SETTLEMENT AGREEMENT AND RELEASE

Transcription

1 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (this Settlement Agreement and Release ) is entered into by and between plaintiff Mike Padberg ( Plaintiff Padberg ), for himself individually and on behalf of the Classes (as defined below), on the one hand, and defendant DISH Network L.L.C. ( DISH ) on the other hand (each of Plaintiff Padberg and DISH, a Party and, collectively the Parties ). This Settlement Agreement and Release is intended by the Parties to finally and fully compromise, settle and forever resolve all the claims specified below, subject to the terms and conditions herein. RECITALS WHEREAS, on January 25, 2011, Plaintiff Padberg brought the Padberg Action (as defined below) against DISH and DISH DBS Corporation in the Court (as defined below), alleging causes of action against DISH arising out of the temporary interruption of certain FOX regional sports network programming (collectively, the FSN Programming ) in October WHEREAS, in the original putative class action complaint filed by Plaintiff Padberg in the Padberg Action on September 13, 2012 (the Complaint ), Plaintiff Padberg alleged causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) unjust enrichment; (4) declaratory judgment; (5) violation of the Colorado Consumer Protection Act, CRS et seq.; (6) violation of the Missouri Merchandising Practices Act, Chapter 407, RSMo, et seq.; and (7) injunctive relief. Plaintiff Padberg claimed federal subject matter jurisdiction pursuant to the Class Action Fairness Act of 2005, and sought monetary damages and injunctive relief. WHEREAS, on March 8, 2011, DISH DBS Corporation was voluntarily dismissed without prejudice from the Padberg Action. WHEREAS, on March 17, 2011, DISH moved to dismiss the Complaint for failure to state a claim under any of the theories alleged in the Complaint. On June 11, 2012, the Court issued an order granting in part, and denying in part, DISH s motion to dismiss. The Court dismissed Counts Three (unjust enrichment), Four (declaratory judgment), Five (violation of the Page 1 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 1 of EXHIBIT 80 1

2 Colorado Consumer Protection Act, CRS et seq.), and Six (violation of the Missouri Merchandising Practices Act, Chapter 407, RSMo, et seq.), but allowed the Padberg Action to proceed with Counts One (breach of contract), Two (breach of the covenant of good faith and fair dealing), and Seven (injunctive relief). WHEREAS, on July 2, 2012, DISH filed an Answer to the Complaint as narrowed by the Court s order on the motion to dismiss. WHEREAS, on August 30, 2012, Plaintiff Padberg filed his First Amended Class Action Complaint ( FAC ) in the Padberg Action, asserting two (2) causes of action arising out of the temporary interruption of the FSN Programming and FX Network programming (the FX Programming ) in October 2010: Count One (breach of contract) and Count Two (breach of the covenant of good faith and fair dealing). DISH filed an Answer to the FAC on September 14, WHEREAS, on December 5, 2012, Plaintiff Padberg moved to certify two (2) classes in the Padberg Action, consisting of: All present and former DISH subscribers in the United States who: (1) paid DISH for a programming package for all or part of October 2010 that included FSN programming; and (2) did not receive a monetary credit equal to the value of such programming, which DISH failed to provide from October 1, 2010 to October 29, 2010 (the FSN Class ); and All present and former DISH subscribers in the United States who: (1) paid DISH for a programming package for all or part of October 2010 that included FX programming; and (2) did not receive a monetary credit equal to the value of such programming, which DISH failed to provide from October 1, 2010 to October 29, 2010 (the FX Class ), each a Class, and together, the Classes ). WHEREAS, on July 11, 2013, the Court granted the motion and certified the two (2) Classes. On August 20, 2013, the United States Court of Appeals for the Eighth Circuit denied DISH permission to appeal the order certifying the Classes Page 2 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 2 of 80

3 WHEREAS, on July 1, 2014, DISH moved for summary judgment on the two (2) claims in the FAC. Plaintiff Padberg also moved for partial summary judgment as to liability regarding both of his claims in the FAC. On August 11, 2014, the Court denied the cross-motions for summary judgment. WHEREAS, between August 25 and August 29, 2014, the Court conducted a jury trial on the FAC. On August 29, 2014, the jury returned a verdict in Plaintiff Padberg s favor and awarded damages in the amount of Eight Hundred Eighty Thousand Five Hundred Forty and 00/100 dollars ($880,540.00). WHEREAS, on September 26, 2014, Plaintiff Padberg moved for a new trial. On December 4, 2014, the Court orally granted the motion for new trial and entered a written order on February 17, WHEREAS, on January 21, 2015, the Court sua sponte issued an Order to show cause as to why the FSN Class should not be modified to create two subclasses consisting of: (1) All present and former Dish subscribers in the United States who a) paid Dish for an AT120+ programming package for all or part of October 2010 that included FSN programming; and b) did not receive a monetary credit equal to the value of such programming, which Dish failed to provide from October 1, 2010 to October 29, 2010 (the FSN AT 120+ Class); and (2) All present and former Dish subscribers in the United States who a) paid Dish for a programming package other than the AT120+ package for all or part of October 2010 that included FSN programming; and b) did not receive a monetary credit equal to the value of such programming, which Dish failed to provide from October 1, 2010 to October 29, 2010 (the FSN Class). WHEREAS, on June 18, 2015, DISH moved to decertify the Classes or, in the alternative, to Certify a Sub-Class of AT120+ Subscribers, which motion was stayed pending the outcome of an appeal in a related uncertified action, Stokes v. DISH Network L.L.C., United States District Court for the Western District of Missouri, Case No. 2:14-cv NKL. WHEREAS, on October 4, 2016, the United States Court of Appeals for the Eighth Circuit issued its decision in Stokes v. DISH Network, L.L.C., Case No , concluding that Page 3 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 3 of 80

4 the claims for class-wide monetary relief in [Stokes] and in the related case of Padberg v. DISH Network LLC failed to state a claim upon which relief can be granted. WHEREAS, on November 18, 2016, Plaintiff Padberg sought leave to file a Second Amended Class Action Complaint ( SAC ) in the Padberg Action. On March 3, 2017, the Court allowed Plaintiff Padberg to assert an unconscionability-breach of contract claim and an unconscionability-unjust enrichment claim. Plaintiff Padberg filed his SAC in the Padberg Action on March 10, WHEREAS, on April 7, 2017, DISH moved to dismiss the SAC. WHEREAS, on May 24, 2017, DISH moved to decertify the Classes in the Padberg Action. WHEREAS, after analyzing the issues raised in the foregoing, the Parties have engaged in settlement discussions and, after arms length negotiations (including five (5) separate mediations), have agreed to settle the Padberg Action on the terms and conditions contained in this Settlement Agreement and Release. WHEREAS, DISH denies any wrongdoing whatsoever, and it has denied and continues to deny that it committed, threatened, or attempted to commit, any of the wrongful acts or violations of law or duty that are alleged in the Padberg Action, and instead contends that it has acted properly. In addition, DISH maintains that it has meritorious defenses to the claims alleged in the Padberg Action and was prepared to vigorously defend the Padberg Action. Nonetheless, DISH has agreed, despite its belief that it is not liable for any claim asserted against it and that it has good defenses thereto, to enter into this Settlement Agreement and Release in order to avoid further expense, inconvenience, and the distraction of litigation, and to be completely free of further participation in the Padberg Action and any further controversy with respect to the Released Claims and the Padberg Action. WHEREAS, Plaintiff Padberg believes that the claims asserted in the Padberg Action have merit. Nonetheless, Plaintiff Padberg and Class Counsel recognize and acknowledge the uncertainty, risks and delays associated with complex litigation and this litigation, in particular, which has been the subject of extensive pre-trial rulings, a jury trial, and an appeal and will be Page 4 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 4 of 80

