No Admission of Liability or Class Certification for Other Purposes. a. Defendant denies that it has engaged in any unlawful activity, has failed to comply with the law in any respect, has any liability to anyone under the claims asserted in the Action, or that but for the Settlement a class should be certified in the Action. This Agreement is entered into solely for the purpose of compromising highly-disputed claims. Nothing in this Agreement is intended or will be construed as an admission of liability or wrongdoing by Defendant, or an admission by Plaintiffs that any of their claims were non-meritorious or any defense asserted by Defendant was meritorious. This Settlement and the fact that Plaintiffs and Defendant were willing to settle the Action will have no bearing on, and will not be admissible in connection with, any litigation (other than solely in connection with the Settlement). b. The Parties have agreed to the certification of the Class for the sole purpose of effectuating this Settlement. Should the Settlement be voided by Defendant pursuant to this Agreement, or not approved by the Court, or should the Judgment not become Final, the fact that the Parties were willing to stipulate to class certification as part of the Settlement will have no bearing on, and will not be admissible in connection with, the issue of whether a class should be certified in a non-settlement context in this Action or any other action, and in any of those events Defendant expressly reserves the right to oppose class certification. c. Whether or not the Judgment becomes Final, neither the Settlement, this Agreement, any document, statement, proceeding or conduct related to the Settlement or the Agreement, nor any reports or accounting of those matters, will be (i) construed as, offered or admitted in evidence as, received as, or deemed to be evidence for any purpose adverse to Defendant, including, but not limited to, evidence of a presumption, concession, indication or admission by any of the Defendant of any liability, fault, wrongdoing, omission, concession or damage; or (ii) disclosed, 14

15 referred to or offered in evidence against Defendant, in any further proceeding in the Action, or any other civil, criminal or administrative action or proceeding except for purposes of effectuating the Settlement pursuant to this Agreement. d. This section and all other provisions of this Agreement notwithstanding, any and all provisions of this Agreement may be admitted in evidence and otherwise used in any and all proceedings to enforce any or all terms of this Agreement or in defense of any claims released or barred by this Agreement. 2. Integrated Agreement. After this Agreement is signed and delivered by all Parties and their counsel, this Agreement and its exhibits will constitute the entire agreement between the Parties relating to the Settlement, and it will then be deemed that no oral representations, warranties, covenants, or inducements have been made to any Party concerning this Agreement or its exhibits other than the representations, warranties, covenants, and inducements expressly stated in this Agreement and its exhibits. 3. Attorney Authorization. Class Counsel and Defendant s Counsel warrant and represent that they are authorized by Plaintiffs and Defendant, respectively, to take all appropriate action required or permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms, and to execute any other documents required to effectuate the terms of this Agreement. The Parties and their counsel will cooperate with each other and use their best efforts to effect the implementation of the Settlement. In the event the Parties are unable to reach agreement on the form or content of any document needed to implement the Agreement, or on any supplemental provisions that may become necessary to effectuate the terms of this Agreement, the Parties will seek the assistance of the Court, and in all cases all such documents, supplemental provisions and assistance of the Court will be consistent with this Agreement. 4. Agreement Binding on Successors. This Agreement will be binding upon, and inure to the benefit of, the successors of each of the Parties. 5. Applicable Law. All terms and conditions of this Agreement and its exhibits will be governed by and interpreted according to the laws of the State of California, without giving effect to any conflict of law principles or choice of law principles. 6. Cooperation in Drafting. The Parties have cooperated in the drafting and preparation of this Agreement. This Agreement will not be construed against any Party on the basis that the Party was the drafter or participated in the drafting. 15

