Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 1 of 7 PageID# 4078

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1 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 1 of 7 PageID# 4078 FRANCIS W. HOOKER, Jr., for himself and on behalf of all similarly situated individuals, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NEWPORT NEWS DIVISION v. Plaintiff, Case No.: 4:13-cv (AWA/LRL) SIRIUS XM RADIO INC. Defendant. NOTICE OF AMENDMENT TO SETTLEMENT AGREEMENT Class Representatives Francis W. Hooker, Jr., Eric Knutson, Yefim Elikman, and Anthony Parker ( Plaintiffs ), and Defendant Sirius XM Radio Inc. ( Sirius XM ) (together, the Parties ), submit this Notice of Amendment to their class action settlement agreement (the Agreement ). The Amendment, attached hereto as Exhibit 1, makes no substantive change to the Agreement s terms, but merely clarifies the parties original intent to limit the Agreement s release provision to claims arising out of calls placed by or on behalf of Sirius XM. In this action, Plaintiff Francis W. Hooker, Jr. asserts class claims against Sirius XM for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. 227, et seq. ( TCPA ) on behalf of persons who allegedly received autodialed telemarketing calls placed by Sirius XM or its telemarketing vendors. As detailed in the Memorandum In Support of Motion For Preliminary Approval of Class Action Settlement, (Dkt. 186), the parties reached a settlement on a class-wide basis on August 5, This Court preliminarily approved the settlement on August 18, (Dkt. 188.)

2 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 2 of 7 PageID# 4079 Pursuant to the Settlement Agreement, the Settlement Class members agree to release certain claims in exchange for the settlement benefits (the Release ). Specifically, the Release reads: 5. Release. a. In addition to the effect of any orders and final judgments entered in accordance with this Agreement, the Named Plaintiffs and any Class Member who has not timely excluded himself or herself as provided below (individually, a Releasing Party, and collectively, the Releasing Parties ), whether or not that Class Member objects to the Settlement, shall be bound by this Agreement and shall have recourse only to the benefits, rights and remedies provided hereunder. The Releasing Parties shall release and forever discharge Sirius XM, its past, present or future officers, directors, insurers, general or limited partners, divisions, stockholders, agents, the telemarketing vendors currently known as Afni, Convergys, Dial America, ipacesetters, Results, Servicom, StraightForward, Sykes and Career Horizons, Inc. dba TeleServices Direct, attorneys, employees, legal representatives, trustees, parents, associates, affiliates, subsidiaries, partners, heirs, executors, administrators, purchasers, predecessors, successors and assigns (collectively, the Released Parties ) from any and all claims, counterclaims, lawsuits, set-offs, costs, losses, rights, demands, charges, complaints, actions, causes of action, obligations, or liabilities of any and every kind, including without limitation (i) those known or unknown or capable or not capable of being known, (ii) those which are unknown but might be discovered or discoverable, and (iii) those accrued, unaccrued, matured or not matured, all from the beginning of the world until today, that arise out of or in any way relate or pertain to claims, no matter how styled, (a) that were asserted, or attempted to be asserted, or that could have been asserted in the Cases, or (b) alleging use by any or all of the Released Parties or by any vendor retained by the Released Parties of any automatic telephone dialing system, automatic dialer, automated dialer, predictive dialer, dialer, and/or any artificial or prerecorded voice (to the fullest extent that those terms are used, defined, or interpreted under the TCPA, relevant regulatory or administrative promulgations, and case law) to make telephone calls to a wireless, cell or mobile telephone number in connection with efforts to contact or attempt to contact Class Members, including but not limited to (i) claims arising under or relating to the TCPA or any similar state or federal law, (ii) statutory or common law claims predicated upon any alleged violations of the TCPA or any similar state or federal law, and (iii) statutory or common law claims predicated upon and/or arising from the use by any or all of the Released Parties or by any vendor retained by the Released Parties of any automatic telephone dialing system, automatic dialer, automated dialer, predictive dialer, dialer, and/or artificial or prerecorded voice (collectively, the Released Rights ). The Release in this Section shall be included as part of any judgment, so that all Released Rights shall be barred by principles of res judicata, collateral estoppel, and claim and issue preclusion. 2

