STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE. Plaintiff,

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1 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE LINDA R. GLASKE, on behalf of herself and all others similarly situated, v. Plaintiff, INDEPENDENT BANK CORPORATION, Defendant. Hon. Muriel D. Hughes Case No CZ CZ FILED IN MY OFFICE WAYNE COUNTY CLERK 11/27/2017 4:27:46 PM CATHY M. GARRETT Fink + Associates Law Webb, Klase & Lemond, LLC David H. Fink (P28235) E. Adam Webb Darryl Bressack (P67820) Matthew C. Klase Woodward Ave., Suite The Exchange, S.E., Suite 480 Bloomfield Hills, MI Atlanta, GA (248) (770) dfink@finkandassociateslaw.com Adam@WebbLLC.com dbressack@finkandassociateslaw.com Matt@WebbLLC.com Attorneys for Plaintiff Attorneys for Plaintiff Varnum LLP Jon M. Bylsma (P48790) 333 Bridge Street, N.W.; Suite 1700 Grand Rapids, MI (616) jmbylsma@varnumlaw.com Attorneys for Defendant PLAINTIFF S AND CLASS COUNSEL S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AND APPLICATION FOR SERVICE AWARD AND ATTORNEYS FEES AND EXPENSES AND INCORPORATED BRIEF IN SUPPORT

2 TABLE OF CONTENTS TABLE OF CONTENTS... i I. INTRODUCTION... 1 II. MOTION FOR FINAL APPROVAL... 4 A. Procedural History... 4 B. Summary of Settlement Terms The Class Monetary Relief for the Class Class Release The Notice Program Settlement Termination Service Award for Class Representative Attorneys Fees and Costs C. Final Approval Is Warranted The Court Has Personal Jurisdiction Over the Class The Settlement Is Fair, Adequate, and Reasonable The Court Should Certify the Settlement Class III. APPLICATION FOR SERVICE AWARD IV. APPLICATION FOR ATTORNEYS FEES AND EXPENSES A. Class Counsel Are Entitled to Receive Fees from the Common Fund They Recovered for the Class B. The 33.33% Fee Sought By Class Counsel Is Within the Range of Fee Awards in Similar Actions C. An Analysis of the Bowling Factors Demonstrates the Requested Fee Is Reasonable The Value of the Benefit Rendered to the Class i

3 2. The Value of the Services on an Hourly Basis Whether the Services Were Undertaken on a Contingent Fee Basis Society s Stake in Rewarding Attorneys Who Produce Such Benefits in Order to Maintain an Incentive to Others The Complexity of the Litigation The Professional Skill and Standing of Counsel Involved on Both Sides D. The Expense Request Is Reasonable V. CONCLUSION ii

4 After a lengthy, hard-fought litigation, Class Counsel negotiated the Settlement Agreement and Release attached as Exhibit A-1 ( Settlement or Agreement ) with Defendant Independent Bank Corporation ( Independent or the Bank ). 1 The Settlement which consists of Independent s payment of $2,215,000 to create a Settlement Fund, plus Independent s payment of all of the substantial costs and fees associated with Class Notice and Settlement Administration is a fantastic result that will provide immediate benefits to the Class without further risks, delays, and costs. See Joint Declaration of E. Adam Webb and David Fink 92 ( Joint Decl. ) (Exhibit A-2 hereto). Plaintiff and Class Counsel now seek Final Approval of the Settlement. Based on the controlling legal standards and the supporting facts, Final Approval is clearly warranted. In addition, Plaintiff respectfully requests that the Court permit a Service Award from the Settlement Fund. Ms. Glaske s willingness to represent the Class and her active participation in the Action made the Settlement possible. Finally, Class Counsel respectfully request that the Court award them legal fees and reimbursement for their necessary costs and expenses. I. INTRODUCTION In July 2013, Plaintiff Linda Glaske filed a class action complaint in this Court seeking monetary damages, restitution, and declaratory relief from Independent, arising from the alleged improper assessment, collection, and disclosure of Overdraft Fees, including those fees that were assessed due to Independent s High-to-low Debit Card Transaction Sequencing practice ( the Practice ). Plaintiff alleged that Independent systemically engaged in the Practice to maximize the Bank s Overdraft Fee revenues. Plaintiff and Class Counsel have litigated this Action for over four years. The litigation was hard-fought and the Parties engaged in significant motion practice on the issues of venue 1 Terms defined in the Settlement will be capitalized herein. 1

5 and summary disposition, an appeal before the Michigan Court of Appeals, and extensive document and data discovery. Joint Decl. 5. The Action involved sharply opposed positions on several fundamental legal questions, including: (i) whether venue was appropriate in this Court; (ii) whether Independent breached its account agreement; (iii) whether Michigan law recognizes a cause of action for good faith and fair dealing; (iv) whether Michigan law allows an affirmative action for unconscionability; (v) whether Michigan law allows a claim for unjust enrichment when there is a written contract; and (vi) the appropriate methodology for establishing damages on a class-wide basis and the recoverable amount of such damages. Id. at 6. The Parties engaged in substantial amounts of written, document, and electronically stored information ( ESI ) discovery. Joint Decl , 19, 42-43, 45. Indeed, after the Parties began settlement discussions, Independent produced a substantial amount of sample and aggregate data, enabling Plaintiff s expert Arthur Olsen of Cassis Technology, LLC to calculate the class-wide damages. This discovery and sample and aggregate data analysis was time consuming and costly. Id. at After a mediation, several settlement conferences, and many months of negotiation, Class Counsel and Independent reached an agreement in principle on the Settlement. Id. at Under the Settlement, all Settlement Class Members who were assessed an Additional Overdraft Amount and do not opt-out will automatically receive their pro rata share of the Net Settlement Fund. Agreement 77. There are no claim forms to fill out and Settlement Class Members will not be asked to prove that they were damaged as a result of the Practice. Id. Instead, Class Counsel and their data expert (Mr. Olsen) have used available Independent data to determine which Independent Account holders were adversely affected by the Practice, and have applied a 2

6 formula (detailed in paragraph 100 of the Agreement) to calculate each eligible Settlement Class Member s pro rata share of the Net Settlement Fund. Joint Decl. 60. Such automatic payments of benefits to the Settlement Class, with no paperwork to complete, is the gold standard for class action settlements, and will maximize the benefit to Class Members. Id. A testament to the reasonableness and fairness of the Settlement is the amount of the Settlement Fund. Class Counsel negotiated a $2.215 million cash payment, which is substantial given that Independent asserted and would continue to assert in the absence of this Settlement that Plaintiff s and all Settlement Class Members claims were barred by Michigan law and the Parties account agreement and, therefore, that no class could ever be certified. Joint Decl Thus, without a settlement of the Action, if Independent ultimately prevailed on its arguments, there would be no further litigation in this Court on a class-wide basis and Plaintiff and every Settlement Class Member would have received nothing. Id. Independent also raised other legal arguments and defenses that could have precluded any recovery for Plaintiff. In the face of that risk, the $2.215 million cash recovery secured through this Settlement is outstanding and merits Preliminary Approval. In addition to the Settlement Fund, Independent agreed to pay all fees, costs, and charges incurred in connection with the administration of the Notice Program and the Settlement, an amount that will exceed $104,000. Agreement 77; Joint Decl. 58. This is money that necessarily must be spent to facilitate the Settlement, for example, to mail checks to former customers. Therefore, it is appropriate to include this amount as a benefit of the Settlement. 2 Accordingly, Plaintiff and Class Counsel respectfully request that the Court: (1) grant Final Approval to the Settlement; (2) approve a Service Award to Plaintiff Linda Glaske; (3) 2 The Settlement does not include any practice changes because Independent voluntarily ceased the Practice and made other practice and disclosure changes before this case was filed. 3

7 award Class Counsel attorneys fees and reimbursement of necessary litigation costs and expenses; and (4) enter Final Judgment dismissing the Action with prejudice. II. MOTION FOR FINAL APPROVAL A. Procedural History. On July 31, 2013, Plaintiff Linda Glaske filed her class action complaint attacking several of Independent s Overdraft Fee policies, including the Practice. Joint Decl. 8. Independent answered and moved to transfer venue to the Ionia County Circuit Court. Id. at Plaintiff opposed this motion and filed a first amended class action complaint. Id. at On October 4, 2013, the Court heard oral argument on the motion to transfer venue and denied the motion. Id. at 14. The Parties thereafter engaged in discovery. Independent produced all relevant versions of its customer agreement. Id. at 15. On November 25, 2013, after reviewing such discovery, Plaintiff filed her second amended class action complaint. Id. at 16. On December 16, 2013, Independent answered the second amended class action complaint and moved for summary disposition, arguing that Plaintiff failed to state lawful claims. Id. at Plaintiff opposed this motion and Independent replied. Id. at 18. On December 24, 2013, Plaintiff served her first interrogatories, requests for production, and requests for admissions on Independent. Id. at 19. In late January 2014, Plaintiff agreed to extend Independent s time to respond to the outstanding written discovery requests until after the motion for summary disposition was resolved. Id. at 20. On February 14, 2014, the Court heard oral argument on the motion for summary disposition and granted it in part and denied it in part. Id. at 21. Specifically, the Court granted summary disposition on Plaintiff s claim that Independent breached the contract via the covenant of good faith and fair dealing, but denied it in all other respects, finding that Plaintiff s direct breach of contract, unconscionability, and unjust enrichment claims were validly pled. Id. The 4

8 Parties each submitted and objected to the other s proposed written orders on Independent s motion for summary disposition. Id. at 23. On July 24, 2014, the Court held a hearing on the Parties competing written orders and entered an order granting in part and denying in part Independent s motion for summary disposition. Id. at 24. On August 14, 2014, Independent applied to the Michigan Court of Appeals for leave to appeal the summary disposition order. Id. at 25. The same day, Independent moved the Court to stay all proceedings pending the outcome of the motion for leave to appeal. Plaintiff opposed the motion to stay. Id. at 26. On September 12, 2014, the Court heard oral argument on and granted the motion to stay pending a decision by the Court of Appeals. Id. at 27. Plaintiff opposed Independent s motion for leave to appeal and Independent replied. Id. at 29. On February 10, 2015, the Court of Appeals granted leave to appeal. Id. at 30. Over the next year, the appeal was briefed and argued. Id. at On January 21, 2016, the Court of Appeals affirmed the order of this Court to deny summary disposition on Plaintiff s claims for breach of contract, unconscionability, and unjust enrichment. Id. at 35. On March 17, 2016, the Court held a conference to discuss scheduling. Id. at 36. On April 6, 2016, the Court entered orders lifting the stay and setting a schedule. Id. at 37. During this time period, the Parties informally agreed to focus on settlement, including Independent s production of sample data and Mr. Olsen s analysis of such data. Id. at 38. Over the next several months, Independent provided sample data regarding millions of transactions during the Class Period (including data about individual transactions over several months and aggregate data) and Mr. Olsen analyzed such data and calculated probable class damages. Id. at 39. On July 20, 2016, the Parties participated in a mediation with William Jack, Esq. serving as mediator. Id. at 40. Although the mediation was unsuccessful, the Parties laid the 5

9 groundwork for future negotiations. Id. Over the next several months, Independent provided additional sample data which Mr. Olsen analyzed and incorporated into his analysis. Id. at 41. Mr. Olsen participated in multiple conference calls with counsel for Independent wherein he explained his analysis and results. Id. Although the Parties were actively negotiating, Plaintiff served additional discovery requests on Independent seeking information she would need to support a motion for class certification if settlement was unsuccessful. Id. at 42. Plaintiff also circulated her proposals for an ESI protocol and a confidentiality stipulation pertaining to documents and information. Id. at 43. These agreements were negotiated and subsequently entered by the Court. Id. On September 7, 2016, the Parties held a settlement conference with the Court. Id. at 44. Although no settlement was reached, the Parties continued to negotiate. Id. The Court revised the case schedule to account for the continued negotiations. Id. On October 17, 2016, Plaintiff served a Rule 2.306(B)(5) deposition notice on Independent. Id. at 45. On October 17, 2016, the Parties agreed to stay formal discovery while they continued to negotiate. Id. at 46. Independent agreed that it would not oppose class certification if settlement talks were unsuccessful. Id. On November 29, 2016, the Parties held another unsuccessful settlement conference with the Court, with client representatives present. Id. at 47. On December 21, 2016, after several back and forth offers, the Parties agreed to a settlement framework that, subject to a mutually agreeable written Settlement Agreement and subject to preliminary approval and final approval by the Court as required by Michigan Court Rule 3.501, reflected the Parties good faith intention to resolve, discharge, and release all rights 6

10 and claims of the Settlement Class. Id. at 48. On January 5, 2017, the Parties filed a joint notice of settlement. Id. at 49. Thereafter, the Parties met and conferred and worked to finalize the Settlement Agreement, proposed class notices, and preliminary approval papers. Id. The Parties also made arrangements for the full class data to be transmitted to Mr. Olsen so he may analyze it and ascertain who is in the Settlement Class and each member s damages. Id. The Settlement Agreement was formally executed on February 28, Id. at 50. On February 28, 2017, Plaintiff and Class Counsel moved for preliminary approval of the Settlement. Id. at 51. On March 9, 2017, the Court entered its Preliminary Approval Order and scheduled a Final Approval Hearing for November 29, Id. at 52. In August 2017, due to some delays in receiving the data that was necessary for Plaintiff s expert Mr. Olsen to determine class membership and calculate damages, the parties jointly sought a continuance of the Final Approval Hearing. Id. at 53. On August 7, 2017, the Court approved this request and continued the Final Approval Hearing to January 10, Id. at 54. Class Counsel s expert Mr. Olsen has received the necessary data and completed his analysis. Id. at 55. He has specifically ascertained exactly who is in the Settlement Class and each such individual s damages (according to the allocation methodology set forth in the Agreement). Id. B. Summary of the Settlement Terms. The Settlement s terms are detailed in the Agreement attached hereto as Exhibit A-1. The following is a summary of the material terms. 7

11 1. The Settlement Class. The Settlement Class is an opt-out class under Michigan Court Rule 3.501(A)(1). The Settlement Class is defined as: All Independent customers in the United States who had one or more nonbusiness accounts and who, during the Class Period, incurred an Overdraft Fee as a result of Independent s High-to-low Debit Card Transaction Sequencing. Agreement 72. The Class Period is July 31, 2007 through the date of preliminary approval of the Settlement. Id. at Monetary Relief for the Class. The Settlement requires Independent to deposit $2.215 million into an Escrow Account within 14 days of this Court s Final Approval of the Settlement. Agreement 77. That deposit will create the Settlement Fund that will be used to pay: (i) all distributions of money to the Settlement Class; (ii) any Court-ordered award of attorneys fees, costs, and expenses of Class Counsel; and (iii) any Court-ordered Service Award to Plaintiff. Id. at 80. In addition to the $2.215 million Settlement Fund, Independent is responsible for paying all costs and fees associated with Class Notice and Settlement Administration. Id. at 77. These amounts exceed $104,000. Joint Decl. 58. All identifiable Settlement Class Members who experienced an Additional Overdraft Amount will receive pro rata distributions from the Net Settlement Fund, provided they do not opt-out of the Settlement. Agreement Section XIII. The Additional Overdraft Amount analysis determines which Independent Account holders were assessed Additional Overdrafts that would not have been assessed if the Bank had used an alternative posting sequence or method for posting Debit Card Transactions other than High-to-low Debit Card Transaction Sequencing, and how much in Additional Overdrafts those Account holders were assessed. The calculation involves a multi-step process that is described in detail in the Agreement. Agreement 100. Settlement Class Members do not have to submit claim forms or take any other affirmative step 8

12 to receive relief under the Settlement. The amount of their pro rata distributions will be determined through analysis of Independent s electronic data. Id. The Net Settlement Fund which will be distributed pro rata among all Settlement Class Members who experienced an Additional Overdraft Amount is equal to the Settlement Fund, plus any interest earned, less Court-awarded legal fees, costs, and a Service Award. Id. at 80. Within 30 days after the Effective Date (Agreement 53), Independent and the Settlement Administrator will distribute the Net Settlement Fund to all Settlement Class Members who do not opt-out and who are entitled to a distribution. Joint Decl. 63. Payments to eligible Settlement Class Members who are Current Account Holders will be made by the Bank crediting such Settlement Class Members Accounts, and notifying them of the credit. Agreement 106. Independent will then be entitled to a reimbursement for such credits from the Net Settlement Fund. Id. Past Account Holders will receive payments from the Net Settlement Fund by checks mailed by the Settlement Administrator. Id. at 107. Any uncashed or returned checks will remain in the Settlement Fund for one year from the date the first distribution check is mailed by the Settlement Administrator, during which time the Settlement Administrator will make reasonable efforts to effectuate delivery of the Settlement Fund Payments. Agreement 108. The Settlement Administrator selected by the Parties and appointed by the Court is expert at these processes and has handled other overdraft fee-related settlements, with an admirable record of making sure funds are paid to class members. Joint Decl Class Release. In exchange for the benefits conferred by the Settlement, all Settlement Class Members who do not opt-out will be deemed to have released Independent 9

13 from claims related to the Action. The detailed release language can be found in Section XIV of the Agreement. 4. The Notice Program. The Notice Program (Agreement Section VIII) was designed to provide the best notice practicable, and was tailored to take advantage of the information Independent has available about the Settlement Class Members. Joint Decl. 70. The Notice Program was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, the terms of the Settlement, Class Counsel s Fee Application, the request for a Service Award for Plaintiff, and their rights to opt-out of the Class or object to the Settlement. Agreement 71; see also Affidavit of Cameron Azari as to Implementation of Settlement Notice Plan 4-11 ( Azari Aff. ) (Exh. A-3 hereto). The Notices and Notice Program constituted sufficient notice to all persons entitled to notice. The Notices and Notice Program satisfied all applicable requirements of law, including, but not limited to, Michigan law and the constitutional requirement of due process. Azari Aff Settlement Termination. Either Party may terminate the Settlement if the Settlement is rejected or materially modified by the Court or an appellate court, as provided in the Settlement Agreement. Agreement 22. Independent also has the right to terminate the Settlement if the number of Class Members who timely opt-out of the Class constitutes a significant percentage of the Class as agreed on by the Parties in writing. Id. at Service Award to Class Representative. Class Counsel hereby requests and Independent does not oppose a Service Award of $10,000 for Class Representative Linda Glaske. Agreement 77. This award will compensate the named Plaintiff for her substantial time and effort in the Action and for the risk she undertook in prosecuting the Action against Independent. 10

14 7. Attorneys Fees and Costs. Class Counsel hereby requests and Independent does not oppose Class Counsel s request for attorneys fees of one-third (33.33 percent) of the Settlement Fund, plus reimbursement of necessary litigation costs and expenses. Agreement 117. The Parties reached agreement regarding Independent s non-objection to these legal fees and costs only after reaching agreement on all other material terms of this Settlement. Id. at 118; Joint Decl. 78. Further description and support for the award of fees and costs is provided in Section IV below. C. Final Approval Is Warranted. Court approval is required for settlement of a class action. 3 MCR 3.501(E). Approval of a proposed settlement is committed to the sound discretion of the trial court and the order approving a settlement will not be disturbed absent an abuse of discretion. Detroit Police Officers Ass n v. Young, 920 F. Supp. 755, 761 (E.D. Mich. 1995) (citing Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 42, (6th Cir. 1990)). In exercising that discretion, courts are mindful of the strong policy favoring settlement of class actions. International Union v. General Motors Corp., 497 F.3d 615, 632 (6th Cir. 2007). This is true because the inherent costs, delays, and risks of continued litigation might otherwise overwhelm any potential benefit the class could hope to obtain. Id.; see also 4 Newberg on Class Actions, (4th ed. 2002) (citing cases). In evaluating a proposed class settlement, the Court will not substitute its business judgment for that of the parties; the only question... is whether the settlement, taken as a whole, is so unfair on its face as to preclude judicial approval. Rankin v. Rots, 2006 WL , *3 (E.D. Mich. June 28, 2006) (quotation omitted) (Exh. B-1 hereto). Indeed, there is 3 Precedential caselaw on the subject of class action jurisprudence is thin in Michigan. Michigan Ass n of Chiropractors v. Blue Care Network of Mich., Inc., 300 Mich. App. 577, 587, 834 N.W.2d 138 (2013). As such, Michigan courts look to federal authorities. Henry v. Dow Chem. Co., 484 Mich. 483, 498, 72 N.W.2d 301 (2009) (given that MCR and Fed. R. Civ. P. 23 are nearly identical, similar purposes, goals, and cautions are applicable to both ). 11

15 an overriding public interest in the settlement of class action lawsuits. Brenner v. Marathon Oil Co., 222 Mich. App. 128, 133, 565 N.W.2d 1 (1997). Class settlements minimize litigation expenses of the parties and reduce the strain that litigation imposes upon already scarce judicial resources. Therefore, the law favor[s] the settlement of class action litigation. UAW v. General Motors Corp., 497 F.3d 615, 632 (6th Cir. 2007). Here, the Settlement is more than sufficient to meet the applicable fairness, adequacy, and reasonableness standards. 1. The Court Has Personal Jurisdiction Over the Settlement Class. The Court has personal jurisdiction over all members of the Settlement Class because the Court certified the Settlement Class and they received the requisite notice and due process. See Phillips Petro. Co. v. Shutts, 472 U.S. 797, (1985) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, (1950)). The Notice Program was comprised of two parts: (1) direct notice ( ed Notice ) or postcard mail notice ( Mailed Notice ) to all identifiable Class Members; and (2) a Long Form Notice with more detail than the direct mail notices, that has been available on the Settlement Website ( and via mail upon request. Agreement Each facet of the Notice Program was timely and properly accomplished. Azari Aff. 6. The Settlement Administrator received the data files that identified the names and last known addresses of all identifiable Settlement Class Members, ran the addresses through the National Change of Address Database, sent s to 8,467 Settlement Class Members, and mailed postcards to 28,561 Class Members. Azari Aff. 6(a)-(b). The Mailed Notice Program was timely completed. Id. 97% of the Settlement Class received either an Notice or a Mail Notice. Azari Aff

16 Additionally, the Settlement Website with the Long Form Notice and relevant case filings was established to enable Settlement Class Members to obtain detailed information about the Action and the Settlement. Azari Aff. 6(d). As of November 10, 2017, the Settlement Website had 989 unique visitors. Id. In addition, a toll free number has been operational since October 2, 2017, with settlement-related information. Azari Aff. 6(d). By calling this number, Settlement Class Members can listen to answers to frequently asked questions and request a copy of the Long Form Notice. Id. As of November 10, 2017, the toll free number has handled 323 calls. Id. The Court-approved Notice Plan satisfied due process requirements because it was reasonably calculated to reach [class members] (Fidel v. Farley, 534 F.3d 508, 514 (6th Cir. 2008)) and describe[d] the action and the [class members ] rights in it (Gooch v. Life Investors, Ins. Co. of Am., 672 F.3d 402, 423 (6th Cir. 2012)). The Notice, among other things, was calculated to reach Settlement Class Members because it was sent to their last known and mail addresses in the Bank s files. For Settlement Class Members whose s bounced back, mailed notices were sent. For Settlement Class Members whose mailings were returned as undeliverable, the Settlement Administrator searched for updated addresses and sent mailings to their updated addresses. Azari Aff. 6(c). This method was clearly successful, having actually reached 97% of individual Settlement Class Members. Azari Aff. 7. Moreover, the Notice defined the Settlement Class, described the amount and proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their right to opt-out and object, the procedures for doing so, and the time and place of the Final Approval Hearing. It also notified Settlement Class Members that a class judgment would bind them unless they opted out, and told them where they could get more information for example, at the website that posts a copy of 13

17 the Agreement, as well as other important court documents. Further, the Notice described Class Counsel s intention to seek a Service Award for Ms. Glaske up to $10,000 and attorneys fees of up to one-third of the $2,215,000 Settlement Fund. Hence, the Settlement Class Members were provided with the best practicable notice, which was reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at ). As of November 20, 2017, the Notice Administrator had received zero requests for exclusion (opt-outs). Joint Decl. 93; Azari Aff. 8. As of that date, zero objections to the Settlement had been received. Joint Decl. 94; Azari Aff The Settlement Is Fair, Adequate, and Reasonable. In deciding whether to approve the Settlement, courts analyze whether it is fair, adequate, and reasonable. In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 522 (E.D. Mich. 2003). When assessing this standard, courts have looked to eight factors, none of which is dispositive: (1) the likelihood of success on the merits weighed against the amount and form of the relief offered in the settlement; (2) the risks, expense, and delay of further litigation; (3) the judgment of experienced counsel who have competently evaluated the strength of their proofs; (4) the amount of discovery completed and the character of the evidence uncovered; (5) whether the settlement is fair to the unnamed class members; (6) objections raised by class members; (7) whether the settlement if the product of arm s length negotiations as opposed to collusive bargaining; and (8) whether the settlement is consistent with the public interest. Id. (citing Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir. 1992)). Importantly, the Court is not called upon to determine whether the settlement reached by the parties is the best possible deal, nor whether class 14

18 members will receive as much from a settlement as they might have recovered from victory at trial. In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1014 (N.D. Ill. 2000) (citations omitted). Here, all of the applicable factors set forth below reveal this Settlement to be eminently fair, adequate, and reasonable. Any settlement requires the parties to balance the merits of the claims and defenses asserted against the attendant risks of continued litigation and delay. Plaintiff and Class Counsel maintain that the claims asserted are meritorious and that Plaintiff would prevail if this matter proceeded to trial. Independent maintains that Plaintiff s claims are unfounded and the case could not have been lawfully certified as a class action. Independent denies any potential liability, and has shown a willingness to litigate those claims vigorously. However, the Parties have concluded that the benefits of settlement in this case outweigh the risks attendant to continued litigation, which include, but are not limited to, the time and expenses associated with proceeding to class certification and trial, the time and expenses associated with appellate review, and the countless uncertainties of litigation, particularly in the context of a large and complex class litigation. While Plaintiff and Class Counsel are confident in the strength of their case, they are also pragmatic in their awareness of the various defenses available to Independent and the risks inherent to litigation. Joint Decl. 84. Throughout the litigation, Independent vigorously denied that it was liable to Plaintiff and the Settlement Class and it asserted various defenses which, if Independent prevailed, would have precluded, or seriously limited, any recovery for Plaintiff and the Settlement Class. For example, if the action continued, Independent would have obtained a ruling on its position that the Parties account agreement allowed the subject Overdraft Fees. Id. 15

19 If the Court agreed with this argument, Plaintiff and the Class would have lost their claims and would have been precluded from recovering anything. Without the Settlement, Plaintiff would have to succeed on class certification, summary disposition, at trial, and on any post-trial appeals. Joint Decl. 87. Success at trial was far from certain. Id. Even if Plaintiff prevailed at trial, any recovery could be delayed for years by appeals. Id. E.g., In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, (S.D. Fla. 2011) ( The combined risks here were real and potentially catastrophic... but for the Settlement, Plaintiffs and the class faced a multitude of potentially serious, substantive defenses, any one of which could have precluded or drastically reduced the prospects of recovery ). Class Counsel have a thorough understanding of the practical, legal, and factual issues they would continue to face litigating these claims against Independent. Joint Decl This is especially true given the large amount of discovery and investigation that was conducted in this case. Id. Class Counsel s careful evaluation of this evidence and their research of Michigan law in the context of Plaintiff s claims led them to the Settlement. Id. The Settlement provides relief to Settlement Class Members without further delay. Moreover, the amount of the Settlement is excellent given the foregoing risks. Here, based on Independent s transactional data, the $2.215 million Settlement Fund and costs of Notice and Settlement Administration represent in excess of fifty percent (50%) of the amount of damages Plaintiff and the Settlement Class Members were likely to seek from a jury at trial, if they were successful in all respects through trial and any appeals. Joint Decl. 90. There can be no doubt that this Settlement is a fantastic recovery for the Settlement Class in light of the Bank s defenses, and the challenging and unpredictable path of litigation Plaintiff and all Settlement Class Members would have faced absent the Settlement. 16

20 Class Counsel, who have substantial experience in consumer class actions concerning overdraft fees, wholeheartedly endorse the Settlement with Independent. Joint Decl. 92. The judgment of the parties counsel that the settlement is in the best interest of the settling parties is entitled to significant weight, and supports the fairness of the class settlement. IUE-CWA v. General Motors, 238 F.R.D. 583, 597 (E.D. Mich. 2006). This endorsement is underscored by the fact that, as of the filing of this Motion, none of the 37,035 Settlement Class Members have opted out of the Settlement and no Settlement Class Members have objected to the Settlement. Joint Decl ; IUE-CWA, 238 F.R.D. at 600 (holding that a case with very few opt-outs and objections represents significant support by the class for the settlement agreement and collecting cases with similar holdings); Association for Disabled Americans v. Amoco Oil Co., 211 F.R.D. 457, 467 (S.D. Fla. 2002) ( A small number of objectors from a plaintiff class of many thousands is strong evidence of a settlement s fairness and reasonableness ). Moreover, the Settlement followed a long, adversarial litigation and is the result of intensive, arm s-length negotiations between experienced attorneys who are familiar with class action litigation and with the legal and factual issues of this case. The Parties engaged in mediation with an experienced neutral during this process, not to mention negotiations among counsel over several months. Joint Decl , 89. Furthermore, Class Counsel are particularly experienced in class action cases, having negotiated class-wide settlements in several other cases involving bank fees. Id. at Counsel have zealously represented their clients interests throughout this protracted litigation before this Court for more than four years. Finally, this settlement is undoubtedly in the public interest. The traditional means for handling claims like those at issue here would unduly tax the court system, require a massive 17