16 7. Fair Settlement. The Parties and their respective counsel believe and warrant that this Agreement reflects a fair, reasonable, and adequate settlement of the Action and have arrived at this Agreement through armslength negotiations, taking into account all relevant factors, current and potential. 8. Plaintiffs Waiver of Right to be Excluded and Object. The Plaintiffs agree that by signing this Agreement they become bound by the terms herein stated and further agree not to opt-out of the Settlement or object to any of the terms of the Settlement. Thus, any non-compliance with this paragraph (e.g., request for exclusion or objection) shall be void and of no force or effect. 9. Use and Return of Documents. All originals, copies, and summaries of documents provided to Class Counsel by Defendant in connection with the mediation or other settlement negotiations in this matter may be used only with respect to this Agreement, and no other purpose, and may not be used in any way that violates any existing contractual agreement, statute, or rule. 10. Headings. The descriptive heading of any section or paragraph of this Agreement is inserted for convenience of reference only and does not constitute a part of this Agreement. 11. Notice. All notices, demands or other communications given under this Agreement will be in writing and deemed to have been duly given as of the third (3rd) business day after mailing by United States mail, addressed as follows: To the Plaintiffs and Class: Gene J. Stonebarger STONEBARGER LAW, APC 75 Iron Point Circle, Suite 145 Folsom, California Telephone: (916) Facsimile: (916) James R. Patterson PATTERSON LAW GROUP, APC 402 West Broadway, 29th Floor San Diego, California Telephone: (619) Facsimile: (619)

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25 EXHIBIT A EXHIBIT A

26 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA If you purchased goods or services using a credit card from a Lowe s store in California during the period of time between February 23, 2010 and, 2012, and the clerk requested your ZIP code, then you may be entitled to a benefit from a class action settlement. A federal court authorized this notice. This is not a solicitation from a lawyer. The settlement will provide up to nine dollar ($9.00) Lowe s Gift Cards to Lowe s customers who purchased goods or services using a credit card issued for consumer credit purposes, if, in connection with that purchase, a Lowe s employee requested and recorded the customer s ZIP code for any reason other than a special order, installation or delivery. Your legal rights are affected whether you act or don t act. Please read this entire notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT RECEIVE SETTLEMENT BENEFITS EXCLUDE YOURSELF OBJECT GO TO A HEARING If you received notice of this Settlement in the mail, then you are a Known Class Member and will be mailed the Settlement Benefit without doing anything further. If you did not receive notice of this Settlement in the mail, then you must follow the instructions set forth in this Notice and submit a claim form to receive a Settlement Benefit. Get no Settlement benefits, and be able to bring your own suit. Write to the Court about why you don't like the Settlement. Ask to speak in Court about the fairness of the Settlement. These rights and options and the deadlines to exercise them are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement. Settlement benefits will become available if the Court approves the Settlement and after any appeals are finished. Please be patient.

27 WHAT THIS NOTICE CONTAINS BASIC INFORMATION... Page 3 1. Why did I get this notice? 2. What is this lawsuit about? 3. Why is this a class action? 4. Why is there a Settlement? Who is in the Settlement... Page 4 5. How do I know if I am part of the Settlement? The Settlement Benefits What You Get... Page 5 6. What does the Settlement provide? How You Get a Payment Submitting a Claim Form... Page 4 7. How can I participate in the Settlement? 8. When would I receive my Settlement benefits? 9. What am I giving up to stay in the Class and receive a benefit? Excluding Yourself From the Settlement... Page How do I get out of the Settlement? 11. If I don t exclude myself, can I sue Lowe s for the same thing later? 12. If I exclude myself, can I still benefit from this Settlement? The Lawyers Representing You... Page Do I have a lawyer in the case? 14. How will the lawyers be paid? Objecting to the Settlement... Page How do I tell the Court that I don t like the Settlement? 16. What's the difference between objecting and excluding? THE COURT S FAIRNESS HEARING... Page When and where will the Court decide whether to approve the Settlement? 18. Do I have to come to the hearing? 19. May I speak at the hearing? If You Do Nothing... Page What happens if I do nothing at all? Getting More Information... Page Are there more details about the Settlement? 22. How do I get more information? 2

28 BASIC INFORMATION 1. Why did I get this notice? The Court ordered this notice because you have a right to know about a proposed Settlement of a class action lawsuit of which you may be a member, and about your options, before the Court decides whether to approve the Settlement. If the Court approves it and after any objections and appeals are resolved, Lowe's will provide up to nine dollar ($9.00) Lowe s Gift Cards to eligible class members. This notice explains the lawsuit, the Settlement, your legal rights, the benefits available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Northern District of California and the case is entitled Peterson, et al. v. Lowe s HIW, Inc., Case No. CV RS. The persons who sued are called the Plaintiffs, and the company they sued, Lowe's HIW, Inc. ( Lowe s ), is called the Defendant. 2. What is this lawsuit about? The lawsuit claimed that Lowe s violated California Civil Code , which prohibits retailers from requesting and recording ZIP codes at the point of sale in conjunction with certain credit card transactions. Lowe s denies that it did anything wrong. 3. Why is this a class action? In a class action, one or more people, called Class Representatives (in this case Martin Peterson, Charlene Swaney, Joseph Sarasua, and Susan Hurtado), sue on behalf of people who have similar claims. All these people are a Class or Class Members. One court resolves the issues for all Class Members, except for those who ask to be excluded from the Class. U.S. District Judge Richard Seeborg is in charge of this class action. 4. Why is there a Settlement? The Court has not decided in favor of Plaintiffs or Defendant. Instead, both sides agreed to a Settlement. That way, they avoid the cost of a trial, and the people affected will benefit. The Class Representatives and their attorneys think the Settlement is best for the Class Members. 3