5 the subject of substantial risk, delay and expense in continuing to prosecute the Padberg Action against DISH through certification, trial and any subsequent appeals. WHEREAS, based upon extensive analysis of facts and the law applicable to the claims in the Padberg Action, and taking into account the burdens and expense of such litigation including the risks and uncertainties associated with protracted trial and appeals as well as the fair, cost-effective and assured method of resolving the claims of the Classes, Plaintiff Padberg and Class Counsel have concluded that the terms and conditions of this Settlement Agreement and Release are fair, reasonable, and adequate to the Classes, and that it is in the best interests of the Classes to settle the claims raised in the Padberg Action pursuant to the terms and provisions of this Settlement Agreement and Release as it will promptly provide them with injunctive and related relief. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree that, subject to Court approval of this Settlement Agreement and Release, as a good faith, fair, reasonable, and adequate settlement, the claims released below as against the Parties identified below shall be finally and fully compromised, settled, and forever resolved on the terms and conditions set forth in this Settlement Agreement and Release. 1. DEFINITIONS As used herein, in addition to any definitions set forth elsewhere in this Settlement Agreement and Release, the following defined terms shall have the meanings set forth below. Some defined terms use defined terms that are defined later in this section: 1.1 AT120+ Customer means any member of either of the Classes who, during the Class Period, subscribed to the America s Top 120+ satellite television programming package provided by DISH. 1.2 Claims Administrator means Dahl Administration, LLC. 1.3 Claims Deadline means the date certain, not less than ninety (90) days following the entry of the Preliminary Approval Order, on or before which an AT120+ Customer Page 5 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 5 of 80

6 must elect a form of settlement relief on the Settlement Website in order to entitle such AT120+ Customer to the cash payment or account credit form of settlement relief set forth in Section 2.4 hereof and pursuant to the claims procedures contained in Section 4 hereof. 1.4 Claim Form means any and each of the claim forms to be provided and/or presented on the Settlement Website pursuant to the procedures set forth in Section 4 hereof in substantially the same as the form of Exhibit G hereto. 1.5 Classes(es) has the meaning set forth in the recitals. 1.6 Class Notice means legal notice of the terms of the proposed settlement as approved by the Court as part of its entry of the Preliminary Approval Order. 1.7 Class Counsel means the following firms and individuals: GOLDENBERG, HELLER & ANTOGNOLI, P.C. Mark C. Goldenberg Thomas P. Rosenfeld Kevin P. Green 2227 South State Route 157 Edwardsville, Illinois COOK, VETTER, DOERHOFF & LANDWEHR, P.C. Matthew A. Clement Timothy W. Van Ronzelen Kari A. Schulte 231 Madison Jefferson City, Missouri HORN, AYLWARD & BANDY, LLC Robert A. Horn Joseph A. Kronawitter 2600 Grand Blvd, Suite 1100 Kansas City, Missouri BARTIMUS FRICKLETON ROBERTSON RADER, P.C. Edward D. Robertson, Jr. Mary D. Winter 715 Swifts Highway Jefferson City, Missouri Page 6 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 6 of 80

7 Class Period means the period of time from October 1, 2010 to October 29, Missouri. 1.9 Complaint has the meaning set forth in the recitals Court means the United States District Court for the Western District of 1.11 Credit Claimant List means the list of AT120+ Customers who visited the Settlement Website and elected, on or before the Claims Deadline, to receive the Five and 00/100 Dollars ($5.00) account credit, pursuant to Sections 2.4(a)(1) and 4.1, and did not elect to receive the Three Dollars and 00/100 ($3.00) cash payment Current Customer means any member of either of the Classes whose account for satellite services provided by DISH is active (i.e., not hard disconnected or soft disconnected) as of the Effective Date DHA Plan Agreement has the meaning set forth in Section DISH has the meaning set forth in the introduction DISH s Counsel means the following firms and individuals: COBLENTZ PATCH DUFFY & BASS LLP Richard R. Patch Jonathan R. Bass Lauren S. Kowal Rees F. Morgan Katharine T. Van Dusen One Montgomery, Suite 3000 San Francisco, California ARMSTRONG TEASDALE LLP J. Kent Lowry Matthew D. Turner 3405 West Truman Blvd., Suite 210 Jefferson City, Missouri Page 7 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 7 of 80

8 1.16 Effective Date means the first date after which all of the following events and conditions have been met or have occurred or have been mutually waived by written agreement of the Parties: (a) All Parties have executed this Settlement Agreement and Release; (b) The Court has entered the Preliminary Approval Order (which shall be substantially the same as the form of Exhibit A attached hereto); (c) The Court has entered in the Padberg Action the Padberg Final Judgment (which shall be substantially the same as the form of Exhibit B attached hereto); and (d) There has occurred: (i) the passage of five (5) days following the entry of the Padberg Final Judgment and no formal objections to its entry were filed; (ii) in the event that one or more formal objections to entry of the Padberg Final Judgment are timely filed, the expiration of the time to appeal from the Padberg Final Judgment without the filing or notice of an appeal; (iii) the final non-appealable dismissal of any appeal from the Padberg Final Judgment; (iv) if a ruling or decision has been entered by an appellate court affirming the Padberg Final Judgment in a form substantially identical to the original, the time to petition for rehearing by the Court of Appeals or for review by the United States Supreme Court with respect to such ruling or decision has expired without the filing of a petition for rehearing by the Court of Appeals or for review by the United States Supreme Court; and (v) if a petition for rehearing by the Court of Appeals and/or for review by the United States Supreme Court with respect to the Padberg Final Judgment has been filed, each such petition has been denied or, if granted, has resulted in affirmance of the Padberg Final Judgment in a form substantially the same as the form of the Padberg Final Judgment entered by the Court FAC has the meaning set forth in the recitals Fee Award means the Court s award of attorneys fees, costs and expenses to Class Counsel Former Customer means any member of either of the Classes who is not a Current Customer Page 8 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 8 of 80