21 expenditure of public and private resources, and, given the small value of the claims of the individual Settlement Class Members, would be impracticable. The Settlement is the best vehicle for Settlement Class Members to receive the relief to which they are entitled in a prompt and efficient manner. Joint Decl Ongoing litigation would involve lengthy additional proceedings in this Court and the appellate courts. Id. Absent the Settlement, the Action would likely continue for at least two to three more years. Id. Based on the foregoing, the Settlement is fair, adequate, and reasonable, and merits Final Approval. 3. The Court Should Certify the Settlement Class. This Court has previously found the requirements of Michigan Court Rule 3.501(A)(1) satisfied in this Action in a settlement posture. See Preliminary Approval Order 2-4. The Court should make the same class certification findings in granting Final Approval. III. APPLICATION FOR SERVICE AWARD Pursuant to the Settlement, Class Counsel request, and Independent does not oppose, a Service Award of $10,000 for Plaintiff Linda Glaske. Agreement 120; Joint Decl. 96. [I]n common fund cases... class representatives who have had extensive involvement in a class action litigation deserve compensation above and beyond amounts to which they are entitled to be virtue of class membership alone. In re Prandin Direct Purchase Antiturst Litig., 2015 WL , *5 (E.D. Mich. Jan. 20, 2015) (Exh. B-2 hereto) (quoting Lonardo v. Travelers Indeminty Co., 706 F. Supp. 2d 766, 787 (N.D. Ohio 2010)). Such service awards or incentive awards compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006). Courts have consistently found service awards to be an efficient and productive way to encourage members of a class to become class 18

22 representatives. See, e.g., In re Cardizem, 218 F.R.D. at (awarding $75,000 each to two class representatives); In re Prandin, 2015 WL at *5 (awarding $50,000 to each class representative for diligently and completely fulfill[ing] their obligations to the Class ); In re Polyurethane Foam Antitrust Litig., 135 F. Supp. 3d 679, 694 (N.D. Ohio. 2015) (awarding $35,000 incentive awards to each class representative); Spicer v. Chicago Bd. Options Exchange, Inc., 844 F. Supp. 1226, (N.D. Ill. 1993) (collecting cases approving service awards ranging from $5,000 to $100,000). The relevant factors to consider include: (1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation. See, e.g., Lasalle Town Houses Coop. Assn v. City of Detroit, 2016 WL , *7 (E.D. Mich. Mar. 29, 2016) (Exh. B-3 hereto) (citing Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)). The above factors, as applied to this Action, demonstrate the reasonableness of the Service Award for Ms. Glaske. Joint Decl. 99; e.g., In re Checking Account Overdraft Litig., 830 F. Supp. 2d at ( The Court notes that the class representatives expended time and effort in meeting their fiduciary obligations to the Class, and deserve to be compensated for it ). The Service Award would be paid from the Settlement Fund. Agreement 120. Ms. Glaske provided substantial assistance that enabled Class Counsel to successfully prosecute the Action and reach the Settlement, including (1) initiating Class Counsel s investigation by complaining of the Independent practices at issue; (2) submitting to interviews with Class Counsel; (3) submitting an affidavit in opposition to Defendant s motion to transfer; (4) locating and forwarding responsive documents and information, including stored documents; 19

23 (5) participating in many conferences with Class Counsel; (6) traveling from her home in Grand Rapids to attend a settlement conference with this Court; (7) assisting Class Counsel in the preparation of briefing; and (8) seeking updates as to the course of the litigation. Joint Decl. 99. In so doing, Ms. Glaske was integral to forming the theory of the case and successfully pursuing it. Ms. Glaske not only devoted time and effort to the litigation, but the end result of her efforts, and those of Class Counsel, is a substantial benefit to the 37,035 Settlement Class Members. If the Court approves it, the Service Award will be $10,000. This amount is less than % of the Settlement Fund, a ratio that falls well below the range of what has been deemed to be a reasonable service award. Id. at 100; see, e.g., Enterprise Energy Corp. v. Columbia Gas Transmission, 137 F.R.D. 240, 251 (S.D. Ohio 1991) (approving service awards totaling $300,000, or 0.56% of a $56.6 million settlement); Faris v. Flagstar Bank, Case No , slip op. at (Oakland Cir. Ct. Nov. 18, 2016) (approving service award for class representative in overdraft settlement of $20,000, or.0026% of a $7.7 million settlement) (Exh. B-4 hereto). The Service Award requested here is well deserved and should be approved. IV. APPLICATION FOR ATTORNEYS FEES AND EXPENSES As indicated in the Agreement and the Notice, and consistent with standard class action practice in the Sixth Circuit, in other circuits, and in similar overdraft fee class actions in Michigan and elsewhere around the country, Class Counsel respectfully request a fee of onethird (33.33%) of the $2,215,000 Settlement Fund created through their efforts. Agreement ; Joint Decl Class Counsel do not seek any percentage of the value to the Settlement Class of Independent s separate payment of all costs and fees associated with Class Notice and Settlement Administration, which is at least $104,000. Joint Decl. 58,

24 Class Counsel also seek reimbursement of necessary out-of-pocket litigation costs and expenses totaling $75, reasonably incurred in connection with the prosecution of this Action. Id. at 128; Agreement 117. For the reasons detailed herein, Class Counsel submit that the requested fee and costs are appropriate, fair, and reasonable and should be approved. A. Class Counsel Are Entitled to Receive Fees From the Common Fund They Recovered for the Class. It is both Michigan and federal law that a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney s fee from the fund as a whole. Boeing Co. v. Can Gemert, 444 U.S. 472, 478 (1980); In re Attorney Fees of Kelman, Loria, Downing, Schneider & Simpson, 406 Mich. 497, , 280 N.W.2d 457 (1979) (adopting common fund doctrine); In re Withdrawal of Attorney, 234 Mich. App. 421, 435 n.5, 594 N.W.2d 514 (1999) (recognizing doctrine); Flagstar Bank, slip op. at 15. The common fund doctrine serves the twin goals of removing a potential financial obstacle to a plaintiff s pursuit of a claim on behalf of a class and of equitably distributing the fees and costs of successful litigation among all who gained from the named plaintiff s efforts. In re Gould Sec. Litig., 727 F. Supp. 1201, 1202 (N.D. Ill. 1989) (citation omitted). Adequate compensation promotes the availability of counsel for aggrieved persons: If the plaintiffs bar is not adequately compensated for its risk, responsibility, and effort when it is successful, then effective representation for plaintiffs in these cases will disappear.... We as members of the judiciary must be ever watchful to avoid being isolated from the experience of those who are actively engaged in the practice of law. It is difficult to evaluate the effort it takes to successfully and ethically prosecute a large plaintiffs class action suit. It is an experience in which few of us have participated. The dimensions of the undertaking are awesome. Muehler v. Land O Lakes, Inc., 617 F. Supp. 1370, (D. Minn. 1985). The Sixth Circuit has ruled that [i]t is within the district court s discretion to determine the appropriate method for calculating attorney s fees in light of the unique characteristics of 21

25 class actions in general, and of the unique circumstances of the actual cases before it. Weitz & Luxenberg P.C. v. Sulzer Orthopedics, Inc., 398 F.3d 778, 780 (6th Cir. 2005). The district court s award of attorneys fees in common fund cases need only be reasonable under the circumstances. Id. There are two commonly accepted approaches for calculating attorneys fees: the percentage-of-the-fund method and the lodestar/multiplier method. Gascho v. Global Fitness Holdings, LLC, 822 F.3d 269, 280 (6th Cir. 2016). In Rawlings v. Prudential-Bache Properties, 9 F.3d 513 (6th Cir. 1993), the Sixth Circuit recognized the trend towards application of a percentage-of-the fund method in common fund cases. Also, e.g., In re Cardizem, 218 F.R.D. at 532 ( This Court s decision to apply the percentage-of-the-fund method is consistent with the majority trend ); Stanley v. U.S. Steel Co., 2009 WL , *1 (E.D. Mich. Dec. 8, 2009) ( Particularly, where counsel s efforts create a substantial common fund for the benefit of a class, they are entitled to payment from the fund based on a percentage of that fund ) (Exh. B-5 hereto); Kinder v. Meredith Corp., 2016 WL , *3 (E.D. Mich. Feb. 5, 2016) ( There is a trend away from using the lodestar method... as courts in the Sixth Circuit have found that the percentage-of-fund method more accurately approximates a reasonable award for fees ) (Exh. B- 6 hereto); In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 762 (S.D. Ohio 2007) ( At least two circuits have mandated, and seven circuits, including the Sixth, have explicitly approved the percentage approach in common fund cases. ). The reason for this trend is the percentage-of-the fund method is easy to calculate; it establishes reasonable expectations on the part of plaintiffs attorneys as to their expected recovery; and it encourages early settlement, which avoid protracted litigation. Rawlings, 9 F.3d at Moreover, the lodestar method has been criticized as being too time consuming 22

26 of scarce judicial resources. Id.; also Stanley, 2009 WL at *1 ( Use of the percentage method [] decreases the burden imposed on the Court by eliminating a full-blown, detailed and time consuming lodestar analysis while assuring that the beneficiaries do not experience undue delay in receiving their share of the settlement ). Here, a $2.215 million common fund has been established for the benefit of Settlement Class Members through Class Counsel s efforts. Given this and the indisputable fact that Class Counsel devoted substantial time and resources to this case, the Court should follow the trend in the Sixth Circuit and use the percentage-of-the-fund method when calculating Class Counsel s fee award. E.g., In re S.E. Milk Antitrust Litig., 2013 WL , *2 (E.D. Tenn. May 17, 2013) (using percentage-of-the-fund method for same reasons) (Exh. B-7 hereto); Stanley, 2009 WL at *1-2 (same); Flagstar Bank, slip op. at 15. B. The 33.33% Fee Sought By Class Counsel Is Within the Range of Fee Awards in Similar Actions. The percentage used in percentage-of-the-fund calculations typically ranges from 20 to 50 percent of the fund. In re Cardizem, 218 F.R.D. at 508; Wise v. Popoff, 835 F. Supp. 977, 980 (E.D. Mich. 1993); Stanley, 2009 WL at *3. Thus, district courts in the Sixth Circuit begin with a benchmark percentage ranging between 20 to 50 percent. In re Cincinnati Gas & Elec. Co. Sec. Litig., 643 F. Supp. 148, 150 (S.D. Ohio 1986); In re Telectronics Pacing Sys., 137 F. Supp. 2d 1029, 1046 (S.D. Ohio 2001) (noting that the range of reasonableness has been designated as between 20% and 50% of the common fund). Class Counsel s request for one-third (33.33%) of the common fund created by their efforts is less than the halfway mark of the benchmark range and in line with what is often awarded in Michigan and elsewhere. See In re Prandin, 2015 WL at *4 (33.33% of $19 million settlement fund); Bessey v. Packerland Plainwell, Inc., 2007 WL , *4 (W.D. 23

27 Mich. Oct. 26, 2007) (awarding 33.33% of settlement fund and holding that [e]mpirical studies show that, regardless whether the percentage method or the lodestar method is used fee awards in class actions average around one-third of the recovery ) (Exh. B-8 hereto); Kogan v. AIMCO Fox Chase, 193 F.R.D. 496 (E.D. Mich. 2000) (awarding 33.33%); In re Southeastern Milk, 2013 WL at *8 (awarding 33.33% of $158 million common fund); In re ARM Fin Group, Inc. Sec. Litig., 2006 WL , *4 (W.D. Ky. Aug. 31, 2006) (awarding 40%) (Exh. B-9 hereto); Flagstar Bank, slip op. at 22 (awarding 33.33% of $7.7 million common fund). A one-third fee is also standard in general contingency litigation in Michigan. Joint Decl. 104; also e.g., Miller v. Citizens Ins. Co., 288 Mich. App. 424, 437, 794 N.W.2d 622 (2010) (finding that a typical contingency fee was one-third of monies recovered on plaintiff s behalf), rev d in part on other grounds, 490 Mich. 405, 804 N.W.2d 740 (2011). The fee requested here is also in line with the fees requested and awarded in Michigan and other overdraft class actions settled and approved in Michigan and throughout the country: Case Settled Swift v. BancorpSouth No. 10-cv-90 (N.D. Fla.) Faris v. Flagstar Bank No (Oakland Cir. Ct.) Molina v. Intrust Bank, N.A. No. 10-CV-3686 (Dist. Ct. Kan.) Simpson v. Citizens Bank No. 12-cv (E.D. Mich.) Casto v. City National Bank, N.A. No. 10-C-1089 (Cir. Ct. W.Va.) Schulte v. Fifth Third Bank No. 09-cv-6655 (N.D. Ill.) Johnson v. Community Bank, N.A. No. 3:12-cv RDM (M.D. Pa.) Lundsford v. Woodforest Bank No. 12-cv-103 (N.D. Ga.) Jenkins v. Trustmark Bank No. 12-cv-380 (S.D. Miss.) Percentage-of-the-Fund Awarded 35% of $24 million 33.33% of $7.7 million 33.33% of $2.7 million 33% of $2 million 33% of $3 million 33% of $9.5 million 33% of $2.5 million 33% of $7.75 million 33% of $4 million 24

28 Joint Decl The record here leaves no doubt that Class Counsel s fee request is reasonable and comports with attorneys fees awarded in similar cases. C. An Analysis of the Bowling Factors Demonstrates the Requested Fee Is Reasonable. Given that it has been established that a one-third attorneys fee is consistent with and within the range of fee percentages awarded in similar litigation, the Court must determine whether the fee request is reasonable under the circumstances in this case. When evaluating the reasonableness of a fee, courts consider the six factors enumerated in Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996). Gascho, 822 F.3d at 280. Specifically, courts consider (1) the value of the benefit rendered to the plaintiff class; (2) the value of the services on an hourly basis; (3) whether the services were undertaken on a contingent fee basis; (4) society s take in rewarding attorneys who produce such benefits in order to maintain an incentive to others; (5) the complexity of the litigation; and (6) the professional skill and standing of counsel involved on both sides. Bowling, 102 F.3d at 780. As discussed below, each of these factors underscores the reasonableness of the fee request. 1. The Value of the Benefit Rendered to the Class. [O]ne of the primary determinants of the quality of work performed is the result obtained.... Rawlings, 9 F.3d at 517. As noted above, the Settlement establishes a common fund of $2.215 million. If the Court approves the Settlement, payments to the Settlement Class will be forthcoming automatically, through checks, with no claims process. Joint Decl Thus, there is no concern about what are historically the biggest problems with class action settlements, non-cash payouts (such as coupons) and low claims rates, where only 5-10% of members file a claim. Essentially, if the Court approves the Settlement, Plaintiff and the Settlement Class will recover more than fifty percent (50%) of a likely recovery if the Court and a jury would have 25

29 accepted their arguments and rejected all of Independent s defenses. Joint Decl In light of the significant risks associated with continued litigation (see pp , supra), the $2.215 million Settlement Fund, in addition to the additional costs of Notice and Settlement Administration being paid by Independent, is truly a fantastic result. Accordingly, this factor weighs heavily in favor of the requested fee award. 2. The Value of the Services on an Hourly Basis. Here, there is no question that Class Counsel has spent a remarkable amount of time preparing and litigating this case more than 1,355 hours of legal work. Joint Decl First, Class Counsel has spent nearly a decade developing the theories underlying the claims in the instant Action through their efforts in litigating (with both success and failure) other overdraft fee cases throughout the country. Id. These efforts accrued to the benefit of Plaintiff and the Settlement Class. Id. Moreover, this particular case has been extensively litigated for more than four years and Independent aggressively defended the suit. Class Counsel conducted substantial factual and legal research, reviewed and organized informal and formal document and data discovery, and successfully briefed and argued several motions, all while successfully managing the scheduling deadlines set by this Court. Id. at 112. Counsel participated in mediation as well as additional settlement discussions with Independent s counsel, all of which led to the Settlement. Id. at 113. Counsel also spent considerable time negotiating the Agreement, as well as the content of the notices and preparing the necessary motions for approval of the Settlement. Id. Class Counsel did high quality work, both in and out of court. The collective lodestar for Class Counsel is $670,824, based upon 1,355.2 hours, including those that have been expended to date and a reasonable number of hours to see the case through another year or more to its ultimate conclusion, multiplied by a blended Class Counsel 26

30 rate of $495 per hour. Id. at 114. Class Counsel submit that this blended rate is reasonable since the work in this case has been done nearly entirely by veteran attorneys at the senior partner level. Id. Thus, in the event the Court awards the requested fee of 33.33% of the Settlement Fund, this would result in a multiplier of Id. at 115. Such a multiplier is at the lower end of the range adopted by courts in the Sixth Circuit. See, e.g., In re Broadwing, Inc. ERISA Litig., 252 F.R.D. 369, 381 (S.D. Ohio) (observing that multipliers of 2 to 5 have been awarded); In re Cardizem, 218 F.R.D. at 533 (noting that a multiplier of 3.7 was reasonable under the circumstances); Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 (S.D. Ohio 1991) (noting multipliers of 4.0 and 5.0 in other cases); In re Prandin, 2015 WL at *4 (approving 3.01 multiplier as reasonable in light of what has been routinely accepted as fair and reasonable and complex matters such as this one ). Moreover, when evaluating the lodestar multipliers of the other overdraft fee cases throughout the country courts have awarded fees resulting in lodestars with multiples ranging between 3.0 and 9.0. Joint Decl Given the nature, complexity, and duration (and potential further duration) of this Action, as detailed above, the risk of nonrecovery, the value of the social benefit, and the extraordinary results in light of the obstacles, the multiplier is appropriate and reasonable. Clearly, the lodestar cross-check confirms the reasonableness of the requested fee. 3. Whether the Services Were Undertaken on a Contingent Fee Basis. In undertaking to prosecute this complex case entirely on a contingent fee basis, Class Counsel assumed a significant risk of nonpayment or underpayment. Joint Decl They even devoted nearly $76,000 of their own assets to the prosecution of the litigation, with no guarantee 4 Courts use multipliers to account for the risk an attorney assumes in undertaking a case, the quality of the attorney s work product, and the public benefit achieved. Rawlings, 9 F.3d at

31 of recoupment. Id. Such substantial risk warrants an appropriate fee. See, e.g., Bowling v. Pfizer, 922 F. Supp. 1261, 1282 (S.D. Ohio 1996); In re Bristol-Myers Squibb Sec. Litig., 361 F. Supp. 2d 229, (S.D.N.Y. 2005) (most important factor is the risk in pursuing the case ). The risks are inherent in financing and prosecuting complex litigation of this type, but Class Counsel undertook representation with the knowledge that they would have to spend substantial time and money and face significant risks without any assurance of being compensated for their efforts. Joint Decl Indeed, the prospect of a trial necessarily involves the risk that Plaintiffs would obtain little or no recovery. In re Cardizem, 218 F.R.D. at 523. Experience proves, no matter how confident trial counsel may be, they cannot predict with 100% accuracy a jury s favorable verdict. Id. Clearly, only the most experienced plaintiffs litigation firms would risk the time and expense involved in bringing this Action in light of the possibility of a recovery at an uncertain date, or of no recovery at all. Despite Class Counsel s effort in litigating and settling this Action for more than four years, Class Counsel remains completely uncompensated for the time invested in the Action, in addition to the expenses advanced. Joint Decl There can be no dispute that this case entailed substantial risk of nonpayment. The time Class Counsel spent on this case was time that could not be spent on other matters. Id. Accordingly, a fee of one-third of the Settlement is appropriate to compensate Class Counsel for the risks they took to secure significant benefits for the Class. See In re Cardizem, 218 F.R.D. at 533 (finding request fee award reasonable where, inter alia, [c]ounsel undertook representation of the Class on a contingent fee basis, thus bearing the risk of recovery inherent in litigation, and expended millions of dollars in attorney time and expenses in their prosecution of this litigation over the past five years ). 28

32 4. Society s Stake in Rewarding Attorneys Who Produce Such Benefits in Order to Maintain an Incentive to Others. Encouraging qualified counsel to bring inherently difficult and risky but beneficial class actions like this case benefits society. In re Cardizem, 218 F.R.D. at 534. Indeed, public policy concerns in particular, ensuring the continued availability of experienced and capable counsel to represent classes of injured plaintiffs holding small individual claims support the requested fee. Generally, the contingency retainment must be promoted to assure representation when a person could not otherwise afford the services of a lawyer... A contingency fee arrangement often justifies an increase in the award of attorney s fees. This rule helps assure that the contingency fee arrangement endures. If this bonus methodology did not exist, very few lawyers could take on the representation of a class client given the investment of substantial time, effort, and money, especially in light of the risks of recovering nothing. Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 548 (S.D. Fla. 1988). As noted above, Class Counsel s fee request is well within the range of awards in similar cases both in the Sixth Circuit and elsewhere. It is these type of awards that maintain an incentive for lawyers, like Class Counsel, to take cases, wholly on a contingency basis, and prosecute them for years, all the while never knowing whether they will in the end recoup their substantial expenditure of time and costs. Here, Class Counsel took on representation of this Settlement Class in what were simultaneously the worthiest and riskiest of circumstances. Society has an interest in adequately compensating counsel who take on such risks to ensure that classes will be able to find representation. 5. The Complexity of the Litigation. The claims and defenses in this case are complex and litigating them has been both difficult and time consuming. Joint Decl Almost every aspect of this case has been hotly contested by Independent s excellent counsel. Id. 29

33 Recovery by means other than settlement would have added additional years of this already lengthy litigation. Id. In fact, Class Counsel have other pending overdraft fee class actions that have been ongoing for more than eight years. Id. at 123; see also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (noting that complex litigation can occupy a court s docket for years on end, depleting the resources of the parties and taxpayers while rendering meaningful relief increasingly elusive ). Clearly, the complexity of litigation also supports the requested fees. 6. The Professional Skill and Standing of Counsel Involved on Both Sides. Courts consider the professional skill and standing of counsel in considering fee requests. In re Delphi Corp. Sec. Derivative, and ERISA Litig., 248 F.R.D. 483, 504 (E.D. Mich. 2008). In any given case, the skill of legal counsel should be commensurate with the novelty and complexity of the issues, as well as the skill of the opposing counsel. Litigation of this Action required counsel highly trained in class action law and procedure as well as the specialized issues presented here. Joint Decl Class Counsel possess these attributes, and their participation added immense value to the representation of the Class. Id. The record demonstrates that the Action involved a broad range of complex and novel challenges, which Class Counsel met at every juncture. Id. In addition, Class Counsel Webb, Klase & Lemond, LLC highly experienced in this particular area of fee litigation, having litigated and successfully resolved many overdraft fee class actions. Joint Decl Class Counsel used the extensive knowledge and experience obtained from those cases and applied it to the instant Action in order to achieve a fair and reasonable settlement for the Class. Id. This by no means suggests anything about this case was cookie-cutter. Indeed, this case involved peculiar Michigan law on good faith and fair dealing 30

34 and other contract-based issued and thus required fresh thinking and new analysis. Joint Decl In evaluating the quality of representation by Class Counsel, the Court should also consider the quality of opposing counsel. See e.g., In re Delphi, 248 F.R.D. at 504. Throughout the litigation, Independent has been represented by extremely capable counsel. Joint Decl Mr. Bylsma and his colleagues are worthy, highly skilled adversaries, which makes the nature and amount of the Settlement all the more impressive. Id.; Walco Invs. v. Thenen, 975 F. Supp. 1468, 1472 (S.D. Fla. 1997) (stating that [g]iven the quality of defense counsel from prominent national law firms, the Court is not confident that attorneys of lesser aptitude could have achieved similar results ). This Bowling factor, like the other five factors, weighs in favor of the reasonableness of the requested fee award. D. The Expense Request Is Reasonable. Under the common fund doctrine, class counsel is entitled to reimbursement of all reasonable out-of-pocket litigation expenses and costs in the prosecution of claims and in obtaining settlement, including expenses incurred in connection with document productions, consulting with experts and consultants, travel and other litigation-related expenses. In re Cardizem, 218 F.R.D. at 535. Here, Class Counsel also request reimbursement for a total of $75, in litigation costs and expenses. Joint Decl. 128; Olsen Invoices (Exh. 1 to Joint Decl.); see Mills v. Electric Auto-Lite Co., 396 U.S. 375, (1970). This sum corresponds to certain actual outof-pocket costs and expenses that Class Counsel necessarily incurred and paid in connection with the prosecution and settlement of the Action. Joint Decl Specifically, these costs and expenses consist of: (1) $66, in fees and expenses for Plaintiff s expert, Arthur Olsen, whose services were critical in identifying the Settlement Class Members, determining their 31

35 damages, and in allocating the Settlement Fund; (2) $ in mediator fees; (3) $ in filing, pro hac vice, service, and transcript fees; (4) $6, in necessary (coach class) travel expenses for several hearings in this Court, the mediation, and appellate oral argument; and (5) $ in necessary administrative costs and expenses (e.g., copies, postage, federal express fees, etc.). Joint Decl All of these out-of-pocket expenses were reasonably and necessarily incurred by Settlement Class Counsel in furtherance of the prosecution of this Action. Id. No request is being made to cover the estimated future costs of Class Counsel. Id. at 129. V. CONCLUSION The Settlement which consists of Independent s payment of $2,215,000 and separate payment of all costs of Notice and Settlement Administration represents a truly remarkable result given the obstacles confronted in this litigation. The Settlement more than satisfies the applicable fairness and reasonableness standard. Further, Class Counsel s Application for a Service Award for Ms. Glaske and for an award of attorneys fees and expenses is reasonable given the result, the litigation risks, the complicated nature of the factual and legal issues, and the time, effort, and skill required to litigate claims of this nature to a satisfactory conclusion. Accordingly, Plaintiff and Class Counsel respectfully request that this Court (1) grant Final Approval to the Settlement; (2) approve a $10,000 Service Award for Plaintiff Linda Glaske; (3) award an attorney fee of one-third of the fund ($738,259.50); (4) reimburse Class Counsel from the Settlement Fund for $75, in necessary costs; and (5) enter Final Judgment dismissing the Action with prejudice. A proposed Final Approval Order is attached hereto as Exhibit C-1 and a proposed Final Judgment is attached hereto as Exhibit C-2. 32

36 Dated: November 27, 2017 Respectfully submitted, FINK + ASSOCIATES LAW By: /s/ David H. Fink David H. Fink (P28235) Darryl Bressack (P67820) Woodward Ave., Suite 350 Bloomfield Hills, Michigan (248) dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com By: /s/ E. Adam Webb E. Adam Webb (Georgia Bar No ) Matthew C. Klase (Georgia Bar No ) WEBB, KLASE & LEMOND, LLC 1900 The Exchange, S.E., Suite 480 Atlanta, Georgia (770) Adam@WebbLLC.com Matt@WebbLLC.com Attorneys for Plaintiff and the Settlement Class 33

37 CERTIFICATE OF SERVICE I hereby certify that on November 27, 2017, I electronically filed the foregoing paper with the Clerk of the court using the ECF system which will send notification of such filing to all counsel of record registered for electronic filing. FINK + ASSOCIATES LAW By: /s/ Schuyler von Oeyen Schuyler von Oeyen (P74048) Woodward Ave., Suite 350 Bloomfield Hills, MI (248) svonoeyen@finkandassociateslaw.com 34

38 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE LINDA R. GLASKE, on behalf of herself and all others similarly situated, Hon. Muriel D. Hughes Case No CZ Plaintiff, v. INDEPENDENT BANK CORPORATION, Defendant. David H. Fink (P28235) Darryl Bressack (P67820) Fink + Associates Law Woodward Ave., Suite 350 Bloomfield Hills, MI (248) dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com Jon Bylsma (P48790) Varnum LLP 333 Bridge Street, N.W.; Suite 1700 Grand Rapids, MI (616) jmbylsma@varnumlaw.com Attorneys for Defendant Attorneys for Plaintiff E. Adam Webb (Admitted Pro Hac Vice) Matthew C. Klase (Admitted Pro Hac Vice) Webb, Klase & Lemond, LLC 1900 The Exchange, S.E.; Suite 480 Atlanta, GA (770) Adam@WebbLLC.com Matt@WebbLLC.com Attorneys for Plaintiff NOTICE OF HEARING TO: Clerk of the Court