3 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 3 of 7 PageID# 4080 (Dkt a.) After the notice required by the Class Action Fairness Act, 28 U.S.C. 1715, (see Dkt. 187), the Attorneys General of California, Texas, and New York contacted counsel for the Parties and expressed concern that the Release could be interpreted to extend to claims arising out of calls other than those placed by or on behalf of Sirius XM. After discussing the issue with the Attorneys General, the Parties agreed to make a slight modification to the Release to clarify the parties original intent to limit the release to calls placed by or on behalf of Sirius XM. This clarification is achieved by simply adding the words on behalf of Sirius XM to the Release: 1 5. Release. a. In addition to the effect of any orders and final judgments entered in accordance with this Agreement, the Named Plaintiffs and any Class Member who has not timely excluded himself or herself as provided below (individually, a Releasing Party, and collectively, the Releasing Parties ), whether or not that Class Member objects to the Settlement, shall be bound by this Agreement and shall have recourse only to the benefits, rights and remedies provided hereunder. The Releasing Parties shall release and forever discharge Sirius XM, its past, present or future officers, directors, insurers, general or limited partners, divisions, stockholders, agents, the telemarketing vendors currently known as Afni, Convergys, Dial America, ipacesetters, Results, Servicom, StraightForward, Sykes and Career Horizons, Inc. dba TeleServices Direct, attorneys, employees, legal representatives, trustees, parents, associates, affiliates, subsidiaries, partners, heirs, executors, administrators, purchasers, predecessors, successors and assigns (collectively, the Released Parties ) from any and all claims, counterclaims, lawsuits, set-offs, costs, losses, rights, demands, charges, complaints, actions, causes of action, obligations, or liabilities of any and every kind, including without limitation (i) those known or unknown or capable or not capable of being known, (ii) those which are unknown but might be discovered or discoverable, and (iii) those accrued, unaccrued, matured or not matured, all from the beginning of the world until today, that arise out of or in any way relate or pertain to claims, no matter how styled, (a) that were asserted, or attempted to be asserted, or that could have been asserted in the Cases, or (b) alleging use by any or all of the Released Parties or by any vendor retained by the Released Parties of any automatic telephone dialing system, automatic dialer, automated dialer, predictive dialer, dialer, and/or any artificial or prerecorded voice (to the fullest extent that those terms are used, defined, or interpreted under the TCPA, relevant regulatory or administrative promulgations, and case law) to make telephone calls to a wireless, cell or mobile 1 The Amendment is not intended to amend or modify any other provisions of the Settlement Agreement, all of which remain in full force and effect. 3

4 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 4 of 7 PageID# 4081 telephone number in connection with efforts to contact or attempt to contact Class Members on behalf of Sirius XM, including but not limited to (i) claims arising under or relating to the TCPA or any similar state or federal law, (ii) statutory or common law claims predicated upon any alleged violations of the TCPA or any similar state or federal law, and (iii) statutory or common law claims predicated upon and/or arising from the use by any or all of the Released Parties or by any vendor retained by the Released Parties of any automatic telephone dialing system, automatic dialer, automated dialer, predictive dialer, dialer, and/or artificial or prerecorded voice (collectively, the Released Rights ). The Release in this Section shall be included as part of any judgment, so that all Released Rights shall be barred by principles of res judicata, collateral estoppel, and claim and issue preclusion. (Ex. 1 at 2) (emphasis added). This Amendment does not broaden the scope of the release. To the contrary, it clarifies its intended narrow scope. The words on behalf of Sirius XM were added to avoid any uncertainty regarding the entities to be released under the settlement. As amended, there can be no doubt that the Settlement releases only claims against Sirius XM and entities calling on behalf of Sirius XM. The Release as modified is acceptable to the Attorneys General of California, Texas, and New York. The Amendment will be posted, along with the other settlement documents, on the settlement website, No additional notice is required, because the Amendment can only benefit class members by clarifying that they will release no claims other than those arising out of calls made by or on behalf of Sirius XM. See In re Diet Drugs Prods. Liab. Litig., MDL No. 1203, No. 99-cv-0593, 2000 U.S. Dist. LEXIS 12304, at *20 (E.D. Pa. Aug. 16, 2000) ( [T]he proposed changes clarify and correct Settlement terms in a way that does not prejudice class members rights. In the interest of justice, the court will allow the Fourth Amendment [to the settlement agreement] ); Harris v. Graddick, 615 F. Supp. 239, 244 (M.D. Ala. 1985) (declining to require additional notice to class members of amendment to proposed settlement where the interests of the plaintiff class [were] in no way impaired by the amendment ); In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 473 n.10 (D.N.J. 1997) ( Class members need not be informed of the [amendment to the settlement agreement] because the [settlement] is only more valuable with these changes ); see also, In re 4