9 1.20 FOX Programming means, collectively, the FX Programming and FSN Programming that DISH did not distribute to its subscribers during the Class Period FSN Class has the meaning set forth in the recitals FSN Programming has the meaning set forth in the recitals FX Class has the meaning set forth in the recitals FX Programming has the meaning set forth in the recitals Service Award has the meaning set forth in Section Non-AT120+ Customer means any member of either of the Classes who is not an AT120+ Customer Non-Upgradeable Customer means a Current Customer who, as of the Effective Date, has: (i) America s Top 250, DISH America Gold or Dish Latino Max as his or her core DISH programming package; and (ii) subscribes to the HBO, Cinemax, Showtime and Starz premium packages through DISH Padberg Action means Padberg v. Dish Network L.L.C., Case No. 2:11-cv NKL, brought by Plaintiff Padberg against DISH in the Court Padberg Final Judgment means the judgment entered by the Court, substantially the same as the form of Exhibit B attached hereto, approving this Settlement Agreement and Release, including all settlement considerations as set forth in this Settlement Agreement and Release, and: (i) releasing the Released Persons from the Released Claims; and (ii) dismissing, with prejudice, the Padberg Action Party(ies) has the meaning set forth in the introduction Person means any individual, corporation, trust, partnership, limited liability company or other legal entity and their respective predecessors, successors or assigns Plaintiff Padberg has the meaning set forth in the introduction Page 9 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 9 of 80

10 1.33 Preliminary Approval Order shall mean the Court s entry of an order, substantially the same as the form of Exhibit A attached hereto, preliminarily approving the timing, content, and manner of the Class Notice, conditionally certifying the Classes for settlement purposes, preliminarily approving this Settlement Agreement and Release and the terms of settlement contained herein, and enjoining the commencement or continued prosecution by any Releasing Person of any Released Claim against any Released Person Released Claims means and includes, collectively, any and all manner of actions, causes of action, claims, compensation, controversies, costs, damages, debts, demands, expenses, liens, liabilities, losses, rights or suits, including claims or suits for contribution and/or indemnity, of every kind, nature or description whatsoever, whether foreseen or unforeseen, known or unknown, fixed or contingent, direct or indirect, liquidated or unliquidated, at law or in equity, that were or could have been asserted in the Padberg Action based on any of the facts, circumstances, transactions, events, occurrences, acts, disclosures, statements, omissions or failures to act alleged in the Padberg Action Released Persons means and includes DISH and DISH s past and present direct and indirect parents, subsidiaries and affiliates; the predecessors, successors and assigns of each of the foregoing persons and entities; and the past and present owners, agents, directors, officers, employees, shareholders, members, representatives, attorneys, insurers, guarantors, successors and assigns of all of the foregoing persons and entities Releasing Persons means Plaintiff Padberg, each member of the Classes in the Padberg Action, and any Person claiming by or through Plaintiff Padberg or any member of the Classes in the Padberg Action as his or her spouse, child, heir, associate, co-owner, attorney, agent, administrator, devisee, assignee, executor, successor, predecessor, partner, director, employee, affiliate or other representative of any kind SAC has the meaning set forth in the recitals Settlement Agreement and Release has the meaning set forth in the introduction Settlement Fund has the meaning set forth in Section Page 10 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 10 of 80

11 1.40 Settlement Fund Remainder means the amount remaining in the Settlement Fund (if any) following the payment/reimbursement of (i) certain monetary relief and account credits as set forth in Sections 2.4 and 6.2; (ii) any Service Award, as set forth in Section 2.9; (iii) the costs and expenses of Class Notice that are not advanced by Class Counsel, as set forth in Sections 3 and 6.1; (iv) the costs and expenses associated with maintaining and administering the Settlement Website that are not advanced by Class Counsel, as set forth in Section 3.1(c); and (v) the payments for the services and expenses of the Claims Administrator that are not advanced by Class Counsel, as set forth in Sections 3.2, 3.4, and Settlement Website has the meaning set forth in Section 3.1(c) Upgrade Deadline means that date thirty (30) days following the Effective Date, by which AT120+ Customers who have elected to receive an account credit, as set forth in Sections 2.4(a)(1) and 2.4(b)(1), and Non-AT120+ Customers who are not Non-Upgradeable Customers, as set forth in Section 2.5(a) and 2.5(c), must upgrade their programming or protection or re-sign with DISH as set forth in those sections Upgrade Snapshot Date means that date thirty (30) days following the Upgrade Deadline. 2. SETTLEMENT RELIEF 2.1 Injunctive Relief for the Benefit of Plaintiff Padberg and the Classes. DISH shall cause the following language to appear on the face page of the English-language version of DISH s Digital Home Advantage Plan Agreement (the DHA Plan Agreement ), and any successor agreements thereto, in no less than 10-point font, above where the customer must sign the DHA Plan Agreement: Page 11 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 11 of 80

12 Changes in Prices, Programming, Services and Features: You acknowledge and agree that: Agreements with programming suppliers may expire during the term of your Agreement with DISH. If that occurs, some programming in your DISH services may not be available for some or all of the remaining term of your agreement with DISH, and you will not be entitled to any refund, credit, or other compensation, as more fully set forth in the RCA. DISH has the right, at any time and from time to time without notice (including, without limitation, during any term commitment to which you have agreed), to add, delete, rearrange, alter, change and/or eliminate: (A) any and all prices, fees and/or charges; and/or (B) packages, programming, programming suppliers, services offered by suppliers, software, applications, features and/or functionalities; provided that in doing so DISH exercises its discretion consistent with the parties reasonable expectations at the inception of this Agreement in accordance with the covenant of good faith and fair dealing implied in this Agreement under Colorado law. DISH has the right, without notice at any time (including, without limitation, during any term commitment to which you have agreed), to change your payment terms if you fail to make payments by your payment due date. (customer initials) 2.2 Modified DHA Plan Agreement. Within sixty (60) days following the Effective Date, DISH shall modify the form of DHA Plan Agreement that it provides to new subscribers in the manner reflected in Section 2.1, and shall make analogous changes to the Spanish-language version, and shall post the modified DHA Plan Agreements on its website. 2.3 Monetary Relief for Current and Former Customers. Within ten (10) days following the Effective Date, provided that the Claims Administrator has first provided DISH with a Form W-9 and payment instructions, DISH shall tender Two Million Seven Hundred Thousand and 00/100 Dollars ($2,700,000.00) to the Claims Administrator for deposit into a settlement fund (the Settlement Fund ) to be held by the Claims Administrator and used to pay/reimburse: (i) certain monetary relief and account credits as set forth in Sections 2.4 and 6.2; (ii) any Service Award, as set forth in Section 2.9; (iii) the costs and expenses of the Class Notice that are not advanced by Class Counsel, as set forth in Sections 3 and 6.1; (iv) costs and expenses associated with maintaining and administering the Settlement Website that are not advanced by Class Counsel, as set forth in Section 3.1(c); (v) the payments for the services and expenses of the Claims Administrator that are not advanced by Class Counsel, as set forth in Sections 3.2, 3.4 and 4.3; and (vi) the Fee Award, as set forth in Section Page 12 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 12 of 80