39 PLEASE TAKE NOTICE that the Plaintiff s and Class Counsel s Unopposed Motion for Final Approval of Class Settlement will be brought for hearing on Wednesday, January 10 16, 2018, at 2:00 p.m. before the Hon. Muriel D. Hughes at Coleman A. Young Municipal Building, 2 Woodward Ave., Detroit, MI 48226, in Courtroom Dated: November 27, 2017 Respectfully submitted, FINK + ASSOCIATES LAW By: /s/ David H. Fink David H. Fink (P28235) Darryl Bressack (P67820) Woodward Ave.; Suite 350 Bloomfield Hills, Michigan (248) dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 27, 2017, I electronically filed the foregoing paper with the Clerk of the court using the ECF system which will send notification of such filing to all counsel of record registered for electronic filing. FINK + ASSOCIATES LAW By: /s/ Schuyler von Oeyen Schuyler von Oeyen (P74048) Woodward Ave., Suite 350 Bloomfield Hills, MI (248) svonoeyen@finkandassociateslaw.com

40 INDEX OF EXHIBITS VOLUME A EVIDENCE 1. Settlement Agreement and Release 2. Joint Declaration of Class Counsel 3. Affidavit of Cameron Azari VOLUME B UNPUBLISHED DECISIONS 1. Rankin v. Rots 2. In re Prandin Direct Purchaser Antitrust Litigation 3. LaSalle Town Houses Cooperative Association v. City of Detroit 4. Faris v. Flagstar Bank 5. Stanley v. U.S. Steel Corporation 6. Kinder v. Meredith Corporation 7. In re Southeastern Milk Antitrust Litigation 8. Bessey v. Packerland Plainwell, Inc. 9. In re ARM Financial Group, Inc. Securities Litigation VOLUME C PROPOSED ORDERS 1. Final Approval Order 2. Final Judgment

41 Exhibit A-1

42 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ( Agreement ) is made and entered into this 28th day of February, 2017, by and among (1) Plaintiff Linda Glaske, for herself and on behalf of the Settlement Class, and (2) Defendant Independent Bank Corporation ( Independent ), subject to Court approval as required by Michigan Court Rule As provided herein, Independent, 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 Independent in the action titled Glaske v. Independent Bank Corporation, Wayne County Circuit Court Case No CZ, shall be settled and compromised upon the terms and conditions contained herein. I. Recitals The following recitals are material terms of this Agreement. This Agreement is made with reference to and in contemplation of the following facts and circumstances: 1. On July 31, 2013, Plaintiff Linda Glaske filed a class action complaint in Wayne County Circuit Court (Case No CZ) seeking monetary damages, restitution, and declaratory relief from Independent, arising from the alleged improper assessment, collection, and disclosure of overdraft fees. Plaintiff asserted claims for breach of contract, unconscionability, unjust enrichment, and violation of the Michigan Consumer Protection Act. 2. The case was assigned to the Honorable Amy Hathaway. 3. Independent filed its answer and affirmative defenses on September 13, On the same day, Independent moved to transfer venue to the Ionia County Circuit Court. 5. On September 23, 2013, Plaintiff filed her first amended class action complaint, which dropped the Michigan Consumer Protection Act claim. 1

43 6. On October 1, 2013, Plaintiff opposed Independent s motion to transfer venue. 7. On October 4, 2013, the Court heard oral argument on the motion to transfer venue and denied the motion. 8. The Parties thereafter engaged in discovery. Independent produced all versions of its customer agreement that were in effect during the relevant period. 9. On November 25, 2013, after reviewing such discovery, Plaintiff filed her second amended class action complaint. 10. On December 16, 2013, Independent filed its answer and affirmative defenses to the second amended class action complaint. 11. On the same day, Independent moved for summary disposition, arguing that Plaintiff failed to state lawful claims upon which relief may be granted. Plaintiff opposed this motion and Independent submitted a reply brief. 12. On December 24, 2013, Plaintiff served its first interrogatories, requests for production, and requests for admissions on Independent. 13. In late January 2014, Plaintiff agreed to extend Independent s time to respond to the outstanding written discovery requests until after the motion for summary disposition was resolved. 14. On February 14, 2014, the Court heard oral argument on the motion for summary disposition and granted it in part and denied it in part. Specifically, the Court granted summary disposition on Plaintiff s claim that Independent breached the contract via the covenant of good faith and fair dealing, but denied it in all other respects, finding that Plaintiff s direct breach of contract, unconscionability, and unjust enrichment claims were validly pled. 2

44 15. Judge Hathaway retired before a written order on Independent s motion for summary disposition could be entered. The case was reassigned to the Honorable Muriel D. Hughes. 16. The parties each submitted and objected to the other s proposed written orders on Independent s motion for summary disposition. 17. On July 24, 2014, the Court held a hearing on the parties competing written orders and entered an order granting in part and denying in part Independent s motion for summary disposition. 18. On August 14, 2014, Independent applied to the Michigan Court of Appeals for leave to appeal the order on its motion for summary disposition. The appeal was assigned docket number The same day, Independent moved the Court to stay all proceedings pending the outcome of the motion for leave to appeal. Plaintiff opposed the motion to stay. 20. On September 12, 2014, the Court heard oral argument on the motion to stay and granted it, ordering that the case be stayed pending a ruling from the Court of Appeals on the motion for leave to appeal. 21. On September 17, 2014, the Court entered a written order staying the case. 22. Plaintiff opposed Independent s motion for leave to appeal and Independent submitted a reply brief. 23. On February 10, 2015, the Court of Appeals granted the motion for leave to appeal. 24. On April 7, 2015, Independent submitted its Brief of Appellant. 25. On May 6, 2015, Plaintiff submitted her Brief of Appellee. 26. On May 27, 2015, Independent submitted its Reply Brief of Appellant. 27. On January 12, 2016, the Court of Appeals heard oral argument on the appeal. 3

45 28. On January 21, 2016, the Court of Appeals entered its decision affirming the order of this Court to deny Independent s motion for summary disposition as to Plaintiff s claims for direct breach of contract, unconscionability, and unjust enrichment. 29. On March 17, 2016, the Court held a conference to discuss scheduling. 30. On April 6, 2016, the Court entered two orders, one lifting the stay and one setting a schedule for the remainder of the litigation. 31. During this time period, the parties informally agreed to focus efforts on settlement, including Independent s production of sample data and Plaintiff s expert s analysis of such data for the purpose of estimating class wide alleged damages. 32. Over the next several months, Independent provided sample data regarding millions of overdraft transactions during the Class Period including data about individual transactions over several months and aggregate data and Plaintiff s data expert, Arthur Olsen, analyzed such data and calculated probable class-wide damages. 33. On July 20, 2016, the parties participated in a mediation with William Jack, Esq. serving as mediator. Although the mediation was unsuccessful, the parties laid the groundwork for future negotiations. 34. Over the next several months, Independent provided additional sample data which Mr. Olsen analyzed and incorporated into his analysis. On multiple occasions, Mr. Olsen participated in conference calls with counsel for Independent wherein he explained his analysis and results. 35. Although the parties were in active negotiations, Plaintiff served additional written discovery requests on Independent seeking information she would need to support a motion for class certification if settlement was unsuccessful. 4

46 36. Plaintiffs also circulated their proposals for an electronically stored information ( ESI ) protocol and a confidentiality stipulation pertaining to documents and information. These agreements were negotiated and subsequently entered by the Court. 37. On September 7, 2016, the parties held a settlement conference with the Court. Although no settlement was reached, the parties continued to negotiate. The Court revised the case schedule to account for the continued negotiations. 38. On October 17, 2016, Plaintiff served a Rule 2.306(B)(5) deposition notice on Independent. 39. On October 17, 2016, the parties agreed to stay formal discovery while they continued to negotiate. Independent agreed that it would not oppose class certification if settlement talks were unsuccessful. 40. On November 29, 2016, the parties held another settlement conference with the Court, with client representatives present. Although no settlement was reached, progress was made. 41. On December 21, 2016, after several back and forth offers, the parties agreed to a settlement framework that, subject to a mutually agreeable written Settlement Agreement and subject to preliminary approval and final approval by the Court as required by Michigan Court Rule 3.501, reflected the parties good faith intention to fully, finally, and forever resolve, discharge, and release all rights and claims of the Settlement Class, on such terms as reflected herein, including Independent s agreement to provide the settlement consideration set forth in paragraph 77 below. 42. On January 5, 2017, the parties filed a joint notice of settlement with the Court. 5

47 43. The parties now agree to settle this case in its entirety, without any admission of liability, with respect to all Released Claims by the Settlement Class. The parties intend this Agreement to bind Plaintiff, Independent, and all members of the Settlement Class who do not timely request to be excluded from the Settlement. NOW, THEREFORE, in light of the foregoing, for good and valuable consideration, the receipt of which is hereby mutually acknowledged, the parties agree, subject to approval by the Court, as follows. II. Definitions In addition to the terms defined at various points within this Agreement, the following Defined Terms apply throughout this Agreement and the attached exhibits: 44. Account means any consumer checking, demand deposit, or savings account maintained by Independent in the United States that may be accessed by a Debit Card. 45. Action means the class action lawsuit styled Linda Glaske v. Independent Bank Corporation, Case No CZ, filed in Wayne County Circuit Court. 46. Independent means Independent Bank Corporation. 47. Class Counsel means the firms Webb, Klase & Lemond, LLC and Fink + Associates. 48. Class Period means the period from July 31, 2007 through and including the date the Court issues Preliminary Approval to the Settlement. 49. Court means the Wayne County Circuit Court. 50. 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. 6

48 51. Debit Card means a card, sticker, tag, or other device issued or provided by Independent, including a debit card, check card, or automated teller machine ( ATM ) card, that can be used to debit funds from an Account by Point of Sale and ATM transactions. 52. Debit Card Transaction means any debit transaction effectuated with a Debit Card, including Point of Sale transactions (whether pinned or pinless) and ATM transactions. 53. Effective Date means the fifth business day after which all of the following events have occurred: a. All parties, Independent 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. 54. 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. 55. 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 7

49 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 Independent. 56. Final Approval Order means the order and judgment that the Court enters upon finally approving the Settlement. 57. High-to-low Debit Card Transaction Sequencing means Independent s former practice of sequencing an Account s Debit Card Transactions (along with other debit transactions) from highest to lowest dollar amount, which results in some instances in the assessment of additional Overdraft Fees that would not have been assessed if Independent had used a posting method that sequenced transactions in the chronological order in which the transactions were initiated by Settlement Class Members or an order that simulated the chronological order in which the transactions were initiated by Settlement Class Members, or from lowest to highest dollar amount. 58. 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. 59. Notice Program means the methods provided for in this Agreement for giving the Notice and consists of Notice for each Class member for whom Independent has an address; Mailed Notice for each Class member for whom the notice bounces back or is undeliverable, and for each Class member for whom Independent does not have an address; and Long-form Notice substantially in the forms attached hereto as Exhibits 1, 2, and 3, respectively. A complete description of the contemplated Notice Program is provided in Section VIII, infra. 8

50 60. Opt-Out Period means the period that begins the day after the earliest date on which the Notice is first ed or mailed, and that ends no later than 30 days prior to the Final Approval Hearing. The Opt-Out deadline will be specified in the Notice. 61. Overdraft Fee means the fee assessed to a holder of an Account for each item paid when the Account has insufficient funds to cover the item. Fees charged to transfer balances from other accounts are excluded. 62. Parties means Plaintiff and Independent. 63. Past Account Holder means a Settlement Class Member who held an Account at some time during the Class Period but no longer holds an Account as of the date that the Settlement Fund is distributed to Settlement Class Members pursuant to this Agreement. 64. Plaintiff means Linda Glaske. 65. Point of Sale or POS means a transaction in which an Account holder uses his or her Debit Card to purchase a product or service. 66. 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. 67. Released Claims means all claims to be released as specified in Section XIV of this Agreement. The Releases means all of the releases contained in Section XIV of this Agreement. 68. Released Parties means those persons released by paragraphs , infra. 69. Releasing Parties means Plaintiff and all Settlement Class Members who do not timely and properly opt out of the Settlement, and each of their respective heirs, assigns, beneficiaries, and successors. 9

51 70. 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. 71. Settlement Administrator means Epiq Systems. 72. Settlement Class means all Independent customers in the United States who had one or more non-business accounts and who, during the Class Period, incurred an Overdraft Fee as a result of Independent s High-to-low Debit Card Transaction Sequencing. 73. Settlement Class Member means any person included in the Settlement Class. 74. Settlement Fund means the fund established under Section III of this Agreement. 75. 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, through and including hyperlinked access to this Agreement, the Long-form Notice, the order preliminarily approving this Settlement and such other documents as Class Counsel and counsel for Independent agree to post or that the Court orders posted on the website. These documents shall remain on the Settlement Website at least until Final Approval. The URL of the Settlement Website shall be or such other URL as Class Counsel and counsel for Independent may subsequently agree upon in writing. The Settlement Website shall not include any advertising, and shall not bear or include the Independent logo or Independent trademarks. Ownership of the Settlement Website URL shall be transferred to Independent within 10 days of the date on which operation of the Settlement Website ceases. 10

52 76. Tax Administrator means a professionally recognized tax administrator selected by Epiq Systems. The Tax Administrator will perform all tax-related services for the Escrow Account as provided in this Agreement. III. Establishing and Maintaining the Settlement Fund; Costs of Notice And Settlement Administration. 77. In exchange for the mutual promises and covenants in this Agreement, including, without limitation, the Releases as set forth in Section XIV below and the dismissal of the Action upon Final Approval, within 14 days of the order granting Final Approval, Independent shall deposit the sum of Two Million Two Hundred Fifteen Thousand Dollars ($2,215,000.00) into the Escrow Account to create the Settlement Fund as set forth herein, and, in addition, Independent agrees to timely advance and 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. 78. Upon the creation of the Settlement Fund, the funds therein may be invested in interest-bearing short-term instruments to be agreed upon by Class Counsel and Independent 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. 79. 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 11

53 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 Independent 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. Independent 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 Independent and its counsel, and Plaintiff and Class Counsel, harmless for all Taxes (including, without limitation, Taxes payable by reason of any such indemnification). 80. The Settlement Fund shall be used to pay all distributions to the Settlement Class Members, and all attorneys fees, costs and expenses of Class Counsel (hereinafter referred to as Net Settlement Fund ), as follows: a. Distribution of payments to the Settlement Class pursuant to Section XI hereof. b. Payment of the Court-ordered award of Class Counsel s attorneys fees, costs and expenses pursuant to Section XV hereof. c. Payment of the Court-ordered Service Award to the Plaintiff pursuant to Section XV(C) hereof. 81. In addition to the payment of the funds to establish the Settlement Fund, Independent shall pay the following: 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 30 days of Class 12

54 Counsel s and counsel for Independent s receipt and approval of invoices received, as provided in Section VIII hereof. b. The Settlement Administrator s costs and fees for services provided pursuant to Section VII hereof, within 30 days of Class Counsel s and counsel for Independent s receipt and approval of invoices received from the Settlement Administrator. c. The actual expenses that result from investing the Settlement Fund in the Instruments pursuant to paragraph 78 hereof, within 30 days of Class Counsel s and counsel for Independent s receipt and approval of invoices for such expenses. d. All invoices of the Tax Administrator to perform tax-related services for the Escrow Account, within 30 days of Class Counsel s and counsel for Independent s receipt and approval of invoices received from the Tax Administrator. e. All Taxes pursuant to paragraph 79 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 Independent. f. Additional fees, costs, and expenses not specifically enumerated in subparagraphs (a) through (e) above, subject to approval of Class Counsel and counsel for Independent. IV. Certification of the Settlement Class 82. For purposes of this Settlement only, Independent agrees to the certification of the Settlement Class. If the Court declines to approve the Settlement, or if the Court changes the Settlement Class composition or the terms of the Settlement in any material way not acceptable to Independent after reasonable consultation with Class Counsel, or if certification of the Settlement Class or approval of the Settlement is reversed, or if certification of the Settlement 13

55 Class or approval of the Settlement is changed upon appeal or review in any material way not acceptable to Independent after reasonable consultation with Class Counsel, Independent shall have the right to terminate the Settlement pursuant to Section XVI, infra. V. Settlement Approval A. Preliminary Approval 83. Upon execution of this Agreement by all Parties, Class Counsel shall 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 Independent. The Motion for Preliminary Approval shall request that the Court: (i) approve the terms of the Settlement as within the range of fair, adequate, and reasonable; (ii) provisionally certify the Settlement Class pursuant to Michigan Court Rule 3.501; (iii) approve the Notice program set forth herein and approve the form and content of the Notices of the Settlement, substantially in the forms attached to this Agreement as Exhibits 1, 2, and 3; (iv) approve the procedures set forth in paragraphs for Settlement Class Members to exclude themselves from the Settlement Class or to object to the Settlement; (v) stay the Action pending Final Approval of the Settlement; and (vi) schedule a Final Approval hearing for a time and date mutually convenient for the Court, Class Counsel, and counsel for Independent, 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 ). VI. Discovery 84. Class Counsel and Independent already have engaged in discovery. In addition, and consistent with its statutory and regulatory obligations to protect its customers private financial 14

56 information, Independent will continue to cooperate informally with Class Counsel by providing reasonably available data to permit Class Counsel and their experts to perform the allocation analysis detailed in Section X below. VII. Settlement Administrator 85. Class Counsel and Independent shall retain Epiq Systems to serve as the Settlement Administrator. The Settlement Administrator shall administer various aspects of the Settlement as described in paragraph 87 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 each Settlement Class Member for whom Independent has an address, at the address identified in Independent s records; providing Mailed Notice to all Settlement Class Members for whom an bounces back or is undeliverable, and for all Settlement Class Members for whom Independent does not have an address; repaying Independent from the Settlement Fund the amount of account credits Independent provides to Current Account Holder Settlement Class Members pursuant to paragraph 106 hereof; and paying the remainder of the Settlement Fund to Independent in the event of a termination of the Settlement pursuant to Section XVI hereof. Class Counsel and counsel for Independent will jointly oversee the Settlement Administrator. 86. As specified below, all Settlement Administrator fees, charges, and expenses shall be paid by Independent within 30 days of Class Counsel s and counsel for Independent s receipt and approval of an invoice. 87. The duties of the Settlement Administrator, in addition to other responsibilities that are described in this Agreement, are as follows: a. Obtain from Independent and Class Counsel Settlement Class Member name and address or address information (to the extent it is available), and, to the extent 15

57 necessary, verify and update the addresses received through the National Change of Address database, for the purpose of mailing the Mailed Notice, and later mailing distribution checks to Past Account Holder Settlement Class Members, and to Current Account Holder Settlement Class Members where it is not feasible or reasonable for Independent to make the payment by a credit to the Settlement Class Members Accounts; b. Establish and maintain a Post Office box for requests for exclusion from the Settlement Class; c. Establish and maintain the Settlement Website; d. Establish and maintain an automated toll-free telephone line for Settlement Class Members to call with Settlement-related inquiries, and answer the questions of Settlement Class Members who call with or otherwise communicate such inquiries; e. Respond to any mailed Settlement Class Member inquiries; f. Process all requests for exclusion from the Settlement Class; g. Provide weekly reports and, no later than five days after the end of the Opt-Out Period, a final report to Class Counsel and counsel for Independent that summarize the number of requests for exclusion received that week, the total number of exclusion requests received to date, and other pertinent information; h. Interface with the Tax Administrator; i. At Class Counsel s request in advance of the Final Approval Hearing, prepare an affidavit to submit to the Court that identifies each Settlement Class Member who timely and properly requested exclusion from the Settlement Class; j. Process and transmit distributions to Settlement Class Members from the Settlement Fund; 16

58 k. Pay invoices, expenses, and costs upon approval by Class Counsel and counsel for Independent, as provided in this Agreement; and l. 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 Independent, including but not limited to, verifying that Independent has correctly made a distribution to Settlement Class Members pursuant to paragraph 106 herein. VIII. Providing Settlement Notice to Settlement Class Members 88. Upon Preliminary Approval of the Settlement, at the direction of Class Counsel, the Settlement Administrator shall implement the Notice Program provided herein, using the forms of Notice approved by the Court in the Preliminary Approval Order. The Notice shall include, among other information: a description of the material terms of the Settlement; a date by which Settlement Class Members may exclude themselves from or opt out of the Settlement Class; 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. Class Counsel and counsel for Independent shall insert the correct dates and deadlines in the Notice before the Notice Program commences, based upon those dates and deadlines set by the Court in the Preliminary Approval Order. Notices and publications provided under or as part of the Notice Program shall not bear or include the Independent logo or trademarks, the return address of Independent, the Independent red and blue colors, or otherwise be styled to appear to originate from Independent. 89. The Notice also shall include a procedure for Settlement Class Members to opt out of the Settlement Class. A Settlement Class Member may opt out of the Settlement Class at any 17

59 time during the Opt-Out Period. Any Settlement Class Member who does not timely and validly request to opt out shall be bound by the terms of this Agreement. 90. The Notice also shall 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 Award 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, and Independent s counsel. For an objection to be considered by the Court, the objection must be received by the Court, Class Counsel, and Independent s counsel no later than the last day of the Opt-Out Period, as specified in the Notice. For an objection to be considered by the Court, the objection must also set forth: a. the name of the Actions; 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; 18

60 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; 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). 91. Notice shall be provided to Settlement Class Members in three different ways: ed Notice; Mailed Notice; and Long-form Notice on the Settlement Website. Not all Settlement Class Members will receive all three forms of Notice, as detailed below. 19

61 92. The ed Notice shall be substantially in the form attached hereto as Exhibit 1; Mailed Notice shall be substantially in the form attached hereto as Exhibit 2; the Long-form Notice shall be substantially in the form attached hereto as Exhibit Within 28 days from the date that the Settlement Administrator receives from Class Counsel and Independent the data files that identify, the names and last known addresses and U.S. mail addresses of the identifiable Settlement Class Members, the Settlement Administrator shall: the Notice to each Class member for whom Independent has an address at the address identified in Independent s records; mail, via first-class mail postcard, a Mailed Notice to each Class member for whom Independent does not have an address, at the address identified in Independent s records. Before mailing postcards, the Settlement Administrator will verify and update the mailing addresses received through the United States Postal Service s National Change of Address Database. 94. The Settlement Administrator shall perform reasonable address traces for all Initial Mailed Notice postcards that are returned as undeliverable. No later than 35 days from the Initial Mailed Notice date, the Settlement Administrator shall complete the r ing of Mailed Notice postcards to those Settlement Class Members whose new addresses were identified as of that time through address traces (the Notice R ing Process ). 95. The Notice Program and the Mailed Notice Program (which is comprised of both the Initial Mailed Notice, and the Notice R ing Process) shall be completed no later than 60 days after the Court s order of Preliminary Approval. Within seven days after the date the Settlement Administrator completes the Notice R ing Process, the Settlement Administrator shall provide Class Counsel and Independent s counsel an affidavit that confirms that the Mailed Notice Program was completed in a timely manner. Class Counsel shall file that 20

62 affidavit with the Court as an exhibit to or in conjunction with Plaintiff s Motion for Final Approval of the Settlement. 96. Independent shall pay all costs associated with the Notice and Mailed Notice Programs within 30 days of being approved by Class Counsel and counsel for Independent. IX. Final Approval Order and Judgment 97. The Plaintiff s 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 shall file her Motion for Final Approval of the Settlement, and her application for attorneys fees, costs, and expenses and for a Service Award 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 a 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 90 above. 98. 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 Independent. Such Final Approval Order shall, among other things: a. Determine that the Settlement is fair, adequate, and reasonable; b. Finally certify the Settlement Class for settlement purposes only; c. Determine that the Notice provided satisfies Due Process requirements; d. Dismiss the Action with prejudice and without costs; 21

63 e. Bar and enjoin Plaintiff and all Settlement Class Members from asserting any of the Released Claims, as set forth in Section XIV, including during any appeal from the Final Approval Order; f. Release Independent and the Released Parties from the Released Claims, as set forth in Section XIV; and g. Reserve the Court s continuing and exclusive jurisdiction over the Parties to this Agreement, including Independent, all Settlement Class Members and all objectors, to administer, supervise, construe, and enforce this Agreement in accordance with its terms. X. Allocation of Settlement Fund Among Settlement Class Members 99. Consistent with its statutory and regulatory obligations to protect its customers private financial information, Independent shall make available to Class Counsel and to Plaintiff s expert data to the extent it exists in reasonably accessible electronic form sufficient to determine and implement the allocation of Settlement Funds as provided in this Section X of this Agreement. The methodology provided for in paragraph 100 will be applied to the data as consistently, sensibly, and conscientiously as reasonably possible recognizing and taking into consideration the nature and completeness of the data and the purpose of the computation The amount of the distribution from the Settlement Fund to which each identifiable Settlement Class Member is entitled shall be determined using the following methodology: a. All Accounts will be identified in which, on one or more calendar days during the Class Period, Independent assessed two or more Overdraft Fees on such day or days; b. For each calendar day on which Independent assessed two or more Overdraft Fees, all transactions posted in such Accounts on that day will be ordered in the following posting order: 22

64 i. All credits; ii. iii. All Independent initiated fees and transactions; All Debit Card Transactions ordered from lowest dollar amount to highest dollar amount of transaction; iv. All other debit transactions, including Check transactions, ACH transactions, and non-debit Card-initiated cash withdrawals, ordered from the highest dollar amount to lowest dollar amount of transaction; c. After ordering the transactions as set forth in subparagraph (b) above, each Account on a daily basis will be identified in which the number of Overdraft Fees Independent actually assessed exceeds the number of Overdraft Fees that would have been assessed if the Account had been ordered as set forth in subparagraph (b) ( Additional Overdrafts ); d. The dollar amount of the Additional Overdrafts will be calculated ( Additional Overdrafts Amount ); e. The foregoing allocation formula will yield the identification of all Account holders whose Accounts experienced Additional Overdrafts, as well as each Settlement Class Member s Additional Overdraft Amount; f. The Parties agree the foregoing allocation formula is exclusively for purposes of computing retrospectively, in a reasonable and efficient fashion, the Additional Overdraft Amount of each Settlement Class Member as a result of Independent s High-to-low Debit Card Transaction Sequencing and, subject to paragraphs below, the amount of any distribution each Settlement Class Member should receive from the Settlement Fund. The 23

65 fact that this allocation formula is used herein is not intended and shall not be used for any other purpose or objective whatsoever. XI. Distribution of Net Settlement Fund to Settlement Class Members 101. The Net Settlement Fund is equal to the Settlement Fund plus any interest earned from the Instruments, less the following: a. the amount of the Court-ordered award of Class Counsel s attorneys fees, costs, and expenses, and/or any other Court ordered award of fees in connection with the Settlement, together with any interest accrued thereon; and b. the amount of the Court-ordered Service Award to the Plaintiff Within 30 days of the Effective Date, Independent and the Settlement Administrator shall distribute the Settlement Fund to the Settlement Class Members who do not opt out as provided herein. Each Settlement Class Member who had an Additional Overdraft Amount shall receive a distribution in the amount of a pro rata share of the Net Settlement Fund The Settlement Administrator shall divide the total amount of the Net Settlement Fund by the amount of all Settlement Class Members Additional Overdrafts who have not opted out, which yields the Pro Rata Percentage The Settlement Administrator shall multiply the total Additional Overdrafts of each Settlement Class Member who has not opted out by the Pro Rata Percentage, which yields each Settlement Class Member s Additional Overdraft Payment Amount Every Settlement Class Member who has not opted out shall be paid from the Net Settlement Fund the total Additional Overdraft Payment Amount to which he or she is entitled, calculated as set forth herein ( Settlement Class Member Payments ) When it is feasible and reasonable to do so, Independent shall make Settlement Class Member Payments to Current Account Holders by a credit to those Settlement Class Members 24

66 Accounts. For those Settlement Class Members who receive their Settlement Class Member Payments by credits to their Accounts, Independent shall notify the Current Account Holders of the credit, and provide a brief explanation that the credit has been made as a payment in connection with the Current Account Holder s membership in the Settlement Class. Independent shall provide the notice of account credit described in this paragraph in or with the account statement on which the credit is reflected. Independent will bear any costs associated with implementing the account credits and notification discussed in this paragraph Settlement Class Member Payments to Past Account Holders and to Current Account Holder Settlement Class Members where it is not feasible or reasonable for Independent to make the payment by a credit to the Settlement Class Members Accounts, will be made by check and will be cut and mailed by the Settlement Administrator with an appropriate legend, in a form approved by Class Counsel and Independent s counsel, to indicate that it is from the Settlement, and will be sent to the addresses that the Settlement Administrator identifies as valid Settlement Class Member addresses. 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. Independent shall pay all costs associated with the process of printing and mailing the checks and any accompanying communication to Class Members within 30 days of Class counsel s and Independent s counsel s approval of the invoice for payment 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 25

67 Members whose checks were returned 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. XII. Disposition of Residual Funds After Distribution to the Settlement Class 109. Within one year plus 30 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. At the election and complete discretion of Class Counsel and counsel for Independent, the funds may be distributed to Settlement Class Members who received Settlement Class Member Payment Amounts on a pro rata basis, to the extent feasible and practical in light of the costs of administering such subsequent payments (all such costs to prepare and transmit such additional payments to be paid by the Settlement Fund); or b. At the election of Class Counsel and counsel for Independent, the funds may be distributed through a residual cy pres program. The residual cy pres recipient(s) shall be agreed upon by Independent and Settlement Class Counsel, 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. c. If the Class Counsel and counsel for Independent are unable to agree on a distribution plan ((a) or (b)) or on the recipient(s), they shall bring the matter, together with supporting materials and argument, to the Court for determination. d. In the event no money remains in the Settlement Fund, the Parties shall have no obligation whatsoever to make any distribution as contemplated by subparagraphs (a) or (b) above of this paragraph. 26