5 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 5 of 7 PageID# 4082 Processed Egg Prods. Antitrust Litig., 284 F.R.D. 278, 295 n.16 (E.D. Pa. 2012) (holding that an error in the date regarding the end of the class period did not require new notice to the settlement class because the error would not have caused class members to fail to understand the terms of the settlement agreement or refrain from opting out or objecting to the agreement). The Parties therefore respectfully request that the Court take notice of the attached Amendment. Date: November 16, 2016 Respectfully submitted, Michael A. Caddell (pro hac vice) mac@caddellchapman.com Cynthia B. Chapman (pro hac vice) cbc@caddellchapman.com CADDELL & CHAPMAN 628 East 9th Street Houston, TX Telephone: (713) Fax: (713) /s/ Christopher C. North Christopher Colt North (VSB # 16995) cnorthlaw@aol.com William L. Downing (VSB # 17704) wdowninglaw@aol.com THE CONSUMER & EMPLOYEE RIGHTS LAW FIRM, P.C. 751-A Thimble Shoals Blvd. Newport News, VA Tel: (757) Fax: (757)

6 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 6 of 7 PageID# 4083 Abbas Kazerounian (pro hac vice) ak@kazlg.com Kazerouni Law Group, APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA Tel.: (800) Fax: (800) Attorneys for Plaintiff William V. O Reilly (VSB # 26249) Jeffrey A. McSorley (VSB # 68437) 51 Louisiana Avenue, N.W. Washington, DC Tel: (202) Fax: (202) woreilly@jonesday.com jamcsorley@jonesday.com Thomas Demitrack (admitted pro hac vice) North Point 901 Lakeside Avenue Cleveland, OH Tel: (216) Fax: (216) tdemitrack@jonesday.com Lee A. Armstrong 222 East 41st Street New York, New York Tel.: (212) laarmstrong@jonesday.com Attorneys for Defendant Sirius XM Radio, Inc. 6

7 Case 4:13-cv AWA-LRL Document 192 Filed 11/16/16 Page 7 of 7 PageID# 4084 CERTIFICATE OF SERVICE I hereby certify that on November 16, 2016, I filed a true and correct copy of the foregoing document using the Court s CM/ECF system. The system will then send an electronic notice of filing to the following counsel of record: William V. O Reilly (VSB # 26249) Attorneys for Defendant Sirius XM Radio Inc. 51 Louisiana Avenue, N.W. Washington, DC Tel: (202) Fax: (202) woreilly@jonesday.com Thomas Demitrack (admitted pro hac vice) Attorney for Defendant Sirius XM Radio Inc. North Point 901 Lakeside Avenue Cleveland, OH Tel: (216) Fax: (216) tdemitrack@jonesday.com Lee A. Armstrong Attorney for Defendant Sirius XM Radio Inc. 250 Vesey Street New York, NY Tel.: (212) laarmstrong@jonesday.com /s/ Christopher Colt North Christopher Colt North (VSB # 16995) 7