13 2.4 Monetary Relief and Credits for AT120+ Customers. DISH shall provide to each AT120+ Customer, pursuant to the procedures set forth in Section 4, infra, one of the following forms of settlement relief, depending on whether the AT120+ Customer is a Current Customer or a Former Customer. (a) AT120+ Customers Who Are Current Customers. Each AT120+ Customer who is a Current Customer will receive, at his or her election, either: (1) a Five and 00/100 Dollars ($5.00) DISH account credit if he or she, in accordance with Section 2.6, upgrades his or her core DISH programming, adds a qualifying new premium package, or adds or upgrades DISH Protect (Silver, Gold or Platinum) by: (i) electing the credit on the Settlement Website between the date of the Preliminary Approval Order and the Claims Deadline, as set forth in Section 4.1; (ii) so upgrading or adding between the Effective Date and the Upgrade Deadline; and (iii) maintaining such programming or protection upgrade through the Upgrade Snapshot Date; or, alternatively, (2) a Three and 00/100 Dollars ($3.00) cash payment by: (i) electing the payment on the Settlement Website between the date of the Preliminary Approval Order and the Claims Deadline; and (ii) submitting a Claim Form by the Claims Deadline certifying that, at or around the Class Period, he or she did not request and receive a monetary or programming credit from DISH due to the interruption in FOX Programming. For clarity, each AT120+ Customer who is a Current Customer is only eligible for one of the forms of settlement relief listed in subsections (1) and (2) of this Section 2.4(a). (b) Former Customers Who Are AT120+ Customers. Each Former Customer who is an AT120+ Customer will receive, at his or her election, either: Page 13 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 13 of 80

14 (1) a Five and 00/100 Dollars ($5.00) credit towards re-signing with DISH by: (i) electing the credit on the Settlement Website between the date of the Preliminary Approval Order and the Claims Deadline, as set forth in Section 4.1; (ii) re-signing with DISH between the Effective Date and the Upgrade Deadline; and (iii) during his or her sales call to re-sign with DISH, providing DISH the offer code that will be available on the Settlement Website; or, alternatively, (2) a Three and 00/100 Dollars ($3.00) cash payment by: (i) electing the payment on the Settlement Website between the date of the Preliminary Approval Order and the Claims Deadline; and (ii) submitting a Claim Form by the Claims Deadline certifying that, at or around the Class Period, he or she did not request and receive a monetary or programming credit from DISH due to the interruption in FOX Programming. For clarity, each AT120+ Customer who is a Former Customer is only eligible for one of the forms of settlement relief listed in subsections (1) and (2) of this Section 2.4(b). (c) Payment from Settlement Fund. The Parties acknowledge and agree that the Settlement Fund will: (i) in accordance with Section 2.4(a)(1) and 2.4(b)(1), reimburse DISH for the Five and 00/100 Dollars ($5.00) credits to AT120+ Customers on the Credit Claimant List; and (ii) in accordance with Section 2.4(a)(2) and 2.4(b)(2), fund and issue checks for the Three and 00/100 Dollars ($3.00) cash payments. 2.5 Credits for Non-AT120+ Customers. DISH shall provide to each Non-AT120+ Customer, pursuant to the procedures set forth in Section 4, infra, one of the following forms of settlement relief, depending on whether the Non-AT120+ Customer is a Current Customer, Former Customer, or Non-Upgradeable Customer. (a) Non-AT120+ Customers Who Are Current Customers. Current Customers who are neither Non-Upgradeable Customers nor AT120+ Customers will receive a Page 14 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 14 of 80

15 Five and 00/100 Dollars ($5.00) DISH account credit if, in accordance with Section 2.6, they upgrade their core DISH programming, add a qualifying new premium package, or add or upgrade DISH Protect (Silver, Gold or Platinum) by: (i) so upgrading or adding between the Effective Date and the Upgrade Deadline; and (ii) maintaining such programming or protection upgrade through the Upgrade Snapshot Date. The Parties acknowledge and agree that the Settlement Fund will not reimburse DISH for these credits. (b) Non-AT120+ Customers Who Are Non-Upgradeable Customers. Non-Upgradeable Customers who are Non-AT120+ Customers will have a certificate for one (1) pay-per-view movie added to their DISH accounts. Pay-Per-View certificates, which are valid for three (3) months following the date of issuance of each such certificate, can only be redeemed on mydish.com or through DISH s automated phone system at the time of ordering. Each pay-per-view certificate is valid for one (1) Pay-Per-View (currently, channels ) or Video on Demand (currently, channels 1 and 501) movie; provided, however, the value of such pay-per-view certificate will not exceed Six and 99/100 Dollars ($6.99), and cannot be used for movies rented from DISH Anywhere or DISH Movie Pack. The Parties acknowledge and agree that the Settlement Fund will not reimburse DISH for this pay-per-view programming benefit. (c) Non-AT120+ Customers Who Are Former Customers. Former Customers who are Non-AT120+ Customers will receive a Five and 00/100 Dollars ($5.00) credit towards re-signing with DISH by contacting DISH between the Effective Date and the Upgrade Deadline and re-signing with DISH by providing DISH the offer code that will be available on the Settlement Website. The Parties acknowledge and agree that the Settlement Fund will not reimburse DISH for these credits. 2.6 Upgrade in Programming and Protection. (a) Core Programming. For purposes of Sections 2.4 and 2.5, to qualify as an upgrade to DISH core programming, a Current Customer would have to move from his or her then-current DISH core programming package to a then-offered 1 DISH core programming package (or its successor package) on a higher numbered tier as reflected on the following chart: 1 The DISH America and DISH America Silver programming packages are no longer offered Page 15 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 15 of 80

16 Tier General Market Latino 5 America s Top 250 DishLATINO Max 4 [DISH America Silver], America s Top 200 DishLATINO Dos 3 [DISH America], America s Top 120, America s Top 120+ DishLATINO Plus 2 Flex Pack; Smart Pack DishLATINO Clásico 1 Welcome Pack DishLATINO Básico (b) Premium Programming. For purposes of Sections 2.4 and 2.5, to be a qualifying upgrade in premium programming, a Current Customer would have to add to his or her DISH account an HBO, Cinemax, Starz or Showtime package that was not attached to his or her account as of the Effective Date. (c) DISH Protect. DISH Protect Silver provides free or reduced cost technician visits and equipment shipping, and identity restoration services through EZShield. In addition to the benefits offered by DISH Protect Silver, DISH Protect Gold adds identity monitoring through EZShield, Internet security through WebRoot and Tech Advisor Support on entertainment devices. In addition to the benefits offered by DISH Protect Silver and DISH Protect Gold, DISH Protect Platinum adds a whole home device protection plan through DISH Protect Tech Advisor, and a Premium Whole Home Device Protection Plan powered by Asurion. DISH Protect Gold and DISH Protect Platinum are available only to residential DISH customers who have a valid address on their DISH account. Residents of Puerto Rico are not eligible for DISH Protect Platinum. For purposes of Sections 2.4 and 2.5, to be eligible for the Five and 00/100 Dollars ($5.00) account credit, a Current Customer who does not have DISH Protect would need to purchase any level of DISH Protect (Silver, Gold, or Platinum), while a Current Customer who already has DISH Protect Silver would need to upgrade to either DISH Protect Gold or DISH Protect Platinum, and a Current Customer who has DISH Protect Gold would need to upgrade to DISH Protect Platinum. 2.7 Disbursement of Monetary Relief and Credits. Provided that members of the Classes meet the applicable conditions set forth in Sections 2.4, 2.5, 2.6 and 4, monetary relief and credits shall be provided as follows: (a) Cash Payments to AT120+ Customers. Any checks issued pursuant to Page 16 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 16 of 80