68 XIII. Effect of a Termination 110. The grounds upon which this Agreement may be terminated are set forth in paragraphs In the event of a termination as provided therein, this Agreement shall be considered null and void; all of Independent s obligations under the Settlement shall cease to be of any force and effect; the amounts in the Settlement Fund shall be returned to Independent in accordance with paragraph 122; 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, including, but not limited to, Plaintiff s right to seek class certification and Independent s right to oppose class certification In the event of a termination as provided in paragraph 122, the Settlement Fund shall be returned to Independent within seven days of termination, less any money that the Settlement Fund has already paid, or incurred an obligation to pay, for Settlement-related costs and expenses This Settlement shall become effective on the Effective Date unless earlier terminated in accordance with the provisions of paragraph In the event the Settlement is terminated in accordance with the provisions of paragraphs 122, 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, without prejudice to Plaintiff s right to seek discovery and class certification. 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. 27

69 XIV. Releases 114. 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 Independent 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 the conduct, omissions, duties, or matters during the Class Period that were or could have been alleged in the Actions, including, without limitation, any claims, actions, causes of action, demands, damages, losses, or remedies relating to, based upon, resulting from, or arising out of (a) the assessment of one or multiple Overdraft Fees on an Independent Account or the amount of one or more Overdraft Fees assessed on an Account, or (b) Independent s High-to-low Debit Card Transaction Sequencing. The foregoing release includes, by way of example but not limitation, any and all of the following to the extent they involve, result in, or seek recovery or relief for Overdraft Fees or Independent s High-to-low Debit Card Transaction Sequencing: (1) the authorization, approval, or handling of any Debit Card Transaction, (2) any failure to notify or to obtain advance approval when a Debit Card Transaction would or might cause a Independent Account to become overdrawn or further overdrawn or an Overdraft Fee to be assessed, (3) any failure to allow the holder of any Independent Account to opt out of overdrafts, 28

70 or to publicize or disclose the ability of the holder of any Independent Account to opt out of overdrafts, (4) any failure to adequately or clearly to disclose, in one or more agreements, Independent s High-to-low Debit Card Transaction Sequencing, Overdraft Fees, or the manner in which Debit Card Transactions are or would be approved, processed, or posted to Independent Accounts; (5) any conduct or statements encouraging the use of Independent Debit Cards; (6) any advertisements relating to any of the foregoing; and (7) any and all practices attacked in the Complaint, First Amended Complaint, and Second Amended Complaint 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 114 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 114. 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 114, 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 Nothing in this Agreement shall operate or be construed to release any claims or rights Independent has to recover any past, present, or future amounts that may be owed by 29

71 Plaintiff or by any Settlement Class Member on his/her accounts, loans, or any other debts with Independent, pursuant to the terms and conditions of such accounts, loans, or any other debts. XV. Payment of Attorneys Fees, Costs, and Incentive Awards A. Class Counsel Fees and Costs 117. Independent agrees not to oppose Class Counsel s request for attorneys fees of up to one-third of the Settlement Fund prior to any deductions from the Settlement Fund, and not to oppose Class Counsel s request for reimbursement of costs and expenses. Any award of attorneys fees, costs, and expenses to Class Counsel shall be payable solely out of the Settlement Fund The Parties negotiated and reached this agreement regarding the terms of paragraph 117 only after reaching agreement on all other material terms of this Settlement. B. Payment of Attorneys Fees and Costs 119. Within three days of the Effective Date, all Court-approved attorneys fees, costs, and expenses of Class Counsel, including interest accrued thereon, shall be paid from the Escrow Account into the account described in this paragraph. The payment of attorneys fees, costs, and expenses of Class Counsel pursuant to paragraph 117 shall be made into Webb, Klase & Lemond, LLC s IOLTA or Trust Account. After the fees, costs, and expenses have been deposited into this account, 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 Awards 120. Class Counsel will ask the Court to approve a service award of $10,000 for the Plaintiff ( Service Award ). Any Service Award is to be paid from the Settlement Fund. The Service Award shall be paid to Plaintiff in addition to Plaintiff s Settlement Class Member 30

72 Payment Amount. Independent shall not oppose Class Counsel s request for payment of the Service Award The Parties negotiated and reached this agreement regarding the Service Award only after reaching agreement on all other material terms of this Settlement. XVI. Termination of Settlement 122. This Settlement may be terminated by either Independent or Class Counsel by serving on counsel for the opposing Party and filing with the Court a written notice of termination within 14 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 a way that Independent 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 Independent also shall have the right to terminate the Settlement by serving on Class Counsel and filing with the Court a notice of termination within 14 days of its receipt from the Settlement Administrator of the final report specified in paragraph 87 (g) above, if the number of Settlement Class Members who timely request exclusion from the Settlement Class equals or exceeds the number or percentage specified in the separate letter agreement executed 31

73 concurrently with this Settlement by Independent s counsel and Class Counsel. The percentage shall be confidential except to the Court, who shall upon request be provided with a copy of the letter agreement for in camera review 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 Independent. Independent shall have no right to seek reimbursement from Plaintiff or Class Counsel for any funds disbursed from the Escrow Account pursuant to paragraph 80 above In the event of a termination of the Settlement pursuant to this Section XVI, the Parties retain all of their pre-settlement litigation rights and defenses, including Plaintiff s right to seek class certification. XVII. No Admission of Liability 126. Independent disputes the claims alleged in the Action and does not by this Agreement or otherwise admit any liability or wrongdoing of any kind. Independent 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 the Action Class Counsel and Plaintiff believe that the claims asserted in the Action have merit, and they have examined and considered the benefits to be obtained under the proposed Settlement set forth in this Agreement, the risks associated with the continued prosecution of this complex, costly, and time-consuming litigation, and the likelihood of success on the merits of the Action. Class Counsel have fully investigated the facts and law relevant to the merits of the claims, have conducted extensive formal and informal discovery, and have conducted 32

74 independent investigation of the challenged practices. Class Counsel and Plaintiff have concluded that the proposed Settlement set forth in this Agreement is fair, adequate, reasonable, and in the best interests of the Settlement Class Members 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 defenses heretofore made, or an acknowledgment or admission by any party of any fault, liability, or wrongdoing of any kind whatsoever 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 Plaintiff 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 In addition to any other defenses Independent 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. XVIII. Miscellaneous Provisions 131. 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. 33

75 132. 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 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. This obligation of the Parties to support and complete the Settlement shall remain in full force and effect regardless of events that may occur, or court decisions that may be issued, in Wayne County Circuit Court or in any other case in any court 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 Integration. This Agreement (along with the letter agreement referenced in paragraph 123 hereof) 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 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 Governing Law. The Agreement shall be construed in accordance with, and be governed by, the laws of the State of Michigan, without regard to the principles thereof regarding choice of law 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 34

76 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 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 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 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: E. Adam Webb Adam@WebbLLC.com Matthew C. Klase Matt@WebbLLC.com WEBB, KLASE & LEMOND, LLC 1900 The Exchange S.E. Suite 480 Atlanta, Georgia Fax: (770)

77 As to Independent: Jon M. Bylsma VARNUM LLP Bridgewater Place P.O. Box 352 Grand Rapids, Michigan Fax: (616) 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 objections, requests for exclusion, or other filings received as a result of the Notice program 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 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 Authority. The Plaintiff and Independent 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 Independent 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 Agreement Mutually Prepared. Neither Independent 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 36

78 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 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. Independent has provided and is providing information that Plaintiff reasonably requests 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 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 XIV 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. 37

79

80

81 Exhibit A-2

82 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE LINDA R. GLASKE, on behalf of herself and all others similarly situated, Plaintiff, Hon. Muriel D. Hughes Case No CZ v. INDEPENDENT BANK CORPORATION, Defendant. Fink + Associates Law Webb, Klase & Lemond, LLC David H. Fink (P28235) E. Adam Webb Darryl Bressack (P67820) Matthew C. Klase Woodward Ave., Suite The Exchange, S.E., Suite 480 Bloomfield Hills, MI Atlanta, GA (248) (770) dfink@finkandassociateslaw.com Adam@WebbLLC.com dbressack@finkandassociateslaw.com Matt@WebbLLC.com Attorneys for Plaintiff Attorneys for Plaintiff Varnum LLP Jon M. Bylsma (P48790) 333 Bridge Street, N.W.; Suite 1700 Grand Rapids, MI (616) jmbylsma@varnumlaw.com Attorneys for Defendant JOINT DECLARATION OF E. ADAM WEBB AND DAVID H. FINK IN SUPPORT OF UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AND APPLICATION FOR SERVICE AWARD AND ATTORNEYS FEES AND EXPENSES E. Adam Webb and David H. Fink declare under penalty of perjury as follows:

83 1. We are counsel for Plaintiff and the Settlement Class in the above-referenced matter We submit this declaration in support of Plaintiff s and Class Counsel s Unopposed Motion for Final Approval of Class Settlement and Application for Service Award and Attorneys Fees and Expenses. 3. Unless otherwise noted, we have personal knowledge of the facts set forth in this declaration, and could testify competently to them if called upon to do so. 4. After more than four years of litigation and extensive settlement negotiations, we, Plaintiff, and Defendant Independent Bank Corporation ( Independent ) entered into a Settlement Agreement and Release ( Settlement or Agreement ) under which Independent will (i) pay $2.215 million in cash to create a common fund for the benefit of the Settlement Class and (ii) pay all costs and fees associated with Class Notice and Settlement administration. Under the Settlement, all Settlement Class Members will automatically receive distributions from the Net Settlement Fund in proportion to the actual harm that each of them sustained. 5. The litigation was hard-fought and the Parties engaged in significant motion practice on the issues of venue and summary disposition, an appeal before the Michigan Court of Appeals, as well as extensive document and data discovery. 6. The Action involved sharply opposed positions on several fundamental legal questions, including: (i) whether venue was appropriate in this Court; (ii) whether Independent breached its account agreement; (iii) whether Michigan law recognizes a cause of action for good faith and fair dealing; (iv) whether Michigan law allows an affirmative action for unconscionability; (v) whether Michigan law allows a claim for unjust enrichment when there is 1 All capitalized defined terms used herein have the same meanings from the Settlement Agreement. 2

84 a written contract; and (vi) the appropriate methodology for establishing damages on a classwide basis and the amount of damages to be recovered. 7. We continue to believe that the claims asserted in the Action are meritorious; that a class would be certified; that Plaintiff would establish liability and recover substantial damages if the Action proceeded to trial; and that the final judgment would be affirmed on appeal. Plaintiff s ultimate success in the litigation, however, requires her to prevail, in whole or in part, at all of these junctures. Conversely, Independent s success at any one of these junctures could or would have defeated Plaintiff s claims. Thus, continued litigation posed significant risks and countless uncertainties, as well as the time, expense, and delays associated with trial and appellate proceedings, particularly in the context of complex litigation. In light of the foregoing, the Settlement is fair and reasonable, providing guaranteed benefits to the Settlement Class in the form of direct cash compensation without further delay. Background 8. On July 31, 2013, Plaintiff Linda Glaske filed a class action complaint in this Court seeking monetary damages, restitution, and declaratory relief from Independent, arising from the alleged improper assessment, collection, and disclosure of Overdraft Fees, including those fees that were assessed due to Independent s High-to-low Debit Card Transaction Sequencing practice ( the Practice ). Plaintiff alleged that Independent systemically engaged in the Practice to maximize the Bank s Overdraft Fee revenues. Plaintiff asserted claims for breach of contract, unconscionability, unjust enrichment, and violation of the Michigan Consumer Protection Act. 9. The case was assigned to the Honorable Amy Hathaway. 10. Independent filed its answer and affirmative defenses on September 13,

85 11. On the same day, Independent moved to transfer venue to the Ionia County Circuit Court. 12. On September 23, 2013, Plaintiff filed her first amended class action complaint, which dropped the Michigan Consumer Protection Act claim. 13. On October 1, 2013, Plaintiff opposed Independent s motion to transfer venue. 14. On October 4, 2013, the Court heard oral argument on the motion to transfer venue and denied the motion. 15. The Parties thereafter engaged in discovery. Independent produced all versions of its customer agreement that were in effect during the relevant period. 16. On November 25, 2013, after reviewing such discovery, Plaintiff filed her second amended class action complaint. 17. On December 16, 2013, Independent filed its answer and affirmative defenses to the second amended class action complaint. 18. On the same day, Independent moved for summary disposition, arguing that Plaintiff failed to state lawful claims upon which relief may be granted. Plaintiff opposed this motion and Independent submitted a reply brief. 19. On December 24, 2013, Plaintiff served its first interrogatories, requests for production, and requests for admissions on Independent. 20. In late January 2014, Plaintiff agreed to extend Independent s time to respond to the outstanding written discovery requests until after the motion for summary disposition was resolved. 21. On February 14, 2014, the Court heard oral argument on the motion for summary disposition and granted it in part and denied it in part. Specifically, the Court granted summary 4

86 disposition on Plaintiff s claim that Independent breached the contract via the covenant of good faith and fair dealing, but denied it in all other respects, finding that Plaintiff s direct breach of contract, unconscionability, and unjust enrichment claims were validly pled. 22. Judge Hathaway retired before a written order on Independent s motion for summary disposition could be entered. The case was reassigned to the Honorable Muriel D. Hughes. 23. The Parties each submitted and objected to the other s proposed written orders on Independent s motion for summary disposition. 24. On July 24, 2014, the Court held a hearing on the Parties competing written orders and entered an order granting in part and denying in part Independent s motion for summary disposition. 25. On August 14, 2014, Independent applied to the Michigan Court of Appeals for leave to appeal the order on its motion for summary disposition. The appeal was assigned docket number The same day, Independent moved the Circuit Court to stay all proceedings pending the outcome of the application for leave to appeal. Plaintiff opposed the motion to stay. 27. On September 12, 2014, the Circuit Court heard oral argument on the motion to stay and granted it, ordering that the case be stayed pending a ruling from the Court of Appeals on the application for leave to appeal. 28. On September 17, 2014, the Circuit Court entered a written order staying the case. 29. Plaintiff opposed Independent s motion for leave to appeal and Independent submitted a reply brief. 5

87 30. On February 10, 2015, the Court of Appeals granted the application for leave to appeal. 31. On April 7, 2015, Independent submitted its Brief of Appellant. 32. On May 6, 2015, Plaintiff submitted her Brief of Appellee. 33. On May 27, 2015, Independent submitted its Reply Brief of Appellant. 34. On January 12, 2016, the Court of Appeals heard oral argument on the appeal. 35. On January 21, 2016, the Court of Appeals entered its decision affirming the order of this Court to deny Independent s motion for summary disposition as to Plaintiff s claims for direct breach of contract, unconscionability, and unjust enrichment. 36. On March 17, 2016, the Court held a conference to discuss scheduling. 37. On April 6, 2016, the Court entered two orders, one lifting the stay and one setting a schedule for the remainder of the litigation. 38. During this time period, the Parties informally agreed to focus efforts on settlement, including Independent s production of sample data and Plaintiff s expert s analysis of such data for the purpose of estimating class-wide alleged damages. 39. Over the next several months, Independent provided sample data regarding millions of overdraft transactions during the Class Period including data about individual transactions over several months and aggregate data and Plaintiff s data expert, Arthur Olsen, analyzed such data and calculated probable class-wide damages. 40. On July 20, 2016, the Parties participated in a mediation with William Jack, Esq. serving as mediator. Although the mediation was unsuccessful, the Parties laid the groundwork for future negotiations. 6

88 41. Over the next several months, Independent provided additional sample data which Mr. Olsen analyzed and incorporated into his analysis. On multiple occasions, Mr. Olsen and Plaintiff s counsel participated in conference calls with counsel for Independent wherein Mr. Olsen explained his analysis and results. 42. Although the Parties were in active negotiations, Plaintiff served additional written discovery requests on Independent seeking information she would need to support a motion for class certification if settlement was unsuccessful. 43. Plaintiff also circulated her proposals for an electronically stored information ( ESI ) protocol and a confidentiality stipulation pertaining to documents and information. These agreements were negotiated and subsequently entered by the Court. 44. On September 7, 2016, the Parties held a settlement conference with the Court. Although no settlement was reached, the Parties continued to negotiate. The Court revised the case schedule to account for the continued negotiations. 45. On October 17, 2016, Plaintiff served a Rule 2.306(B)(5) deposition notice on Independent. 46. On October 17, 2016, the Parties agreed to stay formal discovery while they continued to negotiate. Independent agreed that it would not oppose class certification if settlement talks were unsuccessful. 47. On November 29, 2016, the Parties held another settlement conference with the Court, with client representatives present. Although no settlement was reached, progress was made. 48. On December 21, 2016, after several back and forth offers, the Parties agreed to a settlement framework that, subject to a mutually agreeable written Settlement Agreement and 7

89 subject to preliminary approval and final approval by the Court as required by Michigan Court Rule 3.501, reflected the Parties good faith intention to fully, finally, and forever resolve, discharge, and release all rights and claims of the Settlement Class. 49. On January 5, 2017, the Parties filed a joint notice of settlement with the Court. Thereafter, the Parties met and conferred and worked to finalize the Settlement Agreement, proposed class notices, and preliminary approval papers. The Parties also made arrangements for the full class data to be transmitted to Mr. Olsen so he may analyze it and ascertain who is in the Settlement Class and each member s damages (according to the allocation methodology set forth in the Agreement). 50. The Settlement Agreement was formally executed on February 28, On February 28, 2017, Plaintiff and Class Counsel moved for preliminary approval of the Settlement. 52. On March 9, 2017, the Court entered its Preliminary Approval Order and scheduled a Final Approval Hearing for November 29, In August 2017, due to some delays in receiving the data that was necessary for Plaintiff s expert Mr. Olsen to determine class membership and calculate damages, the Parties jointly sought a continuance of the Final Approval Hearing. 54. On August 7, 2017, the Court approved this request and continued the Final Approval Hearing to January 10, Mr. Olsen has since received the necessary data and completed his analysis. He has ascertained who is in the Settlement Class and each such individual s damages (according to the allocation methodology set forth in the Agreement). 8

90 56. The Settlement Administrator thereafter implemented and completed the Notice Program. The Settlement Terms 57. The Settlement requires Independent to deposit $2.215 million into an Escrow Account within 14 days of this Court s Final Approval of the Settlement. That deposit will create the Settlement Fund that will be used to pay: (i) all distributions of money to the Settlement Class, including cash account credits for current customers and checks to all former customers; (ii) any Court-ordered award of legal fees and expenses of Class Counsel; and (iii) any Court-ordered Service Award to Plaintiff. 58. In addition to the $2.215 million Settlement Fund, Independent is responsible for paying all costs and fees associated with Class Notice and Settlement Administration. According to the appointed Settlement Administrator, these amounts will exceed $104, All identifiable Settlement Class Members who experienced an Additional Overdraft Amount will receive pro rata distributions from the Net Settlement Fund, provided they do not opt-out of the Settlement. Agreement Section XIII. 60. Importantly, Settlement Class Members do not have to submit claim forms or take any other affirmative step to receive relief under the Settlement. The amount of their pro rata distributions has been determined by Plaintiff s expert, Mr. Olsen, through analysis of Independent s electronic data. This is the gold standard of class action settlements. 61. The Additional Overdraft Amount analysis determines which Independent Account holders were assessed Additional Overdrafts that would not have been assessed if the Bank had used an alternative posting sequence or method for posting Debit Card Transactions other than High-to-low Debit Card Transaction Sequencing, and how much in Additional 9

91 Overdrafts those Account holders were assessed. The calculation involves a multi-step process that is described in detail in the Agreement. Agreement The Net Settlement Fund which will be distributed pro rata among all Settlement Class Members who experienced an Additional Overdraft Amount is equal to the Settlement Fund, plus interest earned (if any), less Court-awarded attorneys fees and costs and the Service Award for the Plaintiff. 63. Within 30 days after the Effective Date, Independent and the Settlement Administrator will distribute the Net Settlement Fund to all eligible Settlement Class Members who do not timely opt-out of the Settlement and who are entitled to a distribution. 64. Payments to eligible Settlement Class Members who are Current Account Holders will be made by the Bank crediting such Settlement Class Members Accounts, and notifying them of the credit. Independent will then be entitled to a reimbursement for such credits from the Net Settlement Fund. 65. Past Account Holders will receive payments from the Net Settlement Fund by checks mailed by the Settlement Administrator. 66. Any uncashed or returned checks will remain in the Settlement Fund for one year from the date the first distribution check is mailed by the Settlement Administrator, during which time the Settlement Administrator will make reasonable efforts to effectuate delivery of the Settlement Fund Payments. 67. The Settlement Administrator selected by the Parties and appointed by the Court (Epiq Systems) is expert at these processes and has handled other settlements in cases pertaining to overdraft fees, with an admirable record of making sure funds are paid to class members. 10

92 68. In exchange for the benefits conferred by the Settlement, all Settlement Class Members who do not opt-out will be deemed to have released Independent from claims related to the subject matter of the Action. The detailed release language can be found in Section XIV of the Agreement. 69. Either Party may terminate the Settlement if the Settlement is rejected or materially modified by the Court or an appellate court, as provided in the Settlement Agreement. Independent also has the right to terminate the Settlement if the number of Class Members who timely opt-out of the Class constitutes a significant percentage of the Class or the Settlement amount, as agreed on by the Parties in writing. The Notice Program 70. The Notice Program (Agreement Section VIII) was designed to provide the best notice practicable, and was tailored to take advantage of the information Independent has available about the Settlement Class Members. 71. Because of the address records in the possession of the Bank for all current and former customers, the Notice Program was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, the terms of the Settlement, Class Counsel s Fee Application and request for a Service Award for Plaintiff, and their rights to optout of the Settlement Class or object to the Settlement. 72. The Notices and Notice Program constitute sufficient notice to all persons entitled to notice and satisfy all applicable requirements of law, including, but not limited to, Michigan law, and the constitutional requirement of due process. 73. The Notice Program was comprised of two parts: (1) direct notice ( ed Notice ) or postcard mail notice ( Mailed Notice ) to all identifiable Class Members; 11

93 and (2) a Long Form Notice with more detail than the direct mail or publication notices, that will be available on the Settlement Website ( and via mail upon request. 74. All forms of Notice to the Settlement Class included, among other information: a description of the Settlement; a date by which Settlement Class Members may exclude themselves from or opt-out of the Settlement Class; a date by which Settlement Class Members may object to the Settlement; the date on which the Final Approval Hearing will occur; the address of the Settlement Website at which Settlement Class Members may access the Agreement and other related documents and information. 75. In addition to the information described above, the Long Form Notice also described the procedure Settlement Class Members must use to opt-out of the Settlement, object to the Settlement, object to Class Counsel s application for attorneys fees and expenses, or object to the Service Award proposed for Plaintiff. 76. All costs associated with notifying the Class and administering the Settlement have been (and will continue to be) paid by Independent, separate from the Settlement Fund. Service Award and Attorneys Fees and Costs 77. Class Counsel seek and Independent does not oppose a Service Award of $10,000 for named Plaintiff Linda Glaske. This award will compensate the named Plaintiff for her time and effort in the Action, and for the risk she undertook in prosecuting the Action against Independent. Such an award is commonplace in successful class action settlements. 78. Independent also does not oppose Class Counsel s request for attorneys fees of up to one-third of the Settlement Fund, plus reimbursement of litigation costs and expenses. The Parties negotiated and reached agreement regarding attorneys fees and costs only after reaching 12

94 agreement on all other material terms of this Settlement. The amount of compensation sought by Class Counsel does not exceed the percentage range regularly sought for contingency work in Michigan. Considerations Supporting Settlement 79. Settlement negotiations were informed by our experience in numerous similar class action cases. In particular, we had the benefit of years of experience and a familiarity with the facts of this case as well as with other cases involving improper overdraft fees. For instance, Mr. Webb serves on the Plaintiffs Executive Committee of MDL No. 2036, styled In re: Checking Account Overdraft Litigation, Case No. 1:09-md JLK (S.D. Fla.), which involved litigation against numerous banks regarding their overdraft practices. Mr. Webb has also litigated several overdraft-related cases outside of the MDL, including notable settlements in Jenkins v. Trustmark Bank, No. 12-cv-380 (S.D. Miss.), and Lunsford v. Woodforest Bank, No. 12-cv-103 (N.D. Ga.). 80. We were both also class counsel in Faris v. Flagstar Bank, No CZ (Oakland County Circuit Court), which concerned overdraft fees and recently settled on terms very attractive to the class. 81. As detailed above, we conducted a thorough investigation and analysis of Plaintiff s claims and Independent s defenses, and engaged in substantial document and data discovery, motion practice, and a full blown appeal. This investigation and our research of Michigan substantive law enabled us to gain an understanding of the evidence related to central legal and factual issues in the case as they related to class certification and the merits of Plaintiff s and the Settlement Class claims, and prepared us for well-informed settlement negotiations. 13

95 82. We have a thorough understanding of the practical and legal issues Plaintiff and the Settlement Class would continue to face litigating these claims against Independent based, in large part, on similar claims challenging other banks overdraft fee practices prosecuted in MDL No and elsewhere. 83. We were well-positioned to evaluate the strengths and weaknesses of Plaintiff s and the Settlement Class claims, as well as the appropriate basis upon which to settle them. 84. While we are confident in the strength of our case, we are also pragmatic in our awareness of the various defenses available to Independent and the risks inherent to litigation. Throughout the litigation, Independent vigorously denied that it was liable to Plaintiff and it asserted various defenses which, if Independent prevailed, would have precluded, or seriously limited, any recovery for Plaintiff and the Settlement Class. For example, if the Action continued, Independent would have continued to assert that its account agreement authorized its practices. If the Court (or an appellate court) agreed with this argument, Plaintiff and the Settlement Class would have lost their claims and would have been precluded from recovering anything. 85. Even if Plaintiff prevailed on the Bank s contract argument, Plaintiff still faced a real risk that she would not succeed because Independent would have continued to assert that the Bank was not liable for Plaintiff and the Settlement Class members overdrawing their accounts. 86. Specifically, Independent would continue to argue that it properly disclosed its processing practices and that Plaintiff and the Settlement Class were themselves at fault for any overdrafts. 14

96 87. Without the Settlement, Plaintiff would have to succeed on class certification, summary disposition, and at trial and on any post-trial appeals. Even if Plaintiff managed to navigate this minefield and prevailed at trial and on appeal, any recovery could be delayed for several years. 88. The Settlement, by contrast, provides relief to Settlement Class Members without further delay. 89. Moreover, the Settlement was the result of intensive, arm s-length negotiations between experienced attorneys who are familiar with class action litigation and with the legal and factual issues of this case following a mediation and several settlement conferences. 90. Here, based on Independent s transactional data, the $2.215 million Settlement Fund and costs of Notice and Settlement Administration represent in excess of fifty percent (50%) of the amount of damages Plaintiff and the Settlement Class Members were likely to seek from a jury at trial, if they were successful in all respects through trial and any appeals. 91. There can be no doubt that this Settlement is a fair and reasonable recovery for the Settlement Class in light of the Bank s defenses, and the challenging and unpredictable path of litigation Plaintiff and all Settlement Class Members would have faced absent the Settlement. 92. We do not hesitate to enthusiastically support the Settlement as a fantastic result for Plaintiff and the Settlement Class. 93. To date, opposition to the Settlement has been non-existent. As of November 20, 2017, none of the 37,035 Settlement Class Members have opted out of the Settlement. 94. Additionally, as of November 20, 2017, no Settlement Class Members have objected to the Settlement. 15

97 95. Based on these and other reasons, we are of the strong opinion that the Settlement is clearly deserving of Final Approval. Service Award 96. Pursuant to the Settlement, we request, and Independent does not oppose, a Service Award of $10,000 for Plaintiff Linda Glaske. Agreement 120. If the Court approves it, the Service Award will be paid from the Settlement Fund, and will be in addition to the relief to which Ms. Glaske is entitled under the terms of the Settlement. 97. Service awards compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Courts have found service awards to be an efficient and productive way to encourage members of a class to become class representatives. 98. The factors for determining a service award include: (1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation. 99. The above factors, as applied to this Action, demonstrate the reasonableness of a Service Award for Ms. Glaske. Ms. Glaske provided substantial assistance that enabled us to successfully prosecute the Action and reach the Settlement, including (1) initiating Class Counsel s investigation by complaining of the Independent practices at issue; (2) submitting to interviews with Class Counsel; (3) submitting an affidavit in opposition to Defendant s motion to transfer; (4) locating and forwarding responsive documents and information, including stored documents; (5) participating in many conferences with Class Counsel; (6) traveling from her home in Grand Rapids to attend a settlement conference with this Court; (7) assisting Class 16