29 WHO IS IN THE SETTLEMENT 5. How do I know if I am part of the Settlement? You are part of the Settlement if: You used a credit card issued for consumer credit purposes to purchase goods or services from a Lowe s retail store (either in person or over the phone) in the State of California between the dates of February 23, 2010 and [date]; and A Lowe s employee requested and recorded your ZIP code in conjunction with the credit card transaction, unless the information was requested in connection with a special order, installation or delivery. THE SETTLEMENT BENEFITS WHAT YOU GET 6. What does the Settlement provide? Lowe s will directly mail nine dollar ($9.00) Gift Cards to all members of the Settlement Class for whom Lowe's has addresses. For those persons for whom Lowe s does not have addresses, Lowe s will mail these individuals Gift Cards of up to nine dollars ($9.00) upon the submission and receipt of a valid Claim Form by the deadline, which is, There is no minimum purchase amount required for use of the Gift Card. There is no expiration date for the Gift Card. The minimum amount to be paid by Lowe s under the Settlement is $2,580,000, up to a maximum amount of $2,900,000. HOW YOU CAN PARTICIPATE IN THE SETTLEMENT 7. How can I participate in the Settlement? The process to receive benefits offered under the Settlement depends on whether or not you received notice of the Settlement in the mail. There are approximately 280,000 members of the Settlement Class, and approximately 180,000 will receive notice of the Settlement in the mail. If you received notice of this Settlement in the mail, then Lowe s records show that you are a member of the Settlement Class and you will receive the Settlement benefit (a nine dollar ($9.00) Gift Card) in the mail automatically and without submitting a Claim Form. If you did not receive notice of this Settlement in the mail, and you want to receive the benefits offered under this Settlement, then you will need to fill out a valid Claim Form. On the Claim Form, you will provide your name, contact information, the last four (4) digits of your credit card number, and you will attest that when you made a purchase, a Lowe s employee requested and 4

30 recorded your ZIP code in conjunction with the credit card transaction, and not for a special order, installation or delivery. This information will be kept confidential and will not be provided to Lowe's. This Claim Form must be submitted by mail to the Settlement Administrator no later than [date] at the following address : Lowe s Class Action Settlement If the Court approves the Settlement, the Claim Form will be reviewed by the Settlement Administrator, and if you are eligible, you will receive the Settlement benefit (a Gift Card of up to nine dollars ($9.00)). You can check on the progress of the Settlement by visiting the website 8. When would I receive my Settlement benefits? The Court will hold a hearing on, 2012, at.m. at the United States District Court for the Northern District of California, San Francisco Division, Courtroom 3, 450 Golden Gate Avenue, San Francisco, CA 94102, to decide whether to approve this Settlement. If the Court approves the Settlement after that, there may be appeals. It s always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps even more than a year. You may continue to check on the progress of the Settlement by visiting the website 9. What am I giving up to stay in the Class and receive a benefit? Unless you exclude yourself, you are staying in the Class, and that means that you can't sue, continue to sue, or be part of any other lawsuit against Lowe s and certain affiliated companies and people about the legal issues in this case if the Settlement is approved. It also means that all of the Court s orders will apply to you and legally bind you. As part of the Settlement, the Class Representatives have agreed to dismiss all claims of the members of Settlement Class relating to any and all claims that Lowe's violated California Civil Code Section or any other law by requesting and recording customers ZIP codes in conjunction with credit card purchase transactions. This means that all persons who do not optout of the Settlement will be barred from bringing any claims on their own for the conduct that Plaintiffs claim violates California Civil Code section , even if they do not file a claim or receive a gift card. 5

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