17 Section 2.4 shall be distributed by the Claims Administrator within sixty (60) days following the Effective Date, provided that the Claims Administrator shall use commercially reasonable efforts to distribute such checks as soon as reasonably practicable following the Effective Date. (b) Credits to Current Customers. Current Customers who are eligible to receive the Five and 00/100 Dollars ($5.00) account credit pursuant to Sections 2.4(a) and 2.5(a) will automatically receive a Five and 00/100 Dollars ($5.00) credit on their DISH account within ten (10) days following the Upgrade Snapshot Date, provided that they still have an active DISH account (i.e., not hard disconnected or soft disconnected) as of that date. (c) Credits to Former Customers. Former Customers who are eligible to receive the Five and 00/100 Dollars ($5.00) re-signing credit pursuant to Sections 2.4(b) and 2.5(c) will receive a Five and 00/100 Dollars ($5.00) credit on their first DISH bill. (d) Non-Upgradeable Customers. Pursuant to Section 2.5(b), Current Customers who are Non-Upgradeable Customers and are Non-AT120+ Customers will automatically have a Pay-Per-View certificate added to their DISH account within ten (10) days following the Upgrade Snapshot Date. 2.8 Fee Award to Class Counsel. DISH agrees not to oppose (or solicit others to oppose), and Class Counsel agrees that it shall submit, an application for attorneys fees, costs and expenses to Class Counsel equal to the Settlement Fund Remainder. Class Counsel further agrees that, notwithstanding any Fee Award in an amount higher than the Settlement Fund Remainder, Class Counsel will not enforce or attempt to enforce such Fee Award to the extent that it exceeds the Settlement Fund Remainder. In the event the Court approves Class Counsel s fee application, within sixty (60) days following the Upgrade Snapshot Date, but only after the Claims Administrator has first tendered (i) certain monetary relief and account credits as set forth in Sections 2.4 and 6.2; (ii) any Service Award, as set forth in Section 2.9; (iii) the costs and expenses of Class Notice that are not advanced by Class Counsel, as set forth in Sections 3 and 6.1; (iv) the costs and expenses associated with maintaining and administering the Settlement Website that are not advanced by Class Counsel, as set forth in Section 3.1(c); and (v) the payments for the services and expenses of the Claims Administrator that are not advanced by Class Counsel, as set forth in Sections 3.2, 3.4, and 4.3, then the Claims Administrator shall Page 17 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 17 of 80

18 tender to Class Counsel in the form of a check payable to Goldenberg Heller & Antognoli, P.C., the Fee Award, provided that Class Counsel provides an executed Form W-9 to the Claims Administrator within seven (7) days following the Upgrade Snapshot Date. 2.9 Service Award to Plaintiff Padberg. The Court will determine any service award to Plaintiff Padberg to compensate the Class Representative for his time, effort and diligence in prosecuting the case (the Service Award ). If the Court approves a Service Award, it will be paid from the Settlement Fund. DISH agrees not to oppose (or solicit others to oppose) an application by Plaintiff Padberg for a Service Award not to exceed fifteen thousand and 00/100 Dollars ($15,000.00) Conditions for Dissolution of Injunction. DISH shall be bound by the terms and conditions of the injunction described in Section 2.1 above for a period of two (2) years following the Effective Date Injunction Costs and Expenses. DISH will pay all costs and expenses in connection with implementing internal procedures to comply with the terms and conditions of the injunction described in Section 2.1 above Fees, Costs and Expenses. Other than the Fee Award and other expenses explicitly provided for in this Settlement Agreement and Release, Plaintiff Padberg, the members of the Classes, and DISH shall bear their own attorneys fees, costs, and expenses associated with the Padberg Action, and/or this Settlement Agreement and Release, including in connection with finalizing this Settlement Agreement and Release. No Person who objects to this settlement shall be entitled to reimbursement from any Party of any associated attorneys fees, costs or expenses. Other than the payments paid out of the Settlement Fund, as approved by the Court, members of the Classes shall not be responsible for paying any part of the agreed fees, costs, expenses described in this Settlement Agreement and Release, including, without limitation, the Service Award and the Fee Award No Tax Liability. Under no circumstances whatsoever will DISH or DISH s Counsel have any liability for taxes or tax expenses that Plaintiff Padberg and/or Class Counsel Page 18 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 18 of 80

19 may incur in connection with the payments under Section 2.8 and/or Section 2.9 of this Settlement Agreement and Release. 3. NOTICE TO THE CLASSES. 3.1 Subject to Court approval, the Claims Administrator shall cause the Class Notice to be provided by the following methods: (a) Notice. Within seven (7) days following entry of the Preliminary Approval Order, DISH shall provide to the Claims Administrator a database identifying the members of the Classes. The Claims Administrator shall cause the Class Notice to be sent via to all AT120+ Customers for which DISH maintains valid addresses. DISH shall cause the Class Notice to be sent via to all Non-AT120+ Customers for which DISH maintains valid addresses. The Parties acknowledge and agree that they believe that approximately six million six hundred thousand (6.6 million) out of the approximately nine million five hundred thousand (9.5 million) members of the Classes will receive the Class Notice via . The Class Notice via will be sent within thirty (30) days following the entry of the Preliminary Approval Order. All costs and expenses incurred by DISH in connection with the Class Notice sent via shall be reimbursed to DISH out of the Settlement Fund in accordance with Section 6.1, such costs and expenses not to exceed Fifteen Thousand and 00/100 Dollars ($15,000.00). (A copy of the form of the Class Notice via is attached as Exhibit C to this Settlement Agreement and Release.) (b) Mail Notice. The Claims Administrator shall cause the Class Notice to be sent by postcard to each AT120+ Customer for which DISH does not maintain an address, and each AT120+ Customer to whom Class Notice sent via bounced back as undeliverable. The Class Notice sent by postcard will be sent no later than forty-five (45) days following the entry of the Preliminary Approval Order. (A copy of the form of the Class Notice sent by postcard is attached as Exhibit D to this Settlement Agreement and Release.) (c) Settlement Website. A website currently exists for this Action at: (the Settlement Website ). No later than seven (7) days following the entry of the Preliminary Approval Order, the Claims Administrator will Page 19 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 19 of 80