98 Counsel in the preparation of court filings; and (8) seeking updates as to the course of the litigation. In so doing, Ms. Glaske was integral to forming the theory of the case and successfully pursuing it. Ms. Glaske not only devoted time and effort to the litigation, but the end result of her efforts is a substantial benefit to the more than 37,000 Settlement Class Members If the Court approves it, the Service Award will be $10,000. This amount is less than % of the Settlement Fund, a ratio that falls well below the range of what has been deemed to be a reasonable service award. Attorneys Fees 101. Pursuant to the Settlement, Class Counsel request that the Court award attorneys fees of one-third (33.33%) of the $2,215,000 Settlement Fund, plus reimbursement of our litigation costs and expenses. We do not seek a percentage of the value of Independent s agreement to separately pay for the costs of Notice and Settlement Administration Independent agreed not to oppose our request for such fees and expenses. We negotiated and reached this understanding regarding attorneys fees and expenses only after reaching agreement on all other material terms of this Settlement The amount being requested was set forth in the Court-approved notice disseminated to the Settlement Class David Fink has been practicing law in Michigan since He has extensive experience litigating complex class actions in state and federal courts, including serving in leadership roles numerous consumer and antitrust cases. A one-third fee is standard in general contingency litigation in Michigan. 17

99 105. E. Adam Webb and Matthew C. Klase have been involved in several prior class settlements in overdraft cases, both inside and outside the MDL. In overdraft class settlements valued at less than $20 million courts have often awarded attorneys fees equal to 33 percent or more of the settlement fund Indeed, the fee requested here is in line with the fees requested and awarded in Michigan and other overdraft fee class actions settled and approved throughout the country: Case Settled Swift v. BancorpSouth No. 10-cv-90 (N.D. Fla.) Faris v. Flagstar Bank No (Oakland Cir. Ct.) Molina v. Intrust Bank, N.A. No. 10-CV-3686 (Dist. Ct. Kan.) Simpson v. Citizens Bank No. 12-cv (E.D. Mich.) Casto v. City National Bank, N.A. No. 10-C-1089 (Cir. Ct. W.Va.) Schulte v. Fifth Third Bank No. 09-cv-6655 (N.D. Ill.) Johnson v. Community Bank, N.A. No. 3:12-cv RDM (M.D. Pa.) Lunsford v. Woodforest Bank No. 12-cv-103 (N.D. Ga.) Jenkins v. Trustmark Bank No. 12-cv-380 (S.D. Miss.) Percentage-of-the-Fund Awarded 35% of $24 million 33.33% of $7.7 million 33.33% of $2.7 million 33% of $2 million 33% of $3 million 33% of $9.5 million 33% of $2.5 million 33% of $7.75 million 33% of $4 million 107. The factors described in Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), support the reasonableness of the requested fee in this case: 108. The Value of the Benefit Rendered to the Class As noted above, the Settlement establishes a common fund of $2.215 million. Payments to the Class will be forthcoming automatically, through checks, with no claims process. Thus, there is no concern about what are historically the biggest problems with class action settlements, non-cash payouts (such as 18

100 coupons) and low claims rates, where only 5-10% of members file a claim. This Settlement truly illustrates best practices and is one of which the Parties and the Court can be proud Essentially, if the Court approves the Settlement, Plaintiff and the Class will recover in excess of fifty percent (50%) of the amount of damages Plaintiff and the Settlement Class Members were likely to seek from a jury at trial, if they were successful in all respects through trial and any appeals In light of the significant risks associated with continued litigation, the $2.215 million Settlement Fund is truly a fantastic result The Value of the Services on an Hourly Basis This case has involved a remarkable amount of time of legal work more than 1,355 hours. Moreover, E. Adam Webb and Matthew C. Klase have spent nearly a decade developing the theories underlying the claims in the instant Action through their efforts in litigating (with both success and failure) other overdraft fee cases throughout the country. These efforts accrued to the benefit of Plaintiff and the Class This case has been extensively litigated for four years and Independent aggressively defended the suit. We conducted substantial factual and legal research, drafted several sets of written discovery, reviewed and organized discovery responses and substantial document and data productions, handled a very successful appeal, and successfully briefed and argued several dispositive motions all while successfully managing the scheduling deadlines set by this Court We participated in mediation as well as additional settlement discussions with Independent s counsel, all of which led to the Settlement. We also spent considerable time negotiating the Agreement, as well as the content of the notices and preparing the necessary 19

101 motions for approval of the Settlement. Respectfully, we believe that the results demonstrate that we did high quality work, both in and out of court The collective lodestar for our firms is $670,824, based upon 1,355.2 hours, which includes all hours expended to date and a reasonable number of hours to see the case through another year or more to its ultimate conclusion, multiplied by a blended Class Counsel hourly rate of $495 per hour. We submit that this blended rate is reasonable since the work in this case has been done nearly entirely by veteran attorneys at the senior partner level In the event the Court awards the requested fee of 33.33% of the Settlement Fund, this would result in a multiplier (ratio of the actual fee to the lodestar) of Such a modest multiplier is well below the general range adopted by courts in the Sixth Circuit for successful class action cases. Moreover, when evaluating the lodestar multipliers of the other overdraft fee cases throughout the country, courts have awarded fees resulting in multiples ranging between 3 and 9 times lodestar Given the nature, complexity, and duration (and potential further duration) of this Action, as detailed above, the risk of non-recovery, the value of the social benefit, and the extraordinary results in light of the obstacles, the multiplier is appropriate and reasonable. Clearly, the lodestar cross-check confirms the reasonableness of the requested fee Whether the Services Were Undertaken on a Contingent Fee Basis In undertaking to prosecute this complex case entirely on a contingent fee basis, we assumed a significant risk of nonpayment or underpayment. We even devoted nearly $76,000 of our own assets to the prosecution of the litigation, with no guarantee of recoupment Despite our effort in litigating and settling this Action for over four years, we remain completely uncompensated for the time invested in the Action (in addition to the 20

102 expenses advanced). The time we spent on this case was time that could not be spent on other matters Accordingly, the requested fee is appropriate to compensate us for the risks we took to secure significant benefits for the Class Society s Stake in Rewarding Attorneys Who Produce Such Benefits in Order to Maintain an Incentive to Others As noted, the time and expense demands on us were considerable. Moreover, our fee request is firmly rooted in the economics involved in prosecuting a class action. Without adequate compensation and financial reward, cases such as this simply could not be pursued The Complexity of the Litigation The claims and defenses in this case are complex and litigating them has been both difficult and time consuming. Almost every aspect of this case has been hotly contested by Independent s excellent counsel Recovery by means other than settlement would have added additional years to this already lengthy litigation. In fact, E. Adam Webb and Matthew C. Klase have other pending overdraft fee class actions that have been ongoing for more than eight years. Clearly, the complexity of litigation also supports the requested fees The Professional Skill and Standing of Counsel Involved on Both Sides Efficient and successful litigation of this Action required counsel highly trained in class action law and procedure as well as the specialized issues presented here. We possess this experience which is of great value in the representation of the Class Indeed, the record demonstrates that the Action involved a broad range of complex and novel challenges, which we met at every juncture. In addition, E. Adam Webb and Matthew C. Klase are highly experienced in this particular area of overdraft fee litigation, having 21

103 litigated and successfully resolved many overdraft fee class actions. All of us also worked extensively on the Faris v. Flagstar Bank matter. We used the extensive knowledge and experience obtained from those cases and applied it to the instant Action in order to achieve a fair and reasonable settlement for the Settlement Class This by no means suggests anything about this case was cookie-cutter. Indeed, this case involved peculiar Michigan law on good faith and fair dealing and other contract-based issued and thus required fresh thinking and new analysis Additionally, throughout the litigation, Independent has been represented by extremely capable counsel. Mr. Bylsma and his colleagues at Varnum were worthy, highlyskilled adversaries, which makes the nature and amount of the Settlement all the more impressive. Litigation Expenses 128. We also request reimbursement for a total of $75, for out-of-pocket costs and expenses we necessarily incurred in connection with the prosecution and settlement of this Action. Specifically, these costs and expenses consist of: (1) $66, in fees and expenses for Plaintiff s expert, Arthur Olsen, whose services were critical in identifying the Settlement Class Members, determining their damages, and in allocating the Settlement Fund [see Olsen Invoices (Exh. 1 hereto)]; (2) $ in mediator fees; (3) $ in filing, pro hac vice, service, and transcript fees; (4) $6, in necessary (coach class) travel expenses for several hearings in this Court, the mediation, and appellate oral argument; and (5) $ in necessary administrative costs and expenses (e.g., copies, postage, federal express fees, etc.) No request is being made to cover the estimated future costs of Class Counsel, which could certainly be substantial. 22

104

105 Exhibit 1

106 Invoice D a te 1 0 / 6 / In v o ic e # B ill T o W e b b, K la s e & L e m o n d, L LC F ra n k lin L e m o n d T h e E x c h a n g e, S E S u ite A tla n ta, G A T e rm s D u e D a te N e t / 5 / Q u a n tity D e s c rip tio n H o u rly R a te S e rv ic e d A m o u n t 3 0 L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 3 0 / , S a le s T a x (0.0 % ) S u b to ta l T o ta l D u e $ $ 9, $ 9,

107 Invoice D a te 1 / 2 3 / In v o ic e # B ill T o W e b b, K la s e & L e m o n d, L LC F ra n k lin L e m o n d T h e E x c h a n g e, S E S u ite A tla n ta, G A T e rm s D u e D a te N e t / 2 2 / Q u a n tity D e s c rip tio n H o u rly R a te S e rv ic e d A m o u n t 9 L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 3 1 / , L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 3 0 / , L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 3 1 / S a le s T a x (0.0 % ) S u b to ta l T o ta l D u e $ $ 1 1, $ 1 1,

108 Invoice D a te 8 / 1 2 / In v o ic e # B ill T o W e b b, K la s e & L e m o n d, L LC F ra n k lin L e m o n d T h e E x c h a n g e, S E S u ite A tla n ta, G A T e rm s D u e D a te N e t / 1 1 / Q u a n tity D e s c rip tio n H o u rly R a te S e rv ic e d A m o u n t 4 3 L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 3 1 / , L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 3 0 / , L itig a tio n S u p p o rt - In d e p e n d e n t B a n k / 5 / , L itig a tio n S u p p o rt - In d e p e n d e n t E x p e n s e / 5 / S a le s T a x (0.0 % ) S u b to ta l T o ta l D u e $ $ 4 6, $ 4 6,

109 Exhibit A-3

110 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE LINDA R. GLASKE, on behalf of herself and all others similarly situated, Hon. Muriel D. Hughes Case No CZ Plaintiff, v. INDEPENDENT BANK CORPORATION, Defendant. Fink + Associates Law Webb, Klase & Lemond, LLC David H. Fink (P28235) E. Adam Webb Darryl Bressack (P67820) Matthew C. Klase Woodward Ave., Suite The Exchange, S.E., Suite 480 Bloomfield Hills, MI Atlanta, GA (248) (770) dfink@finkandassociateslaw.com Adam@WebbLLC.com dbressack@finkandassociateslaw.com Matt@WebbLLC.com Attorneys for Plaintiff Attorneys for Plaintiff Varnum LLP Jon M. Bylsma (P48790) 333 Bridge Street, N.W.; Suite 1700 Grand Rapids, MI (616) jmbylsma@varnumlaw.com Attorneys for Defendant AFFIDAVIT OF CAMERON R. AZARI, ESQ. AS TO IMPLEMENTATION OF SETTLEMENT NOTICE PLAN

111 Personally appeared before me, the undersigned officer authorized to administer oaths in and for the State of Oregon, Cameron R. Azari, Esq., who after first being duly sworn, states under oath as follows: 1. My name is Cameron R. Azari, Esq. I have personal knowledge of the matters set forth herein, and I believe them to be true and correct. 2. I am the Director of Legal Notice for Hilsoft Notifications; a firm that specializes in designing, developing, analyzing, and implementing large-scale, un-biased, legal notification plans. Hilsoft is a business unit of Epiq Systems Class Action and Claims Solutions ( ECA ). 3. Hilsoft has been involved with some of the most complex and significant notices and notice programs in recent history. We have been recognized by courts for our testimony as to which method of notification is appropriate for a given case, and we have provided testimony on numerous occasions on whether a certain method of notice represents the best notice practicable under the circumstances. Hilsoft s CV is included as Exhibit 1. For example: a. In re: Checking Account Overdraft Litigation (IBERIABANK), MDL No. 2036, S.D. Fla (overdraft litigation settlement; individual notification effort reached approximately 97%; granted final approval); b. Trombley v. National City Bank, No. 1:10-CV-00232, D.D.C. (overdraft litigation settlement; individual notification effort reached approximately 93.3% of the class; granted final approval); c. Mathena v. Webster Bank, N.A., No. 3:10-cv-01448, D. Conn. (overdraft litigation settlement; individual notification effort reached approximately 97.6% of the class; granted final approval); d. Swift v. BancorpSouth, Inc., No. 1:10-cv SPM, N.D. Fla; No. 1:10-cv JLK, S.D. Fla. (overdraft litigation notice of pendency of class action; individual notification effort reached approximately 94.5% of the class). 2

112 4. Now that the case has settled, in Glaske v. Independent Bank, Case No CZ, in the State of Michigan, in the Circuit Court for the County of Wayne, my colleagues and I were asked to design a Settlement Notice Plan with the following main objectives: a. Use the information Independent Bank has available about the Settlement Class Members (i.e., names, street addresses, and addresses) to provide them with individual notice; b. Supplement individual notice with a website and toll-free telephone number to provide Settlement Class Members with additional avenues to obtain more information about the case; and c. Provide notices that are noticeable, clear, simple, substantive, and informative, with no significant or required information missing, so as to enable Settlement Class Members to make an informed decision about whether to remain in the case as a Class Member, to intervene, to opt-out, or to object. 5. With these objectives in mind, we implemented the Notice Program which was approved by the Court in the Order Granting Preliminary Approval to Class Settlement ( Order ) dated March 9, The Court appointed ECA as the Settlement Administrator, to implement the Notice Program and provide notice to the holders of 37,939 Independent Bank accounts. ECA combined those Settlement Class Members with multiple accounts to identify a final Class List of 37,035 unique Settlement Class Members. There were seven (7) Settlement Class Members for which direct contact information could not be provided. 6. ECA thereafter implemented the Notice Plan as follows: a. Notice On October 2, 2017, ECA sent notice to 8,467 Settlement Class Members. A copy of the notice is included as Exhibit 2. b. Direct Mail Notice For Class Members for whom Independent Bank does not have addresses, we (i) ran the street address information provided by Independent Bank through the National Change of Address Database to ensure that stale addresses were updated, and (ii) mailed to such Settlement Class Members a written notice. Such mail notices were sent on October 2, 2017 to 28,561 Settlement Class Members. A copy of the written notice postcard is included as Exhibit 3. c. R ing of Direct Mail Notice For any mail notices that were returned as undeliverable, we promptly attempted to obtain updated addresses and r ed 3

113 the mail notice to those persons whose new addresses were identified. For Settlement Class Members whose notices bounced back as undeliverable, we r ed a postcard Notice to the street address information provided by Independent Bank. As of November 10, 2017, 1,080 direct mail notices were undeliverable. d. Additional Notice Settlement Class Members were able to seek additional information regarding the case by accessing a website or toll-free telephone hotline, both maintained by ECA, or by contacting Class Counsel. The case website ( which was established on October 2, 2017, allowed Settlement Class Members to obtain additional information and documents. The website not only contains a copy of the Class notice, but it also contains case specific documents including the complaint, motion for preliminary approval, settlement agreement, preliminary approval order as well as other orders entered by the Court. As of November 10, 2017, there have been 989 unique visitors to the website and over 1,863 website pages presented. A telephone hotline ( ) was established on October 2, Callers can listen to a recorded message providing information about the case. Callers can also request to receive by mail a copy of the Long Form notice in English or Spanish. As of November 10, 2017, the toll-free number has handled 323 calls representing 995 minutes of use. An address and telephone number are also available for Settlement Class Members to make attorney-client privileged inquiries to Class Counsel. 7. The combined postcard and individual notice effort was successfully delivered to approximately 97% of identified Settlement Class Members. 8. Settlement Class Members are able to opt-out of the Class by submitting a written request to a dedicated post office box maintained by ECA, no later than December 11, Instructions for Settlement Class Members to opt-out were included on the written notice and are explained on the website and the toll-free hotline. As of November 20, 2017, no Settlement Class Members have submitted an opt-out request. If ECA receives any opt-outs, we will provide a list of the Settlement Class Members to Class Counsel, who will be filing the list with the Court. 9. Settlement Class Members are able to object to the Settlement by submitting a written objection, no later than December 11, Instructions for Settlement Class Members to object were included on the written notice and are explained on the website and the toll-free hotline. As of November 20, 2017, no objections have been received by ECA. 4

114

115 Exhibit 1

116 Hilsoft Notifications is a leading provider of legal notice services for large-scale class action and bankruptcy matters. We specialize in providing quality, expert, notice plan development designing notice programs that satisfy due process requirements and withstand judicial scrutiny. For more than 23 years, Hilsoft Notifications notice plans have been approved and upheld by courts. Hilsoft Notifications has been retained by defendants and/or plaintiffs on more than 300 cases, including more than 30 MDL cases, with notices appearing in more than 53 languages and in almost every country, territory and dependency in the world. Case examples include: Hilsoft designed and implemented a monumental notice campaign to notify current or former owners or lessees of certain BMW, Mazda, Subaru and Toyota vehicles as part of a $553 million settlement regarding Takata airbags. The Notice Plan included individual mailed notice to more than 19.7 million potential Class Members and notices via consumer publications, U.S. Territory newspapers, radio spots, internet banners, mobile banners, and specialized behaviorally targeted digital media. Combined, the Notice Plan reached more than 95% of adults aged 18+ in the U.S. who owned or leased a subject vehicle with a frequency of 4.0 times. In re: Takata Airbag Products Liability Litigation (OEMS BMW, Mazda, Subaru and Toyota), MDL No (S.D. Fla.). A comprehensive notice program within the Volkswagen Emissions Litigation that provided individual notice to more than 946,000 vehicle owners via first class mail and to more than 855,000 via . A targeted internet campaign further enhanced the notice effort. In re: Volkswagen Clean Diesel Marketing, Sales Practices and Product Liability Litigation (Bosch Settlement), MDL No (N.D. Cal.). Hilsoft designed and implemented an extensive settlement Notice Plan for a class period spanning more than 40 years for smokers of light cigarettes. The Notice Plan delivered a measured reach of approximately 87.8% of Arkansas Adults 25+ with a frequency of 8.9 times and approximately 91.1% of Arkansas Adults 55+ with a frequency of 10.8 times. Hispanic newspaper notice, an informational release, radio PSAs, sponsored search listings and a case website further enhanced reach. Miner v. Philip Morris USA, Inc., No. 60CV (Ark. Cir.). One of the largest claim deadline notice campaigns ever implemented, for BP s $7.8 billion settlement claim deadline relating to the Deepwater Horizon oil spill. Hilsoft Notifications designed and implemented the claim deadline notice program, which resulted in a combined measurable paid print, television, radio and Internet effort that reached in excess of 90% of adults aged 18+ in the 26 identified DMAs covering the Gulf Coast Areas an average of 5.5 times each. In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, MDL No (E.D. La.). Large asbestos bar date notice effort, which included individual notice, national consumer publications, hundreds of local and national newspapers, Spanish newspapers, union labor publications, and digital media to reach the target audience. In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bar Date Notice), (CSS) (Bankr. D. Del.). Landmark $6.05 billion settlement reached by Visa and MasterCard. The intensive notice program involved over 19.8 million direct mail notices to class members together with insertions in over 1,500 newspapers, consumer magazines, national business publications, trade & specialty publications, and language & ethnic targeted publications. Hilsoft also implemented an extensive online notice campaign with banner notices, which generated more than 770 million adult impressions, a case website in eight languages, and acquisition of sponsored search listings to facilitate locating the website. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL No (E.D.N.Y.). PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA T INFO@HILSOFT.COM

117 BP s $7.8 billion settlement of claims related to the Deepwater Horizon oil spill emerged from possibly the most complex class action in U.S. history. Hilsoft Notifications drafted and opined on all forms of notice. The 2012 notice program designed by Hilsoft reached at least 95% Gulf Coast region adults via television, radio, newspapers, consumer publications, trade journals, digital media and individual notice. In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, MDL No (E.D. La.). Momentous injunctive settlement reached by American Express regarding merchant payment card processing. The notice program provided extensive individual notice to more than 3.8 million merchants as well as coverage in national and local business publications, retail trade publications and placement in the largest circulation newspapers in each of the U.S. territories and possessions. In re American Express Anti-Steering Rules Antitrust Litigation (II), MDL No (E.D.N.Y.) ( Italian Colors ). Overdraft fee class actions have been brought against nearly every major U.S. commercial bank. For related settlements, Hilsoft Notifications has developed programs that integrate individual notice and paid media efforts. PNC, Citizens, TD Bank, Fifth Third, Harris Bank M&I, Comerica Bank, Susquehanna Bank, Capital One, M&T Bank and Synovus are among the more than 20 banks that have retained Hilsoft. In re Checking Account Overdraft Litigation, MDL No (S.D. Fla.). Possibly the largest data breach in U.S. history with approximately 130 million credit and debit card numbers stolen. In re Heartland Data Security Breach Litigation, MDL No (S.D. Tex.) Largest and most complex class action in Canadian history. Designed and implemented groundbreaking notice to disparate, remote aboriginal people in the multi-billion dollar settlement. In re Residential Schools Class Action Litigation, 00-CV CPA (Ont. Super. Ct.). Extensive point of sale notice program of a settlement providing payments up to $100,000 related to Chinese drywall 100 million notices distributed to Lowe s purchasers during a six-week period. Vereen v. Lowe s Home Centers, SU10-CV-2267B (Ga. Super. Ct.). Largest discretionary class action notice campaign involving virtually every adult in the U.S. for the settlement. In re Trans Union Corp. Privacy Litigation, MDL No (N.D. Ill.). Most complex national data theft class action settlement involving millions of class members. Lockwood v. Certegy Check Services, Inc., 8:07-cv-1434-T-23TGW (M.D. Fla.). Largest combined U.S. and Canadian retail consumer security breach notice program. In re TJX Companies, Inc., Customer Data Security Breach Litigation, MDL No (D. Mass.). Most comprehensive notice ever in a securities class action for the $1.1 billion settlement of In re Royal Ahold Securities and ERISA Litigation, MDL No (D. Md.). Most complex worldwide notice program in history. Designed and implemented all U.S. and international media notice with 500+ publications in 40 countries and 27 languages for $1.25 billion settlement. In re Holocaust Victims Assets, Swiss Banks, No. CV (E.D.N.Y.). Largest U.S. claim program to date. Designed and implemented a notice campaign for the $10 billion program. Tobacco Farmer Transition Program, (U.S. Dept. of Ag.). Multi-national claims bar date notice to asbestos personal injury claimants. Opposing notice expert s reach methodology challenge rejected by court. In re Babcock & Wilcox Co, No (E.D. La.). PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

118 LEGAL NOTICING EXPERTS Cameron Azari, Esq., Director of Legal Notice Cameron Azari, Esq. has more than 17 years of experience in the design and implementation of legal notification and claims administration programs. He is a nationally recognized expert in the creation of class action notification campaigns in compliance with Fed R. Civ. P. 23(c)(2) (d)(2) and (e) and similar state class action statutes. Cameron has been responsible for hundreds of legal notice and advertising programs. During his career, he has been involved in an array of high profile class action matters, including In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MasterCard & Visa), In re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, Heartland Payment Systems, In re: Checking Account Overdraft Litigation, Lowe s Home Centers, Department of Veterans Affairs (VA), and In re Residential Schools Class Action Litigation. He is an active author and speaker on a broad range of legal notice and class action topics ranging from amendments to FRCP Rule 23 to noticing, response rates and optimizing settlement effectiveness. Cameron is an active member of the Oregon State Bar. He received his B.S. from Willamette University and his J.D. from Northwestern School of Law at Lewis and Clark College. Cameron can be reached at caza@legalnotice.com. Lauran Schultz, Executive Director Lauran Schultz consults extensively with clients on notice adequacy and innovative legal notice programs. Lauran has more than 20 years of experience as a professional in the marketing and advertising field, specializing in legal notice and class action administration for the past seven years. High profile actions he has been involved in include companies such as BP, Bank of America, Fifth Third Bank, Symantec Corporation, Lowe s Home Centers, First Health, Apple, TJX, CNA and Carrier Corporation. Prior to joining Epiq Systems in 2005, Lauran was a Senior Vice President of Marketing at National City Bank in Cleveland, Ohio. Lauran s education includes advanced study in political science at the University of Wisconsin-Madison along with a Ford Foundation fellowship from the Social Science Research Council and American Council of Learned Societies. Lauran can be reached at lschultz@hilsoft.com. ARTICLES AND PRESENTATIONS Cameron Azari Co-Author, A Practical Guide to Chapter 11 Bankruptcy Publication Notice. E-book, published, May Cameron Azari Featured Speaker, Proposed Changes to Rule 23 Notice and Scrutiny of Claim Filing Rates, DC Consumer Class Action Lawyers Luncheon, December 6, Cameron Azari Speaker, 2016 Cybersecurity & Privacy Summit. Moving From Issue Spotting To Implementing a Mature Risk Management Model. King & Spalding, Atlanta, GA, April 25, Cameron Azari Speaker, Live Cyber Incident Simulation Exercise. Advisen s Cyber Risk Insights Conference, London, UK, February 10, Cameron Azari Speaker, Pitfalls of Class Action Notice and Claims Administration. PLI's Class Action Litigation 2014 Conference, New York, NY, July 9, Cameron Azari Co-Author, What You Need to Know About Frequency Capping In Online Class Action Notice Programs. Class Action Litigation Report, June Cameron Azari Speaker, Class Settlement Update Legal Notice and Court Expectations. PLI's 19th Annual Consumer Financial Services Institute Conference, New York, NY, April 7-8, 2014 and Chicago, IL, April 28-29, Cameron Azari Speaker, Legal Notice in Consumer Finance Settlements - Recent Developments. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January 29-30, Cameron Azari Speaker, Legal Notice in Building Products Cases. HarrisMartin s Construction Product Litigation Conference, Miami, FL, October 25, PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

119 Cameron Azari Co-Author, Class Action Legal Noticing: Plain Language Revisited. Law360, April Cameron Azari Speaker, Legal Notice in Consumer Finance Settlements Getting your Settlement Approved. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January 31-February 1, Cameron Azari Speaker, Perspectives from Class Action Claims Administrators: Notices and Response Rates. CLE International s 8 th Annual Class Actions Conference, Los Angeles, CA, May 17-18, Cameron Azari Speaker, Class Action Litigation Trends: A Look into New Cases, Theories of Liability & Updates on the Cases to Watch. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January 26-27, Lauran Schultz Speaker, Legal Notice Best Practices: Building a Workable Settlement Structure. CLE International s 7 th Annual Class Action Conference, San Francisco, CA, May Cameron Azari Speaker, Data Breaches Involving Consumer Financial Information: Litigation Exposures and Settlement Considerations. ACI s Consumer Finance Class Actions and Litigation, New York, NY, January Cameron Azari Speaker, Notice in Consumer Class Actions: Adequacy, Efficiency and Best Practices. CLE International s 5 th Annual Class Action Conference: Prosecuting and Defending Complex Litigation, San Francisco, CA, Lauran Schultz Speaker, Efficiency and Adequacy Considerations in Class Action Media Notice Programs. Chicago Bar Association, Chicago, IL, Cameron Azari Author, Clearing the Five Hurdles of - Delivery of Class Action Legal Notices. Thomson Reuters Class Action Litigation Reporter, June Cameron Azari Speaker, Planning for a Smooth Settlement. ACI: Class Action Defense Complex Settlement Administration for the Class Action Litigator, Phoenix, AZ, Cameron Azari Speaker, Noticing and Response Rates in Class Action Settlements Class Action Bar Gathering, Vancouver, British Columbia, Cameron Azari Speaker, Structuring a Litigation Settlement. CLE International s 3rd Annual Conference on Class Actions, Los Angeles, CA, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Skadden Arps Slate Meagher & Flom, LLP, New York, NY, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Bridgeport Continuing Legal Education, Class Action and the UCL, San Diego, CA, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Stoel Rives litigation group, Portland, OR / Seattle, WA / Boise, ID / Salt Lake City, UT, Cameron Azari Speaker, Notice and Response Rates in Class Action Settlements Stroock & Stroock & Lavan litigation group, Los Angeles, CA, Cameron Azari Author, Twice the Notice or No Settlement. Current Developments Issue II, August Cameron Azari Speaker, A Scientific Approach to Legal Notice Communication Weil Gotshal litigation group, New York, NY, PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

120 JUDICIAL COMMENTS Judge Charles R. Breyer, In re: Volkswagen Clean Diesel Marketing, Sales Practices and Products Liability Litigation (May 17, 2017) MDL No (N.D. Cal.): The Court is satisfied that the Notice Program was reasonably calculated to notify Class Members of the proposed Settlement. The Notice apprise[d] interested parties of the pendency of the action and afford[ed] them an opportunity to present their objections. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indeed, the Notice Administrator reports that the notice delivery rate of 97.04% exceed[ed] the expected range and is indicative of the extensive address updating and r ing protocols used. (Dkt. No ) Judge Joseph F. Bataillon, Klug v. Watts Regulator Company (April 13, 2017) No. 8:15-cv JFB-FG3 (D. Neb.): The court finds that the notice to the Settlement Class of the pendency of the Class Action and of this settlement, as provided by the Settlement Agreement and by the Preliminary Approval Order dated December 7, 2017, constituted the best notice practicable under the circumstances to all persons and entities within the definition of the Settlement Class, and fully complied with the requirements of Federal Rules of Civil Procedure Rule 23 and due process. Due and sufficient proof of the execution of the Notice Plan as outlined in the Preliminary Approval Order has been filed. Judge Yvonne Gonzales Rogers, Bias v. Wells Fargo & Company, et al. (April 13, 2017) No. 4:12-cv YGR (N.D. Cal.): The form, content, and method of dissemination of Notice of Settlement given to the Settlement Class was adequate and reasonable and constituted the best notice practicable under the circumstances, including both individual notice to all Settlement Class Members who could be identified through reasonable effort and publication notice. Notice of Settlement, as given, complied with the requirements of Rule 23 of the Federal Rules of Civil Procedure, satisfied the requirements of due process, and constituted due and sufficient notice of the matters set forth herein. Notice of the Settlement was provided to the appropriate regulators pursuant to the Class Action Fairness Act, 28 U.S.C. 1715(c)(1). Judge Carlos Murguia, Whitton v. Deffenbaugh Industries, Inc., et al (December 14, 2016) No. 2:12-cv (D. Kan.) and Gary, LLC v. Deffenbaugh Industries, Inc., et al (December 14, 2016) No. 2:13-cv-2634 (D. Kan.): The Court determines that the Notice Plan as implemented was reasonably calculated to provide the best notice practicable under the circumstances and contained all required information for members of the proposed Settlement Class to act to protect their interests. The Court also finds that Class Members were provided an adequate period of time to receive Notice and respond accordingly. Judge Yvette Kane, In re: Shop-Vac Marketing and Sales Practices Litigation (December 9, 2016) MDL No (M.D. Pa.): The Court hereby finds and concludes that members of the Settlement Class have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. 1715, and all other applicable laws. Judge Timothy D. Fox, Miner v. Philip Morris USA, Inc. (November 21, 2016) No. 60CV (Ark. Cir.): The Court finds that the Settlement Notice provided to potential members of the Class constituted the best and most practicable notice under the circumstances, thereby complying fully with due process and Rule 23 of the Arkansas Rules of Civil Procedure. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

121 Judge Eileen Bransten, In re: HSBC Bank USA, N.A., Checking Account Overdraft Litigation (October 13, 2016) No /2011 (Sup. Ct. N.Y.): This Court finds that the Notice Program and the Notice provided to Settlement Class members fully satisfied the requirements of constitutional due process, the N.Y. C.P.L.R., and any other applicable laws, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all persons entitled thereto. Judge Jerome B. Simandle, In re: Caterpillar, Inc. C13 and C15 Engine Products Liability Litigation (September 20, 2016) MDL No (D. N.J.): The Court hereby finds that the Notice provided to the Settlement Class constituted the best notice practicable under the circumstances. Said Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the terms of the Settlement Agreement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Fed. R. Civ. P. 23, requirements of due process and any other applicable law. Judge Marcia G. Cooke, Chimeno-Buzzi v. Hollister Co. and Abercrombie & Fitch Co. (April 11, 2016) No (S.D. Fla.): Pursuant to the Court s Preliminary Approval Order, the Settlement Administrator, Epiq Systems, Inc. [Hilsoft Notifications], has complied with the approved notice process as confirmed in its Declaration filed with the Court on March 23, The Court finds that the notice process was designed to advise Class Members of their rights. The form and method for notifying Class Members of the settlement and its terms and conditions was in conformity with this Court s Preliminary Approval Order, constituted the best notice practicable under the circumstances, and satisfied the requirements of Federal Rule of Civil Procedure 23(c)(2)(B), the Class Action Fairness Act of 2005 ( CAFA ), 28 U.S.C. 1715, and due process under the United States Constitution and other applicable laws. Judge Christopher S. Sontchi, In re: Energy Future Holdings Corp, et al., (July 30, 2015) (CSS) (Bankr. D. Del.): Notice of the Asbestos Bar Date as set forth in this Asbestos Bar Date Order and in the manner set forth herein constitutes adequate and sufficient notice of the Asbestos Bar Date and satisfies the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. Judge David C. Norton, In re: MI Windows and Doors Inc. Products Liability Litigation (July 22, 2015) MDL No. 2333, No. 2:12-mn (D. S.C.): The court finds that the Notice Plan, as described in the Settlement and related declarations, has been faithfully carried out and constituted the best practicable notice to Class Members under the circumstances of this Action, and was reasonable and constituted due, adequate, and sufficient notice to all Persons entitled to be provided with Notice. The court also finds that the Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of: (1) the pendency of this class action; (2) their right to exclude themselves from the Settlement Class and the proposed Settlement; (3) their right to object to any aspect of the proposed Settlement (including final certification of the Settlement Class, the fairness, reasonableness, or adequacy of the proposed Settlement, the adequacy of the Settlement Class s representation by Named Plaintiffs or Class Counsel, or the award of attorney s and representative fees); (4) their right to appear at the fairness hearing (either on their own or through counsel hired at their own expense); and (5) the binding and preclusive effect of the orders and Final Order and Judgment in this Action, whether favorable or unfavorable, on all Persons who do not request exclusion from the Settlement Class. As such, the court finds that the Notice fully satisfied the requirements of the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 23(c)(2) and (e), the United States Constitution (including the Due Process Clause), the rules of this court, and any other applicable law, and provided sufficient notice to bind all Class Members, regardless of whether a particular Class Member received actual notice. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

122 Judge Robert W. Gettleman, Adkins v. Nestle Purina PetCare Company, et al., (June 23, 2015) No. 12-cv-2871 (N.D. Ill.): Notice to the Settlement Class and other potentially interested parties has been provided in accordance with the notice requirements specified by the Court in the Preliminary Approval Order. Such notice fully and accurately informed the Settlement Class members of all material elements of the proposed Settlement and of their opportunity to object or comment thereon or to exclude themselves from the Settlement; provided Settlement Class Members adequate instructions and a variety of means to obtain additional information; was the best notice practicable under the circumstances; was valid, due, and sufficient notice to all Settlement Class members; and complied fully with the laws of the State of Illinois, Federal Rules of Civil Procedure, the United States Constitution, due process, and other applicable law. Judge James Lawrence King, Steen v. Capital One, N.A. (May 22, 2015) No. 2:10-cv JCZ-KWR (E.D. La.) and No. 1:10-cv JLK (S.D. Fla.) as part of In Re: Checking Account Overdraft Litigation, MDL 2036 (S.D. Fla.) The Court finds that the Settlement Class Members were provided with the best practicable notice; the notice was reasonably calculated, under [the] circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'' Shutts, 472 U.S. at 812 (quoting Mullane, 339 U.S. at ). This Settlement with Capital One was widely publicized, and any Settlement Class Member who wished to express comments or objections had ample opportunity and means to do so. Azari Decl Judge Rya W. Zobel, Gulbankian et al. v. MW Manufacturers, Inc., (December 29, 2014) No. 1:10-cv RWZ (D. Mass.): This Court finds that the Class Notice was provided to the Settlement Class consistent with the Preliminary Approval Order and that it was the best notice practicable and fully satisfied the requirements of the Federal Rules of Civil Procedure, due process, and applicable law. The Court finds that the Notice Plan that was implemented by the Claims Administrator satisfies the requirements of FED. R. CIV. P. 23, 28 U.S.C. 1715, and Due Process, and is the best notice practicable under the circumstances. The Notice Plan constituted due and sufficient notice of the Settlement, the Final Approval Hearing, and the other matters referred to in the notices. Proof of the giving of such notices has been filed with the Court via the Azari Declaration and its exhibits. Judge Edward J. Davila, Rose v. Bank of America Corporation, and FIA Card Services, N.A., (August 29, 2014) No. 5:11-CV EJD; 5:12-CV EJD (N.D. Cal.): The Court finds that the notice was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of this action, all material elements of the Settlement, the opportunity for Settlement Class Members to exclude themselves from, object to, or comment on the settlement and to appear at the final approval hearing. The notice was the best notice practicable under the circumstances, satisfying the requirements of Rule 23(c)(2)(B); provided notice in a reasonable manner to all class members, satisfying Rule 23(e)(1)(B); was adequate and sufficient notice to all Class Members; and, complied fully with the laws of the United States and of the Federal Rules of Civil Procedure, due process and any other applicable rules of court. Judge James A. Robertson, II, Wong et al. v. Alacer Corp. (June 27, 2014) No. CGC (Cal. Super. Ct.): Notice to the Settlement Class has been provided in accordance with the Preliminary Approval Order. Based on the Declaration of Cameron Azari dated March 7, 2014, such Class Notice has been provided in an adequate and sufficient manner, constitutes the best notice practicable under the circumstances and satisfies the requirements of California Civil Code Section 1781, California Civil Code of Civil Procedure Section 382, Rules of the California Rules of Court, and due process. Judge John Gleeson, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, (December 13, 2013) No. 1:05-cv (E.D. NY.): The Class Administrator notified class members of the terms of the proposed settlement through a mailed notice and publication campaign that included more than 20 million mailings and publication in more than 400 publications. The notice here meets the requirements of due process and notice standards The objectors complaints provide no reason to conclude that the purposes and requirements of a notice to a class were not met here. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

123 Judge Lance M. Africk, Evans, et al. v. TIN, Inc., et al, (July 7, 2013) No. 2:11-cv (E.D. La.): The Court finds that the dissemination of the Class Notice as described in Notice Agent Lauran Schultz s Declaration: (a) constituted the best practicable notice to Class Members under the circumstances; (b) constituted notice that was reasonably calculated, under the circumstances ; (c) constituted notice that was reasonable, due, adequate, and sufficient; and (d) constituted notice that fully satisfied all applicable legal requirements, including Rules 23(c)(2)(B) and (e)(1) of the Federal Rules of Civil Procedure, the United States Constitution (including Due Process Clause), the Rules of this Court, and any other applicable law, as well as complied with the Federal Judicial Center s illustrative class action notices. Judge Edward M. Chen, Marolda v. Symantec Corporation, (April 5, 2013) No. 08-cv (N.D. Cal.): Approximately 3.9 million notices were delivered by to class members, but only a very small percentage objected or opted out... The Court... concludes that notice of settlement to the class was adequate and satisfied all requirements of Federal Rule of Civil Procedure 23(e) and due process. Class members received direct notice by , and additional notice was given by publication in numerous widely circulated publications as well as in numerous targeted publications. These were the best practicable means of informing class members of their rights and of the settlement s terms. Judge Ann D. Montgomery, In re Zurn Pex Plumbing Products Liability Litigation, (February 27, 2013) No. 0:08cv01958 (D. Minn.): The parties retained Hilsoft Notifications ("Hilsoft"), an experienced class-notice consultant, to design and carry out the notice plan. The form and content of the notices provided to the class were direct, understandable, and consistent with the "plain language" principles advanced by the Federal Judicial Center. The notice plan's multi-faceted approach to providing notice to settlement class members whose identity is not known to the settling parties constitutes "the best notice [*26] that is practicable under the circumstances" consistent with Rule 23(c)(2)(B). Magistrate Judge Stewart, Gessele et al. v. Jack in the Box, Inc., (January 28, 2013) No. 3:10-cv-960 (D. Or.): Moreover, plaintiffs have submitted [a] declaration from Cameron Azari (docket #129), a nationally recognized notice expert, who attests that fashioning an effective joint notice is not unworkable or unduly confusing. Azari also provides a detailed analysis of how he would approach fashioning an effective notice in this case. Judge Carl J. Barbier, In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 (Medical Benefits Settlement), (January 11, 2013) MDL No (E.D. La.): Through August 9, 2012, 366,242 individual notices had been sent to potential [Medical Benefits] Settlement Class Members by postal mail and 56,136 individual notices had been ed. Only 10,700 mailings or 3.3% were known to be undeliverable. (Azari Decl. 8, 9.) Notice was also provided through an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, highly-trafficked websites, and Sunday local newspapers (via newspaper supplements). Notice was also provided in non-measured trade, business and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The combined measurable paid print, television, radio, and Internet effort reached an estimated 95% of adults aged 18+ in the Gulf Coast region an average of 10.3 times each, and an estimated 83% of all adults in the United States aged 18+ an average of 4 times each. (Id. 8, 10.) All notice documents were designed to be clear, substantive, and informative. (Id. 5.) The Court received no objections to the scope or content of the [Medical Benefits] Notice Program. (Azari Supp. Decl. 12.) The Court finds that the Notice and Notice Plan as implemented satisfied the best notice practicable standard of Rule 23(c) and, in accordance with Rule 23(e)(1), provided notice in a reasonable manner to Class Members who would be bound by the Settlement, including individual notice to all Class Members who could be identified through reasonable effort. Likewise, the Notice and Notice Plan satisfied the requirements of Due Process. The Court also finds the Notice and Notice Plan satisfied the requirements of CAFA. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

124 Judge Carl J. Barbier, In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 (Economic and Property Damages Settlement), (December 21, 2012) MDL No (E.D. La.): The Court finds that the Class Notice and Class Notice Plan satisfied and continue to satisfy the applicable requirements of Federal Rule of Civil Procedure 23(c)(2)(b) and 23(e), the Class Action Fairness Act (28 U.S.C et seq.), and the Due Process Clause of the United States Constitution (U.S. Const., amend. V), constituting the best notice that is practicable under the circumstances of this litigation. The notice program surpassed the requirements of Due Process, Rule 23, and CAFA. Based on the factual elements of the Notice Program as detailed below, the Notice Program surpassed all of the requirements of Due Process, Rule 23, and CAFA. The Notice Program, as duly implemented, surpasses other notice programs that Hilsoft Notifications has designed and executed with court approval. The Notice Program included notification to known or potential Class Members via postal mail and ; an extensive schedule of local newspaper, radio, television and Internet placements, well-read consumer magazines, a national daily business newspaper, and Sunday local newspapers. Notice placements also appeared in non-measured trade, business, and specialty publications, African-American, Vietnamese, and Spanish language publications, and Cajun radio programming. The Notice Program met the objective of reaching the greatest possible number of class members and providing them with every reasonable opportunity to understand their legal rights. See Azari Decl. 8, 15, 68. The Notice Program was substantially completed on July 15, 2012, allowing class members adequate time to make decisions before the opt-out and objections deadlines. The media notice effort alone reached an estimated 95% of adults in the Gulf region an average of 10.3 times each, and an estimated 83% of all adults in the United States an average of 4 times each. These figures do not include notice efforts that cannot be measured, such as advertisements in trade publications and sponsored search engine listings. The Notice Program fairly and adequately covered and notified the class without excluding any demographic group or geographic area, and it exceeded the reach percentage achieved in most other court-approved notice programs. Judge Alonzo Harris, Opelousas General Hospital Authority, A Public Trust, D/B/A Opelousas General Health System and Arklamiss Surgery Center, L.L.C. v. FairPay Solutions, Inc., (August 17, 2012) No. 12-C-1599 (27 th Jud. D. Ct. La.): Notice given to Class Members and all other interested parties pursuant to this Court s order of April 18, 2012, was reasonably calculated to apprise interested parties of the pendency of the action, the certification of the Class as Defined for settlement purposes only, the terms of the Settlement Agreement, Class Members rights to be represented by private counsel, at their own costs, and Class Members rights to appear in Court to have their objections heard, and to afford persons or entities within the Class Definition an opportunity to exclude themselves from the Class. Such notice complied with all requirements of the federal and state constitutions, including the Due Process Clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Class as Defined. Judge James Lawrence King, In re Checking Account Overdraft Litigation (IBERIABANK), (April 26, 2012) MDL No (S.D. Fla): The Court finds that the Notice previously approved was fully and properly effectuated and was sufficient to satisfy the requirements of due process because it described the substantive claims... [and] contained information reasonably necessary to [allow Settlement Class Members to] make a decision to remain a class member and be bound by the final judgment.'' In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, (5th Cir. 1977). The Notice, among other things, defined the Settlement Class, described the release as well as the amount and method and manner of proposed distribution of the Settlement proceeds, and informed Settlement Class Members of their rights to opt-out or object, the procedures for doing so, and the time and place of the Final Approval Hearing. The Notice also informed Settlement Class Members that a class judgment would bind them unless they opted out, and told them where they could obtain more information, such as access to a full copy of the Agreement. Further, the Notice described in summary form the fact that Class Counsel would be seeking attorneys' fees of up to 30 percent of the Settlement. Settlement Class Members were provided with the best practicable notice reasonably calculated, under [the] circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections.'' Mullane, 339 U.S. at 314. The content of the Notice fully complied with the requirements of Rule 23. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

125 Judge Bobby Peters, Vereen v. Lowe s Home Centers, (April 13, 2012) SU10-CV-2267B (Ga. Super. Ct.): The Court finds that the Notice and the Notice Plan was fulfilled, in accordance with the terms of the Settlement Agreement, the Amendment, and this Court s Preliminary Approval Order and that this Notice and Notice Plan constituted the best practicable notice to Class Members under the circumstances of this action, constituted due and sufficient Notice of the proposed Settlement to all persons entitled to participate in the proposed Settlement, and was in full compliance with Ga. Code Ann and the constitutional requirements of due process. Extensive notice was provided to the class, including point of sale notification, publication notice and notice by first-class mail for certain potential Class Members. The affidavit of the notice expert conclusively supports this Court s finding that the notice program was adequate, appropriate, and comported with Georgia Code Ann (b)(2), the Due Process Clause of the Constitution, and the guidance for effective notice articulate in the FJC s Manual for Complex Litigation, 4 th. Judge Lee Rosenthal, In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, (March 2, 2012) MDL No (S.D. Tex.): The notice that has been given clearly complies with Rule 23(e)(1) s reasonableness requirement Hilsoft Notifications analyzed the notice plan after its implementation and conservatively estimated that notice reached 81.4 percent of the class members. (Docket Entry No. 106, 32). Both the summary notice and the detailed notice provided the information reasonably necessary for the presumptive class members to determine whether to object to the proposed settlement. See Katrina Canal Breaches, 628 F.3d at 197. Both the summary notice and the detailed notice were written in easy-to-understand plain English. In re Black Farmers Discrimination Litig., F. Supp. 2d, 2011 WL , at *23 (D.D.C. 2011); accord AGGREGATE LITIGATION 3.04(c).15 The notice provided satisf[ies] the broad reasonableness standards imposed by due process and Rule 23. Katrina Canal Breaches, 628 F.3d at 197. Judge John D. Bates, Trombley v. National City Bank, (December 1, 2011) 1:10-CV (D.D.C.) The form, content, and method of dissemination of Notice given to the Settlement Class were in full compliance with the Court s January 11, 2011 Order, the requirements of Fed. R. Civ. P. 23(e), and due process. The notice was adequate and reasonable, and constituted the best notice practicable under the circumstances. In addition, adequate notice of the proceedings and an opportunity to participate in the final fairness hearing were provided to the Settlement Class. Judge Robert M. Dow, Jr., Schulte v. Fifth Third Bank, (July 29, 2011) No. 1:09-cv-6655 (N.D. Ill.): The Court has reviewed the content of all of the various notices, as well as the manner in which Notice was disseminated, and concludes that the Notice given to the Class fully complied with Federal Rule of Civil Procedure 23, as it was the best notice practicable, satisfied all constitutional due process concerns, and provided the Court with jurisdiction over the absent Class Members. Judge Ellis J. Daigle, Williams v. Hammerman & Gainer Inc., (June 30, 2011) No. 11-C-3187-B (27th Jud. D. Ct. La.): Notices given to Settlement Class members and all other interested parties throughout this proceeding with respect to the certification of the Settlement Class, the proposed settlement, and all related procedures and hearings including, without limitation, the notice to putative Settlement Class members and others more fully described in this Court s order of 30 th day of March 2011 were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination, to apprise interested parties and members of the Settlement Class of the pendency of the action, the certification of the Settlement Class, the Settlement Agreement and its contents, Settlement Class members right to be represented by private counsel, at their own cost, and Settlement Class members right to appear in Court to have their objections heard, and to afford Settlement Class members an opportunity to exclude themselves from the Settlement Class. Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedures, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

126 Judge Stefan R. Underhill, Mathena v. Webster Bank, N.A., (March 24, 2011) No. 3:10-cv-1448 (D. Conn.): The form, content, and method of dissemination of Notice given to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process. Judge Ted Stewart, Miller v. Basic Research, LLC, (September 2, 2010) No. 2:07-cv-871 (D. Utah): Plaintiffs state that they have hired a firm specializing in designing and implementing large scale, unbiased, legal notification plans. Plaintiffs represent to the Court that such notice will include: 1) individual notice by electronic mail and/or first-class mail sent to all reasonably identifiable Class members; 2) nationwide paid media notice through a combination of print publications, including newspapers, consumer magazines, newspaper supplements and the Internet; 3) a neutral, Court-approved, informational press release; 4) a neutral, Court-approved Internet website; and 5) a toll-free telephone number. Similar mixed media plans have been approved by other district courts post class certification. The Court finds this plan is sufficient to meet the notice requirement. Judge Sara Loi, Pavlov v. Continental Casualty Co., (October 7, 2009) No. 5:07cv2580 (N.D. Ohio): As previously set forth in this Memorandum Opinion, the elaborate notice program contained in the Settlement Agreement provides for notice through a variety of means, including direct mail to each class member, notice to the United States Attorney General and each State, a toll free number, and a website designed to provide information about the settlement and instructions on submitting claims. With a 99.9% effective rate, the Court finds that the notice program constituted the best notice that is practicable under the circumstances, Fed. R. Civ. P. 23(c)(2)(B), and clearly satisfies the requirements of Rule 23(c)(2)(B). Judge James Robertson, In re Department of Veterans Affairs (VA) Data Theft Litigation, (September 23, 2009) MDL No (D.D.C.): The Notice Plan, as implemented, satisfied the requirements of due process and was the best notice practicable under the circumstances. The Notice Plan was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the action, the terms of the Settlement, and their right to appear, object to or exclude themselves from the Settlement. Further, the notice was reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notice. Judge Lisa F. Chrystal, Little v. Kia Motors America, Inc., (August 27, 2009) No. UNN-L (N.J. Super. Ct.): The Court finds that the manner and content of the notices for direct mailing and for publication notice, as specified in the Notice Plan (Exhibit 2 to the Affidavit of Lauran R. Schultz), provides the best practicable notice of judgment to members of the Plaintiff Class. Judge Barbara Crowder, Dolen v. ABN AMRO Bank N.V., (March 23, 2009) No. 01-L-454, 01-L-493 (3rd Jud. Cir. Ill.): The Court finds that the Notice Plan is the best notice practicable under the circumstances and provides the Eligible Members of the Settlement Class sufficient information to make informed and meaningful decisions regarding their options in this Litigation and the effect of the Settlement on their rights. The Notice Plan further satisfies the requirements of due process and 735 ILCS 5/ That Notice Plan is approved and accepted. This Court further finds that the Notice of Settlement and Claim Form comply with 735 ILCS 5/2-803 and are appropriate as part of the Notice Plan and the Settlement, and thus they are hereby approved and adopted. This Court further finds that no other notice other than that identified in the Notice Plan is reasonably necessary in this Litigation. Judge Robert W. Gettleman, In re Trans Union Corp., (September 17, 2008) MDL No (N.D. Ill.): The Court finds that the dissemination of the Class Notice under the terms and in the format provided for in its Preliminary Approval Order constitutes the best notice practicable under the circumstances, is due and sufficient notice for all purposes to all persons entitled to such notice, and fully satisfies the requirements of the Federal Rules of Civil Procedure, the requirements of due process under the Constitution of the United States, and any other applicable law Accordingly, all objections are hereby OVERRULED. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

127 Judge Steven D. Merryday, Lockwood v. Certegy Check Services, Inc., (September 3, 2008) No. 8:07-cv-1434-T- 23TGW (M.D. Fla.): The form, content, and method of dissemination of the notice given to the Settlement Class were adequate and reasonable and constituted the best notice practicable in the circumstances. The notice as given provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions of the Settlement Agreement, and these proceedings to all persons entitled to such notice, and the notice satisfied the requirements of Rule 23, Federal Rules of Civil Procedure, and due process. Judge William G. Young, In re TJX Companies, (September 2, 2008) MDL No (D. Mass.): The form, content, and method of dissemination of notice provided to the Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The Notice, as given, provided valid, due, and sufficient notice of the proposed settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings to all Persons entitled to such notice, and said Notice fully satisfied the requirements of Fed. R. Civ. P. 23 and due process. Judge Philip S. Gutierrez, Shaffer v. Continental Casualty Co., (June 11, 2008) SACV PSG (PJWx) (C.D. Cal.): was reasonable and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice; and met all applicable requirements of the Federal Rules of Civil Procedure, the Class Action Fairness Act, the United States Constitution (including the Due Process Clauses), the Rules of the Court, and any other applicable law. Judge Robert L. Wyatt, Gunderson v. AIG Claim Services, Inc., (May 29, 2008) No (14th Jud. D. Ct. La.): Notices given to Settlement Class members were reasonably calculated under all the circumstances and have been sufficient, as to form, content, and manner of dissemination Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due and sufficient notice to all potential members of the Settlement Class. Judge Mary Anne Mason, Palace v. DaimlerChrysler Corp., (May 29, 2008) No. 01-CH (Ill. Cir. Ct.): The form, content, and method of dissemination of the notice given to the Illinois class and to the Illinois Settlement Class were adequate and reasonable, and constituted the best notice practicable under the circumstances. The notice, as given, provided valid, due, and sufficient notice of the proposed Settlement, the terms and conditions set forth in the Settlement Agreement, and these proceedings, to all Persons entitled to such notice, and said notice fully satisfied the requirements of due process and complied with 735 ILCS 5/2-803 and 5/ Judge David De Alba, Ford Explorer Cases, (May 29, 2008) JCCP Nos & 4270 (Cal. Super. Ct.): [T]he Court is satisfied that the notice plan, design, implementation, costs, reach, were all reasonable, and has no reservations about the notice to those in this state and those in other states as well, including Texas, Connecticut, and Illinois; that the plan that was approved submitted and approved, comports with the fundamentals of due process as described in the case law that was offered by counsel. Judge Kirk D. Johnson, Webb v. Liberty Mutual Ins. Co., (March 3, 2008) No. CV (Ark. Cir. Ct.): The Court finds that there was minimal opposition to the settlement. After undertaking an extensive notice campaign to Class members of approximately 10,707 persons, mailed notice reached 92.5% of potential Class members. Judge Carol Crafton Anthony, Johnson v. Progressive Casualty Ins. Co., (December 6, 2007) No. CV (Ark. Cir. Ct.): Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice reached a large majority of the Class members. The Court finds that such notice constitutes the best notice practicable The forms of Notice and Notice Plan satisfy all of the requirements of Arkansas law and due process. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

128 Judge Kirk D. Johnson, Sweeten v. American Empire Insurance Co., (August 20, 2007) No. CV (Ark. Cir. Ct.): The Court does find that all notices required by the Court to be given to class members was done within the time allowed and the manner best calculated to give notice and apprise all the interested parties of the litigation. It was done through individual notice, first class mail, through internet website and the toll-free telephone call center The Court does find that these methods were the best possible methods to advise the class members of the pendency of the action and opportunity to present their objections and finds that these notices do comply with all the provisions of Rule 23 and the Arkansas and United States Constitutions. Judge Robert Wyatt, Gunderson v. F.A. Richard & Associates, Inc., (July 19, 2007) No D (14th Jud. D. Ct. La.): This is the final Order and Judgment regarding the fairness, reasonableness and adequacy. And I am satisfied in all respects regarding the presentation that s been made to the Court this morning in the Class memberships, the representation, the notice, and all other aspects and I m signing that Order at this time. Judge Lewis A. Kaplan, In re Parmalat Securities Litigation, (July 19, 2007) MDL No LAK (S.D.N.Y.): The Court finds that the distribution of the Notice, the publication of the Publication Notice, and the notice methodology met all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution, (including the Due Process clause), the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 78u-4, et seq.) (the PSLRA ), the Rules of the Court, and any other applicable law. Judge Joe Griffin, Beasley v. The Reliable Life Insurance Co., (March 29, 2007) No. CV (Ark. Cir. Ct.): [T]he Court has, pursuant to the testimony regarding the notification requirements, that were specified and adopted by this Court, has been satisfied and that they meet the requirements of due process. They are fair, reasonable, and adequate. I think the method of notification certainly meets the requirements of due process So the Court finds that the notification that was used for making the potential class members aware of this litigation and the method of filing their claims, if they chose to do so, all those are clear and concise and meet the plain language requirements and those are completely satisfied as far as this Court is concerned in this matter. Judge Lewis A. Kaplan, In re Parmalat Securities Litigation, (March 1, 2007) MDL No LAK (S.D.N.Y.): The court approves, as to form and content, the Notice and the Publication Notice, attached hereto as Exhibits 1 and 2, respectively, and finds that the mailing and distribution of the Notice and the publication of the Publication Notice in the manner and the form set forth in Paragraph 6 of this Order meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Securities Exchange Act of 1934, as emended by Section 21D(a)(7) of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. 78u- 4(a)(7), and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons and entities entitled thereto. Judge Anna J. Brown, Reynolds v. The Hartford Financial Services Group, Inc., (February 27, 2007) No. CV BR (D. Or): [T]he court finds that the Notice Program fairly, fully, accurately, and adequately advised members of the Settlement Class and each Settlement Subclass of all relevant and material information concerning the proposed settlement of this action, their rights under Rule 23 of the Federal Rules of Civil Procedure, and related matters, and afforded the Settlement Class with adequate time and an opportunity to file objections to the Settlement or request exclusion from the Settlement Class. The court finds that the Notice Program constituted the best notice practicable under the circumstances and fully satisfied the requirements of Rule 23 and due process. Judge Kirk D. Johnson, Zarebski v. Hartford Insurance Company of the Midwest, (February 13, 2007) No. CV (Ark. Cir. Ct.): Based on the Court s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Class Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminary Approval Order, was the best notice practicable under the circumstances to all members of the Settlement Class. Accordingly, the Class Notice and Claim Form as disseminated are PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