20 update the Settlement Website to include the Class Notice, applicable deadlines, orders of the Court pertaining to the settlement, and this Settlement Agreement and Release. (A copy of the Class Notice to be displayed on the Settlement Website is attached as Exhibit E to this Settlement Agreement.) Prior to the sending of the Class Notice via , the Claims Administrator will update the Settlement Website to include: (i) the electronic process described in Section 4 by which AT120+ Customers may elect their relief; and (ii) a section describing the timing and procedures by which Non-AT120+ Customers may contact DISH to upgrade or resign and obtain the Five and 00/100 Dollars ($5.00) account credits described in Section 2.5. The Settlement Website will subsequently be updated with relevant documents and information related to this Settlement, such as Court filings and contact information for questions. (d) Online Advertising. The Claims Administrator shall develop and distribute, subject to DISH's prior review and approval, online advertisements to notify members of the Classes regarding this Settlement Agreement and Release. The online advertisements will be distributed as set forth in Exhibit F, a copy of which is attached to this Settlement Agreement and Release and will link to and direct those who click on the advertisements to the Settlement Website. The online advertisements will launch within twenty-one (21) days following entry of the Preliminary Approval Order and will continue for twenty (21) days following the original date such original advertisement is displayed. The Claims Administrator estimates that, in addition to the Class Notice to be sent via and the Class Notice to be sent by postcard, the online advertisements as set forth in Exhibit F, will produce more than forty-eight (48) million digital notice impressions and will reach approximately seventy-five percent (75%) of the target audience that includes members of the Classes at an estimated 2.0x frequency. 3.2 All costs and expenses associated with preparing and publishing the Class Notice in the manner described above shall be funded by the Settlement Fund; provided, however, pursuant to Section 3.1(a), all costs and expenses incurred by DISH in connection with the Class Notice sent via shall be reimbursed to DISH out of the Settlement Fund in accordance with Section 6.1, such costs and expenses not to exceed Fifteen Thousand and 00/100 Dollars ($15,000.00). Class Counsel may advance funds to the Claims Administrator to cover the Class Notice sent via , pursuant to Section 3.1(a), and the Class Notice sent by postcard, pursuant to Section 3.1(b), which advances may be included in the Fee Award, as approved by the Court Page 20 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 20 of 80

21 All costs and expenses that are not advanced by Class Counsel and are incurred by the Claims Administrator in connection with the Class Notice sent via , pursuant to Section 3.1(a), and the Class Notice sent by postcard, pursuant to Section 3.1(b), shall be reimbursed to the Claims Administrator out of the Settlement Fund in accordance with Section No later than ten (10) days following the date on which this Settlement Agreement and Release is filed with the Court, DISH shall provide notice to appropriate federal and state officials as may be required by 28 U.S.C Class Counsel may advance funds to the Claims Administrator to cover the development and distribution of online advertisements, pursuant to Section 3.1(d), and maintenance and administration of the Settlement Website, pursuant to Section 3.1(c), which advances may be included in the Fee Award, as approved by the Court. All costs and expenses that are not advanced by Class Counsel and are incurred by the Claims Administrator in connection with developing and distributing online advertisements, pursuant to Section 3.1(d), and maintaining and administering the Settlement Website, pursuant to Section 3.1(c), shall be reimbursed to the Claims Administrator out of the Settlement Fund in accordance with Section CLAIMS PROCEDURES The Claims Administrator shall issue and process claims for settlement relief by members of the Classes in accordance with the requirements of the Preliminary Approval Order and Padberg Final Judgment, as follows: 4.1 Claim Procedure for AT120+ Customers. The Parties acknowledge and agree that the Settlement Website will contain a section dedicated to processing claims for AT120+ Customers, which, as set forth above, must be made by the Claims Deadline. (a) Creation of Unique Claim ID for AT120+ Customers. The Claims Administrator will create and assign to each AT120+ Customer a unique Claim ID, which will be included on the Class Notice sent via and postcard to the AT120+ Customers described in Section 3.1(a) and 3.1(b), respectively Page 21 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 21 of 80

22 (b) Procedure for Making Claim. The Class Notice sent via or by postcard will direct AT120+ Customers to the section of the Settlement Website where they may elect their relief. Upon arriving at this section of the Settlement Website, each AT120+ Customer will be prompted to enter his or her unique Claim ID. Following entry of his or her unique Claim ID, the Settlement Website will ask the AT120+ Customer to select whether he or she wishes to receive: (i) the Five and 00/100 Dollars ($5.00) credit for upgrading (if for a Current Customer) or re-signing (if for a Former Customer), as described in Sections 2.4(a)(1) and 2.4(b)(1); or (ii) the Three and 00/100 Dollars ($3.00) cash payment, as described in Sections 2.4(a)(2) and 2.4(a)(2). i. If the AT120+ Customer is a Current Customer who elects to obtain the Five and 00/100 Dollars ($5.00) credit for upgrading programming or protection, the Settlement Website will advise such AT120+ Customer how and when to contact DISH directly to upgrade (see Sections 2.4(a)(1)). ii. iii. If the AT120+ Customer is a Former Customer who elects to obtain the Five and 00/100 Dollars ($5.00) credit for re-signing with DISH, the Settlement Website will display: (1) an offer code for such AT120+ Customer to use during the phone call when re-signing with DISH; and (2) how and when to contact DISH directly to re-sign (see Section 2.4(b)(2)). If the AT120+ Customer elects to obtain the Three and 00/100 Dollars ($3.00) cash payment, the Settlement Website will present an electronic Claim Form that will require such AT120+ Customer to: (1) enter his or her contact information, including the address to which the payment should be mailed; and (2) certify that, at or around the Class Period, he or she did not request and receive a monetary or programming credit from DISH due to the interruption in FOX Programming. (c) Claim Deadline and Transfer of Claimant Information to DISH. AT120+ Customers must complete the claims procedure in accordance with Sections 2.4, 2.6 and 4.1(b) (as applicable) before the Claims Deadline. Within five (5) days following the Claims Page 22 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 22 of 80

23 Deadline, the Claims Administrator shall provide DISH with the Credit Claimant List. DISH will utilize the Credit Claimant List to determine which AT120+ Customers are eligible for the account credits as provided in Section Claim Procedure for Non-AT120+ Customers. The Parties acknowledge and agree that because Non-AT120+ Customers do not need to make an election for relief, such Non- AT120+ Customers do not need to make a claim on the Settlement Website. Nonetheless, the Class Notice and the Settlement Website will include details describing the timing and procedures by which Non-AT120+ Customers may contact DISH to upgrade or re-sign and obtain the Five and 00/100 Dollars ($5.00) account credits described in Section 2.5. (a) Procedure for Non-AT120+ Customers Who Are Current Customers. To obtain the Five and 00/100 Dollars ($5.00) credit, Non-AT120+ Customers who are Current Customers must contact DISH and upgrade programming or protection by the Upgrade Deadline and maintain such upgrade or protection through the Upgrade Snapshot Date. (b) Procedure for Non-AT120+ Customers Who Are Former Customers. To obtain the Five and 00/100 Dollars ($5.00) credit, Non-AT120+ Customers who are Former Customers must obtain an offer code from the Settlement Website, contact DISH, and re-sign using the offer code by the Upgrade Deadline. The Settlement Website will also advise Non- AT120+ Customers who are Former Customers how and when to contact DISH to re-sign. (c) Procedure for Non-Upgradeable Customers. Because Non- Upgradeable Customers will automatically have a Pay-Per-View Certificate added to their DISH account within ten (10) days following the Upgrade Snapshot Date, Non-Upgradeable Customers do not need to take any action to receive this benefit. 4.3 Payment to Claims Administrator. As compensation for its services set forth herein, and pursuant to Sections 3.2 and 3.4, the Claims Administrator shall be reimbursed for its costs and expenses that are not advanced by Class Counsel and that are incurred in connection with: (a) the Class Notice via , pursuant to Section 3.1(a); (b) the Class Notice by postcard, pursuant to Section 3.1(b); (c) the maintenance and administration of the Settlement Website, pursuant to Section 3.1(c); and (d) the development and distribution of the online advertisements, Page 23 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 23 of 80

24 pursuant to Section 3.1(d). On or before the Effective Date, the Claims Administrator shall provide to Class Counsel an itemization of its costs and expenses that have not been advanced by Class Counsel in connection with these services. Unless objected to by Class Counsel and/or modified by the Court, the Claims Administrator may draw the requested amounts out of the Settlement Fund within thirty (30) days following the Effective Date. 5. CONCLUSION OF PADBERG ACTION AND GENERAL RELEASE. 5.1 Resolution of Lawsuit. As soon as practicable following execution of this Settlement Agreement and Release, Class Counsel will take all necessary steps to secure the Court s approval of this Settlement Agreement and Release and the entry of the Padberg Final Judgment in the form of Exhibit B attached hereto. 5.2 Release by Plaintiff Padberg and The Class. As of the Effective Date, the Releasing Persons absolutely, unconditionally and irrevocably release and forever discharge the Released Persons from the Released Claims. 6. PROCEDURES FOR REIMBURSEMENTS TO DISH 6.1 Reimbursement for Expenses of the Class Notice Via . On or before the Effective Date, DISH shall provide to the Claims Administrator and Class Counsel an itemization of its costs and expenses incurred in connection with the Class Notice via for which it seeks reimbursement pursuant to Section 3.1(a). Unless modified by the Court, the Claims Administrator shall tender to DISH the requested reimbursement within thirty (30) days following the Effective Date. 6.2 Reimbursement for Account Credits to AT120+ Customers. To obtain reimbursement from the Settlement Fund for account credits as provided in Section 2.4, DISH shall, within thirty (30) days following the Upgrade Snapshot Date, provide the Claims Administrator the identity of each AT120+ Customer who received a Five and 00/100 Dollars ($5.00) account credit pursuant to Sections 2.4. Within sixty (60) days following the Upgrade Snapshot Date, the Claims Administrator shall tender to DISH the reimbursement representing Five and 00/100 Dollars ($5.00) for each AT120+ Customer who was on the Credit Claimant Page 24 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 24 of 80

25 List and received a Five and 00/100 Dollars ($5.00) account credit from DISH pursuant to Sections CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION, OR TERMINATION. 7.1 The Parties agree that no Party shall conduct discovery against any of the others pending the Preliminary Approval Order, and that, upon the Preliminary Approval Order, all discovery and other proceedings in the Action shall be stayed until further order of the Court, except such proceedings as may be necessary either to implement, or to comply with or effectuate the terms and conditions of, this Settlement Agreement and Release. 7.2 In the event that any of the events or conditions described in Section 1.16 above are not met or do not occur, and the events or conditions are not mutually waived in writing: (a) this Settlement Agreement and Release shall become null and void in its entirety; (b) the Parties shall return to their respective positions in this lawsuit as those positions existed immediately before the Parties executed this Settlement Agreement and Release and the Parties shall coordinate with the Court to establish a new case scheduling order with revised case deadlines and a new trial date for the lawsuit; and (c) nothing stated in this Settlement Agreement and Release, or in any of its exhibits, shall be deemed an admission of any kind by any of the Parties or used as evidence against, or over the objection of, any of the Parties for any purpose in the Padberg Action, or in any other action. In particular, without limitation, DISH will retain the right to contest whether the Padberg Action should be maintained as a class action or collective action and to contest the merits of the claims being asserted by Plaintiff Padberg and the Classes. 8. MISCELLANEOUS PROVISIONS 8.1 DISH s Denial of Wrongdoing. This Settlement Agreement and Release reflects the Parties compromise and settlement of the disputed claims. Its provisions, and all related drafts, communications and discussions, cannot be construed as or deemed to be evidence of an admission or concession by DISH of any wrongdoing or matters respecting class certification, by any Person or entity and cannot be offered or received into evidence or requested in discovery in Page 25 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 25 of 80

26 the Padberg Action, or any other action or proceeding as evidence of an admission, concession, or presumption regarding such matters. 8.2 Real Parties in Interest. In executing this Settlement Agreement and Release, the Parties represent, warrant and covenant that they, including Plaintiff Padberg in his representative capacity on behalf of the Classes, have not directly or indirectly assigned, granted, transferred or encumbered (or purported to assign, grant, transfer or encumber) in any way to any other person any interest in any of the Released Claims. 8.3 Court Approval. Promptly following the execution of this Settlement Agreement and Release, Class Counsel shall submit this Settlement Agreement and Release to the Court and, with the support of DISH, shall move the Court for Approval of the settlement set forth in this Settlement Agreement and Release and entry of a Preliminary Approval Order in the form attached as Exhibit A. The Parties: (a) acknowledge that it is their intent to consummate this Settlement Agreement and Release; and (b) agree, subject to their legal obligations, to cooperate to the extent reasonably necessary to effectuate and implement all terms and conditions of this Settlement Agreement and Release and to exercise their commercially reasonable efforts to accomplish the terms and conditions of this Settlement Agreement and Release. The Parties agree to cooperate with one another in seeking Court approval of this Settlement Agreement and Release, including by responding to any objectors, intervenors or other persons or entities seeking to preclude the final approval of this Settlement Agreement, and promptly to agree upon and execute all such other documentation as may be reasonably required to obtain approval of this Settlement Agreement and Release. 8.4 Voluntary Agreement. Each Party executes this Settlement Agreement and Release voluntarily of the Party s own free will and without threat, force, fraud, duress, undue influence or coercion of any kind. 8.5 Binding on Successors and Assigns. This Settlement Agreement and Release shall be binding upon the Parties and their respective heirs, administrators, legal representatives, executors, successors and permitted assigns, and shall inure to the benefit of said Parties and each of them, and to their respective heirs, administrators, legal representatives, executors, successors and permitted assigns. Plaintiff Padberg expressly warrants that he has not Page 26 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 26 of 80

27 transferred to any person or entity any rights, causes of action, or claims released in this Settlement Agreement and Release. 8.6 Parties Represented by Counsel. The Parties acknowledge that: (a) they have been represented by independent counsel of their own choosing during the negotiation of this settlement and the preparation of this Settlement Agreement and Release; (b) they have read this Settlement Agreement and Release and are fully aware of its terms and conditions; and (c) their respective counsel fully explained to them this Settlement Agreement and Release and its legal effect. 8.7 Authorization. Each Party warrants and represents that there are no liens or claims of lien or assignments, in law or equity, against any of the claims or causes of action released under this Settlement Agreement and Release and, further, that each Party is fully entitled and duly authorized to give this complete and final release and discharge. 8.8 Entire Agreement. This Settlement Agreement and Release and attached exhibits constitute the complete and final agreement and understanding between the Parties concerning the Padberg Action, and supersedes and replaces all prior negotiations, and proposed agreements, written, oral or implied, regarding the subject matter hereof made or existing before the Effective Date. This Settlement Agreement and Release is executed without reliance on any promise, representation, or warranty by any Party or any Party s representative other than those expressly set forth in this Settlement Agreement and Release. 8.9 Construction and Interpretation. This Settlement Agreement and Release has been negotiated as a result of lengthy, intensive, arms length negotiations between unrelated Parties who are sophisticated and knowledgeable in the matters contains in this Settlement Agreement and Release and who have acted in their own self-interest. In addition, each Party has been represented by legal counsel. This Settlement Agreement and Release shall be deemed to have been jointly-drafted by the Parties, and no ambiguity or claimed ambiguity shall be resolved against any Party on the basis that such Party drafted the language claimed to be ambiguous nor shall the extent to which any Party or his or her counsel s participation in drafting this Settlement Agreement and Release be construed in favor of or against any Party Page 27 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 27 of 80

28 8.10 No Waiver. No failure or delay on the part of any Party in the exercise or enforcement of any right or privilege hereunder shall operate as a waiver of such right or privilege, or of any other right or privilege hereunder. No single or partial exercise or enforcement of any right or privilege hereunder shall preclude other or further exercise or enforcement thereof or of any other right or privilege Headings and Interpretations. The various headings and paragraph titles used in this Settlement Agreement and Release are solely for the Parties convenience and reference, and in no way define, limit, extend or describe the scope of this Settlement Agreement and Release, or any provision hereof. Each term and condition of this Settlement Agreement and Release is contractual and not merely a recital Exhibits. The exhibits to this Settlement Agreement and Release are integral parts of this Settlement Agreement and Release and are hereby incorporated into this Settlement Agreement and Release by this reference in their entirety Modifications and Amendments. This Settlement Agreement and Release may not be changed, altered or modified, except in a writing signed by all of the Parties hereto, and approved by the Court. This Settlement Agreement and Release may not be discharged except by performance in accordance with its terms and conditions or by a writing signed by all of the Parties hereto, and approved by the Court Governing Law. This Settlement Agreement and Release shall be interpreted, construed enforced in accordance with, and is governed by the laws of the state of Colorado without regard to conflict of laws principles Further Assurances. The Parties must execute and deliver any additional papers, documents and other assurances, and must do any other acts, that are reasonably necessary to perform their obligations under this Settlement Agreement and Release and to carry out this Settlement Agreement and Release s expressed intent Agreement Constitutes a Complete Defense. To the extent permitted by law, this Settlement Agreement and Release may be pled as a full and complete defense to any action, Page 28 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 28 of 80

29 suit, or other proceedings that may be instituted, prosecuted or attempted against the Released Persons contrary to this Settlement Agreement and Release Execution Date. This Settlement Agreement and Release is deemed executed on the date that this Settlement Agreement and Release is signed by all of the undersigned Counterparts. This Settlement Agreement and Release may be executed in counterparts, each of which constitutes an original, and when taken together with signed counterparts, shall constitute one fully-executed Settlement Agreement and Release, which shall be binding upon and effective as to all Parties. Photocopies, PDFs, or facsimiles of executed copies of this Settlement Agreement and Release may be treated as originals. Digital and electronic signatures shall be treated as valid, original signatures Recitals. The recitals are incorporated into this Settlement Agreement and Release by this reference in their entirety Severability. If any provision of this Settlement Agreement and Release is held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, which shall continue in full force and effect without being impaired or invalidated in any way, and, such invalid, illegal or unenforceable provision shall be restated by a court of competent jurisdiction to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law Inadmissibility. This Settlement Agreement and Release is intended solely as a compromise of disputed claims. Neither the fact of a Party s entry into this Settlement Agreement and Release, nor the fact of the settlement of the Padberg Action reflected in this Settlement Agreement and Release, nor the terms and conditions hereof, nor any acts undertaken pursuant hereto, shall constitute an admission or concession by any Party regarding liability or the validity of any claim in the Padberg Action. By entering into this Settlement Agreement and Release, DISH is not admitting any liability, and any and all such liability is expressly denied. This Settlement Agreement and Released is a settlement document and shall, pursuant to California Evidence Code Section 1152 and/or Federal Rule of Evidence 408 and/or any other similar law, be inadmissible in evidence in any proceeding, except an action or proceeding to Page 29 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 29 of 80

30 approve the settlement, and/or interpret or enforce this Settlement Agreement and Release. Further, neither this Settlement Agreement and Release, the settlement contemplated by it, nor any proceedings taken under it, will be construed or offered or received into evidence as an admission, concession or presumption that class certification is appropriate, except to the extent necessary to consummate this Settlement Agreement and Release and the binding effect of the Padberg Final Judgment. This Settlement Agreement and Release is made without prejudice to the rights of DISH to oppose certification of a class or classes and/or seek decertification of a class or classes should this Settlement Agreement and Release not be approved or implemented or should the Effective Date not occur Confidentiality. Plaintiff Padberg, members of the Classes, and Class Counsel, including their experts and consultants, agree that they will not use any confidential material obtained, derived, or created in connection with the Padberg Action for any purpose unrelated to the Padberg Action Media Statements. Except as otherwise expressly agreed to in writing, DISH, DISH s Counsel, Plaintiff Padberg, and Class Counsel agree not to make any oral or written statements to the press regarding the Padberg Action or this Settlement Agreement and Release. Class Counsel and DISH s Counsel reserve the right to post neutral statements confirming the existence of this Settlement Agreement and Release on their websites No Conflict Intended. Any inconsistency between this Settlement Agreement and Release and the attached exhibits will be resolved in favor of this Settlement Agreement and Release. List of Exhibits. The following exhibits are hereby attached to this Settlement Agreement and Release and incorporated herein by this reference in their entirety: Exhibit A Preliminary Approval Order; Exhibit B Padberg Final Judgment in Padberg Action; Exhibit C Class Notice to be sent via ; Exhibit D Class Notice to be sent by postcard; Page 30 of 30 Case 2:11-cv NKL Document Filed 01/19/18 Page 30 of 80

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