129 finally approved as fair, reasonable, and adequate notice under the circumstances. The Court finds and concludes that due and adequate notice of the pendency of this Action, the Stipulation, and the Final Settlement Hearing has been provided to members of the Settlement Class, and the Court further finds and concludes that the notice campaign described in the Preliminary Approval Order and completed by the parties complied fully with the requirements of Arkansas Rule of Civil Procedure 23 and the requirements of due process under the Arkansas and United States Constitutions. Judge Richard J. Holwell, In re Vivendi Universal, S.A. Securities Litigation, 2007 WL , at *34 (S.D.N.Y.): In response to defendants manageability concerns, plaintiffs have filed a comprehensive affidavit outlining the effectiveness of its proposed method of providing notice in foreign countries. According to this the Court is satisfied that plaintiffs intend to provide individual notice to those class members whose names and addresses are ascertainable, and that plaintiffs proposed form of publication notice, while complex, will prove both manageable and the best means practicable of providing notice. Judge Samuel Conti, Ciabattari v. Toyota Motor Sales, U.S.A., Inc., (November 17, 2006) No. C SC (N.D. Cal.): After reviewing the evidence and arguments presented by the parties the Court finds as follows The class members were given the best notice practicable under the circumstances, and that such notice meets the requirements of the Due Process Clause of the U.S. Constitution, and all applicable statutes and rules of court. Judge Ivan L.R. Lemelle, In re High Sulfur Content Gasoline Prods. Liability Litigation, (November 8, 2006) MDL No (E.D. La.): This Court approved a carefully-worded Notice Plan, which was developed with the assistance of a nationally-recognized notice expert, Hilsoft Notifications The Notice Plan for this Class Settlement was consistent with the best practices developed for modern-style plain English class notices; the Court and Settling Parties invested substantial effort to ensure notice to persons displaced by the Hurricanes of 2005; and as this Court has already determined, the Notice Plan met the requirements of Rule 23 and constitutional due process. Judge Catherine C. Blake, In re Royal Ahold Securities and ERISA Litigation, (November 2, 2006) MDL No (D. Md.): The global aspect of the case raised additional practical and legal complexities, as did the parallel criminal proceedings in another district. The settlement obtained is among the largest cash settlements ever in a securities class action case and represents an estimated 40% recovery of possible provable damages. The notice process appears to have been very successful not only in reaching but also in eliciting claims from a substantial percentage of those eligible for recovery. Judge Elaine E. Bucklo, Carnegie v. Household International, (August 28, 2006) No. 98 C 2178 (N.D. Ill.): [T]he Notice was disseminated pursuant to a plan consisting of first class mail and publication developed by Plaintiff s notice consultant, Hilsoft Notification[s] who the Court recognized as experts in the design of notice plans in class actions. The Notice by first-class mail and publication was provided in an adequate and sufficient manner; constitutes the best notice practicable under the circumstances; and satisfies all requirements of Rule 23(e) and due process. Judge Joe E. Griffin, Beasley v. Hartford Insurance Company of the Midwest, (June 13, 2006) No. CV (Ark. Cir. Ct.): Based on the Court s review of the evidence admitted and argument of counsel, the Court finds and concludes that the Individual Notice and the Publication Notice, as disseminated to members of the Settlement Class in accordance with provisions of the Preliminarily Approval Order, was the best notice practicable under the circumstances and the requirements of due process under the Arkansas and United States Constitutions. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

130 Judge Norma L. Shapiro, First State Orthopedics et al. v. Concentra, Inc., et al., (May 1, 2006) No. 2:05-CV NS (E.D. Pa.): The Court finds that dissemination of the Mailed Notice, Published Notice and Full Notice in the manner set forth here and in the Settlement Agreement meets the requirements of due process and Pennsylvania law. The Court further finds that the notice is reasonable, and constitutes due, adequate, and sufficient notice to all persons entitled to receive notice, is the best practicable notice; and is reasonably calculated, under the circumstances, to apprise members of the Settlement Class of the pendency of the Lawsuit and of their right to object or to exclude themselves from the proposed settlement. Judge Thomas M. Hart, Froeber v. Liberty Mutual Fire Ins. Co., (April 19, 2006) No. 00C15234 (Or. Cir. Ct.): The court has found and now reaffirms that dissemination and publication of the Class Notice in accordance with the terms of the Third Amended Order constitutes the best notice practicable under the circumstances. Judge Catherine C. Blake, In re Royal Ahold Securities and ERISA Litigation, (January 6, 2006) MDL No (D. Md.): I think it s remarkable, as I indicated briefly before, given the breadth and scope of the proposed Class, the global nature of the Class, frankly, that again, at least on a preliminary basis, and I will be getting a final report on this, that the Notice Plan that has been proposed seems very well, very well suited, both in terms of its plain language and in terms of its international reach, to do what I hope will be a very thorough and broad-ranging job of reaching as many of the shareholders, whether individual or institutional, as possibly can be done to participate in what I also preliminarily believe to be a fair, adequate and reasonable settlement. Judge Catherine C. Blake, In re Royal Ahold Securities & ERISA Litigation, 437 F.Supp.2d 467, 472 (D. Md. 2006): The court hereby finds that the Notice and Notice Plan described herein and in the Order dated January 9, 2006 provided Class Members with the best notice practicable under the circumstances. The Notice provided due and adequate notice of these proceedings and the matters set forth herein, including the Settlement and Plan of Allocation, to all persons entitled to such notice, and the Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process. Judge Robert H. Wyatt, Jr., Gray v. New Hampshire Indemnity Co., Inc., (December 19, 2005) No. CV (Ark. Cir. Ct.): Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The Notice contained the essential elements necessary to satisfy due process, including the Settlement Class definition, the identities of the Parties and of their counsel, a summary of the terms of the proposed settlement, Class Counsel s intent to apply for fees, information regarding the manner in which objections could be submitted, and requests for exclusions could be filed. The Notice properly informed Class members of the formula for the distribution of benefits under the settlement Notice was direct mailed to all Class members whose current whereabouts could be identified by reasonable effort. Notice was also effected by publication in many newspapers and magazines throughout the nation, reaching a large majority of the Class members multiple times. The Court finds that such notice constitutes the best notice practicable. Judge Michael J. O Malley, Defrates v. Hollywood Entm t Corp., (June 24, 2005) No. 02 L 707 (Ill. Cir. Ct.): [T]his Court hereby finds that the notice program described in the Preliminary Approval Order and completed by HEC complied fully with the requirements of due process, the Federal Rules of Civil Procedure and all other applicable laws. Judge Wilford D. Carter, Thibodeaux v. Conoco Phillips Co., (May 26, 2005) No F (14 th J.D. Ct. La.): Notice given to Class Members were reasonably calculated under all the circumstances and have been sufficient, both as to the form and content Such notices complied with all requirements of the federal and state constitutions, including the due process clause, and applicable articles of the Louisiana Code of Civil Procedure, and constituted the best notice practicable under the circumstances and constituted due process and sufficient notice to all potential members of the Class as Defined. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

131 Judge Michael Canaday, Morrow v. Conoco Inc., (May 25, 2005) No G (14 th J.D. Ct. La.): The objections, if any, made to due process, constitutionality, procedures, and compliance with law, including, but not limited to, the adequacy of notice and the fairness of the proposed Settlement Agreement, lack merit and are hereby overruled. Judge John R. Padova, Nichols v. SmithKline Beecham Corp., (April 22, 2005) No (E.D. Pa.): Pursuant to the Order dated October 18, 2004, End-Payor Plaintiffs employed Hilsoft Notifications to design and oversee Notice to the End-Payor Class. Hilsoft Notifications has extensive experience in class action notice situations relating to prescription drugs and cases in which unknown class members need to receive notice After reviewing the individual mailed Notice, the publication Notices, the PSAs and the informational release, the Court concludes that the substance of the Notice provided to members of the End-Payor Class in this case was adequate to satisfy the concerns of due process and the Federal Rules. Judge Douglas Combs, Morris v. Liberty Mutual Fire Ins. Co., (February 22, 2005) No. CJ (D. Okla.): I am very impressed that the notice was able to reach be delivered to 97 ½ percent members of the class. That, to me, is admirable. And I m also at the time that this was initially entered, I was concerned about the ability of notice to be understood by a common, nonlawyer person, when we talk about legalese in a court setting. In this particular notice, not only the summary notice but even the long form of the notice were easily understandable, for somebody who could read the English language, to tell them whether or not they had the opportunity to file a claim. Judge Joseph R. Goodwin, In re Serzone Products Liability Litigation, 231 F.R.D. 221, 231 (S.D. W. Va. 2005): The Notice Plan was drafted by Hilsoft Notifications, a Pennsylvania firm specializing in designing, developing, analyzing and implementing large-scale, unbiased legal notification plans. Hilsoft has disseminated class action notices in more than 150 cases, and it designed the model notices currently displayed on the Federal Judicial Center s website as a template for others to follow To enhance consumer exposure, Hilsoft studied the demographics and readership of publications among adults who used a prescription drug for depression in the last twelve months. Consequently, Hilsoft chose to utilize media particularly targeting women due to their greater incidence of depression and heavy usage of the medication. Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice Litigation, (November 24, 2004) MDL No (D. Mass.): After review of the proposed Notice Plan designed by Hilsoft Notifications is hereby found to be the best practicable notice under the circumstances and, when completed, shall constitute due and sufficient notice of the Settlement and the Fairness Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Rule 23 the Federal Rules of Civil Procedure and due process. Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice Litigation, (November 23, 2004) MDL No (D. Mass.): I actually find the [notice] plan as proposed to be comprehensive and extremely sophisticated and very likely be as comprehensive as any plan of its kind could be in reaching those most directly affected. Judge James S. Moody, Jr., Mantzouris v. Scarritt Motor Group Inc., (August 10, 2004) No. 8:03 CV T-30 MSS (M.D. Fla.): Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the members of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement, it is hereby determined that all members of the Class, except for Ms. Gwendolyn Thompson, who was the sole person opting out of the Settlement Agreement, are bound by this Order and Final Judgment entered herein. PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

132 Judge Robert E. Payne, Fisher v. Virginia Electric & Power Co., (July 1, 2004) No. 3:02CV431 (E.D. Va.): The record here shows that the class members have been fully and fairly notified of the existence of the class action, of the issues in it, of the approaches taken by each side in it in such a way as to inform meaningfully those whose rights are affected and to thereby enable them to exercise their rights intelligently The success rate in notifying the class is, I believe, at least in my experience, I share Ms. Kauffman s experience, it is as great as I have ever seen in practicing or serving in this job So I don t believe we could have had any more effective notice. Judge John Kraetzer, Baiz v. Mountain View Cemetery, (April 14, 2004) No (Cal. Super. Ct.): The notice program was timely completed, complied with California Government Code section 6064, and provided the best practicable notice to all members of the Settlement Class under the circumstances. The Court finds that the notice program provided class members with adequate instructions and a variety of means to obtain information pertaining to their rights and obligations under the settlement so that a full opportunity has been afforded to class members and all other persons wishing to be heard The Court has determined that the Notice given to potential members of the Settlement Class fully and accurately informed potential Members of the Settlement Class of all material elements of the proposed settlement and constituted valid, due, and sufficient notice to all potential members of the Settlement Class, and that it constituted the best practicable notice under the circumstances. Hospitality Mgmt. Assoc., Inc. v. Shell Oil Co., 356 S.C. 644, 663, 591 S.E.2d 611, 621 (Sup. Ct. S.C. 2004): Clearly, the Cox court designed and utilized various procedural safeguards to guarantee sufficient notice under the circumstances. Pursuant to a limited scope of review, we need go no further in deciding the Cox court's findings that notice met due process are entitled to deference. Judge Joseph R. Goodwin, In re Serzone Prods. Liability Litigation, 2004 U.S. Dist. LEXIS 28297, at *10 (S.D. W. Va.): The Court has considered the Notice Plan and proposed forms of Notice and Summary Notice submitted with the Memorandum for Preliminary Approval and finds that the forms and manner of notice proposed by Plaintiffs and approved herein meet the requirements of due process and Fed.R.Civ.P. 23(c) and (e), are the best notice practicable under the circumstances, constitute sufficient notice to all persons entitled to notice, and satisfy the Constitutional requirements of notice. Judge James D. Arnold, Cotten v. Ferman Mgmt. Servs. Corp., (November 26, 2003) No (Fla. Cir. Ct.): Due and adequate notice of the proceedings having been given and a full opportunity having been offered to the member of the Class to participate in the Settlement Hearing, or object to the certification of the Class and the Agreement Judge Judith K. Fitzgerald, In re Pittsburgh Corning Corp., (November 26, 2003) No JKF (Bankr. W.D. Pa.): The procedures and form of notice for notifying the holders of Asbestos PI Trust Claims, as described in the Motion, adequately protect the interests of the holders of Asbestos PI Trust Claims in a manner consistent with the principles of due process, and satisfy the applicable requirements of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. Judge Carter Holly, Richison v. American Cemwood Corp., (November 18, 2003) No (Cal. Super. Ct.): As to the forms of Notice, the Court finds and concludes that they fully apprised the Class members of the pendency of the litigation, the terms of the Phase 2 Settlement, and Class members rights and options Not a single Class member out of an estimated 30,000 objected to the terms of the Phase 2 Settlement Agreement, notwithstanding a comprehensive national Notice campaign, via direct mail and publication Notice The notice was reasonable and the best notice practicable under the circumstances, was due, adequate, and sufficient notice to all Class members, and complied fully with the laws of the State of California, the Code of Civil Procedure, due process, and California Rules of Court 1859 and PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

133 Judge Thomas A. Higgins, In re Columbia/HCA Healthcare Corp., (June 13, 2003) MDL No (M.D. Tenn.): Notice of the settlement has been given in an adequate and sufficient manner. The notice provided by mailing the settlement notice to certain class members and publishing notice in the manner described in the settlement was the best practicable notice, complying in all respects with the requirements of due process. Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., 216 F.R.D. 55, 68 (S.D.N.Y. 2003): In view of the extensive notice campaign waged by the defendant, the extremely small number of class members objecting or requesting exclusion from the settlement is a clear sign of strong support for the settlement The notice provides, in language easily understandable to a lay person, the essential terms of the settlement, including the claims asserted who would be covered by the settlement [T]he notice campaign that defendant agreed to undertake was extensive I am satisfied, having reviewed the contents of the notice package, and the extensive steps taken to disseminate notice of the settlement, that the class notice complies with the requirements of Rule 23 (c)(2) and 23(e). In summary, I have reviewed all of the objections, and none persuade me to conclude that the proposed settlement is unfair, inadequate or unreasonable. Judge Edgar E. Bayley, Dimitrios v. CVS, Inc., (November 27, 2002) No ; Walker v. Rite Aid Corp., No ; and Myers v. Rite Aid Corp., No (Pa. Ct. C.P.): The Court specifically finds that: fair and adequate notice has been given to the class, which comports with due process of law. Judge Dewey C. Whitenton, Ervin v. Movie Gallery, Inc., (November 22, 2002) No (Tenn. Ch.): The content of the class notice also satisfied all due process standards and state law requirements The content of the notice was more than adequate to enable class members to make an informed and intelligent choice about remaining in the class or opting out of the class. Judge James R. Williamson, Kline v. The Progressive Corp., (November 14, 2002) No. 01-L-6 (Ill. Cir. Ct.): Notice to the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The notice contained the essential elements necessary to satisfy due process Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (September 13, 2002) No. L (N.J. Super. Ct.): Here, the comprehensive bilingual, English and Spanish, court-approved Notice Plan provided by the terms of the settlement meets due process requirements. The Notice Plan used a variety of methods to reach potential class members. For example, short form notices for print media were placed throughout the United States and in major national consumer publications which include the most widely read publications among Cooper Tire owner demographic groups. Judge Harold Baer, Jr., Thompson v. Metropolitan Life Ins. Co., (September 3, 2002) No. 00 Civ HB (S.D.N.Y.): The Court further finds that the Class Notice and Publication Notice provided in the Settlement Agreement are written in plain English and are readily understandable by Class Members. In sum, the Court finds that the proposed notice texts and methodology are reasonable, that they constitute due, adequate and sufficient notice to all persons entitled to be provided with notice, and that they meet the requirements of the Federal Rules of Civil Procedure (including Fed. R. Civ. P. 23(c)(2) and (e)), the United States Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable law. Judge Milton Gunn Shuffield, Scott v. Blockbuster Inc., (January 22, 2002) No. D (Tex. Jud. Dist. Ct.) ultimately withstood challenge to Court of Appeals of Texas. Peters v. Blockbuster 65 S.W.3d 295, 307 (Tex. App.- Beaumont, 2001): In order to maximize the efficiency of the notice, a professional concern, Hilsoft Notifications, was retained. This Court concludes that the notice campaign was the best practicable, reasonably calculated, under all PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

134 the circumstances, to apprise interested parties of the settlement and afford them an opportunity to present their objections The notice campaign was highly successful and effective, and it more than satisfied the due process and state law requirements for class notice. Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (October 30, 2001) No. MID-L MT (N.J. Super. Ct.): The parties have crafted a notice program which satisfies due process requirements without reliance on an unreasonably burdensome direct notification process The form of the notice is reasonably calculated to apprise class members of their rights. The notice program is specifically designed to reach a substantial percentage of the putative settlement class members. Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (October 29, 2001) No. L MT (N.J. Super. Ct.): I saw the various bar graphs for the different publications and the different media dissemination, and I think that was actually the clearest bar graph I ve ever seen in my life it was very clear of the time periods that you were doing as to each publication and which media you were doing over what market time, so I think that was very clear. Judge Stuart R. Pollak, Microsoft I-V Cases, (April 1, 2001) J.C.C.P. No. CJC (Cal. Super. Ct.): [C]oncerning dissemination of class notice; and I have reviewed the materials that have been submitted on that subject and basically I m satisfied. I think it s amazing if you re really getting 80 percent coverage. That s very reassuring. And the papers that you submitted responded to a couple things that had been mentioned before and I am satisfied with all that. Judge Stuart R. Pollak, Microsoft I-V Cases, (March 30, 2001) J.C.C.P. No (Cal. Super. Ct.): Plaintiffs and Defendant Microsoft Corporation have submitted a joint statement in support of their request that the Court approve the plan for dissemination of class action notice and proposed forms of notice, and amend the class definition. The Court finds that the forms of notice to Class members attached hereto as Exhibits A and B fairly and adequately inform the Class members of their rights concerning this litigation. The Court further finds that the methods for dissemination of notice are the fairest and best practicable under the circumstances, and comport with due process requirements. LEGAL NOTICE CASES Hilsoft Notifications has served as a notice expert for planning, implementation and/or analysis in the following partial listing of cases: Andrews v. MCI (900 Number Litigation) S.D. Ga., CV Harper v. MCI (900 Number Litigation) S.D. Ga., CV In re Bausch & Lomb Contact Lens Litigation N.D. Ala., 94-C-1144-WW In re Ford Motor Co. Vehicle Paint Litigation E.D. La., MDL No Castano v. Am. Tobacco E.D. La., CV Cox v. Shell Oil (Polybutylene Pipe Litigation) Tenn. Ch., 18,844 In re Amino Acid Lysine Antitrust Litigation N.D. Ill., MDL No In re Dow Corning Corp. (Breast Implant Bankruptcy) E.D. Mich., AJS PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

135 Kunhel v. CNA Ins. Companies In re Factor Concentrate Blood Prods. Litigation (Hemophiliac HIV) In re Ford Ignition Switch Prods. Liability Litigation Jordan v. A.A. Friedman (Non-Filing Ins. Litigation) Kalhammer v. First USA (Credit Card Litigation) N.J. Super. Ct., ATL-C N.D. Ill., MDL No. 986 D. N.J., 96-CV-3125 M.D. Ga., COL Cal. Cir. Ct., C CAL Navarro-Rice v. First USA (Credit Card Litigation) Or. Cir. Ct., Spitzfaden v. Dow Corning (Breast Implant Litigation) La. D. Ct., Robinson v. Marine Midland (Finance Charge Litigation) N.D. Ill., 95 C 5635 McCurdy v. Norwest Fin. Alabama Johnson v. Norwest Fin. Alabama Ala. Cir. Ct., CV Ala. Cir. Ct., CV-93-PT-962-S In re Residential Doors Antitrust Litigation E.D. Pa., MDL No Barnes v. Am. Tobacco Co. Inc. E.D. Pa., Small v. Lorillard Tobacco Co. Inc. N.Y. Super. Ct., /96 Naef v. Masonite Corp (Hardboard Siding Litigation) Ala. Cir. Ct., CV In re Synthroid Mktg. Litigation N.D. Ill., MDL No Raysick v. Quaker State Slick 50 Inc. D. Tex., Castillo v. Mike Tyson (Tyson v. Holyfield Bout) N.Y. Super. Ct., /97 Avery v. State Farm Auto. Ins. (Non-OEM Auto Parts) Walls v. The Am. Tobacco Co. Inc. Tempest v. Rainforest Café (Securities Litigation) Stewart v. Avon Prods. (Securities Litigation) Ill. Cir. Ct., 97-L-114 N.D. Okla., 97-CV-218-H D. Minn., 98-CV-608 E.D. Pa., 98-CV-4135 Goldenberg v. Marriott PLC Corp (Securities Litigation) D. Md., PJM Delay v. Hurd Millwork (Building Products Litigation) Wash. Super. Ct., Gutterman v. Am. Airlines (Frequent Flyer Litigation) Hoeffner v. The Estate of Alan Kenneth Vieira (Un-scattered Cremated Remains Litigation) Ill. Cir. Ct., 95CH982 Cal. Super. Ct., 97-AS In re Graphite Electrodes Antitrust Litigation E.D. Pa., MDL No In re Silicone Gel Breast Implant Prods. Liability Litigation, Altrichter v. INAMED N.D. Ala., MDL No. 926 St. John v. Am. Home Prods. Corp. (Fen/Phen Litigation) Wash. Super. Ct., PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

136 Crane v. Hackett Assocs. (Securities Litigation) E.D. Pa., In re Holocaust Victims Assets Litigation (Swiss Banks) McCall v. John Hancock (Settlement Death Benefits) Williams v. Weyerhaeuser Co. (Hardboard Siding Litigation) Kapustin v. YBM Magnex Int l Inc. (Securities Litigation) Leff v. YBM Magnex Int l Inc. (Securities Litigation) In re PRK/LASIK Consumer Litigation Hill v. Galaxy Cablevision E.D.N.Y., CV N.M. Cir. Ct., CV Cal. Super. Ct., CV E.D. Pa., 98-CV-6599 E.D. Pa., 95-CV-89 Cal. Super. Ct., CV N.D. Miss., 1:98CV51-D-D Scott v. Am. Tobacco Co. Inc. La. D. Ct., Jacobs v. Winthrop Financial Associates (Securities Litigation) Int l Comm n on Holocaust Era Ins. Claims Worldwide Outreach Program Bownes v. First USA Bank (Credit Card Litigation) D. Mass., 99-CV Former Secretary of State Lawrence Eagleburger Commission Ala. Cir. Ct., CV PR Whetman v. IKON (ERISA Litigation) E.D. Pa., Mangone v. First USA Bank (Credit Card Litigation) In re Babcock and Wilcox Co. (Asbestos Related Bankruptcy) Barbanti v. W.R. Grace and Co. (Zonolite / Asbestos Litigation) Ill. Cir. Ct., 99AR672a E.D. La., Wash. Super. Ct., Brown v. Am. Tobacco Cal. Super. Ct., J.C.C.P. 4042, Wilson v. Servier Canada Inc. (Canadian Fen/Phen Litigation) In re Texaco Inc. (Bankruptcy) Ont. Super. Ct., 98-CV S.D.N.Y. 87 B 20142, 87 B 20143, 87 B Olinde v. Texaco (Bankruptcy, Oil Lease Litigation) M.D. La., Gustafson v. Bridgestone/Firestone, Inc. (Recall Related Litigation) S.D. Ill., DRH In re Bridgestone/Firestone Tires Prods. Liability Litigation S.D. Ind., MDL No Gaynoe v. First Union Corp. (Credit Card Litigation) Carson v. Daimler Chrysler Corp. (Fuel O-Rings Litigation) N.C. Super. Ct., 97-CVS W.D. Tenn., TU A Providian Credit Card Cases Cal. Super. Ct., J.C.C.P Fields v. Great Spring Waters of Am., Inc. (Bottled Water Litigation) Cal. Super. Ct., PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

137 Sanders v. Great Spring Waters of Am., Inc. (Bottled Water Litigation) Sims v. Allstate Ins. Co. (Diminished Auto Value Litigation) Peterson v. State Farm Mutual Auto. Ins. Co. (Diminished Auto Value Litigation) Microsoft I-V Cases (Antitrust Litigation Mirroring Justice Dept.) Westman v. Rogers Family Funeral Home, Inc. (Remains Handling Litigation) Rogers v. Clark Equipment Co. Cal. Super. Ct., Ill. Cir. Ct., 99-L-393A Ill. Cir. Ct., 99-L-394A Cal. Super. Ct., J.C.C.P Cal. Super. Ct., C Ill. Cir. Ct., 97-L-20 Garrett v. Hurley State Bank (Credit Card Litigation) Miss. Cir. Ct., Ragoonanan v. Imperial Tobacco Ltd. (Firesafe Cigarette Litigation) Dietschi v. Am. Home Prods. Corp. (PPA Litigation) Ont. Super. Ct., 00-CV CP W.D. Wash., C L Dimitrios v. CVS, Inc. (PA Act 6 Litigation) Pa. C.P., Jones v. Hewlett-Packard Co. (Inkjet Cartridge Litigation) Cal. Super. Ct., In re Tobacco Cases II (California Tobacco Litigation) Cal. Super. Ct., J.C.C.P Scott v. Blockbuster, Inc. (Extended Viewing Fees Litigation) 136 th Tex. Jud. Dist., D Anesthesia Care Assocs. v. Blue Cross of Cal. Cal. Super. Ct., Ting v. AT&T (Mandatory Arbitration Litigation) In re W.R. Grace & Co. (Asbestos Related Bankruptcy) Talalai v. Cooper Tire & Rubber Co. (Tire Layer Adhesion Litigation) Kent v. Daimler Chrysler Corp. (Jeep Grand Cherokee Parkto-Reverse Litigation) Int l Org. of Migration German Forced Labour Compensation Programme Madsen v. Prudential Federal Savings & Loan (Homeowner s Loan Account Litigation) N.D. Cal., C BZ Bankr. D. Del., JJF N.J. Super. Ct.,, MID-L MT N.D. Cal., C JCS Geneva, Switzerland 3 rd Jud. Dist. Ct. Utah, C Bryant v. Wyndham Int l., Inc. (Energy Surcharge Litigation) Cal. Super. Ct., GIC , GIC In re USG Corp. (Asbestos Related Bankruptcy) Thompson v. Metropolitan Life Ins. Co. (Race Related Sales Practices Litigation) Ervin v. Movie Gallery Inc. (Extended Viewing Fees) Peters v. First Union Direct Bank (Credit Card Litigation) National Socialist Era Compensation Fund Bankr. D. Del., RJN S.D.N.Y., 00-CIV-5071 HB Tenn. Ch., CV M.D. Fla., 8:01-CV-958-T-26 TBM Republic of Austria PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

138 In re Baycol Litigation D. Minn., MDL No Claims Conference Jewish Slave Labour Outreach Program Wells v. Chevy Chase Bank (Credit Card Litigation) German Government Initiative Md. Cir. Ct., C Walker v. Rite Aid of PA, Inc. (PA Act 6 Litigation) C.P. Pa., Myers v. Rite Aid of PA, Inc. (PA Act 6 Litigation) C.P. Pa., In re PA Diet Drugs Litigation C.P. Pa., Harp v. Qwest Communications (Mandatory Arbitration Lit.) Or. Circ. Ct., Tuck v. Whirlpool Corp. & Sears, Roebuck & Co. (Microwave Recall Litigation) Allison v. AT&T Corp. (Mandatory Arbitration Litigation) Kline v. The Progressive Corp. Baker v. Jewel Food Stores, Inc. & Dominick s Finer Foods, Inc. (Milk Price Fixing) In re Columbia/HCA Healthcare Corp. (Billing Practices Litigation) Ind. Cir. Ct., 49C CP st Jud. D.C. N.M., D-0101-CV Ill. Cir. Ct., 01-L-6 Ill. Cir. Ct., 00-L-9664 M.D. Tenn., MDL No Foultz v. Erie Ins. Exchange (Auto Parts Litigation) C.P. Pa., Soders v. General Motors Corp. (Marketing Initiative Litigation) C.P. Pa., CI Nature Guard Cement Roofing Shingles Cases Cal. Super. Ct., J.C.C.P Curtis v. Hollywood Entm t Corp. (Additional Rental Charges) Defrates v. Hollywood Entm t Corp. Pease v. Jasper Wyman & Son, Merrill Blueberry Farms Inc., Allen s Blueberry Freezer Inc. & Cherryfield Foods Inc. West v. G&H Seed Co. (Crawfish Farmers Litigation) Linn v. Roto-Rooter Inc. (Miscellaneous Supplies Charge) McManus v. Fleetwood Enter., Inc. (RV Brake Litigation) Wash. Super. Ct., SEA Ill. Cir. Ct., 02L707 Me. Super. Ct., CV th Jud. D. Ct. La., 99-C-4984-A C.P. Ohio, CV D. Ct. Tex., SA-99-CA-464-FB Baiz v. Mountain View Cemetery (Burial Practices) Cal. Super. Ct., Stetser v. TAP Pharm. Prods, Inc. & Abbott Laboratories (Lupron Price Litigation) Richison v. Am. Cemwood Corp. (Roofing Durability Settlement) N.C. Super. Ct., 01-CVS-5268 Cal. Super. Ct., Cotten v. Ferman Mgmt. Servs. Corp. 13 th Jud. Cir. Fla., In re Pittsburgh Corning Corp. (Asbestos Related Bankruptcy) Bankr. W.D. Pa., JKF PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

139 Mostajo v. Coast Nat l Ins. Co. Cal. Super. Ct., 00 CC Friedman v. Microsoft Corp. (Antitrust Litigation) Ariz. Super. Ct., CV Multinational Outreach - East Germany Property Claims Davis v. Am. Home Prods. Corp. (Norplant Contraceptive Litigation) Walker v. Tap Pharmaceutical Prods., Inc. (Lupron Price Litigation) Claims Conference D. La., N.J. Super. Ct., CV CPM-L Munsey v. Cox Communications (Late Fee Litigation) Civ. D. La., Sec. 9, Gordon v. Microsoft Corp. (Antitrust Litigation) 4 th Jud. D. Ct. Minn., Clark v. Tap Pharmaceutical Prods., Inc. 5 th Dist. App. Ct. Ill., Fisher v. Virginia Electric & Power Co. Mantzouris v. Scarritt Motor Group, Inc. Johnson v. Ethicon, Inc. (Product Liability Litigation) E.D. Va., 3:02-CV-431 M.D. Fla., 8:03-CV-0015-T-30-MSS W. Va. Cir. Ct., 01-C-1530, 1531, 1533, 01-C-2491 to 2500 Schlink v. Edina Realty Title 4 th Jud. D. Ct. Minn., Tawney v. Columbia Natural Res. (Oil & Gas Lease Litigation) White v. Washington Mutual, Inc. (Pre-Payment Penalty Litigation) Acacia Media Techs. Corp. v. Cybernet Ventures Inc., (Patent Infringement Litigation) W. Va. Cir. Ct., 03-C-10E 4 th Jud. D. Ct. Minn., CT C.D. Cal., SACV GLT (Anx) Bardessono v. Ford Motor Co. (15 Passenger Vans) Wash. Super. Ct., Gardner v. Stimson Lumber Co. (Forestex Siding Litigation) Poor v. Sprint Corp. (Fiber Optic Cable Litigation) Thibodeau v. Comcast Corp. Cazenave v. Sheriff Charles C. Foti (Strip Search Litigation) National Assoc. of Police Orgs., Inc. v. Second Chance Body Armor, Inc. (Bullet Proof Vest Litigation) Wash. Super. Ct., SEA Ill. Cir. Ct., 99-L-421 E.D. Pa., 04-CV-1777 E.D. La., 00-CV-1246 Mich. Cir. Ct., NP Nichols v. SmithKline Beecham Corp. (Paxil) E.D. Pa., Yacout v. Federal Pacific Electric Co. (Circuit Breaker) N.J. Super. Ct., MID-L Lewis v. Bayer AG (Baycol) 1 st Jud. Dist. Ct. Pa., In re Educ. Testing Serv. PLT 7-12 Test Scoring Litigation E.D. La., MDL No Stefanyshyn v. Consol. Indus. Corp. (Heat Exchanger) Barnett v. Wal-Mart Stores, Inc. Ind. Super. Ct., 79 D CT-59 Wash. Super. Ct., SEA PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

140 In re Serzone Prods. Liability Litigation S.D. W. Va., MDL No Ford Explorer Cases Cal. Super. Ct., J.C.C.P & 4270 In re Solutia Inc. (Bankruptcy) S.D.N.Y., PCB In re Lupron Marketing & Sales Practices Litigation D. Mass., MDL No Morris v. Liberty Mutual Fire Ins. Co. Bowling, et al. v. Pfizer Inc. (Bjork-Shiley Convexo-Concave Heart Valve) D. Okla., CJ S.D. Ohio, C Thibodeaux v. Conoco Philips Co. D. La., Morrow v. Conoco Inc. D. La., Tobacco Farmer Transition Program Perry v. Mastercard Int l Inc. U.S. Dept. of Agric. Ariz. Super. Ct., CV Brown v. Credit Suisse First Boston Corp. C.D. La., In re Unum Provident Corp. D. Tenn., 1:03-CV-1000 In re Ephedra Prods. Liability Litigation D.N.Y., MDL No Chesnut v. Progressive Casualty Ins. Co. Ohio C.P., Froeber v. Liberty Mutual Fire Ins. Co. Luikart v. Wyeth Am. Home Prods. (Hormone Replacement) Or. Cir. Ct., 00C15234 W. Va. Cir. Ct., 04-C-127 Salkin v. MasterCard Int l Inc. (Pennsylvania) Pa. C.P., 2648 Rolnik v. AT&T Wireless Servs., Inc. N.J. Super. Ct., L Singleton v. Hornell Brewing Co. Inc. (Arizona Ice Tea) Cal. Super. Ct., BC Becherer v. Qwest Commc ns Int l, Inc. Ill. Cir. Ct., 02-L140 Clearview Imaging v. Progressive Consumers Ins. Co. Fla. Cir. Ct., Mehl v. Canadian Pacific Railway, Ltd D.N.D., A Murray v. IndyMac Bank. F.S.B N.D. Ill., 04 C 7669 Gray v. New Hampshire Indemnity Co., Inc. Ark. Cir. Ct., CV George v. Ford Motor Co. M.D. Tenn., 3: Allen v. Monsanto Co. W. Va. Cir. Ct., Carter v. Monsanto Co. Carnegie v. Household Int l, Inc. W. Va. Cir. Ct., 00-C-300 N. D. Ill., 98-C-2178 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

141 Daniel v. AON Corp. Ill. Cir. Ct., 99 CH In re Royal Ahold Securities and ERISA Litigation D. Md., MDL No In re Pharmaceutical Industry Average Wholesale Price Litigation D. Mass., MDL No Meckstroth v. Toyota Motor Sales, U.S.A., Inc. 24 th Jud. D. Ct. La., Walton v. Ford Motor Co. Cal. Super. Ct., SCVSS Hill v. State Farm Mutual Auto Ins. Co. Cal. Super. Ct., BC First State Orthopaedics et al. v. Concentra, Inc., et al. E.D. Pa. 2:05-CV AB Sauro v. Murphy Oil USA, Inc. E.D. La., In re High Sulfur Content Gasoline Prods. Liability Litigation E.D. La., MDL No Homeless Shelter Compensation Program Rosenberg v. Academy Collection Service, Inc. City of New York E.D. Pa., 04-CV-5585 Chapman v. Butler & Hosch, P.A. 2 nd Jud. Cir. Fla., In re Vivendi Universal, S.A. Securities Litigation Desportes v. American General Assurance Co. S.D.N.Y., 02-CIV-5571 RJH Ga. Super. Ct., SU-04-CV-3637 In re: Propulsid Products Liability Litigation E.D. La., MDL No Baxter v. The Attorney General of Canada (In re Residential Schools Class Action Litigation) McNall v. Mastercard Int l, Inc. (Currency Conversion Fees) Ont. Super. Ct., 00-CV CPA 13 th Tenn. Jud. Dist. Ct., CT Lee v. Allstate Ill. Cir. Ct., 03 LK 127 Turner v. Murphy Oil USA, Inc. Carter v. North Central Life Ins. Co. Harper v. Equifax Beasley v. Hartford Insurance Co. of the Midwest Springer v. Biomedical Tissue Services, LTD (Human Tissue Litigation) Spence v. Microsoft Corp. (Antitrust Litigation) Pennington v. The Coca Cola Co. (Diet Coke) Sunderman v. Regeneration Technologies, Inc. (Human Tissue Litigation) Splater v. Thermal Ease Hydronic Systems, Inc. E.D. La., 2:05-CV EEF-JCW Ga. Super. Ct., SU-2006-CV E.D. Pa., 2:04-CV TON Ark. Cir. Ct., CV Ind. Cir. Ct., 1:06-CV SEB-VSS Wis. Cir. Ct., 00-CV Mo. Cir. Ct., 04-CV S.D. Ohio, 1:06-CV-075-MHW Wash. Super. Ct., SEA PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

142 Peyroux v. The United States of America (New Orleans Levee Breech) Chambers v. DaimlerChrysler Corp. (Neon Head Gaskets) Ciabattari v. Toyota Motor Sales, U.S.A., Inc. (Sienna Run Flat Tires) In re Bridgestone Securities Litigation E.D. La., N.C. Super. Ct., 01:CVS-1555 N.D. Cal., C BZ M.D. Tenn., 3:01-CV-0017 In re Mutual Funds Investment Litigation (Market Timing) D. Md., MDL No Accounting Outsourcing v. Verizon Wireless Hensley v. Computer Sciences Corp. Peek v. Microsoft Corporation Reynolds v. The Hartford Financial Services Group, Inc. Schwab v. Philip Morris USA, Inc. Zarebski v. Hartford Insurance Co. of the Midwest In re Parmalat Securities Litigation Beasley v. The Reliable Life Insurance Co. M.D. La., 03-CV-161 Ark. Cir. Ct., CV Ark. Cir. Ct., CV D. Or., CV BR E.D.N.Y., CV Ark. Cir. Ct., CV S.D.N.Y., MDL No (LAK) Ark. Cir. Ct., CV Sweeten v. American Empire Insurance Company Ark. Cir. Ct., Govt. Employees Hospital Assoc. v. Serono Int., S.A. Gunderson v. Focus Healthcare Management, Inc. Gunderson v. F.A. Richard & Associates, Inc., et al. Perez v. Manor Care of Carrollwood Pope v. Manor Care of Carrollwood West v. Carfax, Inc. Hunsucker v. American Standard Ins. Co. of Wisconsin In re Conagra Peanut Butter Products Liability Litigation The People of the State of CA v. Universal Life Resources (Cal DOI v. CIGNA) Burgess v. Farmers Insurance Co., Inc. Grays Harbor v. Carrier Corporation Perrine v. E.I. Du Pont De Nemours & Co. In re Alstom SA Securities Litigation Brookshire Bros. v. Chiquita (Antitrust) D. Mass., 06-CA PBS 14 th Jud. D. Ct. La., D 14 th Jud. D. Ct. La., D 13 th Jud. Cir. Fla., E 13 th Jud. Cir. Fla., B Ohio C.P., 04-CV-1898 (ADL) Ark. Cir. Ct., CV N.D. Ga., MDL No (TWT) Cal. Super. Ct., GIC D. Okla., CJ W.D. Wash., RBL W. Va. Cir. Ct., 04-C S.D.N.Y., 03-CV-6595 VM S.D. Fla., 05-CIV PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

143 Hoorman v. SmithKline Beecham Ill. Cir. Ct., 04-L-715 Santos v. Government of Guam (Earned Income Tax Credit) D. Guam, Johnson v. Progressive Bond v. American Family Insurance Co. In re SCOR Holding (Switzerland) AG Litigation (Securities) Shoukry v. Fisher-Price, Inc. (Toy Safety) In re: Guidant Corp. Plantable Defibrillators Prod s Liab. Litigation Ark. Cir. Ct., CV D. Ariz., CV PXH-DGC S.D.N.Y., 04-cv-7897 S.D.N.Y., 07-cv-7182 D. Minn., MDL No Clark v. Pfizer, Inc (Neurontin) C.P. Pa., Angel v. U.S. Tire Recovery (Tire Fire) W. Va. Cir. Ct., 06-C-855 In re TJX Companies Retail Security Breach Litigation D. Mass., MDL No Webb v. Liberty Mutual Insurance Co. Shaffer v. Continental Casualty Co. (Long Term Care Ins.) Palace v. DaimlerChrysler (Defective Neon Head Gaskets) Lockwood v. Certegy Check Services, Inc. (Stolen Financial Data) Sherrill v. Progressive Northwestern Ins. Co. Gunderson v. F.A. Richard & Assocs., Inc. (AIG) Jones v. Dominion Resources Services, Inc. Gunderson v. F.A. Richard & Assocs., Inc. (Wal-Mart) Ark. Cir. Ct., CV C.D. Cal., SACV PSG Ill. Cir. Ct., 01-CH M.D. Fla., 8:07-cv-1434-T-23TGW 18 th D. Ct. Mont., DV th Jud. D. Ct. La., D S.D. W. Va., 2:06-cv th Jud. D. Ct. La., D In re Trans Union Corp. Privacy Litigation N.D. Ill., MDL No Gudo v. The Administrator of the Tulane Ed. Fund La. D. Ct., 2007-C-1959 Guidry v. American Public Life Insurance Co. 14 th Jud. D. Ct. La., McGee v. Continental Tire North America Sims v. Rosedale Cemetery Co. D.N.J., 2:06-CV (GEB) W. Va. Cir. Ct., 03-C-506 Gunderson v. F.A. Richard & Assocs., Inc. (Amerisafe) 14 th Jud. D. Ct. La., In re Katrina Canal Breaches Consolidated Litigation E.D. La., In re Department of Veterans Affairs (VA) Data Theft Litigation Dolen v. ABN AMRO Bank N.V. (Callable CD s) D.D.C., MDL No Ill. Cir. Ct., 01-L-454 and 01-L-493 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

144 Pavlov v. CNA (Long Term Care Insurance) Steele v. Pergo( Flooring Products) Opelousas Trust Authority v. Summit Consulting Little v. Kia Motors America, Inc. (Braking Systems) Boone v. City of Philadelphia (Prisoner Strip Search) In re Countrywide Customer Data Breach Litigation Miller v. Basic Research (Weight-loss Supplement) N.D. Ohio, 5:07cv2580 D. Or., 07-CV BR 27 th Jud. D. Ct. La., 07-C-3737-B N.J. Super. Ct., UNN-L E.D. Pa., 05-CV-1851 W.D. Ky., MDL No.1998 D. Utah, 2:07-cv TS Gunderson v. F.A. Richard & Assocs., Inc. (Cambridge) 14 th Jud. D. Ct. La., Weiner v. Snapple Beverage Corporation Holk v. Snapple Beverage Corporation Coyle v. Hornell Brewing Co. (Arizona Iced Tea) S.D.N.Y., 07-CV D.N.J., 3:07-CV MJC-JJH D.N.J., 08-CV-2797-JBS-JS In re Heartland Data Security Breach Litigation S.D. Tex., MDL No Satterfield v. Simon & Schuster, Inc. (Text Messaging) Schulte v. Fifth Third Bank (Overdraft Fees) Trombley v. National City Bank (Overdraft Fees) Vereen v. Lowe s Home Centers (Defective Drywall) Mathena v. Webster Bank, N.A. (Overdraft Fees) Delandro v. County of Allegheny (Prisoner Strip Search) N.D. Cal., 06-CV-2893 CW N.D. Ill., 1:09-CV D.D.C., 1:10-CV Ga. Super. Ct., SU10-CV-2267B D. Conn, 3:10-cv W.D. Pa., 2:06-cv Gunderson v. F.A. Richard & Assocs., Inc. (First Health) 14 th Jud. D. Ct. La., Williams v. Hammerman & Gainer, Inc. (Hammerman) Williams v. Hammerman & Gainer, Inc. (Risk Management) Williams v. Hammerman & Gainer, Inc. (SIF Consultants) Gwiazdowski v. County of Chester (Prisoner Strip Search) Williams v. S.I.F. Consultants (CorVel Corporation) 27 th Jud. D. Ct. La., 11-C-3187-B 27 th Jud. D. Ct. La., 11-C-3187-B 27 th Jud. D. Ct. La., 11-C-3187-B E.D. Pa., 2:08cv th Jud. D. Ct. La., 09-C-5244-C Sachar v. Iberiabank Corporation (Overdraft Fees) S.D. Fla., MDL No LaCour v. Whitney Bank (Overdraft Fees) Lawson v. BancorpSouth (Overdraft Fees) M.D. Fla., 8:11cv1896 W.D. Ark., 1:12cv1016 McKinley v. Great Western Bank (Overdraft Fees) S.D. Fla., MDL No PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

145 Wolfgeher v. Commerce Bank (Overdraft Fees) S.D. Fla., MDL No Harris v. Associated Bank (Overdraft Fees) S.D. Fla., MDL No Case v. Bank of Oklahoma (Overdraft Fees) S.D. Fla., MDL No Nelson v. Rabobank, N.A. (Overdraft Fees) Cal. Super. Ct., RIC Fontaine v. Attorney General of Canada (Stirland Lake and Cristal Lake Residential Schools) Opelousas General Hospital Authority v. FairPay Solutions Marolda v. Symantec Corporation (Software Upgrades) In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 Economic and Property Damages Settlement In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 Medical Benefits Settlement Vodanovich v. Boh Brothers Construction (Hurricane Katrina Levee Breaches) Gessele et al. v. Jack in the Box, Inc. Ont. Super. Ct., 00-CV CP 27 th Jud. D. Ct. La., 12-C-1599-C N.D. Cal., 3:08-cv E.D. La., MDL No E.D. La., MDL No E.D. La., 05-cv-4191 D. Or., No. 3:10-cv-960 RBS v. Citizens Financial Group, Inc. (Overdraft Fees) S.D. Fla., MDL No Mosser v. TD Bank, N.A. (Overdraft Fees) S.D. Fla., MDL No In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Mastercard & Visa) Saltzman v. Pella Corporation (Building Products) E.D.N.Y., MDL No N.D. Ill., 06-cv-4481 In re Zurn Pex Plumbing, Products Liability Litigation D. Minn., MDL No Blahut v. Harris, N.A. (Overdraft Fees) S.D. Fla., MDL No Eno v. M & I Marshall & Ilsley Bank (Overdraft Fees) S.D. Fla., MDL No Casayuran v. PNC Bank (Overdraft Fees) S.D. Fla., MDL No Anderson v. Compass Bank (Overdraft Fees) S.D. Fla., MDL No Evans, et al. v. TIN, Inc. (Environmental) Opelousas General Hospital Authority v. Qmedtrix Systems, Inc. Williams v. SIF Consultants of Louisiana, Inc. et al. Miner v. Philip Morris Companies, Inc. et al. Fontaine v. Attorney General of Canada (Mistassini Hostels Residential Schools) Glube et al. v. Pella Corporation et al. (Building Products) E.D. La., 2:11-cv th Jud. D. Ct. La., 12-C-1599-C 27 th Jud. D. Ct. La., 09-C-5244-C Ark. Cir. Ct., 60CV Qué. Super. Ct., & No (Hull) Ont. Super. Ct., CV CP PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

146 Yarger v. ING Bank Price v. BP Products North America National Trucking Financial Reclamation Services, LLC et al. v. Pilot Corporation et al. Johnson v. Community Bank, N.A. et al. (Overdraft Fees) Rose v. Bank of America Corporation, et al. (TCPA) McGann, et al., v. Schnuck Markets, Inc. (Data Breach) D. Del., LPS N.D. Ill, 12-cv E.D. Ark., 4:13-cv JMM M.D. Pa., 3:12-cv RDM N.D. Cal., 11-cv EJD Mo. Cir. Ct., 1322-CC00800 Simmons v. Comerica Bank, N.A. (Overdraft Fees) S.D. Fla., MDL No George Raymond Williams, M.D., Orthopedic Surgery, a Professional Medical, LLC, et al. v. Bestcomp, Inc., et al. Simpson v. Citizens Bank (Overdraft Fees) In re Plasma-Derivative Protein Therapies Antitrust Litigation In re Dow Corning Corporation (Breast Implants) 27 th Jud. D. Ct. La., 09-C-5242-B E.D. Mich, 2:12-cv N.D. Ill, 09-CV-7666 E.D. Mich., 00-X-0005 Mello et al v. Susquehanna Bank (Overdraft Fees) S.D. Fla., MDL No Wong et al. v. Alacer Corp. (Emergen-C) In re American Express Anti-Steering Rules Antitrust Litigation (II) (Italian Colors Restaurant) Cal. Super. Ct., CGC E.D.N.Y., 11-MD-2221, MDL No Costello v. NBT Bank (Overdraft Fees) Sup. Ct. Del Cnty., N.Y., Gulbankian et al. v. MW Manufacturers, Inc. Hawthorne v. Umpqua Bank (Overdraft Fees) Smith v. City of New Orleans Adkins et al. v. Nestlé Purina PetCare Company et al. Given v. Manufacturers and Traders Trust Company a/k/a M&T Bank (Overdraft Fees) In re MI Windows and Doors Products Liability Litigation (Building Products) D. Mass., No. 10-CV N.D. Cal., 11-cv JST Civil D. Ct., Parish of Orleans, La., N.D. Ill., 1:12-cv S.D. Fla., MDL No D. S.C., MDL No Childs et al. v. Synovus Bank, et al. (Overdraft Fees) S.D. Fla., MDL No Steen v. Capital One, N.A. (Overdraft Fees) S.D. Fla., MDL No Kota of Sarasota, Inc. v. Waste Management Inc. of Florida In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 Economic and Property Damages Settlement (Claim Deadline Notice) 12 th Jud. Cir. Ct., Sarasota Cnty, Fla., 2011-CA NC E.D. La., MDL No PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

147 Dorothy Williams d/b/a Dot s Restaurant v. Waste Away Group, Inc. In re: Energy Future Holdings Corp., et al. (Asbestos Claims Bar Notice) Gattinella v. Michael Kors (USA), Inc., et al. Kerry T. Thibodeaux, M.D. (A Professional Medical Corporation) v. American Lifecare, Inc. Ono v. Head Racquet Sports USA Opelousas General Hospital Authority v. PPO Plus, L.L.C., et al. Cir. Ct., Lawrence Cnty, Ala., 42-cv Bankr. D. Del., (CSS) S.D.N.Y., 14-civ-5731 (WHP) 27 th Jud. D. Ct. La., 13-C-3212 C.D.C.A., 2:13-cv FMO(AGRx) 27 th Jud. D. Ct. La., 13-C-5380 In re: Shop-Vac Marketing and Sales Practices Litigation M.D. Pa., MDL No In re: Caterpillar, Inc. C13 and C15 Engine Products Liability Litigation D. N.J., MDL No In Re: Citrus Canker Litigation 11th Jud. Cir., Flo., No CA 13 Whitton v. Deffenbaugh Industries, Inc., et al. Gary, LLC v. Deffenbaugh Industries, Inc., et al. Swift v. BancorpSouth Bank (Overdraft Fees) Forgione v. Webster Bank N.A. (Overdraft Fees) Small v. BOKF, N.A. Anamaria Chimeno-Buzzi & Lakedrick Reed v. Hollister Co. & Abercrombie & Fitch Co. In re: HSBC Bank USA, N.A., Checking Account Overdraft Litigation In re: Volkswagen Clean Diesel Marketing, Sales Practices and Product Liability Litigation (Bosch) Hawkins v. First Tennessee Bank, N.A., et al. (Overdraft Fees) Greater Chautauqua Federal Credit Union v. Kmart Corp., et al. (Data Breach) Bias v. Wells Fargo & Company, et al. (Broker s Price Opinions) Klug v. Watts Regulator Company (Product Liability) Ratzlaff v. BOKF, NA d/b/a Bank of Oklahoma, et al. (Overdraft Fees) Morton v. Greenbank (Overdraft Fees) Jacobs, et al. v. Huntington Bancshares Inc., et al. (FirstMerit Overdraft Fees) D. Kan., 2:12-cv D. Kan., 2:13-cv-2634 N.D. Fla., No. 1:10-cv Sup. Ct.Conn., X10-UWY-CV S D. Col., 13-cv S.D. Fla., 14-cv MGC Sup. Ct. N.Y., No /11 N.D. Cal., MDL No th Jud. Cir. Tenn., No. CT N.D. Ill., No. 1:15-cv N.D. Cal., No 4:12-cv YGR D. Neb., No. 8:15-cv JFB-FG3 Dist. Ct. Okla., No. CJ th Jud. Dist. Tenn., No IV Ohio C.P., No. 11CV PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

148 Farnham v. Caribou Coffee Company, Inc. (TCPA) Gottlieb v. Citgo Petroleum Corporation (TCPA) McKnight v. Uber Technologies, Inc. Lewis v. Flue-Cured Tobacco Cooperative Stabilization Corporation (n/k/a United States Tobacco Cooperative, Inc.) T.A.N. v. PNI Digital Media, Inc. In re: Syngenta Litigation The Financial Oversight and Management Board for Puerto Rico as representative of Puerto Rico Electric Power Authority ( PREPA ) (Bankruptcy) Callaway v. Mercedes-Benz USA, LLC (Seat Heaters) In re: Takata Airbag Products Liability Litigation (OEMs BMW, Mazda, Subaru and Toyota) W.D. Wis., No. 16-cv WMC S.D. Fla., No. 9:16-cv N.D. Cal., No 3:14-cv JST N.C. Gen. Ct of Justice, Sup. Ct. Div., No. 05 CVS 188, No. 05 CVS 1938 S.D. GA., No. 2:16-cv-132-LGW-RSB. 4 th Jud. Dist. Minn., No. 27-CV D. Puerto Rico, No (LTS) C.D. Cal., No 14-cv JVS S.D. Fla, MDL No Hilsoft-cv-140 PORTLAND AREA OFFICE SW ALLEN BLVD BEAVERTON, OR T PHILADELPHIA AREA OFFICE 1420 LOCUST ST 30 F PHILADELPHIA, PA 1910 T

149 Exhibit 2

150 TO: FROM: SUBJECT: INDEPENDENT BANK OVERDRAFT SETTLEMENT Important Notice about a Class Action Settlement If you paid Overdraft Fees related to an Independent Bank Debit Card or ATM card, you could receive a payment or account credit from a class action settlement. Si desea recibir esta notificación en español, llámenos o visite nuestra página web A settlement has been reached in a class action lawsuit about Independent Bank s former practice in the order in which it posted Debit Card Transactions. Independent Bank denies all claims and believes that it did nothing wrong. The court has made no decision as to which side is right. Who s Included? Independent Bank s records show you are a Settlement Class Member. The Settlement includes all Independent Bank non-business customers in the United States who, during the Class Period of July 31, 2007, through March 9, 2017, incurred an Overdraft Fee as a result of the bank s sequencing of Debit Card Transactions, along with other debit transactions, from highest to lowest dollar amount. What Are the Settlement Benefits? Independent Bank will pay $2,215, into a Settlement Fund. If the Settlement is approved, payments or credits will automatically be made to Settlement Class Members identified in the bank s records according to a formula detailed in the Settlement Agreement. If you received this Notice by , you do not need to file a claim to receive a payment or account credit. Your Rights May Be Affected. If you do not want to be legally bound by the Settlement, you must exclude yourself from the Settlement Class by December 11, If you do not exclude yourself, you will release your claims against Independent Bank regarding the bank s overdraft-related practices and fees and will not be able to sue Independent Bank for any claim relating to the lawsuit. If you stay in the Settlement Class, you may object to the Settlement by December 11, The Long-form Notice available on the Settlement Website explains how to exclude yourself or object. The Court will hold a hearing on January 10, 2018, to consider whether to approve the Settlement, a request for attorneys fees of up to one third of the Settlement Fund plus Class Counsel s costs and expenses, and a Service Award to the named Plaintiff of up to $10, You may appear at the hearing, but you are not required to attend. You may also hire your own attorney, at your own expense, to appear or speak for you at the hearing.

151

152 Exhibit 3

153 Postnet: * *

154 Postnet: